<PAGE>
EXHIBIT 10(aa)
SECOND AMENDED AND RESTATED ADDENDUM TO
MASTER REPURCHASE AGREEMENT
Dated as of August 19, 2005
Between
PULTE MORTGAGE LLC
as a Seller,
and
PULTE FUNDING, INC.
as Buyer
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS...................................................
5
Section 1.01.
Certain Defined
Terms.................................. 5
Section 1.02.
Other
Terms............................................ 23
ARTICLE II AMOUNTS AND TERMS OF
PURCHASES............................... 24
Section 2.01.
Facility...............................................
24
Section 2.02.
Making
Purchases....................................... 24
Section 2.03.
Margin
Maintenance..................................... 25
Section 2.04.
Collections............................................
26
Section 2.05.
Repurchase or
Substitution Procedures.................. 27
Section 2.06.
Payments and
Computations, Etc......................... 28
Section 2.07.
Intent of the Seller
and the Buyer..................... 28
Section 2.08.
No Segregation of
Assets............................... 28
Section 2.09.
Substitution...........................................
29
ARTICLE III CONDITIONS OF
PURCHASES...................................... 30
Section 3.01.
C onditions Precedent to Any
Purchase from the Seller.. 30
Section 3.02.
C onditions Precedent to All
Purchases................. 31
ARTICLE IV REPRESENTATIONS AND
WARRANTIES................................ 32
Section 4.01.
Representations of the
Seller........................... 32
ARTICLE V
COVENANTS......................................................
37
Section 5.01.
........................................................ 37
Section 5.02.
Financial Statements
and Reports........................ 37
Section 5.03.
Taxes and Other
Liens................................... 38
Section 5.04.
Maintenance............................................. 38
Section 5.05.
Further
Assurances...................................... 38
Section 5.06.
Insurance............................................... 39
Section 5.07.
Accounts and
Records.................................... 40
Section 5.08.
Right of
Inspection..................................... 40
Section 5.09.
Notice of Certain
Events................................ 40
Section 5.10.
Performance of Certain
Obligations...................... 40
Section 5.11.
Notice of
Default....................................... 41
Section 5.12.
Compliance with Laws
and Material Agreements............ 41
Section 5.13.
Deposits of
Proceeds.................................... 41
Section 5.14.
Closing
Instructions.................................... 41
Section 5.15.
Special Affirmative
Covenants Concerning Transferred
Mortgage Assets......................................... 41
Section 5.16.
Limitations on Mergers
and Dissolutions................. 41
Section 5.17.
Fiscal
Year............................................. 42
Section 5.18.
Actions with Respect
to Transferred Mortgage Assets.
The Seller shall not:................................... 42
Section 5.19.
Net
Worth............................................... 42
Section 5.20.
Employee Benefit
Plans.................................. 42
Section 5.21.
Change of Principal
Office.............................. 42
Section 5.22.
Maximum
Leverage........................................ 42
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Section 5.23.
Delivery of Special Mortgage Loans................ 42
Section 5.24.
Change in Business................................ 43
Section 5.25.
Separate Conduct of Business...................... 43
Section 5.26.
Sales, Liens, Etc................................. 43
Section 5.27.
Operations and Properties......................... 43
Section 5.28.
Performance Guarantor Credit Rating............... 44
Section 5.29.
Take-Out Commitments.............................. 44
Section 5.30.
Environmental Compliance.......................... 44
ARTICLE VI
COVENANTS...........................................................
44
Section 6.01.
Servicing......................................... 44
Section 6.02.
Correction of Mortgage Notes...................... 44
ARTICLE VII EVENTS OF
DEFAULT..................................................
45
Section 7.01.
Events of Default................................. 45
Section 7.02.
Remedies.......................................... 47
ARTICLE VIII
INDEMNIFICATION...................................................
50
Section 8.01.
Indemnities by the Seller......................... 50
ARTICLE IX
MISCELLANEOUS.......................................................
51
Section 9.01.
Amendments, Etc................................... 51
Section 9.02.
Notices, Etc...................................... 52
Section 9.03.
Binding Effect; Assignability..................... 52
Section 9.04.
Costs, Expenses and Taxes, Expenses and Taxes..... 52
Section 9.05. No
Proceedings.................................... 53
Section 9.06.
GOVERNING LAW..................................... 53
Section 9.07.
Third Party Beneficiary........................... 53
Section 9.08.
Execution in Counterparts......................... 54
Section 9.09.
Repurchase Transactions........................... 54
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EXHIBITS
EXHIBIT A
Form of Deferred Purchase Price Note
EXHIBIT B
Form of Bill of Sale
SCHEDULES
SCHEDULE I
Trade Names
SCHEDULE II
Approved Investors
4
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SECOND AMENDED AND RESTATED ADDENDUM TO MASTER REPURCHASE
AGREEMENT
This
Second Amended and Restated Addendum to Master Repurchase
Agreement,
dated as of August 19, 2005, (this "Agreement"), is made by and
among PULTE
MORTGAGE LLC, a Delaware limited liability company (hereinafter,
together with
its successors and assigns, the "Seller" or "Pulte Mortgage") and
PULTE FUNDING,
INC., a Michigan corporation (hereinafter, together with its
successors and
assigns, the "Buyer").
RECITALS
(1)Certain
terms which are capitalized and used throughout this Agreement
(in addition to those defined above) are defined in Article I of
this Agreement
or, if not defined therein, in the Master Repurchase Agreement.
(2)The
Seller and Buyer have entered into that certain Master
Repurchase
Agreement, dated as of December 22, 2000 (the "Master Repurchase
Agreement").
(3)The
Seller and Buyer have entered into that certain Addendum to
Master
Repurchase Agreement, dated as of December 22, 2000 (the "Original
Addendum").
(4)The
Buyer and Seller wish to amend and restate a second time the
Original Addendum in order to supplement and amend the Master
Repurchase
Agreement to enter Transactions involving Mortgage Assets (as
defined below).
(4)This
Agreement is in lieu of Annexes I-VII referred to in the Master
Repurchase Agreement.
NOW,
THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section
1.01. Certain Defined Terms.
As used in
this Agreement, the following terms shall have the following
meanings (such meanings to be equally applicable to both the
singular and plural
forms of the terms defined):
"Adjusted
Liabilities" means, with respect to the Seller, without
duplication, and at any time, the sum of (a) all amounts that
should be
reflected as liabilities on its balance sheet, plus (b) its total
direct and
indirect guaranty and other obligations in respect of borrowed
money
Indebtedness of others (calculated at the maximum amount of those
obligations
that is stated in the relevant documents or, if not so stated, that
may
reasonably be anticipated in good faith) plus (c) to the extent not
already
included in clause (a) above, its total funding obligations to
originate or
acquire Mortgage Loans that, in either case, are closed but not
funded, minus
(d) its total trade payables and accrued expenses incurred in the
ordinary
course of its business but unrelated to
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originating or acquiring any specific Mortgage Loan (including,
without
limitation, trade payables and accrued expenses owed to its
Affiliates but
excluding advances by its Affiliates and interest on those
advances), minus (e)
such Seller's total deferred-federal-income tax liabilities.
"Adjusted
Net Worth" means, for the Seller, without duplication, and at
any time, the sum of (a) its members' equity reflected on its
balance sheet,
plus (b) the remainder of (A) the income that the Seller has
deferred, for
accounting purposes, pending the sale of Mortgage Loans in
accordance with
Statement of Financial Accounting Standards Number 91 and Number
122, as each is
published by the Financial Accounting Standards Board as of the
date of this
Agreement, minus (B) reasonable reserves for the federal income tax
liabilities
related to that deferred income.
