Exhibit 10.46.7
THIRD AMENDMENT TO MASTER REPURCHASE AGREEMENT (LCPI)
This Third Amendment to Master Repurchase Agreement (LCPI) (this
"Amendment") amends the Second Amended and Restated Master Repurchase Agreement
(as amended, the "Repurchase Agreement"), dated as of January 30, 2002, by and
between Xxxxxx Commercial Paper Inc. (the "Buyer") and Green Tree Finance
Corp.-Five, a Minnesota corporation (the "Seller").
WHEREAS, the parties entered into previous amendments of the
Repurchase Agreement, dated as of April 30, 2002 and August 12, 2002;
WHEREAS, the Seller, Conseco Finance Corp. (the "Guarantor"), Green
Tree Residual Finance Corp. I ("GTRFC"),the Buyer and Xxxxxx Brothers, Inc.
("LB" and, together with the Buyer, "Xxxxxx") have entered into an Amendment and
Forbearance Agreement, dated as of September 30, 2002 (the "Original Forbearance
Agreement"), whereby such parties have agreed, among other things, to amend the
Repurchase Agreement and other agreements described therein;
WHEREAS, the parties to the Original Forbearance Agreement have agree
to amend and restate such agreement by an Amended and Restated Forbearance
Agreement, dated as of the date hereof (the "Forbearance Agreement");
WHEREAS, capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Repurchase Agreement; and
WHEREAS, the parties desire to further amend the Repurchase Agreement
in the following respects;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree that the Repurchase Agreement is hereby
amended as follows.
1. The term "Applicable Margin" set forth in Section 2 of the
Repurchase Agreement is hereby amended and restated in its entirety as follows:
"Applicable Margin" means (i) in respect of Home Equity Loans,
0.85% per annum, provided, however, that in respect of Home Equity
Loans that are Wet Home Equity Loans such percentage shall be
increased to 1.1% per annum; (ii) in respect of High LTV Home Equity
Loans, 1.0% per annum, provided, however, that in respect of High LTV
Home Equity Loans that are Wet High LTV Home Equity Loans such
percentage shall be increased to 1.25% per annum; (iii) in respect of
Home Improvement Loans, 0.85% per annum, provided, however, that in
respect of Home Improvement Loans that are Wet Home Improvements Loans
such percentage shall be increased to 1.1 % per annum; (iv) in respect
of Manufacturing Housing Contracts, 0.925% per annum; provided,
however, that in respect of Manufacturing Housing Contracts that are
Wet Manufacturing Housing Contracts such percentage shall be increased
to 1.175% per annum; and (v) in respect of Esoteric Assets, 1.5% per
annum until and including June 30, 2002 and
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3.0% per annum from and including July 1, 2002; provided further,
however, that if the aggregate Purchase Price for all Transactions
hereunder exceeds $500,000,000 the "Applicable Margin" in respect of
Transactions in an amount by which the aggregate Purchase Price is in
excess of $500,000,000 shall be increased to 2.00%, which shall be
effected by increasing to 2.00% the Applicable Margin for the
Transactions with the highest Applicable Margins currently being
charged hereunder (other than Transactions in respect of Esoteric
Assets)(increasing the margin on the Transactions with highest
Applicable Margin first and then the Transactions with the next
highest Applicable Margin and then Transactions with the next highest
Applicable Margin .etc.) until Transactions in an amount by which the
aggregate Purchase Price exceeds $500.000.000 have an Applicable
Margin of 2.00%.
2. The term "Collateral Amount Percentage" set forth in Section 2 of
the Repurchase Agreement is hereby amended and restated in its entirety as
follows:
"Collateral Amount Percentage" means the amount set forth in the
Confirmation which, in any event, (i) shall not be less than 103% with
respect to Home Equity Loans in determining whether a Collateral
Deficit exists pursuant to the first sentence of Section 4(a) hereof,
(ii) (a) shall not be less than 110% with respect to Insured Home
Improvement Loans in determining whether a Collateral Deficit exists
pursuant to the first sentence of Section 4(a) hereof, (b) shall not
be less than 115% with respect to Uninsured Home Improvement Loans in
determining whether a Collateral Deficit exists pursuant to the first
sentence of Section 4( a) hereof, (iii) shall not be less than 110%
with respect to loans arising under Retail Installment Contracts in
determining whether a Collateral Deficit exists pursuant to the first
sentence of Section 4(a) hereof, (iv) shall not be less than 115% with
respect to High LTV Home Equity Loans in determining whether a
Collateral Deficit exists pursuant to the first sentence of Section
4(a)hereof; (v) shall not be less than 105% with respect to
Manufactured Housing Contracts in determining whether a Collateral
Deficit exists pursuant to the first sentence of Section 4(a) hereof;
provided however, that such amount shall not be less than 250% with
respect to Excess Repo Refi Contracts in determining whether a
Collateral Deficit exists pursuant to the first sentence of Section
4(a) hereof, (vi) shall not be less than 143% with respect to Vehicle
Leases in determining whether a Collateral Deficit exists pursuant to
the first sentence of Section 4(a) hereof, (vii) shall not be less.
