Facility I Credit Agreement - CWM Mortgage Holdings Inc., Independent National Mortgage Corp., Independent Lending Corp. and First Union National Bank of North Carolina
AMENDED AND RESTATED
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FACILITY I
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CREDIT AGREEMENT
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THIS AMENDED AND RESTATED FACILITY I CREDIT AGREEMENT (the
"Agreement") is made as of the 28th day of August, 1996, by and among CWM
MORTGAGE HOLDINGS, INC., a Delaware corporation ("CWM"), INDEPENDENT NATIONAL
MORTGAGE CORPORATION, a Delaware corporation ("Indy Mac"), INDEPENDENT LENDING
CORPORATION, a Delaware corporation ("ILC" and, together with CWM and Indy Mac,
the "Companies"), the lenders from time to time party hereto, their respective
successors and assigns (each a "Lender" and collectively the "Lenders"); and
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
STATEMENT OF PURPOSE
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The parties hereto have previously entered into that certain Facility
I Credit Agreement dated as of May 30, 1995, as subsequently amended and
modified from time to time (as so amended and modified, the "Existing Facility I
Agreement"). The parties hereto desire to amend and restate the Existing
Facility I Agreement in its entirety and hereby agree that from and after the
date hereof, this Amended and Restated Facility I Credit Agreement among the
parties shall supersede the Existing Facility I Agreement in all respects and
shall constitute the entire agreement among the parties hereto with respect to
the subject matter contained herein. All capitalized terms not otherwise
defined herein are defined in Paragraph 12 hereof.
Now, therefore, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
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1. Tranche A Credit Facility.
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Lending Limit. Subject to the conditions set forth herein, the
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Lenders severally agree that they shall, from
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time to time up to and including the Business Day immediately preceding the
Maturity Date, advance and readvance their respective Percentage Shares of loans
(the "Tranche A Loans" or a "Tranche A Loan") to the Companies in amounts not to
exceed, in the aggregate at any one time outstanding (determined after giving
effect to the other transactions contemplated by the Loan Request pursuant to
which the applicable Tranche A Loan was requested), the lesser of:
(1) The Aggregate Tranche A Credit Limit; and
(2) The Collateral Value of the Tranche A Borrowing Base minus
the aggregate dollar amount of Swing Line Loans outstanding which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans (and which are not being repaid
by any Tranche A Loan requested).
Provided, however, that notwithstanding anything contained herein to the
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contrary, at no time may the sum of all Tranche A Loans outstanding, all Tranche
B Loans outstanding and all Swing Line Loans outstanding exceed the lesser of
(i) the sum of the Collateral Value of the Tranche A Borrowing Base and the
Collateral Value of the Tranche B Borrowing Base, or (ii) the Aggregate Facility
Commitment at such time.
1(b) Interest Rate. All Tranche A Loans shall bear interest at the
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Applicable Corporate Rate, unless the Companies elect to have a Tranche A Loan
bear interest at (i) the Applicable Eurodollar Rate as permitted herein or (ii)
an interest rate established pursuant to Paragraph 3(u) below.
1(c) Payment of Interest. The Companies shall pay to the
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Administrative Agent for distribution to each Lender interest on Tranche A Loans
outstanding hereunder from the date disbursed to but not including the date of
payment. Interest on Tranche A Corporate Rate Loans shall be payable monthly, in
arrears, as provided in Paragraph 3(l) below, and interest on a Tranche A
Eurodollar Loan shall be payable at the end of the applicable Interest Period.
2. Tranche B Credit Facility.
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2(a) Lending Limit. Subject to the conditions set forth herein, the
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Lenders severally agree that they shall, from time to time up to and including
the Business Day immediately
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preceding the Maturity Date, advance and readvance their respective Percentage
Shares of loans (the "Tranche B Loans" or a "Tranche B Loan") to the Companies
in amounts not to exceed, in the aggregate at any one time outstanding
(determined after giving effect to the other transactions contemplated by the
Loan Request pursuant to which the applicable Tranche B Loan was requested), the
lesser of:
(1) The Aggregate Tranche B Credit Limit; and
(2) The Collateral Value of the Tranche B Borrowing Base minus
the aggregate dollar amount of Swing Line Loans outstanding which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche B Loans (and which are not being repaid
by any Tranche B Loan requested).
Provided, however, that notwithstanding anything contained herein to the
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contrary, at no time may the sum of all Tranche A Loans outstanding, all Tranche
B Loans outstanding and all Swing Line Loans outstanding exceed the lesser of
(i) the sum of the Collateral Value of the Tranche A Borrowing Base and the
Collateral Value of the Tranche B Borrowing Base, and (ii) the Aggregate
Facility Commitment at such time.
2(b) Interest Rate. All Tranche B Loans shall bear interest at the
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Applicable Corporate Rate, unless the Companies elect to have a Tranche B Loan
bear interest at (i) the Applicable Eurodollar Rate as permitted herein or (ii)
an interest rate established pursuant to Paragraph 3(u) below.
2(c) Payment of Interest. The Companies shall pay to the
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Administrative Agent for distribution to each Lender interest on Tranche B Loans
outstanding hereunder from the date disbursed to but not including the date of
payment. Interest on Tranche B Corporate Rate Loans shall be payable monthly, in
arrears, as provided in Paragraph 3(l) below, and interest on a Tranche B
Eurodollar Loan shall be payable at the end of the applicable Interest Period.
2A. Swing Line Facility.
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2A(a) Swing Line Lending Limit. Subject to the conditions set forth
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herein, First Union agrees that it shall, from time to time up to and including
the Business Day immediately preceding the Maturity Date, advance and readvance
loans (the
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"Swing Line Loans" or a "Swing Line Loan") to the Companies in amounts not to
exceed, in the aggregate at any one time outstanding, the lesser of:
(1) The Maximum Swing Line Commitment; and
(2) (i) The sum of (A) the Collateral Value of the Tranche A
Borrowing Base and (B) the Collateral Value of the Tranche B Borrowing
Base, minus (ii) the aggregate dollar amount of Regular Loans outstanding;
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Provided, however, that:
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i. In calculating the availability of Swing Line Loans under
this Paragraph 2A(a) at any date, the aggregate amount of Swing Line Loans
outstanding shall not include any Swing Line Loans which will be repaid
with Regular Loans to be advanced on such date in accordance with the terms
of this Agreement;
ii. Notwithstanding anything contained herein to the contrary,
at no time may the sum of all Tranche A Loans outstanding, all Tranche B
Loans outstanding and all Swing Line Loans outstanding exceed the lesser of
(i) the sum of the Collateral Value of the Tranche A Borrowing Base and the
Collateral Value of the Tranche B Borrowing Base and (ii) the Aggregate
Facility Commitment at such time; and
iii. Notwithstanding anything contained herein to the contrary,
at no time may (A) the sum of all Swing Line Loans outstanding which have
been identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans, plus all Tranche A Loans
outstanding, exceed the lesser of the Collateral Value of the Tranche A
Borrowing Base or the Aggregate Tranche A Credit Limit; or (B) the sum of
all Swing Line Loans outstanding which have been identified by the
Companies in the applicable Loan Request as being scheduled for repayment
by Tranche B Loans, plus all Tranche B Loans outstanding, exceed the lesser
of the Collateral Value of the Tranche B Borrowing Base or the Aggregate
Tranche B Credit Limit.
2A(b) Interest Rate. Each Swing Line Loan shall bear
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interest at the Applicable Corporate Rate which corresponds to the type of
Regular Loan identified by the Companies in the applicable Loan Request as being
scheduled to repay such Swing Line Loan.
2A(c) Payment of Interest. The Companies shall pay to the
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Administrative Agent for distribution to First Union interest on Swing Line
Loans outstanding hereunder from the date disbursed to but not including the day
of payment or refunding pursuant to Paragraph 2A(d) below. Interest on Swing
Line Loans shall be payable monthly, in arrears, as provided in Paragraph 3(l)
below.
2A(d) Refunding of Swing Line Loans. Upon demand by First Union,
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Swing Line Loans shall be refunded or participations therein acquired, as
applicable, in accordance with the following provisions. Such refunding or
acquisition will occur no later than 4:00 p.m. (Charlotte, North Carolina time)
on the day of such demand if made before 2:00 p.m. (Charlotte, North Carolina
time) and no later than 12:00 noon (Charlotte, North Carolina time) on the next
succeeding Business Day if demand therefor is made after 2:00 p.m. (Charlotte,
North Carolina time).
(1) Prior to the occurrence of an Event of Default or Potential
Default, Swing Line Loans shall be refunded by the Lenders. Such
refundings shall be made by the Lenders in accordance with their respective
Percentage Shares and shall, thereafter, be reflected as actual Regular
Loans of the Lenders on the books and records of the Administrative Agent.
The type of Regular Loan made by the Lenders in connection with the
refunding of any Swing Line Loan shall be the type of Loan identified by
the Companies in the Loan Request for such Swing Line Loan as being
scheduled to repay such Swing Line Loan.
(2) After the occurrence of any Event of Default or Potential
Default, each Lender (other than First Union) shall irrevocably and
unconditionally purchase from First Union, without recourse or warranty
(except that such outstanding Swing Line Loans in fact were made in
accordance with the provisions of this Agreement, and are not subject to
any Liens arising out of any act of First Union), an undivided interest and
participation in any Swing Line Loans then outstanding, by paying to First
Union, in dollars immediately available to First Union, an amount equal to
such Lender's Percentage Share of such Swing Line Loans, and thereafter,
except as otherwise provided in the second succeeding sentence, the
Lenders' respective interests in
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such Swing Line Loans, and the remaining interest of First Union in such
Swing Line Loans, shall in all respects be treated as Regular Loans under
this Agreement of the type identified by the Companies in the Loan Request
for such Swing Line Loan as being scheduled to repay such Swing Line Loan,
but such Swing Line Loans shall continue to be evidenced by the Note which
evidences the Swing Line Loans. If any Lender does not pay any amount which
it is required to pay to First Union, First Union shall be entitled to
recover such amount on demand from such Lender, together with interest
thereon, at the Applicable Corporate Rate, for each day from the date of
such demand, if made prior to 2:00 p.m. (Charlotte, North Carolina time) on
any Business Day, or, if made after 2:00 p.m. from the next Business Day
following the date of such demand, until the date such amount is paid to
First Union by such Lender. If such Lender does not pay such amount
forthwith upon First Union's demand therefor, and until such time as such
Lender makes the required payment, First Union shall be deemed to continue
to have outstanding a Swing Line Loan in the amount of such unpaid
participation obligation for all purposes of this Agreement other than
those provisions requiring such other Lender to purchase a participation
therein. First Union shall upon the request of such Lender, furnish to such
Lender a participation certificate evidencing the participation purchased
by such Lender.
(3) [Intentionally Omitted].
(4) Notwithstanding anything contained in this Agreement to the
contrary, no Lender shall be obligated to refund or acquire a participation
interest in any Swing Line Loans made by First Union unless (i) First Union
believed in good faith that all conditions specified in Paragraph 2A(a)
above and Paragraph 5 below to the making of such Swing Line Loans were
satisfied at the time such Swing Line Loans were made, or (ii) such Lender
had actual knowledge that any such condition had not been satisfied and
failed to notify First Union in writing prior to the time First Union made
such Swing Line Loan that First Union was not authorized to make a Swing
Line Loan until such condition had been satisfied, or (iii) the
satisfaction of any such condition that was not satisfied had been waived
by the requisite Lenders in accordance with the provisions of this
Agreement, or the making of such Swing Line Loan in the face of such non-
satisfied condition or conditions had been consented to by
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the requisite Lenders in accordance with the provisions of this Agreement."
