Exhibit 10.18.1
Execution Version
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AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT
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Dated as of November 26, 2003
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AMERICAN HOME MORTGAGE CORP.
as a Borrower
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
as a Borrower
AMERICAN HOME MORTGAGE INVESTMENT CORP.
as a Borrower
AMERICAN HOME MORTGAGE HOLDINGS, INC.
as a Borrower
COLUMBIA NATIONAL, INCORPORATED
as a Borrower
The Lenders from time to time parties hereto
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
as Agent
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TABLE OF CONTENTS
Page
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Section 1. Definitions and Accounting Matters.................................2
1.01 Certain Defined Terms............................................2
1.02 Accounting Terms and Determinations.............................16
Section 2. Loans, Note and Prepayments.......................................16
2.01 Loans...........................................................16
2.02 Notes...........................................................16
2.03 Procedure for Borrowing.........................................17
2.04 Limitation on Types of Loans; Illegality........................18
2.05 Repayment of Loans; Interest....................................18
2.06 Mandatory Prepayments or Pledge.................................19
2.07 Voluntary Prepayments...........................................19
2.08 Extension of Termination Date...................................20
Section 3. Payments; Computations; Etc.......................................20
3.01 Payments........................................................20
3.02 Computations....................................................21
3.03 Requirements of Law.............................................21
3.04 Minimum Usage Fee...............................................22
Section 4. Collateral Security...............................................22
4.01 Collateral; Security Interest...................................22
4.02 Further Documentation...........................................23
4.03 Changes in Locations, Name, etc.................................23
4.04 Agent's Appointment as Attorney-in-Fact.........................24
4.05 Performance by Agent of Borrowers' Obligations..................25
4.06 Proceeds........................................................25
4.07 Remedies........................................................26
4.08 Limitation on Duties Regarding Preservation of Collateral.......27
4.09 Powers Coupled with an Interest.................................27
4.10 Release of Security Interest....................................27
Section 5. Conditions Precedent..............................................27
5.01 Effectiveness...................................................27
5.02 Initial and Subsequent Loans....................................28
Section 6. Representations and Warranties....................................30
6.01 Legal Name......................................................30
6.02 Existence.......................................................30
6.03 Financial Condition.............................................30
6.04 Litigation......................................................31
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6.05 No Breach.......................................................31
6.06 Action..........................................................31
6.07 Approvals.......................................................32
6.08 Margin Regulations..............................................32
6.09 Taxes...........................................................32
6.10 Investment Company Act..........................................32
6.11 Collateral; Collateral Security.................................32
6.12 Chief Executive Office/Jurisdiction of Organization.............33
6.13 Location of Books and Records...................................33
6.14 Hedging.........................................................33
6.15 True and Complete Disclosure....................................33
6.16 Tangible Net Worth..............................................34
6.17 ERISA...........................................................34
6.18 Takeout Commitments; Takeout Assignments........................34
6.19 Subsidiaries....................................................34
6.20 Solvency........................................................34
6.21 Regulatory Status...............................................35
6.22 Real Estate Investment Trust....................................35
Section 7. Covenants of the Borrowers........................................35
7.01 Financial Statements............................................35
7.02 Litigation......................................................37
7.03 Existence, etc..................................................37
7.04 Prohibition of Fundamental Changes..............................38
7.05 Borrowing Base Deficiency.......................................38
7.06 Notices.........................................................38
7.07 Hedging.........................................................39
7.08 Reports.........................................................39
7.09 Underwriting Guidelines.........................................39
7.10 Transactions with Affiliates....................................40
7.11 Limitation on Liens.............................................40
7.12 Limitation on Guarantees........................................40
7.13 Limitation on Distributions.....................................40
7.14 Servicer; Servicing Data File...................................40
7.15 Required Filings................................................40
7.16 No Adverse Selection............................................41
7.17 Remittance of Prepayments.......................................41
7.18 Agency Approvals................................................41
7.19 Takeout Commitments.............................................41
7.20 MERS Designated Mortgage Loans..................................41
7.21 Title Insurance Policies........................................41
7.22 AHM Merger Sub, Inc.............................................41
7.23 Reorganization..................................................41
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Section 8. Events of Default.................................................42
Section 9. Remedies Upon Default.............................................44
Section 10. The Agent.........................................................45
Section 11. Miscellaneous.....................................................47
11.01 Waiver..........................................................47
11.02 Notices.........................................................47
11.03 Indemnification and Expenses....................................47
11.04 Amendments......................................................48
11.05 Assignments and Participations..................................48
11.06 Successors and Assigns..........................................49
11.07 Survival........................................................49
11.08 Captions........................................................50
11.09 Counterparts....................................................50
11.10 Loan Agreement Constitutes Security Agreement; Governing
Law............................................................50
11.11 Submission To Jurisdiction; Waivers.............................50
11.12 WAIVER OF JURY TRIAL............................................50
11.13 Acknowledgments.................................................51
11.14 Hypothecation or Pledge of Loans................................51
11.15 Servicing.......................................................51
11.16 Periodic Due Diligence Review...................................52
11.17 Set-Off.........................................................53
11.18 Joint and Several Liability.....................................53
11.19 Intent..........................................................53
11.20 Treatment of Certain Information................................53
11.21 Replacement by Repurchase Agreement.............................53
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SCHEDULES
SCHEDULE 1 Representations and Warranties re: Mortgage Loans
SCHEDULE 2 Alternate `A' Mortgage Loan Criteria
SCHEDULE 3 Filing Jurisdictions and Offices
SCHEDULE 4 Subsidiaries/Trade Names
SCHEDULE 5 Cooperative Mortgage Loan Documents
SCHEDULE 6 Commitments
SCHEDULE 7 Tax Identification Numbers and Organizational
Identification Numbers of Borrowers
EXHIBITS
EXHIBIT A Form of Amended and Restated Promissory Note
EXHIBIT B Form of Amended and Restated Custodial Agreement
EXHIBIT C [Reserved]
EXHIBIT D Form of Request for Borrowing
EXHIBIT E-1 Form of Borrower's Release Letter
EXHIBIT E-2 Form of Warehouse Lender's Release Letter
EXHIBIT F Underwriting Guidelines
EXHIBIT G Form of Servicer Notice
EXHIBIT H Form of Takeout Assignment
EXHIBIT I Form of Notice of Prepayment
EXHIBIT J Form of Takeout Proceeds Identification Letter
EXHIBIT K Form of Assignment and Acceptance
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AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT
AMENDED AND RESTATED MASTER LOAN AND SECURITY AGREEMENT, dated as of
November 26, 2003, among AMERICAN HOME MORTGAGE CORP. ("AHM"), a New York
corporation, AMERICAN HOME MORTGAGE ACCEPTANCE, INC. ("AHM Acceptance"), a
Maryland corporation, AMERICAN HOME MORTGAGE INVESTMENT CORP. ("AHM
Investment"), a Maryland corporation, AMERICAN HOME MORTGAGE HOLDINGS, INC.
("Holdings"), a Delaware corporation, and COLUMBIA NATIONAL, INCORPORATED,
Maryland corporation ("CNI" and together with AHM, AHM Acceptance, AHM
Investment and Holdings, each a "Borrower" and collectively, the "Borrowers"),
the lenders from time to time parties hereto (the "Lenders") and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BANK ("MS Bank"), as agent for the Lenders (in such capacity, the "Agent").
RECITALS
AHM (on behalf of itself as an original borrower under the Existing
Loan Agreement and in its capacity as successor by merger to Marina Mortgage
Company, Inc.), CNI, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. ("MSMCI") and MS Bank
are parties to that certain Master Loan and Security Agreement, dated as of
August 2, 2002 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Existing Loan Agreement").
Holdings, the Parent Guarantor under the Existing Loan Agreement,
has entered into an Agreement and Plan of Merger, dated as of July 12, 2003,
with Apex Mortgage Capital, Inc. ("Apex"), pursuant to which, in a series of
related transactions, among other things, (i) Holdings will become a
wholly-owned subsidiary of its recently-formed subsidiary AHM Investment (with
the shareholders of Holdings becoming shareholders of AHM Investment), and (ii)
Apex will merge with and into AHM Investment (with the shareholders of Apex
becoming shareholders of AHM Investment), all as more fully described in a joint
proxy statement/prospectus dated October 24, 2003 (collectively, the
"Reorganization").
The Borrowers have requested that the Lenders from time to time make
or continue to make, as applicable, revolving credit loans to them to finance
certain residential mortgage loans owned by the Borrowers, and the Lenders are
prepared to make or to continue to make, as applicable, such loans upon the
terms and conditions hereof. Each Borrower is engaged in a business that is
complimentary to the business of the other Borrower. Each Borrower will directly
benefit from each extension of credit to the other Borrower, and the proceeds of
each loan will inure to the benefit of each Borrower.
The Borrowers, the Agent and the Lenders hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Loan Agreement is hereby amended and restated in its entirety
as set forth in the heading and recitals hereto and as follows:
Section 1. Definitions and Accounting Matters.
1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Section 1.01 or in
other provisions of this Loan Agreement in the singular to have the same
meanings when used in the plural and vice versa):
"Accepted Servicing Practices" shall mean, with respect to any
Mortgage Loan, those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage
Loans in the jurisdiction where the related Mortgaged Property is located.
"Affiliate" shall mean with respect to any Person, any "affiliate"
of such Person, as such term is defined in the Bankruptcy Code.
"Agency" shall mean ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, any loan origination
program sponsored by the State of California and any other government mortgage
loan program acceptable to the Agent or any successors thereto.
"Agency Approvals" shall have the meaning provided in Section
6.07(b) hereof.
"Agency Eligible Mortgage Loan" shall mean a mortgage loan that is
in strict compliance with the eligibility requirements for swap or purchase by
the designated Agency, under the applicable Agency Guide and/or Agency Program.
"Agency Guide" shall mean, with respect to ▇▇▇▇▇▇ Mae securities,
the ▇▇▇▇▇▇ ▇▇▇ Selling Guide and the ▇▇▇▇▇▇ Mae Servicing Guide, with respect to
▇▇▇▇▇▇▇ Mac securities, the ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇' and Servicers' Guide, and with
respect to California Program securities, the applicable program manual and the
servicer's guide, in each case including all exhibits thereto, as such Agency
Guide may be amended, supplemented or otherwise modified from time to time.
"Agency Program" shall mean a specific mortgage backed securities
swap or purchase program under the relevant Agency Guide or as otherwise
approved by the Agency with respect to Mortgage Loans originated pursuant to the
Agency Guide.
"Agent" shall have the meaning provided in the introductory
paragraph hereof.
"AHM" shall have the meaning provided in the introductory paragraph
hereof.
"AHM Acceptance" shall have the meaning provided in the introductory
paragraph hereof.
"AHM Investment" shall have the meaning provided in the introductory
paragraph hereof.
"Alternate `A' Mortgage Loan" shall mean a Mortgage Loan made by a
Borrower which is underwritten in conformity with the applicable Agency Guide or
Agency Program but
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subject to the exceptions and in accordance with the provisions applicable to
Alternate `A' Mortgage Loans contained in Schedule 2 attached hereto.
"Applicable Collateral Percentage" shall mean, with respect to each
Eligible Mortgage Loan, the applicable collateral percentage set forth in the
chart below opposite the applicable type of Mortgage Loan:
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Applicable Collateral
Type of Mortgage Loan Percentage
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Agency Eligible Mortgage Loan 97%
Alternate `A' Mortgage Loan 96%
Conduit Eligible Mortgage Loan 97%
Interest-Only Mortgage Loans 97%"
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"Applicable Margin" shall mean 80 basis points (0.80%) per annum.
"Assignment and Acceptance" shall have the meaning set forth in
Section 11.05(a) hereof.
"Assignment of Mortgage" means, with respect to any mortgage, an
assignment of the mortgage, notice of transfer or equivalent instrument in
recordable form, sufficient under the laws of the jurisdiction wherein the
related mortgaged property is located to reflect the assignment and pledge of
the mortgage.
"Bankruptcy Code" shall mean the United States Bankruptcy Code of
1978, as amended from time to time.
"Borrower" and "Borrowers" shall have the meaning provided in the
heading hereof.
"Borrowing Base" shall mean the aggregate Collateral Value of all
Eligible Mortgage Loans.
"Borrowing Base Deficiency" shall have the meaning provided in
Section 2.06 hereof.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday or (ii) a day on which the New York Stock Exchange, the Federal Reserve
Bank of New York or the Custodian is authorized or obligated by law or executive
order to be closed.
"California Program Mortgage Loan" shall mean an Agency Eligible
Mortgage Loan that is in strict compliance with the eligibility requirements for
swap or purchase under a program sponsored by the State of California or such
other program as the Agent shall approve in its sole discretion as set forth in
the applicable Agency Guide and/or Agency Program.
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"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this Loan
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all similar ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Cash Equivalents" shall mean (a) securities with maturities of
ninety (90) days or less from the date of acquisition issued or fully guaranteed
or insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of ninety
(90) days or less from the date of acquisition and overnight bank deposits of
any commercial bank having capital and surplus in excess of $500,000,000, (c)
repurchase obligations of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than seven days with
respect to securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by ▇▇▇▇▇'▇ and in
either case maturing within ninety (90) days after the day of acquisition, (e)
securities with maturities of ninety (90) days or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by ▇▇▇▇▇'▇, (f) securities with maturities of ninety (90) days or
less from the date of acquisition backed by standby letters of credit issued by
any commercial bank satisfying the requirements of clause (b) of this
definition, or (g) shares of money market, mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition.
"CNI" shall have the meaning provided in the introductory paragraph
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall have the meaning provided in Section 4.01(b)
hereof.
"Collateral Value" shall mean, with respect to each Eligible
Mortgage Loan, the lesser of (a) the Applicable Collateral Percentage of
the Market Value of such Mortgage Loan, and (b) 100% of the outstanding
principal balance of such Mortgage Loan; provided, that the following
additional limitations shall apply:
(i) The aggregate Collateral Value of all Alternate `A' Mortgage
Loans included in the Borrowing Base at any time shall not exceed 25% of
the Maximum Credit at such time;
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(ii) The aggregate Collateral Value of all California Program
Mortgage Loans included in the Borrowing Base at any time shall not exceed
$20,000,000;
(iii) The aggregate Collateral Value of all Interest-Only Mortgage
Loans with an LTV greater than 80% and less or equal to 95% included in
the Borrowing Base at any time shall not exceed $20,000,000;
(iv) The aggregate Collateral Value of all Jumbo Mortgage Loans
which have an original principal value greater than $1,000,000 included in
the Borrowing Base at any time shall not exceed $70,000,000; and
(v) The Collateral Value shall be deemed to be zero with respect to
each Mortgage Loan:
(1) in respect of which there is a breach of a representation
and warranty set forth on Schedule 1 (assuming each representation
and warranty is made as of the date Collateral Value is determined),
(2) in respect of which there is a delinquency in the payment
of principal and/or interest which continues for a period in excess
of thirty (30) days (without regard to applicable grace periods),
(3) (other than Interest Only Mortgage Loans) which remains
pledged to the Lender hereunder later than 180 days after the date
on which it is first included in the Collateral,
(4) in respect of any Interest Only Mortgage Loan which
remains pledged to the Lender hereunder later than 120 days after
the date on which it is first included in the Collateral,
(5) which has been released from the possession of the
Custodian under the Custodial Agreement for a period in excess of
forty-five (45) days,
(6) (other than Interest Only Mortgage Loans and Agency
Eligible Mortgage Loans) which is not subject to a Takeout
Commitment,
(7) in respect of any Agency Eligible Mortgage Loan which is
not subject to a Takeout Commitment and remains pledged to the
Lender under the Loan Agreement later than 120 days after the date
on which it is first included in the Collateral,
(8) in respect of which the Title Insurance Policy has not
been delivered to AHM pursuant to Section 7.21 hereof, or
(9) which exceeds the limitation on Collateral Value set forth
in (i) through (iv) above.
