EXHIBIT 10(ab)
SECOND AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT
By and Among:
PULTE FUNDING, INC.
As Borrower,
and
CALYON NEW YORK BRANCH
As Administrative Agent,
and
LASALLE BANK NATIONAL ASSOCIATION
As Collateral Agent
Dated as of August 19, 2005
TABLE OF CONTENTS
Page
----
ARTICLE I GENERAL TERMS................................................... 1
1.1 Certain Definitions.............................................. 1
ARTICLE II APPOINTMENT OF COLLATERAL AGENT................................ 2
2.1 Appointment...................................................... 2
2.2 Collateral Agency Fees........................................... 2
ARTICLE III COLLATERAL PROCEDURES......................................... 2
3.1 Collateral....................................................... 2
3.2 Delivery of Collateral to the Collateral Agent................... 3
3.3 Power of Attorney................................................ 5
3.4 Redemption of Mortgage Collateral................................ 6
3.5 Correction of Mortgage Notes..................................... 9
3.6 Special Borrowings............................................... 9
3.7 Collateral Reporting............................................. 10
3.8 Further Obligations of the Collateral Agent...................... 11
3.9 Segregation of Collateral........................................ 11
3.10 Delivery of Required Documents to the Administrative
Agent............................................................ 11
ARTICLE IV THE COLLATERAL AGENT........................................... 11
4.1 Instructions to the Collateral Agent............................. 11
4.2 Reliance by the Collateral Agent; Responsibility of
the Collateral Agent............................................. 11
4.3 Agents and Affiliates............................................ 15
4.4 Successor Collateral Agent....................................... 15
4.5 Right of Inspection.............................................. 16
4.6 Accounting in Certain Circumstances.............................. 16
ARTICLE V INDEMNIFICATION................................................. 17
5.1 Indemnities by the Borrower...................................... 17
ARTICLE VI MISCELLANEOUS.................................................. 18
6.1 Notices.......................................................... 18
6.2 Amendments, Etc.................................................. 18
6.3 Invalidity....................................................... 18
6.4 Survival of Agreements........................................... 18
6.5 Cumulative Rights................................................ 19
6.6 Construction; Governing Law...................................... 19
6.7 Successors and Assigns........................................... 19
i
6.8 The Collateral Agent Representations and Warranties....... 19
6.9 Rights of Atlantic Program Agent.......................... 19
6.10 Counterparts.............................................. 20
6.11 No Proceedings............................................ 20
ii
SCHEDULES AND EXHIBITS
Schedule I Collateral Review Functions
Schedule II Addresses and Notices
Schedule III Approved Investors
Exhibit D-1 Definitions
Exhibit D-2 Security Agreement
Exhibit D-3 Form of Restated Assignment of Account
Exhibit D-4 Assignment
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) Bailee and Security Agreement Letter
Exhibit D-6(b) Bailee and Security Agreement Letter for Pool Custodian
Exhibit D-7 Trust Receipt and Security Agreement for Approved Investors
Exhibit D-8 Collateral Agent Daily Report
Exhibit D-9 [Reserved]
Exhibit D-10 UCC Financing Statements
Exhibit D-11 [Reserved]
Exhibit D-12 Assignment of Trade
Exhibit D-13 Form of Substitution Assignment
iii
SECOND AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT
Dated as of August 19, 2005
THIS SECOND AMENDED AND RESTATED COLLATERAL AGENCY AGREEMENT (the
"Agreement"), among PULTE FUNDING, INC., a Michigan corporation (the
"Borrower"), CALYON NEW YORK BRANCH ("Calyon New York"), in its capacity as the
administrative agent for the "Lenders" under and as defined in the Second
Restated Loan Agreement referred to below (the "Administrative Agent"), and
LASALLE BANK NATIONAL ASSOCIATION in its capacity as collateral agent hereunder
(the "Collateral Agent").
WHEREAS, the Borrower, Atlantic Asset Securitization LLC, as an Issuer,
Jupiter Securitization Corporation ("Jupiter") as an Issuer, La Fayette Asset
Securitization LLC ("La Fayette") as an Issuer, Calyon New York as a Bank, a
Managing Agent and the Administrative Agent, JPMorgan Chase Bank, National
Association ("JPMorgan") as a Bank and as a Managing Agent, Lloyds as a Bank,
and the Servicer are entering into that certain Second Amended and Restated Loan
Agreement, dated as of the date hereof (the "Second Restated Loan Agreement");
WHEREAS, the Borrower entered into that certain Collateral Agency
Agreement, dated as of December 22, 2000, among the Borrower, the Administrative
Agent and JPMorgan, as amended by that certain Amendment to Collateral Agency
Agreement, dated as of February 27, 2001, among the Borrower, the Administrative
Agent and JPMorgan, as amended by that certain Second Amendment to Collateral
Agency Agreement, dated as of September 28, 2001, among the Borrower, the
Administrative Agent and JPMorgan, and as further amended by that certain
Omnibus Amendment, dated as of November 16, 2001, among the Borrower, the
Administrative Agent and the Collateral Agent (together, the "Original
Collateral Agency Agreement") to provide for the holding and monitoring of
Collateral to be furnished pursuant to the Original Loan Agreement; and
WHEREAS, the Borrower, the Administrative Agent and the Collateral Agent
wish to enter into this Agreement to amend and restate a second time the
Original Collateral Agency Agreement and to amend certain provisions thereof;
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
GENERAL TERMS
1.1 Certain Definitions.
Unless otherwise defined herein or in the Second Restated Loan Agreement,
terms are used herein as defined in Exhibit D-1 hereto.
ARTICLE II
APPOINTMENT OF COLLATERAL AGENT
2.1 Appointment.
The Administrative Agent, on behalf of the holders of the Obligations,
hereby appoints LaSalle Bank National Association, as "Collateral Agent" under
this Agreement and authorizes the Collateral Agent to take such action on the
Administrative Agent's behalf and to exercise such powers and perform such
duties as are hereby expressly delegated to the Collateral Agent by the terms of
this Agreement, together with such powers as are reasonably incidental thereto.
(a) The Collateral Agent hereby accepts such appointment and agrees
to hold, maintain, and administer for the exclusive benefit of the holders of
the Obligations all Collateral at any time delivered to it by or on behalf of
the Borrower as herein provided. The Collateral Agent acknowledges and agrees
that it is acting and will act with respect to the Collateral for the exclusive
benefit of the holders of the Obligations and shall not be subject with respect
to the Collateral in any manner or to any extent to the direction or control of
the Borrower except as expressly permitted hereunder. The Collateral Agent (or
its designee) on behalf of the holders of the Obligations, agrees to act in
accordance with this Agreement and in accordance with any written instructions
of the Administrative Agent as provided in this Agreement. Under no
circumstances shall the Collateral Agent deliver possession of Collateral to the
Borrower except in accordance with the express terms of this Agreement or
otherwise upon the written instruction of the Administrative Agent as provided
in this Agreement.
2.2 Collateral Agency Fees.
The Borrower agrees to pay such fees and expenses of the Collateral Agent
as shall be agreed to between the Collateral Agent and the Borrower from time to
time.
ARTICLE III
COLLATERAL PROCEDURES
3.1 Collateral.
(a) The Borrower has executed and delivered to the Collateral Agent:
(i) a Security Agreement in favor of the Administrative Agent
for the benefit of the holders of the Obligations in substantially
the form of Exhibit D-2 hereto;
(ii) a Restated Assignment of Account in
favor of the Administrative Agent for the benefit of the holders of
the Obligations substantially in the form of Exhibit D-3 hereto; and
(iii) the Assignments provided for in Section 3.2 hereof.
2
(b) The Borrower has delivered to the Collateral Agent UCC financing
statements in the form of Exhibit D-10 hereto.
(c) From time to time the Borrower shall execute and deliver to the
Collateral Agent such other documents as shall be specified in a notice by the
Administrative Agent to the Collateral Agent as documents that are required to
be delivered to the Collateral Agent pursuant to this Agreement.
(d) The Collateral Agent's only responsibility is to hold the
aforementioned documents and the Collateral Agent shall have
no obligation to track, amend or continue any financing statement.
3.2 Delivery of Collateral to the 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 of a security interest
(the "Assignment") to the Administrative Agent, for the benefit of the holders
of the Obligations, in all Mortgage Loans, Take-Out Commitments and related
Collateral delivered with or described in such Assignment or any schedules
thereto. The Borrower shall use substantially the form illustrated in Exhibit
D-4 hereto for each Assignment, or such other form as may be acceptable to, or
required by, the Administrative Agent, from time to time.
(b) Each Assignment delivered to the Collateral Agent shall be
accompanied by a completed Schedule I, Schedule II and Schedule III (which may
be delivered electronically), using the forms of such schedules as prescribed in
Exhibit D-4 hereto, and with respect to each Mortgage Loan described in Schedule
I to each Assignment the following items (collectively, the "Principal Mortgage
Documents"):
(i) the original of each Mortgage Note, endorsed by Pulte
Mortgage 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 assignment in
blank for each Mortgage Note and the Mortgage securing such Mortgage
Note, in recordable form executed by Pulte Mortgage or an officer of
Pulte Mortgage authorized by the Mortgage Electronic Registration
Service ("MERS") through a corporate resolution of MERS.
(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
3
agent to be a true and correct copy of the filed and recorded
original, may be used by the Borrower to satisfy this requirement;
(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 that the
original mortgagee and its successors and assigns have a perfected,
first-priority Lien created by the Mortgage securing such Mortgage
Loan (subject to title exceptions that conform to the related
Take-Out Commitment) in a policy amount not less than the principal
amount of such Mortgage Loan,
(iii) the original hazard insurance policy, appropriately
indicating that all insurance proceeds will be paid to the original
mortgagee and its successors and assigns, referred to in Section
6.6(b) of the Second Restated Loan Agreement which relate to such
Mortgage Loan, or other evidence of insurance reasonably acceptable
to the Administrative Agent,
(iv) the form of current appraisal of the Property described
in the Mortgage, prepared by a state licensed appraiser, that
complies with all applicable Governmental Requirements, including
all Governmental Requirements that are applicable to the Lenders or
any other Affected Party, provided, however, that no appraisal shall
be required for Mortgage Loans (x) financing HUD repossessed
Property that is sold to a consumer, financed with an FHA loan,
fully insurable and in accordance with FHA guidelines, but for which
an appraisal is not required, and (y) representing so called VA Rate
Reduction or FHA Streamline refinances, insurable in accordance with
VA and FHA guidelines, but for which an appraisal is not required;
and
(v) all other original documents, collectively, the "Other
Mortgage Documents."
Upon request of the Administrative Agent, 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. The Collateral Agent shall hold such items,
but shall have no obligation to review or inventory them.
(d) 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 during normal business hours on any Business
Day upon at least one Business Days' notice.
(e) With respect to each Assignment, together with the related
electronic transmission, that is received by the Collateral Agent by 8:00 a.m.
(eastern time) on a Business Day, the Collateral Agent shall include the
Mortgage Loans identified thereon when calculating the Collateral Value of
Eligible Mortgage Collateral and in preparing the Collateral Agent Daily Report
to be delivered on such Business Day, even if the Collateral Agent has not
completed its
4
review of the related Principal Mortgage Documents. The Collateral Agent shall
review the Principal Mortgage Documents delivered with any such Assignment
before the opening of business on the next succeeding Business Day. The
Collateral Agent's responsibility to review such Collateral is limited to the
review steps described on Schedule I hereto. The Collateral Agent shall prepare
by 11:00 a.m. (eastern time) on each Business Day, the Collateral Agent Daily
Report provided for in Section 3.7 hereof, and furnish it to the Administrative
Agent and the Borrower.
(f) The Collateral Agent shall, acting on behalf of the
Administrative Agent for the benefit of the holders of the Obligations, and as
agent and bailee of, and as custodian for, the Administrative Agent for the
benefit of the holders of the Obligations, retain possession and custody of the
documents delivered to the Collateral Agent pursuant hereto, which documents
shall, subject to Section 4.2(m) and 4.4, remain in the state of Illinois, for
all purposes (including but not limited to the perfection of the security
interest of the Administrative Agent, for the benefit of the holders of the
Obligations, in such Collateral) until the Collateral is to be released pursuant
to Section 3.4 hereof.
(g) At the Borrower's election, in its sole and absolute discretion,
the Borrower may cause the substitution of any Collateral with any like
Collateral, so long as the updated Collateral Value exceeds the total Principal
Debt, by fulfilling the same duties and obligations in connection with
substituting Collateral as required for the delivery of any Collateral under the
Transaction Documents (excluding delivering the Assignment), including, but not
limited to, delivering the Substitution Assignment by 4:00 p.m. (eastern time)
on such Business Day, substantially in the form illustrated in Exhibit D-13
hereto, and the Transfer Request, substantially in the form illustrated in
Exhibit D-5 hereto. Any substitution that is the subject of a Substitution
Assignment received by the Collateral Agent by 4:00 p.m. (eastern time) on a
Business Day shall be effective on that same Business Day or shall be effective
on the following Business Day if the Substitution Assignment is received after
4:00 p.m. (eastern time) or on a day which is not a Business Day.
3.3 Power of Attorney.
(a) Subject to subsection (b) below, the Borrower hereby irrevocably
appoints the Administrative Agent, for the benefit of the holders of the
Obligations, its attorney in fact, with full power of substitution, for and on
behalf and in the name of the Borrower, to: (i) endorse and deliver to any
Person any check, instrument or other paper coming into the Collateral Agent's,
the Administrative Agent's or any Lender's possession and representing payment
made in respect of any Mortgage Note or Take-Out Commitment delivered hereunder
or in respect of any other Collateral; (ii) prepare, complete, execute, deliver
and record any Assignment to the Collateral Agent, the Administrative Agent or
to any other Person of any Mortgage relating to any Mortgage Note delivered
hereunder as Mortgage Loan Collateral; (iii) endorse and deliver any Mortgage
Note as Mortgage Loan Collateral arising as proceeds thereof, and do every other
thing necessary or desirable to effect transfer of all or any part of the
Mortgage Loan Collateral to the Administrative Agent, for the benefit of the
holders of the Obligations, or to any other Person; (iv) take all necessary and
appropriate action with respect to all Obligations and the Mortgage Loan
Collateral to be delivered to the Collateral Agent or the Administrative Agent
or held by the Borrower in trust for the Administrative Agent for the
5
benefit of the holders of the Obligations; (v) commence, prosecute, settle,
discontinue, defend, or otherwise dispose of any claim relating to any Take-Out
Commitment or any other part of the Mortgage Loan Collateral; and (vi) sign the
Borrower's name wherever appropriate to effect the performance of this
Agreement.
(b) This Section 3.3 shall be liberally, not restrictively,
construed so as to give the greatest latitude to the Administrative Agent's
powers, as the Borrower's attorney-in-fact, to collect, sell, and deliver any of
the Mortgage Loan Collateral and all other documents relating thereto. The
powers and authorities herein conferred on the Administrative Agent may be
exercised by the Administrative Agent through any Person who, at the time of the
execution of a particular instrument, is an authorized officer or agent of the
Administrative Agent. The power of attorney conferred by this Section 3.3 shall
become effective upon the occurrence, and remain effective during the
continuance, of a Default or an Event of Default and is granted for a valuable
consideration and is coupled with an interest and irrevocable so long as the
Obligations, or any part thereof, shall remain unpaid or any Bank Commitment is
outstanding. All Persons dealing with the Administrative Agent, any officer
thereof, or any substitute attorney, acting pursuant hereto shall be fully
protected in treating the powers and authorities conferred by this Section 3.3
as existing and continuing in full force and effect until advised by the
Administrative Agent that the Obligations have been fully and finally paid and
satisfied and all Bank Commitments have been terminated.
3.4 Redemption of Mortgage Collateral.
(a) Generally. So long as the Collateral Agent does not receive
written notice of the existence of a Default or Event of Default, the Borrower
or the Servicer (on behalf of the Borrower) may obtain releases of the
Administrative Agent's security interest in all or any part of the Collateral
(including releases from the Collection Account) at any time, and from time to
time, if the Servicer notifies the Collateral Agent (i) that (immediately after
giving effect to any requested release) total Collateral Value of all Eligible
Mortgage Collateral (immediately after giving effect to the requested release)
equals or exceeds the Principal Debt, or (ii) that either (A) the Borrower has
made a principal payment on account of the Principal Debt in an amount, or (B)
the Borrower will deliver to the Collateral Agent (and the Collateral Agent has
received) 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 the Administrative Agent and (i) shall be substantially in
the form illustrated in Exhibit D-5 hereto (or such other form as may be
reasonably acceptable to or required by the Administrative Agent, from time to
time) and (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 (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 request that the Administrative Agent 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
6
Borrower identifying Collateral to be delivered to an Approved Investor, and so
long as the Collateral Agent does not receive written notice of the existence of
a Default or an Event of Default:
(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 of Exhibit D-6(a), or D-6(b) hereto or
such other form as may be reasonably approved by the Administrative
Agent as appropriate, the items of Mortgage Loan Collateral being
sold which 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 Administrative
Agent of the amount described in Section 3.4(b)(iii);
(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, under a letter
agreement or other arrangement reasonably approved by the
Administrative Agent 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 Administrative Agent pursuant to the terms of
the related 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 3.4(b)(i), the Borrower shall make a payment,
or shall cause a payment to be made, to the Collection Account, for
distribution to the Administrative Agent for the account of the
Lenders in an amount at least equal to the full purchase price for
such Mortgage Loan Collateral or shall substitute Eligible Mortgage
Collateral as permitted by this Section 3.4; 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 reasonable 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 the Collateral Agent does not receive
notice of Default or Event of Default, subject to Section 3.4(a) and (b), the
Borrower shall, at any time, be permitted to cause the Collateral Agent to
reflect the transfer of 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,
7
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, that such transfers have been effected.
"Permitted Transferees" means the Lenders pursuant to that certain Fifth Amended
and Restated Revolving Credit Agreement, dated as of June 30, 2004, as amended,
on behalf of the Originator, in connection with any sale and transfer thereto
effected pursuant to the terms of the Second Restated Repurchase Agreement and
any Approved Investor approved by the Administrative Agent and the Collateral
Agent as a Permitted Transferee. However, requested transfers will not be made
(A) if the Servicer notifies the Collateral Agent that total Principal Debt will
equal or exceed the total Collateral Value of Eligible Mortgage Collateral
immediately after giving effect to a requested transfer and any accompanying
substitution of Mortgage Collateral or (B) if 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 3.4(b) shall continue
in effect until such time as the Administrative Agent shall have received
payment in full of the amount described in Section 3.4(b)(iii).
(e) Application of Proceeds; No Duty. Neither the Administrative
Agent, nor the Collateral Agent, nor any Lender shall be under any duty at any
time to credit the Borrower for any amounts due from any Approved Investor in
respect of any purchase of any Mortgage Collateral contemplated under Section
3.4(b) above, until the Administrative Agent has actually received such amount
in the form of immediately available funds, for deposit to the Collection
Account. Neither the Administrative Agent, nor the Collateral Agent, nor any
Lender 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 hereof to the contrary, if at any time a Collateral Deficiency exists,
the Borrower shall, immediately upon receipt of notice (which may be by
telephone, promptly confirmed in writing) from the Administrative Agent or the
Collateral Agent, make a deposit to the Collection Account or pledge, assign and
deliver additional or substitute Eligible Mortgage Collateral to the
Administrative Agent for the benefit of the holders of the Obligations, so that,
immediately after giving effect to such payment or pledge and assignment, total
Collateral Value of Eligible Mortgage Collateral shall be equal to 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 3.4(a) or Section 3.4(b) shall automatically
constitute a representation and warranty to the Lenders, the Administrative
Agent, and the Collateral Agent to the effect that immediately before and after
giving effect to such release or Transfer Request, the Collateral Value of
Eligible Mortgage Collateral shall exceed the Principal Debt. In connection with
any request for a release or a Transfer Request, the Collateral Agent may
assume, in the absence of written notice to the contrary received from the
Administrative Agent, that immediately before and after
8
giving effect to such release of Collateral or Transfer Request, no Default or
Event of Default exists.