3. Miscellaneous Lending Provisions.
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3(a) Conversion and Continuation.
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(1) The Companies may elect from time to time to convert
Eurodollar Loans to Corporate Rate Loans by giving the Administrative Agent
at least one Business Day's prior irrevocable notice of such election. Any
conversion of Eurodollar Loans may only be made on the last day of the
applicable Interest Period. The Companies may elect from time to time to
convert Corporate Rate Loans to Eurodollar Loans by giving the
Administrative Agent at least two Eurodollar Business Days' prior
irrevocable notice of such election. All such elections shall be made by
means of a Loan Request. Upon receipt of a Loan Request, the Administrative
Agent shall promptly notify each of the Lenders affected thereby thereof.
No Corporate Rate Loan shall be converted into a Eurodollar Loan if an
Event of Default or Potential Default has occurred and is continuing on the
day occurring two Eurodollar Business Days prior to the date of the
conversion requested by the Companies or on the date of conversion. All or
any part of outstanding Loans may be converted as provided herein, provided
that partial conversions shall be in a principal amount of $1,000,000 or
whole multiples of $100,000 in excess thereof.
(2) (A) Any Eurodollar Loan may be continued as such upon the
expiration of the Interest Period with respect thereto by the Companies
giving the Administrative Agent at least two Eurodollar Business Days'
prior irrevocable notice of such election as set forth in a Loan Request,
and (B) if the Companies shall fail to give notice as provided above, the
Companies shall be deemed to have elected to continue the affected
Eurodollar Loan on the last day of the relevant Interest Period as a
Eurodollar Loan having the same Interest Period as the continued Eurodollar
Loan; provided, however, that no Eurodollar Loan may be continued as such
when any Event of Default or Potential Default has occurred and is
continuing on the day occurring two Eurodollar Business Days prior to the
proposed date of continuation, but shall be automatically converted to a
Corporate Rate Loan on the last day of the then current Interest Period
applicable thereto, and the Administrative Agent shall notify the Lenders
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affected thereby and the Companies promptly that such automatic conversion
will occur.
(3) Notwithstanding anything contained in this Agreement to the
contrary, at no time shall there be Eurodollar Loans outstanding with more
than five (5) different Interest Periods.
3(b) Inability to Determine Rate. If the Administrative Agent
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determines (which determination shall be conclusive and binding upon the
Companies, provided such determination is made on a reasonable basis) that by
reason of circumstances affecting the London interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for any Interest Period, the Administrative Agent shall forthwith give facsimile
notice of such determination, confirmed in writing, to each Lender affected
thereby and to the Companies. If such notice is given: (1) no Loan may be funded
as a Eurodollar Loan, (2) any Loan that was to have been converted to a
Eurodollar Loan shall, subject to the provisions hereof, be continued as a
Corporate Rate Loan and (3) any outstanding Eurodollar Loan shall be converted
on the last day of the then current Interest Period with respect thereto to a
Corporate Rate Loan. Until such notice has been withdrawn by the Administrative
Agent, the Companies shall not have the right to convert a Loan to a Eurodollar
Loan or fund any Loan as a Eurodollar Loan or to continue a Eurodollar Loan as
such. The Administrative Agent shall withdraw such notice in the event that the
circumstances giving rise thereto no longer exist and that adequate and
reasonable means exist for ascertaining the Eurodollar Rate for the Interest
Period requested by the Companies, and following withdrawal of such notice by
the Administrative Agent, the Companies shall have the right to fund any Loan as
a Eurodollar Loan or convert a Loan to a Eurodollar Loan or to continue a
Eurodollar Loan in accordance with the terms and conditions of this Agreement.
3(c) Illegality. Notwithstanding any other provisions herein, if any
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law, regulation, treaty or directive or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement: (1) the
commitment of such Lender hereunder to continue Eurodollar Loans or to convert
Corporate Rate Loans to Eurodollar Loans shall forthwith be suspended and the
Administrative Agent shall forthwith give facsimile notice to the Companies of
such illegality, and upon
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giving such notice, (2) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Corporate Rate Loans at the
end of their respective Interest Periods or within such earlier period as
required by law. In the event of a conversion of any such Loan prior to the end
of its applicable Interest Period the Companies hereby agree promptly to pay any
Lender affected thereby, upon demand, the amounts required pursuant to Paragraph
3(f) below, it being agreed and understood that such conversion shall constitute
a prepayment for all purposes hereof. The provisions hereof shall survive the
termination of this Agreement and payment of the outstanding Loans and all other
amounts payable hereunder. If subsequently the Administrative Agent determines
that the cause of such illegality has ceased to exist, the Administrative Agent
will so advise the Companies by facsimile notice and the Companies may convert
such Corporate Rate Loans to Eurodollar Loans or request that any Loan be funded
as a Eurodollar Loan as provided in Paragraph 3(j) below. Notwithstanding
anything contained herein to the contrary, in the event that any law,
regulation, treaty or directive or any change therein or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, then in lieu of the
provisions and procedures set forth above, the Company may, at its sole option,
elect to require such Lender to assign all of its Maximum Commitment and Loans
to another Lender or to another party meeting the criteria set forth in
Paragraph 11(i) below, which such assignment shall be made pursuant to the terms
and provisions contained in Paragraph 11(i) below.
3(d) Requirements of Law; Increased Costs. In the event that any
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change subsequent to the date hereof in any applicable law, order, regulation,
treaty or directive issued by any central bank or other Governmental Authority,
or in the governmental or judicial interpretation or application thereof, or
compliance by any Lender with any request or directive (whether or not having
the force of law) by any central bank or other Governmental Authority:
(1) subjects any Lender to any tax of any kind whatsoever with
respect to this Agreement or any Loans made hereunder, or changes the basis
of taxation of payments to such Lender of principal, fee, interest or any
other amount payable hereunder (except for change in the rate of tax on the
overall net income of such Lender);
(2) imposes, modifies or holds applicable any
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reserve, capital requirement of general application to similarly situated
financial institutions, special deposit, compulsory loan or similar
requirements against assets held by, or deposits or other liabilities in or
for the account of, advances or loans by, or other credit extended by, or
any other acquisition of funds by, any office of such Lender which are not
otherwise included in the determination of the Eurodollar Rate, the
Applicable Eurodollar Rate or the Corporate Rate; or
(3) imposes on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing or maintaining any Loan or to reduce any amount receivable in
respect thereof or to reduce the rate of return on the capital of such Lender or
any Person controlling such Lender, then, in any such case, the Companies shall
promptly pay to the Administrative Agent for remittance to such Lender, upon its
written demand made through the Administrative Agent, any additional amounts
necessary to compensate such Lender for such additional cost or reduced amounts
receivable or rate of return as determined by such Lender with respect to this
Agreement or Loans made hereunder, subject to the limitations set forth in the
following sentence. If a Lender becomes entitled to claim any additional
amounts pursuant to this Paragraph 3(d), it shall, promptly after it obtains
knowledge thereof and determines to request compensation hereunder, notify the
Companies in writing through the Administrative Agent of the event by reason of
which it has become so entitled, provided that (A) any amounts owed by the
Companies to such Lender pursuant to this Paragraph 3(d) shall begin to accrue
on the later to occur of (1) the date on which such amounts began to be
incurred, and (2) the date which is thirty (30) days prior to the date such
notice is submitted to the Companies, and (B) such Lender, through the
Administrative Agent, will designate a different lending office for those Loans
affected by such event if such designation will avoid the need for, or reduce
the amount of, such compensation, so long as any such designation is reasonably
convenient for such Lender. A certificate as to any additional amounts payable
pursuant to the foregoing sentence containing the calculation thereof in
reasonable detail submitted by a Lender, through the Administrative Agent, to
the Companies shall be conclusive in the absence of manifest error. The
provisions hereof shall survive the termination of this Agreement and payment of
the outstanding Loans and all other amounts payable hereunder. Notwithstanding
anything contained herein to the contrary, in the event that any change
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occurs as described in subparagraphs (1), (2) or (3) hereof, the result of which
is to increase the cost to any Lender of making, renewing or maintaining any
Loan or to reduce any amount receivable in respect thereof or to reduce the rate
of return on the capital of such Lender or any Person controlling such Lender,
then in lieu of the provisions, payments and procedures set forth above, the
Company may, at its sole option, elect to require such Lender to assign all of
its Maximum Commitment and Loans to another Lender or to another party meeting
the criteria set forth in Paragraph 11(i) below, which such assignment shall be
made pursuant to the terms and provisions contained in Paragraph 11(i) below.
3(e) Funding. Each Lender shall be entitled to fund all or any
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portion of its Loans in any manner it may determine in its sole discretion, but
all calculations and transactions hereunder shall be conducted as though all
Lenders actually fund all Eurodollar Loans through the purchase in London of
offshore dollar deposits in the amount of the relevant Eurodollar Loan in
maturities corresponding to the applicable Interest Period.
3(f) Funding Indemnification -- Prepayment. In addition to all other
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payment obligations hereunder, in the event any Loan which is outstanding as a
Eurodollar Loan is prepaid prior to the last day of the applicable Interest
Period, whether following a voluntary prepayment or a mandatory prepayment, the
Companies shall immediately pay to the Lenders holding the Eurodollar Loans
prepaid, through the Administrative Agent, an amount equal to the excess, if
any, of (i) the amount of interest which would have accrued on the principal
amount of the Eurodollar Loan so prepaid to the last day of the Interest Period
for such Eurodollar Loan at the applicable rate of interest hereunder for such
Eurodollar Loan over (ii) the interest component of the amount the
Administrative Agent would have bid in the London interbank market for dollar
deposits of leading banks of amounts comparable to such principal amount repaid
and maturities comparable to such period, as reasonably determined by the
Administrative Agent, together with an additional amount compensating each such
Lender for losses and reasonable expenses incurred by such Lender in connection
with such prepayment, including, without limitation, such as may arise out of a
re-employment of funds obtained by such Lender and from fees payable to
terminate the deposits from which such funds were obtained, such interest
amount, losses, and expenses and the method of calculation thereof being set
forth in reasonable detail and a statement delivered to the Companies by such
Lender. Under no circumstances shall any Lender have any obligation to remit
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monies to the Companies upon prepayment of any Eurodollar Loan even under
circumstances which do not result in the necessity of the payment by the
Companies of any amount hereunder. The provisions hereof shall survive
termination of this Agreement and payment of the outstanding Loans and all
amounts payable hereunder.
3(g) Funding Indemnification -- Failure to Borrow, Default or Failure
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to Continue or Convert. In addition to all other payment obligations hereunder,
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in the event the Companies shall fail to borrow a Eurodollar Loan or to continue
or to make a conversion to a Eurodollar Loan after the Companies have given
notice thereof as provided in Paragraph 3(a) above, or if after giving a notice
to have any Lender make a Eurodollar Loan, such Lender is not obligated to do so
due to the existence of an Event of Default or Potential Default, then the
Companies shall immediately pay any Lender holding the Eurodollar Loan not
borrowed, continued or converted, or which would have been obligated to make
such Eurodollar Loan, through the Administrative Agent, an additional amount
compensating each such Lender for losses and expenses incurred by such Lender in
connection with such failure to borrow, continue or convert a Eurodollar Loan,
or the occurrence of an Event of Default or Potential Default including, without
limitation, such as may arise out of re-employment of funds obtained by such
Lender and from fees payable to terminate the deposits from which such funds
were obtained, such losses and expenses and the method of calculation thereof
being set forth in reasonable detail in a statement delivered to the Companies
by such Lender. The provisions hereof shall survive termination of this
Agreement and payment of the outstanding Loans and all other amounts payable
hereunder.