than 161 % with respect to Floor Plan Assets in determining whether a
Collateral Deficit exists pursuant to the first sentence of Section
4(a) hereof and (viii) shall not be less than 110% with respect to
HELOCs in determining whether a Collateral Deficit exists pursuant to
the first sentence of Section 4(a) hereof.
3. The term "Excess Repo Refi Contracts" set forth in Section 2 of the
Repurchase Agreement is hereby amended and restated in its entirety as follows:
"Excess Reno Refi Contract" means either (as the context
requires} (i) any Repo Refi Contract that, if such Repo Refi Contract
becomes subject to an
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outstanding Transaction hereunder, would result in the aggregate
Purchase Price of all Repo Refi Contracts subject to outstanding
Transactions hereunder to exceed 20% of the aggregate outstanding
Repurchase Price for all Manufactured Housing Contracts subject to
Transactions hereunder or (ii) any Repo Refi Contract that becomes
subject to a Transaction hereunder when the aggregate Purchase Price
of all Repo Refi Contracts subject to outstanding Transactions
hereunder exceeds 20% of the aggregate outstanding Repurchase Price
for all Manufactured Housing Contracts subject to Transactions
hereunder; provided that if, subsequent to such Repo Refi Contract
becoming subject to a Transaction hereunder, the aggregate Purchase
Price of all Repo Refi Contracts subject to outstanding Transactions
hereunder is less than 20% of the aggregate outstanding Repurchase
Price for all Manufactured Housing Contracts subject to Transactions
hereunder, such Repo Refi Contract shall no longer be considered an
"Excess Repo Refi Contract", provided, further, in the event that as
of any date of determination the aggregate Purchase Price of all
outstanding Repo Refi Contracts subject to Transactions exceed 20% of
the outstanding Repurchase Price of all Manufactured Housing Contracts
subject to Transactions hereunder such excess Repo Refi Contracts as
identified by Buyer shall constitute "Excess Repo Refi Contract".
4. The term "First Lien Home Equity Loans" shall be added to Section 2
of the Repurchase Agreement as a new defined term as follows:
"First Lien Home Equity Loans" means those Home Equity Loans
constituting first lien loans.
5. The terms "Forbearance Agreement" and "Forbearance Period" shall be
added to Section 2 of the Repurchase Agreement as new defined terms as follows:
"Forbearance Agreement" means that certain Amended and Restated
Forbearance Agreement dated as of October 9, 2002 by and among the
Buyer, the Seller, the Guarantor, Green Tree Residual and Xxxxxx
Brothers Inc.
"Forbearance Period" shall have the meaning-given such term in
Section 2 of the Forbearance Agreement.
6. The term "Permitted Temporary Repo Refi Overlimit" set forth in
Section 2 of the Repurchase Agreement is hereby amended and restated in its
entirety as follows:
"Permitted Temporary Repo Refi Overlimit" means, (i) during the
Forbearance Period, an amount of Excess Repo Refi Contracts otherwise
constituting Eligible Assets purchased by the Buyer from the Seller
hereunder at a Purchase Price m each case not exceeding 40% of the
principal amount thereof and with an aggregate Purchase Price not
exceeding $16 million, and (ii) thereafter, $0.