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"Collections" shall mean, collectively, all collections and proceeds
on or in respect of the Mortgage Loans, excluding collections required to be
paid to the Servicer or a mortgagor on the Mortgage Loans.
"Commitment" shall mean, as to any Lender, the obligation of such
Lender to make Loans to the Borrowers pursuant to Section 2.01 hereunder in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender's name on Schedule 6 under the caption
"Commitment" or in an Assignment and Acceptance, as such amount may be reduced
from time to time in accordance with the provisions of this Loan Agreement. The
aggregate Commitments of the Lenders shall equal the Maximum Credit.
"Commitment Percentage" shall mean as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the aggregate
Commitments (or, at any time after the Commitments shall have expired or
terminated, the percentage which the aggregate principal amount of such Lender's
Loans then outstanding constitutes of the aggregate principal amount of the
Loans then outstanding).
"Commitment Period" shall mean the period from and including the
date hereof to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
"Conduit Eligible Mortgage Loan" shall mean a Mortgage Loan made by
a Borrower which is underwritten in conformity with the Borrowers' underwriting
guidelines for conduit eligible mortgage loan.
"Cooperative Corporation" shall mean the cooperative apartment
corporation that holds legal title to a Cooperative Project and grants occupancy
rights to units therein to stockholders through Proprietary Leases or similar
arrangements.
"Cooperative Mortgage Loan" shall mean a Mortgage Loan that is
secured by a first lien on a perfected security interest in Cooperative Shares
and the related Proprietary Lease granting exclusive rights to occupy the
related Cooperative Unit in the building owned by the related Cooperative
Corporation.
"Cooperative Mortgage Loan Documents" shall mean the documents
listed on Schedule 5 attached hereto.
"Cooperative Project" shall mean all real property owned by a
Cooperative Corporation including the land, separate dwelling units and all
common elements.
"Cooperative Shares" shall mean the shares of stock issued by a
Cooperative Corporation and allocated to a Cooperative Unit and represented by a
stock certificate.
"Cooperative Unit" shall mean a specific unit in a Cooperative
Project.
"Credit Exposure" shall mean, as to any Lender at any time, its
Commitment (or, if the Commitments shall have expired or been terminated, the
aggregate unpaid principal amount of its Loans).
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"Credit Exposure Percentage" shall mean, as to any Lender at any
time, the fraction (expressed as a percentage), the numerator of which is the
Credit Exposure of such Lender at such time and the denominator of which is the
aggregate Credit Exposures of all the Lenders at such time.
"Custodial Agreement" shall mean the Amended and Restated Custodial
Agreement, dated as of the date hereof, among the Borrowers, the Custodian and
the Agent, substantially in the form of Exhibit B hereto, as the same shall be
modified and supplemented and in effect from time to time.
"Custodian" shall mean Deutsche Bank National Trust Company, as
custodian under the Custodial Agreement, and its successors and permitted
assigns thereunder.
"Default" shall mean an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Due Diligence Review" shall mean the performance by the Agent of
any or all of the reviews permitted under Section 11.15 hereof with respect to
any or all of the Mortgage Loans, as desired by the Agent from time to time.
"Effective Date" shall mean the date upon which the conditions
precedent set forth in Section 5.01 shall have been satisfied.
"Electronic Agent" shall have the meaning assigned to such term in
Section 2 of the Electronic Tracking Agreement.
"Electronic Tracking Agreement" shall mean the Electronic Tracking
Agreement, dated as of the date hereof, among the Borrowers, the Agent, the
Electronic Agent and MERS, as the same shall be amended, supplemented or
otherwise modified from time to time.
"Eligible Cooperative Mortgage Loan" shall mean a Cooperative
Mortgage Loan as to which the representations and warranties in Section 6.10 and
Part I of Schedule 1 hereof are correct.
"Eligible Mortgage Loan" shall mean a Mortgage Loan secured by a
first mortgage lien on a one-to-four family residential property (a) as to which
the representations and warranties in Section 6.10 and Part I of Schedule 1
hereof are correct and (b) which is either an Agency Eligible Mortgage Loan, an
Alternate `A' Mortgage Loan, a California Program Mortgage Loan, an Eligible
Cooperative Mortgage Loan, an Interest Only Mortgage Loan, a Jumbo Mortgage
Loan, a MERS Designated Mortgage Loan or a Conduit Eligible Mortgage Loan;
provided, that in no event shall any Eligible Mortgage Loan be a security for
purposes of any securities or blue sky laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
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"ERISA Affiliate" shall mean any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which a Borrower is a member and (ii) solely for purposes
of potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11)
of the Code and the lien created under Section 302(f) of ERISA and Section
412(n) of the Code, described in Section 414(m) or (o) of the Code of which a
Borrower is a member.
"Eurocurrency Liabilities" shall have the same meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Base Rate" shall mean, with respect to each day a Loan
is outstanding, the rate per annum equal to the rate appearing at page 5 of the
Telerate Screen as one-month LIBOR on such date (and if such date is not a
Business Day, the Eurodollar Rate in effect on the Business Day immediately
preceding such date), and if such rate shall not be so quoted, the rate per
annum at which the Agent is offered Dollar deposits at or about 10:00 A.M., New
York City time, on such date by prime banks in the interbank eurodollar market
where the eurodollar and foreign currency exchange operations in respect of its
Loans are then being conducted for delivery on such day for a period of thirty
(30) days and in an amount comparable to the amount of the Loans to be
outstanding on such day.
"Eurodollar Loan" shall mean a Loan the rate of interest applicable
to which is based upon the Eurodollar Rate.
"Eurodollar Rate" shall mean with respect to each day during each
interest period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
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1.00 - Eurodollar Rate Reserve Percentage
"Eurodollar Rate Reserve Percentage" shall mean, for any interest
period for all of the Eurodollar Loans comprising part of the same borrowing,
the reserve percentage applicable two (2) Business Days before the first day of
such interest period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York, New York with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the interest rate on Eurodollar Loans is determined) having a term
comparable to such interest period.
"Event of Default" shall have the meaning provided in Section 8
hereof.
"Federal Funds Rate" shall mean, for any day, the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Agent from three
federal funds brokers of recognized standing selected by it.
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"▇▇▇▇▇▇ ▇▇▇" shall mean the Federal National Mortgage Association,
or any successor thereto.
"▇▇▇▇▇▇▇ Mac" shall mean the Federal Home Loan Mortgage Corporation,
or any successor thereto.
"Funding Date" shall mean the date on which a Loan is made
hereunder.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time in the United States.
"Governmental Authority" shall mean any nation or government, any
state or other political subdivision, agency or instrumentality thereof, any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government and any court or arbitrator having
jurisdiction over a Borrower, any of its Subsidiaries or any of its properties.
"Guarantee" shall mean, as to any Person, any obligation of such
Person directly or indirectly guaranteeing any Indebtedness of any other Person
or in any manner providing for the payment of any Indebtedness of any other
Person or otherwise protecting the holder of such Indebtedness against loss
(whether by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, or to take-or-pay or otherwise);
provided that the term "Guarantee" shall not include (i) endorsements for
collection or deposit in the ordinary course of business, or (ii) obligations to
make servicing advances for delinquent taxes and insurance or other obligations
in respect of a Mortgaged Property, to the extent required by the Agent. The
amount of any Guarantee of a Person shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith. The terms "Guarantee" and "Guaranteed" used as verbs shall have
correlative meanings.
"Holdings" shall have the meaning provided in the introductory
paragraph hereof.
"Indebtedness" shall mean, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business so long as such trade accounts
payable are payable within ninety (90) days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations
(contingent or otherwise) of such Person in respect of letters of credit or
similar instruments issued or accepted by banks and other financial institutions
for account of such Person; (e) Capital Lease
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Obligations of such Person; (f) obligations of such Person under repurchase
agreements, sale/buy-back agreements or like arrangements; (g) Indebtedness of
others Guaranteed by such Person; (h) all obligations of such Person incurred in
connection with the acquisition or carrying of fixed assets by such Person; and
(i) Indebtedness of general partnerships of which such Person is a general
partner.
"Interest-Only Mortgage Loan" shall mean a Mortgage Loan that is in
strict compliance with the requirements in the Underwriting Guidelines for
"One-Month and Six-Month Interest Only ARM Products" (as defined in the
Underwriting Guidelines).
"Interest Rate Protection Agreement" shall mean, with respect to any
or all of the Mortgage Loans, any short sale of US Treasury Securities, futures
contract, mortgage related security, Eurodollar futures contract, options
related contract, interest rate swap, cap or collar agreement or similar
arrangement providing for protection against fluctuations in interest rates or
the exchange of nominal interest obligations, either generally or under specific
contingencies, entered into by a Borrower and an Affiliate of any Lender, and
acceptable to the Agent.
"Jumbo Mortgage Loan" shall mean a Mortgage Loan made by a Borrower
which is underwritten in conformity with the applicable Agency Guide or Agency
Program subject to an exception that the original principal amount of such
Mortgage Loan is too large; provided, that the original principal amount shall
not exceed $1,500,000 and such Mortgage Loan shall have a FICO score of at least
700.
"Lender(s)" shall have the meaning provided in the introductory
paragraph hereof.
"Lien" shall mean any mortgage, lien, pledge, charge, security
interest or similar encumbrance.
"Loan" shall have the meaning provided in Section 2.01(a) hereof.
"Loan Agreement" shall mean this Amended and Restated Master Loan
and Security Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"Loan Documents" shall mean, collectively, this Loan Agreement, the
Notes, the Custodial Agreement and the Electronic Tracking Agreement.
"Market Value" shall mean, as of any date in respect of an Eligible
Mortgage Loan, the price at which such Eligible Mortgage Loan could readily be
sold as determined in good faith by the Agent, which price may be determined to
be zero. The Agent's determination of Market Value shall be conclusive upon the
parties absent manifest error on the part of the Agent.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the Property, business, operations, financial condition or prospects of any
Borrower, (b) the ability of any Borrower to perform its obligations under any
of the Loan Documents to which it is a party, (c) the validity or enforceability
of any of the Loan Documents, (d) the rights and remedies of the Lenders under
any of the Loan Documents, (e) the timely payment of the principal of or
interest on the Loans or other amounts payable in connection therewith or (f)
the Collateral.
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"Maximum Credit" shall mean $350,000,000.
"MERS" shall mean Mortgage Electronic Registration Systems, Inc.
"MERS Designated Mortgage Loan" shall have the meaning assigned to
such term in Section 3 of the Electronic Tracking Agreement.
"MERS Procedures Manual" shall mean the MERS Procedures Manual
attached as Exhibit B to the Electronic Tracking Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"MERS Report" shall mean the schedule listing MERS Designated
Mortgage Loans and other information prepared by the Electronic Agent pursuant
to the Electronic Tracking Agreement.
"MERS(R) System" shall mean the Electronic Agent's mortgage
electronic registry system, as more particularly described in the MERS
Procedures Manual.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" shall mean the mortgage, deed of trust or other
instrument securing a Mortgage Note, which creates a first lien on the fee in
real property securing the Mortgage Note, or in the case of each Cooperative
Mortgage Loan, a Security Agreement which creates a first priority security
interest on the Cooperative Shares and Proprietary Lease securing the Mortgage
Note.
"Mortgage File" shall have the meaning assigned thereto in the
Custodial Agreement.
"Mortgage Loan" shall mean a mortgage loan which the Custodian has
been instructed to hold for the Agent for the ratable benefit of the Lenders
pursuant to the Custodial Agreement, and which Mortgage Loan includes, without
limitation, (i) a Mortgage Note and related Mortgage and (ii) all right, title
and interest of the Borrower in and to the Mortgaged Property covered by such
Mortgage.
"Mortgage Loan Data File" shall mean a computer-readable file
containing information with respect to each Mortgage Loan, to be delivered by
the Borrowers to the Agent pursuant to Section 2.03(a) hereof which data fields
are identified on Annex I to the Custodial Agreement.
"Mortgage Loan Documents" shall mean, with respect to a Mortgage
Loan, the documents comprising the Mortgage File for such Mortgage Loan.
"Mortgage Loan Schedule" shall have the meaning assigned thereto in
the Custodial Agreement.
"Mortgage Loan Schedule and Exception Report" shall mean the
mortgage loan schedule and exception report prepared by the Custodian pursuant
to the Custodial Agreement.
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"Mortgage Note" shall mean the original executed promissory note or
other evidence of the indebtedness of a mortgagor/borrower with respect to a
Mortgage Loan.
"Mortgaged Property" shall mean the real property (including all
improvements, buildings, fixtures, building equipment and personal property
thereon and all additions, alterations and replacements made at any time with
respect to the foregoing) and all other collateral securing repayment of the
debt evidenced by a Mortgage Note or, in the case of any Cooperative Mortgage
Loan, the Cooperative Shares and the Proprietary Lease.
"Mortgagor" shall mean the obligor on a Mortgage Note.
"MS & Co." shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, a
registered broker-dealer.
"MS Indebtedness" shall mean any indebtedness of the Borrowers
hereunder and under any other arrangement between any Borrower on the one hand
and any Lender or an Affiliate of a Lender on the other hand.
"Multiemployer Plan" shall mean a multiemployer plan defined as such
in Section 3(37) of ERISA to which contributions have been or are required to be
made by the Borrower or any ERISA Affiliate and that is covered by Title IV of
ERISA.
"Net Income" shall mean, for any period, the net income of AHM
Investment and its consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"1934 Act" shall mean the Securities and Exchange Act of 1934, as
amended.
"Note(s)" shall mean the promissory notes provided for in Section
2.02(a) hereof for Loans and any note delivered in substitution or exchange
therefore, in each case as the same shall be amended, supplemented or otherwise
modified and in effect from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, joint venture, limited liability company, trust,
unincorporated association or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" shall mean an employee benefit or other plan established or
maintained by the Borrower or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan or any other amount under this Loan Agreement, the Note or any other Loan
Document that is not paid when due to the Lenders (whether at stated maturity,
by acceleration, by optional or mandatory
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prepayment or otherwise), a rate per annum during the period from and including
the due date to but excluding the date on which such amount is paid in full
equal to 4% per annum plus the Prime Rate and in no event shall such rate exceed
the maximum rate permitted by law.
"Prescribed Laws" shall mean, collectively, (a) the Uniting and
Strengthening America by Providing Appropriate Tools to Intercept and Obstruct
Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act, (b) Executive
Order No. 13224 on Terrorist Financing, effective September 24, 2001, relating
to Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism, (c) the International Emergency
Economic Power Act, 50 U.S.C. ss.1701 et. seq. and (d) all other Requirements of
Law relating to money laundering or terrorism.
"Prime Rate" shall mean the prime rate announced to be in effect
from time to time, as published as the average rate in The Wall Street Journal.
"Property" shall mean any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Proprietary Lease" shall mean a lease on (or occupancy agreement
with respect to) a Cooperative Unit evidencing the possessory interest of the
owner of the Cooperative Shares or the Seller in such Cooperative Unit.
"Recognition Agreement" shall mean, with respect to a Cooperative
Mortgage Loan, an agreement executed by a Cooperative Corporation which, among
other things, acknowledges the lien of the Mortgage on the Mortgaged Property in
question.
"Regulations T, U and X" shall mean Regulations T, U and X of the
Board of Governors of the Federal Reserve System (or any successor), as the same
may be modified and supplemented and in effect from time to time.
"REIT Borrower" shall mean any Borrower which has REIT Status as of
the Effective Date.