"Administrative Agent" means Calyon New York, in its capacity
as
administrative agent for the Lenders, or any successor
administrative agent.
"Advance"
means with respect to any Lender any amount disbursed by such
Lender to the Borrower pursuant to Section 2.1 of the Second
Restated Loan
Agreement (or any conversion or continuation thereof).
"Advance
Rate" means (i) with respect to a Conforming Loan or a Jumbo
Loan
(other than a Super Jumbo Loan), ninety-eight percent (98%), (ii)
with respect
to an Alt-A Loan, ninety-seven percent (97%), or, if a FICO Score
Trigger Event
has occurred and is continuing, as reported to the Collateral Agent
by the
Administrative Agent, then zero, (iii) with respect to a Second
Lien Loan or a
Super Jumbo Loan, ninety-five percent (95%) and (iv) with respect
to a Subprime
Loan, ninety percent (90%).
"Adverse
Claim" means a lien, security interest, or other charge or
encumbrance, or any other type of preferential arrangement.
"Affiliate" of
any Person means (a) any other Person that, directly or
indirectly, controls, is controlled by, or is under common control
with, such
Person, or (b) any other Person who is a director, officer or
employee (i) of
such Person, or (ii) of any Person described in the preceding
clause (a). For
purposes of this definition, the term "control" (and the terms
"controlled by"
and "under common control with"), as used with respect to any
Person, shall mean
the possession or ownership, directly or indirectly, of the power
either (x) to
direct or cause the direction of the management and policies of
such Person,
whether by contract or otherwise, or (y) vote 10% or more of the
securities
having ordinary power in the election of directors or managers of
such Person.
"Agreement" means this Agreement, as amended, modified or
supplemented
from time to time.
"Alt-A
Loan" means a Mortgage Loan (other than a Conforming Loan or a
Jumbo Loan) that (1) does not conform to the conventional
underwriting standards
of Fannie Mae, Freddie Mac or Ginnie Mae but that is underwritten
to Approved
Investor guidelines (other than Fannie Mae, Freddie Mac or Ginnie
Mae), within
guidelines generally acceptable to industry norms for "Alt-A"
loans, (2) has a
demonstrated secondary market and are readily securitizable, and
(3) matches all
applicable requirements for purchase under the requirements of a
Take-Out
6
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Commitment specifically issued for the purchase of such Mortgage
Loan, and (4)
is a First Lien Mortgage Loan.
"Alternate
Base Rate" means:
(i) for
the Calyon New York Group, on any date, a fluctuating rate of
interest per annum equal to the higher of:
(a) the rate of interest most recently announced by Calyon New
York
as its base rate; and
(b) the Federal Funds Rate (as defined below) most recently
determined by the Administrative Agent plus 1.0% per annum; and
(ii) for
the JPMorgan Group, on any date, a fluctuating rate of interest
per annum equal to the higher of:
(a) a rate per annum equal to the prime rate of interest from
time
to time by JPMorgan or its parent (which is not necessarily the
lowest rate charged to any customer), changing when and as said
prime rate changes; and
(b) the Federal Funds Rate (as defined below) most recently
determined by JPMorgan plus 1.0% per annum.
For
purposes of this definition, "Federal Funds Rate" means, for
any
period, a fluctuating interest rate per annum equal (for each day
during such
period) to (i) the weighted average of the rates on overnight
federal funds
transactions with members of the Federal Reserve System arranged by
federal
funds brokers, as published 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 (ii) if such rate is not so published for any day that is
a Business
Day, the average of the quotations for such day on such
transactions received by
the Administrative Agent, from three federal funds brokers of
recognized
standing selected by it. The Alternate Base Rate is not necessarily
intended to
be the lowest rate of interest determined by Calyon New York in
connection with
extensions of credit.
"Approved
Investor" means:
(a) Fannie Mae, Freddie Mac or Ginnie Mae, or
(b) any Person with short-term ratings of at least A-1, P-1 and
F1
from
S&P, Moody's and Fitch, respectively, or long-term unsecured
debt
ratings
(or in the case of a bank without such ratings that is the
principal
subsidiary of a bank holding company, the rating of the bank
holding
company) of at least AA, Aa2 and AA from S&P, Moody's, and
Fitch
respectively, or
(c) all other Persons as may be approved by the Managing
Agents,
which
approvals may be subject to certain concentration limits but may
not
be
unreasonably withheld or delayed;
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provided
that (i) if an Approved Investor has a short-term rating or a
long-term
unsecured debt rating at the time such Person first becomes an
"Approved
Investor" and such Person's short-term ratings or long-term
unsecured
debt ratings are subsequently downgraded or withdrawn, such
Person
shall cease to be an "Approved Investor"; provided, further,
that
with
respect to any Take-Out Commitments issued by such Person prior
to
the date
of such downgrade or withdrawal, such Person shall cease to be
an
"Approved
Investor" 60 days following such downgrade or withdrawal; and
(ii) if an
Approved Investor does not have a short-term rating or a
long-term
unsecured debt rating, such Person shall cease to be an
"Approved
Investor" upon prior written notice from either Managing Agent
if such
Managing Agent has good faith concerns about the future
performance of such Person; provided, further, that with respect to
any
Take-Out
Commitments issued by such Person prior to such notice, such
Person
shall cease to be an "Approved Investor" 60 days following such
notice.
As of the
date of this Agreement, Schedule II hereto sets forth the
Approved Investors pursuant to the preceding clauses (b) and (c)
(and any
applicable concentration limits). Schedule II shall be updated from
time to time
as Approved Investors are added or deleted or concentration limits
are changed
pursuant to the preceding clauses (b) and (c).
"Assignment and Acceptance" has the meaning set forth in the
Second
Restated Loan Agreement.
"Atlantic"
means Atlantic Asset Securitization Corp. and its successors
and assigns.
"Bank"
means each of Calyon New York, JPMorgan, and Lloyds and each
respective Eligible Assignee (as defined in the Second Restated
Loan Agreement)
that shall become a party to the Second Restated Loan Agreement
pursuant to an
Assignment and Acceptance.
"Business
Day" means a day on which (i) commercial banks in New York
City,
New York, Chicago, Illinois, and Denver, Colorado are not
authorized or required
to be closed and (ii) commercial banks in the State in which the
Collateral
Agent has its principal office are not authorized or required to be
closed, and
(b) if this definition of "Business Day" is utilized in connection
with a
Eurodollar Advance, a day on which dealings in United States
dollars are carried
out in the London interbank market.
"Calyon
New York" means Calyon New York Branch and its successors and
assigns.
"Calyon
New York Group" means Atlantic, La Fayette, Calyon New York,
and
each other Group Bank of Atlantic and La Fayette.
"Code"
means the Internal Revenue Code of 1986, as amended from time
to
time.
"Collateral Agent" means LaSalle Bank National Association, and
its
successors and assigns.