7. The term "Purchase Price" set forth in Section 2 of the Repurchase
Agreement is hereby amended and restated in its entirety as follows:
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"Purchase Price" means, on each Purchase Date, the price at which
Purchased Eligible Assets are transferred by Seller to Buyer or its
designee (including the Custodian); provided, however, that (i) other
than as set forth in the proviso to this clause (i) and the
immediately succeeding clause (ii), the Purchase Price of any Home
Equity Loan shall not in any event exceed 95% of the principal amount
thereof; provided that on and after October 16, 2002 but only during
the Forbearance Period the Purchase Price of any First Lien Home
Equity Loan (other than any Him L TV Home Equity Loan and any Section
32 Loan) may exceed 95% of the principal amount thereof but shall not
in any event exceed 100% of the principal amount thereof, (ii) the
Purchase Price of any High L TV Home Equity Loan shall not in any
event exceed 85% of the principal amount thereof. (iii) the Purchase
Price of any Insured Home Improvement Loan shall not in any event
exceed 90% of the principal amount thereof. (iv) the Purchase Price of
any Uninsured Home Improvement Loan shall not in any event exceed 90%
of the principal amount thereof, (v) the Purchase Price of any Retail
Installment Contract shall not in any event exceed 90% of the
principal amount thereof. (vi) the Purchase Price of any Manufactured
Housing Contract shall not in any event exceed 95% of the principal
amount thereof; provided that the Purchase Price of any Excess Reno
Refi Contracts shall not in any event exceed 40% of the principal
amount thereof, (vii) the Purchase Price of any Vehicle Lease shall
not in any event exceed 70% of the net discounted present value
determined at Buyer's reasonable discretion of all rents to be paid
under such Vehicle Lease (without taking into account the residual
value under such Vehicle Lease), (viii) the Purchase Price of any
Floor Plan Asset shall not in any event exceed 62.5% of the principal
amount thereof and (ix) the Purchase Price of any HELOC shall not
exceed 90% of the principal amount thereof.
8. The term "Section 32 Loan" shall be added to Section 2 of the
Repurchase Agreement as a new defined term as follows:
"Section 32 Loan" means those Home Equity Loans covered under
Section 32 of Regulation Z under the Truth in Lending Act.
9. The term "Residual Facilities" shall be added to Section 2 of the
Repurchase Agreement as a new defined term as follows:
"Residual Facilities" means (a) the Master Repurchase Agreement
and Annex to Master Repurchase Agreement Supplemental Terms and
Conditions, each dated as of September 29, 1999, between Green tree
Residual Finance Corp. I and Xxxxxx Brothers, Inc., each as amended or
modified in accordance with the terms thereof and (c) the Asset
Assignment Agreement, dated as of February 13, 1998, between Green
Tree Residual Finance Corp. I and Xxxxxx XXX Inc., as amended or
modified in accordance With the terms thereof.
10. Section 3.a. is hereby amended as the following proviso shall be
added to the end of the first sentence thereof:
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". . . provided, however, that during the Forbearance Period, all
references in this sentence to $500,000,000 shall be instead be
references to $700,000,000"
11. Section 3.f. is hereby amended and restated in its entirety as
follows:
F. With respect to all Transactions hereunder, the aggregate
Purchase Price for all Purchased Eligible Assets at anyone time
subject to the outstanding Transactions shall not exceed $700,000,000
during: the Forbearance Period and $500,000,000 thereafter, provided,
however, that the aggregate Purchase Price for all Home Equity Loans
subject to Transactions hereunder shall not exceed $700,000,000
during: the Forbearance Period and $500,000,000 thereafter; the
aggregate Purchase Price for all Wet High L TV Home Equity Loans, Wet
Home Equity Loans, Wet Home Improvement Loans and Wet Manufactured
Housing Contracts subject to Transactions hereunder shall not exceed
the lesser of (x) $150,000,000 and (y) 30% of the aggregate
outstanding Repurchase Price for all Transactions hereunder; the
aggregate Purchase Price for all Insured Home Improvement Loans
subject to Transactions hereunder shall not exceed $3,000,000; the
aggregate Purchase Price for all Uninsured Home Improvement Loans
subject to Transactions hereunder shall not exceed $175,000,000; the
aggregate Purchase Price for all Manufactured Housing Contracts
subject to Transactions hereunder shall not exceed the lesser of (x)
$350.000.000 and (v) 5.0% of the aggregate outstanding Repurchase
Price for all Transactions hereunder; the aggregate Purchase Price for
all High L TV Home Equity Loans subject to Transactions hereunder
shall not exceed the lesser of (x) $150,000,000 and (y) 20% of the
aggregate outstanding Repurchase Price for all Transactions hereunder;
the aggregate Purchase-Price for all Esoteric Assets subject to
Transactions hereunder shall not exceed $90,600,000 subject to the
Esoteric Asset Maximum Purchase Price; and the aggregate Purchase
Price for all Repo Refi Contracts subject to Transactions hereunder
shall not exceed the sum of 20% of the aggregate outstanding
Repurchase Price for all Manufactured Housing Contracts subject to
Transactions hereunder plus the aggregate Purchase Price in respect of
the Permitted Temporary Repo Refi Overlimit if any.