(h) Limitation on Releases. Notwithstanding any provision to the
contrary, the Collateral Agent shall not release any Collateral unless the
Collateral Agent receives notice from the Servicer that the purchase price by
the Approved Investor has been paid in immediately available funds to the
Collection Account; provided, however, that the foregoing shall not apply if the
Servicer notifies the Collateral Agent that immediately before and after giving
effect thereto, the total Collateral Value of Eligible Mortgage Collateral
(including any Eligible Mortgage Loans substituted for those Eligible Mortgage
Loans being released) shall exceed aggregate Principal Debt; provided, further,
that the Collateral Agent shall be under no obligation to verify whether such
purchase price has been paid in immediately available funds to the Collection
Account.
3.5 Correction of Mortgage Notes.
The Servicer may from time to time request, in writing in the form of
Exhibit D-7 hereto, 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 the Collateral Agent has not received
written notice that a Default or Event of Default shall be in existence, the
Collateral Agent shall deliver to the Servicer, under the "Trust Receipt and
Security Agreement Letter," substantially in the form of Exhibit D-7, hereto, or
such other form as may be approved by the Administrative Agent, the Mortgage
Note to be corrected, such delivery to be conditioned upon the receipt by the
Collateral Agent within fourteen (14) calendar days of a corrected Mortgage
Note. If the corrected Mortgage Note is not received within 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.
3.6 Special Borrowings.
(a) Pursuant to the Second Restated Loan Agreement, the Borrower may
from time to time request that certain Borrowings be funded after delivery to
the Collateral Agent of the related Assignment, but prior to the delivery to the
Collateral Agent of the corresponding Principal Mortgage Documents (individually
a "Special Borrowing"; collectively "Special Borrowings"). The Borrower and the
Administrative Agent acknowledge that Advances in respect of Special Borrowings
are subject to various terms and conditions of the Second Restated Loan
Agreement, including those set forth in Section 2.3(c) to the Second Restated
Loan Agreement.
(b) Delivery of Principal Mortgage Documents. Within nine (9)
Business Days after the earlier of the date that each Assignment is delivered
or, if different, the date of origination of the related Special Mortgage Loan
(and inclusion of the related Special Mortgage Loans within the computation of
Collateral Value as reported on the Collateral Agent Daily Report) to the
Collateral Agent, the Borrower shall deliver to the Collateral Agent all of the
Principal Mortgage Documents pertaining to such Special Mortgage Loans, or make
a mandatory
9
prepayment 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.
3.7 Collateral Reporting.
(a) 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, Servicer and the Managing Agents by facsimile (a hard copy of which
shall not subsequently be mailed, sent or delivered to any such party, unless so
requested by such party) a duly completed report in the form of Exhibit D-8
hereto, (the "Collateral Agent Daily Report") specifying and certifying the then
total Collateral Value of the Eligible Mortgage Collateral and other
information, all as more fully provided for therein. In furnishing the
Collateral Agent Daily Report, the Collateral Agent may rely, without
independent investigation of the correctness thereof, on:
(i) All information supplied by the Borrower to the Collateral
Agent in any Assignment, or related electronic transmission,
received by the Collateral Agent, including but not limited to the
acquisition price paid for any Mortgage Loan, the unpaid principal
balance of any Mortgage Loan as of its closing and funding date and
the weighted average purchase price under Take Out Commitments used
in the related Collateral Value calculation and whether the Mortgage
Loan is a Conforming Loan, a Jumbo Loan, Super Jumbo Loan, a
Subprime Loan, an Alt-A Loan or a Second Lien Loan;
(ii) The information supplied by the Borrower to the
Collateral Agent, whether written or in any other form acceptable to
the Collateral Agent, with respect to a determination as to whether
amounts received in the Collection Account represent the purchase
price paid for a specific Mortgage Loan or funds deposited to the
Collection Account as a result of a Mortgage Loan's failure to
close, and, consequently, whether the Collateral Value of such
Mortgage Loan or failed Mortgage Loan should be removed from such
calculation;
(iii) The most recent information supplied by the Borrower to
the Collateral Agent with respect to the number of days by which
payments on any Mortgage Loan constituting Collateral are past due;
and
(iv) So long as the Collateral Agent does not receive written
notice from the Administrative Agent that the Collateral Value of
the Collection Account is an amount other than zero, the Collateral
Value of the Collection Account is zero.
(b) On any Business Day on which the Maximum Facility Amount, the
Administrative Agent shall notify the Collateral Agent and the Borrower of the
new Maximum Facility Amount under the Second Restated Loan Agreement.
(c) By 2:00 p.m. (eastern time) on each Business Day, the
Administrative Agent shall notify the Collateral Agent in writing if the
Collateral Value of the Collection Account is other than zero.
10
3.8 Further Obligations of the Collateral Agent.
The Collateral Agent shall promptly notify the Administrative Agent if the
Collateral Agent receives written notice (i) that any Lien (other than for the
Administrative Agent for the benefit of the holders of the Obligations) has been
placed, or attempted to be placed, on any Collateral for the Obligations or that
the Administrative Agent's security interest shall have been challenged or (ii)
that any Approved Investor has rejected any Collateral that is related to a
Mortgage Loan that has been delivered to the Collateral Agent as Collateral for
the Obligations.
3.9 Segregation of Collateral.
The Collateral Agent shall keep and maintain the Collateral on its
documents, books and records separate and apart from its other Property and from
any Property securing any liabilities of the Borrower to any other Person.
Without limitation of the foregoing, the Collateral Agent shall keep and
maintain the Collateral on its documents, books and records separate and apart
from any collateral provided by the Borrower in favor of any other lender
providing financing to the Borrower.
3.10 Delivery of Required Documents to the Administrative Agent.
Upon written request of the Administrative Agent, after the occurrence of
and during the continuation of an Event of Default under the Second Restated
Loan Agreement or in contemplation of removing the Collateral Agent as
collateral agent hereunder, the Collateral Agent shall deliver within five (5)
Business Days to the Administrative Agent or its designee any or all documents
and other items of Collateral which are then in the possession or control of the
Collateral Agent. The Administrative Agent shall provide the Borrower with a
copy of any such notice delivered to the Collateral Agent. All special handling
and delivery costs shall be paid by the Borrower.
ARTICLE IV
THE COLLATERAL AGENT
4.1 Instructions to the Collateral Agent.
As to any matter not expressly provided for by this Agreement, the
Collateral 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 Administrative Agent acting on behalf of the holders of the Obligations;
provided, however, that the Collateral Agent shall not be required to take any
action which may expose the Collateral Agent to any liability that such
Collateral Agent determines to be unreasonable in light of the circumstances or
which is contrary to this Agreement or any Governmental Requirement.
4.2 Reliance by the Collateral Agent; Responsibility of the Collateral
Agent.
(a) The Collateral Agent shall perform its duties hereunder in
accordance with the standards followed by the Collateral Agent in dealing with
similar property for its own account. Notwithstanding anything to the contrary
in this Agreement or any other Transaction
11
Document, neither the Collateral Agent nor any of its 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 the Collateral Agent) under or in connection
with this Agreement or the other Transaction Documents, except for its or their
own gross negligence or willful misconduct, for which the Collateral Agent shall
be liable. In no event shall the Collateral Agent, its directors, officers,
agents, employees, affiliates or attorneys-in-fact or Affiliates be liable,
directly or indirectly, for any special, indirect, punitive or consequential
damages, unless such party has been advised of the possibility of such damages.
(b) All Collateral at any time delivered to the Collateral Agent
hereunder shall be held by the Collateral Agent in a fire resistant vault,
drawer or other suitable depositary maintained and controlled solely by the
Collateral Agent, conspicuously marked to show the interest therein of the
Collateral Agent as bailee for the Administrative Agent on behalf of the holders
of the Obligations and not commingled with any other assets or property of, or
held by, the Collateral Agent for any person other than the Borrower or the
Originator. The Collateral Agent shall have responsibility only for documents
which have been actually delivered to the Collateral Agent in connection
herewith and which have not been released to the Administrative Agent, the
Borrower, a transferee or their respective agent or designee in accordance with
this Agreement. In the event that a Mortgage Note has been delivered to the
Collateral Agent and, subsequently, the Collateral Agent cannot locate such
Mortgage Note, then the Collateral Agent shall prepare and execute a lost note
affidavit with appropriate indemnification and shall deliver such lost note
affidavit to the party that otherwise would have been entitled to delivery of
the related Mortgage Note in accordance with this Agreement at the time such
Mortgage Note would have been delivered.
(c) Under no circumstances shall the Collateral Agent be obligated
to verify the authenticity of any signature on any of the documents received or
examined by it in connection with this Agreement or the authority or capacity of
any person to execute or issue any such document nor shall the Collateral Agent
be responsible for the value, form, substance, validity, perfection (other than
by taking and continuing possession of the Collateral), priority, effectiveness
or enforceability of any of such documents nor shall the Collateral Agent be
under a duty to inspect, review or examine the documents to determine whether
they are appropriate for the represented purpose or that they have been actually
recorded or that they are other than what they purport to be on their face.
(d) The Collateral Agent may accept but shall not be responsible for
examining, determining the meaning or effect of, or notifying or advising the
Borrower or the Administrative Agent in any way concerning, any item or document
in any file regarding a Mortgage Loan that is not one of the items or documents
listed in Section 3.2(b). The Borrower shall be solely responsible for providing
to the Collateral Agent each and every document listed in Section 3.2(b) and for
completing or correcting any omission, or incomplete or inconsistent document.
(e) With respect to the calculations in connection with Collateral
Agent Daily Reports, the Collateral Agent shall be entitled to rely upon the
information contained in any Assignment. The Collateral Agent shall be
responsible to confirm that (except for Special Mortgage Loans) all Principal
Mortgage Documents relating to each Mortgage Loan the value of
12
which is included in a Collateral Agent Daily Report are then held or deemed
held by the Collateral Agent exclusively for the benefit of the holders of the
Obligations under the terms of this Agreement (i.e., is not held by the
Collateral Agent for the benefit of any other Person), and (ii) in the case of
Special Mortgage Loans, to monitor and report the amount of such Special
Mortgage Loans and the portion thereof for which the related Principal Mortgage
Documents have been delivered to the Collateral Agent within the time period
permitted under Section 3.7. Except as otherwise provided in this Agreement, the
Collateral Agent shall have no duty to investigate or conduct any due diligence
with respect to such information.
(f) With respect to the determination of whether a Mortgage Loan
constitutes an Eligible Mortgage Loan, the Collateral Agent may assume that (i)
such Mortgage Loan meets the requirements of clauses (g), (h), (j), (l), (m),
(n), (o), (p) and (q) and subclauses (i), (ii) and (iii) of clause (i) of the
definition of Eligible Mortgage Loan, (ii) such Mortgage Loan is "eligible for
delivery" or "designated for delivery" under a Take-Out Commitment and is not
delinquent for thirty (30) days or more unless the Collateral Agent has
knowledge based upon specific written notice from the Borrower or the
Administrative Agent, (iii) such Mortgage Loan is not a Seasoned Mortgage Loan,
(iv) subject to Sections 3.9(i), 3.10 and 4.2(e), such Mortgage Loan is subject
to a perfected first-priority Lien in favor of the Administrative Agent for the
benefit of the holders of the Obligations, and is not subject to any other Lien,
(v) such Mortgage Loan is a closed and funded Mortgage Loan, (vi) each of such
Mortgage Loan and the related Mortgage Note is a legal, valid and binding
obligation of the Obligor thereof, (vii) the beneficial interest of each
Mortgage Loan has been acquired from the Originator on a servicing retained
basis and (viii) such Mortgage Loan has not previously been sold to an Approved
Investor and repurchased by Borrower. Notwithstanding anything contained in this
Section 4.2(f) to the contrary, the Collateral Agent shall be responsible to
confirm that it has possession, or is deemed to have possession in accordance
with the immediately preceding sentence, of all documentation relating to
Collateral reported on a Collateral Agent's Daily Report.
(g) The Collateral Agent is an agent and bailee only and is not
intended to be, nor shall it be construed to be a trustee or fiduciary under
this Agreement of or for either or both of the Borrower or the Administrative
Agent.
(h) The Collateral Agent shall retain possession and custody of the
Principal Mortgage Documents received from the Borrower and pertaining to each
Mortgage Loan file as agent and bailee of, and as custodian for, the
Administrative Agent for all purposes (including but not limited to the
perfection of the security interest of the Administrative Agent for the benefit
of the holders of the Obligations) until the Collateral is released pursuant to
Section 3.4 or 3.5 hereof.
(i) Without limitation of the generality of the foregoing, the
Collateral Agent: (i) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by the
Collateral Agent 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; (ii) except as provided in this Agreement,
makes no warranty or representation to the Administrative Agent or the holders
of any Obligations and shall not be responsible to the Administrative Agent or
the holders of any Obligations for any statements, warranties or representations
made in or in connection with this Agreement or the
13
other Transaction Documents; (iii) except as provided in Article III and this
Section 4.2, 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
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (iv) shall not be responsible to the
Administrative Agent or the holders of any Obligations for the due execution,
legality, validity, enforceability of this Agreement or any other instrument or
document furnished pursuant hereto as it relates to any party other than the
Collateral Agent, or for the genuineness, effectiveness, sufficiency, value,
perfection or priority of any Collateral; and (v) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy, cable or
telex) believed in good faith by the Collateral Agent, to be genuine and signed
or sent by the proper Person.
(j) The Collateral Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact (which agents or
attorneys-in-fact shall be accorded the same rights and obligations applicable
to the Collateral Agent) and shall be entitled to advice of counsel concerning
all matters pertaining to such duties. The Collateral Agent shall be responsible
for the actions of any agent or attorneys-in-fact selected by it to the extent
it would have been liable had it taken such action itself; provided, however,
that nothing contained herein shall affect in any manner or any extent the
rights of the Borrower or the Administrative Agent against such agents or
attorneys-in-fact.
(k) Collateral Agent's Funds. No provision of this Agreement shall
require the Collateral Agent to expend or risk its own funds or otherwise incur
financial liability (other than expenses or liabilities otherwise required to be
incurred by the terms of this Agreement) in the performance of its duties under
this Agreement if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity is not reasonable assured to it.
(l) Collateral Agent's Performance. The Collateral Agent shall not
be responsible for delays or failures in performance resulting from acts beyond
its control. Such acts shall include but not be limited to acts of God, riots,
acts of war or terrorism, epidemics, nationalization, expropriation, currency
restrictions, governmental regulations superimposed after the fact, fire,
communication line failures, power failures, earthquakes or other disasters.
(m) Merger of Collateral Agent. Any entity into which the Collateral
Agent may be merged or converted or with which may be consolidated, or any
entity resulting from any merger, conversion or consolidation to which the
Collateral Agent shall be a party, or any entity succeeding to the business of
the Collateral Agent, shall be the successor of the Collateral Agent hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
(n) Payments. The Collateral Agent shall have no duty to ascertain
whether or not any cash amount or payment has been received by the Servicer or
Administrative Agent or any third person; provided that the Collateral Agent
shall have the duties set forth in Section 3.6 hereunder.
14
(o) Adequacy. The Collateral Agent shall not be responsible or
liable for, and makes no representation or warranty with respect to, the
validity, adequacy or perfection of any lien upon or security interest in any
Collateral.
(p) Custodial Notice. Any other provision of this Agreement to the
contrary notwithstanding, the Collateral Agent shall have no notice, and shall
not be bound by any of the terms and conditions of any other document or
agreement executed or delivered in connection with, or intended to control any
part of, the transactions anticipated by or referred to in this Agreement unless
the Collateral Agent is a signatory party to that document or agreement.
Notwithstanding the foregoing sentence, the Collateral Agent shall be deemed to
have notice of the terms and conditions (including without limitation
definitions not otherwise set forth in full in this Agreement) of other
documents and agreements executed or delivered in connection with, or intended
to control any part of, the transactions anticipated by or referred to in this
Agreement, to the extent such terms and provisions are referenced, or are
incorporated by reference, into this Agreement only as long as the
Administrative Agent shall have provided a copy of any such document or
agreement to the Collateral Agent.
(q) Silence. The duties and obligations of the Collateral Agent
shall only be such as are expressly set forth in this Agreement or as set forth
in a written amendment to this Agreement executed by the parties hereto or their
successors and assigns. In the event that any provision of this Agreement
implies or requires that action or forbearance be taken by a party, but is
silent as to which party has the duty to act or refrain from acting, the parties
agree that the Collateral Agent shall not be the party required to take the
action or refrain from acting. In no event shall the Collateral Agent have any
responsibility to ascertain or take action except as expressly provided herein.
(r) Collateral Agent's Jurisdiction. Nothing in this Agreement shall
be deemed to impose on the Collateral Agent any duty to qualify to do business
in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan is
or may be held by the Collateral Agent from time to time hereunder, and (ii) any
jurisdiction where its ownership of property or conduct of business requires
such qualification and where failure to qualify could have a material adverse
effect on the Collateral Agent or its property or business or on the ability of
the Collateral Agent to perform its duties hereunder.
4.3 Agents and Affiliates.
The Collateral Agent and its 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, the Originator, any of the Originator's
Affiliates and any Person who may do business with or own securities of the
Borrower or any such Affiliate, all as if the Collateral Agent were not the
Collateral Agent and without any duty to account therefor to the Administrative
Agent or the holders of any Obligations.
4.4 Successor Collateral Agent.
The Collateral Agent may resign at any time by giving written notice
thereof to the Borrower and the Administrative Agent. The Collateral Agent may
be removed at any time with
15
or without cause by the Administrative Agent on behalf of the holders of the
Obligations. Upon request of the Borrower, so long as no Default or Event of
Default exists, the Collateral Agent shall be removed by the Administrative
Agent, provided that the Borrower shall pay immediately upon demand all costs
and expenses incurred by any Lender, the Administrative Agent or the Collateral
Agent in connection therewith. Upon any such resignation or removal, the
Administrative Agent, at the direction of the Majority Banks, shall have the
right to appoint a successor Collateral Agent. Any successor Collateral Agent
appointed by the Administrative Agent, provided that no Default or Event of
Default exists, shall be satisfactory to the Borrower at the time of
appointment. In the case of a retirement or resignation, if no successor
Collateral Agent shall have been so appointed by the Administrative Agent (and
approved by the Borrower, if applicable), and shall have accepted such
appointment, within 90 days after the retiring Collateral Agent's giving of
notice of resignation, then the retiring Collateral Agent shall deliver all
Mortgage Loan Collateral in its possession to the Administrative Agent and the
Collateral Agent shall be discharged from its duties and obligations under this
Agreement. After a notice of retirement or resignation has been given by the
Collateral Agent and until a successor Collateral Agent shall have been
appointed, the Administrative Agent shall pay all reasonable fees and out of
pocket expenses owed to the Collateral Agent by the Borrower pursuant to any
written agreement between the Collateral Agent and the Borrower, provided,
however, that the Borrower agrees to reimburse the Administrative Agent for all
such payments. Upon the acceptance of any appointment of the Collateral Agent
hereunder by a successor Collateral Agent, such successor Collateral Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Collateral Agent, and the retiring Collateral Agent
shall be discharged from its duties and obligations under this Agreement. The
retiring or removed Collateral Agent shall take all steps reasonably necessary
to provide for an orderly transfer of the Collateral and all related
documentation to the successor Collateral Agent. After any retiring Collateral
Agent's resignation or removal hereunder as the Collateral Agent, the provisions
of this Article IV shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was a Collateral Agent under this Agreement.