8
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"Collateral Value" means
(A) with respect to each Eligible Mortgage Loan and at all times,
an
amount
equal to the product of the Advance Rate for such Eligible
Mortgage
Loan
multiplied by the least of:
(1) the lesser of the original principal amount of such
Eligible
Mortgage
Loan or the acquisition price paid by Pulte Mortgage on the
closing
and funding of such Eligible Mortgage Loan;
(2) for each Eligible Mortgage Loan, a ratable amount
determined
by
multiplying (a) the weighted average purchase price (expressed as
a
percentage
of par) that Approved Investors are obligated to pay, pursuant
to
Take-Out Commitments, for all Eligible Mortgage Loans, as shown on
the
most
recent Hedge Report, times (b) the outstanding principal amount
of
such
Eligible Mortgage Loan; and
(3) while a Default or Event of Default is continuing, or upon
request of
either of the Managing Agents at any other time, the Market
Value of
such Eligible Mortgage Loan; and
(B) with respect to the Collection Account, the balance of
collected
funds
therein which is not subject to any Lien in favor of any Person
other than
the Lien in favor of the Administrative Agent for the benefit
of the
holders of the Obligations;
provided, however, that
(a) at any time, the portion of total Collateral Value that may
be
attributable to Jumbo Loans shall not exceed twenty percent (20%)
of the
Maximum
Facility Amount;
(b) at any time, the portion of total Collateral Value that may
be
attributable to Super Jumbo Loans shall not exceed ten percent
(10%) of
the
Maximum Facility Amount, which percentage is a sublimit of clause
(a)
representing 50% of the 20% set forth in clause (a) above;
(c) at any time, the portion of total Collateral Value that may
be
attributable to Alt-A Loans shall not exceed fifty percent (50%) of
the
Maximum
Facility Amount; provided that (i) if an Obligor on any Alt-A
Loan
shall have
a FICO Score of less than 650, or (ii) if an Alt-A Loan shall
have a
Loan-to-Value Ratio of more than 95% or a Combined
Loan-to-Value
Ratio of
more than 100%, such Mortgage Loan shall have a Collateral
Value
of
zero;
(d) at any time, the portion of total Collateral Value that may
be
attributable to Subprime Loans shall not exceed five (5%) of the
Maximum
Facility
Amount; provided that (i) if an Obligor on any Subprime Loan
shall have
a FICO Score of less than 600, or (ii) if a Subprime Loan shall
have a
Loan-to-Value Ratio of more than 90%, such Mortgage Loan shall
have
a
Collateral Value of zero;
9
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(e) any Mortgage Loan with an original principal balance in
excess
of
$1,000,000 or more and a Loan-to-Value Ratio of 75% or more shall
have
a
Collateral Value of zero;
(f) at any time, the portion of total Collateral Value that may
be
attributable to Mortgage Loans for which the Mortgage Notes have
been
withdrawn
for correction pursuant to Section 3.5 of the Collateral Agency
Agreement
shall not exceed five percent (5%) of the Maximum Facility
Amount, as
determined in accordance with said Section 3.5 of the
Collateral
Agency Agreement;
(g) at any time, the portion of the total Collateral Value that
may
be
attributable to any single Approved Investor listed on Schedule
II
pursuant
to one or more Take-Out Commitments shall not exceed the
concentration limit for such Approved Investor as set forth on
Schedule II
(as the
same may be updated from time to time);
(h) at any time, the portion of total Collateral Value that may
be
attributable to
Mortgage Loans that have been Eligible Mortgage Loans (A)
for more
than 120 days shall not exceed ten percent (10%) of the Maximum
Facility
Amount or (B) for more than 180 days, shall be zero;
(i) a Mortgage Loan that ceases to be an Eligible Mortgage Loan
shall have
a Collateral Value of zero;
(j) at any time, (A) except the first five and last five
Business
Days of
any month, the portion of total Collateral Value that may be
attributable to Special Mortgage Loans with respect to which the
related
Principal
Mortgage Documents have not been delivered to the Collateral
Agent
within nine (9) Business Days after the earlier of the date the
Assignment
was delivered to the Collateral Agent or, if different, the
date of
origination of the related Mortgage Loan shall not exceed
thirty
percent
(30%) of the Maximum Facility Amount, and (B) during the first
five and
last five (5) Business Days of any month, the portion of total
Collateral
Value that may be attributable to Special Mortgage Loans with
respect to
which the related Principal Mortgage Documents have not been
delivered
to the Collateral Agent within nine (9) Business Days after the
earlier of
the date the Assignment was delivered to the Collateral Agent
or, if
different, the date of origination of the related Mortgage Loan
shall not
exceed fifty percent (50%) of the Maximum Facility Amount; and
(k) at any time, the portion of total Collateral Value that may
be
attributable to Second Lien Loans shall not exceed ten percent
(10%) of
the
Maximum Facility Amount; provided that (A) if any Obligor on
any
Second
Lien Loan shall have a FICO Score of less than 670 or (B) if
any
Second
Lien Loan shall have a Combined Loan-to-Value Ratio of more
than
100%, such
Mortgage Loan shall have a Collateral Value of zero.
"Collection Account" means the account established by the Buyer
pursuant
to Section 2.7(b) of the Second Restated Loan Agreement.
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"Collections" means, with respect to any Mortgage Asset, all
cash
collections (other than in respect of escrows payable under the
related Mortgage
Loan) and other cash proceeds of such Mortgage Asset.
"Combined
Loan-to-Value Ratio" means, with respect to any Mortgage Loan,
the fraction, expressed as a percentage found by dividing the
original principal
balance of all Mortgage Loans secured by a particular property by
the value of
such Mortgage Loans, such value being measured by (i) the appraised
value of
such property at such time, if a Mortgage Loan is a refinance of an
existing
loan or (ii) the lower of the sales price of the related property
at the time of
origination of a Mortgage Loan or the appraised value of such
property at such
time, if a Mortgage Loan is a purchase money loan.
"Confirmation" is defined in Section 2.02(a) hereto.
"Conforming Loan" means (i) a Mortgage Loan that complies with
all
applicable requirements for purchase under a Fannie Mae, Freddie
Mac or other
similar Governmental Authority standard form of conventional
mortgage loan
purchase contract, then in effect, or (ii) an FHA Loan or a VA
Loan, that, in
either case, is a First Lien Mortgage Loan.
"Debtor
Laws" means all applicable liquidation, conservatorship,
bankruptcy, fraudulent transfer or conveyance, moratorium,
arrangement,
receivership, insolvency, reorganization or similar laws from time
to time in
effect affecting the rights of creditors generally.
"Default"
means any condition or event that, with the giving of notice or
lapse of time or both and unless cured or waived, would constitute
an Event of
Default.
"Default
Rate" has the meaning ascribed to such term in the Second
Restated Loan Agreement.
"Defaulted
Mortgage Loan" means a Mortgage Asset under which the Obligor
is 30 or more days in payment default or has taken any action, or
suffered any
event of the type described in Section 7.01(a)(vii), 7.01(a)(viii)
or
7.01(a)(ix) or is in foreclosure.
"Deferred
Purchase Price" means the portion of the Purchase Price of
Purchased Mortgage Assets purchased on any Purchase Date exceeding
the amount of
the Purchase Price under Section 2.02 to be paid in cash. The
obligations of the
Buyer in respect of the Deferred Purchase Price shall be evidenced
by the
Buyer's subordinated promissory note in the form of Exhibit A
hereto.
"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 A or higher with
respect to
long-term deposit obligations from Moody's and A2 or higher with
respect to
long-term deposit obligations from S&P and A 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 or limited liability company shall be
deemed to be
its combined
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capital and surplus as set forth in its most recent report of
condition so
published.
"Eligible
Mortgage Asset" means an Eligible Mortgage Loan.
"Eligible
Mortgage Collateral" means Eligible Mortgage Loans and the
Collection Account.