12. The Buyer shall require opinions of counsel on or before October
9, 2002 as to the due authorization, execution and delivery of Amendment, the
Forbearance Agreement and the other Amendment (as defined in the Forbearance
Agreement).
13. The effectiveness of the amendments set forth in paragraphs 7
hereof shall be subject to (i) satisfaction of all of the conditions precedent
set forth in Section 5 ("Conditions Precedent") of the Forbearance Agreement as
determined by Xxxxxx Brothers, Inc. in its sole and absolute discretion, (ii)
receipt by the Buyer, Xxxxxx XXX Inc. and Xxxxxx Brothers, Inc. of the opinions
of counsel described in paragraph 12 hereof and (iii) receipt by the Buyer,
Xxxxxx XXX Inc. and Xxxxxx Brothers, Inc. on or before October 10, 2002 of any
UCC-l financing statements necessary to perfect each transfer, assignment,
conveyance, pledge and security interest made or created pursuant to, or
referred to in, Section 5 ("Conditions Precedent") and Section 6 ("Transfers")
of the Forbearance Agreement as determined by Xxxxxx Brothers, Inc. in its sole
and absolute discretion; provided that if the opinions described in paragraph 12
hereof
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are not delivered to the Buyer, Xxxxxx Brothers, Inc. and Xxxxxx XXX Inc. on or
before October 9, 2002, an Event of Default shall be deemed to have occurred
under the Repurchase Agreement.
14. Representations and Warranties.
(a) The execution, delivery and performance by Seller of this
Amendment have been duly authorized by all necessary or proper
corporate action on the part of Seller and do not require the consent
or approval of any Person that has been not obtained.
(b) Seller acknowledges that it has, no defense, offset, claim or
counterclaim with respect to any of its obligations to make payments
under the Repurchase Agreement.
(c) This Amendment and each of the other agreements in the
Repurchase Agreement, as amended hereby, to which Seller is a party
constitute legal, valid and binding obligations of Seller enforceable
against Seller in accordance with their respective terms.
15. Covenants.
(a) Guarantor and Seller shall in good faith work with Xxxxxx
during the Forbearance Period (as defined in the
Forbearance-Agreement) to (i) modify/amend the relevant Pooling and
Servicing Agreements to allow for a servicer transfer (which
amendment, and any other amendments to such Pooling and Servicing
Agreements proposed by Guarantor or Seller must be in form and
substance satisfactory to Xxxxxx), (ii) effect the transfer of the
servicing rights and platform to a transferee reasonably acceptable to
Xxxxxx for consideration to be determined, and (iii) transfer a
majority of the equity of the Guarantor to a transferee reasonably
acceptable to Xxxxxx for consideration to be determined.
(b) Guarantor and Seller shall work in good faith to prepare a
restructuring plan, a preliminary version of which shall be delivered
to Buyer on or before October 29,.2002 and the final version of which
shall be delivered to Xxxxxx on or before November 13, 2002 in a form
reasonably acceptable to Xxxxxx.
(c) Guarantor shall deliver daily liquidity schedules to Xxxxxx
and other reports as Xxxxxx reasonably requests.
(d) Guarantor shall maintain or cause to be maintained servicing
standards consistent with market practice.
(e) Guarantor shall not make any dividends, payments of any kind
or other distributions to its parent or any affiliates.
(f) Guarantor shall provide Xxxxxx with full access to the
Guarantor and its books, records, executives and officers.
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(g) Guarantor will, within five (5) days of written request by
Xxxxxx at any time from and after November 23, 2002. hire a crisis
manager reasonably acceptable to Xxxxxx.
(h) Guarantor shall not implement any key employee retention
programs unless reasonably acceptable to Xxxxxx.
(i) The Seller and the Guarantor hereby agree to implement a cash
management system (including lockboxes) with respect to the Eligible
Assets purchased by the Buyer under the Repurchase Agreement
satisfactory to the Buyer in it sole and absolute discretion on or
before October 11, 2002.
Guarantor and the Seller hereby agree and acknowledge that any failure
by the Guarantor or the Seller to comply with any of covenants in this Section
or any other terms and conditions of this Amendment shall constitute (i) with
respect to the covenants contained in Section 15(b), (e), (t), (g) and (h), an
immediate Event of Default under the Repurchase Agreement and shall not be
subject to cure or any grace period (ii) with respect to the covenants contained
in Section 15(a) and (d), an Event of Default three Business Days after the
Buyer notifies the Guarantor or Seller, with a copy to the Guarantor, of any
such failure and the Guarantor or Seller fails to cure such failure within such
time and (iii) with respect to the covenants contained in Section 15(c), an
Event of Default one Business Day after the Buyer notifies the Guarantor or the
Seller, with a copy to the Guarantor, of any such failure and the Guarantor or
Seller-fails to cure such failure within such time.