"REIT Distribution Requirement" shall mean distributions reasonably
necessary for each REIT Borrower to maintain its REIT Status and not be subject
to corporate level tax based on income or to excise tax under Section 4981 of
the Code.
"REIT Status" shall mean with respect to any Person, such Person's
status as a real estate investment trust, as defined in Section 856(a) of the
Code, that satisfies the conditions and limitations set forth in Section 856(b)
and 856(c) of the Code.
"Reorganization" shall have the meaning provided in the second
Recitals paragraph hereof.
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law (including, without limitation, Prescribed Laws), treaty,
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case
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applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Responsible Officer" shall mean, as to any Person, the chief
executive officer or, with respect to financial matters, the chief financial
officer of such Person.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Secured Obligations" shall have the meaning provided in Section
4.01(c) hereof.
"Security Agreement" the specific security agreement creating a
security interest on and pledge of the Cooperative Shares and the appurtenant
Proprietary Lease securing a Cooperative Mortgage Loan.
"Servicer" shall have the meaning provided in Section 11.15(c)
hereof.
"Servicer Notice and Agreement" shall have the meaning provided in
Section 11.15(c) hereof.
"Servicing Agreement" shall have the meaning provided in Section
11.15(c) hereof.
"Servicing Records" shall have the meaning provided in Section
11.15(b) hereof.
"Settlement Date" shall mean, with respect to each Mortgage Loan,
the actual date on which the Takeout Price for such Mortgage Loan is received by
the Agent or the Borrowers pursuant to a Takeout Commitment or on which the
purchase price for a Mortgage Loan is otherwise received by the Agent or the
Borrowers.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Takeout Assignment" shall mean an assignment executed by the
Borrowers, whereby the Borrowers irrevocably assign their rights and obligations
under a Takeout Commitment, and which assignment shall be substantially in the
form and content of Exhibit H hereto.
"Takeout Commitment" shall mean either (i) with respect to each
Whole Loan Transfer pursuant to which an Agency is the Takeout Investor, a trade
confirmation from such Agency to the Borrowers confirming the details of a
forward trade between the Takeout Investor
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(as buyer) and the Borrowers (as seller) constituting a valid binding and
enforceable mandatory delivery commitment by such Agency to purchase on the
Settlement Date and at a given Takeout Price the Mortgage Loans described
therein or (ii) with respect each Whole Loan Transfer (other than those in which
the Takeout Investor is an Agency), a trade confirmation from a Takeout Investor
to the Borrowers confirming the details of a forward trade between the Takeout
Investor (as buyer) and the Borrowers (as seller) constituting a valid, binding
and enforceable mandatory delivery commitment by such Takeout Investor to
purchase on the Settlement Date and at a given Takeout Price the Mortgage Loans
described therein.
"Takeout Investor" shall mean a securities broker-dealer, Agency or
other institution, acceptable to the Agent, which has made a Takeout Commitment.
"Takeout Price" shall mean as to each Takeout Commitment the
purchase price (expressed as a percentage of par) set forth therein.
"Takeout Proceeds" shall mean as to each Settlement Date, the actual
amount of proceeds delivered to the Agent by the applicable Takeout Investor for
the purchase of Mortgage Loans on such Settlement Date.
"Tangible Net Worth" shall mean, as of a particular date, with
respect to any Person,
(a) all amounts which would be included under capital on a
consolidated balance sheet of such Person at such date, determined in accordance
with GAAP, less
(b) (i) amounts owing to such Person from Affiliates and (ii)
intangible assets.
"Termination Date" shall mean May 30, 2004 or such earlier date on
which this Loan Agreement shall terminate in accordance with the provisions
hereof or by operation of law.
"Title Insurance Policy" shall have the meaning provided in Section
7.21 hereof.
"Total Indebtedness" shall mean, for any period, the aggregate
amount of Indebtedness (including, without limitation, the amount of all drafts
payable) of AHM Investment and its consolidated Subsidiaries during such period.
"Trust Receipt" shall have the meaning provided in the Custodial
Agreement.
"Underwriting Guidelines" shall mean the relevant Borrower's
underwriting guidelines attached as Exhibit F hereto.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
in effect from time to time in the State of New York; provided that if by reason
of mandatory provisions of law, the perfection or the effect of perfection or
non-perfection of the security interest or the renewal or enforcement thereof in
any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New York, "Uniform Commercial Code" shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for
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purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
"Whole Loan Transfer" shall mean the sale or transfer of some or all
of the Mortgage Loans to a Takeout Investor in a whole loan transaction.
1.02 Accounting Terms and Determinations. Except as otherwise
expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Agent hereunder shall be
prepared, in accordance with GAAP.
Section 2. Loans, Note and Prepayments.
2.01 Loans.
(a) Subject to the fulfillment of the conditions precedent set forth
in Sections 5.01 and 5.02 hereof, and provided that no Default shall have
occurred and be continuing hereunder, each Lender agrees to make or continue, as
applicable, on the terms and subject to the conditions of this Loan Agreement,
loans (individually, a "Loan" and, collectively, the "Loans") to the Borrowers
in Dollars, from and including the Effective Date to and including the
Termination Date in an aggregate principal amount at any one time outstanding up
to but not exceeding the lesser of (i) such Lender's Commitment as then in
effect and (ii) such Lender's Commitment Percentage of the Borrowing Base as in
effect from time to time. On the Effective Date, all outstanding "Loans" of the
Borrowers under the Existing Loan Agreement shall be continued as Loans under
this Loan Agreement which is a continuation, rearrangement and extension of the
Existing Loan Agreement.
(b) Subject to the terms and conditions of this Loan Agreement,
during such period the Borrowers may (i) borrow, (ii) repay the Loan in full or
in part, without penalty, and (iii) reborrow hereunder; provided, that,
notwithstanding the foregoing, no Lender shall have an obligation to make Loans
to the Borrowers if the aggregate amount of the Loans made to the Borrower by
the Lenders then outstanding would be in excess of the Maximum Credit and, in
the event the obligation of any Lender to make Loans to the Borrowers is
terminated as permitted hereunder, such Lender shall have no further obligation
to make additional Loans hereunder.
(c) In no event shall a Loan be made when any Default or Event of
Default has occurred and is continuing.
2.02 Notes.
(a) The Loans made by each Lender shall be evidenced by a single
promissory note of the Borrowers substantially in the form of Exhibit A hereto
(each a "Note" and collectively, the "Notes"), dated the date hereof, payable to
the order of such Lender in a principal amount equal to the lesser of (a) the
amount of the Commitment of such Lender and (b) the aggregate unpaid principal
amount of all Loans made by such Lender. Each Lender shall have the right to
have its Note subdivided, by exchange for promissory notes of lesser
denominations or otherwise.
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(b) The date, amount and interest rate of each Loan made by each
Lender to the Borrowers, and each payment made on account of the principal
thereof, shall be recorded by such Lender on its books and, prior to any
transfer of the Note, endorsed by such Lender on the schedule attached to its
Note or any continuation thereof; provided, that the failure of such Lender to
make any such recordation or endorsement shall not affect the obligations of the
Borrowers to make a payment when due of any amount owing hereunder or under the
Note in respect of the Loans made by such Lender.
2.03 Procedure for Borrowing.
(a) The Borrowers may request a borrowing hereunder, on any Business
Day during the period from and including the Effective Date to and including the
Termination Date, by delivering to the Agent, with a copy to the Custodian, a
written request for borrowing, substantially in the form of Exhibit D attached
hereto (a "Request for Borrowing"), which request must be received by the Agent
prior to 11:00 a.m., New York City time, one (l) Business Day prior to the
requested Funding Date. Such request for borrowing shall (i) attach a schedule
identifying the Eligible Mortgage Loans that the Borrowers propose to pledge to
the Agent, for the ratable benefit of the Lenders, and to be included in the
Borrowing Base in connection with such borrowing, (ii) specify the requested
Funding Date and the amount requested to be borrowed, (iii) be accompanied by a
Mortgage Loan Data File containing information with respect to the Eligible
Mortgage Loans that the Borrowers propose to pledge to the Agent, for the
ratable benefit of the Lenders, and to be included in the Borrowing Base in
connection with such borrowing, and (iv) attach an officer's certificate signed
by a Responsible Officers of the Borrowers as required by Section 5.02(b)
hereof.
(b) Upon the Borrowers' request for a borrowing pursuant to Section
2.03(a), the Lenders shall, upon satisfaction of all conditions precedent set
forth in Section 5.01 and 5.02 hereof and provided that no Default shall have
occurred and be continuing, make a Loan to the Borrowers (for which all
Borrowers will be jointly and severally liable) on the requested Funding Date,
in the amount so requested.
(c) The Borrowers shall release to the Custodian no later than 12:00
p.m., New York City time, two (2) Business Days prior to the requested Funding
Date, the Mortgage File pertaining to each Eligible Mortgage Loan to be pledged
to the Agent for the ratable benefit of the Lenders, and included in the
Borrowing Base on such requested Funding Date, in accordance with the terms and
conditions of the Custodial Agreement.
(d) Pursuant to the Custodial Agreement, the Custodian shall deliver
to the Agent and the Borrowers, no later than 11:00 a.m., New York City time on
a Funding Date, a Trust Receipt (as defined in the Custodial Agreement) in
respect of all Mortgage Loans pledged to the Agent, for the ratable benefit of
the Lenders, on such Funding Date, and a Mortgage Loan Schedule and Exception
Report.
(e) Subject to Section 5 hereof, such borrowing will then be made
available to the Borrowers by the Agent transferring, via wire transfer, to the
following account of the Borrowers: ▇▇▇▇▇▇▇▇ , for the A/C of Bankers Trust Co.,
ABA# ▇▇▇▇▇▇▇▇▇, Attn: R. Silver, in the aggregate amount of such borrowing in
funds immediately available to the Borrower.
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2.04 Limitation on Types of Loans; Illegality. Anything herein to
the contrary notwithstanding, if, on or prior to the determination of any
Eurodollar Rate:
(a) the Agent determines, which determination shall be conclusive,
that quotations of interest rates for the relevant deposits referred to in the
definition of "Eurodollar Rate" in Section 1.01 hereof are not being provided in
the relevant amounts or for the relevant maturities for purposes of determining
rates of interest for Loans as provided herein; or
(b) the Agent determines, which determination shall be conclusive,
that the relevant rate of interest referred to in the definition of "Eurodollar
Rate" in Section 1.01 hereof upon the basis of which the rate of interest for
Loans is to be determined is not likely adequately to cover the cost to the
Lenders of making or maintaining Loans; or
(c) it becomes unlawful for any Lender to honor its obligation to
make or maintain Loans hereunder using a Eurodollar Rate;
then the Agent shall give the Borrowers prompt notice thereof and, so long as
such condition remains in effect, the Lenders shall be under no obligation to
make additional Loans, and the Borrowers shall, either prepay all such Loans as
may be outstanding or pay interest on such Loans at a rate per annum equal to
the Federal Funds Rate plus 0.50% plus the Applicable Margin.
2.05 Repayment of Loans; Interest.
(a) The Borrowers hereby promise, jointly and severally, to repay in
full on the Termination Date the then aggregate outstanding principal amount of
the Loans.
(b) The Borrowers hereby promise, jointly and severally, to pay to
the Lenders interest on the unpaid principal amount of each Loan for the period
from and including the date of such Loan to but excluding the date such Loan
shall be paid in full, at a rate per annum equal to the Eurodollar Rate plus the
Applicable Margin. Notwithstanding the foregoing, the Borrowers hereby promise,
jointly and severally, to pay to the Lenders interest at the applicable
Post-Default Rate on any principal of any Loan and on any other amount payable
by the Borrowers hereunder or under the Note that shall not be paid in full when
due (whether at stated maturity, by acceleration or by mandatory prepayment or
otherwise) for the period from and including the due date thereof to but
excluding the date the same is paid in full. Accrued interest on each Loan shall
be payable monthly on the first Business Day of each month and for the last
month of the Loan Agreement on the first Business Day of such last month and on
the Termination Date; provided, that, the Agent may, in its sole discretion,
require accrued interest to be paid simultaneously with any prepayment of
principal made by the Borrowers on account of any of the Loans outstanding.
Interest payable at the Post-Default Rate shall accrue daily and shall be
payable upon such accrual.
(c) It is understood and agreed that, unless and until a Default or
Event of Default shall have occurred and be continuing, the Borrowers shall be
entitled to the proceeds of the Mortgage Loans pledged to the Agent, for the
ratable benefit of the Lenders hereunder. At any time while a Default has
occurred and is continuing, upon notice from the Lender, the
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Borrowers shall promptly deliver all proceeds of the Mortgage Loans pledged to
the Lender hereunder to the Lender.
2.06 Mandatory Prepayments or Pledge.
(a) If at any time the aggregate outstanding principal amount of
Loans exceeds the Borrowing Base (a "Borrowing Base Deficiency"), as determined
by the Agent and notice is given to the Borrowers on any Business Day, the
Borrowers shall no later than one (1) Business Day after receipt of such notice,
either prepay the Loans in part or in whole or pledge additional Eligible
Mortgage Loans (which Collateral shall be in all respects acceptable to the
Agent) to the Agent for the account of each Lender, such that after giving
effect to such prepayment or pledge the aggregate outstanding principal amount
of the Loans does not exceed the Borrowing Base.
(b) The Borrowers shall instruct each Takeout Investor to remit all
Takeout Proceeds directly to the Agent at the account designated in Section 3.01
hereof no later than 3:00 p.m. New York City time. Simultaneously, the Borrowers
shall deliver via facsimile or electronic mail to the Agent a purchase advice
(the "Purchase Advice") and shall indicate on such Purchase Advice the Mortgage
Loan identification number which identified such Mortgage Loan when the Lenders
previously financed the Mortgage Loan. A portion of the Takeout Proceeds in an
amount equal to the Collateral Value of the applicable Mortgage Loans shall be
applied by the Agent to the prepayment of principal outstanding on the Loans. On
the Settlement Date, the Agent shall release and remit to the applicable
Borrower the amount of Takeout Proceeds in excess of the Collateral Value of the
applicable Mortgage Loans (the "Remittance Amount"); provided that on the
Settlement Date (i) there is no Default or Event of Default under this Agreement
or any other Loan Document, (ii) there is no Borrowing Base Deficiency and (iii)
the release to such Borrower of the Remittance Amount will not cause a Borrowing
Base Deficiency. If a Borrowing Base Deficiency exists or would be created by
the release of the Remittance Amount or an Event of Default has occurred and is
continuing, the Agent, for the account of each Lender, shall be entitled to
retain the Remittance Amount, and the Borrowers thereupon shall have no further
rights, title, or interest in and to the Remittance Amount. In the event that
the Purchase Advice indicates that some of the proceeds forwarded to the Agent
do not belong to the Lenders (such amount, the "Excess Proceeds") then (i) the
Borrower shall provide the Agent with a takeout proceeds identification letter
in the form of Exhibit J hereto, and (ii) upon confirmation by the Agent that
the information set forth in the Purchase Advice matches the information that
the Agent has in its possession with respect to the Mortgage Loans, the Agent
shall promptly remit by wire transfer the Excess Proceeds in accordance with the
Borrowers' instructions. If funds are received before 3:00 p.m., New York City
time on a Business Day, but either (A) no Purchase Advice is received or (B)
such funds are not properly identified on the related Purchase Advice (a
"Purchase Advice Deficiency"), then such funds shall be retained by the Agent in
a non-interest bearing account until such Purchase Advice Deficiency is
remedied, and the Mortgage Loan Subject to such Purchase Advice shall not be
released until such Purchase Advice Deficiency is remedied. In no event shall
such Purchase Advice be back-dated to the date of its issuance.