4.5 Right of Inspection.
The Collateral Agent shall permit any officer, employee or agent of the
Borrower, the Servicer, a Managing Agent or the Administrative Agent who may so
request to visit and inspect the premises on which the custodial duties of the
Collateral Agent hereunder are performed, examine the books and records of the
Collateral Agent which pertain to such custodial duties, take copies and
extracts therefrom, and discuss the performance of such custodial duties with
the officers, accountants and auditors of the Collateral Agent that are
responsible therefor, at such time, after notice to the Collateral Agent, as may
be mutually acceptable to the Collateral Agent and such Borrower, Servicer, a
Managing Agent or Administrative Agent (but in no event later than two weeks
after such party's original requested date).
4.6 Accounting in Certain Circumstances.
Subject to the provisions of Section 4.2 hereof, in the event that the
Collateral Agent, acting in its capacity as custodian for the Administrative
Agent, shall receive any money in respect of Mortgage Loan Collateral, whether
pursuant to Section 3.3 hereof or Section 5 of the Security Agreement, or
otherwise, the Collateral Agent shall provide an accounting therefor to
16
the Administrative Agent and the Borrower by the end of the Business Day
following receipt thereof, such accounting to include the amount received, the
item(s) of Mortgage Loan Collateral in respect of which such amount was
received, and, if applicable, the Take-Out Commitment(s) pursuant to which such
amount was received and shall promptly (but in no event later than the next
Business Day) deposit such amounts into the Cash and Collateral Account and
prior to such deposit to be held as Collateral under the Security Instruments in
its favor as provided in Section 3.1; provided, however, that all expenses of
the Collateral Agent reasonably allocable to such accounting shall be added to
the Obligations as expenses of the Collateral Agent. All such funds received
after 4:00 p.m. (eastern time) shall be considered to have been received on the
succeeding Business Day. The Collateral Agent shall provide such other
information in such detail and at such time or times as the Borrower or the
Administrative Agent may reasonably request.
ARTICLE V
INDEMNIFICATION
5.1 Indemnities by the Borrower.
(a) General Indemnity. Without limiting any other rights which any
such Person may have hereunder or under applicable law, the Borrower hereby
agrees to indemnify the Collateral Agent, its 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 Agreement or the exercise or performance of any of its or
their powers or duties hereunder, or in respect of any Mortgage Loans or
Take-Out Commitment, or related in any way to 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.
(b) Contribution. If for any reason the indemnification provided
above in this 5.1 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 the Borrower on the other hand but also the relative fault of such
Indemnified Party as well as any other relevant equitable considerations.
17
ARTICLE VI
MISCELLANEOUS
6.1 Notices.
Any notice or request required or permitted to be given under or in
connection with this Agreement 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 set forth in Schedule II, 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 with
respect to notices and requests given pursuant to Sections 2.3 and 3.3 of the
Second Restated Loan Agreement. Communications related thereto shall not be
effective until actually received by the Collateral Agent, the Administrative
Agent, the Issuers, the Managing Agents 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 Collateral Agent, the Administrative
Agent or the Borrower, as the case may be.
6.2 Amendments, Etc.
This Agreement may not be amended, supplemented or modified without the
written consent of the Borrower, the Collateral Agent and the Administrative
Agent. Any such waiver and any such amendment, supplement or modification shall
be binding upon the Borrower the Collateral Agent, the Administrative Agent and
all holders of the Obligations.
6.3 Invalidity.
In the event that any one or more of the provisions contained in this
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.
6.4 Survival of Agreements.
All covenants and agreements herein shall survive until payment in full of
the Obligations and termination of the Bank Commitments under the Second
Restated Loan Agreement.
18
6.5 Cumulative Rights.
The rights, powers, privileges and remedies of the Collateral Agent and
the Administrative Agent under this 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. The exercise of any right, power, privilege or remedy of the
Collateral Agent or the Administrative Agent under this Agreement or any
Transaction Document, shall not exhaust any such right, power, privilege or
remedy of the Collateral Agent or the Administrative Agent.
6.6 Construction; Governing Law.
THIS 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).
6.7 Successors and Assigns.
This Agreement is binding upon and inures to the parties to this Agreement
and their respective successors and permitted assigns and shall remain in full
force and effect until such time, after the Drawdown Termination Date, as all
Obligations shall have been paid in full and all other obligations to be
performed hereunder shall have been performed. The Borrower's obligations in
respect of indemnification and payment provisions shall be continuing and shall
survive any termination of this Agreement, subject to any applicable statute of
limitations. The Collateral Agent may not assign its rights or obligations
hereunder, except pursuant to Section 4.2(m) or 4.4; provided that Collateral
Agent may assign its rights and obligations under this Agreement, in whole or in
part, to any affiliate; however, Collateral Agent agrees to notify Borrower and
Administrative Agent of any such assignment. Affiliate is defined as any entity
that directly or indirectly is under common control with Collateral Agent, or is
under contract to be under common control with Collateral Agent, and shall
include a subsidiary or parent company of Collateral Agent.
6.8 The Collateral Agent Representations and Warranties.
The Collateral Agent represents and warrants that it: (a) is a national
banking association; (b) has the power and authority to own its properties and
assets and to transact the business in which it is engaged; and (c) has the
power and requisite authority to execute, deliver and perform this Agreement,
and is duly authorized to, and has taken all action necessary to authorize it
to, execute, deliver and perform this Agreement and the Security Instruments.
6.9 Rights of Atlantic Program Agent.
(a)The parties hereto acknowledge that Atlantic has granted to the
Atlantic Program Agent, for the benefit of the holders of certain obligations of
Atlantic from time to time, a security interest in Atlantic's 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
19
Documents to the Liens in the Collateral granted to Administrative Agent with
respect to the interest of Atlantic under the Transaction Documents shall be
deemed to include a reference to such security interest of the Atlantic Program
Agent and the Atlantic Program Agent shall be deemed to be a holder of
Obligations. By its execution hereof, the Atlantic Program Agent hereby appoints
the Collateral Agent as its agent for the purpose of perfecting the Atlantic
Program Agent's security interest in the Collateral, and the Collateral Agent
hereby accepts such appointment.
(b)The parties hereto acknowledge that La Fayette has granted to the
La Fayette Program Agent, for the benefit of the holders of certain obligations
of La Fayette from time to time, a security interest in La Fayette's 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 Administrative Agent with respect to
the interest of La Fayette under the Transaction Documents shall be deemed to
include a reference to such security interest of the La Fayette Program Agent
and the La Fayette Program Agent shall be deemed to be a holder of Obligations.
By its execution hereof, the La Fayette Program Agent hereby appoints the
Collateral Agent as its agent for the purpose of perfecting the La Fayette
Program Agent's security interest in the Collateral, and the Collateral Agent
hereby accepts such appointment.
6.10 Counterparts.
This 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.
6.11 No Proceedings.
The Collateral Agent 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, for
one year and one day after the latest Commercial Paper Note issued by the
Issuers is paid.
6.12 Electronic Counterparts.
Any form or report contemplated by this Agreement may be furnished to the
Collateral Agent electronically and may be formatted in a manner convenient for
electronic transmission so long as the required information is provided in an
equally useable form to the format, if any, provided in this Agreement.
* * * * *
20
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
PULTE FUNDING, INC.,
as Borrower
By: ___________________________________
Name:
Title:
CALYON NEW YORK BRANCH,
as Administrative Agent
By: ___________________________________
Name:
Title:
By: ___________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION
as Collateral Agent
By: ___________________________________
Name:
Title:
21
SCHEDULE I
COLLATERAL REVIEW FUNCTIONS
1. Each Assignment delivered by the Borrower pursuant to Section 3.2(b) bears
an original signature of an authorized officer of the Borrower or the
Originator, based on the current list of such officers supplied by the
Borrower or such Originator, and appears to be duly completed (including
all Schedules thereto).
2. All Mortgage Loan Collateral are consistent as to the Obligor name and
loan face amount.
3. Each Mortgage Note and Mortgage bears an original signature or signatures
which appear to be those of the person or persons named as the maker and
Mortgagor (trustor) or, in the case of a certified copy of the Mortgage,
such copy bears what appears to be a reproduction of such signature or
signatures.
4. Except for the endorsement in blank of the Mortgage Note by Pulte Mortgage
and/or the Borrower, neither the Mortgage Note nor the Mortgage contain
any irregular writings which appear on their face to affect the validity
of any such endorsement or to restrict the enforceability of the document
on which they appear.
5. The Mortgage Note is endorsed in blank and such endorsement bears an
original signature of an authorized officer of the Borrower or Pulte
Mortgage based on the current list of such officers supplied by the
Borrower or Pulte Mortgage.
6. No Mortgage Loan bears evidence (on its face or reverse side) that it is
subject to any Lien in favor of any Person other than the Administrative
Agent, for the benefit of the holders of the Obligations.
I-1
SCHEDULE II
ADDRESSES AND NOTICES
Borrower: PULTE FUNDING, INC.
Pulte Mortgage LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with copies of any notices of Event of Default to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP
2290 First National Building
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Administrative Agent: ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telex No.: 62410
(Answerback: CRED A 62410 UW)
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Conduit Securitization Group
Collateral Agent: LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇-1
SCHEDULE III
APPROVED INVESTORS
▇▇▇▇▇'▇ S&P
TAKE-OUT INVESTORS LIMIT LT/ST LT/ST RATED ENTITY
------------------------------------------- ----- ------- -------- -------------
ABN AMRO Incorporated 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
American Home Mortgage 10% NR NR
Astoria Financial Corp. 25% Baa1 BBB-/A-2 Fitch BBB+/F2
Aurora Loan Services, Inc. 100% A1/P-1 A/A1 Fitch A+/F1
Banc of America Securities LLC 100% P-1 A-1+ Fitch F1+
Banc One Capital Markets, Inc. 100% A1 BBB Fitch F2
Banc One Corp. 100% A1 BBB Fitch F2
Bank of America Mortgage 100% P-1 A-1+ Fitch F1+
Barclays Capital Inc. 100% P-1 A-1+ Fitch F1+
Bear, ▇▇▇▇▇▇▇ & Co., Inc. 100% P-1 A-1 Fitch F1+
BNP Paribas Securities Corp. 100% P-1 A-1 Fitch F1+
Charter One Financial Inc. 10% NR ▇▇
▇▇▇▇▇ Financial Corp. 100% Aa3/P-1 A+/A1 Fitch A+/F1
Chase Manhattan Mortgage Corporation 100% Aa3/P-1 A+/A1 Fitch A+/F1
Chase Securities Inc. 100% Aa3/P-1 A+/A1 Fitch A+/F1
CIBC World Markets Corp. 100% Aa3/P-1 NR
Citicorp Mortgage Corp. 100% Aa1/P-1 AA-/A-1+ Fitch AA+/F1+
Colorado Housing Finance Authority 100% Aaa AA-/A1+
Commercial Federal Corp. 10% WR BB+ Fitch BBB-/F3
Countrywide 100% ▇▇/▇-▇ ▇/▇-▇ ▇▇▇▇▇ ▇/▇▇
▇▇▇▇ 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Daiwa Securities America, Inc. 25% Baa3 BBB/A-2 Fitch BBB/F2
Dakota County Bond (Minnesota) 100% Aaa NR
Deutsche Bank Securities Inc. 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Dresdner Kleinwort ▇▇▇▇▇▇ North America LLC 100% ▇▇/▇-▇ ▇/▇-▇ ▇▇▇▇▇ ▇/▇▇
▇*▇▇▇▇▇ 10% Ba3 BB
Federal Home Mortgage Corp. 100% Aaa/P-1 AAA/ A1+
III-1
Federal National Mortgage
Association 100% Aaa/P-1 AAA
Fidelity Bancshares, Inc. 100% Aa3/P-1 AA-/A-1+ Fitch A+
First Franklin 10% NR NR
First Nationwide Mortgage
Corporation 10% NR NR
First Union Mortgage Corporation 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Fleet Mortgage group 100% Aa2/WR ▇▇ ▇▇▇▇▇ AA-/F1+
Florida Housing Finance Agency 100% Aa1 NR
Fuji Securities Inc. 100% WR A2 ▇▇▇▇▇ ▇▇
GE Capital Mortgage Services Inc. 100% Aaa/P-1 AAA/A-1+
GMAC Mortgage 25% Baa2/P-2 BB/B-1 Fitch BB+/B
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Government National Mortgage
Association. 100% Aaa AAA
Greenpoint Mortgage (formerly
Headlands Mortgage) 100% A2 ▇▇ ▇▇▇▇▇ A-
Greenwich Capital Markets, Inc. 100% Aa3 AA- Fitch F1+
Homeside Lending Inc. 10% WR ▇▇ ▇▇▇▇▇ WR
Housing Finance Authority of
Broward County (FL) 10% Aaa NR
HSBC Securities (USA) Inc. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇/F1+
Illinois Housing Development
Authority 100% Aaa AA-/A1+
Indy Mac (Independent National
Mortgage Corp.) 25% NR BB+ Fitch BBB-/F2
▇. ▇. ▇▇▇▇▇▇ Securities, Inc. 100% Aa3/P-1 A+/A1 Fitch A+/F1
Leader Mortgage Corp. 10% NR ▇▇
▇▇▇▇▇▇ Brothers Inc. 100% ▇▇/▇-▇ ▇/▇▇ ▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇ ▇▇▇▇▇ Financial Corp. 10% NR NR
Maryland Housing Opportunities
Commission (HOC) 10% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Government
Securities Inc. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Minnesota Housing Finance Agency 10% NR ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated 100% Aa3/P-1 A+/A1 Fitch A+/F1
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc. 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Nevada State Housing Finance
Agency 10% NR NR
New Jersey Housing Finance
Agency 10% NR ▇▇
▇▇▇▇▇▇ Securities International, Inc. 25% Baa1 BBB+/A-2 Fitch BBB/F2
North Carolina HFA 100% Aa3 AA-/A1+
III-2
Ohio Savings Financial Corp.
(Ohio Savings Bank) 10% NR NR
Opteum Financial Services 10% NR NR
PaineWebber Incorporated 100% Aa2/P-1 ▇▇ ▇▇▇▇▇ AA+/F1+
Pinellas County Finance Authority 100% Aaa A-
Pulte Corporation 25% Baa3 BBB- Fitch BBB+
Regions Mortgage, Inc.
(Regions Bank) 100% A1 A Fitch A+/F1
Residential Mortgage Inc. 10% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 100% Aa1/P-1 AA-/A-1+ Fitch AA+/F1+
Saxon Mortgage, Inc. 10% NR NR
▇▇ ▇▇▇▇▇ Securities Corporation 100% Aa2/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Texas Department of Housing and
Community Affairs (TDHCA) 10% Aaa AA/A1+
Texas Veteran Land Bond and bon
VLB Loans 10% NR NR
The Industrial Development
Authority of the County
of Maricopa, AZ 100% WR A/A1
The Industrial Development
Authority of the County
of Pima, AZ 10% Ba3 B+
UBS Warburg LLC 100% Aa2/P-1 AA+/A-1+ Fitch AA+/F1+
Washington Mutual (formerly
Alta Residential Mortgage) 100% A3/P-2 A-/A-2 Fitch A/F1
▇▇▇▇▇ Fargo Funding, Inc.
(formerly Norwest mortgage) 100% Aa1/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇/F1+
▇▇▇▇▇ Fargo Mortgage Resources
(formerly Director's Acceptance) 100% Aa1/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇/F1+
Zions First National Bank 100% A2/P-1 A-/A-2 Fitch A-/F1
III-3
EXHIBIT D-1
DEFINITIONS
As used in this Agreement, the following terms have the following
meanings:
"Administrative Agent" means Calyon New York, in its capacity as
administrative agent for the Lenders, or any successor administrative agent.
"Advance" means with respect to any Lender any amount disbursed by such
Lender to the Borrower pursuant to Section 2.1 of the Restated Loan Agreement
(or any conversion or continuation thereof).
"Advance Rate" means (i) with respect to a Conforming Loan or a Jumbo Loan
(other than a Super Jumbo Loan), ninety-eight percent (98%), (ii) with respect
to an Alt-A Loan, ninety-seven percent (97%), or, if a FICO Score Trigger Event
has occurred and is continuing, as reported to the Collateral Agent by the
Administrative Agent, then zero, (iii) with respect to a Second Lien Loan or a
Super Jumbo Loan, ninety-five percent (95%) and (iv) with respect to a Subprime
Loan, ninety percent (90%).
"Affected Party" means each Lender, the Administrative Agent, each
Managing Agent, any bank party to a Liquidity Agreement (as defined in the
Second Restated Loan Agreement) and any permitted assignee or participant of any
Lender, 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, manager, member or
employee (i) of such Person, or (ii) of any Person described in the preceding
clause (a). For purposes of this definition, the term "control" (and the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession or ownership, directly or indirectly, of the
power either (x) to direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise, or (y) vote 10% or more of the
securities having ordinary power in the election of directors or managers of
such Person.
"Agreement" means this Second Amended and Restated Collateral Agency
Agreement, as amended, modified or supplemented from time to time.
"Alt-A Loan" means a Mortgage Loan (other than a Jumbo Loan or a
Conforming Loan) that (1) does not conform to the conventional underwriting
standards of ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae but that is underwritten to
Approved Investor guidelines (other than ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae,
within guidelines generally acceptable to industry norms for "Alt-A" loans, (2)
has a demonstrated secondary market and is 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.
D1-1
"Approved Investor" means:
(a) ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, or
(b) any Person with short-term ratings of at least A-1, P-1 and F1 from
S&P, ▇▇▇▇▇'▇ and Fitch, respectively, or long-term unsecured debt ratings (or in
the case of a bank without such ratings that is the principal subsidiary of a
bank holding company, the rating of the bank holding company) of at least AA,
Aa2 and AA from S&P, ▇▇▇▇▇'▇, and Fitch, respectively, or
(c) all other Persons as may be approved by the Managing Agents, which
approvals may be subject to certain concentration limits but may not be
unreasonably withheld or delayed;
provided that (i) if an Approved Investor has a short-term rating or a long-term
unsecured debt rating at the time such Person first becomes an "Approved
Investor" and such Person's short-term ratings or long-term unsecured debt
ratings are subsequently downgraded or withdrawn, such Person shall cease to be
an "Approved Investor"; provided, further, that with respect to any Take-Out
Commitments issued by such Person prior to the date of such downgrade or
withdrawal, such Person shall cease to be an "Approved Investor" 60 days
following such downgrade or withdrawal; and (ii) if an Approved Investor does
not have a short-term rating or a long-term unsecured debt rating, such Person
shall cease to be an "Approved Investor" upon prior written notice from either
Managing Agent if such Managing Agent has good faith concerns about the future
performance of such Person; provided, further, that with respect to any Take-Out
Commitments issued by such Person prior to such notice, such Person shall cease
to be an "Approved Investor" 60 days following such notice.
As of the date of this 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 Section 3.2(a).
"Atlantic" means Atlantic Asset Securitization Corp., a Delaware
corporation, together with its successors and assigns.
"Atlantic Program Agent" means Calyon New York, in its capacity as the
collateral agent pursuant to a security agreement made by Atlantic for the
benefit of certain creditors of Atlantic, and any successor to Calyon New York
in such capacity.
"Bailee and Security Agreement Letter" is defined in Section 3.4(b)(i).
"Bank Commitment" means, for each Bank, its commitment to make Advances to
the Borrower, which is in an amount set forth on Schedule I to the Second
Restated Loan Agreement, as adjusted pursuant to the terms of the Second
Restated Loan Agreement.