"Eligible
Mortgage Loan" means a Mortgage Loan:
(a) that
(i) is a closed and funded Mortgage Loan, (ii) has a maximum
term
to maturity of 30 years and the proceeds of which were used either
to finance a
portion of the purchase price of a Property encumbered by the
related Mortgage
or to refinance a loan secured by such Property, and (iii) is
secured by a
perfected first-priority Lien (except Second Lien Loans) on
residential real
Property consisting of land and a one-to-four family dwelling
thereon which is
completed and ready for owner occupancy, including townhouses and
condominiums;
(b) that
is a Conforming Loan, a Jumbo Loan, a Subprime Loan, a Second
Lien Loan or an Alt-A Loan;
(c) in
which the Administrative Agent has been granted and continues
to
hold a perfected (other than actual delivery of the Mortgage Note
to the
Collateral Agent for Special Borrowings), first-priority (except
Second Lien
Loans), security interest for the benefit of the holders of the
Obligations;
(d) for
which the Mortgage Note is endorsed (without recourse) in blank
and each of such Mortgage Loan and the related Mortgage Note is a
legal, valid
and binding obligation of the Obligor thereof;
(e) for
which, other than in respect of Special Mortgage Loans, the
Principal Mortgage Documents have been received by the Collateral
Agent and are
in form and substance reasonably acceptable to the Collateral
Agent;
(f) that
is either eligible for delivery or designated for delivery
under
a Take-Out Commitment from an Approved Investor; provided that no
more than 45
days have lapsed since the date on which any documentation relating
to such
Mortgage Loan was shipped to the related Approved Investor;
(g) that,
immediately prior to the pledge thereof under the Second
Restated Collateral Agency Agreement, together with the related
Mortgage Loan
Collateral, is owned beneficially by the Buyer free and clear of
any Lien of any
other Person other than the Administrative Agent for the benefit of
the holders
of the Obligations (except Second Lien Loans);
(h) that,
together with the related Mortgage Loan Collateral, does not
contravene any Governmental Requirements applicable thereto
(including, without
limitation, the Real Estate Settlement Procedures Act of 1974, as
amended, and
all laws, rules and regulations relating to usury,
truth-in-lending, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt
collection
practices, privacy and other applicable federal and state consumer
protection
laws) and
12
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with respect to which no party to the related Mortgage Loan
Collateral is in
violation of any Governmental Requirements (or procedure prescribed
thereby) if
such violation would impair the collectability of such Mortgage
Loan or the
saleability of such Mortgage Loan under the applicable Take-Out
Commitment;
(i) that,
(i) is not a Seasoned Mortgage Loan or an Uncovered Mortgage
Loan; (ii) is not a Defaulted Mortgage Loan; (iii) has not
previously been sold
to an Approved Investor and repurchased by Buyer; (iv) is a
Mortgage Loan with
respect to which the Principal Mortgage Documents relating to such
Mortgage Loan
were delivered to the Collateral Agent within the time frame set
forth in
Section 2.3(c) of the Second Restated Loan Agreement; provided
that, upon
delivery of such Principal Mortgage Documents to the Collateral
Agent, such
Mortgage Loans may subsequently qualify as Eligible Mortgage Loans
to support
Borrowings subsequent to such delivery; or (v) has an original
principal balance
not in excess of $1,500,000.00;
(j) that
if the Mortgage Loan Collateral has been withdrawn for
correction
pursuant to Section 6.02 such Mortgage Loan Collateral has been
returned to the
Collateral Agent within 14 calendar days after withdrawal as
required by Section
6.02;
(k) that
is denominated and payable in U.S. dollars in the United States
and the Obligor of which is a natural person who is a U.S. citizen
or resident
alien or a corporation or limited liability company or other legal
entity
organized under the laws of the United States or any State thereof
or the
District of Columbia;
(l) that
is not subject to any right of rescission, setoff, counterclaim
or other dispute whatsoever;
(m) that
was acquired by the Buyer from the Seller within 60 days after
its Mortgage Origination Date;
(n) that
is covered by the types and amounts of insurance required by
Section 5.06;
(o) with
respect to which all representations and warranties made by the
Seller in the Second Restated Loan Agreement and this Agreement are
true and
correct in all material respects and with respect to which all loan
level
covenants made in the Second Restated Loan Agreement and this
Agreement have
been complied with;
(p) that
is subjected to the following "Quality Control" measures by
personnel of the Seller before the Mortgage Note is funded by the
Seller:
(i) for those Mortgage Loans not originated by the Seller, is
underwritten by the Seller prior to funding thereof and after
performance
of all
underwriting procedures, is submitted to the Seller for closing
where it
is reviewed for thoroughness and compliance (including
truth-in-lending, good faith estimates and other disclosures) and a
verbal
verification of
employment and in-file credit report are obtained;
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(ii) with respect to which, all Mortgage Loan Collateral is
prepared
by the Seller and submitted to the closing agent at the time of
funding
the related Mortgage Loan; and
(q) that,
if it is a Second Lien Loan, has a Combined Loan-to-Value Ratio
of 100% or less and with respect to which the related first lien
loan is owned
by the Seller.
For the purpose of this definition:
(x) A
Mortgage Loan is "eligible for delivery" under a Take-Out
Commitment
if (i) it is designated to be transferred to a Governmental
Authority, (ii) the
underwriting criteria utilized and the Mortgage Loan Collateral
either match, or
are in respect of interest rates (which rates must bear a
relationship to
prevailing current market rates of interest for loans with similar
maturities),
term, product type and delivery period representative of the terms
for purchase
that are specified in a Take-Out Commitment, and (iii) the
aggregate outstanding
principal of all such Mortgage Loans is not more than the aggregate
Take-Out
Commitments' unutilized amount (i.e. taking in account all such
Mortgage Loans
already allocated to the aggregate Take-Out Commitments for
purposes of
determining Eligible Mortgage Loans whether or not already
delivered by the
Buyer to the Collateral Agent).
(y) A
Mortgage Loan is "designated for delivery" under a Take-Out
Commitment if (i) it is designated to be transferred to any entity
other than a
Governmental Authority and (ii) the underwriting criteria utilized
in approving
such Mortgage Loan conform to the underwriting criteria, and the
terms of
repayment (including interest rate and "term to maturity") and
other terms and
conditions of the Mortgage Loan Collateral match the specifications
of that
specific Take-Out Commitment that designates that particular
Mortgage Loan for
purchase.
"Employee
Plan" means an employee pension benefit plan covered by Title
IV
of ERISA and established or maintained by the Seller.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA
Affiliate" means any corporation, trade or business that is,
along
with the Performance Guarantor, a member of a controlled group of
corporations
or a controlled group of trades or businesses, as described in
Sections 414(b),
(c), (m) and (o) of the Code, or Section 4001 of ERISA.
"Event of
Default" has the meaning specified in Section 7.01.
"Facility"
means the borrowing facility provided by the Lenders as
described in Section 2.1 of the Second Restated Loan Agreement.
"Facility
Termination Date" means the earliest to occur of:
(a) August
18, 2006, or such earlier date determined in accordance with
Section 2.1(b) of the Second Restated Loan Agreement, or
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<PAGE>
(b) the
date on which the Maximum Facility Amount is terminated by the
Borrower pursuant to Section 2.1(d) of the Second Restated Loan
Agreement, and
(c) the
date, on or after the occurrence of an Event of Default,
determined pursuant to Section 8.1 of the Second Restated Loan
Agreement.
"Fannie
Mae" means the government sponsored enterprise formerly known
as
the Federal National Mortgage Association, or any successor
thereto.
"Fee
Letters" is defined in the Second Restated Loan Agreement.
"FHA"
means the Federal Housing Administration, or any successor
thereto.
"FHA Loan"
means a Mortgage Loan, the ultimate payment of which is
partially or completely insured by the FHA or with respect to which
there is a
current, binding and enforceable commitment for such insurance
issued by the
FHA.
"FICO
Score" means, with respect to the Obligor under a particular
Mortgage Loan, a credit rating established by Fair Isaac
Corporation or a market
competitor.