2.07 Voluntary Prepayments. The Borrowers may at any time and from
time to time prepay the Loan, in whole or in part, without premium or penalty,
upon irrevocable notice
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to the Lender (in the form of Exhibit I) prior to 1:00 p.m., New York City time,
on the requested date thereof, in the case of the first 500 Mortgage Loans
requested to be released by the Lender on such date, or upon irrevocable notice
delivered to the Lender (in the form of Exhibit I), prior to 1:00 p.m., New York
City time, at least one (1) Business Day prior thereto, in the case of any
Mortgage Loans in excess of 500 requested to be released by the Lender,
specifying the date and amount of prepayment and attaching a schedule of
Mortgage Loans to be released by the Lender in connection with such prepayment.
If any such notice is given, the amount specified in such notice shall be due
and payable on the date specified therein, together with any accrued interest to
such date on the amount prepaid.
2.08 Extension of Termination Date. At the request of the Borrowers
made at least thirty (30) days, but in no event earlier than ninety (90) days,
prior to the then current Termination Date, the Agent may in its sole discretion
extend the Termination Date for a period to be determined by the Agent in its
sole discretion by giving written notice of such extension to the Borrowers no
later than twenty (20) days, but in no event earlier than thirty (30) days,
prior to the then current Termination Date. Any failure by the Agent to deliver
such notice of extension shall be deemed to be the Agent's determination not to
extend the then current Termination Date.
Section 3. Payments; Computations; Etc.
3.01 Payments.
(a) Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrowers under this
Loan Agreement and the Note, shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to the Agent at the following
account maintained by the Agent: Account No. ▇▇▇▇▇▇▇▇, for the account of the
Agent, Citibank, N.A., ABA No. ▇▇▇▇▇▇▇▇▇, Attn: Whole Loan Operations, not later
than 1:00 p.m., New York City time, on the date on which such payment shall
become due (and each such payment made after such time on such due date shall be
deemed to have been made on the next succeeding Business Day). Each Borrower
acknowledges that it has no rights of withdrawal from the foregoing account. The
Agent shall promptly provide to each Lender (via facsimile or other
transmission) the amount of such payment to be distributed to such Lender along
with the outstanding Loans then held by such Lender, after giving effect to such
payment.
(b) The amount of such payments distributed to each Lender will be
calculated such that at all times that the aggregate unpaid principal amount of
Loans outstanding hereunder is less than or equal to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank's
Commitment, the Credit Exposure Percentage of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank shall equal
100%.
(c) Except to the extent otherwise expressly provided herein, if the
due date of any payment under this Loan Agreement or the Note would otherwise
fall on a day that is not a Business Day, such date shall be extended to the
next succeeding Business Day, and interest shall be payable for any principal so
extended for the period of such extension.
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3.02 Computations. Interest on the Loans shall be computed on the
basis of a 360-day year for the actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
3.03 Requirements of Law.
(a) If the introduction or adoption of or any change (other than any
change by way of the imposition of or increase in reserve requirements included
in the Eurodollar Rate Reserve Percentage) in any Requirement of Law (other than
with respect to any amendment made to any Lender's certificate of incorporation
and by-laws or other organizational or governing documents) or any change in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Loan Agreement, the Note or any Loan made by it (excluding
net income or franchise taxes) or change the basis of taxation of payments
to any Lender in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory Loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, Loans or
other extensions of credit by, or any other acquisition of funds by, any
office of any Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder;
(iii) shall impose on any Lender any other condition;
and the result of any of the foregoing is to increase the cost to any Lender, by
an amount which such Lender deems to be material, of making, participating in,
continuing or maintaining any Loan or to reduce any amount due or owing
hereunder in respect thereof, then, in any such case, the Borrowers, jointly and
severally, shall promptly pay such Lender such additional amount or amounts as
will compensate such Lender for such increased cost or reduced amount
receivable.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law (other than with respect to any amendment made
to such Lender's certificate of incorporation and by-laws or other
organizational or governing documents) regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Borrowers, jointly and severally, shall
promptly pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
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(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrowers of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this Section submitted by the applicable Lender to
the Borrowers shall be conclusive in the absence of manifest error.
3.04 Minimum Usage Fee.
If , as tested on the first Business Day of any month, the average
principal balance of the Loans outstanding hereunder ("Average Usage") during
the immediately preceding calendar month shall be an amount less than
$120,000,000, the Borrower hereby agrees to pay to the Agent, for the account of
the Lenders, a minimum usage fee ("Minimum Usage Fee"), computed at the rate of
80 basis points (.80%) per annum on the amount equal to the difference between
the Maximum Credit and the Average Usage, in each case payable monthly in
arrears on the first Business Day of the following month and on the Termination
Date, such payment to be made in dollars in immediately available funds, without
deduction, set-off or counterclaim, to the Agent at the account set forth in
Section 3.01(a) hereof.
Section 4. Collateral Security.
4.01 Collateral; Security Interest.
(a) Pursuant to the Custodial Agreement, the Custodian shall hold
the Mortgage Loan Documents as exclusive bailee and agent for the Agent, for the
ratable benefit of the Lenders, pursuant to terms of the Custodial Agreement and
shall deliver to the Agent Trust Receipts (as defined in the Custodial
Agreement) each to the effect that it has reviewed such Mortgage Loan Documents
in the manner and to the extent required by the Custodial Agreement and
identifying any deficiencies in such Mortgage Loan Documents as so reviewed.
(b) All of each Borrower's right, title and interest in, to and
under each of the following items of property, whether now owned or hereafter
acquired, now existing or hereafter created and wherever located, is hereinafter
referred to as the "Collateral":
(i) all Mortgage Loans;
(ii) all Mortgage Loan Documents, including without limitation all
promissory notes, and all Servicing Records, Servicing Agreements and any
other collateral pledged or otherwise relating to such Mortgage Loans,
together with all files, documents, instruments, surveys, certificates,
correspondence, appraisals, computer programs, computer storage media,
accounting records and other books and records relating thereto;
(iii) all mortgage guaranties and insurance (issued by governmental
agencies or otherwise) and any mortgage insurance certificate or other
document evidencing such mortgage guaranties or insurance relating to any
Mortgage Loan and all claims and payments thereunder;
(iv) all other insurance policies and insurance proceeds relating to
any Mortgage Loan or the related Mortgaged Property;
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(v) all Takeout Commitments now existing or hereafter arising,
covering any part of the foregoing Collateral, all rights to deliver such
Mortgage Loans to Takeout Investors or to permanent investors and other
purchasers pursuant thereto and all proceeds resulting from the
disposition of such Collateral pursuant thereto, including such Borrower'
right and entitlement to receive the entire Takeout Price specified in
each Takeout Commitment;
(vi) all Interest Rate Protection Agreements, relating to or
constituting any and all of the foregoing;
(vii) any collateral, however defined, under any other agreement
between any Borrower or any of its Affiliates on the one hand and any
Lender or any Affiliate of a Lender on the other hand;
(viii) all "general intangibles", "accounts", "instruments",
"investment property", "deposit accounts" and "chattel paper" as defined
in the Uniform Commercial Code relating to or constituting any and all of
the foregoing; and
(ix) any and all replacements, substitutions, distributions on or
proceeds of any and all of the foregoing.
(c) Each Borrower hereby assigns, pledges and grants a security
interest in all of its right, title and interest in, to and under the Collateral
to the Agent, for the ratable benefit of the Lenders, to secure the MS
Indebtedness including without limitation the repayment of principal of and
interest on all Loans and all other amounts owing to the Lenders hereunder,
under the Notes and under the other Loan Documents (collectively, the "Secured
Obligations"). Each Borrower agrees to ▇▇▇▇ its computer records and files to
evidence the interests granted to the Agent, for the ratable benefit of the
Lenders hereunder.
4.02 Further Documentation. At any time and from time to time, upon
the written request of the Agent, and at the sole expense of the Borrowers, the
Borrowers will promptly and duly execute and deliver, or will promptly cause to
be executed and delivered, such further instruments and documents and take such
further action as the Agent may reasonably request for the purpose of obtaining
or preserving the full benefits of this Loan Agreement and of the rights and
powers herein granted, including, without limitation, the filing of any
financing or continuation statements under the Uniform Commercial Code in effect
in any jurisdiction with respect to the Liens created hereby. The Borrowers also
hereby authorize the Agent to file any such financing or continuation statement
without the signatures of the Borrowers to the extent permitted by applicable
law. A carbon, photographic or other reproduction of this Loan Agreement shall
be sufficient as a financing statement for filing in any jurisdiction.
4.03 Changes in Locations, Name, etc. No Borrower shall (i) change
the location of its chief executive office/chief place of business from that
specified in Section 6 hereof or (ii) change its name, identity or corporate
structure (or the equivalent) or change the location where it maintains its
records with respect to the Collateral or (iii) reincorporate or reorganize
under the laws of another jurisdiction or (iv) unless it shall have given the
Agent at least thirty (30) days prior written notice thereof and shall have
delivered to the Agent all
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Uniform Commercial Code financing statements and amendments thereto as the Agent
shall request and taken all other actions deemed necessary by the Agent to
continue its perfected status in the Collateral with the same or better
priority. Each Borrower's federal tax identification number is set forth on
Schedule 7. Each Borrower's organizational identification number is set forth on
Schedule 7. Each Borrower shall promptly notify the Lender of any change in such
organizational identification number.
4.04 Agent's Appointment as Attorney-in-Fact.
(a) Each Borrower hereby irrevocably constitutes and appoints the
Agent and any officer or agent thereof, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Borrower and in the name of such Borrower or in its
own name, from time to time in the Agent's discretion, for the purpose of
carrying out the terms of this Loan Agreement, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Loan Agreement, and,
without limiting the generality of the foregoing, each Borrower hereby gives the
Agent the power and right, on behalf of such Borrower, without assent by, but
with notice to, such Borrower, if an Event of Default shall have occurred and be
continuing, to do the following:
(i) in the name of each Borrower or its own name, or otherwise, to
take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
mortgage insurance or with respect to any other Collateral and to file any
claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Agent for the purpose of
collecting any and all such moneys due under any such mortgage insurance
or with respect to any other Collateral whenever payable;
(ii) to pay or discharge taxes and Liens levied or placed on or
threatened against the Collateral; and
(iii) (A) to direct any party liable for any payment under any
Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Agent or as the Agent shall direct; (B) to ask
or demand for, collect, receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in
respect of or arising out of any Collateral; (C) to sign and endorse any
invoices, assignments, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and prosecute any
suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any portion thereof
and to enforce any other right in respect of any Collateral; (E) to defend
any suit, action or proceeding brought against any Borrower with respect
to any Collateral; (F) to settle, compromise or adjust any suit, action or
proceeding described in clause (E) above and, in connection therewith, to
give such discharges or releases as the Agent may deem appropriate; and
(G) generally, to sell, transfer, pledge and make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Agent were the absolute owner thereof for all
purposes, and to do, at the Agent's option and the Borrowers' expense, at
any time, and from time to time, all acts and things
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which the Agent deems necessary to protect, preserve or realize upon the
Collateral and the Agent's Liens thereon and to effect the intent of this
Loan Agreement, all as fully and effectively as the Borrowers might do.
Each Borrower hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled with an
interest and shall be irrevocable.
(b) Each Borrower also authorizes the Agent, at any time and from
time to time, to execute, in connection with any sale provided for in Section
4.07 hereof, any endorsements, assignments or other instruments of conveyance or
transfer with respect to the Collateral and to file any initial financing
statements, amendments thereto and continuation statements with or without the
signature of any Borrower as authorized by applicable law, as applicable to all
or any part of the Collateral.
(c) The powers conferred on the Agent are solely to protect the
Lenders' interests in the Collateral and shall not impose any duty upon the
Agent to exercise any such powers. The Agent shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers,
and neither the Agent nor any of its officers, directors, or employees shall be
responsible to the Borrowers for any act or failure to act hereunder, except for
its own gross negligence or willful misconduct.
4.05 Performance by Agent of Borrowers' Obligations. If any Borrower
fails to perform or comply with any of its agreements contained in the Loan
Documents and the Agent itself performs or complies, or otherwise causes
performance or compliance, with such agreement, the expenses of the Agent
incurred in connection with such performance or compliance, together with
interest thereon at a rate per annum equal to the Post-Default Rate, shall be
payable by the Borrowers to the Agent on demand and shall constitute Secured
Obligations.
4.06 Proceeds. If an Event of Default shall occur and be continuing,
(a) all proceeds of Collateral received by the Borrowers consisting of cash,
checks and other near-cash items shall be held by the Borrowers in trust for the
Lenders, segregated from other funds of the Borrowers, and shall forthwith upon
receipt by any Borrower be turned over to the Agent in the exact form received
by such Borrower (duly endorsed by such Borrower to the Agent, if required) and
(b) any and all such proceeds received by the Lenders (whether from a Borrower
or otherwise) may, in the sole discretion of the Agent, be held by the Agent as
collateral security for, and/or then or at any time thereafter may be applied by
the Agent against, the Secured Obligations (whether matured or unmatured), such
application to be in such order as the Agent shall elect. Any balance of such
proceeds remaining after the Secured Obligations shall have been paid in full
and this Loan Agreement shall have been terminated shall be paid over to the
Borrowers or to whomsoever may be lawfully entitled to receive the same. For
purposes hereof, proceeds shall include, but not be limited to, all principal
and interest payments, all prepayments and payoffs, insurance claims,
condemnation awards, sale proceeds, real estate owned rents and any other income
and all other amounts received with respect to the Collateral.
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4.07 Remedies. If a Default shall occur and be continuing, the Agent
may, at its option, enter into one or more Interest Rate Protection Agreements
covering all or a portion of the Mortgage Loans pledged to the Agent, for the
ratable benefit of the Lenders hereunder, and the Borrowers shall be responsible
for all damages, judgments, costs and expenses of any kind which may be imposed
on, incurred by or asserted against the Agent relating to or arising out of such
Interest Rate Protection Agreements; including without limitation any losses
resulting from such Interest Rate Protection Agreements. If an Event of Default
shall occur and be continuing, the Agent may exercise, in addition to all other
rights and remedies granted to it in this Loan Agreement and in any other
instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the Uniform
Commercial Code. Without limiting the generality of the foregoing, the Agent
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Borrower or any other Person (each and all of which
demands, presentments, protests, advertisements and notices are hereby waived),
may in such circumstances forthwith collect, receive, appropriate and realize
upon the Collateral, or any part thereof, and/or may forthwith sell, lease,
assign, give option or options to purchase, or otherwise dispose of and deliver
the Collateral or any part thereof (or contract to do any of the foregoing), in
one or more parcels or as an entirety at public or private sale or sales, at any
exchange, broker's board or office of the Agent or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
The Agent shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the
whole or any part of the Collateral so sold, free of any right or equity of
redemption in the Borrower, which right or equity is hereby waived or released.
The Borrowers further agree, at the Agent's request, to assemble the Collateral
and make it available to the Lender at places which the Lender shall reasonably
select, whether at the Borrower's premises or elsewhere. The Agent shall apply
the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every
kind incurred therein or incidental to the care or safekeeping of any of the
Collateral or in any way relating to the Collateral or the rights of the Lenders
hereunder, including without limitation reasonable attorneys' fees and
disbursements, to the payment in whole or in part of the Secured Obligations, in
such order as the Agent may elect, and only after such application and after the
payment by the Agent of any other amount required or permitted by any provision
of law, including without limitation Section 9-615(a)(3) of the Uniform
Commercial Code, need the Lenders account for the surplus, if any, to the
Borrowers. To the extent permitted by applicable law, each Borrower waives all
claims, damages and demands it may acquire against the Agent or any Lender
arising out of the exercise by the Agent or the Lenders of any of their rights
hereunder, other than those claims, damages and demands arising from the gross
negligence or willful misconduct of the Agent or any Lender. If any notice of a
proposed sale or other disposition of Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least ten (10) days
before such sale or other disposition. The Borrowers shall remain liable for any
deficiency (plus accrued interest thereon as contemplated pursuant to Section
2.05(b) hereof) if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the Secured Obligations and the fees and
disbursements of any attorneys employed by the Agent or the Lenders to collect
such deficiency.