3(h) INTENTIONALLY DELETED.
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3(i) Use of Proceeds. (i) The proceeds of all Tranche A Loans shall
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be used by the Companies solely for the purposes of acquiring Eligible A/B
Mortgage Loans to be held for sale by the Companies and of originating
Warehousing Loans which Warehousing Loans shall be secured by Mortgage Loans
pledged by sub-borrowers to the Companies; and (ii) the proceeds of all Tranche
B Loans shall be used by the Companies solely for the purpose of acquiring or
retaining Eligible A/B Mortgage Loans to be held for investment by the
Companies; provided, however, that so long as the aggregate principal amount of
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outstanding Loans is less than the aggregate of the Collateral Value of the
Tranche A Borrowing Base and the Collateral Value of the Tranche B Borrowing
Base, the Companies
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may use the proceeds of any Loans for any general corporate purpose of the
Companies.
3(j) Request For Loans; Making of Loans.
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(1)(a) If the Companies desire to borrow a Swing Line Loan
hereunder, the Companies shall make a Loan Request to the Administrative
Agent no later than 4:45 p.m. (Charlotte, North Carolina time) on the
proposed funding date, which Loan Request shall identify the type of
Regular Loan which is scheduled to repay such Swing Line Loan. First Union
shall make available the amount of the proposed Swing Line Loan by
crediting the amount thereof in immediately available same day funds to the
Funding Account on such date.
(b) If the Companies desire to borrow a Corporate Rate Loan
(other than a Swing Line Loan) hereunder, the Companies shall make a Loan
Request to the Administrative Agent no later than 2:00 p.m. (Charlotte,
North Carolina time) on the proposed funding date, which Loan Request shall
be forwarded promptly by the Administrative Agent to the Lenders by
facsimile transmission no later than 2:45 p.m. (Charlotte, North Carolina
time) on such date. The applicable Lenders shall make available the amount
of their respective Percentage Shares of the proposed Corporate Rate Loan
by crediting the amount thereof in immediately available same day funds to
the Funding Account no later than 3:30 p.m. (Charlotte, North Carolina
time) on such date.
(2) If the Companies desire to borrow or continue a Eurodollar
Loan or to convert a Corporate Rate Loan to a Eurodollar Loan as provided
in Paragraph 3(a) above, the Companies shall make a Loan Request to the
Administrative Agent no later than 2:00 p.m. (Charlotte, North Carolina
time) on the day occurring at least two Eurodollar Business Days prior to
the date of the borrowing, conversion or continuation requested therein,
and the Administrative Agent shall notify the Lenders of the contents of
such Loan Request no later than 2:45 p.m. (Charlotte, North Carolina time)
on such Business Day. The applicable Lenders shall make available the
amount of their respective Percentage Shares of the proposed Eurodollar
Loan by crediting the amount thereof in immediately available same day
funds to the Funding Account no later than 3:30 p.m. (Charlotte, North
Carolina time) on the proposed date of borrowing. Notwithstanding any
provision hereof to the contrary, the parties agree that each Eurodol-
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lar Loan shall be in a principal amount of $1,000,000 or whole multiples of
$100,000 in excess thereof.
(3) Each Corporate Rate Loan (other than a Swing Line Loan) and
each Eurodollar Loan shall be allocated among and funded by the Lenders in
accordance with their applicable Percentage Shares. The failure of any
Lender to make its Percentage Share of any Regular Loan to be made by it as
part of any borrowing shall not relieve any other Lender of its obligation
hereunder to advance its applicable portion of the principal amount thereof
but no Lender shall be responsible for the failure of any other Lender to
make the advance required of it.
(4) Notwithstanding anything herein to the contrary, a "Loan
Request" made under and pursuant to the terms of the Facility II Agreement
shall be considered to be a Loan Request for all purposes hereunder, and
the Companies shall not be required to submit an additional Loan Request
hereunder, if (i) such "Loan Request" made under and pursuant to the terms
of the Facility II Agreement has been made with respect to Tranche A Loans
or Tranche B Loans and (ii) at the time of making such "Loan Request", the
aggregate outstanding principal balance of Tranche A Loans and Tranche B
Loans under the Facility II Agreement is equal to or in excess of the
difference of (a) $180,000,000, minus (b) the aggregate principal amount of
all Tranche C Loans, Tranche D Loans, Tranche E Loans, Tranche F Loans and
Tranche G Loans outstanding under the Facility II Agreement.
3(k) Notes. The joint and several obligations of the Companies to
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repay the Loans shall be evidenced by (i) notes payable to the order of each
Lender, as applicable, in the form set forth as Exhibit A-1 in the Addendum, and
-----------
(ii) a Facility I Swing Line Promissory Note payable to the order of First
Union, in form and content acceptable to First Union (collectively, the
"Notes").
3(l) Interest and Fee Billing and Payment; Notice of Interest Rates.
--------------------------------------------------------------
(1) The Administrative Agent shall (A) in the case of the
Corporate Rate Loans and any Loans bearing interest at a rate established
pursuant to Paragraph 3(u) below, on or before the fifth Business Day of
each month, and (B) in the case of Eurodollar Loans, on the last day of the
14
<PAGE>
applicable Interest Period, deliver to the Companies an interest and fee
billing for the immediately preceding month or Interest Period, as the case
may be, which billing shall set forth interest accrued and payable on Loans
and fees payable hereunder for such period to be collected by the
Administrative Agent and which billing shall be payable, in the case of a
billing delivered pursuant to subparagraph (A) above, no later than the
second Business Day following receipt thereof by the Companies and, in the
case of a billing delivered pursuant to subparagraph (B) above, on the last
day of the applicable Interest Period.
(2) In the event that any Lender has entered into a separate
letter agreement with the Companies pursuant to Paragraph 3(u) below
regarding interest rates for Loans made by such Lender, such Lender shall
be responsible for notifying the Administrative Agent, on or before the
third Business Day of each month, of the interest owing to such Lender for
such month pursuant to such letter agreement, and the Administrative Agent
shall incorporate such interest amount delivered to it by such Lender into
the interest and fee billing referred to in subparagraph (1) above. The
Administrative Agent shall have no duty to independently confirm the
accuracy of any such information delivered to it by any Lender.
(3) The Administrative Agent shall, on each day on which a Loan
is made, confirm to the Companies the interest rate which is to be
applicable to each such Loan (other than interest rates established
pursuant to Paragraph 3(u) below), each such interest rate to be expressed
as a decimal and rounded to the nearest 1/1000th of one percent. Such
confirmation shall take the form of a verbal confirmation by the
Administrative Agent to a designated representative of the Companies,
followed by a written confirmation of such rate no later than the close of
business of the Administrative Agent on the Business Day following the
making of such Loan.
3(m) Repayment of Principal. Subject to the prepayment requirements
----------------------
of Paragraph 3(r) below and the required application of proceeds from the sale
or other disposition of Mortgage Loans or servicing rights as provided in the
Security Agreement and in the Custodial Agreement, the Companies shall pay the
principal amount of each Eurodollar Loan which is not continued or converted
pursuant to Paragraph 3(a) on the last day of the applicable
15
<PAGE>
Interest Period relating thereto and shall pay the principal amount of all other
Loans on the Maturity Date.
3(n) Borrowing Base Conformity; Mandatory Prepayments.
------------------------------------------------
(1) The Companies shall cause to be maintained with the
Collateral Agent a Tranche A Borrowing Base such that the Collateral
Value of the Tranche A Borrowing Base is not less than, at any date,
the sum of the aggregate dollar amount of outstanding Tranche A Loans
plus the aggregate dollar amount of outstanding Swing Line Loans which
have been identified by the Companies in the applicable Loan Request
as being scheduled for repayment by Tranche A Loans.
(2) The Companies shall cause to be maintained with the
Collateral Agent a Tranche B Borrowing Base such that the Collateral
Value of the Tranche B Borrowing Base is not less than, at any date,
the sum of the aggregate dollar amount of outstanding Tranche B Loans
plus the aggregate dollar amount of outstanding Swing Line Loans which
have been identified by the Companies in the applicable Loan Request
as being scheduled for repayment by Tranche B Loans.
(3) The Companies shall prepay Loans to the Administrative
Agent on behalf of the Lenders, upon telephonic or facsimile demand by
the Administrative Agent, on any day (A) in the amount by which the
aggregate principal amount of outstanding Tranche A Loans, plus the
aggregate principal amount of outstanding Swing Line Loans which have
been identified by the Companies in the applicable Loan Request as
being scheduled for repayment by Tranche A Loans, exceeds the
Collateral Value of the Tranche A Borrowing Base, (B) in the amount by
which the aggregate principal amount of outstanding Tranche B Loans,
plus the aggregate principal amount of outstanding Swing Line Loans
which have been identified by the Companies in the applicable Loan
Request as being scheduled for repayment by Tranche B Loans, exceeds
the Collateral Value of the Tranche B Borrowing Base, or (C) in the
amount by which the sum of the aggregate principal amount of
outstanding Tranche A Loans, Tranche B Loans and Swing Line Loans
exceeds the Aggregate Facility Commitment; said prepayment to be made
on the date on which demand
16
<PAGE>
is made by the Administrative Agent if made prior to 12:00 p.m.
(Charlotte, North Carolina time) or, if made later than 12:00 p.m.
(Charlotte, North Carolina time), before 12:00 p.m. (Charlotte, North
Carolina time) on the next Business Day.
(4) The Companies shall prepay Corporate Rate Loans to the
Administrative Agent on behalf of Lenders, upon telephonic or
facsimile demand by the Administrative Agent, on any day in the amount
equal to the lesser of (y) the aggregate principal amount of
outstanding Loans or (z) the amount by which 1. the difference of A.
-- -
$180,000,000, minus B. the aggregate principal amount of all Tranche C
-
Loans, Tranche D Loans, Tranche E Loans, Tranche F Loans and Tranche G
Loans outstanding under the Facility II Agreement, exceeds 2. the
--
aggregate principal amount of outstanding Tranche A Loans and Tranche
B Loans under the Facility II Agreement; provided, however, that in no
-------- -------
event shall this Paragraph 3(n)(4) be construed to require the
Companies to prepay Eurodollar Loans prior to the expiration of the
applicable Interest Period therefor.
(5) If at such time as the Companies shall be required to
prepay Loans under this Paragraph 3(n) there shall not have occurred
and be continuing an Event of Default, in lieu of prepaying the Loans
as required, the Companies may deliver to the Collateral Agent or the
Administrative Agent, as applicable, additional Collateral such that
after giving effect to the inclusion of such Collateral in the
respective borrowing bases, the Companies shall be in compliance with
the requirements of subparagraphs (1) and (2) above.
