Exhibit 10.10
FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
by and among
PULTE MORTGAGE LLC,
THE LENDERS PARTY HERETO,
and
BANK ONE, NA,
AS ADMINISTRATIVE AGENT
And
BANC ONE CAPITAL MARKETS, INC.
AS LEAD ARRANGER AND SOLE BOOK RUNNER
And
LASALLE BANK NATIONAL ASSOCIATION,
AS COLLATERAL AGENT
dated as of March 31, 2003
Exhibit 10.10
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................... 1
ARTICLE II THE CREDITS.............................................................................. 33
2.1 Commitment, Sublimits and Types of Advances.......................................... 33
2.2 Primary Advances. ................................................................... 34
2.3 Buy Down Loans. ..................................................................... 34
2.4 Swingline Advances................................................................... 35
2.5 Bid Loans............................................................................ 35
2.6 Reallocation Upon Default. ......................................................... 36
2.7 Fees. .............................................................................. 36
2.8 Method of Selecting Types and Interest Periods for New Advances. ................... 37
2.9 Conversion and Continuation of Outstanding Advances. ............................... 38
2.10 Reductions to Aggregate Commitment. ................................................ 39
2.11 Principal Payments................................................................... 40
2.12 Changes in Interest Rate, etc. ..................................................... 41
2.13 Rates Applicable After Default. .................................................... 42
2.14 Method of Payment. ................................................................. 42
2.15 Noteless Agreement; Evidence of Indebtedness......................................... 42
2.16 Telephonic Notices. ................................................................ 43
2.17 Interest Payment Dates; Interest and Fee Basis. .................................... 43
2.18 Notification by the Agent. ......................................................... 43
2.19 Lending Installations. ............................................................. 44
2.20 Non-Receipt of Funds by the Agent. ................................................. 44
ARTICLE III CHANGE IN CIRCUMSTANCES................................................................. 44
3.1 Yield Protection. .................................................................. 44
3.2 Changes in Capital Adequacy Regulations. ........................................... 45
3.3 Availability of Types of Advances. ................................................. 45
3.4 Funding Indemnification. ........................................................... 46
3.5 Taxes................................................................................ 46
3.6 Lender Statements; Survival of Indemnity............................................. 48
ARTICLE IV CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION.......................................... 49
4.1 Effectiveness. ..................................................................... 49
4.2 Each Advance. ...................................................................... 50
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................ 50
5.1 Existence and Standing. ............................................................ 50
5.2 Authorization and Validity. ........................................................ 51
5.3 No Conflict; Government Consent. ................................................... 51
5.4 Financial Statements. .............................................................. 51
5.5 Material Adverse Change. ........................................................... 51
5.6 Taxes. ............................................................................. 52
5.7 Litigation and Contingent Obligations. ............................................. 52
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5.8 Subsidiaries. ...................................................................... 52
5.9 ERISA. ............................................................................. 52
5.10 Accuracy of Information. ........................................................... 52
5.11 Regulation U. ...................................................................... 53
5.12 Material Agreements. ............................................................... 53
5.13 Compliance With Laws. .............................................................. 53
5.14 Ownership of Properties. ........................................................... 53
5.15 Plan Assets; Prohibited Transactions. .............................................. 53
5.16 Investment Company Act. ............................................................ 53
5.17 Public Utility Holding Company Act. ................................................ 53
5.18 GNMA, FHA, VA, FNMA, and FHLMC Eligibility. ........................................ 53
5.19 Approved Investor Commitments. ..................................................... 54
5.20 Accuracy of Representations and Warranties. ........................................ 54
5.21 No Defaults. ....................................................................... 54
ARTICLE VI COVENANTS................................................................................ 54
6.1 Financial Reporting. ............................................................... 54
6.2 Use of Proceeds. ................................................................... 56
6.3 Notice of Default. ................................................................. 57
6.4 Conduct of Business. ............................................................... 57
6.5 Taxes. ............................................................................. 57
6.6 Insurance. ......................................................................... 57
6.7 Compliance with Laws. .............................................................. 57
6.8 Maintenance of Properties. ......................................................... 58
6.9 Inspection. ........................................................................ 58
6.10 Dividends. ......................................................................... 58
6.11 Intentionally Omitted................................................................ 58
6.12 Merge. ............................................................................. 58
6.13 Sale of Assets. .................................................................... 58
6.14 Investments and Acquisitions. ...................................................... 59
6.15 Liens. ............................................................................. 59
6.16 Affiliates. ........................................................................ 61
6.17 Financial Covenants.................................................................. 61
6.18 Compliance with Security Agreement. ................................................ 62
6.19 Recourse Servicing. ................................................................ 62
6.20 Federal Agency Approvals. .......................................................... 62
6.21 Approved Investor Commitments. ..................................................... 62
6.22 Negative Pledges. .................................................................. 63
6.23 Keeping of Records and Books of Account. ........................................... 63
6.24 Hedging Program. ................................................................... 63
6.25 Agreements to Pledge Mortgage Loans. ............................................... 63
ARTICLE VII DEFAULTS................................................................................ 63
ARTICLE VIII COLLATERAL, ACCELERATION AND OTHER REMEDIES............................................ 66
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8.1 Security and Collateral Agency Agreement. .......................................... 66
8.2 AP Mortgages. ...................................................................... 66
8.3 Release of Collateral. ............................................................. 66
8.4 Cash and Collaeral Account; Settlement Account; Reconciliation Process; and
Funding Account...................................................................... 66
8.5 Termination. ....................................................................... 68
8.6 Acceleration. ...................................................................... 68
8.7 Other Remedies....................................................................... 68
8.8 Application of Proceeds. ........................................................... 69
8.9 Preservation of Rights. ............................................................. 70
8.10 Actions Under Acknowledgement Agreements. .......................................... 71
8.11 Transition from Prior Facilities. .................................................. 71
ARTICLE IX AMENDMENTS; WAIVERS; GENERAL PROVISIONS.................................................. 71
9.1 Amendments and Waivers. ............................................................ 71
9.2 Survival of Representations. ....................................................... 72
9.3 Governmental Regulation. ........................................................... 72
9.4 Headings. .......................................................................... 72
9.5 Entire Agreement. .................................................................. 72
9.6 Several Obligations; Benefits of this Agreement. .................................... 72
9.7 Expenses; Indemnification. ......................................................... 73
9.8 Nonliability of Lenders. ........................................................... 74
9.9 Severability of Provisions. ........................................................ 74
9.10 Numbers of Documents. .............................................................. 74
9.11 Accounting. ........................................................................ 74
9.12 Confidentiality. ................................................................... 74
9.13 Nonreliance. ....................................................................... 75
9.14 Disclosure. ........................................................................ 75
ARTICLE X THE AGENT AND THE COLLATERAL AGENT........................................................ 75
10.1 Appointment; Nature of Relationship. ............................................... 75
10.2 Powers. ............................................................................ 75
10.3 General Immunity. .................................................................. 75
10.4 No Responsibility for Loans, Recitals, etc. ........................................ 76
10.5 Action on Instructions of Lenders. ................................................. 76
10.6 Employment of Agents and Counsel. .................................................. 76
10.7 Reliance on Documents; Counsel. .................................................... 76
10.8 Agent's Reimbursement and Indemnification. ......................................... 76
10.9 Notice of Default. ................................................................. 77
10.10 Rights as a Lender. ................................................................ 77
10.11 Lender Credit Decision. ............................................................ 77
10.12 Successor Agent. ................................................................... 78
10.13 Delegation to Affiliates. .......................................................... 78
10.14 Collateral Releases. ............................................................... 78
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ARTICLE XI SETOFF; RATABLE PAYMENTS................................................................. 79
11.1 Setoff. ............................................................................ 79
11.2 Ratable Payments. .................................................................. 79
11.3 Custodial Accounts. ................................................................ 79
ARTICLE XII ASSIGNMENTS; PARTICIPATIONS; COMMITMENT INCREASES....................................... 79
12.1 Successors and Assigns. ............................................................ 79
12.2 Participations....................................................................... 80
12.3 Assignments.......................................................................... 80
12.4 INTENTIONALLY OMITTED................................................................ 81
12.5 Dissemination of Information. ...................................................... 81
12.6 Tax Treatment. ..................................................................... 82
ARTICLE XIII NOTICES................................................................................ 82
13.1 Notices. ........................................................................... 82
13.2 Change of Address. ................................................................. 82
ARTICLE XIV COUNTERPARTS............................................................................ 82
ARTICLE XV CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL............................. 82
15.1 CHOICE OF LAW. ..................................................................... 82
15.2 CONSENT TO JURISDICTION. ........................................................... 83
15.3 WAIVER OF JURY TRIAL. .............................................................. 84
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FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT dated as of
March 31, 2003 is among PULTE MORTGAGE LLC, a Delaware limited liability company
(the "Borrower"), the banks identified on the signature pages hereof (together
with any successors and assigns thereof, hereinafter referred to individually as
a "Lender" and collectively as the "Lenders"), and BANK ONE, NA, a national
banking association, as administrative agent for the Lenders.
RECITALS
Borrower, Bank One, NA (individually and as administrative agent) and
other lenders are party to that certain Third Amended And Restated Credit
Agreement dated as of March 31, 2000 (as amended, the "Prior Agreement").
The Borrower has requested that certain changes be made to the Prior
Agreement and the Agent and the Lenders have agreed to do so.
The revolving credit facility made available to the Borrower pursuant
to this Agreement shall be used for residential mortgage loan origination and
acquisition and for other general corporate purposes. In consideration of the
foregoing and for other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acknowledgement Agreements" means, as of any date, acknowledgement
agreements executed by the Collateral Agent, the Borrower and FNMA or FHLMC
recognizing and consenting to any security interest subsequently created, at the
Borrower's sole election, in the Pledged Servicing.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Additional Required Mortgage Documents" means the instruments and
documents described in Schedule "B" to the Security Agreement.
"Advance" means a borrowing hereunder (or conversion or continuation
thereof) consisting of the aggregate amount of the several Loans made on the
same Borrowing Date (or date of conversion or continuation) by some or all of
the Lenders to the Borrower of the same Type and, in the case of Eurodollar
Advances, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of the controlled Person, whether through ownership of
stock, by contract or otherwise.
"Affiliated Special Ventures" means entities which are Affiliates of
the Borrower engaged in the mortgage business and in which both the Borrower and
another Person have made equity Investments (e.g. a limited liability company
engaged in the mortgage banking business and owned in part by each of the
Borrower and an unrelated third party).
"Agent" means Bank One, NA, with its main office in Chicago, Illinois,
in its capacity as contractual representative of the Lenders pursuant to Article
X, and not in its individual capacity as a Lender, and any successor Agent
appointed pursuant to Article X.
"Aggregate Commitment" means, as of any date, the aggregate of the
Lenders' then-current Commitments under this Agreement, as reduced or increased
from time to time in accordance with Section 2.10 of this Agreement. The
Aggregate Commitment as of the date hereof is $175,000,000, as shown on Schedule
"1".
"Aggregate Servicing Value" means, as of any date, an amount equal to
(A) the sum of (1) the then-current Servicing Take-Out Value of all Eligible
Mortgage Servicing Rights set forth in the most recent Servicing Rights
Certificate, plus (2) the then-current amount of Eligible Servicing Sale
Receivables set forth in the most recent Servicing Rights Certificate, minus (B)
the sum of the following, without duplication (1) any applicable reductions from
the total amount of the Take-Out Value of Eligible Mortgage Servicing Rights and
Eligible Sale Receivables set forth in (A) above which result from any payment
made on account of any Eligible Servicing Rights which are sold or the receipt
of any Eligible Servicing Sale Receivable if the applicable sold Eligible
Mortgage Servicing Rights or Servicing Sale Receivables are removed from the
Borrowing Base in accordance with Paragraph 6(c) of the Security Agreement, (2)
any applicable reductions in the amount of Take-Out Value of Eligible Mortgage
Servicing Rights set forth in (A) above which are set forth in a Servicing
Transfer Report, and (3) any applicable reductions in the amount of Take-Out
Value of Eligible Mortgage Servicing Rights and Eligible Sale Receivables set
forth in (A) above which are set forth in a Reduced Servicing Notice, plus (C)
any applicable increases in the amount of Eligible Sale Receivables described in
(A) above which are set forth in a Servicing Transfer Report; provided, however,
if the Agent or the Collateral Agent at any time determines that the amount of
the Servicing Take-Out Value of all Eligible Mortgage Servicing Rights or the
amount of Eligible Servicing Sale Receivables is less than the amount set forth
in (A) above and such discrepancy has not already been accounted for pursuant to
(B) above (e.g. because the Agent or the Collateral Agent has determined that
certain Pledged Servicing or Pledged Servicing Sale Receivables no longer meet
the applicable eligibility criteria, then the Agent or Collateral Agent, as
applicable, shall notify the Borrower of
2
the amount by which the Servicing Take-Out Value of all Eligible Mortgage
Servicing Rights or the amount of Eligible Servicing Sale Receivables, as
applicable, should accordingly be reduced, and the Servicing Take-Out Value of
Eligible Mortgage Servicing Rights or the amount of Eligible Servicing Sale
Receivables, as applicable, shall be so reduced.
"Agreement" means this credit agreement, as it may be amended or
modified and in effect from time to time.
"Agreement Accounting Principles" means GAAP, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 5.4.
"Agreement to Pledge" means a written pledge substantially in the form
of Exhibit "E" to this Agreement executed by the Borrower and delivered by
facsimile, electronically or by another means acceptable to Agent and Borrower
to the Collateral Agent, specifically identifying all Mortgage Loans with
respect to which the Required Mortgage Documents are not being delivered on or
before the Pledge Date of such Mortgage Loan.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of
Federal Funds Effective Rate for such day plus 1/2% per annum.
"Alternate Base Rate Advance" means an Advance which bears interest at
the Alternate Base Rate.'
"Alternate Base Rate Loan" means a Loan which bears interest at the
Alternate Base Rate.
"AP Mortgage" means, on any date, any Mortgage Loan which has been
identified in an Agreement to Pledge and for which the Collateral Agent has not
received the Required Mortgage Documents for such Mortgage Loan by such date.
"Approved Investor" means, as of any time, any of the institutions
listed on Schedule "2" attached hereto and any other institution approved in
writing by the Agent (with prompt notice to the Lenders), such approval not to
be unreasonably withheld; provided that (i) the Agent shall give the Lenders
immediate notice of the approval of any institution not listed on Schedule "2",
and if any Lender objects to such approval within three (3) Business Days after
such notice then such institution shall cease to be an Approved Investor at the
election of the Required Lenders, and (ii) any such institutions listed on
Schedule "2" or previously approved by the Agent may be eliminated as an
Approved Investor (or as an Approved Investor of a specific type) by written
notice to the Borrower from the Agent, which elimination notice shall be given
only for reasonable cause and any commitments issued by any such
formerly-Approved Investor after such elimination shall not constitute Approved
Investor Commitments, but commitments of such formerly-Approved Investor
existing at the time of such elimination shall continue to be Approved Investor
Commitments.
"Approved Investor Commitment" means a commitment, issued by an
Approved Investor of the required type, to purchase Mortgage Loans, to exchange
Securities for Mortgage Loans or to purchase Securities.
3
"Approved MBS Custodian" is defined in Paragraph 7(b) of the Security
Agreement.
"Approved Recourse Servicing" means , as of any time, any of the
Recourse Servicing described on Exhibit M and any other Recourse Servicing
reasonably approved by the Agent; provided that (i) the Agent shall give the
Lenders immediate notice of the approval of any Recourse Servicing not listed on
Exhibit M, and if any Lender objects to such approval within three (3) Business
Days after such notice then such Recourse Servicing shall cease to be Approved
Recourse Servicing at the election of the Required Lenders, and (ii) any such
Recourse Servicing listed on Exhibit M or previously approved by the Agent may
be eliminated as Approved Recourse Servicing by written notice to the Borrower
from the Agent, in which case the Borrower shall not allow any Mortgage Loans
thereafter generated or acquired by the Borrower to be subject to any such
formerly-Approved Recourse Servicing.
"Approved Servicing Purchaser" means any of the entities listed on
Exhibit L hereto and any other Servicing Purchaser approved by the Required
Lenders.
"Approved Servicing Sale Agreement" means any of the sale agreements
listed on Exhibit L hereto and any other agreements approved by the Agent for
the sale of Pledged Servicing from the Borrower to an Approved Servicing
Purchaser.
"ARM Mortgage Loan" means a Mortgage Loan which bears interest at a
rate that may be adjusted at one or more times during the term of such Mortgage
Loan.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment" means a duly executed assignment for the benefit of the
Lenders of a Mortgage, of the indebtedness secured thereby, and of all documents
and rights related to the Mortgage Loan secured by such Mortgage in accordance
with the requirements of the Security Agreement.
"Authorized Officer" means any of the president, chairman, chief
financial officer, treasurer or other officer of the Borrower, acting singly.
"Available Deposits" means those free collected balances maintained in
accounts in the name of the Borrower (or held by the Borrower in trust for third
parties) with a Lender (after deducting float and balances required by such
Lender under its normal practices to compensate such Lender for the maintenance
of such accounts and taking into consideration reserve requirements applicable
to such accounts) and which balances are not included in determining "Available
Deposits" under any other arrangements between such Lender and the Borrower.
"Bank One" means Bank One, NA, with its main office in Chicago,
Illinois, in its individual capacity, and its successors.
4
"Basic Eligibility Requirements" means a Pledged Item with respect to
which each of the following statements is accurate and complete in all material
respects:
(i) The Borrower is the legal and equitable owner and
holder of such Pledged Item and has full power and authority to pledge
such Pledged Item. Such Pledged Item and each commitment of a Person to
purchase Mortgage Loans and Securities from the Borrower (including
Approved Investor Commitments) has been duly and validly issued to the
Borrower, and each Pledged Item constitutes Eligible Collateral, has
been duly and validly pledged to the Collateral Agent for the benefit
of the Secured Parties and is subject to no Lien other than the lien of
the Security Agreement in favor of the Agent for the benefit of the
Lenders.
(ii) Each requirement of any federal, state or local law
including, without limitation, usury, truth-in-lending, real estate
settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to such Pledged Item has been
complied with in all material respects.
(iii) With respect to each Pledged Item which is a Pledged
Mortgage:
(1) it has been duly executed and delivered by
the parties thereto at a closing,
(2) it is valid and enforceable in accordance
with its terms, without defense or offset, subject to
bankruptcy and similar laws and other general restrictions on
creditors' rights and equitable principles (whether raised in
an equity proceeding or an action at law),
(3) the property covered by said Mortgage Loan
is free and clear of all Liens except in favor of the Borrower
subject only to (a) the Lien of current real property taxes
and assessments not yet due and payable; (b) covenants,
conditions and restrictions, rights of way, easements and
other matters of the public record, as of the date of
recording, as are acceptable to mortgage lending institutions
generally and specifically referred to in a lender's title
insurance policy delivered to the originator of said Mortgage
Loan and (i) referred to or otherwise considered in the
appraisal made for the originator of said Mortgage Loan or
(ii) which do not materially adversely affect the appraised
value of such property as set forth in such appraisal; (c)
other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the
security intended to be provided by said Mortgage Loan or the
use, enjoyment, value or marketability of the related
property; and (d) a first Lien to the extent permitted under
the Borrowing Base Sublimits,
(4) it has been correctly described in the
Collateral Transmittal submitted to the Collateral Agent in
respect of such Pledged Mortgage,
(5) it has been fully funded to the mortgagor or
to an escrow or closing agent by wire transfer, transmittal
through the "Automated Clearing House" or any similar private
clearing house for interbank transfers of funds, cashier's
check
5
or a check written against the Borrower's controlled
disbursement account with the Agent, which has been identified
as a check in the related Collateral Transmittal and for which
the Agent has notified the Collateral Agent that such check
has been presented for payment and that good funds are
available to fund the controlled disbursement account to cover
such check,
(6) the Collateral Agent has in its possession
(other than with respect to Pledged Mortgages which are then
the subject of an Agreement to Pledge) all Required Mortgage
Documents other than those documents and instruments which are
in the possession of the Borrower pursuant to a Trust Receipt
or in the possession of a Person to whom delivery was made
pursuant to an Investor Transmittal Letter,
(7) it has been or will be promptly duly
recorded where necessary and complies with all applicable
state or local recording, registration and filing laws and
regulations in all material respects,
(8) there are no defenses, counterclaims or
offsets of any nature whatsoever with respect to such Pledged
Mortgage or the indebtedness evidenced and secured thereby or
with respect to any Required Mortgage Document and, other than
the related Required Mortgage Documents and Additional
Required Mortgage Documents, there are no instruments or
documents evidencing, securing or guaranteeing payment of the
indebtedness constituting such Pledged Mortgage,
(9) each Assignment (a) has been duly authorized
by all necessary corporate action by the Borrower, duly
executed and delivered by the assignor thereunder and is the
legal, valid and binding obligation of such assignor
enforceable in accordance with its terms, subject to
bankruptcy and similar laws and other general restrictions on
creditors' rights and equitable principles, and (b) complies
with all applicable laws including all applicable recording,
filing and registration laws and regulations and is adequate
and legally sufficient for the purpose intended to be
accomplished thereby, including, without limitation, the
assignment of the rights, powers and benefits of the
applicable mortgagee,
(10) upon the recordation of each Assignment and
assuming the possession of the Required Mortgage Documents by
the Collateral Agent and filing of Uniform Commercial Code
financing statements in proper form in the applicable filing
offices, the Collateral Agent, for the benefit of the Lenders,
will have a valid and perfected first priority security
interest in such Pledged Item and all proceeds, products and
profits derived therefrom, including, without limitation, all
moneys, goods, insurance proceeds and other tangible or
intangible property received upon liquidation thereof, subject
to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the enforcement of
creditors' rights generally and to general principles of
equity,
6
(11) the Borrower has complied in all material
respects with all laws, rules and regulations in respect of
such Pledged Mortgage if it is insured by FHA or guaranteed by
VA and the related insurance or guarantee is in full force and
effect. Such Mortgage Loan complies in all material respects
with all applicable requirements for purchase under the GNMA
standard form of selling contract for FHA insured and VA
guaranteed loans and any supplement thereto then in effect,
(12) except to the extent an appraisal is neither
required by any law or any governmental rule, regulation,
policy, guideline or direction nor any Approved Investor that
may purchase such Pledged Mortgage, the Borrower has received
an appraisal on the property underlying such Pledged Mortgage,
which appraisal shall be in conformity with the applicable
requirements of any law or any governmental rule, regulation,
policy, guideline or directive (whether or not having the
force of law), or any interpretation thereof, including,
without limitation, the provisions of Title XI of the
Financial Institutions Reform, Recovery and Enforcement Act of
1989, as amended, reformed or otherwise modified from time to
time, and any rules promulgated to implement such provisions,
(13) all fire and casualty policies covering the
premises encumbered by each Pledged Mortgage (a) name the
Borrower as the insured under a standard mortgagee clause not
less favorable in coverage to the mortgagee than is
customarily used in the state where such premises is located,
(b) are in full force and effect, and (c) afford insurance
against fire and such other risks as are usually insured
against in the broad form of extended coverage insurance from
time to time available, as well as insurance against flood
hazards as required by FHA or VA, and
(14) it is not a revolving credit facility.
(iv) There shall be no breach of the covenants contained
in Paragraph 13 of the Security Agreement and there shall be no breach
of any of the following covenants (the sole remedy for which shall be
the removal of such Pledged Item as Eligible Collateral):
(1) The Borrower shall not (a) amend or modify,
or waive any of the terms and conditions of, or settle or
compromise any claim in respect of, any Pledged Item or any
rights related to any of the foregoing, if such amendment,
modification or waiver materially and adversely affects the
Collateral Value of such Pledged Item, or impairs the
marketability of such Pledged Item or (b) release any security
or obligor, or, through any other activity or inactivity,
cause any Pledged Mortgage which shall have been eligible for
purchase to become ineligible for purchase in accordance with
the Approved Investor Commitment related to such Pledged
Mortgage.
(2) The Borrower shall not sell, assign,
transfer or otherwise dispose of, or grant any option with
respect to, or pledge or otherwise encumber (except
7
pursuant to the Security Agreement), any of the Collateral or
any interest therein, except as provided in Section 8.3 with
respect to releases of Pledged Items.
(3) The Borrower is the servicer for and shall
service all Pledged Mortgages in accordance with the
requirements of the Approved Investor Commitments. The
Borrower shall service all Mortgage Loans which are the
subject of Pledged Securities in accordance with the standard
requirements of the Federal Agency issuing or guaranteeing
such Securities and all applicable FHA and VA requirements.
The Borrower shall perform all of its obligations under the
Servicing Agreements governing Pledged Servicing in accordance
with the standard requirements of FNMA and FHLMC.
(4) The Borrower shall hold all escrow funds
collected in respect of Pledged Items in trust, without
commingling the same with any other fund, and apply the same
for the purposes for which such funds were collected provided
that such obligation with respect to Pledged Mortgages shall
not arise until 30 days after the origination or acquisition
of the applicable Mortgage Loan.
(5) The Borrower shall observe and perform all
of its obligations in connection with each Approved Investor
Commitment related to any Pledged Mortgage or Pledged Security
in all material respects. Within forty-eight (48) hours after
a request therefor by the Agent, a copy of each Approved
Investor Commitment certified by the Borrower, or if requested
by the Agent at any time after a Default has occurred, the
originals of such Approved Investor Commitments shall be
delivered to the Agent.
(6) The Borrower shall promptly notify the Agent
and the Collateral Agent if and when the Borrower receives any
prepayment (which term excludes the principal portion of
scheduled monthly payments made on a Mortgage Loan) arising
from or relating to any Pledged Mortgage and at the Borrower's
option either hold the same in trust, as security for the
Lenders, until such Mortgage Loan is removed from the
Borrowing Base in accordance with this Agreement or remit to
the Agent such prepayments (and all interest and earnings
thereon or with respect thereto) for application to the
Advances, provided that the Borrower must so remit such amount
if a Default has occurred and is continuing under this
Agreement.
(7) The Borrower shall do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and
delivered, all such other acts, instruments and transfers
(including, without limitation, Assignments) as the Agent or
the Collateral Agent may reasonably request from time to time
in order to create and maintain a perfected first priority
security interest in the Collateral in favor of the Lenders
and to create, maintain and preserve the security and benefits
intended to be afforded by this Agreement, subject to no prior
or equal security interest, lien, charge or encumbrance, or
agreement purporting to grant to any Person a security
interest in the Collateral.