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4.08 Limitation on Duties Regarding Preservation of Collateral. The
Agent's and each Lender's duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Uniform Commercial Code or otherwise, shall be to deal with it in the
same manner as the Agent or such Lender, as the case may be, deals with similar
property for its own account. Neither the Agent, any Lender nor any of their
respective directors, officers or employees shall be liable for failure to
demand, collect or realize upon all or any part of the Collateral or for any
delay in doing so or shall be under any obligation to sell or otherwise dispose
of any Collateral upon the request of the Borrowers or otherwise.
4.09 Powers Coupled with an Interest. All authorizations and
agencies herein contained with respect to the Collateral are irrevocable and
powers coupled with an interest.
4.10 Release of Security Interest. Upon termination of this Loan
Agreement and repayment to the Lenders of all Secured Obligations and the
performance of all obligations under the Loan Documents the Agent shall release
its security interest in any remaining Collateral.
Section 5. Conditions Precedent.
5.01 Effectiveness. This Amended and Restated Master Loan and
Security Agreement shall become effective upon the satisfaction of the following
conditions precedent::
(a) Loan Documents. The Agent shall have received:
(i) Loan Agreement. This Amended and Restated Loan Agreement, duly
executed and delivered by the Borrowers;
(ii) Notes. Each Note, duly executed and delivered by the Borrowers;
(iii) Custodial Agreement. The Amended and Restated Custodial
Agreement, duly executed and delivered by the Borrowers and the Custodian;
and
(iv) Electronic Tracking Agreement. The Amended and Restated
Electronic Tracking Agreement, duly executed and delivered by each of the
parties thereto.
(v) Organizational Documents. A good standing certificate and
certified copies of the charter and by-laws (or equivalent documents) of
each Borrower and of all corporate or other authority for each Borrower
with respect to the execution, delivery and performance of the Loan
Documents and each other document to be delivered by such Borrower from
time to time in connection herewith (and the Agent and the Lenders may
conclusively rely on such certificate until it receives notice in writing
from such Borrower to the contrary);
(vi) Legal Opinion. One or more legal opinions of outside counsel to
the Borrowers, in form and substance satisfactory to the Agent;
(vii) Servicing Agreement(s). All Servicing Agreements related to
the Mortgage Loans, certified as a true, correct and complete copy of the
original together,
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with a fully executed Servicer Notice and Agreement and, if the Servicer
is a Borrower or an Affiliate of a Borrower, the letter of the applicable
Servicer consenting to termination of such Servicing Agreement upon the
occurrence of an Event of Default;
(viii) Filings, Registrations, Recordings. Any documents (including,
without limitation, financing statements) required to be filed, registered
or recorded in order to create, in favor of the Agent, for the ratable
benefit of the Lenders, a perfected, first-priority security interest in
the Collateral, subject to no Liens other than those created hereunder,
shall have been properly prepared and executed for filing (including the
applicable county(ies) if the Agent determines such filings are necessary
in its sole discretion), registration or recording in each office in each
jurisdiction in which such filings, registrations and recordations are
required to perfect such first-priority security interest; provided, that
assignments of the Mortgages securing or related to the Mortgage Loans
shall not be required to be recorded prior to the occurrence of an Event
of Default;
(ix) Financial Statements. The financial statements referenced in
Section 6.02;
(x) Underwriting Guidelines. A certified copy of the Underwriting
Guidelines, which shall be in form and substance satisfactory to the
Agent;
(xi) Consents, Licenses, Approvals, etc. Copies certified by each
Borrower of all consents, licenses and approvals, if any, required in
connection with the execution, delivery and performance by such Borrower
of, and the validity and enforceability of, the Loan Documents, which
consents, licenses and approvals shall be in full force and effect; and
(xii) Other Documents. Such other documents as the Agent may
reasonably request.
(b) Concurrent Transactions. All votes necessary to approve the
Reorganization shall have been completed, and the Reorganization shall have been
approved.
5.02 Initial and Subsequent Loans. The making of each Loan to the
Borrowers (including the initial Loan) on any Business Day is subject to the
satisfaction of the following further conditions precedent, both immediately
prior to the making of such Loan and also after giving effect thereto and to the
intended use thereof:
(a) No Default. No Default or Event of Default shall have occurred
and be continuing;
(b) Representations and Warranties. Both immediately prior to the
making of such Loan and also after giving effect thereto and to the intended use
thereof, the representations and warranties made by the Borrowers in Section 6
and Schedule 1 hereof, and elsewhere in each of the Loan Documents, shall be
true, correct and complete on and as of the date of the making of such Loan in
all material respects on and as of the date of the making of such Loan (in the
case of the representations and warranties in Section 6.10 and Schedule 1,
solely with respect to Mortgage Loans included in the Borrowing Base) with the
same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been
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made as of a specific date, as of such specific date). The Agent shall have
received an officer's certificate signed by a Responsible Officer of each
Borrower certifying as to the truth, accuracy and completeness of the above,
which certificate shall specifically include a statement that such Borrower is
in compliance with all governmental licenses and authorizations and is qualified
to do business and in good standing in all required jurisdictions.
(c) Borrowing Base. The aggregate outstanding principal amount of
the Loans shall not exceed the Borrowing Base;
(d) Due Diligence. Subject to the Agent's right to perform one or
more Due Diligence Reviews pursuant to Section 11.15 hereof, the Agent shall
have completed its due diligence review of the Mortgage Loan Documents for each
Loan and such other documents, records, agreements, instruments, mortgaged
properties or information relating to such Mortgage Loans as the Agent in its
sole discretion deems appropriate to review and such review shall be
satisfactory to the Agent in its sole discretion;
(e) Trust Receipt. A Trust Receipt, substantially in the form of
Annex 2 of the Custodial Agreement, dated the Effective Date, from the
Custodian, duly completed.
(f) Mortgage Loan Schedule and Exception Report. The Agent shall
have received from the Custodian a Mortgage Loan Schedule and Exception Report
with Exceptions as are acceptable to the Agent in its sole discretion in respect
of Eligible Mortgage Loans to be pledged hereunder on such Business Day;
(g) Release Letter. The Agent shall have received from the Borrowers
a Warehouse Lender's Release Letter substantially in the form of Exhibit E-2
hereto (or such other form acceptable to the Lender) or a Seller's Release
Letter substantially in the form of Exhibit E-1 hereto (or such other form
acceptable to the Lender) covering each Mortgage Loan to be pledged to the
Agent, for the ratable benefit of the Lenders;
(h) Fees and Expenses. The Agent shall have received all fees and
expenses of counsel to the Agent and the Lenders as contemplated by Section
11.03(b), which amount, at the Agent's option, may be netted from any Loan
advanced under this Agreement;
(i) Takeout Assignment. The Agent shall have received a Takeout
Assignment for each Takeout Commitment relating to Mortgage Loans included in
the Borrowing Base as of the Funding Date;
(j) No Market Events. None of the following shall have occurred
and/or be continuing:
(i) an event or events shall have occurred resulting in the
effective absence of a "repo market" or comparable "lending market" for
financing debt obligations secured by mortgage loans or securities or an
event or events shall have occurred resulting in the Lenders not being
able to finance any Mortgage Loans through the "repo market" or "lending
market" with traditional counterparties at rates which would have been
reasonable prior to the occurrence of such event or events;
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(ii) an event or events shall have occurred resulting in the
effective absence of a "securities market" for securities backed by
mortgage loans or an event or events shall have occurred resulting in the
Lenders not being able to sell securities backed by mortgage loans at
prices which would have been reasonable prior to such event or events; or
(iii) there shall have occurred a material adverse change in the
financial condition of any Lender which affects (or can reasonably be
expected to affect) materially and adversely the ability of such Lender to
fund its obligations under this Loan Agreement;
(k) No ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Downgrade. MS & Co.'s corporate bond rating as
calculated by S&P or ▇▇▇▇▇'▇ has not been lowered or downgraded to a rating
below A- as indicated by S&P or below A3 as indicated by ▇▇▇▇▇'▇; and
(l) MERS Report. The Agent shall have received from the Electronic
Agent a MERS Report listing all MERS Designated Mortgage Loans to be pledged
hereunder on such Business Day.
Each request for a borrowing by the Borrower hereunder shall constitute a
certification by the Borrower that all the conditions set forth in this Section
5 (other than Section 5.02(j)) have been satisfied (both as of the date of such
notice, request or confirmation and as of the date of such borrowing).
Section 6. Representations and Warranties. Each Borrower represents
and warrants to the Agent and the Lenders that throughout the term of this Loan
Agreement:
6.01 Legal Name. On the Effective Date, the exact legal name of the
each Borrower is, and during the four months immediately preceding the date
hereof, such name has been, respectively, American Home Mortgage Corp., American
Home Mortgage Investment Corp., American Home Mortgage Holdings, Inc., American
Home Mortgage Acceptance, Inc. and Columbia National, Incorporated; and no
Borrower has used any previous names, assumed names or trade names except as set
forth on Schedule 4 attached hereto.
6.02 Existence. The Borrower (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, (b) has all requisite corporate or other power, and has all
governmental licenses, authorizations, consents and approvals necessary to own
its assets and carry on its business as now being or as proposed to be
conducted, except where the lack of such licenses, authorizations, consents and
approvals would not be reasonably likely to have a Material Adverse Effect; and
(c) is qualified to do business and is in good standing in all other
jurisdictions in which the nature of the business conducted by it makes such
qualification necessary, except where failure so to qualify would not be
reasonably likely (either individually or in the aggregate) to have a Material
Adverse Effect.
6.03 Financial Condition. The Borrower has heretofore furnished to
the Agent a copy of (a) the consolidated balance sheet of Holdings and its
consolidated Subsidiaries for the fiscal year ended December 31, 2002 and the
related consolidated statements of income and retained earnings and of cash
flows for Holdings and its consolidated Subsidiaries for such fiscal
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year, setting forth in each case in comparative form the figures for the
previous year, with the opinion thereon of Deloitte & Touche and (b) its
consolidated balance sheet and the consolidated balance sheets of its
consolidated Subsidiaries for the quarterly fiscal period ended September 30,
2003 and the related consolidated statements of income and retained earnings and
of cash flows for Holdings and its consolidated Subsidiaries for such quarterly
fiscal period, setting forth in each case in comparative form the figures for
the previous year. All such financial statements are complete and correct and
fairly present, in all material respects, the consolidated financial condition
of Holdings and its Subsidiaries and the consolidated results of their
operations as at such dates and for such fiscal periods, all in accordance with
GAAP applied on a consistent basis. Since December 31, 2002, there has been no
material adverse change in the consolidated business, operations or financial
condition of Holdings and its consolidated Subsidiaries taken as a whole from
that set forth in said financial statements.
6.04 Litigation. There are no actions, suits, arbitrations,
investigations (including, without limitation, any of the foregoing which are
pending or threatened) or other legal or arbitrable proceedings affecting any
Borrower or any of its Subsidiaries or affecting any of the Property of any of
them before any Governmental Authority that (i) questions or challenges the
validity or enforceability of any of the Loan Documents or any action to be
taken in connection with the transactions contemplated hereby, (ii) makes a
claim or claims in an aggregate amount greater than $1,000,000, (iii) which,
individually or in the aggregate, if adversely determined, could reasonably be
likely to have a Material Adverse Effect, or (iv) requires filing with the
Securities and Exchange Commission in accordance with the 1934 Act or any rules
thereunder.
6.05 No Breach. Neither (a) the execution and delivery of the Loan
Documents nor (b) the consummation of the transactions therein contemplated in
compliance with the terms and provisions thereof will conflict with or result in
a breach of the charter or by-laws of any Borrower, or any applicable law
(including, without limitation, the Prescribed Laws), rule or regulation, or any
order, writ, injunction or decree of any Governmental Authority, or any
Servicing Agreement or other material agreement or instrument to which any
Borrower or any of their Subsidiaries is a party or by which any of them or any
of their Property is bound or to which any of them is subject, or constitute a
default under any such material agreement or instrument or result in the
creation or imposition of any Lien (except for the Liens created pursuant to
this Loan Agreement) upon any Property of any Borrower or any of their
Subsidiaries pursuant to the terms of any such agreement or instrument.
6.06 Action. Each Borrower has all necessary corporate or other
power, authority and legal right to execute, deliver and perform its obligations
under each of the Loan Documents; the execution, delivery and performance by
Borrower of each of the Loan Documents have been duly authorized by all
necessary corporate or other action on its part; and each Loan Document has been
duly and validly executed and delivered by Borrower and constitutes a legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms.
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6.07 Approvals.
(a) No authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority or any securities exchange are
necessary for the execution, delivery or performance by each Borrower of the
Loan Documents or for the legality, validity or enforceability thereof, except
for filings and recordings in respect of the Liens created pursuant to this Loan
Agreement.
(b) Each Borrower is approved by ▇▇▇▇▇▇ Mae as an approved lender
and each Borrower and each Servicer is approved by ▇▇▇▇▇▇▇ Mac as an approved
seller/servicer, in each case in good standing (such collective approvals and
conditions, "Agency Approvals"), with no event having occurred or any Borrower
having any reason whatsoever to believe or suspect will occur (including,
without limitation, a change in insurance coverage) which would either make any
Borrower (or any Servicer) unable to comply with the eligibility requirements
for maintaining all such applicable Agency Approvals or require notification to
the relevant Agency. Each Borrower (and any Servicer) has adequate financial
standing, servicing facilities, procedures and experienced personnel necessary
for the sound servicing of mortgage loans of the same types as may from time to
time constitute Mortgage Loans and in accordance with Accepted Servicing
Practices.
6.08 Margin Regulations. Neither the making of any Loan hereunder,
nor the use of the proceeds thereof, will violate or be inconsistent with the
provisions of Regulations T, U or X.
6.09 Taxes. Each Borrower and each of their Subsidiaries has filed
all Federal income tax returns and all other material tax returns that are
required to be filed by them and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by any of them, except for any
such taxes as are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate reserves
have been provided. The charges, accruals and reserves on the books of each
Borrower and each of their Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of each Borrower, adequate.
6.10 Investment Company Act. No Borrower nor any of their
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
6.11 Collateral; Collateral Security.
(a) No Borrower has assigned, pledged, or otherwise conveyed or
encumbered any Mortgage Loan or other Collateral to any other Person, and
immediately prior to the pledge of such Mortgage Loan or any other Collateral to
the Agent, for the ratable benefit of the Lenders, the Borrowers were the sole
owner of such Mortgage Loan or such other Collateral and had good and marketable
title thereto, free and clear of all Liens, in each case except for Liens to be
released simultaneously with the Liens granted in favor of the Agent, for the
ratable benefit of the Lenders hereunder. No Mortgage Loan or other Collateral
pledged to
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the Agent, for the ratable benefit of the Lenders hereunder, was acquired (by
purchase or otherwise) by any Borrower from an Affiliate of any Borrower.
(b) The provisions of this Loan Agreement are effective to create in
favor of the Agent, for the ratable benefit of the Lenders, a valid security
interest in all right, title and interest of the Borrowers in, to and under the
Collateral.