3(o) Nature and Place of Payments. All payments made on account of
----------------------------
the Obligations shall be made to the Administrative Agent for distribution to
the Lenders, and the Administrative Agent is hereby irrevocably authorized to
debit the Settlement Account and distribute amounts held therein as provided in
Paragraph 3(s) below on account thereof. All payments made on account of the
Obligations shall be made without setoff or counterclaim in lawful money of the
United States of America in immediately available same day funds, free and clear
of and without deduction for any taxes, fees or other charges of any
17
<PAGE>
nature whatsoever imposed by any taxing authority. If such payments (other than
principal payments made via wire transfers under the Federal Reserve System on
Swing Line Loans held solely by First Union, i.e., the other Lenders have not
purchased participations therein pursuant to Paragraph 3A(d)(2) above) are
received by the Administrative Agent by 3:30 p.m. on any Business Day
(Charlotte, North Carolina time) such payment will be credited on such Business
Day. If a payment (other than principal payments made via wire transfers under
the Federal Reserve System on Swing Line Loans held solely by First Union) is
received after 3:30 p.m. (Charlotte, North Carolina time) by the Administrative
Agent, such payment will be credited on the next succeeding Business Day and
interest thereon shall be payable at the then applicable rate until credited,
provided, that the Administrative Agent shall use its best efforts to credit
--------
such payment on the Business Day received. Principal payments via wire
transfers under the Federal Reserve System on Swing Line Loans held solely by
First Union will be credited as of the Business Day on which First Union
receives credit for such funds in its account with the Federal Reserve Bank.
All amounts received by the Administrative Agent on account of the Obligations
shall be disbursed by the Administrative Agent to the applicable Lenders by wire
transfer on the date of receipt if received by the Administrative Agent by the
applicable deadline for payment thereof as specified above, or if received
later, on the next succeeding Business Day. If any payment required to be made
by the Companies hereunder becomes due and payable on a day other than a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day and interest thereon shall be payable at the then applicable rate
during such extension.
3(p) Post-Maturity Interest. Any Obligations not paid when due
----------------------
(whether at stated maturity, upon acceleration or otherwise) shall bear interest
from the date due until paid in full at a per annum rate equal to four percent
(4%) above the interest rate otherwise applicable thereto or if such Obligations
do not otherwise bear interest, four percent (4%) above the Applicable Corporate
Rate.
3(q) Computations. All computations of interest and fees payable
------------
hereunder shall be based upon a year of 360 days for the actual number of days
elapsed.
3(r) Prepayments.
-----------
(1) The Companies may voluntarily prepay Loans hereunder
(including Eurodollar Loans subject to and on the
18
<PAGE>
conditions contained in Paragraph 3(f)) in whole at any time or in part
from time to time upon notice to the Administrative Agent on or prior to
the date of such prepayment; provided that any partial prepayment shall be
--------
in a minimum amount of $250,000.
(2) Loans hereunder are subject to mandatory prepayment pursuant
to Paragraph 3(n) above and, in addition, by application of proceeds of the
sale or other disposition of Collateral as provided in the Security
Agreement and in the Custodial Agreement.
(3) The Companies shall pay in connection with any prepayment
hereunder all interest accrued but unpaid on Loans to which such prepayment
is applied pursuant to Paragraph 3(s) below and any amounts payable
pursuant to Paragraph 3(f) above concurrently with payment to the
Administrative Agent of any principal amounts.
3(s) Allocation of Payments Received.
-------------------------------
(1) Prior to the occurrence of an Event of Default and
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, principal amounts
received by the Administrative Agent with respect to Loans shall be
allocated (i) first, to First Union in payment of any Swing Line Loans
-----
which have not been refunded with Regular Loans, then (ii) next, among the
----
Lenders on account of the Obligations pro rata in accordance with their
respective Percentage Shares.
(2) Following the occurrence of an Event of Default and
acceleration of all Loans outstanding hereunder or termination of the
commitments of the Lenders to advance Loans hereunder, all amounts received
by the Administrative Agent on account of the Obligations shall be
disbursed by the Administrative Agent as follows:
(i) First, to the payment of reasonable costs and expenses
incurred by the Administrative Agent and Collateral Agent in the
performance of their duties and enforcement of their rights under the
Credit Documents, including, without limitation, all reasonable costs
and expenses of collection, reasonable attorneys' fees, court costs
and foreclosure expenses;
19
<PAGE>
(ii) Second, to First Union in payment of any Swing Line
Loans outstanding (A) in which the Lenders are obligated to purchase
participations pursuant to the terms and provisions of Paragraph
2(A)(d)(2) above, (B) which have not been refunded with Regular Loans,
and (C) in which participations have not been purchased by the Lenders
pursuant to the terms and provisions of Paragraph 2A(d)(2) above;
(iii) Third, to the Lenders, pro rata in accordance with
their respective Repayment Shares, until the outstanding Loans and
other Obligations shall have been paid in full, provided that all such
--------
amounts described herein shall be applied first to interest and then
to principal, as applicable, provided further that for the sole
-------- -------
purpose of this Paragraph 3(s)(2)(iii), the Lenders' respective
Repayment Shares shall be adjusted to take into account interest which
may be owing to any Lender at a rate determined pursuant to the
provisions of Paragraph 3(u) below, and provided further that for the
-------- -------
sole purpose of this Paragraph 3(s)(2)(iii), First Union's Repayment
Share shall be adjusted to exclude Swing Line Loans outstanding which,
by application of Paragraph 2A(d)(4) above, the Lenders are not
obligated to refund;
(iv) Fourth, to First Union in payment of any Swing Line
Loans outstanding which, by application of Paragraph 2A(d)(4) above,
the Lenders are not obligated to refund; and
(v) Fifth, to such Persons as may be legally entitled
thereto.
3(t) Fees. The Companies shall pay the following fees:
----
(1) To the Administrative Agent for the account of the Lenders, an
annual commitment fee equal to one-eighth of one percent (0.125%) of the
Aggregate Facility Commitment, such fee to be payable upon the date hereof and
annually upon each anniversary of the date hereof.
(2) To the Administrative Agent for its own account, such
arrangement, agency and syndication fees as have been agreed to in writing by
the Companies and the Administrative Agent pursuant to that certain letter
agreement dated as of
20
<PAGE>
February 17, 1995, as such fees may be adjusted from time to time by agreement
of the Companies and the Administrative Agent.
(3) To the Collateral Agent for its own account, such collateral
handling fees as are agreed to in writing by the Companies and the Collateral
Agent.
(4) To each of the Co-Agents for its own account, such co-agency fees
as have been agreed to in writing in that certain letter dated as of June 19,
1995 from the Companies to the Co-Agents, as modified from time to time in
writing by the Companies and the Co-Agents.
3(u) Notwithstanding anything contained in this Agreement to the
contrary, each of the Lenders shall have the option of entering into separate
letter agreements from time to time with the Companies whereunder each such
Lender may establish an interest rate for Loans made by such Lender hereunder
which corresponds to the balance contained in accounts of the Companies held by
or maintained with each such Lender.
3(v) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to the
Companies and the Administrative Agent (i) two duly completed copies of United
States Internal Revenue Service Form 1001 or 4224 or successor applicable form,
as the case may be, or other manner of certification, establishing that payments
of interest hereunder are either not subject to or totally exempt from United
States Federal withholding tax and (ii) an Internal Revenue Service Form W-8 or
W-9 or successor applicable form. Each such Lender also agrees to deliver to
the Companies and the Administrative Agent two further copies of the said Form
1001 or 4224 and Form W-8 or W-9, or successor applicable forms or other manner
of certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by such Lender to the
Companies, and such extensions or renewals thereof as may reasonably be
requested by the Companies or the Administrative Agent, unless in any such case
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender so advises each of the Companies and the
Administrative Agent. Such Lender shall certify
21
<PAGE>
(i) in the case of a Form 1001 or 4224, that it is entitled to receive payments
under this Agreement without deduction or withholding of any United States
federal income taxes and (ii) in the case of a Form W-8 or W-9, that it is
entitled to an exemption from United States backup withholding tax.
4. Security Agreement; Custodial Agreement; Additional Documents.
-------------------------------------------------------------
4(a) Security Agreement. On or before the date hereof, the Companies
------------------
shall execute and deliver to the Administrative Agent: (1) a security and
collateral agency agreement in the form set forth as Exhibit B in the Addendum
---------
(the "Security Agreement"), pursuant to which the Companies shall pledge, assign
and grant to the Administrative Agent for the benefit of the Lenders, a
perfected security interest in and lien upon the Collateral, and (2) such UCC
financing statements as the Administrative Agent may reasonably request in
connection therewith.
4(b) Custodial Agreement. On or before the date hereof, the Companies
-------------------
shall execute and deliver to the Collateral Agent and the Administrative Agent
that certain Custodial and Intercreditor Agreement dated as of May 23, 1995
among the Companies, the Administrative Agent, Merrill Lynch Mortgage Capital
Inc., Merrill Lynch Credit Corporation, Lehman Commercial Paper Inc., Nomura
Asset Capital Corporation and Bankers Trust Company of California, N.A. in the
form set forth as Exhibit C in the Addendum (the "Custodial Agreement"),
---------
pursuant to which the Companies and the other parties thereto shall agree, with
respect to that portion of the Collateral comprising the Tranche A Borrowing
Base and the Tranche B Borrowing Base, as to the custody thereof by the
Collateral Agent and the relative interests of the parties to the Custodial
Agreement therein.
4(c) Further Documents. The Companies agree to execute and deliver and
-----------------
to cause to be executed and delivered to the Collateral Agent from time to time
such confirmatory and supplementary security agreements, financing statements
and other documents, instruments and agreements as the Administrative Agent or
the Collateral Agent may reasonably request, which are consistent with the terms
of the Credit Documents and which are in the Administrative Agent's or the
Collateral Agent's judgment reasonably necessary or desirable to obtain for the
Collateral Agent on behalf of the Lenders, the benefit of the Credit Documents
and the Collateral.
22
<PAGE>
5. Conditions to Making of Loans.
-----------------------------
5(a) First Loan. As conditions precedent to any Lender's obligation
----------
to make the first Loan hereunder:
(1) The Companies shall have delivered to the Administrative
Agent, in form and substance reasonably satisfactory to the Administrative
Agent and its counsel, each of the following (with sufficient copies for
each of the Lenders):
(i) A duly executed copy of this Agreement;
(ii) A duly executed copy of each of the Security Agreement
and the Custodial Agreement;
(iii) Duly executed copies of each of the Notes;
(iv) Duly executed copies of all financing statements and
other documents, instruments and agreements, properly executed, deemed
necessary or appropriate by the Collateral Agent, in its reasonable
discretion, to obtain for the Collateral Agent on behalf of the
Lenders a perfected security interest in and lien upon the Collateral;
(v) Such credit applications, financial statements, and
authorizations with respect to the Companies as any Lender may
reasonably request;
(vi) Certified copies of resolutions of the Board of
Directors of each of CWM, Indy Mac and ILC approving the execution and
delivery of the Credit Documents to which such Person is a party, the
performance of the Obligations thereunder and the consummation of the
transactions contemplated thereby;
(vii) A certificate of the Secretary or an Assistant
Secretary of each of CWM, Indy Mac and ILC certifying the names and
true signatures of the officers of such Person authorized to execute
and deliver the Credit Documents to which such Person is a party;
(viii) A copy of the Certificates of Incorpo-
23
<PAGE>
ration of each of CWM, Indy Mac and ILC, certified by the Secretary of
State of the respective state of organization of such Person as of a
recent date;
(ix) A copy of the Bylaws of each of CWM, Indy Mac and ILC,
certified by the respective Secretary or an Assistant Secretary of
such Person as of the date of this Agreement as being accurate and
complete;
(x) Certificates of the Secretary of State of the State of
Delaware, certifying as of a recent date that each of CWM, Indy Mac
and ILC is in good standing;
(xi) An opinion of counsel (which may be in-house corporate
counsel) for the Companies acceptable to the Administrative Agent;
(xii) Evidence reasonably satisfactory to the Administrative
Agent that each of the Funding Account and the Settlement Account has
been opened;
(xiii) A schedule of the initial Approved Investors and
Approved Repo Lenders;
(xiv) A duly completed Borrowing Base Schedule dated as of
the date of the first Loan hereunder and certified by Borrower to be
true in all material respects; and
(xv) A Covenant Compliance Certificate demonstrating in
detail satisfactory to the Lenders that the Companies are in
compliance with the covenants set forth in Paragraphs 8(g), 8(h) and
8(i) below.