"Banks" means Calyon New York, JPMorgan and Lloyds and each respective
D1-2
Eligible Assignee that shall become a party to the Restated Loan Agreement
pursuant to an Assignment and Acceptance.
"Borrower" has the meaning specified in the preamble of this Agreement.
"Borrowing" means a borrowing of Advances consisting of Advances having
the same Interest Period made under and pursuant to the Second Restated Loan
Agreement by each of the Lenders on the same Business Day.
"Borrowing Request" means a request, in the form of Exhibit C to the
Second Restated Loan Agreement for a Borrowing pursuant to Article II of the
Second Restated Loan Agreement.
"Business Day" means 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.
"Cash and Collateral Account" is account number ▇▇▇▇▇▇▇, held at the Cash
and Collateral Account Bank pursuant to the Collection and Paying Agreement.
"Cash and Collateral Account Bank" means, initially, JPMorgan Chase Bank,
National Association, and, at any time, the institution then holding the Cash
and Collateral Account in accordance with the terms of the Collection and Paying
Agreement.
"Calyon New York" has the meaning set forth in the preamble of this
Agreement, and its successors and assigns.
"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.
"Collateral" means Property that is subject to a Lien for the benefit of
the holders of the Obligations.
"Collateral Agent" has the meaning set forth in the preamble of this
Agreement.
"Collateral Agent Daily Report" is defined in Section 3.8(a) of this
Agreement.
D1-3
"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all times, an
amount equal to the product of the Advance Rate for such Eligible Mortgage
Loan multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible Mortgage Loan or the acquisition price paid by Pulte Mortgage on
the closing and funding of such Eligible Mortgage Loan;
(2) for each Eligible Mortgage Loan, a ratable amount
determined by multiplying (a) the weighted average purchase price
(expressed as a percentage of par) that Approved Investors are
obligated to pay, pursuant to Take-Out Commitments, for all Eligible
Mortgage Loans, as shown on the most recent Hedge Report, times (b)
the outstanding principal amount of such Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing, or upon
request of either of the Managing Agents at any other time, the Market
Value of such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of collected
funds therein which is not subject to any Lien in favor of any Person
other than the Lien in favor of the Administrative Agent for the benefit
of the holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value that may be
attributable to Jumbo Loans shall not exceed twenty percent (20%) of the Maximum
Facility Amount;
(b) at any time, the portion of total Collateral Value that may be
attributable to Super Jumbo Loans shall not exceed ten percent (10%) of the
Maximum Facility Amount, which percentage is a sublimit of clause (a)
representing 50% of the 20% set forth in clause (a) above;
(c) at any time, the portion of total Collateral Value that may be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of the Maximum
Facility Amount; provided that (i) if an Obligor on any Alt-A Loan shall have a
FICO Score of less than 650, or (ii) if an Alt-A Loan shall have a Loan-to-Value
Ratio of more than 95% or a Combined Loan-to-Value Ratio of more than 100%, such
Mortgage Loan shall have a Collateral Value of zero;
(d) at any time, the portion of total Collateral Value that may be
attributable to Subprime Loans shall not exceed five percent (5%) of the Maximum
Facility Amount; provided that (i) if an Obligor on any Subprime Loan shall have
a FICO Score of less than 600, or (ii) if an Subprime Loan shall have a
Loan-to-Value Ratio of more than 90%, such Mortgage Loan shall have a Collateral
Value of zero;
(e) any Mortgage Loan with an original principal balance in excess of
$1,000,000 or more and a Loan-to-Value Ratio of 75% or more shall have a
Collateral Value of zero;
D1-4
(f) at any time, the portion of total Collateral Value that may be
attributable to Mortgage Loans for which the Mortgage Notes have been withdrawn
for correction pursuant to Section 3.5 of the Collateral Agency Agreement shall
not exceed five percent (5%) of the Maximum Facility Amount, as determined in
accordance with said Section 3.5 of the Collateral Agency Agreement;
(g) at any time, the portion of the total Collateral Value that may be
attributable to any single Approved Investor listed on Schedule II pursuant to
one or more Take-Out Commitments shall not exceed the concentration limit for
such Approved Investor as set forth on Schedule II (as the same may be updated
from time to time);
(h) at any time, the portion of total Collateral Value that may be
attributable to Mortgage Loans that have been Eligible Mortgage Loans (A) for
more than 120 days shall not exceed ten percent (10%) of the Maximum Facility
Amount or (B) for more than 180 days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible Mortgage Loan shall have
a Collateral Value of zero;
(j) at any time, (A) except the first five and last five Business Days of
any month, the portion of total Collateral Value that may be attributable to
Special Mortgage Loans with respect to which the related Principal Mortgage
Documents have not been delivered to the Collateral Agent within nine (9)
Business Days after the earlier of the date the Assignment was delivered to the
Collateral Agent or, if different, the date of origination of the related
Mortgage Loan shall not exceed thirty percent (30%) of the Maximum Facility
Amount, and (B) during the first five and last five (5) Business Days of any
month, the portion of total Collateral Value that may be attributable to Special
Mortgage Loans with respect to which the related Principal Mortgage Documents
have not been delivered to the Collateral Agent within nine (9) Business Days
after the earlier of the date the Assignment was delivered to the Collateral
Agent or, if different, the date of origination of the related Mortgage Loan
shall not exceed fifty percent (50%) of the Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value that may be
attributable to Second Lien Loans shall not exceed ten percent (10%) of the
Maximum Facility Amount; provided that (A) if any Obligor on any Second Lien
Loan shall have a FICO Score of less than 670 or (B) if any Second Lien Loan
shall have a Combined Loan-to-Value Ratio of more than 100%, such Mortgage Loan
shall have a Collateral Value of zero.
"Collection Account" means the account established by the Borrower
pursuant to Section 2.7(b) of the Second Restated Loan Agreement 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.
D1-5
"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.
"Combined Loan-to-Value Ratio" means, with respect to any Mortgage Loan,
the fraction, expressed as a percentage found by dividing the original principal
balance of all Mortgage Loans secured by a particular property by the value of
such Mortgage Loans, such value being measured by (i) the appraised value of
such property at such time, if a Mortgage Loan is a refinance of an existing
loan or (ii) the lower of the sales price of the related property at the time of
origination of a Mortgage Loan or the appraised value of such property at such
time, if a Mortgage Loan is a purchase money loan.
"Commercial Paper Notes" means short-term promissory notes issued or to be
issued by the Issuers to fund or maintain their Advances or investments in other
financial assets.
"Conforming Loan" means (i) a Mortgage Loan that complies with all
applicable requirements for purchase under a ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or other
similar Governmental Authority standard form of conventional mortgage loan
purchase contract, then in effect, or (ii) an FHA Loan or a VA Loan, that, in
either case, is a First Lien Mortgage Loan.
"Default" means any condition or event which, with the giving of notice or
lapse of time or both and unless cured or waived, would constitute an Event of
Default.
"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), (g) or (h) of the Second Restated
Loan Agreement or is in foreclosure.
"Drawdown Termination Date" means the earliest to occur of:
(a) August 18, 2006, or such earlier date determined in accordance with
Section 2.1(b)of the Second Restated Loan Agreement, or
(b) the date on which the Maximum Facility Amount is terminated by the
Borrower pursuant to Section 2.1(d) of the Second Restated Loan Agreement, and
(c) the date, on or after the occurrence of an Event of Default,
determined pursuant to Section 8.1 of the Second Restated Loan Agreement.
"Eligible Assignee" means (i) Calyon New York or any of its Affiliates,
JPMorgan or any of its Affiliates, or Lloyds or any of its Affiliates, (ii) any
Person managed by Calyon New York or any of its Affiliates, JPMorgan or any of
its Affiliates or Lloyds or any of its Affiliates, respectively, or (iii) any
financial or other institution that is acceptable to the Administrative Agent
and is approved by the Borrower (such approval not to be unreasonably withheld),
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 Mortgage Collateral" means Eligible Mortgage Loans and the
Collection Account.
D1-6
"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, a Subprime Loan, a Second
Lien Loan or an Alt-A Loan;
(c) in which the Administrative Agent has been granted and continues to
hold a perfected (other than actual delivery of the Mortgage Note to the
Collateral Agent for Special Borrowings), first-priority (except Second Lien
Loans), security interest for the benefit of the holders of the Obligations;
(d) for which the Mortgage Note is endorsed (without recourse) in blank
and each of such Mortgage Loan and the related Mortgage Note is a legal, valid
and binding obligation of the Obligor thereof;
(e) for which, other than in respect of Special Mortgage Loans, the
Principal Mortgage Documents have been received by the Collateral Agent;
(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 this Agreement,
the related Mortgage Loan Collateral, is owned beneficially by Borrower free and
clear of any Lien of any other Person other than the Administrative Agent for
the benefit of the holders of the Obligations (except Second Lien Loans);
(h) that, together with the related Mortgage Loan Collateral, does not
contravene any Governmental Requirements applicable thereto (including, without
limitation, the Real Estate Settlement Procedures Act of 1974, as amended, and
all laws, rules and regulations relating to usury, truth-in-lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt collection
practices, privacy and other applicable federal and state consumer protection
laws) and with respect to which no party to the related Mortgage Loan Collateral
is in violation of any Governmental Requirements (or procedure prescribed
thereby) if such violation would impair the collectability of such Mortgage Loan
or the saleability of such Mortgage Loan under the applicable Take-Out
Commitment;
(i) that : (i) is not a Seasoned Mortgage Loan or an Uncovered Mortgage
Loan; (ii) is not a Defaulted Mortgage Loan; (iii) has not previously been sold
to an Approved Investor and repurchased by Borrower; (iv) is a Mortgage Loan
with respect to which the Principal Mortgage Documents relating to such Mortgage
Loan were delivered to the Collateral Agent within the
D1-7
time frame for Special Mortgage Loans, but 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; and (v) does not have an original principal balance in excess of
$1,500,000.00;
(j) that if the Mortgage Loan Collateral has been withdrawn for correction
pursuant to Section 3.5 of this Agreement and Section 3.04 of the Second
Restated Loan Agreement, such Mortgage Loan Collateral has been returned to the
Collateral Agent within 14 calendar days after withdrawal as required by Section
3.5 of this Agreement and Section 3.04 of the Second Restated Loan Agreement;
(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) of the Second Restated Loan Agreement;
(o) with respect to which all representations and warranties made by the
related Originator in the Second Restated Repurchase Agreement are true and
correct in all material respects and with respect to which all loan level
covenants made in the Second Restated Repurchase Agreement have been complied
with;
(p) that is subjected to the following "Quality Control" measures by
personnel of the Originator before the Mortgage Note is funded by the
Originator:
(i)for those Mortgage Loans not originated by the Originator, is
underwritten by the Originator prior to funding thereof and after performance of
all underwriting procedures, is submitted to the Originator for closing where it
is reviewed for thoroughness and compliance (including truth-in-lending, good
faith estimates and other disclosures) and a verbal verification of employment
and in-file credit report are obtained; and
(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 Loans; and
(q) that, if it is a Second Lien Loan, has a Combined Loan-to-Value Ratio
of 100% or less and with respect to which the related first lien loan is owned
by Pulte Mortgage.
For the purpose of this definition:
D1-8
(x) A Mortgage Loan is "eligible for delivery" under a Take-Out Commitment
if (i) it is designated to be transferred to a Governmental Authority, (ii) the
underwriting criteria utilized and the Mortgage Loan Collateral either match, or
are in respect of interest rates (which rates must bear a relationship to
prevailing current market rates of interest for loans with similar maturities),
term, product type and delivery period representative of the terms for purchase
that are specified in a Take-Out Commitment, and (iii) the aggregate outstanding
principal of all such Mortgage Loans is not more than the aggregate Take-Out
Commitments' unutilized amount (i.e. taking in account all such Mortgage Loans
already allocated to the aggregate Take-Out Commitments for purposes of
determining Eligible Mortgage Loans whether or not already delivered by the
Borrower to the Collateral Agent).
(y) A Mortgage Loan is "designated for delivery" under a Take-Out
Commitment if (i) it is designated to be transferred to any entity other than a
Governmental Authority, and (ii) the underwriting criteria utilized in approving
such Mortgage Loan conform to the underwriting criteria, and the terms of
repayment (including interest rate and "term to maturity") and other terms and
conditions of the Mortgage Loan Collateral match the specifications of that
specific Take-Out Commitment that designates that particular Mortgage Loan for
purchase.
"Event of Default" means an Event of Default as defined in Section 8.1 of
the Second Restated Loan Agreement.
"Exceptions" means exceptions to the specifications and certifications
made by the Collateral Agent on the Collateral Agent Daily Report as set forth
on Schedule I hereto.
"Facility" means the borrowing facility provided by the Lenders as
described in Article II of the Second Restated Loan Agreement.
"▇▇▇▇▇▇ Mae" means the government sponsored enterprise formerly known as
the Federal National Mortgage Association, or any successor thereto.
"FHA" means the Federal Housing Administration, or any successor thereto.
"FHA Loan" means a Mortgage Loan, the ultimate payment of which is
partially or completely insured by the FHA or with respect to which there is a
current, binding and enforceable commitment for such insurance issued by the
FHA.
"FICO Score" means, with respect to the Obligor under a particular
Mortgage Loan, a credit rating established by Fair ▇▇▇▇▇ Corporation or a market
competitor.
"FICO Score Trigger Event" means that (i) the Pool Weighted Average FICO
Score has been reported, in a Servicer Monthly Report, as less than 690, (ii) a
period of seven Business Days has elapsed from the date of receipt of such
report by the Administrative Agent and (iii) the Servicer has not provided to
the Administrative Agent a revised Pool Weighted Average FICO Score that exceeds
690.
"First Lien Mortgage Loan" means a loan secured by a first lien mortgage
on real property.
D1-9
"Fitch" means Fitch, Inc., and any successor thereto.
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"▇▇▇▇▇▇ 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 which 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 the Originator, the Servicer,
the Collateral Agent or the Borrower or any of their respective Properties.
"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 of the Second
Restated Loan Agreement, 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 to the Second Restated Loan Agreement.
"HUD" means the Department of Housing and Urban Development, or any
successor thereto.
"Indemnified Amounts" is defined in Section 5.1.
"Indemnified Party" is defined in Section 5.1.
"Issuers" means Atlantic, Jupiter and La Fayette.
"JPMorgan" means JPMorgan Chase Bank, National Association.
"Jumbo Loan" means a Mortgage Loan (other than a Conforming Loan) that (1)
is underwritten to Approved Investor guidelines (other than ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
Mac or ▇▇▇▇▇▇ Mae), (2) matches all applicable requirements for purchase under
the requirements of a Take-Out Commitment issued for the purchase of such
Mortgage Loan, (3) differs from a Conforming Loan solely because the principal
amount of such Mortgage Loan exceeds the limit set for Conforming Loans by
▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac from time to time, but shall not exceed
D1-10
$1,000,000; provided, that a Jumbo Loan having a principal balance in excess of
$1,000,000 but not more than $1,500,000 shall qualify as a Super Jumbo Loan, and
(4) is a First Lien Mortgage Loan. The term Jumbo Loan includes Super Jumbo
Loans.
"Jupiter" means Jupiter Securitization Corporation and its successors and
assigns.
"La Fayette" means La Fayette Asset Securitization LLC, a Delaware limited
liability company.
"La Fayette Program Agent" means Calyon New York, in its capacity as the
collateral agent pursuant to a security agreement made by La Fayette for the
benefit of certain creditors of La Fayette, and any successor to Calyon New York
in such capacity.
"Lenders" means, collectively, the Issuers and the Banks.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (whether statutory, consensual or otherwise), or
other security arrangement of any kind (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the uniform commercial code or comparable law
of any jurisdiction in respect of any of the foregoing).
"Lloyds" means Lloyds TSB Bank PLC and its successors and assigns.
"Majority Banks" means, at any time, Banks, including Banks that have
become party to the Second Restated Loan Agreement pursuant to an Assignment and
Acceptance, having outstanding Advances equal to more than 67% of the aggregate
outstanding Advances held by Banks or, if no Advance is then outstanding from
any Bank, Banks having more than 67% of the Bank Commitments.
"Managing Agent" means, with respect to Atlantic and LaFayette, Calyon New
York or any successor managing agent designated by such party; and, with respect
to Jupiter, JPMorgan or any successor managing agent designated by such party.
"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 ▇▇▇▇▇▇ Mae 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 ▇▇▇▇▇▇
▇▇▇, or (b) Non-Conforming Loan, or any other Mortgage Loan while the posted
rate is not available from ▇▇▇▇▇▇ Mae, the value determined by the
Administrative Agent in good faith.
"Maximum Facility Amount" means $550,000,000, as such amount may be
reduced pursuant to Section 2.1(c) of the Second Restated Loan Agreement.
"MERS" means Mortgage Electronic Registration Systems, Inc., a Delaware
corporation.
D1-11
"MERS Designated Mortgage Loan" means a Mortgage Loan registered to or by
the related Originator on the MERS electronic mortgage registration system.
"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 ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ 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 Loan" means a loan evidenced by a Mortgage Note and secured by a
Mortgage, the beneficial interest of which has been acquired on a servicing
retained basis by the Borrower from the Originator by purchase pursuant to the
Second Restated Repurchase Agreement (with the record owner thereof being Pulte
Mortgage or, in the case of a MERS Designated Mortgage Loan, MERS as nominee for
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.
"Non-Conforming Loan" means a Subprime Loan, a Jumbo Loan, a Second Lien
Loan or an Alt-A Loan.
"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 the Second Restated
Loan Agreement or any other Transaction Document, and all interest accrued
thereon, and attorneys' fees and other costs incurred in the drafting,
negotiation, enforcement or collection thereof, regardless of whether such
indebtedness, obligations, and liabilities are direct, indirect, fixed,
contingent, joint, several or joint and several.
"Obligor" means (i) with respect to each Mortgage Note included in the
Collateral, the obligor on such Mortgage Note and (ii) with respect to any other
agreement included in the Collateral, any person from whom the Originator or the
Borrower is entitled to performance.
"Original Collateral Agency Agreement" is defined in the Preamble to this
Agreement.
"Original Loan Agreement" is defined in the Preamble to this Agreement.
"Originator" means Pulte Mortgage LLC.
D1-12
"Other Mortgage Documents" is defined in Section 3.2(c).
"Performance Guarantor" means Pulte.
"Permitted Transferees" is defined in Section 3.4(c).
"Person" means any individual, corporation (including a business trust),
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, Governmental Authority, or any
other form of entity.
"Pool Weighted Average FICO Score" means, as of any Collateral Reporting
date, the ratio of (a) the sum, for all Alt-A Loans, of the product for each
Alt-A Loan of (i) its FICO Score and (ii) its original principal balance to (b)
the sum of the original principal balances of all Alt-A Loans.
"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) of
the Second Restated Loan Agreement.
"Principal Debt" means, at the time determined, the unpaid principal
balance of all Advances under the Second Restated Loan Agreement.
"Principal Mortgage Documents" is defined in Section 3.2(b).
"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 Mortgage" means Pulte Mortgage LLC, a Delaware limited liability
company.
"Restated Assignment of Account" means the Amended and Restated Assignment
of Account dated as of August 23, 2002, among the Borrower, Calyon New York as
the secured party, the Servicer and LaSalle Bank National Association,
substantially in the form attached hereto as Exhibit D-3, as amended, modified
or supplemented.
"Restated Originator Performance Guaranty" means the Amended and Restated
Originator Performance Guaranty, in the form attached as Exhibit G-2 to the
Second Restated Loan Agreement, made by Performance Guarantor in favor of the
Originator and assigned to the Administrative Agent for the benefit of the
Lenders.