8
(8) The Borrower shall promptly notify the Agent
and the Collateral Agent of the occurrence of any event which
would cause any Eligible Collateral to become Ineligible
Collateral.
"Bid Lender" is defined in Section 2.5.1.
"Bid Loan" is defined in Section 2.5.2.
"Bid Loan Notice" means, with respect to each Bid Loan, a notice
executed by the Borrower and the Bid Lender for such Bid Loan in the form
attached hereto as Exhibit "C" and delivered to the Agent.
"Bid Rate" means the interest rate applicable to a Bid Loan which is to
be agreed upon by the Borrower and a Bid Lender and communicated to the Agent in
the Bid Loan Notice for such Bid Loan.
"Borrower" means Pulte Mortgage LLC, a Delaware limited liability
company, and its permitted successors and assigns.
"Borrowing Base" means, as of any date, subject to the Borrowing Base
Sublimits, the sum of the amounts determined by applying the following
percentages to the Collateral Values of the following categories of Eligible
Collateral, without duplication as any asset is converted from one category to
another and except for Eligible Mortgage Servicing Rights which are valued based
upon the Servicing Take-Out Value of such rights and Eligible Servicing Sale
Receivables which are valued based on the amount of such receivables, as
described below (and the Borrower, by including any Pledged Item in any
computation of the Borrowing Base, shall be deemed to represent and warrant to
the Agent, the Collateral Agent and the Lenders that such Pledged Item
constitutes Eligible Collateral):
(i) ninety-nine percent (99%) of the Collateral Value of
Eligible Conforming Mortgage Loans which constitute Gestation
Collateral or Eligible Securities;
(ii) ninety-eight percent (98%) of the Collateral Value of
Eligible Conforming Mortgage Loans which do not constitute Gestation
Collateral;
(iii) ninety-eight percent (98%) of the Collateral Value of
Eligible Jumbo Mortgage Loans;
(iv) ninety-eight percent (98%) of the Collateral Value of
Eligible Oversize Jumbo Mortgage Loans;
(v) ninety-five percent (95%) of the Collateral Value of
Eligible Non-Conforming Mortgage Loans; and
(vi) seventy-five percent (75%) of Aggregate Servicing
Value.
less any Uncleared Loan Funding Checks on such date.
9
In connection with the Borrowing Base, the Agent is hereby authorized by the
Lenders to grant temporary waivers of strict compliance by the Borrower with the
eligibility requirements regarding qualification of any Collateral as Eligible
Collateral or with the Lending Sublimits and Borrowing Base Sublimits when the
Agent deems it appropriate, in its sole discretion, (i) as to all matters (other
than (x) any requirement that a Mortgage Loan be covered by an Approved Investor
Commitment, (y) those described in the definition "Basic Eligibility
Requirement" (except that temporary waivers may be granted for any of clauses
(iii)(6), (9) or (10) or (iv) of such definition) or (z) those described in the
definition of "Residential Mortgage Loan"), if the aggregate amount of deviation
from strict compliance, based on the Collateral Value so included in the
Borrowing Base and the amount of excess permitted over the Lending Sublimits or
Borrowing Base Sublimits does not exceed $10,000,000 at any time, or (ii) as to
any matter, up to any amount for up to three (3) Business Days, if the
satisfaction of such eligibility requirements or sublimits cannot be
independently determined because of events beyond the reasonable control of the
Borrower (i.e. natural disasters, transmission failures, etc.), provided that,
if such determination cannot be made for more than one (1) Business Day, the
Borrower certifies in writing that all such eligibility requirements and
sublimits are in fact satisfied.
"Borrowing Base Certificate" means a system generated report, initially
in the form attached hereto as Exhibit "G," prepared by the Collateral Agent to
reflect the Collateral Value Determination at the times required by (and as such
term is defined in) the Security Agreement, the form of which report may be
modified from time to time by the Collateral Agent.
"Borrowing Base Sublimits" is defined in Section 2.1.3.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Chicago and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Buy-Down Agreement" means a written agreement between the Borrower and
a Lender setting forth the terms and conditions under which such Lender has
agreed to a reduced interest rate on account of Fed Funds Loans or Swingline
Loans, as applicable, outstanding hereunder based upon Available Deposits
maintained by the Borrower with such Lender.
"Buy-Down Lender" is defined in Section 2.3.
"Buy-Down Rate" means 0.825 percent (82.5 basis points) per annum.
10
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash and Collateral Agreement" is defined in Section 8.4.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by, money market funds of, and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of
$100,000,000; provided in each case that the same provides for payment of both
principal and interest (and not principal alone or interest alone) and is not
subject to any contingency regarding the payment of principal or interest.
"Change in Control" means (i) Parent shall cease to be a wholly-owned
direct or indirect Subsidiary of Pulte Homes (it being understood that a name
change of Pulte Homes shall not of itself constitute a violation of this
requirement); or (ii) Parent shall cease to own, free and clear of all Liens or
other encumbrances, at least 100% of the outstanding shares of voting stock of
the Borrower on a fully diluted basis.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all right, title and interest of the Borrower, of
every kind and nature, in and to all of the following property, assets and
rights of the Borrower wherever located, whether now existing or hereafter
arising, and whether now or hereafter owned, acquired by or accruing or owing to
the Borrower, and all proceeds and products thereof:
(i) all Pledged Mortgages and Pledged Securities, whether
Eligible Collateral or Ineligible Collateral, including all Required
Mortgage Documents related thereto;
(ii) any commitments or other agreements issued by any
private mortgage insurer or by the FHA or VA to insure or guarantee any
Pledged Mortgage;
(iii) all Approved Investor Commitments to purchase Pledged
Securities or Pledged Mortgages (or any Securities to be issued based
on such Pledged Mortgages) from the Borrower;
(iv) any options to sell or purchase Securities, future
contracts, or any other interest rate protection products which
directly or indirectly protect the Borrower against reductions in value
of such Pledged Mortgages or Pledged Securities due to changes in
mortgage interest rates;
11
(v) the Settlement Account, the Cash and Collateral
Account, the Funding Account and all uncollected deposits into the
Settlement Account, the Cash and Collateral Account and the Funding
Account, together with any Custodian Settlement Accounts then in
existence with Approved MBS Custodians, as described in Paragraph 7(c)
of the Security Agreement, and all uncollected deposits in such
accounts;
(vi) all Pledged Servicing identified by the Borrower from
time to time and included in Collateral including without limitation
all rights of the Borrower to sell or assign its interest therein and
all amounts payable to the Borrower thereunder arising out of any
termination thereof, and all files, surveys, certificates,
correspondence, appraisals, computer programs (excluding programs owned
and licensed to the Borrower by third parties), tapes, disks, cards,
accounting records and other records and data of the Borrower related
to the Mortgage Loans covered by such Pledged Servicing;
(vii) all Pledged Servicing Sale Receivables including
without limitation all rights of the Borrower related to such
receivables;
(viii) all cash and Cash Equivalents;
(ix) all Servicing Hedge Contracts;
(x) all property related to the foregoing, including
without limitation, the right to service Pledged Mortgages while owned
by the Borrower, all accounts and general intangibles of whatsoever
kind so related and all documents or instruments delivered to the
Collateral Agent in respect of any Pledged Item, including, without
limitation, the right to receive all insurance proceeds and
condemnation awards which may be payable in respect of the premises
encumbered by any Pledged Mortgage; and
(xi) all proceeds and products of any of the foregoing.
"Collateral Agent" means LaSalle Bank National Association in its
capacity as contractual representative of the Lenders pursuant to the Security
Agreement, and any successor Collateral Agent appointed pursuant to Paragraph 19
of the Security Agreement.
"Collateral Agent Review Procedure" means the required review steps set
forth in Exhibit "1" to the Security Agreement.
"Collateral Transmittal" means a transmittal from the Borrower to the
Collateral Agent in electronic form (or in written form delivered by fax in the
event that the Borrower is unable -- due to a system failure or other event
beyond the Borrower's control -- to transmit such information electronically)
and, if required by the Collateral Agent, written form containing the following
information for the following submissions or special treatment of different
types of Collateral: (i) the information described on Exhibit "D" for each AP
Mortgage covered by any Agreement to Pledge, (ii) the information described on
Exhibit "D" (other than the entry thereon for "AP Status Code") for each Pledged
Mortgage not covered by an Agreement to Pledge, (iii) change of any Pledged
Mortgage from wet to dry (open) status, dry to gestation status, open to shipped
status, shipped to paid and any cancellation of wet status, (iv) the information
described on Exhibit 3 to the Security Agreement for each Pledged Mortgage to be
treated as a Gestation
12
Mortgage Loan, (v) whether the Mortgage Loan is to be funded by wire or check or
(vi) such information as may be required from time to time by the Collateral
Agent for any Pledged Security.
"Collateral Value" means, with respect to each of the following assets
included in Eligible Collateral on any given day, a value determined as follows:
(i) Each Security shall be valued based upon the
Collateral Value of the underlying Pledged Mortgages as otherwise
determined hereunder; and
(ii) Each Pledged Mortgage shall be valued at the lowest
of (A) the unpaid principal balance of such Mortgage Loan on its Pledge
Date (or the unpaid principal balance on its conversion date in the
case of Conversion Mortgage Loans), or (B) the net acquisition cost
(including any discounts and excluding any servicing released premium)
of such Mortgage Loan, if acquired by the Borrower, or (C) the weighted
average purchase price (expressed as a percentage of par) committed to
under those Approved Investor Commitments which could cover such
Mortgage Loan applied to the unpaid principal balance of such Mortgage
Loan on its Pledge Date (or the unpaid principal balance on its
conversion date in the case of Conversion Mortgage Loans) or (D) market
value, as determined by the Agent in its sole discretion, based upon
whole loan prices currently available, as and when the Agent, in its
sole discretion (with no requirement to do so unless directed to do so
by the Required Lenders), chooses to calculate market value. The values
described in (A), (B) and (C) of the preceding sentence shall be as
determined by the Borrower as of the Pledge Date of the applicable
Pledged Mortgage and reported to the Collateral Agent.
"Collection and Paying Agreement" means that certain Collection and
Paying Agreement dated as of August 23, 2002 between Borrower, Agent, the
Collateral Agent, Pulte Funding, Inc. and Credit Lyonnais New York Branch.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans not exceeding the amount set forth as its "Commitment" on Schedule
"1" attached hereto or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Commitment Percentage" means, for each Lender as of any date, the
percentage of the Aggregate Commitment represented by such Lender's Commitment,
as it may be amended from time to time, which initially shall be as set forth on
Schedule "1".
"Conforming Mortgage Loan" means a first priority Residential Mortgage
Loan which (i) either is insured by the FHA or guaranteed by the VA or which
fully conforms to all underwriting and other requirements for sale to FNMA or
FHLMC and (ii) if said Mortgage Loan has a loan-to-value ratio which is greater
than eighty percent (80%), said Mortgage Loan is covered by a policy of private
mortgage insurance acceptable to FNMA.
"Consolidated Tangible Net Worth" means, as of any date of
determination thereof, Net Worth, less the sum of the following (without
duplication): (a) the book value of all Investments
13
in the Borrower's non-consolidated Affiliates, (b) any other assets of the
Borrower and its consolidated Subsidiaries which would be treated as intangibles
under Agreement Accounting Principles (other than capitalized mortgage servicing
rights) including, without limitation, any write-up of assets, good-will,
research and development costs, trade-marks, trade names, copyrights, patents
and unamortized debt discount and expenses, (c) loans or other extensions of
credit to officers of the Borrower or of any of its Subsidiaries or Affiliates
other than Mortgage Loans made to such Persons in the ordinary course of
business, (d) the Investment of the Borrower in Joliet Mortgage Reinsurance
Company (determined in accordance with Agreement Accounting Principles as
required by the definition of Investment herein), (e) the Investment of the
Borrower in Pulte Funding, Inc. or similar funding vehicles in excess of
$4,000,000, and (f) the excess of the Borrower's then-current Investment in Su
Casita, determined in accordance with Agreement Accounting Principles, over the
then-current Included Su Casita Investment.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Conversion Mortgage Loan" means a Mortgage Loan which is either (i)
originated as an ARM Mortgage Loan, sold to an Approved Investor and
subsequently repurchased by the Borrower after an election by the obligor
thereunder to convert to a fixed rate, or (ii) a construction loan converted to
a permanent loan, upon completion of construction, in accordance with the
guidelines of an Approved Investor.
"Custodian Settlement Accounts" is defined in the Security Agreement.
"Deduction" means, at any time, the amount by which a Pledged Servicing
Sale Receivable may, under the terms of the applicable servicing sale agreement,
be reduced (e.g. due to the fact that any of the Mortgage Loans covered by the
applicable sold servicing rights do not meet the eligibility criteria set forth
in the applicable servicing sale agreement), whether such reduction is by way of
deduction, set-off, credit, or otherwise.
"Default" means an event described in Article VII.
"Effective Date" is defined in Section 4.1.
14
"Eligible Collateral" means, as of any date, all Eligible Conforming
Mortgage Loans, Eligible Jumbo Mortgage Loans, Eligible Oversize Jumbo Mortgage
Loans, Eligible Non-Conforming Mortgage Loans, Eligible Mortgage Servicing
Rights, Eligible Servicing Sale Receivables and Eligible Securities.
"Eligible Conforming Mortgage Loan" means an Eligible Mortgage Loan
which: (i) is a Conforming Mortgage Loan; and (ii) is subject to an Approved
Investor Commitment.
"Eligible Jumbo Mortgage Loan" means an Eligible Mortgage Loan which:
(i) is a Jumbo Mortgage Loan; and (ii) is subject to an Approved Investor
Commitment.
"Eligible Mortgage Loan" means any Pledged Mortgage:
(i) which meets the Basic Eligibility Requirements;
(ii) which has no monthly installment of principal and/or
interest which is more than 59 days past due;
(iii) has been included in the Borrowing Base for (1) 180
days or less after the Pledge Date thereof in the case of a Conforming
Mortgage Loan or a Jumbo Mortgage Loan, and (2) 90 days or less after
the Pledge Date thereof in the case of an Oversize Jumbo Mortgage Loan;
(iv) has been originated less than (1) 180 days prior to
its Pledge Date in the case of a Conforming Mortgage Loan or a Jumbo
Mortgage Loan, and (2) 90 days prior to its Pledge Date in the case of
an Oversize Jumbo Mortgage Loan;
(v) for which, if it is an AP Mortgage:
(1) the Borrower expects such AP Mortgage to
close on the Pledge Date and become a valid lien securing
actual indebtedness by funding to the order of the mortgagor
thereunder, has not learned of any information to the contrary
and has not received any returned proceeds of such AP Mortgage
from the escrow or closing agent for such Pledged Mortgage;
(2) if an AP Mortgage is not closed and funded
as required pursuant to clause (v) (1) above, the Borrower
shall so notify the Collateral Agent as soon as the Borrower
becomes aware of that fact but in any event no later than
12:00 noon the next Business Day, unless the AP Mortgage has
closed and funded by that time, and the Collateral Agent shall
delete said AP Mortgage from the Borrowing Base;
(3) if an AP Mortgage was previously included in
the Borrowing Base and was subsequently deleted as required
pursuant to clause (v) (2) above, such AP Mortgage has not
been submitted for inclusion in the Borrowing Base for a total
of more than three times;
15
(4) the Collateral Agent has received the
Required Mortgage Documents within nine (9) Business Days
after the date of the related Agreement to Pledge;
(5) the Collateral Value attributable to all AP
Mortgages included in any category of the Borrowing Base does
not exceed sixty percent (60%) of the Aggregate Commitment
during the first and last five Business Days in any calendar
month, and
(6) the Collateral Value attributable to all AP
Mortgages included in any category of the Borrowing Base does
not exceed twenty-five percent (25%) of the Aggregate
Commitment for any day other than the first and last five
Business Days of any calendar month;
(vi) which, if subject to an Investor Transmittal Letter
or Trust Receipt and if said Pledged Mortgage was:
(1) withdrawn by the Borrower for purposes of
correcting clerical or other non-substantive documentation
problems: (i) the promissory note and other documents relating
to said Pledged Mortgage were returned to the Collateral Agent
within fifteen business days from the date of withdrawal, (ii)
said Pledged Mortgage was released to the Borrower pursuant to
a Trust Receipt and (iii) the Collateral Value of said Pledged
Mortgage when added to the Collateral Value of all other
Pledged Mortgages which have been similarly released to the
Borrower does not exceed one percent (1%) of the Aggregate
Commitment; or
(2) shipped by the Collateral Agent directly to
an Approved Investor for purchase pursuant to an Investor
Transmittal Letter which is a "Whole Loan Sale Transmittal
Letter" substantially in the form of Exhibit "4" to the
Security Agreement, the full purchase price therefor has been
received by the Collateral Agent (or said Pledged Mortgage has
been returned to the Collateral Agent) within forty-five (45)
business days (or ninety (90) days for deliveries to state
bond agencies) from the date of shipment by the Collateral
Agent; or
(3) shipped by the Collateral Agent directly to
a custodian for purposes of formation of a pool supporting a
Security, the Security is issued and sold and the purchase
price therefor has been received by the Collateral Agent (or
said Pledged Mortgage has been returned to the Collateral
Agent) within forty-five (45) business days (or ninety (90)
days for deliveries to state bond agencies) from the date of
shipment by the Collateral Agent; and
(vii) which has not previously been included in the
Borrowing Base, then shipped to an investor and returned, for whatever
reason, to the Collateral Agent.
"Eligible Mortgage Servicing Rights" means, as of any date, all
Eligible Pledged Servicing: (i) which is not subject to any security interest
securing any Debt other than the Obligations; (ii) except for any Pledged
Servicing which constitutes Recourse Servicing (other than Approved Recourse
Servicing) or a Subservicing Agreement; (iii) which meets the Basic
16
Eligibility Requirements; and (iv) which has not been released from Collateral
pursuant to Section 8.3 prior to such date.
"Eligible Non-Conforming Mortgage Loan" means an Eligible Mortgage Loan
which: (i) is a Non-Conforming Mortgage Loan; (ii) is subject to an Approved
Investor Commitment issued by an Approved Investor; (iii) has been included in
Collateral for 90 days or less since the Pledge Date of such Mortgage Loan; (iv)
has an unpaid principal balance on the applicable Pledge Date less than or equal
to $650,000; (v) at the time of origination had a principal balance that
(together with, if it is a second priority Mortgage Loan, the principal balance
of the related senior Mortgage Loan as of the time of the funding of the second
Mortgage Loan) did not exceed 103% of the appraised value of the real estate and
improvements securing such Mortgage Loan; (vi) has a FICO score of at least 640
if at the time of origination had a principal balance that (together with, if it
is a second priority Mortgage Loan, the principal balance of the related senior
Mortgage Loan as of the time of the funding of the second Mortgage Loan)
exceeded 100% of the appraised value of the real estate and improvements
securing such Mortgage Loan, (vii) at the time of origination had a principal
balance that (together with, if it is a second priority Mortgage Loan, the
principal balance of the related senior Mortgage Loan as of the time of the
funding of the second Mortgage Loan) exceeded 80% of the appraised value of the
real estate and improvements securing such Mortgage Loan, unless private
mortgage insurance was obtained covering such Mortgage Loan; and (vii) has been
originated less than 90 days prior to its Pledge Date.
"Eligible Pledged Servicing" means any Pledged Servicing with respect
to which each of the following statements is accurate and complete:
(i) Such Pledged Servicing is subject to an accepted
Acknowledgment Agreement.
(ii) Such Pledged Servicing does not constitute Recourse
Servicing other than Approved Recourse Servicing.
(iii) The Borrower is the legal and equitable owner and
holder of such Pledged Servicing and the rights thereunder and has full
power and authority to grant a security interest in such Collateral.
Such Pledged Servicing has been duly and validly made subject to the
lien of the Security Agreement and is subject to, and will continue to
be subject to, no Lien other than the liens created pursuant to the
Security Agreement and any rights reserved to the other party under
such Pledged Servicing or the related Acknowledgement Agreement.
(iv) The Servicing Agreement governing such Pledged
Servicing has been duly executed and delivered by the parties thereto,
is not a Subservicing Agreement and is valid and enforceable in
accordance with its terms, without defense or offset, subject to
bankruptcy and similar laws and other general restrictions on
creditors' rights and equitable principles (whether raised in an equity
proceeding or an action at law).
(v) No default, nor any event which with notice or lapse
of time or both would become a default, has occurred and is continuing
under the Servicing Agreement
17
governing such Pledged Servicing and no action has been taken to
terminate such Servicing Agreement.
(vi) No mortgage installment of principal and/or interest
with respect to the Mortgage Loans serviced under the applicable
Servicing Agreement are more than 89 days past due.
(vii) The Borrower has complied, and will continue to
comply, in all material respects, with all laws, rules and regulations,
including but not limited to all applicable FNMA, GNMA or FHLMC
requirements, as the case may be, in respect of such Servicing
Agreement.
(viii) Such Pledged Servicing has been included in Eligible
Collateral for 150 days or less.
"Eligible Servicing Sale Receivables" means Pledged Servicing Sale
Receivables as to which:
(i) the Agent and Collateral Agent have received a
complete executed copy of the related purchase agreement;
(ii) if requested by the Agent, the Agent and Collateral
Agent have received written confirmation from the Servicing Purchaser
as to the amount of such Pledged Servicing Sale Receivables;
(iii) the Servicing Purchaser of the applicable sold
Servicing Agreements is an Approved Servicing Purchaser, and the
applicable sale agreement is an Approved Servicing Sale Agreement;
(iv) the counterparties to the applicable sold Servicing
Agreements are either GNMA, FNMA or FHLMC;
(v) the Agent has reasonably determined that the
counterparties to the sold Servicing Agreements have or will consent to
the sale of such Servicing Agreements to the Servicing Purchaser, if
such consent is required;
(vi) the Borrower has assigned its rights to such Pledged
Servicing Sale Receivables to the Collateral Agent for the benefit of
the Secured Parties pursuant to an assignment in form and content
satisfactory to the Agent;
(vii) the Servicing Purchaser of the applicable sold
Servicing Agreements has executed an agreement (and, if the applicable
Approved Servicing Sale Agreement provides for repeated servicing sales
under the same agreement, such updates to such agreement as the Agent
may reasonably request) in form and content satisfactory to the Agent
pursuant to which such Servicing Purchaser has agreed to (A) pay such
Pledged Servicing Sale Receivable directly to the Collateral Agent for
the benefit of the Secured Parties, and (B) provide simultaneous
written notice to the Agent and the Collateral Agent of any claims made
against or notices given to the Borrower which would
18
constitute an offset to or reduction in the amount of such Pledged
Servicing Sale Receivable;
(viii) no portion of such Pledged Servicing Sale Receivable
or any other Pledged Servicing Sale Receivable owed by the applicable
Servicing Purchaser is more than ten days past due (as determined under
the applicable Approved Servicing Sale Agreements);
(ix) such Pledged Servicing Sale Receivable is not
evidenced by chattel paper or an instrument of any kind;
(x) the Servicing Purchaser with respect to such Pledged
Servicing Sale Receivable is not insolvent or the subject of any
bankruptcy or insolvency proceedings of any kind and has not made an
assignment for the benefit of creditors or consented to or suffered the
appointment of a receiver, trustee, liquidator, custodian or the like
for it or for a significant portion of its assets or affairs;
(xi) the Borrower has observed and complied with all laws
of the jurisdiction in which the applicable Servicing Purchaser is
located that, if not observed and complied with, would deny to the
Borrower access to the courts of such jurisdiction; and
(xii) such Pledged Servicing Sale Receivable has been
included in Eligible Collateral for 150 days or less;
provided, however, that (1) Eligible Servicing Sale Receivables shall not
include any "holdback" amounts or deferred installments of the purchase price
payable by the applicable Servicing Purchaser which are not payable to the
Borrower within 150 days after the initial payment to the Borrower for the sale
of the applicable Servicing Agreements to such Servicing Purchaser, and (2)
Eligible Servicing Sale Receivables shall be reduced by the amount of any
Deductions (to the extent not already deducted from Eligible Servicing Sale
Receivables pursuant to the preceding provisions), whether claimed by the
applicable Servicing Purchaser, reported by the Borrower, or otherwise
determined by the Agent or Collateral Agent.
"Eligible Security" means any Pledged Security: (i) which is covered by
an Approved Investor Commitment; and (ii) for which the Collateral Agent shall
have received such evidence as may be required under the Security Agreement to
confirm the existence of the security interest in favor of the Collateral Agent
for the benefit of the Lenders in such Pledged Security.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof
19
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which bears interest at a
Eurodollar Rate.
"Eurodollar Base Rate" means with respect to a Eurodollar Advance for
the relevant Interest Periods, the applicable British Bankers' Association
London interbank offered rate rate for deposits in U.S. dollars as reported by
any generally recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, and
having a maturity equal to such Interest Period, if no such British Bankers'
Association London interbank offered rate is available to the Agent, the
applicable Eurodollar Base Rate for the relevant Interest Period shall instead
be the rate determined by the Agent to be the rate at which Bank One or one of
its Affiliate banks offers to place deposits in U.S. dollars with first-class
banks in the London interbank market at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, in the
approximate amount of Bank One's relevant Eurodollar Loan and having a maturity
equal to such Interest Period.
"Eurodollar Loan" means a Loan which bears interest at a Eurodollar
Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) 0.70 percent (70 basis points) per annum.
"Excess Pool Proceeds" is defined in Paragraph 6(d) of the Security
Agreement.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it, by (i) the jurisdiction under the laws of which
such Lender or the Agent is incorporated or organized or (ii) the jurisdiction
in which the Agent's or such Lender's principal executive office or such
Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Facility Fee Rate" means 0.20 percent (20 basis points) per annum.
"Federal Agency" means FHLMC, FNMA, GNMA, FHA or VA.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10 a.m. (Chicago
time) on such day on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its sole
discretion.
20
"Federal Funds Funding Rate" means, with respect to any Fed Funds Loan
for any day, the rate per annum equal to the consensus (or if no consensus
exists, the arithmetic average) of the rates at which reserves are offered by
first-class banks to other first-class banks (at approximately 10:00 a.m.
(Chicago time)) on such day (or if such day is not a Business Day, on the
immediately preceding Business Day) on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, based
on quotes received by the Agent from three federal funds brokers of recognized
standing selected by the Agent in its sole discretion.
"Federal Funds Rate" means, for any day, an interest rate per annum
equal to the Federal Funds Funding Rate for such day plus 0.825 percent (82.5
basis points) per annum.