(2) All acts and conditions (including, without limitation, the
obtaining of any necessary regulatory approvals and the making of any
required filings, recordings or registrations) required to be done and
performed and to have happened precedent to the execution, delivery and
performance of the Credit Documents and to constitute the same legal, valid
and binding obligations, enforceable in accordance with their respective
terms, shall have been done and performed and shall have happened in due
and strict compliance with all applicable laws.
24
<PAGE>
(3) All documentation, including, without limitation,
documentation for corporate and legal proceedings in connection with the
transactions contemplated by the Credit Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent and its
counsel.
(4) All fees required to be paid to the Administrative Agent and
the Lenders on or before the date hereof pursuant to Paragraph 3(t) above,
shall have been paid prior to (or will be paid concurrently with) the
making of the first Loan hereunder.
5(b) Ongoing Loans. As conditions precedent to each Lender's
-------------
obligation to make any Loan hereunder, including the first Loan and including
the conversion of any Loan to another type of Loan or the continuation of any
Eurodollar Loan after the end of the applicable Interest Period, at and as of
the date of advance, conversion or continuance thereof;
(1) There shall have been delivered to the Administrative Agent a
Loan Request therefor;
(2) The representations and warranties of the Companies contained
in the Credit Documents shall be accurate and complete in all material
respects as if made on and as of the date of such advance, conversion or
continuance;
(3) There shall not have occurred an Event of Default or
Potential Default which has not been waived pursuant to Paragraph 11(b)
hereof by the requisite number of Lenders;
(4) Following the funding of the requested Loan: (i) the sum of
the aggregate principal amount of Tranche A Loans outstanding plus the
aggregate principal amount outstanding of Swing Line Loans which have been
identified by the Companies in the applicable Loan Request as being
scheduled for repayment by Tranche A Loans will not exceed the lesser of:
a. the Aggregate Tranche A Credit Limit and b. the Collateral Value of the
- -
Tranche A Borrowing Base, (ii) the sum of the aggregate principal amount
of Tranche B Loans outstanding plus the aggregate principal amount
outstanding of Swing Line Loans which have been identified by the Companies
in the applicable Loan Request as being scheduled for repayment by Tranche
B Loans will not exceed the lesser of: a. the Aggregate Tranche B Credit
-
Limit and b.
-
25
<PAGE>
the Collateral Value of the Tranche B Borrowing Base, (iii) the aggregate
principal amount of Loans outstanding advanced by any Lender will not
exceed its Maximum Commitment, and (iv) the aggregate principal amount of
all Loans outstanding will not exceed the Aggregate Facility Commitment;
(5) The Required Documents for the Mortgage Loans being funded
with the proceeds of such Loan shall have been received by the Collateral
Agent (except as otherwise provided in subparagraph (o) of the definition
of "Eligible A/B Mortgage Loan");
(6) The maximum amount which may be outstanding at any time as
Tranche A Loans and Tranche B Loans under the Facility II Agreement is
outstanding; and
(7) If the Administrative Agent is being requested to include any
Mortgage Loan being funded with a Tranche A Loan or a Tranche B Loan as an
Eligible A/B Mortgage Loan pursuant to a waiver of eligibility requirements
as set forth in the last paragraph of the definition of "Eligible A/B
Mortgage Loan," the Companies shall have notified the Administrative Agent
and the Collateral Agent of the noncompliance or nonconformity of such
Mortgage Loan.
By making a Loan Request to the Administrative Agent hereunder, the Companies
shall be deemed to have represented and warranted the accuracy and completeness
of the statements set forth in subparagraphs (b)(2) through (b)(7) above.
6. Representations and Warranties of the Companies.
-----------------------------------------------
Each of CWM, Indy Mac, and ILC represents and warrants to the
Administrative Agent and each Lender, and the Companies collectively represent
and warrant to the Administrative Agent and each Lender, as applicable, that:
6(a) Financial Condition. (i) The consolidated financial statements of
-------------------
CWM, and the financial statements of Indy Mac, each dated as of the Statement
Date and for the fiscal period then ended, copies of which have been furnished
to each Lender, present fairly, in accordance with GAAP, the financial condition
of the Companies at such dates and the results of their operations and cash
flows, for the fiscal period then ended.
26
<PAGE>
6(b) No Change. As of the date hereof there has been no material
---------
adverse change in the business, operations, assets or financial condition of the
Companies, taken as a whole, from that shown on the financial statements dated
as of the Statement Date referred to in Paragraph 6(a) above.
6(c) Corporate Existence; Compliance with Law. Each of CWM, Indy Mac
----------------------------------------
and ILC: (1) is duly organized, validly existing and in good standing as a
corporation under the laws of the State of Delaware, and is qualified to do
business in each jurisdiction where its ownership of property or conduct of
business requires such qualification and where failure to qualify would have a
material adverse effect on the Companies, taken as a whole, or their property or
business or on the ability of the Companies to pay or perform the Obligations,
(2) has the corporate power and authority and the legal right to own and operate
its property and to conduct business in the manner in which it does and proposes
so to do, and (3) is in compliance with all Requirements of Law and Contractual
Obligations, the failure to comply with which would have a material adverse
effect on the business, operations, assets or financial condition of the
Companies, taken as a whole, or on the Collateral.
6(d) Corporate Power; Authorization; Enforceable Obligations. Each of
-------------------------------------------------------
CWM, Indy Mac and ILC has the corporate power and authority and the legal right
to execute, deliver and perform the Credit Documents and has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Credit Documents. The Credit Documents have been duly executed and delivered on
behalf of each of CWM, Indy Mac and ILC and constitute legal, valid and binding
obligations of each such Person enforceable against such Person in accordance
with their respective terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and the effect of
equitable principles whether applied in an action at law or a suit in equity.
6(e) No Legal Bar. The execution, delivery and performance of the
------------
Credit Documents, the borrowing hereunder and the use of the proceeds thereof,
will not violate any Requirement of Law or any Contractual Obligation of either
CWM, Indy Mac or ILC the violation of which would have a material adverse effect
on the business, operations, assets or financial condition of the Companies,
taken as a whole, or on the Collateral or create or result in the creation of
any Lien (except the Lien created by the Security Agreement or by the Custodial
Agreement) on any assets of
27
<PAGE>
the Companies.
6(f) No Material Litigation. Except as disclosed on Exhibit D set
---------------------- ---------
forth in the Addendum, no litigation, investigation or proceeding of or before
any court, arbitrator or Governmental Authority is pending or, to the knowledge
of the Companies, threatened by or against CWM, Indy Mac or ILC or against any
of the properties or revenues of such Person which, if adversely determined,
would have a material adverse effect on the business, operations, property or
financial condition of the Companies, taken as a whole, or on the Collateral.
6(g) Taxes. To the best of the Companies' knowledge, all tax returns
-----
that are required to be filed by or on behalf of the Companies have been filed
(or the time for such filing has been extended in accordance with applicable law
or regulations) and all taxes shown or to be shown to be due and payable on said
returns or on any assessments made against the Companies or any of their
property (other than taxes which are being contested in good faith by
appropriate proceedings and as to which the Companies have established adequate
reserves in conformity with GAAP) have been paid or provided for.
6(h) Investment Company Act. Neither CWM, Indy Mac nor ILC is an
----------------------
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
6(i) Federal Reserve Board Regulations. Neither CWM, Indy Mac nor ILC
---------------------------------
is engaged or will engage, principally or as one of its important activities, in
the business of extending credit for the purpose of "purchasing" or "carrying"
any "margin stock" within the respective meanings of such terms under Regulation
U. No part of the proceeds of any Loan issued hereunder will be used, directly
or indirectly, for "purchasing" or "carrying" "margin stock" as so defined or
for any purpose which violates, or which would be inconsistent with, the
provisions of the Regulations of the Board of Governors of the Federal Reserve
System pertaining to the foregoing.
6(j) ERISA. Each of CWM, Indy Mac and ILC and each of such Person's
-----
ERISA Affiliates are in compliance in all respects with the requirements of
ERISA and no Reportable Event has occurred under any Plan maintained by any of
such Persons or any of such Persons' ERISA Affiliates which is likely to result
in the termination of such Plan for purposes of Title IV of ERISA.
28
<PAGE>
6(k) Assets. The Companies are the legal and beneficial owners of all
------
property and assets reflected in the interim financial statements referred to in
Paragraph 6(a) above, except property and assets sold or otherwise disposed of
in the ordinary course of business subsequent to the date thereof. There are no
outstanding Liens on any of the Companies' properties or assets, and there are
no security agreements to which any of CWM, Indy Mac or ILC is a party, nor any
title retention agreements, whether in the form of leases or otherwise, of any
personal property, except as permitted under Paragraph 8(a) below.
6(l) Securities Acts. Neither CWM, Indy Mac nor ILC has issued any
---------------
unregistered securities in violation of the registration requirements of Section
5 of the Securities Act of 1933, as amended, or any other existing applicable
law, and each of such Persons is in compliance, in all material respects, with
all existing applicable rules, regulations and requirements under the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended.
Neither CWM, Indy Mac nor ILC is required to qualify an indenture under the
Trust Indenture Act of 1939, as amended, in connection with such Person's
execution and delivery of the Notes.
6(m) Consents, etc. No consent, approval, authorization of, or
--------------
registration, declaration or filing with, any Governmental Authority is required
on the part of the Companies in connection with the execution and delivery of
the Credit Documents (other than filings to perfect the security interests
granted in the Credit Documents) or the performance of or compliance with the
terms, provisions and conditions hereof or thereof, except such consents as have
been obtained by the Companies.
6(n) Joint Benefit. The Companies engage in complimentary lines of
-------------
business and therefore each Loan made hereunder to any of the Companies benefits
all of the Companies.