"FICO
Score Trigger Event" means that, (i) the Pool Weighted Average
FICO
Score has been reported, in a Servicer Monthly Report, as less than
690, (ii) a
period of seven Business Days has elapsed from the date of receipt
of such
report by the Administrative Agent and (iii) the Servicer has not
provided to
the Administrative Agent a revised Pool Weighted Average FICO Score
that exceeds
690.
"Financial
Officer" means (i) with respect to the Seller, its chief
financial officer, treasurer or a vice president having the
knowledge and
authority necessary to prepare and deliver the financial statements
and reports
required pursuant to Sections 5.1(b) and (d) and (ii) with respect
to the
Performance Guarantor, the chief financial officer, the vice
president-treasurer
or the senior vice president-finance.
"First
Lien Mortgage Loan" means a loan secured by a perfected first
lien
mortgage on real property.
"Fitch"
means Fitch, Inc., and any successor thereto.
"Freddie
Mac" means the Federal Home Loan Mortgage Corporation, or any
successor thereto.
"GAAP"
means generally accepted accounting principles as in effect in
the
United States from time to time.
"Ginnie
Mae" means the Government National Mortgage Association, or any
successor thereto.
"Governmental Authority" means any nation or government, any
agency,
department, state or other political subdivision thereof, or any
instrumentality
thereof, and any entity
15
<PAGE>
exercising executive, legislative, judicial, regulatory or
administrative
functions of or pertaining to government. Governmental Authority
shall include,
without limitation, each of Freddie Mac, Fannie Mae, FHA, HUD, VA
and Ginnie
Mae.
"Governmental Requirement" means any law, statute, code, ordinance,
order,
rule, regulation, judgment, decree, injunction, franchise, permit,
certificate,
license, authorization or other requirement (including, without
limitation, any
of the foregoing that relate to energy regulations and
occupational, safety and
health standards or controls and any hazardous materials laws) of
any
Governmental Authority that has jurisdiction over the Seller or any
of its
Property.
"Group
Bank" means (1) with respect to Atlantic and La Fayette, Calyon
New
York, each Bank that has entered into an Assignment and Acceptance
with Calyon
New York, including Lloyds, and each assignee (directly or
indirectly) of any
such Bank, which assignee has entered into an Assignment and
Acceptance and (2)
with respect to Jupiter, JPMorgan, each Bank that has entered into
an Assignment
and Acceptance with JPMorgan and each assignee (directly or
indirectly) of any
such Bank, which assignee has entered into an Assignment and
Acceptance.
"Hedge
Report" means, with respect to any Conforming Loans included in
the
Eligible Mortgage Collateral that is to be sold to a Governmental
Authority, a
report prepared by the Servicer and pursuant to Section 3.6 of the
Second
Restated Loan Agreement, showing, as of the close of business on
the previous
Business Day, all trades that have been assigned to the
Administrative Agent,
for the benefit of holders of the Obligations, and the following
information
with respect to such trades: (i) trade counterparty, (ii) trade
amount, (iii)
coupon, (iv) price, (v) type of security, (vi) date of trade, and
(vii) such
other information as the Administrative Agent may reasonably
request in the form
of Exhibit K to the Second Restated Loan Agreement.
"HUD"
means the Department of Housing and Urban Development, or any
successor thereto.
"Indebtedness" means, for any Person, without duplication, and at
any
time, (a) all obligations required by GAAP to be classified on such
Person's
balance sheet as liabilities, (b) obligations secured (or for which
the holder
of the obligations has an existing contingent or other right to be
so secured)
by any Lien existing on property owned or acquired by such Person,
(c)
obligations that have been (or under GAAP should be) capitalized
for financial
reporting purposes, and (d) all guaranties, endorsements, and other
contingent
obligations with respect to obligations of others.
"Indemnified Amounts" has the meaning specified in Section
8.01.
"Indemnified Party" has the meaning specified in Section 8.01.
"Interest
Period" is defined in Section 2.15 of the Second Restated Loan
Agreement.
"Issuer"
means any of Atlantic, Jupiter and La Fayette.
"JPMorgan"
has the meaning set forth in the preamble of this Second
Restated Collateral Agency Agreement.
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<PAGE>
"JPMorgan
Group" means Jupiter, JPMorgan and each other Group Bank of
Jupiter.
"Jumbo
Loan" means a Mortgage Loan (other than a Conforming Loan) that
(1)
is underwritten to Approved Investor guidelines (other than Fannie
Mae, Freddie
Mac or Ginnie Mae), (2) matches all applicable requirements for
purchase under
the requirements of a Take-Out Commitment issued for the purchase
of such
Mortgage Loan, and (3) differs from a Conforming Loan solely
because the
principal amount of such Mortgage Loan exceeds the limit set for
Conforming
Loans by Fannie Mae or Freddie Mac from time to time, but shall not
exceed
$1,000,000; provided, that a Jumbo Loan having an original
principal balance in
excess of $1,000,000 but not more than $1,500,000 shall qualify as
a Super Jumbo
Loan, and (4) is a First Lien Mortgage Loan. The term Jumbo Loan
includes Super
Jumbo Loans.
"Jupiter"
means Jupiter Securitization Corporation and its successors and
assigns.
"La
Fayette" means La Fayette Asset Securitization LLC, a Delaware
limited
liability company.
"Lenders"
means, collectively, the Issuers and the Banks.
"Lien"
means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (whether statutory, consensual or
otherwise), or
other security arrangement of any kind (including, without
limitation, any
conditional sale or other title retention agreement, any financing
lease having
substantially the same economic effect as any of the foregoing, and
the filing
of any financing statement under the uniform commercial code or
comparable law
of any jurisdiction in respect of any of the foregoing).
"Lloyds"
means Lloyds TSB Bank plc and its successors and assigns.
"Loan-to-Value Ratio" means, with respect to any Mortgage Loan,
the
fraction, expressed as a percentage found by dividing the original
principal
balance of a Mortgage Loan by the value of the Mortgage Loan, such
value being
measured by (i) the appraised value of such property at such time,
if the
Mortgage Loan is a refinance of an existing lien or (ii) the lower
of the sales
price of the related property at the time of origination of the
Mortgage Loan or
the appraised value of such property at such time, if the Mortgage
Loan is a
purchase money loan.
"Managing
Agents" means, with respect to Atlantic and La Fayette, Calyon
New York or any successor managing agent designated by such party;
and, with
respect to Jupiter, JPMorgan or any successor managing agent
designated by such
party.
"Margin
Deficit" is defined in Section 2.03(b) hereof.
"Market
Value" means at the time determined, for any (a) Mortgage Loan
(other than a Non-Conforming Loan), the market value of such
Mortgage Loan based
upon the then most recent posted net yield for 30-day mandatory
future delivery
furnished by Fannie Mae and published and distributed by Telerate
Mortgage
Services, or, if such posted net yield is not available from
Telerate Mortgage
Services, such posted net yield obtained by the Administrative
Agent from Fannie
Mae, or (b) Non-Conforming Loan, or any other Mortgage Loan while
the
17
<PAGE>
posted rate is not available from Fannie Mae, the value determined
by the
Administrative Agent in good faith.
"Material
Adverse Effect" means, with respect to any Person, any material
adverse effect on (i) the validity or enforceability of the Master
Repurchase
Agreement, this Agreement, the Notes or any other Transaction
Document, (ii) the
business, operations, total Property or financial condition of such
Person,
(iii) the Transferred Mortgage Assets taken as a whole, (iv) the
enforceability
of the purchases of Mortgage Assets under this Agreement free of
any Adverse
Claims, or (v) the ability of such Person to fulfill its
obligations under this
Agreement or any other Transaction Document.