"Restated Performance Guaranty" means, collectively, the Amended and
Restated Servicer Performance Guaranty, in the form attached as Exhibit G-1 to
the Second Restated Loan Agreement, made by the Performance Guarantor in favor
of the Administrative Agent for the benefit of the Lenders, and the Amended and
Restated Originator Performance Guaranty, in the form attached as Exhibit G-2 to
the Second Restated Loan Agreement, made by the Performance
D1-13
Guarantor in favor of the Originator and assigned to the Administrative Agent
for the benefit of the Lenders.
"Restated Servicer Performance Guaranty" means the Amended and Restated
Servicer Performance Guaranty, in the form attached as Exhibit G-1 to the Second
Restated Loan Agreement, made by the Performance Guarantor in favor of the
Administrative Agent for the benefit of the holders of the Obligations.
"Restated Subordination Agreement" means the Amended and Restated
Subordination Agreement, substantially in the form attached as Exhibit B to the
Second Restated Loan Agreement, 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.
"Seasoned Mortgage Loan" means, as of any date, a Mortgage Loan with a
Mortgage Origination Date that is more than 180 days prior to such date.
"Second Lien Loan" means a Mortgage Loan secured by particular property
with respect to which at least one other higher-priority Mortgage Loan exists
secured by the same property.
"Second Restated Collateral Agency Agreement" means this Agreement.
"Second Restated Loan Agreement" is defined in the Preamble to this
Agreement.
"Second Restated Repurchase Agreement" means the Master Repurchase
Agreement, dated as of December 22, 2000, and the Second Amended and Restated
Addendum to the Master Restated Repurchase Agreement, dated as of the date of
this Agreement, between the Originator, as seller, and the Borrower, as
purchaser, as the same may be amended, modified or restated from time to time.
"Security Agreement" means the Security Agreement dated as of December 22,
2000, among the Borrower, the Collateral Agent and the Administrative Agent in
the form attached hereto as Exhibit D-2, as amended, modified or supplemented.
"Security Instruments" means (a) this Agreement, (b) the Security
Agreement, (c) the Restated Assignment of Account, and (d) 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 of the Second Restated Loan Agreement to administer and collect
Mortgage Loans on behalf of the Lenders. The initial Servicer shall be Pulte
Mortgage.
"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
D1-14
amended, modified or supplemented from time to time as agreed to by the
Administrative Agent, the Borrower and the Collateral Agent).
"Special Borrowing" is defined in Section 3.7.
"Special Mortgage Loans" means the Mortgage Loans pursuant to an
Assignment in which 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.
"Subprime Loan" means a Mortgage Loan (other than a Conforming Loan, a
Jumbo Loan, an Alt-A Loan or a Second Lien Loan) that (1) is underwritten to
Approved Investor guidelines, (2) matches all applicable requirements for
purchase under the requirements of a Take-Out Commitment specifically issued for
the purchase of such Mortgage Loan, and (3) differs from a Conforming Loan
because of the credit quality of the Obligor, and is originated by the
Originator or by a correspondent of the Originator using the established
underwriting guidelines for subprime loans of the Originator, which are the same
underwriting guidelines that the Originator uses to originate subprime loans for
sales into the secondary mortgage market.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which securities having ordinary voting power to elect a majority of
the board of directors or managers or other persons performing similar functions
are at the time directly or indirectly owned by such Person, or one or more of
its Subsidiaries, or by such Person and one or more of its Subsidiaries.
"Super Jumbo Loan" means a Jumbo Loan having an original principal balance
in excess of $1,000,000 but equal to or less than $1,500,000.
"Take-Out Commitment" means a current, valid, binding, enforceable,
written commitment, issued by an Approved Investor, to purchase one or more
Mortgage Loans from the Originator prior to the date that is 120 days (or 180
days to the extent Collateral Value may include Mortgage Loans that have been
Eligible Mortgage Loans for more than 120 days pursuant to paragraph (f) of the
definition of Collateral Value set forth in the Second Restated Loan Agreement)
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
immediately upon its request. 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.
D1-15
"Transaction Document" means any of the Second Restated Loan Agreement,
the Notes (as defined in the Second Restated Loan Agreement), this Agreement,
the Second Restated Repurchase Agreement, the Restated Originator Performance
Guaranty, the Second Restated Servicer Performance Guaranty, the Fee Letters (as
defined in the Second Restated Loan Agreement), the Original Loan Agreement, the
Security Instruments, the Original Collateral Agency Agreement, 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 3.4(a).
"Trust Receipt and Security Agreement Letter" is defined in Section 3.5.
"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.
D1-16
EXHIBIT D-2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Security Agreement") is made and entered
into as of December 22, 2000, among PULTE FUNDING, INC., a Michigan corporation
(the "Debtor"), CALYON NEW YORK BRANCH ("Calyon"), in its capacity as the
administrative agent for the "Lenders" under and as defined in the Loan
Agreement referred to below (the "Administrative Agent"), and LASALLE BANK
NATIONAL ASSOCIATION, in its capacity as collateral agent (the "Collateral
Agent"). This Security Agreement is delivered pursuant to that certain Loan
Agreement as amended, restated, Supplemented or modified from time to time (the
"Loan Agreement") dated as of (December 22, 2002), among the Debtor, as
borrower, the Issuers parties thereto, the Managing Agents parties thereto,
certain Banks parties thereto, the Administrative Agent, and Pulte Mortgage LLC,
a Delaware limited liability company ("Pulte Mortgage"), in its capacity as
servicer thereunder, and pursuant to the Collateral Agency Agreement referred to
therein.
The parties hereto hereby agree as follows:
Section 1. Definitions.
Terms that are specially defined in the Collateral Agency Agreement or the
Loan Agreement will have the same meaning when used in this Security Agreement.
As used in this Security Agreement, "accounts," "certificated securities,"
"chattel paper," "financial asset," "general intangibles," "instruments,"
"investment property," "proceeds," "securities account," and "uncertificated
securities" have the meanings given to such terms in the UCC. The exceptions to
the foregoing statements will be terms that are specially defined in this
Security Agreement including the following:
"Collateral" means all right, title and interest of the Debtor in and to
the following, whether now or hereafter acquired or existing:
(a) any and all Mortgage Loans in which the Administrative Agent, for the
benefit of the holders of the Obligations, is granted a security interest
pursuant to any Assignment or other document (whether or not the Principal
Mortgage Documents related thereto are delivered) heretofore or hereafter from
time to time executed by the Debtor, and any and all funds advanced with respect
to a Mortgage Loan, which Mortgage Loan ultimately fails to close;
(b) any and all instruments, documents and other property of every kind or
description, of or in the name of the Debtor, now or hereafter for any reason or
purpose whatsoever, in the possession or control of, or in transit to, the
Collateral Agent;
(c) any and all general intangibles and Mortgage Loan Collateral that
relate in any way to the Collateral;
(d) any and all Take-Out Commitments and Closing Protection Rights, to the
extent assigned to the Collateral Agent, that pertain to Mortgage Loans that are
pledged and assigned to
D2-1
the Administrative Agent, for the benefit of the holders of the Obligations, as
Collateral for the Obligations, or in which the Administrative Agent has a
security interest to secure the Obligations;
(e) any and all contract rights, chattel paper, certificated securities,
uncertificated securities, financial assets, securities accounts or investment
property which constitute proceeds the Collateral;
(f) the Repurchase Agreement, the Performance Guaranty and the
Subordination Agreement, including all moneys due or to become due thereunder,
claims of the Debtor arising out of or for breach or default thereunder, and the
right of the Debtor to compel performance and otherwise exercise all remedies
thereunder; and
(g) any and all proceeds of any of the foregoing.
"Mortgage Loan Collections" means payments of principal and interest
received by the Debtor in respect of the Collateral.
Section 2. Granting Clause.
To secure the punctual payment and performance of the Obligations, the
Debtor hereby grants to Administrative Agent, for the benefit of the holders of
the Obligations, a security interest in all of Debtor's right, title and
interest in and to the Collateral. The Debtor acknowledges that, as more fully
set forth in Section 11(d), the Administrative Agent shall have the right to
direct the exercise of various rights and remedies hereunder.
Section 3. Representations and Warranties.
The Debtor hereby represents and warrants that:
(a) each of the representations and warranties made by the Debtor in the
Loan Agreement is true and correct;
(b) the chief executive office and principal place of business of the
Debtor is Englewood, Colorado;
(c) the Debtor is the legal and beneficial owner of 100% of the interests
in the items included in the Collateral and such interests are, and at all times
hence until the Obligations are fully paid and performed and the Lenders are not
obligated to make further Advances under the Loan Agreement, free and clear of
any Lien (other than Liens in favor of the Administrative Agent, for the benefit
of the holders of the Obligations);
(d) no action, consent or approval by any Governmental Authority or other
Person is, or will be, necessary for the Debtor to grant a security interest in
any item of Collateral;
(e) each Mortgage Note and each Take-Out Commitment is the legal, valid
and binding obligation of each Obligor party thereto and to the best of Debtor's
knowledge, no
D2-2
portion of the Collateral is subject to any right of set-off, counterclaim or
defense in favor of any Obligor with respect thereto;
(f) with respect to each Mortgage Loan, all Mortgage Loan Collateral
relevant to such Mortgage Loan comply, in all material respects, with all
applicable Requirements of Law, including, without limitation, (1) any usury
laws, (2) the Real Estate Settlement Procedures Act of 1974, (3) the Equal
Credit Opportunity Act, (4) the Federal Truth in Lending Act, (5) Regulation Z
of the Board of Governors of the Federal Reserve System, and (6) all applicable
state and federal consumer protection laws;
(g) upon (i) identification in an Assignment of the Mortgage Note which
evidences a Mortgage Loan, and (ii) the delivery to the Collateral Agent of such
Mortgage Note properly endorsed in blank, the security interest of the
Administrative Agent (for the benefit of the holders of the Obligations) in such
Mortgage Note will be a perfected, first-priority security interest;
(h) the security interest of the Administrative Agent (for the benefit of
the holders of the Obligations) in all items included in the Collateral the
perfection in which may be affected under the UCC by the filing of a UCC1
financing statement, is a perfected, first-priority security interest;
(i) Debtor is not a party to or otherwise subject to any contract or
agreement which restricts or otherwise affects the rights or ability of Debtor
to execute this Security Agreement or perform its terms; the execution, delivery
and performance of this Security Agreement and the pledge of the Collateral to
the Administrative Agent, for the benefit of the holders of the Obligations, do
not conflict with or result in a breach of or, except for such consents
heretofore obtained, require any consent under the articles of incorporation or
bylaws of the Debtor; and no consent, approval or authorization of any person or
entity is necessary for Debtor to validly pledge the Collateral other than such
consents, approvals and authorizations heretofore obtained;
(j) there is no action, suit, proceeding or other litigation pending or,
to the knowledge of Debtor, threatened against it or in any other manner
relating directly, adversely to any of the Collateral in any court or before any
arbitrator of any kind or before or by any Governmental Authority; and
(k) Debtor has requisite corporate power and authority to execute, deliver
and perform this Agreement and grant the security interest hereunder, which
constitutes the legal, valid and binding obligation of Debtor, enforceable in
accordance with its express terms and conditions, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting enforcement of
creditors' rights generally and except as may be limited by general principles
of equity (whether considered a suit at law or in equity).
Section 4. Covenants of the Debtor.
For so long as any part of the Obligations or the Bank Commitments is
outstanding:
(a) the Debtor will not execute, nor will the Debtor permit there to be on
file with any Governmental Authority, any financing statement or statements
which cover any item included
D2-3
in the Collateral, except as may have been or may hereafter be executed or filed
for the benefit of the Administrative Agent on behalf of the holders of the
Obligations;
(b) the Debtor will not grant, permit or suffer to exist any Lien on any
of the Collateral, except Liens in favor of the Administrative Agent, for the
benefit of the holders of the Obligations;
(c) the Debtor shall, at its expense, make, procure, execute and deliver
such financing statement or statements, or amendments thereof or supplements
thereto, or other instruments, certificates and supplemental writings, including
a Control Agreement, and do and deliver all acts, things, writings and assurance
as the Administrative Agent, on behalf of the holders of the Obligations, may
from time to time reasonably request in order to comply with the UCC or any
other Governmental Requirement, or to preserve, protect or enforce the security
interest granted under this Security Agreement including signing a Control
Agreement;
(d) the Debtor shall perform, at its sole cost and expense, any and all
acts, and shall pay the amount of all expenses, necessary to obtain, preserve,
perfect, defend and enforce the security interest intended to be created under
this Security Agreement in favor of the Administrative Agent (for the benefit of
the holders of the Obligations) in any of the Collateral, and preserve, defend,
enforce and collect the Collateral;
(e) the Debtor shall promptly notify the Administrative Agent of any
material change in any fact or circumstance warranted or represented by Debtor
in this Security Agreement or in any other writing furnished by Debtor to the
Administrative Agent in connection with the Collateral, and shall promptly
notify the Administrative Agent of any material claim, action or proceeding
affecting title to the Collateral, or any part thereof, or the security
interests herein granted, and, at the request of the Administrative Agent appear
in and defend, at Debtor's expense, any such action or proceeding;
(f) the Debtor shall furnish to the Administrative Agent any information
reasonably requested by it in connection with the Collateral;
(g) should the Collateral, or any part thereof, ever be in any manner
converted from its present state into another type of property or any money or
other proceeds ever be paid or delivered to Debtor as a result of the Debtor's
rights in the Collateral, then, in any such event, all such property, money or
other proceeds shall become part of the Collateral, and Debtor covenants to
forthwith pay and deliver to the Administrative Agent, for the benefit of the
holders of the Obligations, all of the same, which are susceptible of delivery,
or, if the Collateral Agent or the Administrative Agent deems it necessary and
so requests, Debtor will properly endorse or assign the same or take such other
steps as may be necessary to perfect (or maintain the perfection of) the
security interest of the Administrative Agent for the benefit of the holders of
the Obligations;
(h) at the time Debtor grants to the Administrative Agent, for the benefit
of the holders of the Obligations, a security interest in any Collateral, Debtor
shall be the absolute owner thereof and shall have the right to grant such
security interest;
D2-4
(i) Debtor shall defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein adverse to the
Administrative Agent and keep the Collateral in good condition, free from all
liens;
(j) Debtor shall pay all costs necessary to preserve and enforce this
Security Agreement and the security interest granted hereby, collect the
Obligations, and preserve, enforce and collect the Collateral, including,
without limitation, taxes, assessments, insurance premiums, repairs, attorneys'
fees and legal expenses, rent, storage costs and expenses of sales;
(k) whether Collateral is or is not in the Collateral Agent's possession,
and without any obligation to do so and without waiving any Event of Default (as
such term is hereinafter defined) caused by Debtor's failure to make any such
payment, the Administrative Agent at its option may pay any such costs and
expenses, discharge liens on Collateral, and pay for insurance of Collateral;
(l) Debtor shall execute and deliver such further instruments and
agreements as the Collateral Agent or the Administrative Agent shall reasonably
deem necessary or appropriate to obtain, maintain and perfect the security
interest hereunder, and to enable the Administrative Agent to comply with the
Federal Assignment of Claims Act, or any other federal or state law, in order to
obtain or perfect the Administrative Agent's security interest, for the benefit
of the holders of the Obligations, in the Collateral, to effect its rights
hereunder or to obtain proceeds of the Collateral;
(m) Debtor will preserve the liability of all Obligors in any Collateral
and will preserve the priority of any security therefor, and neither Collateral
Agent nor the Administrative Agent shall have any duty to preserve such
liability or security, but may do so at the expense of Debtor, without waiving
any Event of Default caused by Debtor's failure to preserve the same;
(n) Debtor shall not, without the written consent of the Administrative
Agent, agree to any modification of any of the terms of any accounts, contracts,
chattel paper, general intangibles or instruments in the Collateral, except in
the ordinary course of business;
(o) at any time after the occurrence and continuance of an Event of
Default, the Administrative Agent may notify Persons obligated on any Collateral
to make payment directly to the Administrative Agent, and until Administrative
Agent elects to exercise such rights, Debtor or Servicer, as agent of the
Administrative Agent, shall collect and enforce all payments owed on the
Collateral;
(p) Debtor at all times will maintain accurate books and records covering
the Collateral, and upon prior notice to Debtor, the Collateral Agent is hereby
given the right to audit the books and records of Debtor relating to the
Collateral at any time during normal business hours and from time to time after
giving three Business Days' notice; provided that any such audit shall be
conducted in a manner which does not interfere with Debtor's normal operations;
(q) as to any accounts of the Debtor included in the Collateral, the
amounts shown as owed to Debtor on Debtor's books will be the undisputed amounts
owing and unpaid, and Debtor shall disclose to the Collateral Agent and the
Administrative Agent all agreements modifying any material account, instrument
or chattel paper pertaining to the Collateral;
D2-5
(r) except as provided in the Loan Agreement and the Collateral Agency
Agreement, Collateral may not be sold, leased or otherwise disposed of by
Debtor, in any manner, without the prior written consent of the Administrative
Agent, except for sales or other disposition of Collateral in the ordinary
course of business;
(s) Debtor shall give the Collateral Agent and the Administrative Agent
written notice of each office of Debtor in which records of Debtor pertaining to
the Collateral are kept, and each location at which the Collateral is or will be
kept;
(t) without thirty days' prior written notice to the Collateral Agent and
the Administrative Agent, Debtor shall not change its name or the address of its
chief executive office and principal place of business;
(u) except as provided in the Loan Agreement, Debtor waives notices of the
creation, advance, existence, extension or renewal of, and of any indulgence
with respect to, the Obligations; waives presentment, demand, notice of
dishonor, and protest; waives notice of the amount of the Obligations
outstanding at any time, notice of any change in financial condition of any
Person liable for the Obligations or any part thereof, notice of Default or any
Event of Default, and all other notices respecting the Obligations; and agrees
that maturity of the Obligations, and any part thereof may be extended or
renewed one or more times by the Administrative Agent in its discretion, without
notice to Debtor;
(v) no renewal or extension of or any other indulgence with respect to the
Obligations or any part thereof, no release of any security, no release of any
person (including any maker, endorser, guarantor or surety) liable on the
Obligations, no delay in enforcement of payment, and no delay or omission or
lack of diligence or care in exercising any right or power with respect to the
Obligations or any security therefor or guaranty thereof or under this Security
Agreement shall in any manner impair or affect the rights of the Collateral
Agent or the Administrative Agent hereunder;
(w) the Administrative Agent, on behalf of the holders of the Obligations,
need not file suit or assert a claim for personal judgment against any Person
for any part of the Obligations or seek to realize upon any other security for
the Obligations, before foreclosing upon the Collateral for the purpose of
paying the Obligations and Debtor waives any right to the benefit of or to
require or control application of any other security or proceeds thereof; and
(x) upon the request of the Administrative Agent following the occurrence
of any Event of Default, the Debtor will take all actions requested by the
Administrative Agent to prepare the Collateral for disposition and otherwise
assist the Administrative Agent in any proposed disposition of all or any part
of the Collateral.
Section 5. Mortgage Loan Collections.
Prior to the occurrence of an Event of Default, the Debtor shall be
entitled to receive all Mortgage Loan Collections and to use same in the
ordinary course of the Debtor's business; provided, however, that any escrow
payments received by the Debtor shall be deposited and paid out in accordance
with all applicable Governmental Requirements. Upon the occurrence and during
the continuation of an Event of Default, the Debtor shall, at the request of the
D2-6
Administrative Agent, deliver all Mortgage Loan Collections to the
Administrative Agent no later than the Business Day following receipt thereof by
the Debtor. Simultaneously with the delivery to the Administrative Agent of any
Mortgage Loan Collections, the Debtor shall provide an accounting which
identifies all sums so delivered by Mortgage Loan, principal, interest and
escrow payments. For so long as the Debtor is so delivering Mortgage Loan
Collections, the Debtor shall, on the first Business Day of each week, provide a
summary report to the Collateral Agent and the Administrative Agent of all
Mortgage Loan Collections from the preceding week. The Mortgage Loan Collections
paid over to the Administrative Agent pursuant to this Section 5 which consist
of payments of principal and interest on the Mortgage Loans included in the
Collateral shall be applied to the Obligations in accordance with the terms of
the Second Restated Loan Agreement and the Mortgage Loan Collections which
consist of escrow payments on the Mortgage Loans included in the Collateral
shall be deposited in an escrow account in accordance with the applicable
Governmental Requirements.
