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EXHIBIT 10(u)
COLLECTION AND PAYING AGREEMENT
THIS
COLLECTION AND PAYING AGREEMENT (the "Agreement"), dated as of
August
______, 2002, by and among
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Pulte Mortgage Corporation, a Delaware corporation ("PMC"), in
its capacity as borrower under the Warehouse Facility (defined
below) (in such capacity the "Warehouse Borrower"), and in its
capacity as Servicer under the CP Facility (defined below) (in
such capacity the "Servicer"),
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Pulte Funding, Inc., a Michigan corporation, in its capacity
as "Borrower" ("PFI"), under and as defined in the Loan
Agreement (in such capacity, the "CP Facility Borrower"),
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Bank One NA, in its capacity as Administrative Agent for the
lenders under the Warehouse Agreement described below (in such
capacity the "Warehouse Facility Agent"),
-
Credit Lyonnais New York Branch, in its capacity as
Administrative Agent for the lenders under the Loan Agreement
described below (in such capacity the "CP Facility Agent"),
and
-
LaSalle Bank National Association, as collateral agent for the
Warehouse Facility and the CP Facility (each as defined below)
(in such capacity the "Collateral Agent").
W I T N E S S E T H
PMC, an
originator of mortgage loans, has entered into a Third Amended
and
Restated Revolving Credit Agreement, dated as of March 31, 2000, as
amended from
time to time (the "Warehouse Agreement") with the Warehouse
Facility Agent and
certain lenders named therein (the "Warehouse Lenders"), pursuant
to which the
Warehouse Lenders have agreed to make loans to PMC, secured by
mortgage loans
(the "Warehouse Facility").
The
Collateral Agent has been hired to act as collateral agent of
the
mortgage loans securing loans made pursuant to the Warehouse
Facility pursuant
to the Second Amended and Restated Security and Collateral Agency
Agreement,
dated as of March 31, 2000, among PMC, the Warehouse Facility Agent
and LaSalle
Bank National Association as successor by assignment to Bank One
Trust Company,
as amended from time to time (the "Warehouse Collateral
Agreement").
PMC has
formed a special purpose subsidiary, PFI, and has entered into
a
Repurchase Agreement with PFI, pursuant to which PMC sells Mortgage
Assets to
PFI. In order to finance its purchases of Mortgage Assets from PMC,
PFI has
entered into a Restated and Amended Loan Agreement (the "Loan
Agreement") with
the CP Facility
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Agent, PMC, as Servicer, the CP Lenders named in such Loan
Agreement, and
certain other parties named therein. The transactions effected by
the Repurchase
Agreement, the Loan Agreement and the related transaction documents
are referred
to herein as (the "CP Facility").
The
Collateral Agent has been appointed by the CP Facility Agent as
collateral agent to hold, maintain and administer all Collateral
owned by PFI
and pledged to the CP Facility Agent under the CP Facility,
pursuant to the
Amended and Restated Collateral Agency Agreement, dated as of the
date hereof,
among PFI, the CP Facility Agent and the Collateral Agent (the "CP
Collateral
Agreement").
Under both
the Warehouse Facility and the CP Facility, the Collateral
Agent ships the mortgage documents related to mortgage loans from
time to time
to investors ("Take-Out Investors"). Upon approval of the document
packages, the
Take-Out Investors purchase the shipped mortgage loans for
cash.
The
parties hereto desire that the Collateral Agent establish and
maintain
a deposit account in the name of the Collateral Agent at the
Account Bank (the
"Cash and Collateral Account") for purposes of receiving payments
from Take-Out
Investors who have purchased mortgage loans and related collateral
that were
either (a) pledged to the Warehouse Facility Agent for the benefit
of the
Warehouse Lenders under the Warehouse Facility or (b) sold by PMC
to PMI
pursuant to the Repurchase Agreement and pledged to the CP Facility
Agent for
the benefit of the CP Lenders under the CP Facility.
The CP
Facility Agent and the CP Lenders desire that the Collateral
Agent
establish and maintain a deposit account (the "Collection Account")
for the
benefit of the CP Lenders under the CP Facility.
The
parties hereto desire that the Collateral Agent, on a daily
basis,
identify any funds on deposit in the Cash and Collateral Account,
and allocate
and pay such funds as provided herein.
NOW,
THEREFORE, in consideration of the mutual promises and
covenants
contained herein, the parties hereto agree as follows:
Section 1.
Definitions. Capitalized terms used herein but not defined
herein shall have the meanings ascribed to them in the Loan
Agreement or the
Warehouse Agreement, as the context requires. The following
additional terms
shall have the respective meanings set forth below:
"Account
Bank" means Bank One, NA, in its capacity as the bank that
maintains the Cash and Collateral Account.