7. Affirmative Covenants. Each of CWM, Indy Mac and ILC hereby covenants
---------------------
and agrees, and the Companies, jointly and severally, hereby covenant and agree,
with the Administrative Agent and each Lender that, as long as any Obligations
remain unpaid or any Lender has any obligation to make Loans hereunder, each of
CWM, Indy Mac and ILC, or the Companies, as applicable, shall:
7(a) Financial Statements. Furnish or cause to be fur-
--------------------
29
<PAGE>
nished to the Administrative Agent:
(1) Within ninety (90) days after the last day of each fiscal
year of the Companies, a copy of the 10-K statement as filed annually by
the Companies with the Securities and Exchange Commission;
(2) Within forty-five (45) days after the last day of each fiscal
quarter of the Companies, a copy of the 10-Q statement as filed quarterly
by the Companies with the Securities and Exchange Commission;
(3) Within ten (10) days after the last day of each calendar
month, a Covenant Compliance Certificate of an Authorized Officer of the
Companies, demonstrating in detail reasonably satisfactory to the
Administrative Agent the Companies' compliance with the financial covenants
set forth in Paragraphs 8(g), 8(h) and 8(i) below as of and at the end of
such month;
(4) Within ninety (90) days after the last day of each fiscal
year of the Companies, consolidating financial statements for CWM (except
for CWM Mortgage Obligations II, Inc. and CWM Mortgage Obligations III,
Inc.), each dated as of the last day of such fiscal year for the fiscal
year then ended, which consolidating financial statements shall present
fairly, in accordance with GAAP (except for the accounting of Indy Mac,
which is not consolidated with CWM under GAAP), the financial condition of
CWM and its consolidated subsidiaries (including Indy Mac for this purpose)
at such date and the results of their operations and cash flows for the
fiscal year then ended; and
(5) Within forty-five (45) days after the last day of each fiscal
quarter of the Companies, consolidating financial statements for CWM
(except for CWM Mortgage Obligations II, Inc. and CWM Mortgage Obligations
III, Inc.), each dated as of the last day of such fiscal quarter for the
fiscal quarter then ended, which consolidating financial statements shall
present fairly, in accordance with GAAP (except for the accounting of Indy
Mac, which is not consolidated with CWM under GAAP), the financial
condition of CWM and its consolidated subsidiaries (including Indy Mac for
this purpose) at such date and the results of their operations and cash
flows for the fiscal year then ended.
30
<PAGE>
Upon receipt of any of the items listed in subparagraphs (1),
(2), (3), (4) or (5) above, the Administrative Agent shall promptly furnish
copies of such items to the Lenders.
7(b) Certificates; Reports; Other Information. Furnish or cause to be
----------------------------------------
furnished to the Administrative Agent and the Collateral Agent:
(1) No less frequently than monthly, within thirty (30) days
after the last day of each calendar month unless otherwise requested in
writing, reports in form and content satisfactory to the Administrative
Agent containing the following information: (A) a Loan Purchase/Sale
Schedule for such month; (B) a Delinquency Report for such month; (C) the
Borrowing Base Schedule for such month; (D) with respect to each of the
Tranche A Facility and the Tranche B Facility, a Position Report for such
month; and (E) with respect to the Tranche A Facility, an investor
commitment summary relating to the status of the Take-out Commitments and
Hedging Arrangements;
(2) Promptly, such additional financial and other information,
including, without limitation, financial statements of the Companies or any
Approved Investor or Approved Repo Lender, and information regarding the
Collateral as the Administrative Agent, the Collateral Agent or any Lender,
through the Administrative Agent, may from time to time reasonably request;
(3) To the Administrative Agent upon request therefor after the
occurrence and during the continuance of an Event of Default, the
Additional Required Documents in connection with any Mortgage Loan or
Warehousing Loan which has been funded with the proceeds of any Loan;
(4) To the Administrative Agent (to be forwarded by the
Administrative Agent to each of the Lenders) a copy of any 8-K statement or
S-3 registration statement filed by the Companies with the Securities and
Exchange Commission as promptly as possible after such filing; and
(5) To the Administrative Agent upon request for a Tranche A Loan
made with respect to any Warehousing Loan, (A) a copy of the warehousing
loan agreement between the Companies and the applicable sub-borrower
relating to such
31
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Warehousing Loan and, (B) upon request of the Majority Lenders, (i) a copy,
certified by an Authorized Officer of the Companies, of all UCC-1 financing
statements listing the applicable sub-borrower as debtor and the Companies
as secured party, signed by the sub-borrower and covering any collateral
being pledged under the applicable warehousing loan agreement, and (ii)
UCC-3 Financing Statements listing the Companies as assignor and the
Administrative Agent as assignee and assigning the right, title and
interest of the Companies in the personal property which has been pledged
by the applicable sub-borrower to the Companies as security for such
Warehousing Loan.
7(c) INTENTIONALLY OMITTED.
7(d) Maintenance of Existence and Properties. Maintain the corporate
---------------------------------------
existence of each of CWM, Indy Mac and ILC and obtain and maintain all rights,
privileges, licenses, approvals, franchises, properties and assets necessary or
desirable in the normal conduct of the business of the Companies, and comply
with all Contractual Obligations and Requirements of Law, except where the
failure to so comply would not have a material adverse effect on the business,
operations, assets or financial condition of the Companies, taken as a whole, or
on the Collateral. CWM will at all times remain qualified as a REIT, ILC will
at all times remain qualified as a "qualified REIT subsidiary," as defined in
the Code, and CWM will at all times own at least ninety-nine percent (99%) of
the economic interest in Indy Mac.
7(e) Inspection of Property; Books and Records; Audits.
-------------------------------------------------
(1) Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its business
and activities; and
(2) Permit: (i) representatives of the Administrative Agent, the
Collateral Agent or any Lender to a. visit and inspect any of the
-
properties of the Companies and examine and make abstracts from any of the
books and records of the Companies at any reasonable time and as often as
may reasonably be desired by the Administrative Agent, the Collateral Agent
or any Lender (but, prior to the occurrence of an Event of Default, only
upon not less than two Business Days' prior notice), and b. discuss the
-
business, operations, properties and financial and other condition of the
Companies
32
<PAGE>
with officers and employees of the Companies, and with their independent
certified public accountants, and (ii) representatives of the Collateral
Agent and the Administrative Agent to conduct periodic operational audits
of the Companies' business and operations. The expenses of the
Administrative Agent, the Collateral Agent or any Lender incurred in
connection with any visit, inspection, examination, discussion or audit
performed pursuant to this Paragraph 7(e)(2) shall be borne by such parties
incurring such expenses except as otherwise provided in Paragraph 7(g).
7(f) Notices. Promptly give written notice to the Administrative Agent
-------
(which shall promptly transmit a copy of such notice to each of the Lenders) of:
(1) The occurrence of any Potential Default or Event of Default
known to the Chief Executive Officer, President, Chief Operating Officer,
Chief Accounting Officer, Senior Vice President of Warehouse Lending or
Senior Vice President of Construction Lending, or Senior Vice President of
Secondary Marketing of CWM and the proposed method of cure thereof;
(2) Any litigation or proceeding affecting the Companies or the
Collateral which could have a material adverse effect on the Collateral or
the business, operations, property, or financial condition of the
Companies, taken as a whole; and
(3) A material adverse change known to the Chief Executive
Officer, President, Chief Operating Officer, Chief Accounting Officer,
Senior Vice President of Warehouse Lending or Senior Vice President of
Construction Lending, or Senior Vice President of Secondary Marketing of
any of the Companies in the business, operations, property or financial
condition of the Companies, taken as a whole; and
(4) Any changes in the following senior management positions of
any of the Companies: Chief Executive Officer, President, Chief Operating
Officer, Chief Accounting Officer, Senior Vice President of Warehouse
Lending, Senior Vice President of Construction Lending, or Senior Vice
President of Secondary Marketing.
7(g) Expenses. Pay all reasonable out-of-pocket costs and expenses
--------
(including reasonable fees and disbursements of
33
<PAGE>
counsel): (1) of the Administrative Agent and the Collateral Agent incident to
the preparation and negotiation of the Credit Documents, (2) of the
Administrative Agent and the Collateral Agent associated with any periodic
audits conducted pursuant to Paragraph 7(e)(2)(ii) above if such audit discloses
a material adverse change in the financial condition or operations of the
Companies, taken as a whole, and (3) of the Administrative Agent, the Collateral
Agent and each of the Lenders incident to the enforcement of payment of the
Obligations, whether by judicial proceedings or otherwise, including, without
limitation, in connection with bankruptcy, insolvency, liquidations,
reorganization, moratorium or other similar proceedings involving the Companies
or a "workout" of the Obligations. The obligations of the Companies under this
Paragraph 7(g) shall be effective and enforceable whether or not any Loan is
advanced by any Lender hereunder and shall survive payment of all other
Obligations.
7(h) Credit Documents. Comply with and observe all terms and
----------------
conditions of the Credit Documents.
7(i) Insurance. Obtain and maintain insurance with responsible
---------
companies in such amounts and against such risks as are usually carried by
corporations engaged in similar businesses similarly situated, including,
without limitation, errors and omissions coverage and fidelity coverage in form
and substance acceptable to the Administrative Agent, and furnish the
Administrative Agent on request full information as to all such insurance, and
to provide within five (5) days after receipt of such request, certificates or
other documents evidencing the renewal of each such policy.
8. Negative Covenants. Each of CWM, Indy Mac and ILC hereby agrees, and
------------------
the Companies, jointly and severally, hereby agree, that, as long as any
Obligations remain unpaid or any Lender has any obligation to make Loans
hereunder, CWM, Indy Mac and ILC, and the Companies, as applicable, shall not at
any time, directly or indirectly:
8(a) Liens. Create, incur, assume or suffer to exist, any Lien upon
-----
the Collateral except as contemplated by the Security Agreement or the Custodial
Agreement, or create, incur, assume or suffer to exist any Lien upon any of the
other property and assets of the Companies except:
(1) Liens for current taxes, assessments or other governmental
charges which are not delinquent or which remain
34
<PAGE>
payable without penalty, or the validity of which are contested in good
faith by appropriate proceedings upon stay of execution of the enforcement
thereof, provided the Companies shall have set aside on the books of the
Companies and shall maintain adequate reserves for the payment of same in
conformity with GAAP;
(2) Liens, deposits or pledges made to secure statutory
obligations, surety or appeal bonds, or bonds for the release of
attachments or for stay of execution, or to secure the performance of bids,
tenders, contracts (other than for the payment of borrowed money), leases
or for purposes of like general nature in the ordinary course of the
Companies business;
(3) Purchase money security interests for property (except
Mortgage Loans) hereafter acquired, conditional sale agreements, or other
title retention agreements, with respect to property hereafter acquired;
provided, however, that no such security interest or agreement shall affect
any servicing rights or extend to any property other than the property
acquired; and
(4) Liens securing Permitted Secured Debt (including without
limitation liens securing Indebtedness incurred pursuant to the Facility II
Agreement).
8(b) Indebtedness. Create, incur, assume or suffer to exist, or
------------
otherwise become or be liable in respect of any Indebtedness except:
(1) The Obligations;
(2) Trade debt or accounts payable incurred in the ordinary
course of business, paid within sixty (60) days after the same has become
due and payable or which is being contested in good faith, provided
provision is made to the reasonable satisfaction of the Administrative
Agent for the eventual payment thereof in the event it is found that such
contested trade debt is payable by the Companies;
(3) Indebtedness secured by Liens permitted under Paragraph 8(a)
above;
(4) Indebtedness which is unsecured;
35
<PAGE>
(5) Indebtedness incurred pursuant to repurchase and gestation
financing agreements, whether such Indebtedness is shown on the books of
the Companies as a sale or as a financing;
(6) Indebtedness which is by its terms subordinated in right of
payment to the Obligations and which is evidenced by instruments and
agreements in form and content reasonably satisfactory to the
Administrative Agent;
(7) Indebtedness attributable to collateralized mortgage
obligations of the Companies or any Affiliate thereof;
(8) Indebtedness incurred pursuant to additional financing
secured by Construction Loans (as defined in the Facility II Agreement) of
the type which serve as Collateral for the Tranche D Facility (as defined
in the Facility II Agreement); provided, however, that the Companies may
-------- -------
not enter into any such financing arrangement, nor incur additional
outstanding Indebtedness under any such existing financing arrangement, at
any time when the amount of availability under the Tranche D Facility
equals or exceeds the amount of additional Indebtedness sought to be
incurred;
(9) Permitted Other Debt; and
(10) Indebtedness not specifically referred to above but
reflected in the financial statements referred to in Paragraph 8(a) above,
and extensions, renewals, and refinancings of such Indebtedness.