"Fed Funds Advance" means an Advance which bears interest at the
Federal Funds Rate.
"Fed Funds Loan" means any Loan made as a part of a Fed Funds Advance.
"Fees" is defined in Section 2.7.
"FHA" means the Federal Housing Administration or other agency,
corporation or instrumentality of the United States to which the powers and
duties of the Federal Housing Administration have been transferred.
"FHA-Approved Mortgagee" means an institution that is approved by the
FHA to act as a servicer and mortgagee of record with respect to a Mortgage Loan
insured by the FHA.
"FHLMC" means the Federal Home Loan Mortgage Corporation or other
agency, corporation or instrumentality of the United States to which the powers
and duties of the Federal Home Loan Mortgage Corporation have been transferred.
"FHLMC-Approved Lender" means an institution that is approved by the
FHLMC to act as a lender in connection with the origination of any Mortgage Loan
purchased by the FHLMC.
"FHLMC Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued and guaranteed as
to full and timely payment of interest and full collection of principal by
FHLMC.
"FICO" means the "delinquency predictor" model established by Fair
Xxxxx Co. and shown on a credit report prepared by Equifax, Experian, Trans
Union, or any other authorized national agency.
"FNMA" means the Federal National Mortgage Association or other agency,
corporation or instrumentality of the United States to which the powers and
duties of the Federal National Mortgage Association have been transferred.
"FNMA-Approved Lender" means an institution that is approved by the
FNMA to act as a lender in connection with the origination of any Mortgage Loan
purchased by the FNMA.
21
"FNMA Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued and guaranteed as
to full and timely payment of principal and interest by FNMA.
"Funded Debt" means as of any date of determination thereof, the sum of
all obligations of the Borrower for borrowed money, including but not limited to
money borrowed from any Parent, Subsidiary or Affiliate of the Borrower, whether
or not evidenced by a promissory note.
"Funding Account" means the account established pursuant to Section
8.4.
"GAAP" means generally accepted accounting principles as in effect from
time to time, consistently applied.
"GAAP Carrying Value" means, with respect to any asset of the Borrower,
the value at which such asset is carried on the books of the Borrower in
accordance with GAAP. Any changes in the methodology used for adjusting such
book value shall be subject to the prior approval of the Agent.
"Gestation Borrowing Base" means, for any date, that portion of the
Borrowing Base on such date attributable to Gestation Collateral.
"Gestation Collateral" means that portion of the Collateral which
consists of Gestation Mortgage Loans (identified by the Borrower in accordance
with Paragraph 2(d) of the Security Agreement) and Securities issued in exchange
for Gestation Mortgage Loans.
"Gestation Mortgage Loans" means, as of any date, any Pledged Mortgages
which the Borrower has identified as fully qualified for initial certification
for the purpose of creating a pool of Mortgage Loans to support the issuance of
a Security and with respect to which the Borrower has requested that the
Collateral Agent either (i) acting in its capacity as pool custodian, initially
certify for inclusion in such a pool or (ii) acting in its capacity as
Collateral Agent, ship to a Federal Agency to obtain initial certification by
such Federal Agency for inclusion in such a pool.
"Gestation Shortfall" means, for any day, the amount (if any) by which
(i) the aggregate principal balance of all Loans outstanding on such day exceeds
(ii) the Gestation Borrowing Base on such day.
"GNMA" means the Government National Mortgage Association or other
agency, corporation or instrumentality of the United States as to which the
powers and duties of the Governmental National Mortgage Association have been
transferred.
"GNMA Security" means a security representing an undivided fractional
interest in a pool of Mortgage Loans, which security is issued by the Borrower
and guaranteed as to full and timely payment of principal and interest by GNMA
without regard as to whether the Borrower collects any payments on such Mortgage
Loans.
"Hedging Program" means a program for hedging interest rate risks of
the Borrower, which program shall provide, without limitation, that all
Servicing Hedge Agreements will be
22
entered into or placed with one or more financial institutions, futures
commission merchants or clearing houses acceptable to the Lenders in their
reasonable discretion and with whom the Borrower has written, assignable
agreements.
"Included Su Casita Investment" means the lesser of (A) $15,000,000 or
(B) the then-current full amount of the Borrower's Investment in Su Casita
determined in accordance with Agreement Accounting Principles as required by the
definition of "Investment" herein.
"Ineligible Collateral" means any Pledged Item that does not at the
time constitute Eligible Collateral.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) Capitalized Lease Obligations, (vi) Contingent Obligations,
(vii) Letters of Credit, (viii) Sale and Leaseback Transactions," (ix) any
financing inherent in any Servicing Hedge Agreement, (x) obligations of such
Person to purchase securities or other Property arising out of or in connection
with the sale of the same or substantially similar securities or Property, and
(xi) any other obligation for borrowed money or other financial accommodation
which in accordance with Agreement Accounting Principles would be shown as a
liability on the consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two or three-months commencing on a Business Day, all as selected by the
Borrower pursuant to this Agreement. An Interest Period of one, two or three
months shall end on the day which corresponds numerically to such date one, two
or three months thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second or third succeeding month,
such Interest Period shall end on the last Business Day of such next, second or
third succeeding month. If an Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next succeeding
Business Day, provided, however, that if with respect to a one, two or three
month Interest Period said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or similar contracts owned by such Person. The amount of any
Investment shall be determined in accordance with Agreement Accounting
Principles.
23
"Investor Transmittal Letter" means either a "Whole Loan Sale
Transmittal Letter" or a "Warehouse-Related MBS Transmittal Letter"
substantially in the form of Exhibits "4" and "5" to the Security Agreement.
"Jumbo Mortgage Loan" means a Conforming Mortgage Loan except for size,
but which has an original principal balance of less than or equal to $650,000.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or the Agent,
the office, branch, subsidiary or affiliate of such Lender or the Agent listed
on the signature pages hereof or on a Schedule or otherwise selected by such
Lender or the Agent pursuant to Section 2.18.
"Lending Sublimits" is defined in Section 2.1.1.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, at any time, the ratio of (i) Funded Debt, plus
the sum of the face amount of all letters of credit issued by the Borrower and
outstanding at such time, plus the sum of the amount of all Uncleared Loan
Funding Checks outstanding at such time to (ii) Consolidated Tangible Net Worth
at such time.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.15, the Security Agreement, the Buy-Down Agreements, the Collection
and Paying Agreement, and the other documents and agreements contemplated hereby
and executed by the Borrower or another Person in favor of the Agent or any
Lender.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, financial condition, or results of operations of the
Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Borrower
to perform its obligations under the Loan Documents, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Agent or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor to its
business.
24
"Mortgage" means a mortgage, deed of trust, security deed or similar
instrument purporting to create a first or second lien or similar interest in
real estate and improvements thereon.
"Mortgage Loan" means a loan of money evidenced by a Mortgage Note and
secured by a Mortgage.
"Mortgage Note" means a note evidencing the indebtedness secured by a
Mortgage.
"Multi-employer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transactions as of the date of determination (assuming the Rate
Management Transactions were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transactions as of the date of determination (assuming such
Rate Management Transactions were to be terminated as of that date).
"Net Worth" means as of any date of determination thereof, the net
worth of the Borrower and its Subsidiaries on a consolidated basis as determined
in accordance with Agreement Accounting Principles.
"Non-Conforming Mortgage Loan" means a first or second priority
Residential Mortgage Loan that (i) does not fully conform to the underwriting
criteria for sale to FNMA or FHLMC with respect to credit quality, and (ii)
meets all of the then-current requirements for sale to an Approved Investor
purchasing such type of Mortgage Loan from the Borrower.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.15 in (i) substantially the form of Exhibit "A" attached
hereto with respect to Loans other than Bid Loans, or (ii) such form as may be
mutually agreed to between the Borrower and each Bid Lender with respect to Bid
Loans, including any amendment, modification, renewal or replacement of any such
promissory note.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lenders
or to any Lender, the Agent, the Collateral Agent or any indemnified party
arising under the Loan Documents.
"Other Taxes" is defined in Section 3.5(ii).
25
"Overnight Transaction Loan Effective Rate" means, as of any day, a
fluctuating rate of interest per annum determined by the Agent as its overnight
transaction loan rate for such day.
"Overnight Transaction Loan Rate" means, with respect to a Swingline
Advance, a rate equal to the sum of (i) the Overnight Transaction Loan Effective
Rate plus (ii) 0.925 percent (92.5) basis points) per annum.
"Oversize Jumbo Loans" means a Conforming Mortgage Loan except for
size, but which has an original principal balance in excess of $650,000, but
less than or equal $1,000,000.
"Parent" means Pulte Home Corporation, a Michigan corporation.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the first day of each calendar month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Pulte Holder" means (i) either of Xxxxxxx X. Xxxxx and Xxxxx
Xxxxxxxx, (ii) any of their respective Affiliates, parents, spouses,
descendants, and spouses of descendants, or (iii) any trusts or other entities
controlled by Xx. Xxxxx or Xx. Xxxxxxxx and their respective estates, heirs,
administrators or personal representatives.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, limited liability company, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pledge Date" means the date on which a Mortgage Loan, Security Pledge
Servicing or Pledged Servicing Sale Receivable is first delivered in pledge to
the Collateral Agent or is otherwise made subject to a security interest in
favor of the Agent or Collateral Agent for the benefit of the Lenders, provided
that (i) the date of delivery of a Mortgage Loan covered by an Agreement to
Pledge shall be deemed to be the date of delivery of such Agreement to Pledge
even after subsequent delivery of the related Required Mortgage Documents, (ii)
the "Pledge Date" for all Collateral previously held by the Collateral Agent
under the Prior Facilities shall be deemed to be the date on which such
Collateral was first delivered to the Collateral Agent under the Prior
Facilities even though such date is prior to the date of this Agreement and
(iii) any AP Mortgage which has been deleted and resubmitted as permitted
pursuant to clause (v)(3) of the definition of Eligible Mortgage Loan, shall
have a Pledge Date which is the date the Agreement to Pledge was so resubmitted.
"Pledged Item" means any Pledged Mortgage, Pledged Security, Pledged
Servicing or Pledged Servicing Sale Receivable.
26
"Pledged Mortgage" all Mortgage Loans that are from time to time
delivered (or, in the case of AP Mortgages, are committed to be delivered) to
the Collateral Agent pursuant to this Agreement and the Security Agreement.
"Pledged Security" all Securities that are from time to time delivered
to the Collateral Agent pursuant to this Agreement and the Security Agreement.
"Pledged Servicing" means, with respect to any Servicing Agreements
with FNMA, GNMA or FHLMC, those loan pools subject to any such Servicing
Agreement which (a) do not contain any (i) Mortgage Loans that are Collateral,
(ii) commercial Mortgage Loans, or (iii) Mortgage Loans held for investment by
the Borrower, the Parent or any of their respective Subsidiaries, and (b) have
been specifically identified by the Borrower for inclusion in Collateral by
executing and delivering to the Agent (i) an Acknowledgement Agreement covering
such Pledged Servicing from FNMA, GNMA or FHLMC, as the case may be and (ii) an
amendment, in form and substance satisfactory to the Agent, to the UCC-1
financing statements described in Section 4.1(viii).
"Pledged Servicing Sale Receivables" means Servicing Sale Receivables
which are from time to time designated by the Borrower and pledged to the
Collateral Agent for the benefit of the Lenders in accordance with this
Agreement and the Security Agreement.
"Primary Advance" means a Eurodollar Advance, a Fed Funds Advance or an
Alternate Base Rate Advance.
"Primary Loan" means a Loan consisting of a portion of a Primary
Advance.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by Bank One or by its parent (which is not
necessarily the lowest rate charged to any customer), changing when and as said
prime rate changes.
"Prior Agreement" is defined in the recitals of this Agreement.
"Prior Facilities" means the facilities contemplated by the Prior
Agreement.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Pulte Change of Control" means the occurrence of any of the following
events: (i) the consummation of any consolidation, share exchange or merger of
Pulte Homes in which Pulte Homes is not the continuing or surviving corporation
or pursuant to which Pulte Homes' voting stock would be converted into cash,
securities or other property, other than, in any case, a merger of Pulte Homes
in which the holders of voting stock of Pulte Homes immediately prior to the
merger have the same or greater proportionate ownership, directly or indirectly,
of the voting stock of the surviving corporation immediately after such merger
as they had of the voting stock of Pulte Homes immediately before such merger;
or (ii) the filing of a report by any Person, including Affiliates of Pulte
Homes (other than Pulte Homes, its Subsidiaries, employee stock ownership plans
or employee benefit plans of Pulte Homes or its Subsidiaries, or a Permitted
Pulte Holder) on Schedule 13D or 14D-1 (or any successor schedule, form or
report under the
27
Exchange Act) disclosing that such Person (for the purpose of this definition of
"Pulte Change in Control" only, the term "Person" shall include a "person"
within the meaning of Section 13(d)(3) and Section 14(d)(2) of the Exchange Act
or any successor provision to either of the foregoing) has become the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of 50% or more
of Pulte Homes' voting stock; provided, however, that a Person shall not be
deemed the beneficial owner of, or to own beneficially (A) any securities
tendered pursuant to a tender or exchange offer made on behalf of such Person or
any of such Person's Affiliates until such tendered securities are accepted for
purchase or exchange thereunder or (B) any securities if such beneficial
ownership (1) arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations under the Exchange Act, and (2) is
not also then reportable on Schedule 13D (or any successor schedule, form or
report) under the Exchange Act. A change of the legal name of Pulte Homes shall
not of itself (absent the occurrence of one of the events described in the
preceding sentence) constitute a Pulte Change of Control.
"Pulte Homes" means Pulte Homes, Inc., the sole shareholder of Pulte
Diversified Companies, Inc., which is in turn the sole shareholder of the
Parent.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
the Borrower and any Person which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Reconciled Non-Servicing Proceeds" is defined in Paragraph 6(c) of the
Security Agreement.
"Recourse Servicing" means any servicing rights under a Servicing
Agreement which obligates the Borrower either to repurchase Mortgage Loans upon
default by the borrower thereunder or to indemnify any party having an interest
in such Mortgage Loans against any loss arising from such a default for reasons
other than a breach of any representations or warranties regarding the condition
of such Mortgage Loans at origination which were made by the Borrower as
originator of such Mortgage Loans.
28
"Reduced Servicing Notice" is defined in Section 6.1(xiv).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.7.
"Required Lenders" means Lenders in the aggregate having at least 66
2/3% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding at least 66 2/3% of the aggregate
unpaid principal amount of the outstanding Advances.
"Required Mortgage Documents" means the instruments and documents
described in Schedule "A" to the Security Agreement, as applicable to a
particular Mortgage Loan, which are required to be delivered to the Collateral
Agent.
"Reserve Requirement" means, with respect to the Eurodollar Rate
applicable to an Interest Period, the maximum aggregate reserve requirement
(including all basic, supplemental, marginal and other reserves) which is
imposed under Regulation D on eurocurrency liabilities.
"Residential Mortgage Loan" means a Mortgage Loan secured by a Mortgage
on a Single Family Residence.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. or any successor to its business.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
29
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations owing to one or more Lenders.
"Secured Parties" is defined in Recital B of the Security Agreement.
"Security or Securities" means any FHLMC Security, FNMA Security or
GNMA Security.
"Security Agreement" means the Third Amended and Restated Security and
Collateral Agency Agreement as of even date herewith, substantially in the form
of Exhibit "I" attached hereto, by and among the Borrower, the Agent, and the
Collateral Agent, pursuant to which a security interest is created in favor of
the Collateral Agent for the Lenders under this Agreement in certain Collateral
to be pledged pursuant to this Agreement, as the same may, from time to time, be
further supplemented, modified or amended.
"Servicing Agreement" means a written contract of the Borrower with
another Person to act on behalf of such other Person to, among other things,
receive payments in respect of Mortgage Loans and to service Mortgage Loans.
"Servicing Hedge Agreement" means an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate floor, cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants.
"Servicing Portfolio" means all Mortgage Loans then being serviced by
the Borrower either for its own account with respect to Pledged Items or for
others under Servicing Agreements (excluding Subservicing Agreements).
"Servicing Purchaser" means a Person which has purchased Servicing
Agreements from the Borrower.
"Servicing Rights Certificate" is defined in Section 6.1(xiii).
"Servicing Sale Receivables" means funds due to the Borrower from a
Servicing Purchaser in connection with a sale of Servicing Agreements from the
Borrower to such Servicing Purchaser.
"Servicing Take-Out Value" means, with respect to any Mortgage Loan
serviced by the Borrower pursuant to a Servicing Agreement constituting Eligible
Mortgage Servicing Rights, the amount to be paid by the Approved Servicing
Purchaser under the applicable Approved Servicing Sale Agreement for the rights
to service such Mortgage Loan.
"Servicing Transfer Request" is defined in Section 6.1(xiv).
30
"Settlement Account" means the account established pursuant to Section
8.4.
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Single Family Residence" means a one to four family dwelling unit,
which may be a condominium unit but which shall not be a mobile home,
manufactured housing (the general definition of which is that the majority of
the structure is constructed and assembled elsewhere and delivered to the site)
or a dwelling unit in a cooperative apartment building.
"Subservicing Agreement" means a Servicing Agreement between the
Borrower and a Person which does not own the Mortgage Loans being serviced
thereunder but only has servicing or other non-ownership rights with respect
thereto, pursuant to which the Borrower subservices loans for others.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrower and its Subsidiaries as would be shown
in the consolidated financial statements of the Borrower and its Subsidiaries as
at the beginning of the twelve-month period ending with the month in which such
determination is made, and (ii) is responsible for more than 10% of the
consolidated net income of the Borrower and its Subsidiaries as reflected in the
financial statements referred to in clause (i) above.
"Swingline Advances" means an Advance made by the Swingline Lender
under the special availability provisions described in Section 2.4 bearing
interest at the Overnight Transaction Loan Rate.
"Swingline Commitment" means the obligation of the Swingline Lender to
make Swingline Loans not exceeding the amount set forth as its "Swingline
Commitment" on Schedule "1" hereto, as such amount may be modified from time to
time pursuant to the terms hereof.
"Swingline Lender" means Bank One, NA.
"Swingline Buy-Down Rate" means 0.925 percent (92.5 basis points) per
annum.
"Swingline Loan" means a Loan that is a Swingline Advance.
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"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Termination Date" means March 31, 2005 or any earlier date on which
the Aggregate Commitment is reduced to zero or otherwise terminated pursuant to
the terms hereof.
"Transferee" is defined in Section 12.5.
"Transition Memorandum" is defined in Section 4.1(x).
"Trust Receipt" means a trust receipt substantially in the form of
Exhibit "2' to the Security Agreement.
"Type" means, with respect to any Advance, its nature as an Alternate
Base Rate Advance, Bid Loan, Eurodollar Advance, Fed Funds Advance or Swingline
Advance.
"Uncleared Loan Funding Checks" shall mean any check or draft issued by
the Borrower or other item which represents all or any portion of the amount to
be secured by a Pledged Mortgage (or which represents an amount to be paid to
the initial mortgagee in consideration of the assignment of a Mortgage from such
mortgagee to the Borrower) if such check or draft or other item has not been
collected upon and paid to the named payee therein in good funds.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"VA" means the Veterans Administration or other agency, corporation or
instrumentality of the United States as to which the powers and duties of the
Veterans Administration have been transferred.
"VA-Approved Lender" means an institution that is approved by the VA to
act as a lender in connection with the origination of any Mortgage Loan
guaranteed by the VA.
"Warehouse Shortfall" means, for any day, the amount (if any) by which
(i) the aggregate principal balance of all Loans outstanding on such day exceeds
(ii) the Warehouse Borrowing Base on such day.
"Warehouse Borrowing Base" means, for any date, that portion of the
Borrowing Base on such date attributable to Eligible Collateral other than
Eligible Mortgage Servicing Rights and Eligible Servicing Sale Receivables.
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"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitment, Sublimits and Types of Advances.
2.1.1 Commitment and Lending Sublimits. From and including
the date of this Agreement and prior to the Termination Date, each Lender
severally agrees, on the terms and conditions set forth in this Agreement
(including the lending sublimits (the "Lending Sublimits") set forth below), to
make Loans to the Borrower from time to time; provided that, on any date, after
giving effect to such Loans and all other loans that the Borrower has requested
be made on such date under this Agreement:
(1) the aggregate principal balance then
outstanding under all Loans then held by such Lender
(excluding any Bid Loans) shall not exceed the amount of such
Lender's then-current Commitment;
(2) the aggregate principal balance of all
outstanding Swingline Loans held by any Swingline Lender on
any date shall not exceed such Swingline Lender's Swingline
Commitment; and
(3) the aggregate principal balance of all
outstanding Advances under this Agreement on such date shall
not exceed the lesser of (i) the Aggregate Commitment and (ii)
the Borrowing Base.
Subject to the terms of this Agreement, the Borrower may borrow, repay and
reborrow at any time prior to the Termination Date. The Commitments to lend
hereunder shall expire on the Termination Date.
2.1.2 Borrowing Base Sublimits by Category. The maximum
amount that can be credited toward the Borrowing Base from certain categories of
Eligible Collateral shall be limited so that the Borrowing Base value determined
under:
(i) clause (v) of the definition thereof (Eligible
Non-Conforming Mortgage Loan) shall not exceed ten
percent (10%) of the Aggregate Commitment; provided,
however, that notwithstanding the foregoing, during
each month of December and each month of January,
Eligible Non-Conforming Mortgage Loans may exceed
such 10% sublimit so long as Eligible Non-
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Conforming Mortgage Loans do not exceed twenty
percent (20%) of the Aggregate Commitment; and
(ii) clause (vi) of the definition thereof (Aggregate
Servicing Value) shall not exceed ten percent (10%)
of the Aggregate Commitment.
2.1.3 Borrowing Base Sublimits by Asset Type. The maximum
amount that can be credited toward the Borrowing Base from certain types of
Collateral, regardless of category, shall be limited (collectively with the
limits set forth in Section 2.1.2, the "Borrowing Base Sublimits") so that the
Borrowing Base value attributable to:
(i) clause (iii) of the definition thereof (Eligible
Jumbo Mortgage Loans) shall not exceed thirty-five
percent (35%) of the Aggregate Commitment; and
(ii) clause (iv) of the definition thereof (Eligible
Oversize Jumbo Mortgage Loans) shall not exceed five
percent (5%) of the Aggregate Commitment.
2.1.4 Types of Advances. Each Advance hereunder shall
consist of one or more Primary Advances, Bid Loans or Swingline Advances
requested by the Borrower in accordance with Sections 2.8 and 2.9. Primary
Advances shall be available as provided in Section 2.2 and Swingline Advances
shall be available as provided in Section 2.4. Bid Loans shall only be
available, and shall accrue interest at the Bid Rate agreed to by the Borrower
and the applicable Bid Lender, in accordance with Section 2.5.
2.2 Primary Advances. Subject to the terms and conditions herein
(including the Lending Sublimits) the Borrower may request Primary Advances from
the Lenders on a pro rata basis in accordance with each such Lender's Commitment
Percentage. Primary Advances shall accrue interest at the Eurodollar Rate, the
Federal Funds Rate or the Alternate Base Rate, as selected by the Borrower in
accordance with Sections 2.8 and 2.9.
2.3 Buy Down Loans. Notwithstanding anything contained in this
Agreement, the Borrower and any individual Lender (a "Buy-Down Lender") may
notify the Agent in writing that the Borrower and such Buy-Down Lender have
entered into a Buy-Down Agreement with respect to all Fed Funds Loans and/or all
Swingline Loans from time to time outstanding and held by such Buy-Down Lender,
and, that, pursuant to said Buy-Down Agreement, the interest rate applicable to
such Fed Funds Loans and/or such Swingline Loans, as applicable, during any
interest calculation period shall be the Buy-Down Rate with respect to such Fed
Funds Loans and Swingline Buy-Down Rate with respect to such Swingline Loans and
shall be based on the assumption that the Borrower shall maintain sufficient
Available Deposits with such Buy-Down Lender. The Agent shall (until otherwise
notified by the Borrower and Buy-Down Lender to the contrary) accrue interest on
such Fed Funds Loans at the Buy-Down Rate and such Swingline Loans at the
Swingline Buy-Down Rate and the Borrower shall pay such interest in accordance
with Section 2.17. The Agent shall have no obligation to verify the amount of
any Available Deposits supporting the pricing of such Fed Funds Loans and/or
Swingline Loans, as applicable, held by any Buy-Down Lender, including without
limitation, any deficiency fees or other amounts payable to such Lender by the
Borrower under the applicable Buy-Down Agreement. The Borrower shall pay all
deficiency fees or other amounts payable under its Buy-Down
34
Agreement with each Buy-Down Lender directly to such Buy-Down Lender within ten
(10) calendar days of receipt of a billing statement from such Buy-Down Lender.
Any Buy-Down Lender may elect not to make demand for the payment of deficiency
fees accruing in respect of any shortage of Available Deposits from time to time
and it is expressly agreed and understood that: (1) any such deficiency fee
shall not, by reason of such failure of such Buy-Down Lender or otherwise, be
deemed to have been waived by such Buy-Down Lender (except as such waiver is
expressly acknowledged in writing by such Buy-Down Lender from time to time),
and (2) all deficiency fees accrued and unpaid hereunder and not so expressly
waived, whether or not previously declared due and owing by any such Buy-Down
Lender, shall automatically be due and payable in full upon the Termination
Date.
2.4 Swingline Advances.
2.4.1 General. Subject to the terms and conditions herein
(including the Lending Sublimits), the Borrower may request Swingline Advances
from the Swingline Lender. On any Borrowing Date each Swingline Advance
requested by the Borrower shall be funded to the Borrower by the Swingline
Lender and in such amounts as designated in the Borrowing Notice.
2.4.2 Swingline Advances to Pay Amounts Due to Swingline
Lender. If any amounts are advanced by the Swingline Lender to cover checks or
wire transfers from Borrower accounts maintained with the Swingline Lender when
there are insufficient funds in such accounts to cover the applicable check or
wire transfer and sufficient funds are not deposited in the applicable account
before the close of business on the day on which the applicable check or wire
transfer request is honored, then the Borrower shall be deemed to have
requested, and the Swingline Lender may (but shall not be obligated to) elect to
make, a Swingline Advance at the Alternate Base Rate to pay such overdraft
amount (even if such a Swingline Advance would cause the aggregate amount of all
outstanding Swingline Advances to exceed the Swingline Commitment); provided
however, that (i) the Swingline Lender shall not make any such Swingline Advance
to the extent such Advance would cause (x) the aggregate unpaid principal amount
outstanding under this Agreement to exceed the Borrowing Base or (y) the
aggregate principal balance of all outstanding Advances under this Agreement to
exceed the Aggregate Commitment, and (ii) the reallocations of any such
Swingline Advances among the Lenders shall be as set forth in Section 2.4.3 and
Section 2.6.