"Agents"
means collectively, the Warehouse Facility Agent and the CP
Facility Agent.
"Agreement" means this Agreement and all schedules, supplements
and
exhibits hereto, as the same may be amended from time to time.
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"Cash and
Collateral Account" means the deposit account no.
________________ at the Account Bank, established and maintained by
the
Collateral Agent pursuant to Section 2(a) hereof.
"Collection Account" means the deposit account established and
maintained
by the Servicer for the benefit of the CP Facility Agent and the CP
Lenders as
described in Section 2(b) hereof.
"CP
Facility" has the meaning set forth in the recitals.
"CP
Facility Agent" has the meaning set forth in the recitals.
"CP
Lenders" the lenders under the Loan Agreement entered into as part
of
the CP Facility.
"CP
Termination Date" the date on which (a) the Drawdown Termination
Date
under the CP Facility has occurred, (b) all Obligations under the
CP Facility
have been paid in full, and (c) the collateral security therefor
shall have been
released pursuant to the Loan Agreement and/or the related security
agreement.
"Default"
with respect to the CP Facility, has the meaning ascribed to
the
term in the Loan Agreement, and, with respect to the Warehouse
Facility, has the
meaning ascribed to the term in the Warehouse Agreement.
"Effective
Date" means August __, 2002.
"Eligible
Institution" means any depository institution, organized under
the laws of the United States or any state, having capital and
surplus in excess
of $200,000,000, the deposits of which are insured to the full
extent permitted
by law by the Federal Deposit Insurance Corporation and that is
subject to
supervision and examination by federal or state banking
authorities; provided
that such institution also must have a rating of A2 or higher with
respect to
long-term deposit obligations from Moody's, A or higher with
respect to
long-term deposit obligations from S&P, and F2 or higher with
respect to
long-term deposit obligations from Fitch. If such depository
institution
publishes reports of condition at least annually, pursuant to law
or to the
requirements of the aforesaid supervising or examining authority,
then the
combined capital and surplus of such corporation shall be deemed to
be its
combined capital and surplus as set forth in its most recent report
of condition
so published.
"Event of
Default" with respect to the CP Facility, has the meaning
ascribed to the term in the Loan Agreement, and, with respect to
the Warehouse
Facility, has the meaning ascribed to the term in the Warehouse
Agreement.
"Facility"
means the CP Facility or the Warehouse Facility, as applicable.
"Lenders"
means collectively, the CP Lenders and the Warehouse Lenders.
"Loan
Agreement" has the meaning set forth in the recitals.
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"Warehouse
Agreement" has the meaning set forth in the recitals.
"Warehouse
Lenders" means the lenders under the Warehouse Agreement.
"Warehouse
Termination Date" the date on which (a) the "Commitments" (as
defined in the Warehouse Agreement) shall have been terminated, (b)
all amounts
due and payable to the lenders under the Warehouse Facility have
been paid in
full and (c) the collateral security therefor shall have been
released pursuant
to the Warehouse Agreement and/or the related security
agreement.
Section 2.
Establishment and Maintenance of Accounts.
(a) On or
prior to the Effective Date, the Collateral Agent shall
establish the Cash and Collateral Account with the Account Bank in
the name of
"LaSalle Bank National Association, as Collateral Agent." The
Collateral Agent
shall maintain the Cash and Collateral Account in accordance with
the terms of
this Agreement until the termination of this Agreement.
PMC hereby
pledges, assigns and transfers to the Collateral Agent for the
benefit of the Warehouse Facility Agent and Warehouse Lenders, a
security
interest in PMC's interest in the Cash and Collateral Account. Each
of PMC and
PFI hereby pledges, assigns and transfers to the Collateral Agent
for the
benefit of the CP Facility Agent and the CP Lenders, a security
interest in the
Cash and Collateral Account.
The Cash
and Collateral Account shall be under the sole dominion and
control of the Collateral Agent, and shall be a "blocked account,"
such that
neither PMC nor PFI shall have access to such account at any time.
As such, each
of PMC, PMI, the Collateral Agent, the Warehouse Facility Agent,
the CP Facility
Agent and the Account Bank hereby agrees that the Account Bank will
comply with
instructions originated by the Collateral Agent directing the
disposition of
funds in the Cash and Collateral Account from time to time without
further
consent of PMC or PFI. Each of PMC and PFI agrees it shall not make
any attempt
to access the Cash and Collateral Account or funds therein.
All
amounts received by the Collateral Agent