(c) Upon (i) receipt by the Custodian of each Mortgage Note,
endorsed in blank by a duly authorized officer of the relevant Borrower and (ii)
the issuance by the Custodian to the Agent of a Trust Receipt therefor the Agent
shall have a fully perfected first priority security interest therein, in the
Mortgage Loan evidenced thereby and in the Borrowers' interest in the related
Mortgaged Property.
(d) Upon the filing of financing statements on Form UCC-1 naming the
Agent as "Secured Party" and the Borrowers as "Debtors", and describing the
Collateral, in the jurisdictions and recording offices listed on Schedule 2
attached hereto, the security interests granted hereunder in the Collateral will
constitute fully perfected first priority security interests under the Uniform
Commercial Code in all right, title and interest of the Borrowers in, to and
under such Collateral which can be perfected by filing under the Uniform
Commercial Code.
6.12 Chief Executive Office/Jurisdiction of Organization. On the
Effective Date, and during the four months immediately preceding the Effective
Date, each Borrower's chief executive office, is, and has been, located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. On the Effective Date, AHM's
jurisdiction of organization is New York, AHM Investment's jurisdiction of
organization is Maryland; Holdings' jurisdiction of organization is Delaware;
AHM Acceptance's jurisdiction of organization is Maryland; and CNI's
jurisdiction of organization is Maryland.
6.13 Location of Books and Records. The location where each Borrower
keeps its books and records, including all computer files and records relating
to the Collateral is its chief executive office.
6.14 Hedging. Each Borrower has entered into Interest Rate
Protection Agreements in accordance with its respective hedging policy
guidelines, having terms with respect to protection against fluctuations in
interest rates reasonably acceptable to the Agent.
6.15 True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of the Borrowers to the Agent and the Lenders in connection with the
negotiation, preparation or delivery of this Loan Agreement and the other Loan
Documents or included herein or therein or delivered pursuant hereto or thereto,
when taken as a whole, do not contain any untrue statement of material fact or
omit to state any material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made, not
misleading. All written information furnished after the date hereof by or on
behalf of the Borrowers to the Agent and the Lenders in connection with this
Loan Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material
respect, or (in the case of projections) based on reasonable estimates, on the
date as of which such information is stated
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or certified. There is no fact known to a Responsible Officer of a Borrower,
after due inquiry, that could reasonably be expected to have a Material Adverse
Effect that has not been disclosed herein, in the other Loan Documents or in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Agent for use in connection with the transactions
contemplated hereby or thereby.
6.16 Tangible Net Worth. On the Effective Date, the Tangible Net
Worth of Holdings is not less than $110,000,000.
6.17 ERISA. Each Plan to which any Borrower or its Subsidiaries make
direct contributions, and, to the knowledge of such Borrower, each other Plan
and each Multiemployer Plan, is in compliance in all material respects with, and
has been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other Federal or State law. No
event or condition has occurred and is continuing as to which any Borrower would
be under an obligation to furnish a report to the Agent under Section 7.01(d)
hereof.
6.18 Takeout Commitments; Takeout Assignments. Each Takeout
Commitment (if any) has been delivered by the Borrowers and constitutes a valid,
binding and existing obligation of a Takeout Investor, enforceable against the
Borrowers and the Takeout Investor, respectively, in accordance with its terms
(subject to bankruptcy laws and other similar laws of general application
affecting rights of creditors and subject to the application of the rules of
equity, including those relating to specific performance). Each Takeout
Commitment (if any) has been duly and validly assigned by the Borrowers to the
Agent pursuant to a Takeout Assignment.
6.19 Subsidiaries. Schedule 3 sets forth the name of each direct or
indirect Subsidiary of the Borrowers and of the holders of Capital Stock of the
Borrowers, its form of organization, its jurisdiction of organization, the total
number of issued and outstanding shares or other interests of Capital Stock
thereof, the classes and number of issued and outstanding shares or other
interests of Capital Stock of each such class, the name of each holder of
Capital Stock thereof and the number of shares or other interests of such
Capital Stock held by each such holder and the percentage of all outstanding
shares or other interests of such class of Capital Stock held by such holders.
6.20 Solvency. After giving effect to the making of each Loan (i)
the amount of the "present fair saleable value" of the assets of each Borrower
and of such Borrower and its Subsidiaries, taken as a whole, will, as of such
date, exceed the amount of all "liabilities of such Borrower and of such
Borrower and its Subsidiaries, taken as a whole, contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors,
(ii) the present fair saleable value of the assets of each Borrower and of such
Borrower and its Subsidiaries, taken as a whole, will, as of such date, be
greater than the amount that will be required to pay the liabilities of such
Borrower and of such Borrower and its Subsidiaries, taken as a whole, on their
respective debts as such debts become absolute and matured, (iii) no Borrower,
nor any Borrower and its Subsidiaries, taken as a whole, will have, as of such
date, an unreasonably small amount of capital with which to conduct their
respective businesses, and (iv) each Borrower and such Borrower and its
Subsidiaries, taken as a whole, will be able to pay their respective debts as
they
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mature. For purposes of this Section 6.19, "debt" means "liability on a claim",
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, and (y) right to
an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
6.21 Regulatory Status. No Borrower is a "bank holding company" or a
direct or indirect subsidiary of a "bank holding company" as defined in the Bank
Holding Company Act of 1956, as amended, and Regulation Y thereunder of the
Board of Governors of the Federal Reserve System or will become a "bank holding
company" or a direct or indirect subsidiary of a "bank holding company" unless
it shall have provided the Agent written notice thirty (30) days prior to such
change.
6.22 Real Estate Investment Trust. No REIT Borrower has engaged in
any material "prohibited transactions" as defined in Section 857(b)(6)(B)(iii)
and (C) of the Code. Each REIT Borrower for its current "tax year" (as defined
in the Code) is and for all prior tax years subsequent to its election to be a
real estate investment trust has been entitled to a dividends paid deduction
under the requirements of Section 857 of the Code with respect to any dividends
paid by it with respect to each such year for which it claims a deduction in its
Form 1120-REIT filed with the United States Internal Revenue Service for such
year.
Section 7. Covenants of the Borrowers
Each Borrower covenants and agrees with the Agent and each Lender
that, so long as any Loan is outstanding and until payment in full of all
Secured Obligations:
7.01 Financial Statements. The Borrowers shall deliver to the Agent:
(a) as soon as available, and in any event not later than forty-five
(45) days after the end of each calendar month, the unaudited balance sheet of
AHM Investment and its consolidated Subsidiaries as at the end of such month and
the related unaudited statement of income of AHM Investment and its consolidated
Subsidiaries for such month and the portion of the fiscal year through the end
of such month;
(b) as soon as available and in any event within forty-five (45)
days after the end of each of the first three quarterly fiscal periods of each
fiscal year of AHM Investment and its consolidated Subsidiaries, the unaudited
consolidated balance sheets of AHM Investment and its consolidated Subsidiaries
as at the end of such period and the related unaudited consolidated statements
of income and retained earnings and of cash flows for the AHM Investment and its
consolidated Subsidiaries for such period and the portion of the fiscal year
through the end of such period, setting forth in each case in comparative form
the figures for the previous year, accompanied by a certificate of a Responsible
Officer of AHM Investment, which certificate shall state that said consolidated
financial statements fairly present the consolidated financial condition and
results of operations of AHM Investment and its consolidated Subsidiaries in
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accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(c) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of AHM Investment, the consolidated balance
sheets of AHM Investment and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained
earnings and of cash flows for the AHM Investment and its consolidated
Subsidiaries for such year, setting forth in each case in comparative form the
figures for the previous year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
shall not be qualified as to scope of audit or going concern and shall state
that said consolidated financial statements fairly present the consolidated
financial condition and results of operations of AHM Investment and its
consolidated Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, and a certificate of such accountants stating that, in
making the examination necessary for their opinion, they obtained no knowledge,
except as specifically stated, of any Default or Event of Default;
(d) from time to time such other information regarding the financial
condition, operations, or business of any Borrower as the Agent may reasonably
request; and
(e) as soon as reasonably possible, and in any event within thirty
(30) days after a Responsible Officer of any Borrower knows, or with respect to
any Plan or Multiemployer Plan to which any Borrower or any of its Subsidiaries
makes direct contributions, has reason to believe, that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan has
occurred or exists, a statement signed by a senior financial officer of the
Borrowers setting forth details respecting such event or condition and the
action, if any, that the Borrowers or its ERISA Affiliate proposes to take with
respect thereto (and a copy of any report or notice required to be filed with or
given to PBGC by the Borrowers or an ERISA Affiliate with respect to such event
or condition):
(i) any reportable event, as defined in Section 4043(c) of ERISA and
the regulations issued thereunder, with respect to a Plan, as to which
PBGC has not by regulation waived the requirement of Section 4043(a) of
ERISA that it be notified within thirty (30) days of the occurrence of
such event (provided that a failure to meet the minimum funding standard
of Section 412 of the Code or Section 302 of ERISA, including without
limitation the failure to make on or before its due date a required
installment under Section 412(m) of the Code or Section 302(e) of ERISA,
shall be a reportable event regardless of the issuance of any waivers in
accordance with Section 412(d) of the Code); and any request for a waiver
under Section 412(d) of the Code for any Plan;
(ii) the distribution under Section 4041(c) of ERISA of a notice of
intent to terminate any Plan or any action taken by the Borrower or an
ERISA Affiliate to terminate any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or the receipt
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by the Borrower or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by PBGC with respect to such
Multiemployer Plan;
(iv) the complete or partial withdrawal from a Multiemployer Plan by
the Borrower or any ERISA Affiliate that results in liability under
Section 4201 or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of a purchaser default) or the receipt by
the Borrower or any ERISA Affiliate of notice from a Multiemployer Plan
that it is in reorganization or insolvency pursuant to Section 4241 or
4245 of ERISA or that it intends to terminate or has terminated under
Section 4041A of ERISA;
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Borrower or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
and
(vi) the adoption of an amendment to any Plan that would result in
the loss of tax-exempt status of the Plan and trust of which such Plan is
a part if the Borrower or an ERISA Affiliate fails to provide timely
security to such Plan if and as required by the provisions of Section
401(a)(29) of the Code or Section 307 of ERISA.
The Borrowers will furnish to the Agent, at the time it furnishes each set of
financial statements pursuant to paragraphs (b) and (c) above, a certificate of
a Responsible Officer of Borrower to the effect that, to the best of such
Responsible Officer's knowledge, The Borrowers during such fiscal period or year
has observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Loan Agreement and the other Loan
Documents to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate (and, if any Default or Event of Default
has occurred and is continuing, describing the same in reasonable detail and
describing the action the Borrowers have taken or proposes to take with respect
thereto).
7.02 Litigation. Each Borrower will promptly, and in any event
within ten (10) days after service of process on any of the following, give to
the Agent notice of all litigation, actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are pending or
threatened) or other legal or arbitrable proceedings affecting such Borrower or
any of its Subsidiaries or affecting any of the Property of any of them before
any Governmental Authority that (i) questions or challenges the validity or
enforceability of any of the Loan Documents or any action to be taken in
connection with the transactions contemplated hereby, (ii) makes a claim or
claims in an aggregate amount greater than $1,000,000, (iii) which, individually
or in the aggregate, if adversely determined, could be reasonably likely to have
a Material Adverse Effect, or (iii) requires filing with the Securities and
Exchange Commission in accordance with the 1934 Act and any rules thereunder.
7.03 Existence, etc. Each Borrower will:
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(a) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises (provided that nothing in
this Section 7.03(a) shall prohibit any transaction expressly permitted under
Section 7.04 hereof);
(b) comply with the requirements of all applicable laws, rules,
regulations and orders of Governmental Authorities (including, without
limitation, all environmental laws, all laws with respect to unfair and
deceptive lending practices and predatory lending practices) if failure to
comply with such requirements would be reasonably likely (either individually or
in the aggregate) to have a Material Adverse Effect;
(c) keep adequate records and books of account, in which complete
entries will be made in accordance with GAAP consistently applied;
(d) not move its chief executive office from the address referred to
in Section 6.12 or change its jurisdiction of organization from the jurisdiction
referred to in Section 6.12 unless it shall have provided the Agent thirty (30)
days' prior written notice of such change;
(e) pay and discharge all taxes, assessments and governmental
charges or levies imposed on it or on its income or profits or on any of its
Property prior to the date on which penalties attach thereto, except for any
such tax, assessment, charge or levy the payment of which is being contested in
good faith and by proper proceedings and against which adequate reserves are
being maintained in conformance with GAAP;
(f) permit representatives of the Agent, during normal business
hours, to examine, copy and make extracts from its books and records (including,
without limitation the Title Insurance Policies), to inspect any of its
Properties, and to discuss its business and affairs with its officers, all to
the extent reasonably requested by the Agent; and
(g) (i) to hold each Title Insurance Policy for the benefit of the
Agent on behalf of the Lenders; (ii) to hold each Title Insurance Policy at the
office of AHM Investment located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ unless the Borrowers shall have provided thirty (30) days' prior written
notice of any change in location, and (iii) to segregate each Title Insurance
Policy with respect to Mortgage Loans that have been pledged to the Agent, for
the ratable benefit of the Lenders hereunder from title insurance policies
unrelated to such Mortgage Loans and held at the same location.
7.04 Prohibition of Fundamental Changes. No Borrower shall enter
into any transaction of merger or consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation, winding up or
dissolution) or sell all or substantially all of its assets; provided, that a
Borrower may merge or consolidate with (a) any wholly owned subsidiary of such
Borrower, or (b) any other Person if such Borrower is the surviving corporation;
and provided further, that if after giving effect thereto, no Default would
exist hereunder.
7.05 Borrowing Base Deficiency. If at any time there exists a
Borrowing Base Deficiency the Borrowers shall cure same in accordance with
Section 2.06 hereof.
7.06 Notices. The Borrowers shall give notice to the Agent:
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(a) promptly upon receipt of notice or knowledge of the occurrence
of any Default or Event of Default;
(b) with respect to any Mortgage Loan pledged to the Agent
hereunder, immediately upon receipt of any principal prepayment (in full or
partial) of such pledged Mortgage Loan;
(c) with respect to any Mortgage Loan pledged to the Agent
hereunder, immediately upon receipt of notice or knowledge that the underlying
Mortgaged Property has been damaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, or otherwise damaged so
as to affect adversely the Collateral Value of such pledged Mortgage Loan; and
(d) promptly upon receipt of notice or knowledge of (i) any default
related to any Collateral, (ii) any Lien or security interest (other than
security interests created hereby or by the other Loan Documents) on, or claim
asserted against, any of the Collateral or (iii) any event or change in
circumstances which could reasonably be expected to have a Material Adverse
Effect.
(e) promptly upon any material change in the market value of any or
all of the Borrowers' assets.
Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer of each Borrower setting forth details of the
occurrence referred to therein and stating what action such Borrower have taken
or proposes to take with respect thereto.
7.07 Hedging. The Borrowers shall at all times maintain Interest
Rate Protection Agreements in accordance with their respective hedging policy
guidelines, which guidelines are reasonably acceptable to the Agent in its sole
discretion. The Interest Rate Protection Agreements maintained by the Borrowers
shall have terms with respect to protection against fluctuations in interest
rates reasonably acceptable to the Agent. The Borrowers shall deliver to the
Agent monthly a written summary of the notional amount of all outstanding
Interest Rate Protection Agreements.
7.08 Reports. The Borrowers shall provide the Agent with a quarterly
report, which report shall include, among other items, a summary of the
Borrower's delinquency and loss experience with respect to mortgage loans
serviced by the Borrowers, any Servicer or any designee of either, plus any such
additional reports as the Agent may reasonably request with respect to the
Borrowers' or any Servicer's servicing portfolio or pending originations of
mortgage loans.