"Maximum
Facility Amount" is defined in the Second Restated Loan
Agreement.
"MERS"
means Mortgage Electronic Registration Systems, Inc., a
Delaware
corporation.
"MERS
Designated Mortgage Loan" means a Mortgage Loan registered to or
by
the Originator on the MERS electronic mortgage registration
system.
"Moody's"
means Moody's Investors Service, Inc., and any successor
thereto.
"Mortgage"
means a mortgage or deed of trust or other security instrument
creating a Lien on real property, on a standard form as approved by
Fannie Mae,
Freddie Mac or Ginnie Mae or such other form as the Seller
determines is
satisfactory for any Approved Investor unless otherwise directed by
the Buyer or
its assignee and communicated to the Collateral Agent.
"Mortgage
Assets" means, collectively, all of the Mortgage Loans,
including funds advanced for Mortgage Loans that ultimately fail to
close, and
all Take-Out Commitments.
"Mortgage
File" means the mortgage documents pertaining to a particular
Mortgage Loan and any additional documents required to be included
in or added
to the Mortgage File pursuant to the Second Restated Loan
Agreement.
"Mortgage
Loan" means a loan evidenced by a Mortgage Note and secured by
a
Mortgage, the beneficial interest of which has been acquired by the
Buyer from
the Seller by purchase pursuant to this Agreement (with the record
owner thereof
being the Seller or, in the case of a MERS Designated Mortgage
Loan, MERS as
nominee for the Seller, and its successors and assigns).
"Mortgage
Loan Collateral" means all Mortgage Notes and related Principal
Mortgage Documents, Other Mortgage Documents.
"Mortgage
Note" means a promissory note, on a standard form approved by
Fannie Mae, Freddie Mac or Ginnie Mae or such other form as the
Seller
determines is satisfactory for any Approved Investor unless
otherwise directed
by the Buyer or its assignee and communicated to the Collateral
Agent.
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<PAGE>
"Mortgage
Origination Date" means, with respect to each Mortgage Loan,
the
date that is the later of (1) the date of the Mortgage Note or (2)
the date such
Mortgage Loan was funded and disbursed to or at the direction of
the Obligor.
"Multiemployer Plan" means a multiemployer plan defined in Sections
3(37)
or 4001(a)(3) of ERISA or Section 414(f) of the Code to which a
Seller or any
ERISA Affiliate is making or has made (or is accruing or has
accrued an
obligation to make) contributions.
"Net
Worth" of a Person means, as of any date of determination, the
total
stockholder's or member's equity (including capital stock,
additional paid-in
capital and retained earnings after deducting treasury stock) that
would appear
on a balance sheet of such Person prepared as of such date in
accordance with
GAAP but excluding the value of any investment made by such Person
in an
unconsolidated Subsidiary.
"Non-Conforming Loan" means a Subprime Loan, a Jumbo Loan, a Second
Lien
Loan or an Alt-A Loan.
"Note"
means each or any of the promissory notes executed by the
Buyer,
substantially in the form of Exhibits E-1, E-2, and E-3 of the
Second Restated
Loan Agreement, together with all renewals, extensions, and
replacements for any
such note.
"Obligations" means any and all present and future
indebtedness,
obligations, and liabilities of the Buyer, as the borrower, to any
of the
Lenders, the Collateral Agent, the Managing Agents, each Affected
Party (as
defined in the Second Restated Loan Agreement), each Indemnified
Party and the
Administrative Agent, and all renewals, rearrangements and
extensions thereof,
or any part thereof, arising pursuant to this Second Restated Loan
Agreement or
any other Transaction Document, and all interest accrued thereon,
and attorneys'
fees and other costs incurred in the drafting, negotiation,
enforcement or
collection thereof, regardless of whether such indebtedness,
obligations, and
liabilities are direct, indirect, fixed, contingent, joint, several
or joint and
several.
"Obligor"
means (i) with respect to each Mortgage Note included in the
Collateral, the obligor on such Mortgage Note and (ii) with respect
to any other
agreement included in the Mortgage Assets, any person from whom the
Seller is
entitled to performance.
"Other
Mortgage Documents" is defined in Section 3.2(c) to the Second
Restated Loan Agreement.
"Outstanding Balance" means as of any date of determination (A)
with
respect to each Mortgage Loan, an amount equal to the lesser of:
(i) the lesser
of the original principal amount or the acquisition price of such
Mortgage Loan
paid by the Seller on the closing and funding of such Mortgage
Loan; and (ii)
for each Mortgage Loan, the amount determined by multiplying (a)
the weighted
average purchase price (expressed as a percentage) that Approved
Investors are
committed to pay, pursuant to Take-Out Commitments, for all
Eligible Mortgage
Loans, as shown on the most recent Hedge Report, multiplied by the
outstanding
principal balance of such Eligible Mortgage Loan.
"PBGC"
means the Pension Benefit Guaranty Corporation or any successor
thereto.
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<PAGE>
"Performance Guarantor" means Pulte.
"Person"
means any individual, corporation (including a business trust),
limited liability company, partnership, joint venture, association,
joint stock
company, trust, unincorporated organization, Governmental
Authority, or any
other form of entity.
"Pool Weighted
Average FICO Score" means, as of any Collateral Reporting
date, the ratio of (a) the sum, for all Alt-A Loans, of the product
for each
Alt-A Loan of (i) its FICO Score and (ii) its original principal
balance to (b)
the sum of the original principal balances of all Alt-A Loans.
"Pricing
Rate" has the meaning specified in Section 2.02.
"Principal
Mortgage Documents" is defined in Section 3.2(b) to the Second
Restated Loan Agreement.
"Property"
means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Pulte"
means Pulte Homes, Inc. (formerly known as Pulte Corporation),
a
Michigan corporation, and its successors and assigns.
"Pulte
Mortgage" has the meaning set forth in the preamble to this
Agreement.
"Purchase"
means a purchase by the Buyer of Mortgage Assets from a Seller
pursuant to Article II.
"Purchase
Date" has the meaning specified in Section 2.02(a).
"Purchase
Price" for any Purchase means an amount equal to the
Outstanding
Balance of the Mortgage Assets that are the subject of such
Purchase. "Purchase
Request" has the meaning specified in Section 2.02(a).
"Purchased
Mortgage Asset" means any Mortgage Asset which has been
purchased by the Buyer pursuant to Section 2.02.
"Repurchase Date" is defined in Section 2.02(a) hereto.
"Repurchase Price" the price at which the Purchased Mortgage Assets
are to
be transferred from Buyer to Seller upon termination of a
transaction, which
will be determined in each case as the sum of the Purchase Price
and the Price
Differential as of the end of the related Interest Period.
"Requirement of Law" as to any Person means the articles of
incorporation
and by-laws or certificate of formation and limited liability
company agreement
or other organizational or governing documents of such Person, and
any law,
statute, code, ordinance, order, rule, regulation, judgment,
decree, injunction,
franchise, permit, certificate, license, authorization or
20
<PAGE>
other determination, direction or requirement (including, without
limitation,
any of the foregoing that relate to energy regulations and
occupational, safety
and health standards or controls and any hazardous materials laws)
of any
Governmental Authority, in each case applicable to or binding upon
such Person
or any of its Property or to which such Person or any of its
Property is
subject.
"Restated
Assignment of Account" is defined in the Second Restated
Collateral Agency Agreement.
"Restated
Originator Performance Guaranty" means the Amended and Restated
Originator Performance Guaranty, in the form attached the Second
Restated Loan
Agreement as Exhibit G-2, made by the Performance Guarantor in
favor of the
Buyer, as borrower, and assigned to the Administrative Agent for
the benefit of
the Lenders.