2.4.3 Reallocation of Swingline Advances. Upon the election
of the Swingline Lender at any time, all outstanding Swingline Advances
designated by the Swingline Lender shall be reallocated among all Lenders in
accordance with each Lender's Commitment Percentage, and each such Swingline
Advance shall thereafter be deemed for all purposes a Fed Funds Advance.
2.5 Bid Loans.
2.5.1 Solicitation of Bids. In addition to Primary Advances
and Swingline Advances hereunder, the Borrower may, at any time, solicit a bid
from any Lender on a non-pro rata basis for a Bid Loan in such amount and
accruing interest at such rate as may be bid directly to the Borrower by such
Lender for interest periods of 1 to 60 days. Such Lender, in its sole
discretion, may make such a bid. The Borrower will be under no obligation to
accept any such
35
bid, but may accept any one, or more than one, of such bids. A Lender whose bid
has been accepted by the Borrower shall be referred to as a "Bid Lender". The
Borrower and each Bid Lender shall execute and submit a Bid Loan Notice to the
Agent at the time of the Borrowing Notice for such Bid Loan. Notwithstanding
anything to the contrary contained herein, no Bid Loans shall be made hereunder
after the occurrence and during the continuance of a Default.
2.5.2 Availability. Any such loan made from a Bid Lender
under the terms of a bid shall be designated a "Bid Loan" and shall be subject
to the Lending Sublimits.
2.5.3 Separate From Commitment. Each Lender's commitment
under an accepted special bid shall be separate from such Lender's Commitment
and shall not reduce such Lender's obligation to continue to fund its Commitment
Percentage or its percentage of Swingline Advances, as the case may be, of any
other Advances hereunder.
2.5.4 Notes. Each Bid Loan owing to each Bid Lender shall
be evidenced by a promissory note or notes in form mutually agreed to by the
Borrower and such Bid Lender. The Agent shall have no responsibility to confirm
the existence or substance of such promissory notes.
2.5.5 Other Terms. Each Bid Lender shall be solely
responsible for determining the Bid Rate, establishing the prior notice required
for the Borrower to select, continue or convert any such Bid Rate, any interest
period with respect thereto and any fees or charges to the Borrower for
repayment of a Bid Loan prior to the end of any such interest period. Upon
receipt of written notice from a Bid Lender to the Agent that the Borrower is in
default under a Bid Loan Note and specifying the nature of such default, the
Agent shall give notice of such default under Article VII (to the extent
required therein) and such default under such Bid Loan Note shall give rise to a
Default after expiration of any applicable cure period under Article VII (to the
extent required therein).
2.6 Reallocation Upon Default. At the request of any Lender given
after the occurrence of, and during the continuance of, a Default, all Advances
(other than Bid Loans) shall be reallocated among all Lenders, in accordance
with each Lender's Commitment Percentage, and all outstanding Swingline Advances
shall thereafter be deemed Alternate Base Rate Advances. Each Lender holding
less than its Commitment Percentage of all such Advances shall immediately
purchase for cash and at face value such participations in the Loans held by
other Lenders, and make such other adjustments, as may be needed to cause each
Lender to hold its Commitment Percentage of the Advances (other than Bid Loans).
No Lender shall be required to so purchase such participations to the extent
that such purchase would cause such Lender's share of the aggregate unpaid
principal amount of all Loans (other than Bid Loans) then outstanding under this
Agreement to exceed its Commitment hereunder. Notwithstanding anything to the
contrary contained in this Agreement, after any such reallocation has occurred:
(i) the Swingline Commitment shall be zero and (ii) all future Advances, if any,
shall be made as Alternate Base Rate Advances.
2.7 Fees. The Borrower shall pay the following fees (the "Fees"):
36
2.7.1 Facility Fees. A facility fee based on the Aggregate
Commitment from time to time from and after the date hereof, calculated at the
Facility Fee Rate, expressed as a per diem rate on the actual Aggregate
Commitment for each day during the preceding full or partial calendar quarter,
payable in arrears, on the last day of each calendar quarter and on the
Termination Date. This fee shall be paid to the Agent and allocated among the
Lenders on a pro rata basis in accordance with their respective Commitments
during such quarter.
2.7.2 Collateral Shortfall Fees.
(1) For each day on which a Gestation Shortfall
exists, a fee ("Gestation Fee") to the Lenders with Loans
outstanding in an amount equal to (A) 0.10% multiplied by (B)
such Gestation Shortfall and divided by (C) 360, which
Gestation Fee shall be allocated among the Lenders pro-rata in
proportion to their respective outstanding Loans on such day.
(2) For each day on which a Warehouse Shortfall
exists, a fee (" Warehouse Shortfall Fee") to the Lenders with
Loans outstanding in an amount equal to (A) 0.15% multiplied
by (B) such Warehouse Shortfall and divided by (C) 360, which
Warehouse Shortfall Fee shall be allocated among such Lenders
pro-rata in proportion to their respective outstanding Loans
on such day. The Warehouse Shortfall Fee is in addition to any
Gestation Shortfall Fee which may be due.
(3) Notwithstanding the fact that the Gestation
Fee and Warehouse Shortfall Fee shall be calculated and
accrued daily, such Collateral Fee shall be payable in arrears
on the fifth Business Day of each month and upon the
Termination Date.
2.7.3 Amendment Fee. An amendment fee of $2,500 to each
Lender for each material amendment (as determined in the sole and absolute
discretion of the Agent) to this Agreement other than amendments required to be
made under Section 2.10(b) of this Agreement (provided that with respect to each
amendment, such fee shall only be due to Lenders that sign such amendment by the
date requested by the Agent).
2.7.4 Agent Fees. Any fees payable to the Agent pursuant to
the Borrower's prior letter agreement with the Agent dated February 10, 2003.
2.7.5 Collateral Agent Fees. Any fees payable to Collateral
Agent for its services rendered pursuant to the Security Agreement as agreed to
by the Borrower and charged by Collateral Agent from time to time.
2.7.6 Fees Payable in connection with Buy-Down Loans and
Bid Loans. The Borrower shall pay any fees and other charges when due (i) to any
Buy-Down Lender under a Buy-Down Agreement as described in Section 2.3, and (ii)
to any Bid Lender which the Borrower has agreed to pay in connection with Bid
Loans made available by such Lender.
2.8 Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the
37
Interest Period applicable to each Advance from time to time. The Borrower shall
give the Agent irrevocable notice (a "Borrowing Notice") not later than (i)
10:00 a.m. (Chicago time) on the Borrowing Date of each Alternate Base Rate
Advance or Fed Funds Advance, (ii) 2:00 p.m. (Chicago time) on the proposed
Borrowing Date for each Bid Loan (or at such earlier time as may be required by
the terms of a Bid Loan Notice to the Bid Lender and the Agent), (iii) 4:00 p.m.
(Chicago time) on the proposed Borrowing Date for each Swingline Advance, and
(v) 11:00 a.m. (Chicago time) at least three Business Days before the Borrowing
Date for each Eurodollar Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance,
(b) the aggregate amount of such Advance, which shall be in an
amount equal to $5,000,000 or a whole multiple of $1,000,000
in excess thereof, except that Swingline Advances shall be in
a minimum amount of $100,000 but need not be in multiples of
$100,000,
(c) the Type of Advance selected,
(d) in the case of each Eurodollar Advance, the Interest Period
applicable thereto, and
(e) if such Advance is a Bid Loan, all of the information required
under a Bid Loan Notice.
Not later than noon (Chicago time) on each Borrowing Date, with respect to all
Advances other than Swingline Advances and Bid Loans, each Lender shall make
available its Loan or Loans comprising such Advance, in funds immediately
available in Chicago to the Agent at its address specified pursuant to Article
XIII; provided that Bid Loans may be made available at any time up to 3:30 p.m.
(Chicago time) and Swingline Advances may be made available up to the close of
business. The Agent will make the funds so received from the Lenders available
to the Borrower at the Agent's aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. An
Alternate Base Rate Advance shall continue as an Alternate Base Rate Advance
unless and until such Alternate Base Rate Advance is converted into another Type
of Advance (other than a Swingline Advance or a Bid Loan). A Fed Funds Advance
shall continue as a Fed Funds Advance unless and until (a) such Advance is
converted into a different Type of Advance (other than a Swingline Advance or a
Bid Loan) in accordance with the terms hereof or (b) the Borrower has paid any
such Fed Funds Advance prior to 10:00 a.m. (Chicago time) on any Business Day. A
Swingline Advance shall continue as a Swingline Advance unless and until the
Borrower has paid such Swingline Advance prior to 3:00 p.m. (Chicago time) on
any Business Day. Each Eurodollar Advance shall continue as a Eurodollar Advance
until the end of the then applicable Interest Period therefor, at which time
such Eurodollar Advance shall be automatically converted into an Alternate Base
Rate Advance unless the Borrower shall have given the Agent a
Conversion/Continuation Notice requesting that, at the end of such Interest
Period, such Eurodollar Advance either continue as a Eurodollar Advance for the
same or another Interest Period or be converted into an Advance of another Type
(other than a Swingline Advance or a Bid Loan). Bid Loans and Swingline Advances
may be repaid out of new Advances hereunder but may not be converted directly to
a
38
different Type of Advance. The Borrower may elect from time to time to convert
all or any part of an Advance of any Type (other than a Swingline Advance or a
Bid Loan) into any other Type or Types of Advances (other than a Swingline
Advance or a Bid Loan); provided that any conversion of any Eurodollar Advance
shall be made on, and only on, the last day of the Interest Period applicable
thereto. The Borrower shall give the Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of an Alternate Base Rate
Advance or Fed Funds Advance or conversion or continuation of a Eurodollar
Advance not later than (i) 10:00 a.m. (Chicago time) on the date of the
requested conversion, in the case of a conversion into an Alternate Base Rate
Advance or Fed Funds Advance or (ii) 11:00 a.m. (Chicago time) at least three
Business Days prior to the date of the requested conversion into or continuation
of a Eurodollar Advance, specifying:
(i) the requested date which shall be a Business Day, of
such conversion or continuation,
(ii) the aggregate amount (which meets the minimums set
forth in Section 2.8(b)) and Type of the Advance which is to be
converted or continued, and
(iii) the amount and Type(s) of Advance(s) into which such
Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurodollar Advance, the duration
of the Interest Period applicable thereto.
2.10 (a) Reductions to Aggregate Commitment. The Borrower may
from time to time permanently reduce the Aggregate Commitment in whole, or in
part ratably among the Lenders in integral multiples of $5,000,000, upon at
least ten Business Days' written notice to the Agent, which notice shall specify
the amount of any such reduction. On or before the effective date of any such
reduction, the Borrower shall, if necessary, repay sufficient Loans to prevent
the remaining outstanding Loans hereunder, after giving effect to such permanent
reduction, from exceeding the Lending Sublimits. Upon any reduction of the
Aggregate Commitment, upon the election of the Swingline Lender, the reduction
in such Lender's Commitment may also reduce its Swingline Commitment on a pro
rata basis.
(b) Optional Increases in Aggregate Commitment. The
Borrower shall have the right to temporarily increase the Aggregate Commitment
from its then-current level by up to $175,000,000, but not to an amount in
excess of $350,000,000 and not for a period in excess of 45 days, by obtaining
an additional Commitment or Commitments from one or more of the Lenders,
provided that (A) the Borrower has given the Lenders notice of any increase in
the Aggregate Commitment and the amount of any increase in a Lender's Commitment
at least two (2) Business Days prior to any such increase, and (B) the Agent has
received an "Amendment to Credit Agreement" in the form of Exhibit K, which
amendment shall be executed by the Borrower, the Agent and any Lender increasing
its Commitment thereby, provided further that the Borrower shall not be
permitted to temporarily increase the Aggregate Commitment more than four times
in any calendar year. Each such amendment shall be deemed to amend Schedule "1"
to the extent necessary to reflect any changes in the Commitments hereunder, and
the Agent shall promptly deliver a copy of such amendment to each Lender whose
Commitment Percentage is affected thereby. On the Business Day following any
such increase, all outstanding Fed Funds Advances and Alternate Base Rate
Advances shall be reallocated among the Lenders in
39
accordance with the Lenders' respective Commitment Percentages. Except as
otherwise provided in Section 2.6, Eurodollar Advances shall not be reallocated
among the Lenders prior to the expiration of the applicable Interest Period in
effect at the time of any such increase.
(c) Permanent Increases to Aggregate Commitment. The Borrower
shall have the right to permanently increase the Aggregate Commitment by
obtaining additional Commitments, either from one or more of the Lenders or
another lending institution provided that (A) the Agent has approved the
identity of any such new Lender, such approval not to be unreasonably withheld,
(B) any such new Lender assumes all of the rights and obligations of a "Lender"
hereunder, and (C) the procedure described in this Section 2.10.(c) has been
complied with, provided further that the Aggregate Commitment shall not at any
time exceed $350,000,000 without the approval of the Agent and all of the
Lenders. Any amendment hereto for such an increase or addition shall be in the
form attached hereto as Exhibit "N" and shall only require the written
signatures of the Agent, the Borrower and the Lender(s) being added or
increasing their Commitment, subject only to the approval of all Lenders if any
such increase would cause the Aggregate Commitment to exceed $350,000,000. In
addition, within a reasonable time after the effective date of any increase, the
Agent shall, and is hereby authorized and directed to, revise Schedule "1'
reflecting such increase and shall distribute such revised Schedule to each of
the Lenders and the Borrower, whereupon such revised Schedule shall replace the
old Schedule and become part of this Agreement. On the Business Day following
any such increase, all outstanding Fed Funds Advances and Alternate Base Rate
Advances shall be reallocated among the Lenders (including any newly added
Lenders) in accordance with the Lenders' respective revised Commitment
Percentages. Except as otherwise provided in Section 2.6, Eurodollar Advances
shall not be reallocated among the Lenders prior to the expiration of the
applicable Interest Period in effect at the time of any such increase.
2.11 Principal Payments.
2.11.1 Optional Principal Payments. The Borrower may from
time to time pay, without penalty or premium, all outstanding Alternate Base
Rate Advances or Fed Funds Advances, or, in a minimum aggregate amount of
$100,000 or any integral multiple of $100,000 or excess thereof, any portion of
the outstanding Alternate Base Rate Advances or Fed Funds Advances upon prior
written notice to the Agent (and if a Fed Funds Advance, within the timeframe
described below). The Borrower may from time to time pay, subject to the payment
of any funding indemnification amounts required by Section 3.4 but without
penalty or premium, all outstanding Eurodollar Advances, or, in a minimum
aggregate amount of $500,000 or any integral multiple of $100,000 in excess
thereof, any portion of the outstanding Eurodollar Advances upon three Business
Days' prior notice to the Agent. Fed Funds Advances and Swingline Advances may
be paid on any Business Day provided that the Borrower has given the Agent
written notice of such repayment on the date of such intended payment by (i)
10:00 a.m. (Chicago time) for Fed Funds Advances and (ii) noon (Chicago time)
for Swingline Advances. All optional principal payments shall be applied to the
Type of Advance designated by the Borrower when making such payment, provided
that any payments received during the continuance of a Default and after Section
2.6 has been invoked shall be applied on a pro rata basis to all Advances then
outstanding. Payments so allocated to an Advance shall be distributed to the
Lenders holding the Loans comprising such Advance on a pro rata basis in
accordance with the respective unpaid principal balances of such Loans.
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2.11.2 Required Payments Related to Borrowing Base. On any
date that the aggregate unpaid principal amount outstanding under this Agreement
is in excess of the then-current Borrowing Base, the Borrower shall, prior to
the close of business on such date, either deliver sufficient Eligible
Collateral to eliminate such excess or make a mandatory payment to the Agent for
the benefit of the Lenders in the amount of such excess. Any such payment shall
be allocated as directed by the Borrower unless a Default then exists and
Section 2.6 has been invoked in which case such payment shall be allocated in
accordance with the Lenders' respective outstanding Loans and in conjunction
with the procedures described in Section 2.6, with such payments applied first
to accrued interest and thereafter to principal.
2.11.3 Settlement Account Payments. Prior to the occurrence
of a Default, to the extent the amounts in the Settlement Account are not needed
to keep the Borrowing Base equal to or greater than the aggregate unpaid
principal amount outstanding under this Agreement, the Borrower may withdraw or
otherwise direct the application of such amounts. Upon the occurrence of a
Default (and during the continuance thereof), the Agent may declare a portion of
the principal balance of the Loans, equal to any amounts then on deposit in the
Settlement Account and any deposits made in the Settlement Account during the
continuance of such Default, to be due and payable without demand (unless
previously declared due and payable). Such amount shall be withdrawn from the
Settlement Account by the Agent and shall be applied to the Obligations.
2.11.4 Final Payment on Termination Date. Any outstanding
Advances and all other unpaid Obligations, unless required to be paid earlier
pursuant to the terms hereof, shall be paid in full by the Borrower on the
Termination Date.
2.11.5 Pulte Change in Control. If a Pulte Change in Control
shall occur, all Commitments shall be terminated and all amounts outstanding
under this Agreement shall become due and payable upon the election of the
Required Lenders.
2.12 Changes in Interest Rate, etc. Each Alternate Base Rate
Advance shall bear interest on the outstanding principal amount thereof, for
each day from and including the date such Advance is made or is automatically
converted from a Eurodollar Advance into an Alternate Base Rate Advance pursuant
to Section 2.9, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.9 hereof, at a rate per annum equal to
the Alternate Base Rate for such day. Changes in the rate of interest on that
portion of any Advance maintained as an Alternate Base Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. The interest
rate on each Swingline Advance or Fed Funds Advance shall be recalculated daily
for each day that such Swingline Advance or Fed Funds Advance is continued under
Section 2.9. Each Eurodollar Advance shall bear interest on the outstanding
principal amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest Period
at the interest rate determined by the Agent as applicable to such Eurodollar
Advance based upon the Borrower's selections under Section 2.8 and 2.9 and
otherwise in accordance with the terms hereof. Not more than four (4) different
Interest Periods may be in effect at any time and no Interest Period may end
after the Termination Date.
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2.13 Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.8 or 2.9, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 9.1 requiring
unanimous consent of the Lenders to reductions in interest rates), declare that
no Advance may be made as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 9.1 requiring
unanimous consent of the Lenders to reductions in interest rates) declare that
(i) each Eurodollar Advance (unless such Advances have been reallocated pursuant
to Section 2.6) shall bear interest for the remainder of the applicable Interest
Period at the rate otherwise applicable to such Interest Period plus 2% per
annum and (ii) each Advance (other than those under clause (i) above) shall bear
interest at a rate per annum equal to the Alternate Base Rate plus 2% per annum;
provided that, during the continuance of a Default under Section 7.6 or 7.7, the
interest rates set forth in clauses (i) and (ii) above shall be applicable to
all Advances without any election or action on the part of the Agent or any
Lender.
2.14 Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Agent at the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent specified in
writing by the Agent to the Borrower, on the date when due by (i) noon (Chicago
time) with respect to all Advances other than Swingline Advances and (ii) 4:00
p.m. (Chicago time) with respect to Swingline Advances and all such payments
shall be applied in accordance with Section 2.11.1. Notwithstanding the
foregoing, if the Borrower fails to give the Agent notice of repayment of a Fed
Funds Advance before 10:00 a.m. (Chicago time) on the Business Day that the
Borrower intends to repay such Fed Funds Advance, any payment of such Fed Funds
Advance received by the Agent on such Business Day shall be deemed to have been
received by the Agent at the opening of business on the following Business Day.
Each payment delivered to the Agent for the account of any Lender shall be
delivered promptly by the Agent to such Lender in the same type of funds that
the Agent received at its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent from such
Lender. The Agent is hereby authorized to charge the account of the Borrower
maintained with Bank One for each payment of principal, interest and fees as it
becomes due hereunder.
2.15 Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.
(ii) Subject to Section 2.3, the Agent shall also maintain
accounts in which it will record (a) the amount of each Loan made
hereunder, the Type thereof and the Interest Period with respect
thereto, (b) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder
and (c) the amount of any sum received by the Agent hereunder from the
Borrower and each Lender's share thereof.
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(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be prima facie evidence
of the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Agent or any Lender to
maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Obligations in
accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by
a Note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a Note payable to the order of such Lender. Thereafter,
the Loans evidenced by such Note and interest thereon shall at all
times (including after any assignment pursuant to Section 12.3) be
represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the
extent that any such Lender or assignee subsequently returns any such
Note for cancellation and requests that such Loans once again be
evidenced as described in paragraphs (i) and (ii) above.
2.16 Telephonic Notices. The Borrower hereby authorizes the Lenders
and the Agent to extend, convert or continue Advances, effect selections of
Types of Advances and to transfer funds based on telephonic notices made by any
person or persons the Agent or any Lender in good faith believes to be acting on
behalf of the Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and Conversion/Continuation
Notices to be given telephonically. The Borrower agrees to deliver promptly to
the Agent a written confirmation, if such confirmation is requested by the Agent
or any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Agent and the Lenders, the records of the Agent and the Lenders shall govern
absent manifest error.
2.17 Interest Payment Dates; Interest and Fee Basis. Subject to
Section 2.3, interest shall be payable in accordance with the following
provisions. Interest accrued on each Advance other than a Bid Loan or a
Eurodollar Advance shall be payable on each Payment Date, commencing with the
first such date to occur after the date hereof and at maturity. Interest accrued
on each Eurodollar Advance or Bid Loan shall be payable on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance or Bid
Loan is prepaid, whether by acceleration or otherwise, and at maturity. Interest
accrued on each Eurodollar Advance or Bid Loan having an Interest Period longer
than three months shall also be payable on the last day of each three-month
interval during such Interest Period. Interest and Fees shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day an Advance is made but not for the day of any payment on the amount
paid if payment is received at the place of payment prior to the time required
for payment as set forth in Section 2.14. If any payment of principal of or
interest on an Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day and, in the case
of a principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.18 Notification by the Agent. Promptly after receipt thereof, the
Agent will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice, Conversion/Continuation Notice, and
repayment notice received by it hereunder. Promptly upon determination thereof,
the Agent will notify each Lender making a portion of any Eurodollar
43
Advance and the Borrower of the interest rate applicable to each Eurodollar
Advance. When any Fed Funds Advances or Alternate Base Rate Advances are
outstanding or have been requested, the Agent will give each Lender making or
holding any such Loans and the Borrower prompt notice of each change in such
rates.
2.19 Lending Installations. Each Lender may book its Loans at any
Lending Installation selected by such Lender and may change its Lending
Installation from time to time. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued hereunder shall be
deemed held by each Lender for the benefit of such Lending Installation. Each
Lender may, by written notice to the Agent and the Borrower in accordance with
Article XIII, designate replacement or additional Lending Installation through
which Loans will be made by it and for whose account Loan payments are to be
made.
2.20 Non-Receipt of Funds by the Agent. Unless the Borrower or a
Lender, as the case may be, notifies the Agent prior to the date on which it is
scheduled to make payment to the Agent of (i) in the case of a Lender, the
proceeds of a Loan or an Advance or (ii) in the case of the Borrower, a payment
of principal (including but not limited to situations in which the Borrower
informs the Agent that the Agent will be receiving proceeds of Collateral on a
specific date and that the Borrower intends to use such proceeds to make a
payment of principal), interest or Fees to the Agent for the account of the
Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make
the amount of such payment available to the intended recipient in reliance upon
such assumption. If such Lender or the Borrower, as the case may be, has not in
fact made such payment to the Agent, the recipient of such payment shall, on
demand by the Agent, repay to the Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on the
date such amount was so made available by the Agent until the date the Agent
recovers such amount at a rate per annum equal to (x) in the case of payment due
from a Lender, the Federal Funds Effective Rate for such day for the first three
days and, thereafter, the interest rate applicable to the relevant Loan or (y)
in the case of payment due from the Borrower, the interest rate applicable to
the relevant Loan.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1 Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation with any request or directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes or changes the basis of taxation of payments
(other than with respect to Excluded Taxes) to any Lender in respect of
its Eurodollar Loans, or
44
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Installation
of making, funding or maintaining its Eurodollar Loans or reduces any
amount receivable by any Lender or any applicable Lending Installation
in connection with its Eurodollar Loans, or requires any Lender or any
applicable Lending Installation to make any payment calculated by
reference to the amount of its Eurodollar Loans held or interest
received by it, by an amount deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Installation in connection with such Eurodollar Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in an amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender
determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling
such Lender is increased as a result of a Change, then, within 15 days of demand
by such Lender, the Borrower shall pay such Lender the amount necessary to
compensate for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this
Agreement, its Loans or its Commitment to make Loans hereunder (after taking
into account such Lender's policies as to capital adequacy). "Change" means (i)
any change after the date of this Agreement in the Risk-Based Capital Guidelines
or (ii) any adoption of or change in any other law, governmental or
quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Installation or any corporation
controlling any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based
capital guidelines in effect in the United States on the date of this Agreement,
including transition rules, and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States implementing the
July 1988 report of the Basle Committee on Banking Regulation and Supervisory
Practices Entitled "International Convergence of Capital Measurements and
Capital Standards," including transition rules, and any amendments to such
regulations adopted prior to the date of this Agreement.
3.3 Availability of Types of Advances. If any Lender determines
that maintenance of its Eurodollar Loans at a suitable Lending Installation
would violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances or Fed
Funds Advances are not available or (ii) the interest rate applicable to a Type
of Advance does not accurately reflect the cost of making or maintaining such
Advance, then the Agent shall
45
suspend the availability of the affected Type of Advance and require any
Advances of the affected Type to be repaid or converted to Alternate Base Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made, continued or converted on the date specified by
the Borrower for any reason other than default by the Lenders, the Borrower will
indemnify each Lender for any loss or cost incurred by it resulting therefrom,
including, without limitation, any loss or cost in liquidating or employing
deposits acquired to fund or maintain the Eurodollar Advance.