7.09 Underwriting Guidelines. (a) Without the prior written consent
of the Agent, the Borrowers shall not amend or otherwise modify the Underwriting
Guidelines or originate Mortgage Loans in a manner inconsistent with the
Underwriting Guidelines. Notwithstanding the preceding sentence, in the event
that the Borrowers make any amendment or modification to the Underwriting
Guidelines, the Borrowers shall promptly deliver to the Agent a complete copy of
the amended or modified Underwriting Guidelines.
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(b) Each Borrower shall originate Mortgage Loans in a manner which
is consistent with sound underwriting and appraisal practices, and in compliance
with applicable federal and state consumer protection laws including, without
limitation, all laws with respect to unfair or deceptive practices and all laws
relating to predatory lending practices.
7.10 Transactions with Affiliates. The Borrowers will not enter into
any transaction, including without limitation any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Loan Agreement, (b) in
the ordinary course of the Borrowers' business and (c) upon fair and reasonable
terms no less favorable to the Borrowers than it would obtain in a comparable
arm's length transaction with a Person which is not an Affiliate, or make a
payment that is not otherwise permitted by this Section 7.10 to any Affiliate.
In no event shall any Borrower pledge to the Agent, for the ratable benefit of
the Lenders, hereunder any Mortgage Loan acquired by such Borrower from an
Affiliate of such Borrower.
7.11 Limitation on Liens. The Borrowers will defend the Collateral
against, and will take such other action as is necessary to remove, any Lien,
security interest or claim on or to the Collateral, other than the security
interests created under this Loan Agreement, and the Borrowers will defend the
right, title and interest of the Agent and the Lenders in and to any of the
Collateral against the claims and demands of all persons whomsoever.
7.12 Limitation on Guarantees. The Borrowers shall not create,
incur, assume or suffer to exist any Guarantees.
7.13 Limitation on Distributions. After the occurrence and during
the continuation of any Default, no Borrower shall make any payment on account
of, or set apart assets for, a sinking or other analogous fund for the purchase,
redemption, defeasance, retirement or other acquisition of any equity or
partnership interest of such Borrowers, whether now or hereafter outstanding, or
make any other distribution in respect of any of the foregoing or to any
shareholder or equity owner of such Borrower, either directly or indirectly,
whether in cash or property or in obligations of such Borrower or any of such
Borrower's consolidated Subsidiaries except distributions in cash or other
property to the extent required to satisfy the REIT Distribution Requirement;
provided, for the avoidance of doubt, that after the occurrence and during the
continuation of any Default, neither Holdings, AHM, nor CNI shall make any
distributions as set forth in this Section 7.13.
7.14 Servicer; Servicing Data File. The Borrowers shall provide to
the Agent on the fifth (5th) Business Day of each month a computer readable file
containing servicing information, including without limitation those fields
specified by the Agent from time to time, on a loan-by-loan basis and in the
aggregate, with respect to the Mortgage Loans serviced hereunder by the
Borrowers or any Servicer. The Borrowers shall not cause the Mortgage Loans to
be serviced by any servicer other than a servicer expressly approved in writing
by the Agent.
7.15 Required Filings. Each Borrower shall promptly provide the
Agent with copies of all documents which such Borrower or any Affiliate of such
Borrower is required to file with the Securities and Exchange Commission in
accordance with the 1934 Act or any rules thereunder.
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7.16 No Adverse Selection. No Borrower has selected the Collateral
in a manner so as to adversely affect the Lenders' interests.
7.17 Remittance of Prepayments. The Borrowers shall remit, with
sufficient detail to enable the Agent to appropriately identify the Mortgage
Loan to which any amount remitted applies, to the Agent on each Thursday (or the
next Business Day if such Thursday is not a Business Day) all principal
prepayments that the Borrowers have received during the previous week.
7.18 Agency Approvals. Should the Borrowers, for any reason, cease
to possess all such applicable Agency Approvals, or should notification to the
relevant Agency be required, the Borrowers shall so notify the Agent immediately
in writing. Notwithstanding the preceding sentence, each Borrower shall take all
necessary action to maintain all of its (and each Servicer's) applicable Agency
Approvals at all times during the term of this Loan Agreement and so long as any
Loan remains outstanding.
7.19 Takeout Commitments. The Borrowers shall promptly deliver to
the Agent a Takeout Assignment for each Takeout Commitment relating to any
Mortgage Loan.
7.20 MERS Designated Mortgage Loans. With respect to each MERS
Designated Mortgage Loan, the Borrower shall not identify, or permit to be
identified, any party in the field "interim funder" or "warehouse lender
associate member" on the MERS(R) System without the express written consent of
the Agent.
7.21 Title Insurance Policies. The applicable Borrower shall
promptly (but in any event not later than ten (10) days following the date of
origination of each Mortgage Loan) deliver the original attorney's opinion of
title and abstract of title or the original mortgagee title insurance policy, or
if the original mortgagee title insurance policy has not been issued, the
irrevocable commitment to issue the same with respect to each Mortgage Loan
(each, a "Title Insurance Policy") to AHM Investment to be held for the benefit
of the Agent on behalf of the Lenders at the office of AHM Investment located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
7.22 AHM Merger Sub, Inc. At all times prior to the effectiveness of
the merger of Holdings with and into AHM Merger Sub, Inc. ("Merger Sub") with
Holdings as the surviving corporation, no Borrower (i) shall convey, sell,
lease, assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to Merger Sub or
(ii) make any distribution to Merger Sub, either directly or indirectly, whether
in cash or property or in obligations of such Borrower or any of such Borrower's
consolidated Subsidiaries.
7.23 Reorganization. The Reorganization shall be consummated, on or
before the date which is ten (10) Business Days from the date hereof and the
Borrowers shall deliver to the Agent evidence satisfactory to it to that effect,
including without limitation an opinion of outside counsel to the Borrowers with
respect to the effectiveness of the Reorganization;
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Section 8. Events of Default. Each of the following events shall
constitute an event of default (an "Event of Default") hereunder:
(a) the Borrowers shall default in the payment of any principal of
or interest on any Loan when due (whether at stated maturity, upon acceleration
or at mandatory prepayment); or
(b) the Borrowers shall default in the payment of any other amount
payable by it hereunder or under any other Loan Document after notification by
the Agent of such default, and such default shall have continued unremedied for
five (5) Business Days; or
(c) any representation, warranty or certification made or deemed
made herein or in any other Loan Document by any Borrower or any certificate
furnished to the Agent pursuant to the provisions hereof or thereof shall prove
to have been false or misleading in any material respect as of the time made or
furnished (other than the representations and warranties set forth in Schedule
1, which shall be considered solely for the purpose of determining the
Collateral Value of the Mortgage Loans; unless (i) such Borrower shall have made
any such representations and warranties with knowledge that they were materially
false or misleading at the time made or (ii) any such representations and
warranties have been determined by the Agent in its sole discretion to be
materially false or misleading on a regular basis); or
(d) any Borrower shall fail to comply with the requirements of
Section 7.03(a), Section 7.04, Section 7.05, Section 7.06, or Sections 7.09
through 7.22 hereof; or any Borrower shall otherwise fail to comply with the
requirements of Section 7.03 hereof and such default shall continue unremedied
for a period of five (5) Business Days; or any Borrower shall fail to observe or
perform any other covenant or agreement contained in this Loan Agreement or any
other Loan Document and such failure to observe or perform shall continue
unremedied for a period of seven (7) Business Days; or
(e) a final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate shall be rendered against any Borrower or any of
their Affiliates by one or more courts, administrative tribunals or other bodies
having jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay of
execution thereof shall not be procured, within thirty (30) days from the date
of entry thereof, and any Borrower or any such Affiliate shall not, within said
period of thirty (30) days, or such longer period during which execution of the
same shall have been stayed or bonded, appeal therefrom and cause the execution
thereof to be stayed during such appeal; or
(f) any Borrower shall admit in writing its inability to pay its
debts as such debts become due; or
(g) any Borrower or any of their Affiliates shall (i) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee, examiner or liquidator or the like of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit
of its creditors, (iii) commence a voluntary case under the Bankruptcy Code,
(iv) file a petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition
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or readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code or (vi) take any corporate or other
action for the purpose of effecting any of the foregoing; or
(h) a proceeding or case shall be commenced, without the application
or consent of any Borrower or any of their Affiliates, in any court of competent
jurisdiction, seeking (i) its reorganization, liquidation, dissolution,
arrangement or winding-up, or the composition or readjustment of its debts, (ii)
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, examiner, liquidator or the like of any Borrower or any such Affiliate
or of all or any substantial part of its property, or (iii) similar relief in
respect of any Borrower or any such Affiliate under any law relating to
bankruptcy, insolvency, reorganization, liquidation, dissolution, arrangement or
winding-up, or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of thirty (30) or more days; or an order for relief against
any Borrower or any such Affiliate shall be entered in an involuntary case under
the Bankruptcy Code; or
(i) the Custodial Agreement or any Loan Document shall for whatever
reason be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Borrower; or
(j) the Reorganization shall not have been consummated, on or before
the date which is ten (10) Business Days from the date hereof and/or the Agent
shall not have received evidence satisfactory to it to that effect, including
without limitation an opinion of outside counsel to the Borrowers with respect
to the effectiveness of the Reorganization;
(k) any Borrower shall grant, or suffer to exist, any Lien on any
Collateral except the Liens contemplated hereby; or the Liens contemplated
hereby shall cease to be first priority perfected Liens on the Collateral in
favor of the Agent or shall be Liens in favor of any Person other than the
Agent; or
(l) any Borrower or any of its Affiliates shall be in default under
any note, indenture, loan agreement, guaranty, swap agreement or any other
contract to which it is a party, including, without limitation, any MS
Indebtedness, which default (i) involves the failure to pay a matured
obligation, or (ii) permits the acceleration of the maturity of obligations by
any other party to or beneficiary of such note, indenture, loan agreement,
guaranty, swap agreement or other contract; or
(m) any materially adverse change in the Property, business,
financial condition or prospects of any Borrower or any of its Affiliates shall
occur, in each case as determined by the Agent in its sole discretion, or any
other condition shall exist which, in the Agent's sole discretion, constitutes a
material impairment of the such Borrower's ability to perform its obligations
under this Loan Agreement, any Note or any other Loan Document;
(n) MS & Co.'s corporate bond rating has been lowered or downgraded
to a rating below A- by S&P or A3 by ▇▇▇▇▇'▇ and the Borrowers shall have failed
to repay all
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amounts owing to the Lenders under this Agreement, the Notes and the other Loan
Documents within ninety (90) days following such downgrade; or
(o) the discovery by the Agent of a condition or event which existed
at or prior to the execution hereof and which the Agent, in its sole discretion,
determines materially and adversely affects: (i) the condition (financial or
otherwise) of any Borrower, any of its Subsidiaries or Affiliates; or (ii) the
ability of either any Borrower or the Agent or any Lender to fulfill its
respective obligations under this Loan Agreement.
(p) Tangible Net Worth of AHM Investment shall not at any time be
less than the sum of $200,000,000 plus 50% of net proceeds from the issuance of
any equity securities of AHM Investment or any of AHM Investment's consolidated
subsidiaries.
(q) The ratio of Total Indebtedness to Tangible Net Worth shall at
any time be greater than 12.00:1.00.
(r) Net Income for any period of two consecutive fiscal quarters
(each such period, a "Test Period"), before income taxes for such Test Period
and distributions made during such Test Period, shall be less than $1.00.
(s) The Electronic Tracking Agreement shall for whatever reason be
terminated or cease to be in full force and effect and the Agent shall not have
received an Assignment of Mortgage with respect to each MERS Designated Mortgage
Loan identified by the Agent, in blank, in recordable form, but unrecorded.
(t) The failure of any REIT Borrower to at any time continue to be
(i) qualified as a real estate investment trust as defined in Section 856 of the
Code and (ii) entitled to a dividend paid deduction under Section 857 of the
Code with respect to dividends paid by it with respect to each taxable year for
which it claims a deduction on its Form 1120 - REIT filed with the United States
Internal Revenue Service for such year, or the entering into by any REIT
Borrower of any material "prohibited transactions" as defined in Sections 857(b)
and 856(c) of the Code.
Section 9. Remedies Upon Default.
(a) An Event of Default shall be deemed to be continuing unless
expressly waived by the Agent in writing. Upon the occurrence of one or more
Events of Default hereunder, the Lenders' obligation to make additional Loans to
the Borrowers shall automatically terminate without further action by any
Person. Upon the occurrence of one or more Events of Default other than those
referred to in Section 8(g) or (h), the Agent may immediately declare the
principal amount of the Loans then outstanding under the Note to be immediately
due and payable, together with all interest thereon and fees and expenses
accruing under this Loan Agreement. Upon the occurrence of an Event of Default
referred to in Sections 8(g) or (h), such amounts shall immediately and
automatically become due and payable without any further action by any Person.
Upon such declaration or such automatic acceleration, the balance then
outstanding on the Note shall become immediately due and payable, without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by the Borrowers.
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(b) Upon the occurrence of one or more Events of Default, the Agent
shall have the right to obtain physical possession of the Servicing Records and
all other files of the Borrowers relating to the Collateral and all documents
relating to the Collateral which are then or may thereafter come in to the
possession of the Borrowers or any third party acting for the Borrowers and the
Borrowers shall deliver to the Agent such assignments as the Agent shall
request. The Agent shall be entitled to specific performance of all agreements
of the Borrowers contained in this Loan Agreement.
Section 10. The Agent.
(a) Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the Agent of such Lender under this Loan Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes the Agent, in
such capacity, to take such action on its behalf under the provisions of this
Loan Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of this
Loan Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Loan Agreement, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Loan Document or otherwise exist against the Agent.
(b) Delegation of Duties. The Agent may execute any of its duties
under this Loan Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
(c) Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Loan Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by any Borrower or any
officer thereof contained in this Loan Agreement or any other Loan Document or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Agent under or in connection with, this Loan
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Loan Agreement or any other
Loan Document or for any failure of any Borrower to perform its obligations
hereunder or thereunder. The Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Loan Agreement or any other
Loan Document, or to inspect the properties, books or records of the Borrowers.
(d) Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other
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document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Loan Agreement or any other Loan Document unless it shall first receive
such advice or concurrence of the Lenders as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Loan Agreement and
the other Loan Documents in accordance with a request of the Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders and all future holders of the Mortgage Loans or any
Interests therein.
(e) Notices. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or a Borrower referring to this Loan
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Lenders; provided that unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of
the Lenders.
(f) Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Commitments in effect on the date on which indemnification is sought,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Loan Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of the Loans and all other
amounts payable hereunder.
(g) Agent in Its Individual Capacity. The Agent and its Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Borrowers as though the Agent were not the Agent hereunder and
under the other Loan Documents. With respect to the made by it, the Agent shall
have the same rights and powers under this Loan Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not the
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
individual capacity.
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Section 11. Miscellaneous.
11.01 Waiver. No failure on the part of the Agent to exercise and no
delay in exercising, and no course of dealing with respect to, any right, power
or privilege under any Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege under any
Loan Document preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.
11.02 Notices. Except as otherwise expressly permitted by this Loan
Agreement, all notices, requests and other communications provided for herein
and under the Custodial Agreement (including without limitation any
modifications of, or waivers, requests or consents under, this Loan Agreement)
shall be given or made in writing (including without limitation by telex or
telecopy) delivered to the intended recipient at the "Address for Notices"
specified below its name on the signature pages hereof or thereof); or, as to
any party, at such other address as shall be designated by such party in a
written notice to each other party provided, that a copy of all notices given
under Section 7.01 shall simultaneously be delivered to Credit Department,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Except as otherwise provided in this Loan Agreement and except
for notices given under Section 2 (which shall be effective only on receipt),
all such communications shall be deemed to have been duly given when transmitted
by telex or telecopy or personally delivered or, in the case of a mailed notice,
upon receipt, in each case given or addressed as aforesaid.