Section 6. [Reserved].
Section 7. Events of Default.
An Event of Default shall exist under this Security Agreement upon the
occurrence and during the continuation of an Event of Default under the Loan
Agreement; provided, however, that even if the Loan Agreement shall for any
reason be terminated, all events or conditions which constitute Events of
Default under the Second Restated Loan Agreement as of the date immediately
preceding the date of its termination shall continue to constitute Events of
Default hereunder.
Section 8. Remedies.
Upon the occurrence of any Event of Default and the acceleration of the
unpaid balance of the Obligations pursuant to Section 8.2(b) or (c) of the Loan
Agreement, and provided such Event of Default has not previously been cured by
the Debtor, the Administrative Agent on its behalf may:
(a) whether in its own name or the name of the Debtor, notify any or all
Obligors on any of the Collateral to make all payments due or to become due
thereon directly to the Administrative Agent, or such other Person as the
Administrative Agent may require, whereupon the power and authority of Debtor to
collect the same in the ordinary course of its business shall be deemed to be
immediately revoked and terminated;
(b) take or bring in the Debtor's name or that of the Administrative Agent
all actions, suits or proceedings deemed by the Administrative Agent as
necessary or desirable to effect possession or collection of the Collateral,
including sums due or paid thereon; complete any contract or agreement of Debtor
in any way related to any of the Collateral; record in the name of the
Collateral Agent or the Administrative Agent, for the benefit of the holders of
the Obligations, any and all assignments of the Mortgage Loan Collateral or like
documents; make allowances or adjustments related to claims related to the
Collateral; compromise any claims related to the Collateral; issue credit in its
own name or the name of the Debtor in connection with the Collateral; remove
from the Debtor's premises all documents, instruments, records, files
D2-7
or other items relating to the Collateral (including any records with respect to
the Collateral); and, without cost or expense to the Collateral Agent or the
Administrative Agent, use Debtor's personnel, supplies and space to take
possession of, administer, collect or dispose of the Collateral;
(c) declare the entire unpaid balance of the principal of the Obligations
and all accrued and unpaid interest thereon to be, and such amounts shall
thereupon become, forthwith due and payable, without demand, presentment,
protest, notice of protest and nonpayment, notice of acceleration or of intent
to accelerate, or other notice of any kind, all of which the Debtor hereby
expressly waives;
(d) invoke, in addition to the rights and remedies provided in this
Security Agreement, or in any other agreement, instrument or undertaking
executed by the Debtor, the rights and remedies of a secured party under the UCC
and any and all other Governmental Requirements;
(e) apply by appropriate judicial proceedings for appointment of a
receiver for the Collateral, or any part thereof (to which any such appointment
the Debtor hereby consents); or
(f) take possession and dispose of all or any portion of the Collateral,
at public or private sale, as a unit or in parcels, upon any terms and prices
and in any order, free from any claim or right of any kind (the Debtor agrees
that for such purpose the Administrative Agent, on behalf of the holders of the
Obligations, may maintain all or any part of the Collateral on Debtor's premises
for such period of time as may be reasonably necessary without any charge to the
Administrative Agent, as applicable, whatsoever).
In connection with the foregoing clauses (a) through (f), it is expressly
agreed that:
(A) regardless of any provision hereof and with the exception of the
Administrative Agent's liability for damages that are the sole result of the
Administrative Agent's own gross negligence or willful misconduct neither of the
Administrative Agent nor the Collateral Agent shall ever be liable to the Debtor
for the failure of the Administrative Agent or Collateral Agent to collect or
for their failure to exercise diligence in the collection, possession, or any
transaction concerning, all or any part of the Collateral;
(B) the rights, titles, interests, liens and security interests of the
Administrative Agent for the benefit of the holders of the Obligations hereunder
are cumulative of all of the rights, titles, interest, liens or security
interests which the Collateral Agent or the Administrative Agent may now or at
any time hereafter hold regarding the Obligations;
(C) issuance by the Administrative Agent of a receipt to any Person
obligated to pay any amounts to the Debtor shall be a full and complete release,
discharge and acquittance to such Person to the extent of any amount so paid to
the Collateral Agent or the Administrative Agent;
(D) the Collateral may be sold or disposed of in one or more transactions,
as the Administrative Agent, on behalf of the holders of the Obligations, deems
appropriate;
D2-8
(E) a private sale of any Collateral pursuant to any Take-Out Commitment
shall be deemed to be a sale of such Collateral in a commercially manner if such
sale is substantially on the terms and conditions of such Take-Out Commitment;
(F) the Collateral described in clauses (a) and (b) of Section 1, the
definition of Collateral, is intended to be sold and none of such Collateral is
of a type or kind intended by Debtor to be held for investment or for any
purpose other than for sale;
(G) any notice of sale, disposition or other action by the Administrative
Agent, on behalf of the holders of the Obligations, required by the UCC and sent
to the Debtor at the address for the Debtor set forth in the introductory
paragraph to this Security Agreement, or at such other address as the Debtor may
have furnished the Administrative Agent in writing, at least ten (10) days prior
to such action, shall constitute notice to Debtor; and
(H) any such notice shall be given in the manner prescribed by or
permitted in the Second Restated Loan Agreement.
Section 9. Application of Proceeds.
Upon request from the Debtor or the Administrative Agent, all Mortgage
Loan Collections received by the Collateral Agent, if any, shall be turned over
to the Administrative Agent for the benefit of the holders of the Obligations
and shall be applied, as provided in the Loan Agreement.
Section 10. Concerning the Collateral Agent, the Lenders and the
Administrative Agent.
(a) Reference is made to the Collateral Agency Agreement for certain
provisions regarding the appointment of the Administrative Agent as
attorney-in-fact for the Debtor, the obligation of the Debtor to reimburse the
Collateral Agent for certain fees and expenses incurred by the Collateral Agent
in connection herewith and the obligation of the Debtor to indemnify the
Collateral Agent (and others) against certain costs, claims and expenses arising
in connection with this Security Agreement.
(b) Subject to clause (A) of Section 8 of this Security Agreement and the
following clause (c), the Collateral Agent and the Administrative Agent shall be
deemed to have exercised care in the custody and preservation of any of the
Collateral in their possession if they exercise the same diligence in the care
thereof which they exercise in the care of their own property.
(c) Nothing in this Security Agreement shall relieve the Debtor from
performing any obligation or duty on its part pursuant to any term, covenant or
agreement under or in respect of any of the Collateral or from any liability to
any Person resulting from any failure by the Debtor to perform any such
obligation or duty or from any representation or warranty given by the Debtor in
connection with any of the Collateral. This is a security agreement and is not a
delegation of duties. Neither the Collateral Agent, nor the Lenders, nor the
Administrative Agent assumes any of, and neither the Collateral Agent, nor the
Lenders, nor the Administrative Agent shall at any time be liable for, the
performance by the Debtor of the obligations, duties,
D2-9
covenants, warranties, representations or other liabilities of Debtor in or
under the Collateral or any transaction, agreement or contract out of which the
Collateral, or any of it, arises.
Section 11. Miscellaneous.
(a) THIS SECURITY 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).
(b) It is agreed that any custom or usage to the contrary notwithstanding,
the Administrative Agent, on behalf of the holders of the Obligations, shall
have the right at all times to enforce the covenants and provisions of this
Security Agreement in strict accordance with the terms hereof, notwithstanding
any conduct or custom on the part of the Administrative Agent in refraining from
so doing at any time, or any acceptance by the Collateral Agent or the
Administrative Agent of partial performance by the Debtor. All rights and
remedies of the Collateral Agent and the Administrative Agent hereunder are
cumulative of each other and of every other right or remedy which the Collateral
Agent or the Administrative Agent may have at law or in equity or in any other
contract or other writing for the enforcement of any security interest or the
collection of the Obligations, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
(c) This Security Agreement is binding upon Debtor, Debtor's receivers,
trustees, successors and assigns, and shall inure to the benefit of the holders
of the Obligations, and their respective successors and assigns. The
Administrative Agent may assign its interest in this instrument or any of its
rights and powers hereunder, with all or any of its interest in the Obligations
hereby secured, and may instruct the Collateral Agent to hold for the benefit of
such assignee any of the Collateral therefor. Upon the appointment of a
successor to the Collateral Agent as the agent under the Collateral Agency
Agreement, such successor shall have the rights and remedies as if originally
named herein in place of the Collateral Agent and the Collateral Agent shall be
thereafter fully discharged from all responsibility hereunder.
(d) Notwithstanding any provision herein to the contrary, the
Administrative Agent, on behalf of the holders of the Obligations, shall have
the right to give any request, notice, waiver or consent to direct the time,
method and place of conducting any proceeding or exercising any right, remedy or
power available to the Collateral Agent or the Administrative Agent, for the
benefit of the holders of the Obligations, with respect to the Collateral. The
Administrative Agent, on behalf of the holders of the Obligations, may, from
time to time and in its absolute discretion, make decisions, pursue actions or
refrain from taking actions, with respect to the Collateral.
(e) No failure on the part of the Collateral Agent or the Administrative
Agent to exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by the Collateral Agent or the Administrative Agent of any right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy.
D2-10
(f) All representations and warranties shall survive the date hereof and
shall be deemed to have been made continuously, except for representations and
warranties which are by their terms limited to a specific date.
(g) Any provision of this Security Agreement found to be prohibited by law
shall be ineffective to the extent of such prohibition without invalidating the
rest of this Security Agreement.
(h) This Security Agreement may be presented to filing officers for
recordation as a financing statement or other document evidencing the security
interest created hereunder.
(i) THIS SECURITY AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS REPRESENT
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.
(j) The parties acknowledge that the Administrative Agent as secured party
hereunder is acting not only on its own behalf but also on behalf of the holders
of the Obligations. The parties further acknowledge that pursuant to the
Collateral Agency Agreement, the Collateral Agent will hold collateral for the
benefit of the holders of the Obligations.
(k) The parties acknowledge that although the Collateral Agent is a
signatory hereto, it has no specific duties or obligations hereunder (other than
to hold the collateral pursuant to the Collateral Agency Agreement) and is not
the secured party.
D2-11
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed as of the date first above written.
PULTE FUNDING, INC., as Debtor
By: _________________________________
Name:
Title:
CALYON NEW YORK BRANCH,
as Administrative Agent
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
By: _________________________________
Name:
Title:
D2-12
EXHIBIT D-3
AMENDED AND RESTATED ASSIGNMENT OF ACCOUNT
DATED AS OF
AUGUST 23, 2002
AMONG
PULTE FUNDING, INC., as the borrower ("Customer"),
CALYON NEW YORK BRANCH, as agent,
pursuant to the Security Agreement referred to below, ("Secured Party")
PULTE MORTGAGE LLC, as servicer ("Servicer")
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION ("JPMorgan")
The Customer maintains a demand deposit account numbered 10-02500 at
JPMorgan (the "Account" or the "Collection Account") into which Account checks
and other items of payment ("Items") are deposited.
The Customer established the Account pursuant to the 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") among the Customer, as the Borrower, the Issuers parties
thereto, the Banks parties thereto, the Managing Agents parties thereto, the
Secured Party, in its capacity as administrative agent for the "Lenders" (as
defined in the Restated Loan Agreement), and the Servicer, in its capacity as
servicer thereunder.
This is to confirm that as security for the payment of the Obligations (as
defined in the Restated Loan Agreement) the Borrower hereby pledges, assigns and
transfers to the Administrative Agent for the benefit of the holders of the
Obligations a first priority perfected security interest in the Account,
including all of the Borrower's right, title and interest in and to the Account,
including without limitation all items now or at any time hereafter on deposit
therein, credited thereto, or payable thereupon, all investments made with
respect thereto and the proceeds thereof (collectively, the "Collateral").
Subject to the terms of this Agreement, JPMorgan recognizes the Security
Interest in the Collateral.
1. Account. Until such time as JPMorgan shall have received notice (the
"Activation Notice") from the Secured Party in a Timely Manner, funds on deposit
from time to time in the Account shall be disbursed as the Customer's servicer,
the Servicer, may direct. The Customer shall have no right at any time to access
the Account or funds therein. As used in this Agreement, "Timely Manner" means
receipt of the relevant notice, notice revocation or instruction at a time and
in a manner affording JPMorgan a reasonable opportunity to act thereon. Secured
Party shall simultaneously provide Customer with such Activation Notice. After
JPMorgan has received an Activation Notice, and until such time as JPMorgan has
received contrary notice from the Secured Party in a Timely Manner that a
default has been waived or has ceased to exist:
D3-1
(a) The Secured Party shall have the exclusive right to direct and
provide instructions to JPMorgan as to the disposition of all amounts then
or thereafter deposited in the Account, without further consent of the
Customer or Servicer, and JPMorgan shall not comply with any instruction
from the Customer in connection with the Account unless consented to in
writing by the Secured Party and received by JPMorgan in a Timely Manner;
(b) JPMorgan, subject to its applicable availability policy in
effect from time to time, will transfer on each banking day all
immediately available funds on deposit in the Account by wire transfer, or
other method of transfer mutually agreeable to JPMorgan and the Secured
Party, as the Secured Party may from time to time direct JPMorgan in
accordance with JPMorgan's usual and customary procedures for funds
transfers; and
(c) Each of the Customer and the Servicer agrees it shall not make
any attempt to access the Account or funds therein.
2. Reliance Upon Instructions. The Servicer and the Secured Party, as the
case may be, are responsible for, and JPMorgan may rely upon, the contents of
any notice or instructions that JPMorgan believes in good faith to be from the
Servicer or Secured Party, as the case may be, without any independent
investigation. JPMorgan shall have no duty to inquire into the authority of the
person in giving such notice or instruction. In the event that JPMorgan receives
conflicting notices or instructions, JPMorgan may refuse to act.
3. Information. JPMorgan will from time to time provide to the Servicer
information regarding the Account. For an additional fee, JPMorgan will provide
certain duplicate information as may be reasonably requested by the Secured
Party and Customer.
4. Financing Documents. JPMorgan shall not be deemed to have any knowledge
(imputed or otherwise) of: (a) any of the terms or conditions of the Restated
Loan Agreement or any document referred to therein or relating to any financing
arrangement between the Customer and the Secured Party, or any breach thereof,
or (b) any occurrence or existence of a default. JPMorgan has no obligation to
inform any person of such breach or to take any action in connection with any of
the foregoing, except such actions regarding the Account as are specified in
this Agreement. JPMorgan is not responsible for the enforceability or validity
of the security interest in the Items and the Account.
5. Set-Off. The Customer, the Servicer and the Secured Party jointly and
severally authorize JPMorgan to debit the Account, from time to time, for: (a)
Items, including, without limitation, any automated clearinghouse transactions
that are returned for any reason, and any adjustment; and (b) any amount then
due from the Customer or the Secured Party to JPMorgan under this Agreement or
related to the Items, the Account and the services provided hereunder and the
Account, provided JPMorgan advises the Customer, the Servicer and the Secured
Party of the amount thereof in accordance with JPMorgan's then current practice.
Subject to the terms of this Agreement, JPMorgan agrees that the security
interest is superior to any right of set-off, security interest or other lien
which JPMorgan might otherwise have in the Items or the Account.
D3-2
6. Rules. Use of the services provided pursuant to this Agreement is
subject to all applicable laws, regulations, rules and funds transfer systems
and clearing arrangements, whether or not JPMorgan is a party to them ("Rules").
Funds will be made available pursuant to the Rules and JPMorgan's applicable
availability policies.
7. Recording Conversations. The Customer, the Servicer, the Secured Party
or JPMorgan may record, store and use all telephone conversations and data
transmissions.
8. Charges and Fees. The Customer will pay JPMorgan's charges and fees
applicable to this service as specified in writing or as otherwise agreed by the
Customer and JPMorgan and such charges and fees may be charged directly against
the Account.
9. Liability. JPMorgan will be liable only for direct damages if it fails
to exercise ordinary care. JPMorgan shall be deemed to have exercised ordinary
care if its action or failure to act is in conformity with general banking
usages or is otherwise a commercially reasonable practice of the banking
industry. JPMorgan shall not be liable for any special, indirect or
consequential damages, even if it has been advised of the possibility of such
damages.
10. Indemnification. The Customer and the Servicer jointly and severally
agree to indemnify JPMorgan for, and hold JPMorgan harmless from, all claims,
demands, losses, liabilities and expenses, including reasonable legal fees and
expenses, resulting from or with respect to this Agreement, the Items, the
Account and the services provided hereunder, including, without limitation: (a)
any action taken, or not taken, by JPMorgan in regard thereto in accordance with
the terms of this Agreement; (b) Items, including, without limitation, any
automated clearinghouse transactions, which are returned for any reason; and (c)
any failure to pay any invoice or charge of JPMorgan for services in respect to
this Agreement, the Items, the Account or any amount owing to JPMorgan from the
Customer, the Servicer or the Secured Party with respect thereto or to the
service provided hereunder (collectively, the "Claims"), except for any Claims
caused by JPMorgan's own gross negligence or willful misconduct. To the extent
of such indemnity, the Customer, the Servicer and the Secured Party agree that
JPMorgan shall have set-off rights against the Account. The Secured Party agrees
to reimburse JPMorgan (after receiving an Activation Notice) for any amounts
described in Subsection (b) and (c) of this Section in the event and to the
extent that there are insufficient funds in the Account to cover any amounts
described in Subsection (b) or (c). Any amount due under this indemnity that
remains unpaid for thirty (30) days after notice hereof shall bear interest at
the federal funds rate from the date of the notice to the date of payment. This
indemnity shall survive the termination of this Agreement
11. Failure to Perform. None of the Customer, the Servicer, Secured Party
or JPMorgan will be liable for any failure to perform its obligations when the
failure arises out of causes beyond its control, including, without limitation,
an act of a governmental regulatory/authority, an act of God, accident,
equipment failure, labor disputes or system failure, provided it has exercised
such diligence as the circumstances require.
12. Governing Law. This Agreement shall be construed in accordance with
the internal laws (and not the law of conflicts) of Illinois and applicable
federal laws. JPMorgan, the Customer, the Servicer and the Secured Party hereby
waive their respective rights to trial by jury.
D3-3
13. No Extension of Credit. Nothing in this Agreement, unless otherwise
agreed in writing, or any course of dealing between the Customer, the Servicer,
the Secured Party or JPMorgan, commits or obligates JPMorgan to extend any
overdraft or other credit to the Customer, the Servicer or the Secured Party.
14. Amendments and Waivers. This Agreement may be amended or waived only
in writing signed by the Customer, the Servicer, the Secured Party and JPMorgan.
15. Assignment. None of the Customer, the Servicer, the Secured Party or
JPMorgan may assign or transfer any of its rights or obligations under this
Agreement, except JPMorgan may assign or transfer its rights and obligations to
any subsidiary of JPMorgan Corporation or any successor thereto. This Agreement
shall bind the respective successors and assigns of the parties and shall inure
to the benefit of their respective successors and assigns.
16. Termination. The Secured Party or JPMorgan, upon thirty (30) days
notice to the other parties, may terminate this Agreement. Any claim or cause of
action of any party against any other relating to this Agreement which existed
at the time of termination shall survive the termination. All mail received
after the date specified in such notice of termination shall be returned by
JPMorgan to the Secured Party by first class mail or such other means mutually
agreeable in the Secured Party and JPMorgan. Under no circumstances may the
Customer or the Servicer terminate this Agreement or close the Account without
the prior written consent of the Secured Party.