"Restated
Performance Guaranties" means, collectively, the Restated
Servicer Performance Guaranty and the Restated Originator
Performance Guaranty.
"Restated
Servicer Performance Guaranty" means the Amended and Restated
Servicer Performance Guaranty, in the form attached to the Second
Restated Loan
Agreement as Exhibit G-1, made by the Performance Guarantor in
favor of the
Administrative Agent.
"Restated
Subordination Agreement" means the Amended and Restated
Subordination Agreement, substantially in the form attached as
Exhibit B to the
Second Restated Loan Agreement, executed by the Performance
Guarantor and
certain of its Affiliates in favor of the Buyer and the
Administrative Agent for
the benefit of the holders of the Obligations.
"S&P"
means Standard & Poor's Rating Services, a Division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Seasoned
Mortgage Loan" means a Mortgage Loan with a Mortgage
Origination
Date that is more than 180 days prior to the current date.
"Second
Lien Loan" means a Mortgage Loan secured by particular property
with respect to which at least one other higher-priority Mortgage
Loan exists
secured by the same property.
"Second
Restated Collateral Agency Agreement" means the Second Amended
and
Restated Collateral Agency Agreement, dated as of the date hereof,
among the
Buyer, as borrower, the Collateral Agent and the Administrative
Agent,
substantially in the form of Exhibit D to the Second Restated Loan
Agreement.
"Second
Restated Loan Agreement" means the Second Amended and Restated
Loan Agreement, dated as of the date hereof, by and among the
Buyer, as the
Borrower, the Issuers parties thereto, the Banks parties thereto,
the Managing
Agents parties thereto, the Administrative Agent and the Servicer,
as amended,
modified or supplemented from time to time.
"Servicer"
means at any time the Person then authorized pursuant to
Section 11.1 of the Second Restated Loan Agreement to service,
administer and
collect the Transferred Mortgage Assets. The initial Servicer shall
be Pulte
Mortgage.
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<PAGE>
"Settlement Date" means (a) for purposes of determining fees set
forth in
the Fee Letters, (i) the 10th day of each of October, January,
April and July,
commencing October 10, 2002 or, if such day is not a Business Day,
the next
succeeding Business Day, or (ii) on and after the Facility
Termination Date, the
10th day of each calendar month or, if such day is not a Business
Day, the next
succeeding Business Day, provided, however, that the Administrative
Agent may,
with the consent of the Managing Agents, by notice to the Buyer and
the
Servicer, select other days to be Settlement Dates (including days
occurring
more frequently than once per month) and (b) for all other
purposes, the 10th
day of each calendar month or, if such day is not a Business Day,
the next
succeeding Business Day, commencing September 10, 2002, provided,
however, on
and after the Facility Termination Date, the Administrative Agent
may, with the
consent of the Managing Agents, by notice to the Buyer and the
Servicer, select
other days to be Settlement Dates (including days occurring more
frequently than
once per month).
"Special
Borrowing" is defined in Section 2.03(c) to the Second Restated
Loan Agreement.
"Special
Mortgage Loan" is defined in Section 2.3(c) to the Second
Restated Loan Agreement.
"Subprime
Loan" means a Mortgage Loan (other than a Conforming Loan, a
Jumbo Loan, an Alt-A Loan or a Second Lien Loan) that (1) is
underwritten to
Approved Investor guidelines, (2) matches all applicable
requirements for
purchase under the requirements of a Take-Out Commitment
specifically issued for
the purchase of such Mortgage Loan, and (3) differs from a
Conforming Loan
because of the credit quality of the obligor, and is originated by
the
Originator or by a correspondent of the Originator using the
established
underwriting guidelines for subprime loans of the Originator, which
are the same
underwriting guidelines that the Originator uses to originate
subprime loans for
sales into the secondary mortgage market.
"Subsidiary" means, with respect to any Person, any corporation,
any
limited liability company, or other entity of which securities
having ordinary
voting power to elect a majority of the board of directors or the
board of
managers or other persons performing similar functions are at the
time directly
or indirectly owned by such Person, or one or more of its
Subsidiaries, or by
such Person and one or more of its Subsidiaries.
"Super
Jumbo Loan" means a Jumbo Loan having an original principal
balance
in excess of $1,000,000 but equal to or less than $1,500,000.
"Take-Out
Commitment" means, a current, valid, binding, enforceable,
written commitment, issued by an Approved Investor, to purchase one
or more
Mortgage Loans from the Seller prior to the date that is 120 days
(or 180 days
to the extent Collateral Value may include Mortgage Loans that have
been
Eligible Mortgage Loans for more than 120 days pursuant to
paragraph (f) of the
definition of Collateral Value) from the date that such Mortgage
Loan first
becomes an Eligible Mortgage Asset and at a specified price and in
amounts, form
and substance reasonably satisfactory to the Managing Agents, which
commitment
is not subject to any term or condition (i) that is not customary
in commitments
of like nature or (ii) that, in the reasonably anticipated course
of events,
cannot be fully complied with prior to the expiration thereof,
which commitment
has been assigned to the Buyer (partial assignments being permitted
so long as
the
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<PAGE>
amount assigned (together with all other Take-Out Commitments)
fully covers the
amount of the Eligible Mortgage Assets); provided, that upon
receipt of the
actual written confirmation (each, a "Trade Confirmation") of such
trade duly
executed by the Seller and the trade counterparty (such Trade
Confirmation being
held in trust for the Collateral Agent pursuant to Section 3.2(c)
of the Second
Restated Loan Agreement) and promptly upon request of the
Administrative Agent,
the Seller must provide such trade confirmation to the
Administrative Agent. The
Administrative Agent, on behalf of the Lenders, shall have the
right, without
notice, to review such Trade Confirmation at the office of, and
with the
officers of, the Seller during normal business hours.
"Take-Out
Commitment Documents" means (1) with respect to any Conforming
Loans, copies of all Take Out Commitments or an executed original
assignment of
trade as described in the definition of "Take Out Commitment"; and
(2) with
respect to Non-Conforming Loans, copies of all Take Out
Commitments.
"Term"
means three hundred sixty-four (364) days from the date of this
Agreement.
"Transaction Document" means any of this Agreement, the
assignments
delivered pursuant to Section 3.02(a), and any and all other
agreements or
instruments now or hereafter executed and delivered by or on behalf
of the
Seller in connection with this Agreement or the Master Repurchase
Agreement, as
any of such documents may be renewed, amended, restated or
supplemented from
time to time.
"Transferred Mortgage Asset" means a Purchased Mortgage Asset.
"Transferred Mortgage Loan" means a Mortgage Loan included in
the
Transferred Mortgage Assets.
"UCC"
means the Uniform Commercial Code as adopted in the applicable
state, as the same may hereafter be amended.
"Uncovered
Mortgage Loan" means a Mortgage Loan that would be an Eligible
Mortgage Loan but for the expiration, forfeiture, termination, or
cancellation
of, or default under, the relevant Take-Out Commitment.
"VA" means
the Department of Veterans Affairs, or any successor thereto.
"VA Loan"
means a Mortgage Loan, the payment of which is partially or
completely guaranteed by the VA under the Servicemen's Readjustment
Act of 1944,
as amended, or Chapter 37 of Title 38 of the United States Code or
with respect
to which there is a current binding and enforceable commitment for
such a
guaranty issued by the VA.
Section
1.02. Other Terms.
All
accounting terms not specifically defined herein shall be construed
in
accordance with GAAP. All terms used in Article 9 of the UCC, and
not
specifically defined herein, are used herein as defined in such
Article 9.