8(c) Consolidation and Merger; Change of Business. (i) Liquidate or
--------------------------------------------
dissolve or enter into any consolidation or merger (provided that any of the
--------
Companies may enter into a consolidation or merger so long as (A) such Company
is the surviving entity after such consolidation or merger, and (B) such
consolidation or merger does not create a default under Paragraph 12(c)(iii)
hereof); (ii) form or enter into any partnership, joint venture, syndicate or
other combination which would have a material adverse effect on the business,
operations, assets or financial condition of the Companies taken as a whole; or
(iii) make any material change in the nature of its business as a mortgage
banker, mortgage conduit, manufactured housing lender, mortgage lender,
warehouse lender, construction lender, servicing-secured lender or servicing-
receivable lender as currently conducted or conduct any
36
<PAGE>
business other than in substantially the same fields of enterprise as currently
conducted.
8(d) Acquisitions. Purchase or acquire or incur liability for the
------------
purchase or acquisition of any or all of the assets or business of any Person
for a purchase or acquisition price in excess of $5,000,000, other than in the
normal course of business as currently conducted (it being expressly agreed and
understood that the acquisition of non-recourse servicing is a normal course of
business activity and that the acquisition of recourse servicing is not a normal
course of business activity).
8(e) Underwriting Policies; Warehousing Loan Agreements. Cause, agree
--------------------------------------------------
to, or allow any change which would have a material adverse effect on the
Lenders or their interests under this Agreement, without the prior written
consent of the Administrative Agent, in or to (i) its programs and procedures
with respect to the underwriting and purchase of Eligible A/B Mortgage Loans
which are described in the Indy Mac Seller/Servicer Guide, (ii) its programs and
procedures with respect to the underwriting and purchase of Construction-to-
Permanent Mortgage Loans, (iii) its due diligence procedures with respect to any
programs whereunder the Companies shall extend Warehousing Loans from those set
forth on Exhibit AA hereto, or (iv) its standard form loan agreement with
----------
respect to any Warehousing Loans extended by the Companies from that set forth
on Exhibit BB hereto (provided, however, that with respect to items (iii) and
---------- -------- -------
(iv) above, the Administrative Agent shall be deemed to have granted its consent
to any such proposed change if it fails to notify the Companies to the contrary
within five (5) Business Days of receiving notice from the Companies of such
proposed change). In the event that the Administrative Agent consents in writing
(or by failure to object) to a material change by the Companies in or to any of
the above-described programs, procedures or policies, the Administrative Agent
shall promptly notify the Lenders of the nature and content of such change.
8(f) Sale of Assets. Sell, lease, assign, transfer or otherwise
--------------
dispose of any of its assets (other than obsolete, no longer useful or worn out
property), whether now owned or hereafter acquired, other than in the ordinary
course of business as currently conducted and at fair market value (it being
expressly agreed and understood that the sale or other disposition of Mortgage-
Backed Securities and Mortgage Loans with or without servicing released and of
mortgage servicing rights is in the ordinary course of business).
37
<PAGE>
8(g) Indebtedness to Net Worth Ratio of CWM. Permit the ratio of (i)
--------------------------------------
the sum of (A) the Adjusted Total Indebtedness of Indy Mac and (B) the
consolidated Adjusted Total Indebtedness of CWM (as shown on the most recent
consolidated financial statements of CWM delivered to the Administrative Agent
pursuant to Paragraph 7(a)), to (ii) the sum of (A) the Book Net Worth of Indy
Mac and (B) the consolidated Book Net Worth of CWM (as shown on the most recent
consolidated financial statements of CWM delivered to the Administrative Agent
pursuant to Paragraph 7(a)), provided, however, that the sum referenced in the
-------- -------
immediately preceding subparagraph (ii) shall be reduced by the amount of equity
in earnings of Indy Mac as shown on the most recent consolidated financial
statements of CWM), on any date to be more than 10.0:1.0
8(h) Minimum Consolidated Book Net Worth of CWM. Permit the
------------------------------------------
consolidated Book Net Worth of CWM at any date (as shown on the most recent
consolidated financial statements of CWM delivered to the Administrative Agent
pursuant to Paragraph 7(a)) to be less than the greater of (i) $250,000,000 or
(ii) eighty percent (80%) of the consolidated Book Net Worth of CWM as of the
date hereof, less the amount of any qualified REIT dividends payable as of the
date hereof.
8(i) Minimum Book Net Worth of Indy Mac. Permit the Book Net Worth of
----------------------------------
Indy Mac at any date (as shown on the most recent financial statements of Indy
Mac delivered to the Administrative Agent pursuant to Paragraph 7(a)) to be less
than $5,000,000.
8(j) Minimum Master Servicing Portfolio. Without the written consent
----------------------------------
of the Majority Lenders, transfer any rights to service Mortgage Loans which
would result in the Master Servicing Portfolio at any date being less than
$4,000,000,000.00.
9. Events of Default. Upon the occurrence of any of the following events
-----------------
(an "Event of Default"):
9(a) Companies shall fail to pay (or prepay pursuant to Paragraph 3(n)
above) principal or interest on any Loan, or any fee payable to the
Administrative Agent for its own account or for the benefit of the Lenders
pursuant to Paragraph 3(t) above, when due; or
9(b) Any representation or warranty made or deemed made
38
<PAGE>
by the Companies in any Credit Document or in connection with any Credit
Document shall be inaccurate or incomplete in any material respect on or as of
the date made or deemed made; or
9(c) Either CWM, Indy Mac or ILC shall fail to maintain its corporate
existence; or
9(d) The Companies shall fail to observe or perform any other term or
provision contained in the Credit Documents and such failure shall continue for
thirty (30) days after notice of such default from the Administrative Agent to
the Companies; or
9(e) There shall exist an "Event of Default" under, and as defined in,
the Facility II Agreement; or
9(f) The Companies shall default in any payment of principal of or
interest on any Indebtedness (other than the Loans, and Indebtedness incurred
pursuant to the Facility II Agreement), in the aggregate principal amount of
$500,000 or more (and without regard for the dollar amount of the defaulted
payment), or any other event shall occur the effect of which is to permit such
Indebtedness to be declared or otherwise to become due prior to its stated
maturity; or
9(g) (1) Either CWM, Indy Mac or ILC shall commence any case,
proceeding or other action (i) relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to such Person, or seeking to adjudicate such Person a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to such
Person or its debts, or (ii) seeking appointment of a receiver, trustee,
custodian or other similar official for such Person or for all or any
substantial part of its assets, or such Person shall make a general assignment
for the benefit of its creditors; or (2) there shall be commenced against any of
CWM, Indy Mac or ILC any case, proceeding or other action of a nature referred
to in clause (1) above which (i) results in the entry of an order for relief or
any such adjudication or appointment, or (ii) remains undismissed, undischarged
or unbonded for a period of sixty (60) days; or (3) there shall be commenced
against any of CWM, Indy Mac or ILC any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or substantially all of the assets of such Person which results in
the entry of an order for any such relief which shall not have been vacated,
discharged, stayed,
39
<PAGE>
satisfied or bonded pending appeal within sixty (60) days from the entry
thereof; or (4) any of CWM, Indy Mac or ILC shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in (other than in
connection with a final settlement), any of the acts set forth in clauses (1),
(2) or (3) above; or (5) any of CWM, Indy Mac or ILC shall generally not, or
shall be unable to, or shall admit in writing its inability to pay its debts as
they become due; or
9(h) The Companies or any of their ERISA Affiliates shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (2) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan, (3) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or institution of proceedings is, in the reasonable opinion of
the Administrative Agent, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, and, in the case of a Reportable Event, the
continuance of such Reportable Event unremedied for ten days after notice of
such Reportable Event pursuant to Section 4043(a), (c) or (d) of ERISA is given
or the continuance of such proceedings for ten days after commencement thereof,
as the case may be, (4) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (5) any withdrawal liability to a Multiemployer Plan shall be
incurred by the Companies or any of their ERISA Affiliates or (6) any other
event or condition shall occur or exist; and in each case in clauses (1) through
(6) above, such event or condition, together with all other such events or
conditions, if any, is likely to subject the Companies or any of their
respective ERISA Affiliates to any tax, penalty or other liabilities in the
aggregate material in relation to the business, operations, property or
financial condition of the Companies taken as a whole;
9(i) One or more judgments or decrees in an aggregate amount in excess
of $500,000 not covered by insurance shall be entered against the Companies and
all such judgments or decrees shall not have been vacated, discharged, stayed,
satisfied or bonded pending appeal within sixty (60) days from the entry
thereof.
THEN:
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<PAGE>
(1) Automatically upon the occurrence of an Event of Default
under Paragraph 9(g) above; and
(2) At the option of any Lender upon the occurrence of an
Event of Default under Paragraph 9(a) above; and
(3) In all other cases, at the option of the Majority
Lenders,
each Lender's obligation to make Loans hereunder shall terminate and the
principal balance of outstanding Loans and interest accrued but unpaid thereon
shall become immediately due and payable, without demand upon or presentment to
the Companies, which are expressly waived by the Companies. Upon the occurrence
of any Event of Default hereunder, and promptly upon notice by the
Administrative Agent to the other Lenders, if (a) the ratio of the amount of
Loans outstanding held by any Lender to the aggregate amount of Loans
outstanding held by all Lenders at the time of determination exceeds (b) such
Lender's Percentage Share, then each Lender shall purchase or sell, as
applicable, for cash and at face value and without recourse, such participations
in the Loans made by the other Lenders as shall be necessary to cause (x) the
ratio of the amount of Loans outstanding held by any Lender to the aggregate
amount of Loans outstanding held by all Lenders at such date to equal (y) such
Lender's Percentage Share. Provided, however, that no Lender will be required
-------- -------
to purchase a participation in a Swing Line Loan which, by application of
Paragraph 2A(d)(4) above, it would not have been obligated to refund.