3.5 Taxes.
(i) All payments by the Borrower to or for the account of
any Lender or the Agent hereunder or under any Note shall be made free
and clear of and without deduction for any and all Taxes. If the
Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Agent, (a)
the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional
sums payable under this Section 3.5) such Lender or the Agent (as the
case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (b) the Borrower shall make such
deductions, (c) the Borrower shall pay the full amount deducted to the
relevant authority in accordance with applicable law and (d) the
Borrower shall furnish to the Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note ("Other
Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable
under this Section 3.5) paid by the Agent or such Lender and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date the Agent or
such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not less than ten Business Days after the
date of this Agreement, (i) deliver to each of the Borrower and the
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying in either case that such Lender
is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, and (ii)
deliver to each of the Borrower and the Agent a United
46
States Internal Revenue Form W-8 or W-9, as the case may be, and
certify that it is entitled to an exemption from United States backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to
each of the Borrower and the Agent (x) renewals or additional copies of
such form (or any successor form) on or before the date that such form
expires or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it, such
additional forms or amendments thereto as may be reasonably requested
by the Borrower or the Agent. All forms or amendments described in the
preceding sentence shall certify that such Lender is entitled to
receive payments under this Agreement without deduction or withholding
of any United States federal income taxes, unless an event (including
without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form
or amendment with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv), above (unless such failure is due to a change in treaty,
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by
the United States; provided that, should a Non-U.S. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form
required under clause (iv), above, the Borrower shall take such steps
as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the Agent),
at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a
reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any
Lender (because the appropriate form was not delivered or properly
completed, because such Lender failed to notify the Agent of a change
in circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Agent fully for all amounts paid, directly or indirectly, by the Agent
as tax, withholding therefor, or otherwise, including penalties and
interest, and including taxes imposed by any jurisdiction on amounts
payable to the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time charges of
attorneys for the Agent, which attorneys may be employees of the
47
Agent). The obligations of the Lenders under this Section 3.5(vii)
shall survive the payment of the Obligations and termination of this
Agreement.
3.6 Lender Statements; Survival of Indemnity.
(i) To the extent reasonably possible, each Lender shall
designate an alternate Lending Installation with respect to its
Eurodollar Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of a
Type of Advance under Section 3.3, so long as such designation is not,
in the judgment of such Lender, disadvantageous to such Lender. Each
Lender shall deliver a written statement of such Lender to the Borrower
(with a copy to the Agent) as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender determined
such amount and shall be final, conclusive and binding on the Borrower
in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan shall be
calculated as though each Lender funded its Eurodollar Loan through the
purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the Eurodollar Rate
applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable within fifteen (15) days after
receipt by the Borrower of such written statement. The obligations of
the Borrower under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment
of the Obligations and termination of this Agreement.
(ii) If the Borrower is required pursuant to Section 3.1,
3.2, or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue a Type of Advance shall be
suspended pursuant to Section 3.3 (any Lender so affected an "Affected
Lender"), the Borrower may elect, if such amounts continue to be
charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of
such replacement, and provided further that, concurrently with such
replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the Agent shall agree, as of such
date, to purchase for cash the Advances and other Obligations due to
the Affected Lender and to become a Lender for all purposes under this
Agreement and to assume all obligations of the Affected Lender to be
terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) the Borrower shall pay
to such Affected Lender in same day funds on the day of such
replacement (A) all interest, fees and other amounts then accrued but
unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation
payments due to such Affected Lender under Sections 3.1, 3.2, and 3.5,
and (B) an amount, if any, equal to the payment which would have been
due to such Lender on the day of such replacement under Section 3.4 had
the Loans of such Affected Lender been prepaid on such date rather than
sold to the replacement Lender.
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ARTICLE IV
CONDITIONS PRECEDENT; WITHHOLDING TAX EXEMPTION
4.1 Effectiveness. This Agreement shall not be effective and no
Lender shall be required to make the initial Advance hereunder until a date (the
"Effective Date") upon which the Borrower has furnished or caused to be
furnished to the Agent:
(i) Copies of the articles or certificate of organization
of the Borrower, together with all amendments, certified by the
appropriate governmental officer in its jurisdiction of organization.
(ii) Copies, certified by the Secretary or Assistant
Secretary of the Borrower, of its operating or other management
agreement and of resolutions of its members and of any other body
authorizing the execution of the Loan Documents to which the Borrower
is a party.
(iii) An incumbency certificate, executed by the Secretary
or Assistant Secretary of the Borrower, which shall identify by name
and title and bear the signatures of the Authorized Officers and any
other officers of the Borrower authorized to sign the Loan Documents to
which the Borrower is a party, upon which certificate the Agent and the
Lenders shall be entitled to rely until informed of any change in
writing by the Borrower.
(iv) A good standing certificate for the Borrower from the
Secretary of State of its state of organization.
(v) A certificate, signed by the chief financial officer
of the Borrower, stating that on the initial Borrowing Date no Default
or Unmatured Default has occurred and is continuing.
(vi) A written opinion of the Borrower's counsel,
addressed to the Lenders in a form acceptable to Agent.
(vii) Any Notes requested by a Lender pursuant to Section
2.15 payable to the order of each such requesting Lender.
(viii) A fully executed Security Agreement, together with
such executed UCC-1 financing statements as the Agent may reasonably
request.
(ix) Executed Acknowledgment Agreements with respect to
the Pledged Servicing, in form and substance satisfactory to the Agent.
(x) An agreement between the Borrower and the Agent on
behalf of the lenders under the Prior Facilities and the Lenders under
this Agreement as to the repayment or conversion of loans outstanding
to the Borrower under the Prior Facilities and, the treatment of any
interest and fees accrued thereon (the "Transition Memorandum").
49
(xi) Payment of all Fees due and payable on or before the
Effective Date.
(xii) Establishment of the Settlement Account and the
Funding Account.
(xiii) A copy of each form of Approved Investor Commitment
that the Borrower currently utilizes for any Mortgage Loan that is not
a Conforming Mortgage Loan.
(xiv) Such other documents as any Lender or its counsel may
have reasonably requested.
4.2 Each Advance. The Lenders shall not be required to make any
Advance (other than an Advance that, after giving effect thereto and to the
application of the proceeds thereof, does not increase the aggregate amount of
outstanding Advances; provided that the conditions contained in this Section
must be met for any Advance which refunds a Bid Loan), unless on the applicable
Borrowing Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in
Article V are true and correct in all material respects as of such
Borrowing Date except to the extent any such representation or warranty
is stated to relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct in all
material respects on and as of such earlier date.
(iii) All legal matters incident to the making of such
Advance shall be reasonably satisfactory to the Lenders and their
counsel.
Each Borrowing Notice with respect to each such Advance shall
constitute a representation and warranty by the Borrower that each Pledged Item
included in the Borrowing Base constitutes Eligible Collateral, and that after
giving effect to the amount of the Advance being requested, (a) the conditions
contained in Sections 4.2(i) and (ii) have been satisfied, (b) the Borrower has
provided the Collateral Agent with the true and correct information including
the GAAP Carrying Values (correctly calculated in accordance with the provisions
of this Agreement) necessary to calculate the Collateral Value for all Eligible
Collateral, (c) the then current Borrowing Base is equal to or greater than the
aggregate unpaid principal amount outstanding under this Agreement and (d) no
Lending Sublimit has been exceeded.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1 Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or
limited liability company duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization and, except for the State of Missouri and the State of Rhode
Island, has all requisite authority to conduct its business in each jurisdiction
in which its business is conducted.
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The failure of Borrower and its Subsidiaries to be authorized to conduct
business in Missouri and Rhode Island could not reasonably be expected to have a
Material Adverse Effect
5.2 Authorization and Validity. The Borrower has the power and
authority to execute and deliver the Loan Documents and to perform its
obligations thereunder. The execution and delivery by the Borrower of the Loan
Documents and the performance of its obligations thereunder have been duly
authorized by proper limited liability company proceedings, and the Loan
Documents to which the Borrower is a party constitute legal, valid and binding
obligations of the Borrower enforceable against the Borrower in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
5.3 No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries if any such
violation could reasonably be expected to have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries taken as a
whole or (ii) the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict with
or constitute a default thereunder if any such violation, conflict or default
could reasonably be expected to have a material adverse effect on the business
or financial condition of the Borrower and its Subsidiaries taken as a whole, or
result in, or require, the creation or imposition of any Lien in, of or on the
Property of the Borrower or a Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
the Borrower or any of its Subsidiaries, is required to be obtained by the
Borrower or any of its Subsidiaries in connection with the execution and
delivery of the Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the legality, validity,
binding effect or enforceability of any of the Loan Documents (other than
filings to perfect the Liens granted pursuant to the Security Agreement).
5.4 Financial Statements. The December 31, 2002 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lenders were prepared in accordance with GAAP in effect on the date such
statements were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such date and the
consolidated results of their operations for the period then ended.
5.5 Material Adverse Change. Since December 31, 2002, there has
been no change in the business, Property, financial condition or results of
operations of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect.
51
5.6 Taxes. The Borrower and, to its knowledge, its Subsidiaries
have filed all United States federal tax returns and all other tax returns which
are required to be filed and have paid all taxes due pursuant to said returns or
pursuant to any assessment received by the Borrower or any of its Subsidiaries,
except such taxes, if any, as are being contested in good faith by appropriate
proceedings and as to which adequate reserves have been provided in accordance
with Agreement Accounting Principles and as to which no Lien exists. No material
tax liens have been filed and no material claims are being asserted with respect
to any such taxes. The charges, accruals and reserves on the books of the
Borrower and the Subsidiaries in respect of any taxes or other governmental
charges are adequate. Each of the Borrower and each of its Subsidiaries that is
a limited liability company qualifies for disregarded entity tax treatment under
United States federal tax law.
5.7 Litigation and Contingent Obligations. Except as set forth on
Schedule "3" hereto and as otherwise disclosed in the Borrower's annual
financial statements referred to in Section 5.4, there is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their executive officers, threatened against or
affecting the Borrower or any of its Subsidiaries which (i) in the Borrower's
reasonable judgment have a reasonable possibility of being determined adversely
to the Borrower or any Subsidiary, and (ii) if so determined adversely to the
Borrower or any Subsidiary, as the case may be, would be reasonably likely to,
singly or in the aggregate, have a material adverse effect on the financial
condition, or on the respective properties or operations, of the Borrower and
its Subsidiaries taken as a whole or the transactions contemplated by this
Agreement, the Security Agreement and the Notes. Other than any liability
incident to any litigation, arbitration or proceeding which could not reasonably
be expected to have a Material Adverse Effect, the Borrower has no material
contingent obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.8 Subsidiaries. Schedule "4" hereto contains an accurate list of
all Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9 ERISA. The Unfunded Liabilities of all Single Employer Plans
do not in the aggregate exceed $500,000. Neither the Borrower nor any other
member of the Controlled Group has incurred, or is reasonably expected to incur,
any withdrawal liability to Multi-employer Plans in excess of $500,000 in the
aggregate. Each Plan complies in all material respects with all applicable
requirements of law and regulations, no Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other members of the
Controlled Group has withdrawn from any Plan or initiated steps to do so, and no
steps have been taken to reorganize or terminate any Plan.
5.10 Accuracy of Information. No information, exhibit or report
furnished by the Borrower or any of its Subsidiaries to the Agent or to any
Lender in connection with the negotiation of, or compliance with, the Loan
Documents contained any material misstatement of
52
fact or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading.
5.11 Regulation U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrower and its
Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12 Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness or any Rate
Management Transaction.
5.13 Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14 Ownership of Properties. Except as set forth on Schedule "5"
hereto, on the date of this Agreement, the Borrower and its Subsidiaries will
have good title, free of all Liens other than those permitted by Section 6.15,
to all of the Property and assets reflected in the financial statements provided
to the Agent as owned by the Borrower and its Subsidiaries.
5.15 Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
5.16 Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.17 Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.18 GNMA, FHA, VA, FNMA, and FHLMC Eligibility. The Borrower is:
(i) an FHA-Approved Mortgagee in good standing, a VA-Approved Lender, a
FHLMC-Approved Lender and a FNMA-Approved Lender and meets all eligible
requirements of law and governmental regulation so as to be eligible to
originate, purchase, hold and service Mortgage Loans insured by FHA or
supporting any Security; (ii) an approved seller and servicer in good
53
standing of Mortgage Loans to each Federal Agency; and (iii) an approved issuer
and servicer in good standing of Securities for FHLMC, FNMA and GNMA and meets
all FHLMC, FNMA and GNMA requirements, requirements of law and governmental
regulations so as to be able to issue Securities and to originate and service
the Mortgage Loans that secure such Securities.
5.19 Approved Investor Commitments. The forms of Approved Investor
Commitment with respect to Mortgage Loans, other than Conforming Mortgage Loans,
which were delivered to the Agent on the Effective Date are still valid and
currently in use and, except to the extent new forms or changes to the existing
forms of Approved Investor Commitment have been delivered to the Agent,
represent the only forms of Approved Investor Commitment used by the Borrower
for such purposes.
5.20 Accuracy of Representations and Warranties. The
representations and warranties of the Borrower contained in each other document
delivered in connection with this Agreement are, or when such document is
delivered will be, true and correct in all material respects when made.
5.21 No Defaults. No Default or Unmatured Default has occurred and
is continuing.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1 Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of its fiscal
years, an unqualified audit report certified by independent certified
public accountants, reasonably acceptable to the Lenders, prepared in
accordance with Agreement Accounting Principles on a consolidated basis
for itself and the Subsidiaries, including balance sheets as of the end
of such period, related profit and loss and changes in shareholders'
equity statements, and a statement of cash flows, accompanied by any
management letter prepared by said accountants.
(ii) Within 15 days after the close of each month of each
of its fiscal years, for itself and its Subsidiaries, consolidated
unaudited balance sheets as at the close of each such period and
consolidated profit and loss statements (showing a breakout of
servicing sales gains attributed to servicing originated in prior
periods), a change in shareholders equity statement for the period from
the beginning of such fiscal year to the end of such month, all
certified (subject to normal year-end adjustments) by its chief
financial officer.
(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit "F" hereto signed by its chief financial officer
showing the calculations necessary to determine compliance with this
Agreement as currently in effect (regardless of whether this Agreement
was in effect
54
at the date for which such financial statements were prepared) and that
no Default or Unmatured Defaults exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) As soon as available but in any event within fifteen
(15) days after the end of each calendar month, a servicing report and
analysis which shall show the status of all mortgages serviced by the
Borrower including those which are delinquent, all in such form and
detail and including such additional information as the Agent may
reasonably request. Such servicing report shall show separately
information concerning any mortgages or securities with respect to
which there is recourse to the Borrower.
(v) As soon as available but in any event within fifteen
(15) days after the end of each month, a secondary marketing report for
such month reasonably satisfactory to the Agent.
(vi) Within five (5) Business Days after request of Agent,
copies of all documents submitted in connection with any audits by any
of FNMA, FHLMC or GNMA; within ten (10) Business Days after request of
Agent, copies of all compliance and audit reports received from any of
FNMA, FHLMC or GNMA; and promptly upon receipt, a copy of any notice
from (i) any Federal Agency to the effect that it is or is
contemplating withdrawing its approval of the Borrower as a
FHA-Approved Mortgagee, FHLMC-Approved Lender, FNMA-Approved Lender or
VA-Approved Lender or as an approved seller and servicer for FNMA,
FHLMC or GNMA or (ii) any private mortgage insurer which insures any of
the Collateral to the effect that it is contemplating withdrawing its
approval of the Borrower as an approved originator of insured Mortgage
Loans.
(vii) Within 270 days after the close of each fiscal year,
a statement of the Unfunded Liabilities of each Single Employer Plan,
certified as correct by an actuary enrolled under ERISA.
(viii) As soon as possible and in any event within 10 days
after the Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief financial officer
of the Borrower, describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
(ix) As soon as possible and in any event within 10 days
after receipt by the Borrower, a copy of (a) any notice or claim to the
effect that the Borrower or any of its Subsidiaries is or may be liable
to any Person as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental, health or
safety law or regulation by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(x) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished.
55
(xi) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly or other regular
reports which the Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission.
(xii) Such other information (including non-financial
information) as the Agent or any Lender may from time to time
reasonably request.
(xiii) Within fifteen (15) days after the end of each month,
the Borrower shall deliver to the Agent and the Collateral Agent a
report (each such report, a "Servicing Rights Certificate") setting
forth (A) the Servicing Take-Out Value of the Eligible Mortgage
Servicing Rights as of the end of such month, which amount shall be
computed in accordance with the values contemplated for such servicing
under the terms of a valid Approved Servicing Sale Agreement and in
accordance with FAS 140 with appropriate deductions, if any, necessary
to account for any capitalized servicing rights which may be shown on
the Borrower's balance sheet but which do not constitute Eligible
Mortgage Servicing Rights (whether due to failure to satisfy all of the
eligibility requirements of the effect of borrowing base sublimits, or
otherwise), and (B) the amount of the Eligible Servicing Sale
Receivables as of the end of such month; which report shall be
presented on a consistent basis and in accordance with GAAP. If title
to any servicing rights constituting Eligible Mortgage Servicing Rights
is to be transferred by the Borrower and the sum of the resulting
initial purchase price payment to be made directly to the Cash and
Collateral Account (if any) and Eligible Servicing Sale Receivable (if
any) will be less than the Servicing Take-Out Value of the Eligible
Mortgage Servicing Rights so sold, the Borrower shall deliver a report
(a "Servicing Transfer Report") to the Agent and the Collateral Agent
on or prior to the date of transfer of title to the Eligible Mortgage
Servicing Rights indicating (i) the amount of the resulting reduction
in the Servicing Take-Out Value, (ii) the amount of the initial
purchase price payment to be made if such payment is to be made to the
Cash and Collateral Account, and (iii) the amount of the resulting
Eligible Servicing Sale Receivable, if any (which report shall be
certified as to fairness of presentation, Agreement Accounting
Principles and consistency by the chief financial officer of the
Borrower). If the Borrower at any time determines that the amount of
the Take-Out Value of Eligible Mortgage Servicing Rights or the amount
of Eligible Servicing Sale Receivables is less than the amounts of such
Collateral that are then included in the calculation of Aggregate
Servicing Value (e.g. because the Borrower has determined that certain
Pledged Servicing or Servicing Sale Receivables no longer meet the
applicable eligibility criteria), then the Borrower shall immediately
notify the Agent and the Collateral Agent of the applicable change (a
"Reduced Servicing Notice").
6.2 Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, only use the proceeds of the Advances for the purposes described
in the recitals hereto, to pay interest, Fees, expenses and other Obligations,
to pay Indebtedness of the Borrower existing on the date hereof and to repay
outstanding Advances. The Borrower will not, nor will it permit any Subsidiary
to, use any of the proceeds of the Advances to purchase or carry any "margin
stock" (as defined in Regulation U) or to make any Acquisition (other than those
permitted by Section 6.14) or to make any Acquisition for which the board of
directors of the Person being acquired has not consented to such Acquisition.
56
6.3 Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted. The Borrower will, and will cause each Subsidiary which is a material
part of the Borrower's overall business operations to, do all things necessary
to remain duly incorporated or organized, validly existing and (to the extent
such concept applies to such entity) in good standing as a domestic corporation,
partnership or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
The Borrower will use best efforts to adhere in all material respects to
customary practices and standards in the industry insofar as adherence to such
practices and standards would require the Borrower to cause obligors whose
indebtedness is secured by Pledged Mortgages to comply with their obligations
under such Pledged Mortgages with respect to the real estate securing such
indebtedness, including without limitation, the payment of all taxes and
insurance premiums related thereto and maintenance of such real estate in
compliance with all laws.
6.5 Taxes. The Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles. At any time that the Borrower
or any of its Subsidiaries is organized as a limited liability company, each
such limited liability company will qualify for disregarded entity tax treatment
under United States federal tax law.
6.6 Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with financially sound and reputable insurance companies insurance
on all their Property in such amounts and covering such risks as is consistent
with sound business practice, and the Borrower will furnish to any Lender upon
request full information as to the insurance carried. The Borrower will at all
times, upon request of the Agent, furnish to the Agent copies of its, and each
of its Subsidiaries', current Mortgage Bankers Blanket Bond and of its, and each
of its Subsidiaries', insurance policy containing errors and omissions coverage
or mortgage impairment coverage, and such Bonds and policies, to the extent
possible, shall each provide that it is not cancelable without thirty (30) days
prior written notice to the Agent.
6.7 Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply with all laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, including,
without limitation, all Environmental Laws, non-compliance with which could,
singly or in the aggregate, reasonably be expected to have a material adverse
effect on the business or financial condition of the Borrower and its
Subsidiaries taken as a whole, unless the same shall be contested by the
Borrower or such Subsidiary, as the case may be, in good faith and by
appropriate proceedings and such contest shall operate to stay the material
adverse effect of any such non-compliance.
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6.8 Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary to maintain, preserve, protect and
keep its Property in good repair, working order and condition, and make all
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times.
6.9 Inspection. Upon reasonable prior notice, the Borrower will,
and will cause each Subsidiary to, permit the Agent, the Collateral Agent and
the Lenders, by their respective representatives and agents, to inspect any of
the Property, books and financial records of the Borrower and each Subsidiary,
to examine and make copies of the books of accounts and other financial records
of the Borrower and each Subsidiary, and to discuss the affairs, finances and
accounts of the Borrower and each Subsidiary with, and to be advised as to the
same by, their respective officers at such reasonable times and intervals as the
Agent, the Collateral Agent or any Lender may designate; provided that the
Secured Parties shall exercise the foregoing rights in a manner which is not
unreasonably disruptive to the business or operations of the Borrower.
6.10 Dividends. The Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock or cash
distributions from any Subsidiary to the Borrower) or redeem, repurchase or
otherwise acquire or retire any of its capital stock at any time outstanding,
(collectively, "Restricted Payments") if any Default continues or if the making
of any such Restricted Payment would cause an Event of Default or an Unmatured
Default.
6.11 Intentionally Omitted.
6.12 Merge. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that a
Subsidiary may merge into the Borrower or a Wholly-Owned Subsidiary. The
Borrower may, after prior written notice to the Agent and Lenders, take such
action with respect to any Subsidiary which is not a material part of the
Borrower's overall business operations.
6.13 Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property, to any other
Person, except:
(i) Sales of Mortgage Loans, Securities and Servicing
Rights in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property
that, together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other than
Mortgage Loans and Securities in the ordinary course of business) as
permitted by this Section during the twelve-month period ending with
the month in which any such lease, sale or other disposition occurs, do
not constitute a Substantial Portion of the Property of the Borrower
and its Subsidiaries.
(iii) Transfers of a Subsidiary's assets to another
Subsidiary or to the Borrower.
58
6.14 Investments and Acquisitions. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other
Investments in existence on the date hereof and described in Schedule
"4" hereto.
(iii) Investments in the ordinary course of the Borrower's
mortgage banking business to purchase: (a) Mortgage Loans,
collateralized mortgage obligations and Securities (and in connection
with commitments to purchase the same); (b) servicing rights and
mortgage servicing contracts of another Person engaged in
mortgage-related businesses; and (c) real estate acquired by
foreclosure.
(iv) Investments in the ordinary course of the Borrower's
mortgage banking business to enter into Rate Hedging Agreements to the
extent permitted pursuant to the provisions of this Agreement.
(v) Investments in Hipotecaria Su Casita, S.A. de C.V.
(vi) Investments in Affiliated Special Ventures.
(vii) Investments in Joliet Mortgage Reinsurance Company.
(viii) Investments in the aggregate in Pulte Funding, Inc.,
a wholly-owned subsidiary of the Borrower.
(ix) Investments other than those described in the
preceding clauses (i)-(viii), so long as the aggregate amount of all
such other Investments does not exceed $1,000,000.
6.15 Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
or levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being
contested in good faith and by appropriate proceedings and for which
adequate reserves in accordance with Agreement Accounting Principles
shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of obligations not
more than 60 days past due or which are being contested in
59
good faith by appropriate proceedings and for which adequate reserves
shall have been set aside on its books.
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
same or interfere with the use thereof in the business of the Borrower
or the Subsidiaries.
(v) Liens existing on the date hereof and described in
Schedule "5" hereto.
(vi) Liens in favor of the Agent and the Collateral Agent,
for the benefit of the Lenders, granted pursuant to the Security
Agreement.
(vii) Liens incidental to the conduct of the Borrower's
mortgage related businesses or the ownership of its property or arising
out of transactions entered in the ordinary course of the Borrower's
mortgage related businesses which do not secure Indebtedness and do
not, in the aggregate, materially detract from the value of its
properties in the aggregate or materially impair the use thereof in the
ordinary course of the Borrower" business.
(viii) Liens (not otherwise permitted hereunder) which
secure obligations (as to the Borrower and all Subsidiaries) incidental
to forward delivery contracts or repurchase agreements in the ordinary
course of the Borrower's mortgage related businesses.
(ix) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business.
(x) Liens of Liens of landlords, arising solely by
operation of law and which are not avoidable as a matter of law, on
fixtures and moveable property located on premises leased in the
ordinary course of business, provided, that the rental payments secured
thereby are not yet due.
(xi) Liens arising out of judgments or awards against the
Borrower or any Subsidiary with respect to which the Borrower or such
Subsidiary is prosecuting an appeal or proceeding for review and the
Borrower or such Subsidiary is maintaining adequate reserves in
accordance with Agreement Accounts' Principles.
(xii) Liens upon real and/or tangible personal property,
which property was acquired after December 31, 2002 (by purchase,
construction or otherwise) by the Borrower or its Subsidiaries, each of
which Liens either (A) existed on such property before the time of its
acquisition and was not created in anticipation thereof at the request
or direction of the Borrower, or (B) was created solely for the purpose
of securing
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Indebtedness representing, or incurred to finance, refinance or refund,
the cost (including the cost of construction) of the respective
property; provided, that no such Lien shall extend to or cover any
property of the Borrower or such Subsidiary other than the respective
property so acquired and improvements thereon.
(xiii) Liens on assets of corporations which become
Subsidiaries after the date of this Agreement; provided, that (i) such
Liens existed at the time such corporation became a Subsidiary and were
not created in anticipation thereof, (ii) any such Lien is not spread
to cover any property or assets of such corporation after the time such
corporation becomes a Subsidiary (other than any such spreading
resulting from "after-acquired property" clauses in existence on the
date such corporation became a Subsidiary) and (iii) the amount of
Indebtedness secured thereby is not increased;
(xiv) Subject to the requirements of Section 6.18, Liens on
Mortgage Loans and Securities owned by the Borrower or its Subsidiaries
(other than Mortgage Loans or Securities constituting Collateral) to
secure Indebtedness incurred from sources other than the Lenders for
the purpose of originating or acquiring Mortgage Loans or Securities.