17. Entire Agreement. This Agreement constitutes the entire agreement and
understanding, and supersedes all prior agreements and understandings, between
the Customer, the Servicer, the Secured Party and JPMorgan relating to the
services provided pursuant to this Agreement as of the date of this Agreement.
18. Notices. Any notices given pursuant to this Agreement shall be given
by any commercially reasonable means and all notices shall be effective when
received. Each written notice shall be addressed to the relevant address
appearing below or at another address specified in a written notice by one party
to the other:
If to Customer:
Pulte Funding, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to Secured Party:
Calyon New York Branch
Calyon Building
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
D3-4
If to Servicer:
Pulte Mortgage LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
If to JPMorgan:
JPMorgan Chase Bank, National Association
Asset-Backed Finance Division
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
19. Counterparts. This Agreement may be executed by the Secured Party, the
Servicer or the Customer and JPMorgan individually or in several separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
D3-5
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the date
first set forth above.
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
By: _________________________________
Title: ________________________________
PULTE FUNDING, INC.
By: _________________________________
Title: ________________________________
PULTE MORTGAGE LLC
By: _________________________________
Title: ________________________________
CALYON NEW YORK BRANCH,
as agent
By: _________________________________
Title: ________________________________
By: _________________________________
Title: ________________________________
D3-6
EXHIBIT D-4
FORM OF ASSIGNMENT
Date: __________________ __, ____
To: LASALLE BANK NATIONAL ASSOCIATION
LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Re: (i) Second Amended and Restated Loan Agreement entered into as of August
19, 2005 among PULTE FUNDING, INC. (the "Borrower"), the Issuers parties
thereto, the Managing Agents parties thereto, the Banks parties thereto,
CALYON NEW YORK BRANCH, in its capacity as administrative agent for the
"Lenders" (as defined therein) (in such capacity, the "Administrative
Agent"), and PULTE MORTGAGE LLC, in its capacity as servicer thereunder
(as the same may be increased, reduced, supplemented, amended, restated,
renewed, extended or otherwise modified from time to time, the "Second
Restated Loan Agreement") and (ii) Second Amended and Restated Collateral
Agency Agreement dated as of August 19, 2005 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Second Restated Collateral Agency Agreement") among the Borrower, the
Administrative Agent, and LaSalle Bank National Association in its
capacity as the collateral agent (the "Collateral Agent"). Capitalized
terms used herein, and not otherwise defined herein, shall have the
meanings assigned to such terms in the Second Restated Loan Agreement or
the Second Restated Collateral Agency Agreement, as applicable.
For value received and pursuant to the Second Restated Loan Agreement and
the Second Restated Collateral Agency Agreement, as Collateral for the
Obligations, the undersigned Borrower hereby transfers, assigns, pledges and
sets over to the Administrative Agent, for the benefit of the holders of the
Obligations, and hereby grants to the Administrative Agent, for the benefit of
the holders of the Obligations, a security interest in (1) each Mortgage Loan
described on Schedule I attached hereto and made a part hereof (the Principal
Mortgage Documents of which are being delivered to the Collateral Agent
herewith), (2) each Mortgage Loan described on Schedule II attached hereto and
made a part hereof (the Principal Mortgage Documents of which are to be
delivered herewith to the Collateral Agent within 9 Business Days of the earlier
of the date hereof or, if different, the date of origination of the related
Mortgage Loan), and (3) each Take-Out Commitment (or portion thereof) described
in the Hedge Report on Schedule III attached hereto and made a part hereof. It
is understood that all deliveries hereunder shall be to the Collateral Agent (as
agent and bailee for the Administrative Agent) or the Administrative
D4-1
Agent (for the benefit of holders of the Obligations), as the case may be,
pursuant to the Second Restated Collateral Agency Agreement.
The Borrower represents and warrants to the Administrative Agent and the
Collateral Agent, in each case, for the benefit of the holders of the
Obligations that the Borrower currently holds, in trust for the Administrative
Agent for the benefit of the holders of the Obligations, all of the Other
Mortgage Documents, as required by Section 3.2(c) of the Second Restated Loan
Agreement, for each Mortgage Loan described in Schedule I. Further, the Borrower
represents and warrants that all information provided with this Assignment (this
"Assignment"), including the information contained on Schedule I, and III, is
true and correct and that all of the Principal Mortgage Documents for each of
the Mortgage Loans described in Schedule I accompany this Assignment and are
delivered to the Collateral Agent for the benefit of the holders of the
Obligations free and clear of any liens or other obligations other than as
provided in the Transaction Documents.
This Assignment shall be binding upon, and inure to the benefit of, the
successors and assigns of the Borrower, the Collateral Agent and the
Administrative Agent for the benefit of the holders of the Obligations.
Capitalized terms used in this Assignment and not otherwise defined herein have
the meanings given thereto in the Second Restated Loan Agreement.
THIS ASSIGNMENT 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).
THIS ASSIGNMENT AND THE OTHER TRANSACTION DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
D4-2
In witness whereof, the Borrower has caused this Assignment to be executed
and delivered on the first date above written.
PULTE FUNDING, INC.
By: ___________________________
Name:
Title:
D4-3
SCHEDULE I TO FORM OF ASSIGNMENT
Mortgage Loans in which the Administrative Agent
is Granted a Security Interest for the Benefit of the Holders
of the Obligations and with Respect to which the Principal
Mortgage Documents are Delivered Herewith
Originator's Loan Original
Number Principal Amount Collateral Value Obligor Interest Rate Loan Type
D4-4
SCHEDULE II TO FORM OF ASSIGNMENT
Mortgage Loans in which the Administrative Agent
is Granted a Security Interest for the Benefit of
the Holders of the Obligations and with Respect to which the
Principal Mortgage Documents are to be Delivered within Nine Business Days
Originator's Loan Original
Number Principal Amount Collateral Value Obligor Interest Rate Loan Type
D4-5
SCHEDULE III TO FORM OF ASSIGNMENT
PULTE MORTGAGE LLC
As of:
Form Of Hedge Report
Price PSA Face
Trade # Trade Date Broker Security Coupon (32nd's) Settle Amount Price*
------- ---------- ------ ---------- ------ -------- ------ ------ ------
TRADES: % $ $
------ ------
TRADES: $ $
====== ======
CONFORMING $
COLLATERAL $
AT BANK:
------
CUSHION:
======
* Price must exceed collateral.
D4-6
EXHIBIT D-5
FORM OF TRANSFER REQUEST
______________ __, ____
To: LASALLE BANK NATIONAL ASSOCIATION
LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Re: Second Amended and Restated Loan Agreement entered into as of August 19,
2005 among PULTE FUNDING, INC. (the "Borrower"), the Issuers parties
thereto, the Managing Agents parties thereto, the Banks parties thereto,
Calyon New York Branch, in its capacity as administrative agent for the
"Lenders" (as defined therein) (in such capacity, the "Administrative
Agent"), and PULTE MORTGAGE LLC, in its capacity as servicer thereunder
(as the same may be increased, reduced, supplemented, amended, restated,
renewed, extended or otherwise modified from time to time, the "Second
Restated Loan Agreement") and (ii) Second Amended and Restated Collateral
Agency Agreement dated as of August 19, 2005 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Second Restated Collateral Agency Agreement") among the Borrower, the
Administrative Agent, and LASALLE BANK NATIONAL ASSOCIATION, in its
capacity as the collateral agent (the "Collateral Agent"). Capitalized
terms used herein, and not otherwise defined herein, shall have the
meanings assigned to such terms in the Second Restated Loan Agreement or
the Second Restated Collateral Agency Agreement, as applicable.
Please transfer to ____________________ each of the Principal Mortgage
Documents for the Mortgage Loans described in Schedule I, attached hereto and
made a part hereof for all purposes.
To the extent that any transfer made pursuant to these instructions may,
by inadvertence or otherwise, cause the Collateral Value of Eligible Mortgage
Collateral to be less than the Primary Obligations then the undersigned shall,
immediately and without notice, correct said deficiency either by transferring
to the Collateral Agent, for the benefit of the holders of the Obligations,
Eligible Mortgage Collateral with a Collateral Value equal to or greater than
the amount of such deficiency, or by making a mandatory payment on the
Obligations, to the Administrative Agent for deposit in the Collection Account,
in the amount of the deficiency.
THIS 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
D5-1
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH SHALL
APPLY HERETO).
In witness hereof, the Borrower has caused this Assignment to be executed
and delivered on the first date above written.
PULTE FUNDING, INC.
By: ____________________________________
Name:_______________________________
Title:______________________________
The Servicer hereby represents and warrants that the Collateral Value of
all Eligible Mortgage Collateral, after giving effect to the foregoing transfer,
will equal or exceed the total Principal Debt of the Borrower.
PULTE MORTGAGE LLC
By: ____________________________________
Name:_______________________________
Title:______________________________
D5-2
SCHEDULE I TO EXHIBIT D-5
Mortgage Loans
to be Transferred by Collateral Agent Pursuant
to the Borrower's Request and Subject
to the Restrictions
and Limitations of the Second Restated Collateral Agency Agreement
Originator's Original
Loan Principal Collateral Interest Loan
Number Amount Value Obligor Rate Type
------------ --------- ---------- ------- -------- ----
D5-3
EXHIBIT D-5A(a)
FORM OF SHIPPING REQUEST (CONFORMING LOANS)
Date:
LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
This letter is to serve as authorization for you to endorse the following
loans:
Loan Number Borrower Name Note Amount
under Commitment #____________ (the "Commitment") from an Approved Investor as
follows:
Please endorse the notes as follows:
PULTE FUNDING, INC.,
a Michigan corporation
By:______________________________
Name:____________________________
Title:___________________________
D5A(a)-1
EXHIBIT D-5A(b)
FORM OF SHIPPING REQUEST (NON-CONFORMING LOANS)
Date:__________________
LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
This letter is to serve as authorization for you to endorse the following
loans:
Loan Number Borrower Name Note Amount
to the following address under Commitment #___________ (the "Commitment") from
an Approved Investor as follows:
NAME:
ADDRESS:
ATTENTION:
Please endorse the notes as follows:
Please ship the loan documents either by _______________________ or by
such other courier service as we have designated to you as "approved". The
courier shall act as an independent contractor bailee acting solely on your
behalf as Collateral Agent for the Lenders (as defined in that certain Second
Amended and Restated Collateral Agency Agreement dated as of August 19, 2005, as
the same may be amended, extended or replaced from time to time), but we
acknowledge and agree that you are not responsible for any delays in shipment
caused by courier or any other actions or inaction of the courier, including,
without limitation, any loss of any loan documents; however, because the
Commitment expires on _____________, 200_, we ask that you deliver the loan
documents to the courier no later than _____________, 200_.
PULTE FUNDING, INC.
By:________________________________
Name:______________________________
Title:_____________________________
D5A(b)-1
EXHIBIT D-6(a)
BAILEE AND SECURITY AGREEMENT LETTER FOR APPROVED INVESTORS
DATE:
[Investor's Name]
[Investor's Address]
Re: Pulte Funding, Inc.:
Sale of Mortgage Loans
Attached please find those Mortgage Loans listed separately on the
attached schedule, which Mortgage Loans are owned by PULTE FUNDING, INC. (the
"Company") and are being delivered to you for purchase.
The Mortgage Loans comprise a portion of the Collateral under (and as the
term "Collateral" and capitalized terms not otherwise defined herein are defined
in) that certain Second Amended and Restated Loan Agreement entered into as of
August 19, 2005 among the Borrower, the Issuers parties thereto, the Managing
Agents parties thereto, the Banks parties thereto, CALYON NEW YORK BRANCH, in
its capacity as administrative agent for the "Lenders" (as defined therein) (in
such capacity, the "Administrative Agent"), and PULTE MORTGAGE LLC, in its
capacity as servicer thereunder. Each of the Mortgage Loans is subject to a
security interest in favor of the Administrative Agent on behalf of the Secured
Parties, which security interest shall be automatically released upon your
remittance of the full amount of the purchase price of such Mortgage Loan (as
set forth on the schedule attached hereto) by wire transfer to the following
account:
WIRE INSTRUCTIONS TO THE CASH & COLLATERAL ACCOUNT:
Account Number ▇▇▇▇▇▇▇ with JPMorgan, NA, ABA# ▇▇▇▇▇▇▇▇▇
Pending your purchase of each Mortgage Loan and until payment therefor is
received, the aforesaid security interest therein will remain in full force and
effect, and you shall hold possession of such Collateral and the documentation
evidencing same as custodian, agent and bailee for and on behalf of the Secured
Parties. In the event any Mortgage Loan is unacceptable for purchase, return the
rejected item directly to the Collateral Agent at the address set forth below.
The Mortgage Loan must be so returned or sales proceeds remitted in full no
later than forty-five (45) calendar days from the date hereof. In no event shall
any Mortgage Loan be returned to or sales proceeds remitted to the Company. If
you are unable to comply with the above instructions, please so advise the
undersigned immediately.
NOTE: BY ACCEPTING THE MORTGAGE LOANS DELIVERED TO YOU WITH THIS LETTER,
YOU CONSENT TO BE THE CUSTODIAN, AGENT AND BAILEE FOR THE SECURED PARTIES ON THE
TERMS DESCRIBED IN THIS LETTER. THE UNDERSIGNED, AS COLLATERAL AGENT, REQUESTS
THAT YOU ACKNOWLEDGE RECEIPT OF THE ENCLOSED MORTGAGE LOANS AND THIS LETTER BY
SIGNING
D6(a)-1
AND RETURNING THE ENCLOSED COPY OF THIS LETTER TO THE UNDERSIGNED; HOWEVER, YOUR
FAILURE TO DO SO DOES NOT NULLIFY SUCH CONSENT.
Sincerely,
LASALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:____________________________________
Name:
Title:
The undersigned Company agrees to and acknowledges the terms of this
letter and, notwithstanding any contrary understanding with or instructions to
you, the addressee of this letter, the Company instructs you to act according to
the instructions set forth in this letter. These instructions cannot be altered
except by written instructions executed by Collateral Agent.
PULTE FUNDING, INC.,
a Michigan corporation
By:___________________________________
Name:
Title:
ACKNOWLEDGEMENT OF RECEIPT:
[Investor]
By:______________________________
Name:____________________________
Title:_____________________________
Date:_____________________________
D6(a)-2
Schedule of Mortgage Notes and Other Documents
D6(a)-3
EXHIBIT D-6(b)
BAILEE AND SECURITY AGREEMENT LETTER FOR POOL CUSTODIAN
[Name and address of pool custodian]
______________________________
______________________________
Ladies and Gentlemen:
The mortgage notes and other documents enclosed with this letter (the
"Collateral") and described on the attached schedule have been assigned and
pledged to CALYON NEW YORK BRANCH, in its capacity as administrative agent (the
"Administrative Agent") for the "Lenders" under and as defined in the Second
Amended and Restated Loan Agreement entered into as of August 19, 2005, among
PULTE FUNDING, INC., the Issuers parties thereto, the Managing Agents parties
thereto, the Banks parties thereto, the Administrative Agent, and PULTE MORTGAGE
LLC, in its capacity as servicer thereunder (as the same may be increased,
reduced, supplemented, amended, restated, renewed, extended or otherwise
modified from time to time, the "Second Restated Loan Agreement"), pursuant to
that one certain Security Agreement among PULTE FUNDING, INC. (the "Company"),
the Administrative Agent, and LASALLE BANK NATIONAL ASSOCIATION in its capacity
as the collateral agent (the "Collateral Agent") dated as of December 22, 2000
(as it has been or may hereafter be amended, restated, supplemented or otherwise
modified from time to time, the "Security Agreement"). Capitalized terms used
herein, and not otherwise defined herein, shall have the meanings assigned to
such terms in the Security Agreement.
The Collateral is now being conditionally delivered to you in trust as
custodian for pooling in connection with the issuance of securities to be based
on and backed by such Collateral (i.e., the issuance of "mortgage-backed
securities"). If within 45 days after the date of this letter the Administrative
Agent has not received the mortgage-backed securities themselves, then you must
return the Collateral itself to the Administrative Agent. Until such time as the
Administrative Agent receives the mortgage-backed securities in exchange for the
Collateral or the Collateral itself, you shall be deemed to hold the Collateral
(1) subject to the conditions stated in the immediately preceding sentence, (2)
in trust for the use and benefit of the Administrative Agent for the benefit of
the holders of the Obligations (as defined in the Security Agreement), (3)
subject to and burdened by the security interest granted pursuant to the
Security Agreement to the Administrative Agent for the benefit of the holders of
the Obligations and (4) as the Administrative Agent's bailee in accordance with
the applicable provisions of the Uniform Commercial Code in the State of
___________. You have no property interest in the Collateral until you send the
mortgage-backed securities to the Administrative Agent, but instead have only
the naked right to possession of the Collateral as bailee and trustee for the
Administrative Agent for the benefit of the holders of the Obligations and
subject to all of the terms and conditions of this letter. If you receive
conflicting or inconsistent instructions regarding the Collateral from the
Company and the Administrative Agent, you agree to act in accordance with the
Administrative Agent's instructions. It is understood that the Administrative
Agent is delivering
D6(b)-1
the Collateral, and will be receiving the mortgage-backed securities, or cash,
as agent and bailee for the holders of the Obligations.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LETTER OR ANY OTHER PAPERS OR
AGREEMENT, EACH OF THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT RESERVES
THE RIGHT EXERCISABLE AT ANY TIME BEFORE THE MORTGAGED-BACKED SECURITIES HAVE
BEEN ISSUED AND DELIVERED TO THE ADMINISTRATIVE AGENT TO REQUIRE BY WRITTEN
NOTICE, DELIVERED TO YOU IN ANY LEGALLY EFFECTIVE MANNER, THAT YOU RETURN THE
COLLATERAL TO THE COLLATERAL AGENT, WHEREUPON YOU SHALL BE OBLIGATED TO DO SO
WITHOUT FURTHER NOTICE, AND THIS SENTENCE (AS WELL AS THE OTHER PROVISIONS OF
THIS LETTER) SHALL BE BINDING ON YOUR SUCCESSORS, TRUSTEES, CONSERVATORS,
RECEIVERS AND ASSIGNS.
If the foregoing accurately reflects your understanding of your role with
respect to the Collateral and in particular your status as bailee and trustee
for the Administrative Agent and your very limited rights in the Collateral
until you send the mortgage-backed securities to the Administrative Agent in
exchange for the Collateral, please execute the enclosed copy of this letter and
return it to us (although your receipt for this letter shall not be necessary to
the effectiveness of any of its provisions). Otherwise, please notify us and
return all of the enclosed Collateral to us immediately and in any event within
ten (10) days after the date of this letter. If you fail to either (a) execute
and return a copy of this letter to the Administrative Agent or (b) return to
the Administrative Agent all of the enclosed Collateral within ten (10) days
after this letter's date, then you shall have accepted possession of the
Collateral as the Administrative Agent's bailee, in trust, subject to the
security interest granted to the Administrative Agent for the use and benefit of
the holders of the Obligations, and on the conditions specified in this letter.
If the mortgage-backed securities are not received by the Administrative
Agent in exchange for the enclosed Collateral on or before forty-five (45) days
after this letter's date, then you are instructed to return all of the
Collateral to the Administrative Agent (although that shall not affect or impair
any claim or cause of action against you in respect of your Take-Out
Commitment).
THIS 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).
D6(b)-2
Very truly yours,
CALYON, NEW YORK BRANCH,
as Administrative Agent
By:___________________________
Name:
Title:
By: _____________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
as Collateral Agent
By:___________________________
Name:
Title:
Received and agreed to.