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ARTICLE II
AMOUNTS AND TERMS OF PURCHASES
Section
2.01. Facility.
(a) The
first sentence of Section 1 of the Master Repurchase Agreement
is
amended in its entirety by replacing it with the following:
"From time to time prior to the occurrence and continuance of
an
Event of Default and prior to the Facility Termination Date,
the
Seller may present for transfer to Buyer Mortgage Assets that
are
Eligible Mortgage Assets against the transfer of funds by Buyer
with a
simultaneous agreement by Buyer to transfer to the Seller such
Assets
at a date certain or on demand, against the transfer of funds by
the
Seller, and at each such time of presentation Buyer will enter
into
such Transaction."
(b)
Section 1 is hereby further amended by adding the following at the
end
thereof:
"Without limiting any rights of Buyer under this Master
Repurchase Agreement, no Transaction shall be for a Purchase
Price
such that the cash portion thereof will be less than $5,000,000 or
an
integral multiple of $10,000 in excess thereof."
(c) Every
reference in the Master Repurchase Agreement to "Securities"
shall be replaced by "Mortgage Assets." Every reference in the
Master Repurchase
Agreement to "Purchased Securities" shall be replaced by "Purchased
Mortgage
Assets." Every reference in the Master Repurchase Agreement to
"Additional
Purchased Securities" shall be replaced by "Additional Purchased
Mortgage
Assets."
Section
2.02. Making Purchases.
(a)
Subparagraph 3(b) of the Master Repurchase Agreement is amended
by
deleting the subparagraph in its entirety and replacing it with the
following:
Purchases. Each Transaction shall be initiated by request from
the Seller to the Buyer given no later than 12:00 noon (eastern
time)
on the Business Day prior to the date of Purchase. Each such
request
for a Purchase (each a "Purchase Request") shall specify the date
of
such Purchase (which shall be a Business Day), the Mortgage
Assets
included in such Purchase and the Purchase Price for such
Purchase.
The
Buyer shall promptly notify the Seller whether it has
determined
to make such Purchase and, if so, shall deliver a written
confirmation
(each, a "Confirmation"). On the date of each Purchase (each a
"Purchase Date"), the Buyer shall, upon satisfaction of the
applicable
conditions set forth in Article III, pay the Purchase Price for
such
Purchase by means of any one or a combination of the following: (i)
a
deposit in same day funds to the Seller's account designated by
the
Seller or (ii) an increase in the
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<PAGE>
Deferred
Purchase Price.The allocation of the Purchase Price as among
such
methods of payment shall be subject in each instance to the
approval
of the
Buyer and the Seller.
The "Repurchase Date" for each Transaction shall be the earlier
of (i) the date set forth in the applicable Confirmation and (ii)
the
date determined by application of Paragraph 11 of the Master
Repurchase Agreement. The "Pricing Rate" for each Transaction shall
be
set forth on the Confirmation; provided that, upon the occurrence
of
and during the continuance of an Event of Default, the Pricing
Rate
shall equal the Default Rate. The Confirmation, together with
this
Master Repurchase Agreement, shall constitute conclusive evidence
of
the terms agreed between Buyer and Seller with respect to the
Transaction to which the Confirmation relates, unless with respect
to
the Confirmation specific objection is made promptly after
receipt
thereof. In the event of any conflict between the terms of such
Confirmation and this Master Repurchase Agreement, this Master
Repurchase Agreement shall prevail.
(b)
Subparagraph 3(c) of the Master Repurchase Agreement is amended
by
replacing the first sentence of Paragraph 3(c) with the
following:
In the case of Transactions terminable upon demand, such demand
by
the Seller
shall be for a repurchase of all Purchased Mortgage Assets
subject to
the related Transaction and shall be made no later than 11:00
a.m. New
York City time on the Business Day immediately preceding the
day
on which
such termination will be effective, which termination shall
also
be on a
Business Day.
(c)
Paragraph 3 of the Master Repurchase Agreement is amended by
adding
the following language as a new Subparagraph 3(d):
(d) This
Master Repurchase Agreement shall continue in effect until the
expiration of the Facility Termination Date.
Section
2.03. Margin Maintenance.
Subparagraph 4 of the Master Repurchase Agreement is amended in
its
entirety to read as follows:
(a) Daily
until the expiration of the Facility Termination Date (or less
frequently if the Buyer, in its sole and absolute discretion, so
elects), the
Seller, as applicable (or Servicer on Buyer's behalf) will
determine (i) the
aggregate Collateral Value of all Purchased Mortgage Assets held by
Buyer, (ii)
the Repurchase Price as of such date, and the Maximum Facility
Amount as of such
date. Without limiting the foregoing, the Seller shall deliver to
Buyer, at any
time and from time to time, information in its possession in the
ordinary course
of its business with respect to the Purchased Mortgage Assets sold
by it to
assist Buyer in ascertaining the Collateral Value of such Purchased
Mortgage
Assets.
(b) If, on
any date, the aggregate Repurchase Price exceeds the total
Collateral Value of all Eligible Mortgage Assets (a "Margin
Deficit"), Buyer
may, in its sole and absolute discretion, by notice to the Seller
(a "Margin
Call"), require the Seller to transfer to Buyer cash
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<PAGE>
or additional Purchased Mortgage Assets that are reasonably
acceptable to Buyer
("Additional Purchased Mortgage Assets") to eliminate such
deficiency.
(c) Upon
receipt of notice from Buyer at or prior to 11:00 a.m. New York
City time (which may be transmitted by facsimile), the Seller, as
applicable, in
its sole discretion, shall transfer either cash or the Additional
Purchased
Mortgage Assets no later than the close of business on the Business
Day
immediately following the date on which a Margin Call is given. Any
cash
transferred to Buyer pursuant hereto shall be held by Buyer until
the Repurchase
Date and shall be applied against the Repurchase Price on the
Repurchase Date.
(d)
Buyer's election, in its sole and absolute discretion, not to make
a
Margin Call at any time there is a Margin Deficit shall not in any
way limit or
impair its right to make a Margin Call at any time a Margin Deficit
exists.
Section
2.04. Collections.
Paragraph 5 of
the Master Repurchase Agreement is amended by adding the
following at the end of the last sentence thereof:
Notwithstanding the foregoing and except as provided in paragraph
11
of this
Master Repurchase Agreement, the Seller shall hold for the
benefit
of, and in
trust for, Buyer all income, including without limitation all
scheduled
and unscheduled principal and interest payments or any other
income
(including without limitation, tax escrow payments), received by
or
on behalf
of the Seller with respect to such Purchased Mortgage Assets
sold by it
(collectively, "Purchased Asset Income"). To the extent
required
under the Second Restated Loan Agreement, the Seller shall
deposit
the Purchased Asset Income (other than any Obligor's escrow
payments)
in the Collection Account.
On each Settlement Date, the Buyer shall pay to the Seller
accrued
interest
on the Deferred Purchase Price of the related Purchased
Mortgage
Assets
sold by it and the Buyer may, at its option, prepay in whole or
in
part the
principal amount of any such Deferred Purchase Price; provided
that each
such payment shall be made solely from (i) Collections of the
related
Transferred Mortgage Assets after all other amounts then due
from
the Buyer
under the Second Restated Loan Agreement have been paid in full
and all
amounts then required to be set aside by the Buyer or the
Servicer
under the
Second Restated Loan Agreement have been so set aside or (ii)
excess
cash flow from operations of the Buyer which is not required to
be
applied to
the payment of other obligations of the Buyer; and provided
further,
that no such payment shall be made at any time