11.03 Indemnification and Expenses.
(a) Each Borrower agrees to hold the Agent and each Lender, and
their respective Affiliates and officers, directors, employees, agents and
advisors (each an "Indemnified Party") harmless from and indemnify any
Indemnified Party against all liabilities, losses, damages, judgments, costs and
expenses of any kind which may be imposed on, incurred by or asserted against
such Indemnified Party (collectively, the "Costs") relating to or arising out of
this Loan Agreement, the Note, any other Loan Document or any transaction
contemplated hereby or thereby, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Loan Agreement, the Note,
any other Loan Document or any transaction contemplated hereby or thereby, that,
in each case, results from anything other than any Indemnified Party's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, each Borrower agrees to hold any Indemnified Party harmless from and
indemnify such Indemnified Party against all Costs with respect to all Mortgage
Loans relating to or arising out of any violation or alleged violation of any
environmental law, rule or regulation or any consumer credit laws, including
without limitation laws with respect to unfair or deceptive lending practices
and predatory lending practices, the Truth in Lending Act and/or the Real Estate
Settlement Procedures Act, that, in each case, results from anything other than
such Indemnified Party's gross negligence or willful misconduct. In any suit,
proceeding or action brought by an Indemnified Party in connection with any
Mortgage Loan for any sum owing thereunder, or to enforce any provisions of any
Mortgage Loan, each Borrower will save, indemnify and hold such Indemnified
Party harmless from and against all expense, loss or damage suffered by reason
of any defense, set-off, counterclaim, recoupment or reduction or
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liability whatsoever of the account debtor or obligor thereunder, arising out of
a breach by any Borrower of any obligation thereunder or arising out of any
other agreement, indebtedness or liability at any time owing to or in favor of
such account debtor or obligor or its successors from any Borrower. Each
Borrower also agrees to reimburse an Indemnified Party as and when billed by
such Indemnified Party for all such Indemnified Party's costs and expenses
incurred in connection with the enforcement or the preservation of such
Indemnified Party's rights under this Loan Agreement, the Note, any other Loan
Document or any transaction contemplated hereby or thereby, including without
limitation the reasonable fees and disbursements of its counsel Each Borrower
hereby acknowledges that, notwithstanding the fact that the Note is secured by
the Collateral, the obligation of the Borrowers under the Note is a recourse
obligation of the Borrowers.
(b) The Borrowers, jointly and severally, agree to pay as and when
billed by the Agent all of the out-of-pocket costs and expenses incurred by the
Agent and the Lenders in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Loan
Agreement, the Note, any other Loan Document or any other documents prepared in
connection herewith or therewith. The Borrowers, jointly and severally, agree to
pay as and when billed by the Agent all of the out-of-pocket costs and expenses
incurred in connection with the consummation and administration of the
transactions contemplated hereby and thereby including without limitation (i)
all the reasonable fees, disbursements and expenses of counsel to the Agent and
the Lenders and (ii) all the due diligence, inspection, testing and review costs
and expenses incurred by the Agent and the Lenders with respect to Collateral
under this Loan Agreement, including, but not limited to, those costs and
expenses incurred by the Agent and the Lenders pursuant to Sections 11.03(a),
11.14 and 11.15 hereof; provided, however, that in no event shall the Borrowers
be required to reimburse the Lender for due diligence costs and expenses
pursuant to Section 11.15 in excess of $25,000 for any calendar year.
11.04 Amendments. Except as otherwise expressly provided in this
Loan Agreement, any provision of this Loan Agreement may be modified or
supplemented only by an instrument in writing signed by the Borrowers, the
Lenders and the Agent and any provision of this Loan Agreement may be waived by
the Agent.
11.05 Assignments and Participations. (a) Any Lender may assign to
one or more Persons all or a portion of its rights and obligations under this
Loan Agreement; provided, however, that the parties to each such assignment
shall execute and deliver an Assignment and Acceptance substantially in the form
of Exhibit K, with appropriate completions (an "Assignment and Acceptance",
along with replacement Notes executed and delivered by the Borrowers.
(b) Upon such execution and delivery, from and after the effective
date specified in such Assignment and Acceptance, (i) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder
have been assigned to it pursuant to such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder, and (ii) the Lender assignor
thereunder shall, to the extent that any rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Loan Agreement.
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(c) Any Lender may sell participations to one or more Persons in or
to all or a portion of its rights and obligations under this Loan Agreement;
provided, however, that (i) such Lender's obligations under this Loan Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of any such Note for all purposes of this Loan
Agreement, and (iv) the Borrowers shall continue to deal solely and directly
with the Agent in connection with such Lender's rights and obligations under and
in respect of this Loan Agreement and the other Loan Documents. Notwithstanding
the terms of Section 3.03, each participant of a Lender shall be entitled to the
additional compensation and other rights and protections afforded to Lenders
under Section 3.03 to the same extent as such Lender would have been entitled to
receive them with respect to the participation sold to such participant.
(d) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.05, disclose to the assignee or participant or proposed assignee or
participant, as the case may be, any information relating to any Borrower or any
of its Subsidiaries or to any aspect of the Loans that has been furnished to
such Lender by or on behalf of such Borrower or any of its Subsidiaries.
(e) The Agent and each Lender may at any time create a security
interest in all or any portion of its rights under this Loan Agreement
(including, without limitation, the Loans owing to it and the Note held by it)
in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
(f) Notwithstanding the foregoing, upon the occurrence and during
the continuance of an Event of Default, any Lender may assign all or any portion
of its rights and obligations hereunder to any Person, provided that upon the
effective date of such assignment such Person shall become a party hereto and a
Lender hereunder and shall be (A) entitled to all the rights, benefits and
privileges accorded Lender under the Loan Documents, and (B) subject to all the
duties and obligations of a Lender under the Loan Documents.
11.06 Successors and Assigns. This Loan Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.07 Survival. The obligations of the Borrowers under Sections 3.03
and 11.03 hereof shall survive the repayment of the Loans and the termination of
this Loan Agreement. In addition, each representation and warranty made or
deemed to be made by a request for a borrowing, herein or pursuant hereto shall
survive the making of such representation and warranty, and the Lenders shall
not be deemed to have waived, by reason of making any Loan, any Default that may
arise because any such representation or warranty shall have proved to be false
or misleading, notwithstanding that the Lenders may have had notice or knowledge
or reason to believe that such representation or warranty was false or
misleading at the time such Loan was made.
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11.08 Captions. The table of contents and captions and section
headings appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this Loan
Agreement.
11.09 Counterparts. This Loan Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Loan Agreement
by signing any such counterpart.
11.10 Loan Agreement Constitutes Security Agreement; Governing Law.
This Loan Agreement shall be governed by New York law without reference to
choice of law doctrine, and shall constitute a security agreement within the
meaning of the Uniform Commercial Code.
11.11 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS LOAN AGREEMENT, THE NOTE AND THE OTHER LOAN
DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE AGENT
SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
11.12 WAIVER OF JURY TRIAL . EACH OF THE BORROWER, THE AGENT AND THE
LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS LOAN
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AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.
11.13 Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Loan Agreement, the Note and the other Loan Documents;
(b) neither the Agent nor any Lender has a fiduciary relationship to
any Borrower, and the relationship between each Borrower and each Lender is
solely that of debtor and creditor; and
(c) no joint venture exists between any Lender and any Borrower.
11.14 Hypothecation or Pledge of Loans. Each Lender shall have free
and unrestricted use of all Collateral and nothing in this Loan Agreement shall
preclude the Lenders from engaging in repurchase transactions with the
Collateral or otherwise pledging, repledging, transferring, hypothecating, or
rehypothecating the Collateral, on terms, and subject to conditions, within the
Lender's absolute discretion. Nothing contained in this Loan Agreement shall
obligate the Agent or the Lenders to segregate any Collateral delivered to the
Agent or the Lenders by the Borrowers. Notwithstanding the foregoing, no such
pledge, repledge, transfer, hypothecation or rehypothecation shall impair the
Borrower's rights with respect to the Collateral hereunder.
11.15 Servicing.
(a) Each Borrower covenant to maintain or cause the servicing of the
Mortgage Loans to be maintained in conformity with accepted and prudent
servicing practices in the industry for the same type of mortgage loans as the
Mortgage Loans and in a manner at least equal in quality to the servicing the
Borrowers provide for mortgage loans which it owns. In the event that the
preceding language is interpreted as constituting one or more servicing
contracts, each such servicing contract shall terminate automatically upon the
earliest of (i) an Event of Default, (ii) the date on which all the Secured
Obligations have been paid in full or (iii) the transfer of servicing approved
by the Borrowers.
(b) If the Mortgage Loans are serviced by a Borrower, (i) such
Borrower agrees that the Agent is the collateral assignee of all servicing
records, including but not limited to any and all servicing agreements, files,
documents, records, data bases, computer files, copies of computer files, proof
of insurance coverage, insurance policies, appraisals, other closing
documentation, payment history records, and any other records relating to or
evidencing the servicing of Mortgage Loans (the "Servicing Records"), and (ii)
such Borrower grants the Agent, for the ratable benefit of the Lenders, a
security interest in all servicing fees and rights relating to the Mortgage
Loans and all Servicing Records to secure the obligation of each Borrower or its
designee to service in conformity with this Section and any other obligation of
the Borrowers to the Lenders. The Borrowers covenant to safeguard such Servicing
Records and to deliver them promptly to the Agent or its designee (including the
Custodian) at the Agent's request.
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(c) If the Mortgage Loans are serviced by a third party servicer
(such third party servicer, the "Servicer"), the Borrowers (i) shall provide a
copy of the servicing agreement to the Agent, which shall be in form and
substance acceptable to the Agent (the "Servicing Agreement"), (ii) shall
provide a Servicer Notice to the Servicer substantially in the form of Exhibit H
hereto (a "Servicer Notice") and shall cause the Servicer to acknowledge and
agree to the same and (iii) hereby irrevocably assigns to the Lender and the
Lender's successors and assigns all right, title and interest of the Borrowers
in, to and under, and the benefits of, any Servicing Agreement with respect to
the Mortgage Loans. Any successor or assignee of a Servicer shall be approved in
writing by the Agent and shall acknowledge and agree to a Servicer Notice and
Agreement prior to such successor's assumption of servicing obligations with
respect to the Mortgage Loans.
(d) If the Servicer of the Mortgage Loans is a Borrower or the
Servicer is an Affiliate of a Borrower, such Borrower shall provide to the Agent
a letter from the Borrower or the Servicer, as the case may be, to the effect
that upon the occurrence of an Event of Default, the Agent may terminate any
Servicing Agreement and in any event transfer servicing to the Agent's designee,
at no cost or expense to the Agent, it being agreed that the Borrowers will pay
any and all fees required to terminate the Servicing Agreement and to effectuate
the transfer of servicing to the designee of the Agent.
(e) After the Funding Date, until the pledge of any Mortgage Loan is
relinquished by the Custodian, the Borrowers will have no right to modify or
alter the terms of such Mortgage Loan and the Borrowers will have no obligation
or right to repossess such Mortgage Loan or substitute another Mortgage Loan,
except as provided in the Custodial Agreement.
(f) In the event a Borrower or its Affiliate is servicing the
Mortgage Loans, such Borrower shall permit the Agent from time to time to
inspect such Borrower's or its Affiliate's servicing facilities, as the case may
be, for the purpose of satisfying the Agent that such Borrower or its Affiliate,
as the case may be, has the ability to service the Mortgage Loans as provided in
this Loan Agreement.
11.16 Periodic Due Diligence Review. Each Borrower acknowledges that
the Agent has the right to perform continuing due diligence reviews with respect
to the Mortgage Loans and the manner in which they were originated, for purposes
of verifying compliance with the representations, warranties and specifications
made hereunder, or otherwise, each Borrower agrees that, unless a Default has
occurred (in which case no notice is required) upon reasonable (but no less than
one (1) Business Day's) prior notice to the Borrowers, the Agent or its
authorized representatives will be permitted during normal business hours to
examine, inspect, and make copies and extracts of, the Mortgage Files and any
and all documents, records, agreements, instruments or information relating to
such Mortgage Loans in the possession or under the control of each Borrower
and/or the Custodian. The Borrowers also shall make available to the Agent a
knowledgeable financial or accounting officer for the purpose of answering
questions respecting the Mortgage Files and the Mortgage Loans. Without limiting
the generality of the foregoing, each Borrower acknowledges that the Agent may
make Loans to the Borrowers based solely upon the information provided by the
Borrowers to the Agent in the Mortgage Loan Data File and the representations,
warranties and covenants contained herein,
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and that the Agent, at its option, has the right at any time to conduct a
partial or complete due diligence review on some or all of the Mortgage Loans
securing such Loan, including without limitation ordering new credit reports and
new appraisals on the related Mortgaged Properties and otherwise re-generating
the information used to originate such Mortgage Loan. The Agent may underwrite
such Mortgage Loans itself or engage a mutually agreed upon third party
underwriter to perform such underwriting. Each Borrower agrees to cooperate with
the Agent and any third party underwriter in connection with such underwriting,
including, but not limited to, providing the Agent and any third party
underwriter with access to any and all documents, records, agreements,
instruments or information relating to such Mortgage Loans in the possession, or
under the control, of the Borrowers. Each Borrower further agrees that the
Borrowers shall reimburse the Agent for any and all out-of-pocket costs and
expenses incurred by the Agent in connection with the Agent's activities
pursuant to this Section 11.15, subject to the proviso of Section 11.03(b).
11.17 Set-Off. In addition to any rights and remedies of the Lenders
provided by this Loan Agreement and by law, each Lender shall have the right,
without prior notice to the Borrowers, any such notice being expressly waived by
the Borrowers to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrowers hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Lender or any
Affiliate thereof to or for the credit or the account of the Borrowers. Each
Lender agrees promptly to notify the Borrowers after any such set-off and
application made by such Lender; provided that the failure to give such notice
shall not affect the validity of such set-off and application.
11.18 Joint and Several Liability. Each Borrower hereby acknowledges
and agrees that such Borrower shall be jointly and severally liable to the
Lenders to the maximum extent permitted by applicable law for all
representations, warranties, covenants, obligations and indemnities of the
Borrowers hereunder.
11.19 Intent. The parties recognize (i) that each Loan is a
"securities contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended, and (ii) each payment is a "margin payment"
and/or a "settlement payment", as such terms are defined herein.
11.20 Treatment of Certain Information. Notwithstanding anything to
the contrary contained herein or in any other Loan Document, all Persons may
disclose to any and all Persons, without limitation of any kind, the federal
income tax treatment of the Loans or any of the transactions contemplated by
this Agreement or any other Loan Document (collectively, the "Transactions"),
any fact relevant to understanding the federal tax treatment of the Transactions
and all materials of any kind (including opinions or other tax analyses)
relating to such federal income tax treatment.
11.21 Replacement by Repurchase Agreement. The Borrowers hereby
acknowledge and agree that this Loan Agreement may at any time and without any
further cost
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to the Borrowers, in the sole discretion of the Agent, be replaced by a
repurchase facility with substantially similar terms as those contained in this
Loan Agreement. The Borrowers hereby agree to take such action and execute such
documents and instruments as is necessary to effectuate such conversion.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed and delivered as of the day and year first above
written.
BORROWER
AMERICAN HOME MORTGAGE CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
AMERICAN HOME MORTGAGE INVESTMENT CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
AMERICAN HOME MORTGAGE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
AMERICAN HOME MORTGAGE ACCEPTANCE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
COLUMBIA NATIONAL, INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
AGENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
1221 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
LENDERS
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
Address for Notices:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
1221 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