6.16 Affiliates. The Borrower will not, and will not permit any
Subsidiary to, (i) enter into any transaction (including, without limitation,
the purchase or sale of any Property or service) with any Affiliate except in
the ordinary course of business and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable in any material respect to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arms-length
transaction, (ii) make any loans or advances to any Affiliates with financial
terms more advantageous to such Affiliate than the terms of loans and advances
made to the Borrower (or the applicable Subsidiary) from such Affiliate, or
(iii) make any net loans or advances to any Affiliate which would cause any
violation of Section 6.17.1 or 6.17.2; or, while any Default or Unmatured
Default is continuing, make any payments, loans or advances of any type to any
Affiliate.
6.17 Financial Covenants.
6.17.1 Leverage Ratio. The Borrower will not permit the
Leverage Ratio, at any time, to exceed 15.0 to 1.0.
6.17.2 Net Worth. At all times, maintain a Consolidated
Tangible Net Worth of at least Thirty Million Dollars ($30,000,000).
6.17.3 Indebtedness. The Borrower will not permit the
aggregate Indebtedness of the Borrower and its Subsidiaries plus the amount of
Uncleared Loan Funding Checks to exceed at any time the sum of the following:
(i) one hundred percent (100%) of the value of the
Borrower's unrestricted cash and Cash Equivalent Investments and other
"short term investments";
(ii) ninety-five percent (95%) of the value of the
Borrower's "mortgage loans held for sale"; and
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(iii) seventy-five percent (75%) of the Aggregate Servicing
Value.
Terms set forth in quotes in this Section shall have the meanings given
such terms in the Borrower's consolidated financial statements.
6.17.4 Maintenance of Net Income. Allow the Borrower and its
consolidated Subsidiaries to suffer, as of the end of any calendar quarter, an
aggregate net loss (as determined under Agreement Accounting Principles) over
the course of the immediately preceding four calendar quarters; provided that
any equity contribution made to the Borrower by the Parent within 30 days after
generation of the financial statements for a given quarter shall (for purposes
of this Section 6.17.4 be considered net income earned by the Borrower during
the quarter immediately preceding the date of such contribution (i.e., equity
contributions in the amount of net losses can "cure" such losses for purpose of
this Section ).
6.18 Compliance with Security Agreement. The Borrower will not fail
to perform in any material respect any of its obligations under the Security
Agreement or enter into similar security agreements for Mortgage Loans not
included in Collateral with any Person other than the Collateral Agent;
provided, however, that this Section shall not (i) prohibit the Borrower from
entering into other custodial agreements relating to the possession of Mortgage
Loans not included in Collateral so long as such agreements are not made for the
purpose of or in connection with the granting of a security interest in such
Mortgage Loans, or (ii) prohibit the Affiliate of the Collateral Agent which
acts in a custodial capacity in connection with the certification of Mortgage
Loans for exchange by a Federal Agency from acting in such custodial capacity in
conformance with the terms of the Security Agreement. Security interests in
Mortgage Loans given for confirmatory purposes in connection with the sale of
such Mortgage Loans by the Borrower to investors shall not be considered
agreements "made for the purpose of or in connection with the granting of a
security interest in such Mortgage Loans" within the meaning of the preceding
sentence. The Borrower will direct the Collateral Agent to ship Collateral only
to Approved Investors or otherwise consistent with the provisions of the Loan
Documents; provided, however, the Borrower may direct the Collateral Agent to
ship Collateral to Pulte Funding, Inc. if the release of such Collateral is in
accordance with the provisions of Section 8.3 of this Agreement and such release
does not result in a breach of Section 8.3 of this Agreement.
6.19 Recourse Servicing. The Borrower will not at any time be a
party to any Servicing Agreements constituting Recourse Servicing other than
Approved Recourse Servicing.
6.20 Federal Agency Approvals. The Borrower (i) will maintain its
status as a FHA Approved Mortgagee, remain eligible to obtain VA guaranties of
Mortgage Loans and remain approved by each Federal Agency as a seller/servicer
and (ii) will not permit any Federal Agency which insures any material portion
of the Mortgage Loans owned or serviced by the Borrower to withdraw its approval
of the Borrower.
6.21 Approved Investor Commitments. The Borrower shall maintain
Approved Investor Commitments which cover all Pledged Mortgages and Pledged
Securities and perform all of its obligations in connection with such Approved
Investor Commitments.
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6.22 Negative Pledges. The Borrower shall not enter into any
agreement pursuant to which it agrees (i) not to xxxxx x xxxx to third parties
unless such provision allows for the lien of the Agent, the Collateral Agent and
the Lenders contemplated under the Loan Documents or (ii) to grant another
creditor a pari passu security interest in and to the Collateral when a security
interest is granted to the Agent, the Collateral Agent and the Lenders pursuant
to the Loan Documents.
6.23 Keeping of Records and Books of Account. The Borrower shall
keep or cause to be kept adequate records and books of account in which complete
entries will be made in accordance with Agreement Accounting Principles,
consistently applied (except for changes concurred in by the Borrower's
independent auditors) reflecting all financial transactions of the Borrower and
its Subsidiaries.
6.24 Hedging Program. The Borrower shall at all times maintain a
Hedging Program which represents a reasonable means for the Borrower to hedge
certain interest rate risks associated with the mortgage banking business, and
is a customary and standard Hedging Program comparable to that of other
similarly situated mortgage banking companies.
6.25 Agreements to Pledge Mortgage Loans. Borrower shall not pledge
to any Person, or grant a security interest in favor of any Person in, any
Mortgage other than the security interest granted to the Collateral Agent for
the benefit of the Lenders pursuant to the Security Agreement.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1 Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lenders or the Agent
under or in connection with this Agreement, any Loan, or any certificate or
information delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made (it being
understood that if any of the representations and warranties made pursuant to
the definition of "Borrowing Base" are not true and correct as of any date with
respect to any Pledged Item, such Pledged Item shall be removed from Eligible
Collateral as the sole remedy for such failure).
7.2 Nonpayment of principal of any Loan when due (including but
not limited to payments required pursuant to Section 2.11.2, Section 2.11.4 and
Section 2.11.5), or nonpayment of interest upon any Loan or of any Fee under any
of the Loan Documents within five Business Days after the same becomes due or
nonpayment of any amount, other than principal or interest or Fees, payable
under this Agreement shall not be paid when due and payable and shall remain
unpaid for five (5) Business Days after written notice to the Borrower of such
nonpayment.
7.3 The breach by the Borrower of any of the terms or provisions
of Sections 6.2, 6.4, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, or 6.20 and 6.25.
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7.4 The breach by the Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement which is not remedied within thirty days
after the earlier to occur of (i) receipt of written notice from the Agent or
any Lender of such breach or (ii) the date that the Borrower obtains knowledge
of such breach.
7.5 Failure of the Borrower or any of its Subsidiaries, Pulte
Homes, or the Parent to pay when due any Indebtedness (provided that for
purposes of this Section 7.5, the definition of "Indebtedness" shall include, in
addition to all amounts and items described in the definition of "Indebtedness"
set forth in Article I of this Agreement, exposure under Rate Management
Transactions) aggregating in excess of $10,000,000 ("Material Indebtedness"); or
the default by the Borrower or any of its Subsidiaries in the performance beyond
the applicable grace period with respect thereto, if any of any term, provision
or condition contained in any agreement under which any such Material
Indebtedness was created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to cause, or to permit
the holder or holders of such Material Indebtedness to cause, such Material
Indebtedness to become due prior to its stated maturity, and in either case any
applicable notice or cure period has expired and such default has not been
waived in writing by the holder of such Material Indebtedness; or any Material
Indebtedness of the Borrower, any of its Subsidiaries, Pulte Homes, or the
Parent shall be declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof, and any applicable notice or cure period has expired and such
default has not been waived in writing by the holder of such Material
Indebtedness, or the Borrower or any of its Subsidiaries shall not pay, or admit
in writing its inability to pay, its debts generally as they become due.
7.6 The Borrower or any of its Subsidiaries shall (i) have an
order for relief entered with respect to it under the Federal bankruptcy laws as
now or hereafter in effect, (ii) make an assignment for the benefit of
creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment
of a receiver, custodian, trustee, examiner, liquidator or similar official for
it or any Substantial Portion of its Property, (iv) institute any proceeding
seeking an order for relief under the Federal bankruptcy laws as now or
hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate, partnership or other action to
authorize or effect any of the foregoing actions set forth in this Section 7.6
or (vi) fail to contest in good faith any appointment or proceeding described in
Section 7.7.
7.7 Without the application, approval or consent of the Borrower
or any of its Subsidiaries, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any of its Subsidiaries or any
Substantial Portion of its Property, or a proceeding described in Section
7.6(iv) shall be instituted against the Borrower or any of its Subsidiaries and
such appointment continues undischarged or such proceeding continues undismissed
or unstayed for a period of 45 consecutive days.
7.8 Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of all or any portion
of the Property of the Borrower and
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its Subsidiaries which, when taken together with all other Property of the
Borrower and its Subsidiaries so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a Substantial Portion.
7.9 The Borrower or any of its Subsidiaries shall fail within 30
days to pay, bond or otherwise discharge one or more (i) judgments or orders for
the payment of money in excess of the aggregate $10,000,000, or (ii)
non-monetary judgments or orders which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect, which judgments, in
any case, is/are not stayed on appeal or otherwise being appropriately contested
in good faith.
7.10 Any Change in Control shall occur.
7.11 The occurrence of any "default", as defined in any Loan
Document (other than this Agreement) or the breach of any of the terms or
provisions of any Loan Document (other than this Agreement), which default or
breach continues beyond any period of grace therein provided.
7.12 The Security Agreement shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, except as permitted by the terms of the Security
Agreement, or the Security Agreement shall fail to remain in full force or
effect or any action shall be taken to discontinue or to assert the invalidity
or unenforceability of the Security Agreement, or the Borrower shall fail to
comply with any of the terms or provisions of the Security Agreement and such
failure to comply is not cured within thirty days after written notice to the
Borrower of such failure to comply.
7.13 The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $10,000,000 or any Reportable Event shall occur in
connection with any Plan and as a result of such event or condition, together
with all other such events or conditions, the Borrower or any Affiliate could
reasonably incur a liability in excess of $10,000,000 to a Plan or the PBGC (or
any combination of the foregoing).
7.14 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multi-employer Plan that it has incurred
withdrawal liability to such Multi-employer Plan in an amount which, when
aggregated with all other amounts required to be paid to Multi-employer Plans by
the Borrower or any other member of the Controlled Group as withdrawal liability
(determined as of the date of such notification), exceeds $10,000,000 or
requires payments exceeding $500,000 per annum.
7.15 The Borrower or any other member of the Controlled Group shall
have been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within the
meaning of Title IV of ERISA, if as a result of such reorganization or
termination the aggregate annual contributions of the Borrower and the other
members of the Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan years of each such
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Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000.000.
7.16 The Borrower or any of its Subsidiaries shall (i) be the
subject of any proceeding or investigation pertaining to the release by the
Borrower or any of its Subsidiaries or any other Person of any toxic or
hazardous waste or substance into the environment, or (ii) violate any
Environmental Law, which, in the case of an event described in clause (i) and
(ii), could reasonably be expected to have a Material Adverse Effect.
7.17 The representations and warranties set forth in "Section 5.15
Plan Assets; Prohibited Transactions" shall at any time not be true and correct.
7.18 Any of this Agreement, the Notes or the Security Agreement
shall, at any time after its execution and delivery, for any reason cease to be
in full force and effect (unless such occurrence is in accordance with its terms
or after payment thereof) or shall be declared to be null and void, or the
validity or enforceability thereof shall be contested by the Borrower, or the
Borrower shall deny that it has any further liability or obligation thereunder.
ARTICLE VIII
COLLATERAL, ACCELERATION AND OTHER REMEDIES
8.1 Security and Collateral Agency Agreement. Pursuant to the
Security Agreement, a security interest in and a continuing lien upon the
Collateral has been created in favor of the Collateral Agent for the benefit of
the Lenders.
8.2 AP Mortgages. The Borrower agrees that while it is in
possession of any Required Mortgage Documents for an AP Mortgage, it will hold
same in trust and as agent and bailee for the Collateral Agent, without
authority to make any other disposition thereof, or of the proceeds thereof,
except as may be otherwise permitted in writing by the Collateral Agent. The
Borrower assumes the responsibility for loss or destruction of any such Required
Mortgage Documents until the same are delivered to the Collateral Agent.
8.3 Release of Collateral. Upon the request of the Borrower
delivered from time to time to the Agent and the Collateral Agent in connection
with the proposed sale of any Collateral, the Agent shall authorize the
Collateral Agent to release Collateral specified in such notice from the lien of
this Agreement, if, but only if, (i) at the time of such release no Default
shall have occurred and then be continuing, (ii) the Borrowing Base, after
giving effect to such release, is at least equal to the aggregate principal
amount of loans outstanding under this Agreement or any payment under Section
2.11 which may be required as a result of such release has been made and (iii)
the release of such Collateral will not create a violation of any Lending
Sublimit or Borrowing Base Sublimit.
8.4 Cash and Collaeral Account; Settlement Account; Reconciliation
Process; and Funding Account.
(i) The Collateral Agent has established in its name, as
collateral agent, a "cash and collateral" account with Bank One, NA
(the "Cash and Collateral Account")
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into which shall be deposited all cash proceeds from the sale of any
Pledged Item, all as described in the Collection and Paying Agreement.
(ii) There is hereby established with the Agent, for the
benefit of the Secured Parties, a separate "cash collateral" account of
the Borrower, Account #0000000 ("Settlement Account") into which shall,
in certain circumstances, be deposited certain cash proceeds from the
Cash and Collateral Account as described herein and in the Collection
and Paying Agreement. The Settlement Account shall be included in the
Collateral and the Borrower hereby pledges and assigns to the Agent for
the benefit of the Secured Parties and grants to the Agent for the
benefit of the Secured Parties, a first priority security interest in
the Settlement Account to secure payment of the Secured Obligations.
Only the Agent shall have access to the Settlement Account.
(iii) No later than 3:30 p.m. (Chicago time) each Business
Day the Borrower shall arrange for the Collateral Agent to notify the
Borrower and the Agent of the amount of Reconciled Non-Security
Proceeds deposited into the Cash and Collateral Account since the
report of Reconciled Non-Security Proceeds on the prior Business Day,
and (so long as no Event of Default is continuing and the Borrowing
Base is equal to or greater than the total outstanding Loans) the
Collateral Agent shall transfer such newly deposited Reconciled
Non-Security Proceeds into the Borrower's operating account or apply
them as otherwise directed by the Borrower. Any Excess Pool Proceeds
shall (so long as no Default is continuing and the Borrowing Base is
equal to or greater than the total outstanding Loans) also be
transferred into the Borrower's operating account or applied as
otherwise directed by the Borrower. If the Borrowing Base is not equal
to or greater than the total outstanding Loans, then the Collateral
Agent shall transfer the necessary amount of the Reconciled
Non-Security Proceeds and/or Excess Pool Proceeds to the Agent for
application against the outstanding Loans so that the Borrowing Base
equals the total outstanding Loans. Such application shall be made
first to repay any outstanding Overadvances (as defined in Paragraph
6(d) of the Security Agreement) and then to repay then outstanding
Loans in the order and in the amounts directed by the Borrower or, in
the absence of such direction, in the following order: (i) first, to
Swingline Loans until paid in full, (ii) second, to Fed Funds Loans
until paid in full, (iii) third, to Eurodollar Loans (and with respect
to Eurodollar Loans only, to interest thereon) until paid in full, and
(iv) fourth, to Bid Loans until paid in full. With respect to
Eurodollar Loans, such amounts (1) shall be applied to such Loans in
the order in which their Interest Periods expire (i.e. the Eurodollar
Loans first maturing shall be the first repaid), and (2) shall be
applied to interest on Loans which have been repaid before being
applied to principal of Loans having a different Interest Period.
(iv) Upon the occurrence of a Default (and during the
continuance thereof) all amounts then on deposit in the Cash and
Collateral Account which constitute Collateral or the proceeds thereof,
and any deposits made in the Cash and Collateral Account which
constitute Collateral or the proceeds thereof during the continuance of
such Default, shall be immediately transferred by the Collateral Agent
to the Settlement Account and shall thereupon, together with any other
amounts then or thereafter in the Settlement Account, be withdrawn by
the Agent from the Settlement Account and applied to outstanding Loans
in proportion to the Lenders' respective outstanding Loans and (with
respect to the
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Lenders) in conjunction with the procedures described in Section 2.6,
with such payments applied first to accrued interest and fees and
thereafter to principal.
(v) There has also been established with the Agent, for
the benefit of the Lenders, another account of the Borrower, Account
#55-34658 ("Funding Account"), from which all AP Mortgages shall be
funded (either by check drawn on such Funding Account or by wire
transfer from such Funding Account).
8.5 Termination. If all Commitments under this Agreement shall
have expired or been terminated pursuant to the express terms hereof and no
Obligations shall be outstanding, the Agent shall promptly deliver or cause to
be delivered all cash standing to the credit of the Settlement Account and
Pledged Items to the Borrower. The receipt by the Borrower of any cash in the
Settlement Account and of all Pledged Items returned or delivered to the
Borrower pursuant to any provision of this Agreement, together with UCC-3
termination statements executed by the Agent, shall be a complete and full
acquittance for the Pledged Items so delivered.
8.6 Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Agent or any Lender. If any other Default occurs, the Required Lenders (or
the Agent with the consent of the Required Lenders) may (i) terminate or suspend
the obligations of the Lenders to make Loans hereunder and they shall, upon
notice to the Borrower, terminate or be suspended, and/or (ii) declare the
Obligations to be due and payable, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives.
8.7 Other Remedies.
(i) Unless a Default shall have occurred and then be
continuing, the Borrower shall be entitled to receive and collect
directly all sums payable to the Borrower in respect of the Collateral
except proceeds from the sale thereof.
(ii) Upon the occurrence of a Default, the Agent and the
Collateral Agent, on behalf of the Lenders, shall be entitled to all
the rights and remedies hereunder and in the Security Agreement,
subject to the limitations and requirements of Paragraph 16 thereof,
and all other rights or remedies at law or in equity existing or
conferred upon the Lenders by other jurisdictions or other applicable
law.
(iii) Following the occurrence and during the continuance
of a Default, no Lender shall be obligated to fund any Loan hereunder.
(iv) Following the occurrence a Default, the Borrower
agrees that the Borrower and the Agent shall, if the Agent shall
request implement certain procedures with respect to the Borrower's
funding of AP Mortgages, all at the Borrower's sole expense. Such
procedures may include, but are not limited to: (i) reducing the
advance rate against any Eligible Collateral for purposes of
determining the Collateral Value component of the Borrowing Base, (ii)
requiring that if AP Mortgages are funded with
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wire transfers, such wire transfers originate from the Funding Account
and may only be released upon the secondary authorization of the Agent,
(iii) requiring the closing agents for such AP Mortgages to enter into
escrow or other agreements regarding the monies used to fund such AP
Mortgages, and (iv) requiring the Borrower to provide the Agent and the
Lenders with such information regarding the funding of such AP
Mortgages as the Agent may reasonably request. The Borrower, at its
expense, shall from time to time execute and deliver to the Agent or
the Collateral Agent all such assignments, certificates, supplemental
documents, and financing statements, and shall do all other acts or
things, as the Agent may reasonably request in order to more fully
implement such procedures.
(v) The Borrower waives, to the extent permitted by law,
any right to require the Agent or any Lender to (i) proceed against any
Person, (ii) proceed against or exhaust any of the Collateral or pursue
its rights and remedies as against the Collateral in any particular
order or (iii) pursue any other remedy in its power.
(vi) The Agent on behalf of the Lenders may, but shall not
be obligated to, advance any sums or do any act or thing necessary to
uphold and enforce the lien and priority of, or the security intended
to be afforded by, any Pledged Item, including, without limitation,
payment of delinquent taxes or assessments and insurance premiums. The
Borrower shall provide any and all information required by the Agent to
administer this Agreement or collect on the Collateral. All advances,
charges, costs and expenses, including reasonable attorneys fees,
incurred or paid by the Agent in exercising any right, power or remedy
conferred by this Agreement, or in the enforcement hereof (or by any
Lender acting on instruction of the Required Lenders in the enforcement
hereof), together with interest thereon at the rate per annum of 2%
plus the Alternate Base Rate from the time of payment until repaid,
shall become a part of the Obligations.
(vii) Following the occurrence of a Default and the
acceleration of the Obligations the Agent shall be entitled to receive
and collect all sums payable to the Borrower in respect of the
Collateral and (a) the Agent, at the request of the Required Lenders,
may in its own name or in the name of the Borrower or otherwise,
demand, xxx for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the
Collateral, (b) the Borrower shall receive and hold in trust for the
Lenders any amounts thereafter received by the Borrower upon or in
respect of any of the Collateral, advising the Agent as to the source
of such funds and, if the Agent so requests at the direction of the
Required Lenders, forthwith paying such amounts to the Agent, and (c)
any and all amounts so received and collected by the Agent either
directly or from the Borrower shall be deposited in the Settlement
Account.
8.8 Application of Proceeds. After a Default and acceleration of
the Obligations, the proceeds of any sale or enforcement of all or any part of
the Collateral pursuant to the Security Agreement and the balance of any moneys
in the Settlement Account and the Funding Account shall be applied by the Agent:
FIRST, to the extent that any such proceeds arise from a sale
of any Pledged Servicing, to the payment of any amounts due by the
Borrower to the other party to the
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Servicing Agreements governing such Pledged Servicing, as a condition
to the transfer of the Borrower's interest in any such Pledged
Servicing, pursuant to the terms of such Servicing Agreements,
including without limitation all amounts described in the
Acknowledgement Agreements;
SECOND, to the extent not already repaid from the proceeds of
the Collateral by the Collateral Agent, to the payment of all costs and
expenses of such sale or enforcement, including reasonable compensation
to the Agent's agents and counsel, and all expenses, liabilities and
advances made or incurred by the Agent or any Lender acting on
instructions of the Required Lenders in connection therewith;
THIRD, to the extent not already repaid from the proceeds of
the Collateral by the Collateral Agent, to the payment of all costs and
expenses incurred by the Collateral Agent under the Security Agreement;
FOURTH, to the payment of the outstanding principal balance
of, and all accrued and unpaid interest on and Fees attributable to,
all Loans under this Agreement, ratably according to the amount so due
to each Lender until such amounts are paid in full;
FIFTH, to the extent proceeds remain after application under
the preceding subparagraphs, to the payment of all remaining
Obligations, until such amounts are paid in full;
SIXTH, to the extent that any such proceeds arise from a sale
of any Pledged Servicing and remain after satisfying the prior amounts
in full, to the payment of all sums due to any party to the Servicing
Agreement governing such Pledged Servicing which, by the terms of the
applicable Acknowledgment Agreement, are subordinated in priority of
payment to the amounts payable to the Agent and the Lenders, as
described above; and
SEVENTH, to the payment to the Borrower, or to its successors
or assigns, or as a court of competent jurisdiction may direct, of any
surplus then remaining from such proceeds.
The Agent shall have absolute discretion as to the time of application
of any such proceeds, moneys or balances in accordance with this Agreement. If
the proceeds of any such sale are insufficient to cover the costs and expenses
of such sale, as aforesaid, and the payment in full of the Obligations, the
Borrower shall remain liable for any deficiency.
8.9 Preservation of Rights. No delay or omission of the Lenders or
the Agent to exercise any right under the Loan Documents shall impair such right
or be construed to be a waiver of any Default or an acquiescence therein, and
the making of a Loan notwithstanding the existence of a Default or the inability
of the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 9.1, and then only
to the extent in such writing specifically set forth. All remedies
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contained in the Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent and the Lenders until the Obligations have been
paid in full.
8.10 Actions Under Acknowledgement Agreements. If the Borrower
elects to include Pledged Servicing in Collateral, the Borrower shall be deemed
to have appointed the Agent as the Borrower's attorney-in-fact, effective as of
the date of any Default (and during the continuance thereof) for the purpose of
taking all actions on behalf of the Borrower contemplated or required under the
terms of the Acknowledgement Agreements with respect to such Pledged Servicing
and executing any instruments which the Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, the Agent shall have the right and power to receive, endorse and
collect all checks made payable to the order of the Borrower representing any
payment on account of the principal of or interest on any of the Mortgage Loans
covered by such Pledged Servicing or on account of the terms of the Servicing
Agreements governing such Pledged Servicing and to give full discharge for the
same.
8.11 Transition from Prior Facilities. The Pledge Date and all
other relevant delivery dates and time periods with respect to the determination
of Eligible Collateral shall be calculated to include any delivery dates or
holding periods prior to the Effective Date during which Collateral was being
held by the Collateral Agent (or was the subject of an Agreement to Pledge), had
been delivered to an Approved Investor or had been redelivered to the Borrower
under the Prior Facilities.
ARTICLE IX
AMENDMENTS; WAIVERS; GENERAL PROVISIONS
9.1 Amendments and Waivers. Other than (a) Commitment increases
pursuant to Section 2.10 (which may be accomplished solely by the Borrower, the
Agent and the subject Lender) and (b) temporary waivers of Collateral
eligibility permitted pursuant to the definition of "Borrowing Base" (which may
be accomplished solely by the Agent), the Required Lenders (or the Agent with
the consent in writing of the Required Lenders) and the Borrower may enter into
agreements supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights of the
Lenders or the Borrower hereunder or waiving any Default hereunder; provided,
however, that no such supplemental agreement shall, without the consent of each
Lender directly or indirectly affected thereby:
(i) Extend the final maturity of any Loan or postpone any
regularly scheduled payment of principal of any Loan
or forgive all or any portion of the principal amount
thereof, or reduce the rate or extend the time of
payment of, or forgive, interest or fees thereon.
(ii) Reduce the percentage specified in the definition of
Required Lenders.
(iii) Extend the Termination Date, or reduce the amount of
or extend the payment date for the mandatory payments
required under Section 2.11, or increase the amount
of the Aggregate Commitment or of the Commitment of
any Lender hereunder (other than in accordance with
Section 2.10).
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(iv) Amend this Section 9.1.
(v) Release any guarantor of any Advance or, except as
provided herein or in the Security Agreement, release
any Collateral.
(vi) Amend the definition of "Borrowing Base," "Gestation
Borrowing Base," "Warehouse Borrowing Base," or
"Collateral Value".