[Name and signature of Pool Custodian and date signed]
D6(b)-3
Schedule of Mortgage Notes and Other Documents
D6(b)-4
EXHIBIT D-7
FORM OF TRUST RECEIPT AND SECURITY AGREEMENT
________________, 19____
The undersigned, PULTE MORTGAGE LLC, a Delaware limited liability company
(the "Servicer"), and PULTE FUNDING, INC. (the "Borrower") each acknowledges
receipt by the Servicer from LASALLE BANK NATIONAL ASSOCIATION acting as agent,
bailee and custodian (in such capacity "Collateral Agent") for the exclusive
benefit of the Lenders (as such term and capitalized terms not otherwise defined
herein are defined in that certain Second Amended and Restated Loan Agreement
entered into as of August 19, 2005, among the Borrower, the Issuers parties
thereto, the Managing Agents parties thereto, the Banks parties thereto, CALYON
NEW YORK BRANCH, in its capacity as administrative agent for the "Lenders" (as
defined therein) (in such capacity, the "Administrative Agent"), and the
Servicer, in its capacity as servicer thereunder (as the same may be increased,
reduced, supplemented, amended, restated, renewed, extended or otherwise
modified from time to time, the "Second Restated Loan Agreement")) pursuant to
the Second Amended and Restated Collateral Agency Agreement, dated as of August
19, 2005, among the Borrower, Calyon New York Branch, as the Administrative
Agent and the Collateral Agent (as the same may be increased, reduced,
supplemented, amended, restated, renewed, extended or otherwise modified from
time to time, the "Second Restated Collateral Agency Agreement"), of the
following described documentation for the identified Mortgage Loans (the
"Collateral Documents"), possession of which is herewith entrusted to the
Servicer solely for the purpose of correcting documentary defects relating
thereto:
Loan Document
Borrower Name Loan Number Note Amount Delivered
------------- ----------- ----------- -------------
It is hereby acknowledged that a security interest pursuant to the New
York Uniform Commercial Code in the Collateral hereinabove described and in the
proceeds of said Collateral has been granted to Administrative Agent for the
benefit of the Secured Parties pursuant to the Security Agreement.
In consideration of the aforesaid delivery by Collateral Agent, the
Servicer hereby agrees to hold said Collateral in trust for Collateral Agent and
the Administrative Agent on behalf of the Lenders as provided under and in
accordance with all provisions of the Second Restated Collateral Agency
Agreement and to return said Collateral to Collateral Agent no later than the
close of business on the fourteenth calendar day following the date hereof or,
if such day is not a Business Day, on the immediately succeeding Business Day.
The Servicer represents and warrants that the aforesaid delivery by the
Collateral Agent shall not cause the Primary Obligations to exceed the
Collateral Value of all eligible Mortgage Collateral or cause any violation of
any other provision of the Second Restated Loan Agreement.
D7-1
PULTE MORTGAGE LLC,
a Delaware limited liability company
By:_______________________________
Name:_____________________________
Title:_____________________________
Acknowledgment that the Collateral Documents have been delivered to the
Servicer:
PULTE FUNDING, INC.
By:___________________________
Title: _______________________ Date:_____________________
Acknowledgment that the Collateral Documents have been returned to the
Collateral Agent:
LASALLE BANK NATIONAL ASSOCIATION
By:___________________________
Title: _______________________ Date:_____________________
D7-2
EXHIBIT D-8
COLLATERAL AGENT DAILY REPORT
CALYON NEW YORK BRANCH
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Structured Finance
FORM OF BORROWING BASE CERTIFICATE
LaSalle Bank, NA certifies the following reflects Pulte Funding, Inc. collateral
position as of the end of the day August 18, 2005
MAXIMUM FACILITY AMOUNT $ 0.00
SEASONAL FACILITY AMOUNT $ 0.00
PRINCIPAL DEBT (AS MOST RECENTLY REPORTED TO COLLATERAL AGENT) $ 0.00
NOTE COLLATERAL
AMOUNT VALUE
------ ----------
BEGINNING BALANCE OF PREVIOUS DAY AGGREGRATE $ 0.00 $ 0.00
DAILY PLEDGES:
M189 - Pledges (new) $ 0.00 $ 0.00
M188 - Unpledges (transfers) $ 0.00 $ 0.00
M156 - Removes (cancels and repays) $ 0.00 $ 0.00
ENDING BALANCE OF DAILY PLEDGES $ 0.00 $ 0.00
AGGREGATE BORROWING BASE
Conforming Mortgage Loans (CML1) $ 0.00 $ 0.00
D8-1
Non Conforming Mortgage Loans (UNC1) $ 0.00 $ 0.00
Jumbo Loans (JML1) $ 0.00 $ 0.00
Non Conforming Jumbo Loans (NCJM) $ 0.00 $ 0.00
Super Jumbo Loans (SJML) $ 0.00 $ 0.00
Non Comforming Super Jumbo Loans (NCJM) $ 0.00 $ 0.00
Second Lien Loans (UNC2) $ 0.00 $ 0.00
ALT-A Loans (ALTA) $ 0.00 $ 0.00
Sub Prime Loans (SUBP) $ 0.00 $ 0.00
TOTAL AGGREGATE (BEFORE INELIGIBLE LOANS) $ 0.00 $ 0.00
INELIGIBLE ITEMS:
Ineligible Wet > 9 Days $ 0.00 $ 0.00
Ineligible Trust Release > 15 Days $ 0.00 $ 0.00
Ineligible Over Trust Limits $ 0.00 $ 0.00
Ineligible Shipped > 45 Days $ 0.00 $ 0.00
Ineligible Aged > 180 Cal Days $ 0.00 $ 0.00
TOTAL INELIGIBLE ITEMS $ 0.00 $ 0.00
TOTAL WAREHOUSE BORROWING BASE $ 0.00 $ 0.00
ALT-A'S AVG FICO =>690, MINIMUM 650 PASS/FAIL PASS
D8-2
Certification: To the best of the knowledge and belief (after reasonable
investigation) of the officer of the Company executing this Certificate, the
Company hereby certifies to LaSalle Bank, NA for the benefit of lenders under
the Credit Agreement that: (a) the above information is, and the computations &e
accurate and complete and in accordance with the requirements of the Credit
Agreement, and (b) as of the date hereof, (1) all representations and warranties
of the Company set forth in the Credit Agreement are accurate and complete, (2)
there does not exist an Event of Default under the Credit Agreement, and (3) the
Company has given written notice to LaSalle Bank, NA of any Default which now
exists under the Credit Agreement.
IN WITNESS WHEREOF, the Company has caused this Borrowing Base Certificate to be
executed and delivered by its duly authorized officer this August 18, 2005
LsSalle Bank National Association
By: _____________________________________
Name:____________________________________
Title:___________________________________
August 18, 2005
D8-3
EXHIBIT D-9
[RESERVED]
D9-1
EXHIBIT D-10
UCC FINANCING STATEMENTS
See Tab 36.
D10-1
EXHIBIT D-11
[RESERVED]
D11-1
EXHIBIT D-12
ASSIGNMENT OF TRADE
[Date]
[Names and Addresses of Approved Investors]
This is to confirm and assign the trades shown on Schedule I hereto, which
were made by us with your firms.
For the transaction, please accept delivery from, and pay the purchase
price directly to Calyon New York Branch, whose acceptance of this trade
assignment is indicated below. Accordingly, Calyon New York Branch is obligated
to make delivery of such securities to you, and you should establish this trade
as a buy transaction.
All confirmation pertaining to this trade should be sent to Calyon New
York Branch, Calyon Building, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Conduit Securitization Group, Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇.
Sincerely,
Pulte Mortgage LLC
By:____________________________
Name:
Title:
Agreed:
Calyon New York Branch [Approved Investor]
By:____________________________
Name:
Title:
Date:
By: _________________________________
Name:
Title:
Date:
D12-1
Schedule I
[Schedule I should show Pulte Funding, Inc. Trade Number, Trade Date,
Settlement Date, Assignment Account, Trade Amount, Coupon, Price and Type of
Security.]
D12-2
EXHIBIT D-13
FORM OF SUBSTITUTION ASSIGNMENT
Date: __________________ __, ____
To: LASALLE BANK NATIONAL ASSOCIATION
LaSalle Bank National Association
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Re: (i) Second Amended and Restated Loan Agreement entered into as of August
19, 2005, among PULTE FUNDING, INC. (the "Borrower"), the Issuers parties
thereto, the Managing Agents parties thereto, the Banks parties thereto,
CALYON NEW YORK BRANCH, in its capacity as administrative agent for the
"Lenders" (as defined therein) (in such capacity, the "Administrative
Agent"), and PULTE MORTGAGE LLC, in its capacity as servicer thereunder
(as the same may be increased, reduced, supplemented, amended, restated,
renewed, extended or otherwise modified from time to time, the "Second
Restated Loan Agreement") and (ii) Second Amended and Restated Collateral
Agency Agreement dated as of August 19, 2005 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Second Restated Collateral Agency Agreement") among the Borrower, the
Administrative Agent, and LASALLE BANK NATIONAL ASSOCIATION, in its
capacity as the collateral agent (the "Collateral Agent"). Capitalized
terms used herein, and not otherwise defined herein, shall have the
meanings assigned to such terms in the Second Restated Loan Agreement or
Second Restated Collateral Agency Agreement, as applicable.
For value received and pursuant to the Second Restated Loan Agreement and
the Second Restated Collateral Agency Agreement, as Collateral for the
Obligations, the undersigned Borrower hereby transfers, assigns, pledges and
sets over to the Administrative Agent, for the benefit of the holders of the
Obligations, and hereby grants to the Administrative Agent, for the benefit of
the holders of the Obligations, a security interest in (1) each Mortgage Loan
described on Schedule I attached hereto and made a part hereof (the Principal
Mortgage Documents of which are being delivered to the Collateral Agent
herewith), (2) each Mortgage Loan described on Schedule II attached hereto and
made a part hereof (the Principal Mortgage Documents of which are to be
delivered herewith to the Collateral Agent within 9 Business Days), and (3) each
Take-Out Commitment (or portion thereof) described in the Hedge Report on
Schedule III attached hereto and made a part hereof. It is understood that all
deliveries hereunder shall be to the Collateral Agent (as agent and bailee for
the Administrative Agent) or the Administrative Agent (for the benefit of
holders of the Obligations), as the case may be, pursuant to the Second Restated
Collateral Agency Agreement.
D13-1
The Borrower represents and warrants to the Administrative Agent and the
Collateral Agent, in each case, for the benefit of the holders of the
Obligations that the Borrower currently holds, in trust for the Administrative
Agent for the benefit of the holders of the Obligations, all of the Other
Mortgage Documents, as required by Section 3.2(c) of the Second Restated Loan
Agreement, for each Mortgage Loan described in Schedule I. Further, the Borrower
represents and warrants that all information provided with this Substitution
Assignment, including the information contained on Schedule I, and III, is true
and correct and that all of the Principal Mortgage Documents for each of the
Mortgage Loans described in Schedule I accompany this Substitution Assignment
and are delivered to the Collateral Agent for the benefit of the holders of the
Obligations free and clear of any liens or other obligations other than as
provided in the Transaction Documents.
This Substitution Assignment shall be binding upon, and inure to the
benefit of, the successors and assigns of the Borrower, the Collateral Agent and
the Substitution Administrative Agent for the benefit of the holders of the
Obligations. Capitalized terms used in this Substitution Assignment and not
otherwise defined herein have the meanings given thereto in the Second Restated
Loan Agreement.
THIS SUBSTITUTION ASSIGNMENT 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).
THIS SUBSTITUTION ASSIGNMENT AND THE OTHER TRANSACTION DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
In witness whereof, the Borrower has caused this Substitution Assignment
to be executed and delivered on the first date above written.
PULTE FUNDING, INC.
By: ___________________________
Name:
Title:
D13-2
SCHEDULE I TO FORM OF SUBSTITUTION ASSIGNMENT
Mortgage Loans in which the Administrative Agent
is Granted a Security Interest for the Benefit of the Holders
of the Obligations and with Respect to which the Principal
Mortgage Documents are Delivered Herewith
Originator's Loan Original
Number Principal Amount Collateral Value Obligor Interest Rate Loan Type
D13-3
SCHEDULE II TO FORM OF SUBSTITUTION ASSIGNMENT
Mortgage Loans in which the Administrative Agent
is Granted a Security Interest for the Benefit of
the Holders of the Obligations and with Respect to which the
Principal Mortgage Documents are to be Delivered within Nine Business Days
Originator's Loan Original
Number Principal Amount Collateral Value Obligor Interest Rate Loan Type
D13-4
SCHEDULE III TO FORM OF SUBSTITUTION ASSIGNMENT
PULTE MORTGAGE LLC
As of:
Form Of Hedge Report
TAKE-OUT INVESTORS LIMIT ▇▇▇▇▇'▇ ▇▇/ST S&P LT/ST RATED ENTITY
------------------ ----- ------------- --------- -------------
ABN AMRO Incorporated 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
American Home Mortgage 10% NR NR
Astoria Financial Corp. 25% Baa1 BBB-/A-2 Fitch BBB+/F2
Aurora Loan Services, Inc. 100% A1/P-1 A/A1 Fitch A+/F1
Banc of America Securities LLC 100% P-1 A-1+ Fitch F1+
Banc One Capital Markets, Inc. 100% A1 BBB Fitch F2
Banc One Corp. 100% A1 BBB Fitch F2
Bank of America Mortgage 100% P-1 A-1+ Fitch F1+
Barclays Capital Inc. 100% P-1 A-1+ Fitch F1+
Bear, ▇▇▇▇▇▇▇ & Co., Inc. 100% P-1 A-1 Fitch F1+
BNP Paribas Securities Corp. 100% P-1 A-1 Fitch F1+
Charter One Financial Inc. 10% NR ▇▇
▇▇▇▇▇ Financial Corp. 100% Aa3/P-1 A+/A1 Fitch A+/F1
Chase Manhattan Mortgage Corporation 100% Aa3/P-1 A+/A1 Fitch A+/F1
Chase Securities Inc. 100% Aa3/P-1 A+/A1 Fitch A+/F1
CIBC World Markets Corp. 100% Aa3/P-1 NR
Citicorp Mortgage Corp. 100% Aa1/P-1 AA-/A-1+ Fitch AA+/F1+
Colorado Housing Finance Authority 100% Aaa AA-/A1+
Commercial Federal Corp. 10% WR BB+ Fitch BBB-/F3
Countrywide 100% ▇▇/▇-▇ ▇/▇-▇ ▇▇▇▇▇ ▇/▇▇
▇▇▇▇ 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Daiwa Securities America, Inc. 25% Baa3 BBB/A-2 Fitch BBB/F2
D13-5
TAKE-OUT INVESTORS LIMIT ▇▇▇▇▇'▇ ▇▇/ST S&P LT/ST RATED ENTITY
------------------ ----- ------------- --------- -------------
Dakota County Bond (Minnesota) 100% Aaa NR
Deutsche Bank Securities Inc. 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Dresdner Kleinwort ▇▇▇▇▇▇
North America LLC 100% ▇▇/▇-▇ ▇/▇-▇ ▇▇▇▇▇ ▇/▇▇
▇*▇▇▇▇▇ 10% Ba3 BB
Federal Home Mortgage Corp. 100% Aaa/P-1 AAA/ A1+
Federal National Mortgage
Association 100% Aaa/P-1 AAA
Fidelity Bancshares, Inc. 100% Aa3/P-1 AA-/A-1+ Fitch A+
First Franklin 10% NR NR
First Nationwide Mortgage
Corporation 10% NR NR
First Union Mortgage Corporation 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Fleet Mortgage group 100% Aa2/WR ▇▇ ▇▇▇▇▇ AA-/F1+
Florida Housing Finance Agency 100% Aa1 NR
Fuji Securities Inc. 100% WR A2 ▇▇▇▇▇ ▇▇
GE Capital Mortgage Services Inc. 100% Aaa/P-1 AAA/A-1+
GMAC Mortgage 25% Baa2/P-2 BB/B-1 Fitch BB+/B
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Government National Mortgage
Association. 100% Aaa AAA
Greenpoint Mortgage (formerly
Headlands Mortgage) 100% A2 ▇▇ ▇▇▇▇▇ A-
Greenwich Capital Markets, Inc. 100% Aa3 AA- Fitch F1+
Homeside Lending Inc. 10% WR ▇▇ ▇▇▇▇▇ WR
Housing Finance Authority of
Broward County (FL) 10% Aaa NR
HSBC Securities (USA) Inc. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇/F1+
Illinois Housing Development
Authority 100% Aaa AA-/A1+
Indy Mac (Independent National
Mortgage Corp.) 25% NR BB+ Fitch BBB-/F2
▇. ▇. ▇▇▇▇▇▇ Securities, Inc. 100% Aa3/P-1 A+/A1 Fitch A+/F1
Leader Mortgage Corp. 10% NR ▇▇
▇▇▇▇▇▇ Brothers Inc. 100% ▇▇/▇-▇ ▇/▇▇ ▇▇▇▇▇ ▇▇/▇▇
▇▇▇▇ ▇▇▇▇▇ Financial Corp. 10% NR NR
Maryland Housing Opportunities
Commission (HOC) 10% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Government
Securities Inc. 100% Aa3/P-1 A+/A-1 ▇▇▇▇▇ ▇▇-/F1+
Minnesota Housing Finance Agency 10% NR ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 100% Aa3/P-1 A+/A1 Fitch A+/F1
D13-6
TAKE-OUT INVESTORS LIMIT ▇▇▇▇▇'▇ ▇▇/ST S&P LT/ST RATED ENTITY
------------------ ----- ------------- --------- -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Securities Inc. 100% Aa3/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Nevada State Housing Finance
Agency 10% NR NR
New Jersey Housing Finance
Agency 10% NR ▇▇
▇▇▇▇▇▇ Securities
International, Inc. 25% Baa1 BBB+/A-2 Fitch BBB/F2
North Carolina HFA 100% Aa3 AA-/A1+
Ohio Savings Financial Corp.
(Ohio Savings Bank) 10% NR NR
Opteum Financial Services 10% NR NR
PaineWebber Incorporated 100% Aa2/P-1 ▇▇ ▇▇▇▇▇ AA+/F1+
Pinellas County Finance
Authority 100% Aaa A-
Pulte Corporation 25% Baa3 BBB- Fitch BBB+
Regions Mortgage, Inc.
(Regions Bank) 100% A1 A Fitch A+/F1
Residential Mortgage Inc. 10% NR ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 100% Aa1/P-1 AA-/A-1+ Fitch AA+/F1+
Saxon Mortgage, Inc. 10% NR NR
▇▇ ▇▇▇▇▇ Securities
Corporation 100% Aa2/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇-/F1+
Texas Department of Housing
and Community Affairs
(TDHCA) 10% Aaa AA/A1+
Texas Veteran Land Bond and
bon VLB Loans 10% NR NR
The Industrial Development
Authority of the County of
Maricopa, AZ 100% WR A/A1
The Industrial Development
Authority of the County of
Pima, AZ 10% Ba3 B+
UBS Warburg LLC 100% Aa2/P-1 AA+/A-1+ Fitch AA+/F1+
Washington Mutual (formerly
Alta Residential Mortgage) 100% A3/P-2 A-/A-2 Fitch A/F1
▇▇▇▇▇ Fargo Funding, Inc.
(formerly Norwest mortgage) 100% Aa1/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇/F1+
▇▇▇▇▇ Fargo Mortgage Resources
(formerly Director's Acceptance) 100% Aa1/P-1 AA-/A-1+ ▇▇▇▇▇ ▇▇/F1+
Zions First National Bank 100% A2/P-1 A-/A-2 Fitch A-/F1
D13-7