16. Complete Agreement. This Amendment contains the final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.
17. Reference to and Effect on the Repurchase Agreement and Related
Documents.
(a) Except as specifically amended herein, the Repurchase
Agreement is and shall Continue to be in full force and effect and is
hereby in all respects ratified and confirmed. On and after the date
hereof each reference in the Repurchase Agreement to "this Agreement,"
"hereunder," "hereof" or words of like import referring to the
Repurchase Agreement, and each reference in each other document
executed in connection with or pursuant to the Repurchase Agreement to
the "Agreement," the "Repurchase Agreement" or "thereunder" or
"thereof' (when referring to the Repurchase Agreement) or words of
like import referring to the Repurchase Agreement, shall mean and be a
reference to the Repurchase Agreement as amended hereby. "
(b) Except as specifically amended above, the Repurchase
Agreement and all documents executed pursuant thereto or in connection
therewith including, but not limited to the Limited Guaranty are and
shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as an
amendment. waiver or modification of any right, power or remedy of
Seller, nor constitute an amendment, waiver or
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modification of any other provisions of the Repurchase Agreement or
any other document executed in connection therewith.
18. No Waiver. Please note that the execution, delivery and
performance of this Amendment does not constitute a waiver of any Event of
Default (as defined in the respective agreements) pursuant to (i) the Repurchase
Agreement, (ii) the Asset Assignment Agreement by and between Xxxxxx XXX Inc.,
as lender and Green Tree Residual Finance Corp. I, as borrower, or (iii) the
Master Repurchase Agreement dated as of September 29, 1999 by and between Green
Tree Residual Finance Corp. I, as borrower and Xxxxxx Brothers Inc., as lender,
or of any of the rights and remedies of Xxxxxx Commercial Paper Inc., Xxxxxx XXX
Inc. or Xxxxxx Brothers, Inc. pursuant to such agreements or documents executed
in connection therewith and such lenders reserve all of their rights and
remedies pursuant to such agreements, at law or otherwise, unless, in each case,
otherwise expressly agreed to in writing by Xxxxxx Commercial Paper Inc., Xxxxxx
XXX Inc. or Xxxxxx Brothers, Inc., as appropriate.
19. Release and Indemnification. The Seller and Guarantor hereby,
jointly and severally, agree to release and indemnify Buyer, Buyer's designees
and each of its officers, directors, employees and agents ("Indemnified
Parties") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, taxes (other than income taxes of
Buyer), fees, costs, expenses (including reasonable attorneys fees and
disbursements) or disbursements (all of the foregoing, collectively "Indemnified
Amounts") which may at any time (including, without limitation, such time as
this Amendment shall no longer be in effect) be imposed on or asserted against
any Indemnified Party in any way whatsoever arising out of or in connection
with, or relating to, this Amendment or any Transactions thereunder or any
action taken or omitted to be taken by the Seller or the Guarantor or any of
their respective Affiliates under or in connection with the foregoing; provided,
that Seller and the Guarantor shall not be liable for Indemnified Amounts
resulting from the gross negligence or willful misconduct of any Indemnified
Party.
20. Costs and Expenses. Seller agrees to pay on demand all reasonable
costs and expenses of Buyer in connection with this Amendment.
21. Governing Law. This Amendment shall be governed by, and construed
and enforced in accordance with, the law of the State of New York.
22. Third Party Beneficiaries. Xxxxxx Brothers, Inc., Xxxxxx XXX Inc.
and their affiliates shall be an express third party beneficiaries of this
Amendment.
23. Headings. Section headings contained in this Amendment are
included herein for the convenience of reference only and shall not constitute
part of this Amendment for any other purpose.
24. Execution Counterparts. This Amendment may be executed in any
number of counterparts and by different parties in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached to the same document.
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Delivery of an executed signature page of this Amendment by facsimile
transmission shall be as effective as delivery of manually executed counterpart
hereto.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
October 9, 2002.
GREEN TREE FINANCE CORP.--FIVE
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Assistant Treasurer
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Approved and Agreed to:
CONSECO FINANCE CORP., as Guarantor
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Assistant Treasurer
GREEN TREE RESIDUAL FINANCE CORP. I
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Assistant Treasurer
[Signature Page to Third Amendment to Master Purchase Agreement (LCP!)]
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