(vii) Permit the Borrower to assign its rights under this
Agreement or amend or waive any restriction on the
Borrower's ability to assign its rights or
obligations under any of the Loan Documents.
(viii) Amend or waive any Lending Sublimits or Borrowing
Base Sublimits.
(ix) Amend or waive any provision herein regarding the
indemnification of the Agent, the Collateral Agent or
any Lender.
(x) Amend or waive any provision herein regarding the
allocation among the Lenders of any payments or
proceeds received by the Agent hereunder.
No amendment of any provision of this Agreement relating to the Agent or the
Collateral Agent shall be effective without the written consent of the Agent or
the Collateral Agent, as the case may be. In addition, the consent of the
Collateral Agent shall be required for the effectiveness of any amendment
referred to in Section 9.1 (iv), (v), (vi), (viii) and/or (ix) above. The Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
9.2 Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive the making
of the Loans herein contemplated.
9.3 Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, no Lender shall be obligated to extend credit
to the Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
9.4 Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5 Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent, the Collateral Agent
and the Lenders and supersede all prior agreements and understandings among the
Borrower, the Agent and the Lenders relating to the subject matter thereof,
other than the fee letter described in Section 2.7.4 and any other agreement
entered into in connection with the fees described in Section 2.7.5.
9.6 Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Agent is authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
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its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns, provided, however, that the parties
hereto expressly, agree that (i) the Arranger shall enjoy the benefits of the
provisions of Sections 9.7, 9.8 and 10.11 to the extent specifically set forth
therein and shall have the right to enforce such provisions on its own behalf
and in its own name to the same extent as if it were a party to this Agreement
and (ii) the Collateral Agent shall enjoy the benefits of the provisions of
Sections 9.1, 9.7 and 9.8 to the extent specifically set forth therein and shall
have the right to enforce such provisions on its own behalf and in its own name
to the same extent as if it were a party to this Agreement.
9.7 Expenses; Indemnification. (i) The Borrower shall reimburse
the Agent, the Arranger and the Collateral Agent for any reasonable
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Agent, the Arranger and the Collateral Agent) paid or incurred
by the Agent, the Arranger or the Collateral Agent in connection with the
preparation, negotiation, execution, delivery, syndication, review, amendment,
modification, and administration of the Loan Documents. The Borrower also agrees
to reimburse the Agent, the Arranger, the Collateral Agent and the Lenders for
any out-of-pocket expenses (including attorneys' fees and time charges of
attorneys for the Agent, the Arranger, the Collateral Agent and the Lenders)
paid or incurred by the Agent, the Arranger, the Collateral Agent or any Lender
in connection with the collection and enforcement of the Loan Documents.
Expenses being reimbursed by the Borrower under this Section include, without
limitation, reasonable costs and expenses incurred in connection with the
reports described in the following two sentences. The Borrower acknowledges that
Bank One may prepare and distribute to the Lenders annual audit reports (and
shall distribute copies to each Lender that requests a copy in writing of any
such report actually prepared by Bank One) pertaining to the Borrower's assets
for internal use by Bank One from information furnished to it by or on behalf of
the Borrower, after Bank One has exercised its rights of inspection pursuant to
this Agreement. The Borrower acknowledges that Bank One may, in certain
extraordinary circumstances, prepare and distribute other audit reports to the
Lenders (and shall distribute copies to each Lender that requests a copy in
writing of any report actually prepared by Bank One) pertaining to the
Borrower's assets for internal use by Bank One from information furnished to it
by or on behalf of the Borrower, after Bank One has exercised its rights of
inspection pursuant to this Agreement. The Borrower acknowledges that the
foregoing two sentences shall not limit Bank One's right to prepare additional
audit reports at its own expense from time to time.
(ii) The Borrower hereby further agrees to indemnify the
Agent, the Arranger, the Collateral Agent and each Lender, their respective
affiliates, and each of their directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Agent, the Arranger, the Collateral Agent, any
Lender or any affiliate is a party thereto) which any of them may pay or incur
arising out of or relating to this Agreement, the other Loan Documents, the
transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder except to the extent
that they have resulted from the gross negligence or willful misconduct of the
party seeking indemnification. The obligations of the Borrower under this
Section 9.7 shall survive the termination of this Agreement.
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9.8 Nonliability of Lenders. The relationship between the Borrower
on the one hand and the Lenders, the Agent and the Collateral Agent on the other
hand shall be solely that of borrower and lender. Neither the Agent, the
Arranger, the Collateral Agent nor any Lender shall have any fiduciary
responsibilities to the Borrower. Neither the Agent, the Arranger, the
Collateral Agent nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with any phase of the
Borrower's business or operations. The Borrower agrees that neither the Agent,
the Arranger, the Collateral Agent nor any Lender shall have liability to the
Borrower (whether sounding in tort, contract or otherwise) for losses suffered
by the Borrower in connection with, arising out of, or in any way related to,
the transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless such losses resulted from the gross negligence or willful misconduct of
the party from which recovery is sought. Neither the Agent, the Arranger, the
Collateral Agent nor any Lender shall have any liability with respect to, and
the Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect or consequential damages suffered by the Borrower in connection with,
arising out of, or in any way related to the Loan Documents or the transactions
contemplated thereby.
9.9 Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10 Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Agent with
sufficient counterparts so that the Agent may furnish one to each of the
Lenders.
9.11 Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Borrower and all its Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
9.12 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to legal counsel,
accountants and other professional advisors to such counterparties, (vii)
permitted by Section 12.5 and (viii) to rating agencies if requested or required
by such agencies in connection with a rating of such lender or an Affiliate of
such Lender; provided that each such Lender shall endeavor to advise each such
recipient of such information from such Lender of the confidentiality of such
information.
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9.13 Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) for the repayment of the Loans
provided for herein.
9.14 Disclosure. The Borrower and each Lender hereby (i)
acknowledge and agree that Bank One and/or its Affiliates from time to time may
hold investments in, make other loans to or have other relationships with the
Borrower and its Affiliates, and (ii) waive any liability of Bank One or such
Affiliate to the Borrower or any Lender, respectively, arising out of or
resulting from such investments, loans or relationships other than liabilities
arising out of the gross negligence or willful misconduct of Bank One or its
Affiliates.
ARTICLE X
THE AGENT AND THE COLLATERAL AGENT
10.1 Appointment; Nature of Relationship. Bank One, NA is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Agent") hereunder and under each other Loan Document, and
each of the Lenders irrevocably authorizes the Agent to act as the contractual
representative of such Lender with the rights and duties expressly set forth
herein and in the other Loan Documents. The Agent is hereby authorized to enter
into the Security Agreement thereby appointing the Collateral Agent to act on
behalf of the Lenders and all obligations of the Lenders under the Security
Agreement shall be binding upon each Lender as if such Lender had executed the
Security Agreement. The Agent agrees to act as such contractual representative
upon the express conditions contained in this Article X. Notwithstanding the use
of the defined term "Agent" throughout the Agreement, it is expressly understood
and agreed that the Agent shall have not have any fiduciary responsibilities to
any Lender by reason of this Agreement or any other Loan Document and that the
Agent is merely acting as the representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as the Lenders' contractual representative, the Agent
(i) does not hereby assume any fiduciary duties to any of the Lenders, (ii) is a
"representative" of the Lenders within the meaning of the term "secured party"
as defined in the Illinois Uniform Commercial Code as in effect from time to
time and (iii) is acting as an independent contractor, the rights and duties of
which are limited to those expressly set forth in this Agreement and the other
Loan Documents. Each of the Lenders hereby agrees to assert no claim against the
Agent on any agency theory or any other theory of liability for breach of
fiduciary duty, all of which claims each Lender hereby waives.
10.2 Powers. The Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to the Agent by the terms
of each thereof, together with such powers as are reasonably incidental thereto.
The Agent shall have no implied duties to the Lenders, or any obligation to the
Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Agent.
10.3 General Immunity. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable to the Borrower, the Lenders or
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Loan Document or in connection herewith or therewith, whether
sounding in tort, contract or otherwise except to the extent such action or
inaction arises from the gross negligence or willful misconduct of such Person.
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10.4 No Responsibility for Loans, Recitals, etc. Neither the Agent
nor any of its directors, officers, agents or employees shall be responsible for
or have any duty to ascertain, inquire into, or verify (i) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (ii) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (iii) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent; (iv) the
existence or possible existence of any Default or Unmatured Default; (v) the
validity, enforceability, effectiveness, sufficiency or genuineness of any Loan
Document or any other instrument or writing furnished in connection therewith;
(vi) the value, sufficiency, creation, perfection or priority of any Lien in any
collateral security; or (vii) the financial condition of the Borrower or any
guarantor of any of the Obligations or of any of the Borrower's or any such
guarantor's respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Agent at such time, but is voluntarily furnished by the Borrower to the
Agent (either in its capacity as Agent or in its individual capacity).
10.5 Action on Instructions of Lenders. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders. The Lenders hereby
acknowledge that the Agent shall be under no duty to take any discretionary
action permitted to be taken by it pursuant to the provisions of this Agreement
or any other Loan Document unless it shall be requested in writing to do so by
the Required Lenders. The Agent shall be fully justified in failing or refusing
to take any action hereunder and under any other Loan Document unless it shall
first be indemnified to its satisfaction by the Lenders pro rata against any and
all liability, cost and expense that it may incur by reason of taking or
continuing to take any such action.
10.6 Employment of Agents and Counsel. The Agent may execute any of
its duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Agent shall be entitled to advice of
counsel concerning the contractual arrangement between the Agent and the Lenders
and all matters pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7 Reliance on Documents; Counsel. The Agent shall be entitled to
rely upon any Note, notice, consent, certificate, affidavit, letter, telegram,
statement, paper or document believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and, in respect to
legal matters, upon the opinion of counsel selected by the Agent, which counsel
may be employees of the Agent.
10.8 Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent ratably in proportion to their respective
Commitments (or, if the Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any amounts not
reimbursed by the Borrower for which the Agent is
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entitled to reimbursement by the Borrower under the Loan Documents, (ii) for any
other expenses incurred by the Agent on behalf of the Lenders, in connection
with the preparation, execution, delivery, administration and enforcement of the
Loan Documents (including, without limitation, for any expenses incurred by the
Agent in connection with any dispute between the Agent and any Lender or between
two or more of the Lenders) and (iii) for any liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of the Loan
Documents or any other document delivered in connection therewith or the
transactions contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection with any dispute
between the Agent and any Lender or between two or more of the Lenders), or the
enforcement of any of the terms of the Loan Documents or of any such other
documents, provided that (i) no Lender shall be liable for any of the foregoing
to the extent any of the foregoing is found in, a final non-appealable judgment
by a court of competent jurisdiction to have resulted from the gross negligence
or willful misconduct of the Agent and (ii) any indemnification required
pursuant to Section 3.5(vii) shall, notwithstanding the provisions of this
Section 10.8, be paid by the relevant Lender in accordance with the provisions
thereof The obligations of the Lenders under this Section 10.8 shall survive
payment of the Obligations and termination of this Agreement.
10.9 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Unmatured Default
hereunder unless the Agent has received written notice from a Lender or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give prompt notice thereof to
the Lenders.
10.10 Rights as a Lender. In the event the Agent is a Lender, the
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Loans as any Lender and may
exercise the same as though it were not the Agent, and the term "Lender" or
"Lenders" shall, at any time when the Agent is a Lender, unless the context
otherwise indicates, include the Agent in its individual capacity. The Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to be or remain a Lender.
10.11 Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon the Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
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10.12 Successor Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, ninety days after the retiring Agent gives notice of its
intention to resign. Upon any such resignation, the Required Lenders shall have
the right to appoint, on behalf of the Borrower and the Lenders, a successor
Agent; provided, however, that such appointment, unless made during the
continuance of an Unmatured Default, shall be subject to the consent of the
Borrower, which consent shall not be unreasonably withheld. If no successor
Agent shall have been so appointed by the Required Lenders within thirty days
after the resigning Agent's giving notice of its intention to resign, then the
resigning Agent may appoint, on behalf of the Borrower and the Lenders, a
successor Agent; provided, however, that such appointment, unless made during
the continuance of an Unmatured Default, shall be subject to the consent of the
Borrower, which consent shall not be unreasonably withheld. Notwithstanding the
previous sentence, the Agent may at any time without the consent of the Borrower
or any Lender, appoint any of its Affiliates which is a commercial bank as a
successor Agent hereunder. If the Agent has resigned and no successor Agent has
been appointed, the Lenders may perform all the duties of the Agent hereunder
and the Borrower shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the resigning Agent. Upon the
effectiveness of the resignation of the Agent, the resigning Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Agent by merger, or the Agent assigns its
duties and obligations to an Affiliate pursuant to this Section 10.12, then the
term "`Prime Rate" as used in this Agreement shall mean the prime rate, base
rate or other analogous rate of the new Agent.
10.13 Delegation to Affiliates. The Borrower and the Lenders agree
that the Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the Agent is entitled under Articles IX and X.
10.14 Collateral Releases. The Lenders hereby empower and authorize
the Agent to execute and deliver to the Borrower on their behalf any agreements,
documents or instruments as shall be necessary or appropriate to effect any
releases of Collateral which shall be permitted by the terms hereof or of any
other Loan Document or which shall otherwise have been approved by the Required
Lenders (or, if required by the terms of Section 9.1, all of the Lenders) in
writing.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available), any amounts owed under Rate Management Transactions, and any other
Indebtedness at any time held or owing by any Lender or any Affiliate of any
Lender to or for the credit or account of the Borrower may be offset and applied
toward the payment of the Obligations owing to such Lender, whether or not the
Obligations, or any part hereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments received
pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Loans held by the other Lenders so that after such
purchase each Lender will hold its ratable proportion of Loans. If any Lender,
whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.
11.3 Custodial Accounts. The Borrower agrees that funds received
and held by the Borrower as custodian for FNMA, GNMA or other mortgage pools
which are deposited into accounts with any Lender shall be clearly identified as
custodial accounts, and each Lender agrees that each provision of the foregoing
subsections of this Article XI shall not apply to such custodial accounts. The
Borrower shall not deposit any of its general funds in any custodial accounts or
otherwise commingle funds in any custodial accounts.
ARTICLE XII
ASSIGNMENTS; PARTICIPATIONS; COMMITMENT INCREASES
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lenders and their respective successors and assigns, except that (i) the
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) and assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank; provided, however, that
no such pledge or assignment creating a security interest shall release the
transferor Lender from its obligations hereunder unless and until the parties
hereto have complied with the provisions of Section 12.3. The Agent may treat
the Person which made any Loan or which holds any Note as the owner thereof for
all purposes hereof unless and until such Person complies with Section 12.3,
provided, however, that the Agent may in its discretion (but
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shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loans or any Note agrees by
acceptance of such transfer or assignment to be bound by all the terms and
provisions of the Loan Documents. Any request, authority or consent of any
Person, who at the time of making such request or giving such authority or
consent is the owner of the Rights to any Loan (whether or not a Note has been
issued in evidence thereof), shall be conclusive and binding on any subsequent
holder, or assignee of the rights to such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in
the ordinary course of its business and in accordance with applicable law, at
any time sell to one or more banks or other entities ("Participants")
participating interests in any Loan owing to such Lender, any Note held by such
Lender, any Commitment of such Lender or any other interest of such Lender under
the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Loans and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Agent shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other than any
amendment, modification or waiver with respect to any Loan or Commitment in
which such Participant has an interest which forgives principal, interest or
fees or reduces the interest rate or fees payable with respect to any such Loan
or Commitment, extends the Termination Date, postpones any date fixed for any
regularly-scheduled payment of principal of, or interest or fees on, any such
Loan or Commitment, releases any guarantor of any such Loan or releases all or
substantially all of the Collateral (other than as expressly permitted pursuant
to the Loan Documents).
12.2.3 Benefit of Setoff. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
80
12.3.1 Permitted Assignments. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents. Such assignment
shall be substantially in the form of Exhibit "J' hereto or in such other form
as may be agreed to by the parties thereto. The consent of the Borrower and the
Agent shall be required prior to an assignment becoming effective with respect
to a Purchaser which is not a Lender or an Affiliate thereof, provided, however,
that if a Default has occurred and is continuing, the consent of the Borrower
shall not be required. Such consents of the Agent and the Borrower shall not be
unreasonably withheld or delayed. Each such assignment shall (unless it is to a
Lender or an Affiliate thereof or each of the Borrower and the Agent otherwise
consents) be in an amount not less than the lesser of (i) $10,000,000 or (ii)
the remaining amount of the assigning Lender's Commitment (calculated as at the
date of such assignment).
12.3.2 Effect; Effective Date. Upon (i) delivery to the
Agent of a notice of assignment, substantially in the form attached as Annex "I"
to Exhibit "J' hereto (a "Notice of Assignment"), together with any consents
required by Section 12.3.1, and (ii) payment of a $3,500 fee to the Agent for
processing such assignment, such assignment shall become effective on the
effective date specified in such Notice of Assignment. The Notice of Assignment
shall contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans under the
applicable assignment agreement are "plan assets" as defined under ERISA and
that the rights and interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the effective date of such
assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and no
further consent or action by the Borrower, the Lenders or the Agent shall be
required to release the transferor Lender with respect to the percentage of the
Aggregate Commitment and Loans assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section 12.3.2, the transferor
Lender, the Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments, as adjusted pursuant to such assignment. In addition,
within a reasonable time after the effective date of any assignment, the Agent
shall, and is hereby authorized and directed to, revise Schedule "1' reflecting
the revised commitments and percentages of each of the Lenders and shall
distribute such revised Schedule "1' to each of the Lenders and the Borrower,
whereupon such revised Schedule shall replace the old Schedule and become part
of this Agreement.
12.4 INTENTIONALLY OMITTED
12.5 Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any Reports; provided
81
that each Transferee and prospective Transferee agrees to be bound by Section
9.12 of this Agreement.
12.6 Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.16 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, facsimile
transmission or similar writing) and shall be given to such party: (x) in the
case of the Borrower, the Agent or any Lender, at its address or facsimile
number set forth on the signature pages hereof, (y) in the case of the
Collateral Agent, at its address or facsimile number set forth on the signature
pages of the Security Agreement or (z) in the case of any party, at such other
address or facsimile number as such party may hereafter specify for the purpose
by notice to the Agent and the Borrower in accordance with the provisions of
this Section 13.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission., when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (iii)
if given by any other means, when delivered at the address specified in this
Section; provided that notices to the Agent under Article 11 shall not be
effective until received.
13.2 Change of Address. The Borrower, the Agent, the Collateral
Agent and any Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agent and the Lenders and each party has notified the Agent by facsimile
transmission or telephone, that it has taken such action.
ARTICLE XV
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING
A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
82
15.2 CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES
THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR
HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
LIMIT THE RIGHT OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE
BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE
BORROWER AGAINST THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY
LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT
IN CHICAGO, ILLINOIS.
83
15.3 WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND EACH LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE
RELATIONSHIP ESTABLISHED THEREUNDER.
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have
executed this Agreement as of the date first above written.
PULTE MORTGAGE LLC
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: SVP/CFO
Address for Notices:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
84
BANK ONE, NA, individually and
as Agent
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Associate Director
Address for Notices Regarding Fundings:
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx Xxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Address for Other Notices:
1 Bank Xxx Xxxxx
Xxxx Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
85
BANK OF AMERICA, N.A.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Principal
Address for Notices:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
86
COMERICA BANK
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Address for Notices:
One Detroit Center
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
87
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxx Xxx
--------------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President
Address for Notices:
0000 Xxxx Xxxxxx
Xxxxx 0000X
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
88
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxx English
--------------------------------------
Name: Xxxxx English
Title: AVP
Address for Notices:
0000 Xxxxxxxx
#C7301-031
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx English
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
89
SCHEDULE "1"
COMMITMENTS AND COMMITMENT PERCENTAGES
(B)
COMMITMENT
PERCENTAGE
---------- (C)
(A) (A/Aggregate SWINGLINE
LENDER COMMITMENT Commitment) COMMITMENT
------ ------------ ------------ -----------
Bank One, N.A. $ 60,000,000 34.28571% $15,000,000
Bank of America, N.A. $ 50,000,000 28.57143%
Comerica Bank $ 25,000,000 14.28571%
Credit Lyonnais New York Branch $ 25,000,000 14.28571%
Xxxxx Fargo, N.A. $ 15,000,000 8.57143%
$175,000,000 100%
SCHEDULE "2"
LIST OF APPROVED INVESTORS
FHLMC - Federal Home Loan Mortgage Corporation (Xxxxxxx Mac)
FNMA - Federal National Mortgage Association (Xxxxxx Mae)
GNMA - Government National Mortgage Association (Xxxxxx Xxx) - Current Investor
GNMA - Government National Mortgage Association (Xxxxxx Mae) - Old Citicorp
Pools
Astoria Federal Mortgage Corporation
Aurora Loan Services, Inc.
Bank of America Mortgage
Bank One Home Loan Services
Charter One Financial
Chase Financial Corporation
Chase Manhattan Mortgage Corporation
Citicorp Mortgage, Inc.
Commercial Federal Mortgage Corporation
Countrywide Home Loans, Inc.
Countrywide Home Loans, Inc. - Texas Veterans Land Board Loans
Credit Suisse First Boston - CSFB
E-Trade Financial Corporation
Fidelity Bankshares, Inc.
First Arizona Savings
First Franklin Financial
First Horizon Mortgage
First Nationwide Mortgage Corporation
First Union Mortgage Corporation
Fleet Mortgage Corporation
GMAC Mortgage Corporation
GreenPoint
HomeSide Lending, Inc.
HSBC Mortgage Corporation (USA)
Independent National Mortgage Corporation (Indy Mac)
InterFirst Mortgage
National City Mortgage Corporation
Pinnacle Financial Corporation
Principal Financial Group
Pulte Corporation
Regions Mortgage, Inc.
Resource Bankshares Mortgage Group
Washington Mutual/ALTA Residential Mortgage Trust
Xxxxx Fargo Home Mortgage, Inc.
Zions Bancorporation
1
HOUSING BOND PROGRAMS
Colorado Housing Finance Authority
Sold servicing released to Inter Mountain Mortgage
Dakota County Bond (Minnesota)
Sold servicing released to Xxxxxxx Mortgage Corporation
Florida Housing Finance Agency
Sold servicing released to Lender Mortgage Company
Housing Financing Authority of Broward County (Florida)
Sold servicing released to Leader Mortgage Company
Illinois Housing Development Authority
Sold servicing released to Dovenmuehle Mortgage, Inc.
Maryland Housing Opportunities Commission (HOC)
Sold servicing released to Citizens Bank
Minnesota Housing Financing Agency
Sold servicing released to FBS Mortgage Corporation
Nevada State Housing Bond Authority
Servicing released to Leader Mortgage Company
New Jersey Housing Finance Agency
Servicing retained then transferred to Aurora Financial group
North Carolina Housing Finance Agency
Sold servicing released to United Federal Bank
The Industrial Development Authority of the County of Pima, Arizona
Servicing retained then transferred to Mortgage Clearing Corporation
The Industrial Development Authority of the County of Maricopa, Arizona
Sold servicing released to Leader Mortgage Corporation
Pinellas County Finance Authority
Sold servicing released to Leader Mortgage Company
Texas Department of Housing and Community Affairs (TDHCA)
Sold servicing released to First Nationwide Mortgage Corporation
2
Texas Veterans Land Board and Non-VLB loans
Sold servicing released to First Nationwide Mortgage Corporation
*Pending Bank Approval
BOLDED ITEMS ARE NEWEST APPROVAL.
3
SCHEDULE "3"
LITIGATION AND CONTINGENT LIABILITIES
NONE
SCHEDULE "4"
SUBSIDIARIES AND OTHER INVESTMENTS
(SEE SECTIONS 5.8 AND 6.14)
INVESTMENT OWNED AMOUNT OF PERCENT JURISDICTION OF
IN BY INVESTMENT OWNERSHIP ORGANIZATION
------------------------------ ------------------- ------------- --------- ---------------
PCIC Corporation Pulte Mortgage, LLC $ 44,144.41 100% Michigan
Joliet MTG Reinsurance Company Pulte Mortgage, LLC $3,008,782.27 100% Vermont
Pulte Funding Inc. Pulte Mortgage, LLC $3,507,867.02 100% Michigan
XXX Xxxx Mortgage Corp. Pulte Mortgage, LLC $ 431,802.59 100% Arizona
SCHEDULE "5"
INDEBTEDNESS AND LIENS
(SEE SECTIONS 5.14 AND 6.15)
MATURITY AND
INDEBTEDNESS INDEBTEDNESS PROPERTY AMOUNT OF
INCURRED BY OWED TO ENCUMBERED (IF ANY) INDEBTEDNESS
-------------- ------------ ------------------ ------------
Pulte Mortgage Steelcase Cubicle partitions $234,218 10/06
EXHIBIT "A"
NOTE
March 31, 2003
Pulte Mortgage LLC, a Delaware limited liability company (the
"Borrower"), promises to pay to the order of ___________ (the "Lender") the
lesser of the Lender's Commitment under the Agreement (as hereinafter defined)
or the aggregate unpaid principal amount of all Loans made by the Lender to the
Borrower pursuant to Article II of the Agreement, other than Bid Loans, in
immediately available funds at the main office of Bank One, NA in Chicago,
Illinois, as Agent, together with interest on the unpaid principal amount hereof
at the rates and on the dates set forth in the Agreement. The Borrower shall pay
the principal of and accrued and unpaid interest on the Loans in full on the
Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Fourth Amended and Restated Credit Agreement dated as of
March 31, 2003 (which, as it may be amended or modified and in effect from time
to time, is herein called the "Agreement"), among the Borrower, the lenders
party thereto, including the Lender, and Bank One, NA, as Agent, to which
Agreement reference is hereby made for a statement of the terms and conditions
governing this Note, including the terms and conditions under which this Note
may be prepaid or its maturity date accelerated. This Note is secured pursuant
to the Security Agreement, all as more specifically described in the Agreement,
and reference is made thereto for a statement of the terms and provisions
thereof Capitalized terms used herein and not otherwise defined herein are used
with the meanings attributed to them in the Agreement.
This Note is to be governed by and construed and enforced in accordance
with the laws of the State of Illinois.
PULTE MORTGAGE LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF _________,
DATED MARCH 31, 2003
PRINCIPAL MATURITY PRINCIPAL
AMOUNT OF OF INTEREST AMOUNT UNPAID
DATE LOAN PERIOD PAID BALANCE
---- --------- ----------- --------- -------
EXHIBIT "B"
INTENTIONALLY OMITTED
EXHIBIT "C"
BID LOAN NOTICE
TO: Bank One, NA, as Agent
FROM: Pulte Mortgage LLC, a Delaware limited liability company and
[Bid Lender], as a Bid Lender
Reference is made to that certain Credit Agreement (as amended, the
"Agreement") dated as of March 31, 2003 by and among Pulte Mortgage LLC, a
limited liability company (the "Borrower"), the Agent and certain other lenders.
All capitalized terms not otherwise defined in this notice shall have the
meaning given to them in the Agreement.
The Borrower and the Bid Lender hereby inform you that the Borrower has
accepted a bid from the Bid Lender for one or more Bid Loans having the
following terms:
Principal Amount of Loan: $__________________________
Rate of Interest: __________________________%
Borrowing Date: _____________________, 200_
Interest Period (1-60 days) ___________________________
Principal Amount of Loan: $__________________________
Rate of Interest: __________________________%
Borrowing Date: _____________________, 200_
Interest Period (1-60 days) ___________________________
[BID LENDER] PULTE MORTGAGE LLC
By:_______________________________ By:______________________________________
Its:______________________________ Name:____________________________________
Title:___________________________________
EXHIBIT "D"
COLLATERAL TRANSMITTAL
1. CUSTOMER NAME _________________________________________________________
2. LOAN NUMBER ___________________________________________________________
AND "MIN" (IF APPLICABLE) _____________________________________________
3. MORTGAGOR _____________________________________________________________
SURNAME ONLY
4. AP STATUS CODE ________________________________________________________
5. PLEDGE DATE ___________________________________________________________
6. ORIGINAL NOTE AMOUNT $ ________________________________________________
7. OUTSTANDING PRINCIPAL BALANCE $ _______________________________________
8. ACQUISITION COST $ ____________________________________________________
9. TAKE-OUT VALUE $ ______________________________________________________
10. NOTE DATE OR CONVERSION DATE __________________________________________
11. NOTE RATE _____________________________________________________________
12. LOAN TYPE ____________________________________________________________
EXHIBIT "E"
AGREEMENT TO PLEDGE
SECURITY AGREEMENT AS PROVIDED FOR BY
THE UNIFORM COMMERCIAL CODE OF ILLINOIS
Pulte Mortgage LLC (the "Borrower") pursuant to that certain Credit
Agreement dated as of March 31, 2003 (as amended, extended and replaced from
time to time, the "Credit Agreement") among the Borrower, Bank One, NA, as
agent, and certain other Lenders, and pursuant to that certain Security and
Collateral Agency Agreement among the Borrower, the Agent, the Lenders and
LaSalle Bank National Association (the "Collateral Agent") for new value this
day received, and as security for the payment of any and all indebtedness and
obligations of the Borrower under the Credit Agreement, hereby creates and
grants to the Collateral Agent for the benefit of the Lenders under the Credit
Agreement a security interest in and to the mortgage loans identified as AP
Mortgages by the inclusion of an "AP Status Code" on the Borrower's Collateral
Transmittals on the date indicated below which provide the information
concerning the AP Mortgages required by the Credit Agreement. All capitalized
terms used herein shall have the meanings given to them in the Credit Agreement.
PULTE MORTGAGE LLC
By: ____________________________________
Name: __________________________________
Title: _________________________________
Dated: ___________, 200_.
EXHIBIT "F"
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
Credit Agreement dated as of March 31, 2003 (as amended, modified, renewed or
extended from time to time, the "Agreement") among the Pulte Mortgager, LLC (the
"Borrower"), the lenders party thereto and Bank One, NA, as Agent for the
Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. 1 am the duly elected __________ of the Borrower;
2. 1 have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct to
the best of the knowledge and belief (after reasonable investigation) of the
officer of the Borrower executing this certificate.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this ____ day of
___________, 20__.
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of ___________, 200_ with
Provisions of ___ and _____ of
the Agreement
EXHIBIT "G"
BORROWING BASE CERTIFICATE
EXHIBIT "H"
INTENTIONALLY OMITTED
EXHIBIT "I"
SECURITY AGREEMENT
EXHIBIT "J'
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
___________ (the "Assignor") and ____________ (the "Assignee") is dated as of
___________, 200_. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1). Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the Credit
Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations under the
Credit Agreement such that after giving effect to such assignment the Assignee
shall have purchased pursuant to this Assignment Agreement the percentage
interest specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement relating to the facilities listed in Item
3 of Schedule 1 and the other Loan Documents. The aggregate Commitment (or
Loans, if the applicable Commitment has been terminated) purchased by the
Assignee hereunder is set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment
Agreement (the "Effective Date") shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period agreed to by
the Agent) after a Notice of Assignment substantially in the form of Annex "I"
attached hereto has been delivered to the Agent. Such Notice of Assignment must
include any consents required to be delivered to the Agent by Section 12.3.1 of
the Credit Agreement. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date under
Sections 4 and 5 hereof are not made on the proposed Effective Date. The
Assignor will notify the Assignee of the proposed Effective Date no later than
the Business Day prior to the proposed Effective Date. As of the Effective Date,
(i) the Assignee shall have the rights and obligations of a Lender under the
Loan Documents with respect to the rights and obligations assigned to the
Assignee hereunder and (ii) the Assignor shall relinquish its rights and be
released from its corresponding obligations under the Loan Documents with
respect to the rights and obligations assigned to the Assignee hereunder.
4. PAYMENT OBLIGATIONS. On and after the Effective Date, the
Assignee shall be entitled to receive from the Agent all payments of principal,
interest and fees with respect to the interest assigned hereby. The Assignee
shall advance funds directly to the Agent with respect to all Loans and
reimbursement payments made on or after the Effective Date with respect to the
interest assigned hereby. **[In consideration for the sale and assignment of
Loans hereunder, (i) the Assignee shall pay the Assignor, on the Effective Date,
an amount equal to the principal amount of the portion of all Alternate Base
Rate Loans assigned to the Assignee hereunder and (ii) with respect to each
Eurodollar Loan made by the Assignor and assigned to the Assignee hereunder
which is outstanding on the Effective Date, (a) on the last day of the
Interest Period therefor or (b) on such earlier date agreed to by the Assignor
and the Assignee or (c) on the date on which any such Eurodollar Loan becomes
due (by acceleration or otherwise) (the date as described in the foregoing
clauses (a), (b) or (c) being hereinafter referred to as the "Payment Date"),
the Assignee shall pay the Assignor an amount equal to the principal amount of
the portion of such Eurodollar Loan assigned to the Assignee which is
outstanding on the Payment Date. If the Assignor and the Assignee agree that the
Payment Date for such Eurodollar Loan shall be the Effective Date, they shall
agree to the interest rate applicable to the portion of such Loan assigned
hereunder for the period from the Effective Date to the end of the existing
Interest Period applicable to such Eurodollar Loan (the "Agreed Interest Rate")
and any interest received by the Assignee in excess of the Agreed Interest Rate
shall be remitted to the Assignor. In the event interest for the period from the
Effective Date to but not including the Payment Date is not paid by the Borrower
with respect to any Eurodollar Loan sold by the Assignor to the Assignee
hereunder, the Assignee shall pay to the Assignor interest for such period on
the portion of such Eurodollar Loan sold by the Assignor to the Assignee
hereunder at the applicable rate provided by the Credit Agreement. In the event
a prepayment of any Eurodollar Loan which is existing on the Payment Date and
assigned by the Assignor to the Assignee hereunder occurs after the Payment Date
but before the end of the Interest Period applicable to such Eurodollar Loan,
the Assignee shall remit to the Assignor the excess of the prepayment penalty
paid with respect to the portion of such Eurodollar Loan assigned to the
Assignee hereunder over the amount which would have been paid if such prepayment
penalty was calculated based on the Agreed Interest Rate. The Assignee will also
promptly remit to the Assignor (i) any principal payments received from the
Agent with respect to Eurodollar Loans prior to the Payment Date and (ii) any
amounts of interest on Loans and fees received from the Agent which relate to
the portion of the Loans assigned to the Assignee hereunder for periods prior to
the Effective Date, in the case of Alternate Base Rate Loans or fees, or the
Payment Date, in the case of Eurodollar Loans, and not previously paid by the
Assignee to the Assignor.]** In the event that either party hereto receives any
payment to which the other party hereto is entitled under this Assignment
Agreement, then the party receiving such amount shall promptly remit it to the
other party hereto.
**Each Assignor may insert its standard payment provisions in lieu of the
payment terms included in this Exhibit.
5. FEES PAYABLE BY THE ASSIGNEE. The Assignee shall pay to the
Assignor a fee on each day on which a payment of interest or fees is made under
the Credit Agreement with respect to the amounts assigned to the Assignee
hereunder (other than a payment of interest or commitment fees for the period
prior to the Effective Date or, in the case of Eurodollar Loans, the Payment
Date, which the Assignee is obligated to deliver to the Assignor pursuant to
Section 4 hereof). The amount of such fee shall be the difference between (i)
the interest or fee, as applicable, paid with respect to the amounts assigned to
the Assignee hereunder and (ii) the interest or fee, as applicable, which would
have been paid with respect to the amounts assigned to the Assignee hereunder if
each interest rate was __ of 1% less than the interest rate paid by the Borrower
or if the commitment fee was __ of 1% less than the commitment fee paid by the
Borrower, as applicable. In addition, the Assignee agrees to pay __% of the
recordation fee required to be paid to the Agent in connection with this
Assignment Agreement.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim created by the Assignor. It is
understood and agreed that the assignment and assumption hereunder are made
without recourse to the Assignor and that the Assignor makes no other
representation or warranty of any kind to the Assignee. Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectability of any Loan Document, including
without limitation, documents granting the Assignor and the other Lenders a
security interest in assets of the Borrower or any guarantor, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of the
Property, books or records of the Borrower, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS OF THE ASSIGNEE. The Assignee (i) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements requested by the Assignee and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Lender and based on such documents and information at it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Loan Documents, (iii) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under the Loan
Documents as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto, (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Loan Documents are required to be performed by it as a Lender, (v) agrees that
its payment instructions and notice instructions are as set forth in the
attachment to Schedule 1, (vi) confirms that none of the funds, monies, assets
or other consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits and
interests in and under the Loan Documents will not be "plan assets" under ERISA,
and *[(vii) attaches the forms prescribed by the Internal Revenue Service of the
United States certifying that the Assignee is entitled to receive payments under
the Loan Documents without deduction or withholding of any United States federal
income taxes].**
*(vii) to be inserted if the Assignee is not incorporated under the laws of the
United States, or a state thereof.
8. INDEMNITY. The Assignee agrees to indemnify and hold the
Assignor harmless against any and all losses, costs and expenses (including,
without limitation, reasonable attorneys' fees) and liabilities incurred by the
Assignor in connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment Agreement.
9. SUBSEQUENT ASSIGNMENTS. After the Effective Date, the Assignee
shall have the right pursuant to Section 12.3.1 of the Credit Agreement to
assign the rights which are assigned to the Assignee hereunder to any entity or
person, provided that (i) any such subsequent assignment does not violate any of
the terms and conditions of the Loan Documents or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Loan Documents has been obtained and (ii) unless the prior
written consent of the Assignor is obtained, the Assignee is not thereby
released from its obligations to the Assignor hereunder, if any remain
unsatisfied, including, without limitation, its obligations under Sections 4, 5
and 8 hereof.
10. REDUCTIONS OF AGGREGATE COMMITMENT. If any reduction in the
Aggregate Commitment occurs between the date of this Assignment Agreement and
the Effective Date, the percentage interest specified in Item 3 of Schedule 1
shall remain the same, but the dollar amount purchased shall be recalculated
based on the reduced Aggregate Commitment.
11. ENTIRE AGREEMENT. This Assignment Agreement and the attached
Notice of Assignment embody the entire agreement and understanding between the
parties hereto and supersede all prior agreements and understandings between the
parties hereto relating to the subject matter hereof.
12. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of Illinois.
13. NOTICES. Notices shall be given under this Assignment
Agreement in the manner set forth in the Credit Agreement. For the purpose
hereof, the addresses of the parties hereto (until notice of a change is
delivered) shall be the address set forth in the attachment to Schedule 1.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
[NAME OF ASSIGNOR]
By: ____________________________________
Title: ________________________________
________________________________
________________________________
[NAME OF ASSIGNEE]
By: ____________________________________
Title: ________________________________
________________________________
________________________________
SCHEDULE 1
TO ASSIGNMENT AGREEMENT
1. Description and Date of Credit Agreement:
2. Date of Assignment Agreement: ____________, 200_
3. Amounts (As of Date of Item 2 above):
Primary Swingline
Commitment Commitment
---------- ----------
a. Total of Commitments
(Loans)* under
Credit Agreement $ ________ $ ________
b. Assignee's Percentage
of each Facility purchased
under the Assignment
Agreement** ____% ___%
c. Amount of Assigned Share in
each Facility purchased under
the Assignment
Agreement $ ________ $ ________
4. Assignee's Aggregate (Loan
Amount)* Commitment Amount
Purchased Hereunder: $ ________ $ ________
5. Proposed Effective Date: __________
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:__________________________________ By:________________________________
Title:_______________________________ Title:_____________________________
* If a Commitment has been terminated, insert outstanding Loans in place of
Commitment
** Percentage taken to 10 decimal places
ATTACHMENT TO SCHEDULE 1 TO ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name:_______________________ Telephone No.:___________________________
Fax No.:____________________ Telex No.:_______________________________
Answerback:______________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:_______________________________________________
_______________________________________________
Account Name & Number for Wire Transfer:________________________________________
________________________________________
Other Instructions:_____________________________________________________________
________________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ______________________________________________
______________________________________________
______________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name:_______________________ Telephone No.:___________________________
Fax No.:____________________ Telex No.:_______________________________
Answerback:______________________________
KEY OPERATIONS CONTACTS:
Booking Installation:_______ Booking Installation:____________________
Name:_______________________ Name:____________________________________
Telephone No.:______________ Telephone No.:___________________________
Fax No.:____________________ Fax No.:_________________________________
Telex No.:__________________ Telex No.:_______________________________
Answerback:_________________ Answerback:______________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank:_______________________________________________
_______________________________________________
Account Name & Number for Wire Transfer:________________________________________
_________________________________________
Other Instructions:_____________________________________________________________
________________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNEE:_______________________________________________
_______________________________________________
_______________________________________________
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL FUNDING CONTACT: SUBSEQUENT OPERATIONS CONTACT:
Name: Xx Xxx Name: Xxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000 Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
BANK ONE Telex No.: 190201 (Answerback: BANK ONE UT)
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA # 000000000
LS2 Incoming Wire Account
Account No. 481152860000
Re: Pulte
ADDRESS FOR NOTICES FOR BANK ONE: 0 Xxxx Xxx Xxxxx, Xxxxxxx, XX 00000
Attn: Agency/Compliance Division, Xxxxx
XX0-0000
Fax No. (000) 000-0000 or (000) 000-0000
ANNEX "I"
TO ASSIGNMENT AGREEMENT
NOTICE
OF ASSIGNMENT
____________, 200_
To: PULTE MORTGAGE LLC
___________________________
___________________________
[NAME OF AGENT]
From: [NAME OF ASSIGNOR] (the "Assignor")
[NAME OF ASSIGNEE] (the "Assignee")
1. We refer to that Credit Agreement (the "Credit
Agreement") described in Item 1 of Schedule 1 attached hereto ("Schedule 1").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
2. This Notice of Assignment (this "Notice") is given
and delivered to *[the Borrower and]* the Agent pursuant to Section 12.3.2 of
the Credit Agreement.
3. The Assignor and the Assignee have entered into an
Assignment Agreement, dated as of _________, 200_ (the "Assignment"), pursuant
to which, among other things, the Assignor has sold, assigned, delegated and
transferred to the Assignee, and the Assignee has purchased, accepted and
assumed from the Assignor the percentage interest specified in Item 3 of
Schedule 1 of all outstandings, rights and obligations under the Credit
Agreement relating to the facilities listed in Item 3 of Schedule 1. The
Effective Date of the Assignment shall be the later of the date specified in
Item 5 of Schedule 1 or two Business Days (or such shorter period as agreed to
by the Agent) after this Notice of Assignment and any consents and fees required
by Sections [12.3.1 and 12.3.2] of the Credit Agreement have been delivered to
the Agent, provided that the Effective Date shall not occur if any condition
precedent agreed to by the Assignor and the Assignee has not been satisfied.
*To be included only if consent must be obtained from the Borrower pursuant to
Section 12.3.1 of the Credit Agreement.
4. The Assignor and the Assignee hereby give to the
Borrower and the Agent notice of the assignment and delegation referred to
herein. The Assignor will confer with the Agent before the date specified in
Item 5 of Schedule 1 to determine if the Assignment Agreement will become
effective on such date pursuant to Section 3 hereof, and will confer with the
Agent to determine the Effective Date pursuant to Section 3 hereof if it occurs
thereafter.
The Assignor shall notify the Agent if the Assignment Agreement does not become
effective on any proposed Effective Date as a result of the failure to satisfy
the conditions precedent agreed to by the Assignor and the Assignee. At the
request of the Agent, the Assignor will give the Agent written confirmation of
the satisfaction of the conditions precedent.
5. The Assignor or the Assignee shall pay to the Agent
on or before the Effective Date the processing fee of $3,500 required by Section
12.3.2 of the Credit Agreement.
6. If Notes are outstanding on the Effective Date, the
Assignor and the Assignee request and direct that the Agent prepare and cause
the Borrower to execute and deliver new Notes or, as appropriate, replacement
notes, to the Assignor and the Assignee. The Assignor and, if applicable, the
Assignee each agree to deliver to the Agent the original Note received by it
from the Borrower upon its receipt of a new Note in the appropriate amount.
7. The Assignee advises the Agent that notice and
payment instructions are set forth in the attachment to Schedule 1.
8. The Assignee hereby represents and warrants that none
of the funds, monies, assets or other consideration being used to make the
purchase pursuant to the Assignment are "plan assets" as defined under ERISA and
that its rights, benefits, and interests in and under the Loan Documents will
not be "plan assets" under ERISA.
9. The Assignee authorizes the Agent to act as its agent
under the Loan Documents in accordance with the terms thereof. The Assignee
acknowledges that the Agent has no duty to supply information with respect to
the Borrower or the Loan Documents to the Assignee until the Assignee becomes a
party to the Credit Agreement.*
*May be eliminated if Assignee is a party to the Credit Agreement prior to the
Effective Date.
NAME OF ASSIGNOR NAME OF ASSIGNEE
By:_________________________ By:_________________________________
Title:______________________ Title:______________________________
ACKNOWLEDGED [AND CONSENTED TO] ACKNOWLEDGED [AND CONSENTED TO]
BY [NAME OF AGENT] BY: PULTE MORTGAGE LLC
By:_________________________ By:_________________________________
Title:______________________ Name:_______________________________
Title:______________________________
[Attach photocopy of Schedule 1 to Assignment]
EXHIBIT "K"
FORM OF
AMENDMENT TO CREDIT AGREEMENT
This ________ Amendment to Credit Agreement ("Amendment") is made as of
________________, _____ by and among PULTE MORTGAGE LLC, a Delaware limited
liability company (the "Borrower"), _______________________(the "Increasing
Lender"), and BANK ONE, NA ("Agent") as administrative agent.
RECITALS
A. The Borrower, the Agent and certain other lenders are parties
to that certain Fourth Amended and Restated Revolving Credit Agreement dated as
of March 31, 2003 (as amended from time to time, the "Credit Agreement"). All
capitalized terms used in this Amendment and not otherwise defined shall have
the meanings ascribed to such terms in the Credit Agreement.
B. The Borrower desires to amend the Credit Agreement to
temporarily increase the Aggregate Commitment and [Increasing Lender] is willing
to provide the full amount of such temporary increase on the terms stated
herein.
NOW, THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. Temporary Increase. As of the "Effective Date" (as defined
below), the Aggregate Commitment shall be increased from $_____________ to
$_____________ by an increase in [Lender's] Commitment from $_____________ to
$_____________. Upon the Effective Date, after giving effect to such increase,
the Lenders' respective Commitment Percentages shall be shown on revised
Schedule "1" attached to this Amendment. Such increase shall end on
_____________ (the "Reduction Date"). Upon the Reduction Date, [Lender's]
Commitment shall be reduced by $_____________ to the amount in effect
immediately prior to the Effective Date. After giving effect to such reduction
and subject to any intervening changes in the Aggregate Commitment and the
Lenders' respective Commitment Percentages shall be returned to the percentages
in effect immediately prior to the Effective Date.
2. Reduction Date Adjustment. On the Reduction Date the Borrower
shall repay the amount, if any, by which the aggregate principal amount of the
then outstanding Loans exceeds the reduced Aggregate Commitment. The Agent shall
allocate such principal repayment among the Lenders so that each Lender's share
of all Loans (other than Bid Loans) as of the end of the business on the
Reduction Date is equal to such Lender's new Commitment Percentage after giving
effect to such reduction in the Aggregate Commitment.
3. Effective Date. The "Effective Date" shall be deemed to have
occurred on the date that all of the following conditions have been fulfilled:
(i) this Amendment has been fully executed and delivered;
(ii) the Borrower has executed and delivered to [Lender]
an amended and restated Note in the amount of its increased Commitment;
(iii) the Agent has received a certified resolution from
the members of the Borrower and of any other body authorizing the
execution of the Loan Documents to which it is a party authorizing this
Amendment; and
(iv) the Borrower has paid any upfront fee due to [the
Increasing Lender] with respect to such increase in its Commitment.
4. Miscellaneous.
(i) The Borrower represents and warrants to the Lenders
that (i) after giving effect to this Amendment, no Default or Unmatured
Default exists, (ii) the Credit Agreement is in full force and effect,
and (iii) the Borrower has no defenses or offsets to, or claims or
counterclaims, relating to, its obligations under the Credit Agreement.
(ii) All of the obligations of the parties to the Credit
Agreement, as amended hereby, are hereby ratified and confirmed. All
references in the Loan Documents to the "Credit Agreement" henceforth
shall be deemed to refer to the Credit Agreement as amended by this
Amendment.
(iii) Nothing contained in this Amendment shall be
construed to disturb, discharge, cancel, impair or extinguish the
indebtedness evidenced by the existing Notes and secured by the Loan
Documents or waive, release, impair, or affect the liens arising under
the Loan Documents or the validity or priority thereof.
(iv) In the event of a conflict or inconsistency between
the provisions of the Loan Documents and the provisions of this
Amendment, the provisions of this Amendment shall govern. The
provisions of this Amendment, the Credit Agreement, the Security
Agreement and the other Loan Documents are in full force and effect
except as amended herein and the Loan Documents as so amended are
ratified and confirmed hereby by the Borrower.
(v) The Borrower agrees to reimburse the Agent and the
Increasing Lender for all reasonable out-of-pocket expenses (including
legal fees and expenses) incurred in connection with the preparation,
negotiation and consummation of this Amendment.
(vi) This Amendment shall be effective as of the date that
the Agent has received executed counterparts of this Amendment from the
Borrower and the Increasing Lender.
(vii) This Amendment may be executed in counterparts which,
taken together, shall constitute a single document.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers, all as
of the day and year written below:
PULTE MORTGAGE LLC, a Delaware limited
liability company
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
BANK ONE, NA, as Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
[LENDER]
By:______________________________________
Name:____________________________________
Title:___________________________________
Date:____________________________________
SCHEDULE "1"
LENDERS' COMMITMENT PERCENTAGES
COMMITMENT
COMMITMENT PERCENTAGE
BANK NAME AMOUNT (INCLUDES SWINGLINE)
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
Total
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EXHIBIT L
APPROVED SERVICING PURCHASERS.
1. Commercial Federal Bank
2. Home Side Lending, Inc.
APPROVED SERVICING SALE AGREEMENTS.
1. Mortgage Loan Servicing Purchase and Sale Agreement Forward Bulk
Purchase and Sale dated as of July 8, 2002 by and between Company and
Commercial Federal Bank
2. Mortgage Loan Servicing Purchase and Sale Agreement Quarterly Flow
Purchase dated as of May 11, 2001 between Company and Home Side
Lending, Inc.
EXHIBIT M
APPROVED RECOURSE SERVICING
FNMA Bridge Loan Program
FNMA Condominium Program
EXHIBIT N
FORM OF AMENDMENT FOR AN INCREASED COMMITMENT
This AMENDMENT (this "Amendment") is made as of the __________________
day of , 200_ by and among PULTE MORTGAGE LLC, a Delaware limited liability
company (the "Borrower"), Bank One, NA, as agent under the "Credit Agreement"
(as defined below) (the "Agent") and ____________________________________ (the
"Supplemental Lender").
The Borrower, the Agent and certain other Lenders, as described
therein, are parties to a Fourth Amended and Restated Revolving Credit Agreement
dated as of March 31, 2003 (as amended from time to time, the "Credit
Agreement"). All terms used herein and not otherwise defined shall have the same
meaning given to them in the Credit Agreement.
Pursuant to Section 2.10(c) of the Credit Agreement, the Borrower has
the right to increase the Aggregate Commitment by obtaining increased
Commitments upon satisfaction of certain conditions. This Amendment requires
only the signature of the Borrower, the Agent and the Supplemental Lender so
long as the Aggregate Commitment is not increased above $350,000,000.
The Supplemental Lender is either (a) an existing Lender which is
increasing its Commitment or (b) a new Lender which is a lending institution
whose identity the Agent will approve by its signature below.
In consideration of the foregoing, such Supplemental Lender, from and
after the date hereof shall have a Commitment of $______________ resulting in a
new Aggregate Commitment of $______________ as of the date hereof, and if it is
a new Lender, the Supplemental Lender hereby assumes all of the rights and
obligations of a Lender under the Credit Agreement.
The Borrower has executed and delivered to the Supplemental Lender as
of the date hereof, if requested by the Supplemental Lender, a new amended and
restated Note in the form attached to the Credit Agreement as Exhibit A to
evidence the increased Commitment of the Supplemental Lender.
IN WITNESS WHEREOF, the Agent, the Borrower and the Supplemental Lender
have executed this Amendment as of the date shown above.
[BORROWER]
By:_________________________________
Its: ________________________
[SUPPLEMENTAL LENDER]
By:_________________________________
Its:_________________________
BANK ONE, NA, as Agent
By:_________________________________
Its:________________________