10. The Administrative Agent.
------------------------
10(a) Appointment. Each Lender irrevocably appoints the Administrative
-----------
Agent as the agent for such Lender under the Credit Documents and to act as
secured party, agent, bailee and custodian for the exclusive benefit of the
Lenders with respect to the Collateral, and each such Lender hereby irrevocably
authorizes the Administrative Agent as the agent for such Lender, to take such
action on its behalf under the provisions of the Credit Documents and to
exercise such powers and perform such duties as are expressly delegated thereto
by the terms of the Credit Documents, together with such other powers as are
reasonably incidental thereto including, without limitation, all powers and
duties specifically set forth in the Security Agreement or the Custodial
Agreement to be exercised and performed by the Administrative Agent. The
Administrative Agent is specifically authorized to execute and deliver on behalf
of all of the Lenders, the Security
41
<PAGE>
Agreement and the Custodial Agreement and to appoint Bankers Trust of
California, N.A. as the Collateral Agent to act on behalf of the Lenders with
respect to A/B Collateral and DEF Collateral (as those terms are defined in the
Security Agreement) as described in the Security Agreement and the Custodial
Agreement, including, without limitation, to act on behalf of the Lenders to
release Collateral pursuant to the terms of the Security Agreement and the
Custodial Agreement. The Lenders specifically authorize the Administrative Agent
to agree to indemnify the Collateral Agent from and to pay to the Collateral
Agent all costs (including, without limitation, costs incurred by Collateral
Agent as a result of any examination performed by any Lender under Paragraph 12
of the Security Agreement) as set out in the Security Agreement and to the
extent, if any, that the Companies are not required to or do not reimburse the
Administrative Agent for any such indemnification or costs, then the Lenders
will do so ratably in accordance with their Repayment Shares, unless such cost
is related to an examination by a Lender under Paragraph 12 of the Security
Agreement, in which case all such costs will be borne by the examining Lender;
provided, however, that if the Companies are not required to reimburse the
-------- -------
Administrative Agent for any such indemnification or costs due to the gross
negligence or willful misconduct of either the Collateral Agent or the
Administrative Agent, then the Lenders shall not be required to reimburse the
Administrative Agent for any such indemnification or costs. The Administrative
Agent shall have no duties or responsibilities except those expressly set forth
therein, nor any fiduciary relationship with any Lender, and no implied
covenants, responsibilities, obligations or liabilities shall be read into the
Credit Documents or otherwise exist against the Administrative Agent.
10(b) Delegation of Duties. The Administrative Agent may execute any of
--------------------
its duties under the Credit Documents by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by it with reasonable care.
10(c) Exculpatory Provisions. Neither the Administrative Agent nor any
----------------------
of its officers, directors, employees, agents, counsel, attorneys-in-fact or
Affiliates shall be (1) liable to any Lender, the Collateral Agent, or the
Companies for any action taken or omitted to be taken by it or such Person under
or in connection with the Credit Documents (except for its or such Person's own
gross negligence or willful misconduct), or (2)
42
<PAGE>
responsible in any manner to any of the Lenders, the Collateral Agent or the
Companies for: (i) any recitals, statements, representations or warranties made
by the Companies or any officer thereof contained in the Credit Documents or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, the
Credit Documents (except such as are prepared by the Administrative Agent and,
then, only to the extent the Administrative Agent is responsible for
verification of the accuracy and completeness of the information contained
therein or the facts upon which such information is based as expressly provided
herein) or for the value, validity, effectiveness, genuineness, enforceabil ity,
collectability or sufficiency of the Credit Documents or for any failure of the
Companies to perform their obligations thereunder or (ii) assuring compliance of
the Credit Documents and the transactions contemplated by the Credit Documents
with any law or regulation binding on such Person, it being expressly
acknowledged, agreed and understood that each such Person has obtained
independent advice satisfactory to it in all such respects. The Administrative
Agent shall be under no obligation to any Lender to ascertain or to inquire as
to the observance or performance of any of the agreements contained in, or
conditions of, the Credit Documents (other than agreements required to be
complied with by the Administrative Agent thereunder and subject to the
standards of care set forth herein with respect thereto) or to inspect the
properties, books or records of the Companies. The Administrative Agent shall be
entitled to refrain from exercising any discretionary powers or actions under
this Agreement or any other Credit Document until it shall have received the
prior written consent of one hundred percent (100%) of the Lenders to such
action.
10(d) Reliance by Administrative Agent. The Administrative Agent shall
--------------------------------
be entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, consent, certification, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel to the
Companies), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be
43
<PAGE>
fully justified in failing or refusing to take any action under the Credit
Documents unless it shall first receive such advice or concurrence of the
Majority Lenders (or all Lenders, as required under the Credit Documents) or it
shall first be indemnified to its satisfaction by the Lenders against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any action (other than liability and expense arising out of
the Administrative Agent's gross negligence or willful misconduct). The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under the Credit Documents in accordance with a request
of the Majority Lenders (or all Lenders, if applicable) absent gross negligence
and willful misconduct on the part of the Administrative Agent in the method in
which it acts or refrains from acting in accordance therewith, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders.
10(e) Notice of Default; Agreement to Advance. The Administrative Agent
---------------------------------------
shall be deemed to have no knowledge or notice of the occurrence of any Event of
Default or Potential Default hereunder unless the Administrative Agent has
received notice from a Lender or the Companies referring to the Credit
Documents, describing such Event of Default or Potential Default and stating
that such notice is a "notice of default". In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give notice thereof
to the Lenders and the Collateral Agent.
10(f) Non-Reliance on Administrative Agent and Other Lenders. Each
------------------------------------------------------
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the
Administrative Agent hereafter taken, including any review of the affairs of the
Companies, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender or their respective counsel, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Companies and made its own decision
to extend credit hereunder and enter into the Credit Documents. Each Lender also
represents that it will, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such
44
<PAGE>
documents, information and legal advice (including, without limitation, advice
of regulatory counsel to it) as it shall deem appropriate at the time, continue
to make its own credit analysis, appraisals and decisions in entering into the
Credit Documents and taking or not taking action thereunder, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Companies. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any legal advice or credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Companies which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10(g) Indemnification. The Companies, jointly and severally, agree to
---------------
indemnify, defend and hold harmless the Administrative Agent in its capacity as
such and each Lender from and against any and all claims, obligations,
penalties, actions, suits, judgments, reasonable costs and disbursements,
losses, liabilities and damages (including, without limitation, reasonable
attorneys' fees) of any kind whatsoever which may at any time be imposed on,
assessed against or incurred by such Person in any way resulting from any action
taken or omitted to be taken by the Companies relating to or arising out of the
Credit Documents or any documents contemplated by or referred to therein or the
transactions contemplated thereby. The Administrative Agent agrees that it will
promptly notify the Companies of any such claim, action or suit asserted or
commenced against it and that the Companies may assume the defense thereof with
counsel reasonably satisfactory to the Administrative Agent at the Companies'
sole expense, that the Administrative Agent will cooperate with the Companies on
such defense, and that the Administrative Agent will not settle any such claim,
action or suit without the consent of the Companies; provided, however, that in
-------- -------
the event the Administrative Agent is not reasonably satisfied with such
defense, the Administrative Agent may assume such defense with counsel
satisfactory to the Administrative Agent at the Companies' sole expense. The
Lenders agree to indemnify and hold harmless the Administrative Agent in its
capacity as such ratably in accordance with their Repayment Shares to the extent
required by the Companies hereunder if the Administrative Agent is not
reimbursed by the Companies hereunder and without limiting the obligation of the
Companies to do so; provided, however, that the
-------- -------
45
<PAGE>
Lenders shall not be required to indemnify the Administrative Agent under this
Paragraph 10(g) for claims, obligations, penalties, actions, suits, judgments,
costs, disbursements, losses, liabilities or damages resulting from the gross
negligence or willful misconduct of the Administrative Agent. The
indemnification obligations of the Companies and Lenders under this Paragraph
10(g) shall survive termination of this Agreement and payment in full of the
Obligations.
10(h) Administrative Agent in Its Individual Capacity. The
-----------------------------------------------
Administrative Agent and its Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Companies as though the
Administrative Agent were not the Administrative Agent hereunder. With respect
to such loans made or renewed by it and any note issued to it hereunder, the
Administrative Agent shall have the same rights and powers under the Credit
Documents as any Lender hereunder and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender" and "Lenders" shall include
the Administrative Agent in its individual capacity.
10(i) Successor Agents. The Administrative Agent may resign as such
----------------
under the Credit Documents upon ninety (90) days' prior written notice to the
other parties hereto. If the Administrative Agent shall resign, then, on or
before the effective date of such resignation, the Majority Lenders shall
appoint a successor agent reasonably acceptable to the Companies or, if the
Majority Lenders are unable to agree on the appointment of a successor agent,
the Administrative Agent shall appoint a successor agent for the Lenders, which
successor agent shall be reasonably acceptable to the Companies, whereupon such
successor agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon its appointment, and the former Administrative
Agent's rights, powers and duties shall be terminated without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any of the other Credit Documents or successors
thereto. After the Administrative Agent's resignation hereunder, the provisions
of this Paragraph 10(i) shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the Credit
Documents.
10(j) Authority to Execute Security Agreement. The Lenders hereby
---------------------------------------
authorize the Administrative Agent to execute the Security Agreement in its
capacity as agent for each of the
46
<PAGE>
Lenders on behalf of the Lenders, and the Lenders specifically consent to the
terms thereof, including without limitation the appointment of the Collateral
Agent as set forth therein pursuant to the terms contained therein, and the
authority of the Collateral Agent to administer the Collateral pursuant to the
terms thereof. The Lenders hereby agree to be bound by all provisions of the
Security Agreement which may be applicable to the Lenders, including without
limitation any indemnification provisions running from the Lenders or any of
them to the Collateral Agent contained therein.
10(k) Authority to Execute Custodial Agreement. The Lenders hereby
----------------------------------------
authorize Administrative Agent to execute the Custodial Agreement in its
capacity as agent for each of the Lenders on behalf of the Lenders, and the
Lenders specifically consent to the terms thereof, including without limitation
the authority of the Collateral Agent to administer the Collateral pursuant to
the terms thereof. The Lenders hereby agree to be bound by all provisions of
the Custodial Agreement which may be applicable to the Lenders, including
without limitation any indemnification provisions running from the Lenders or
any of them to the Collateral Agent or the Administrative Agent contained
therein.
10(l) Sharing of Set-Offs. If any Lender (a "benefitted Lender") shall
-------------------
at any time receive any payment of all or part of the Obligations held by it or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off or otherwise), except pursuant to Paragraph 3(c) or (d) above or
Paragraph 11(i) below, in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's portion of the Obligations, or interest thereon, such benefitted Lender
shall purchase for cash from the other Lenders such portion of each such other
Lender's Obligations, or shall provide such other Lenders with the benefits of
such collateral, or the proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, however, that if all or any
portion of such excess payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery but without interest. The
Companies agree that each Lender so purchasing a portion of another's
Obligations may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if
47
<PAGE>
such Lender were the direct holder of such portion.
11. Miscellaneous Provisions.
------------------------
11(a) No Assignment by Companies. The Companies may not assign their
--------------------------
rights or obligations under this Agreement without the prior written consent of
one hundred percent (100%) of the Lenders. Subject to the foregoing, all
provisions contained in this Agreement or any document or agreement referred to
herein or relating hereto shall inure to the benefit of each Lender, its
successors and assigns, and shall be binding upon the Companies, their
successors and assigns.
11(b) Amendment. This Agreement may be amended by the Administrative
---------
Agent, an assigning Lender and the party accepting the assignment solely in
order to reflect an assignment under Paragraph 11(i) hereof. Except as set forth
in the preceding sentence, neither this Agreement nor any of the other Credit
Documents may be amended or terms or provisions hereof or thereof waived unless
such amendment or waiver is in writing and signed by the Majority Lenders and
the Companies; provided, however, that without the prior written consent of one
hundred percent (100%) of the Lenders and the Companies, no amendment or waiver
shall:
(1) Waive or amend any term or provision of Paragraphs 3(c),
3(d), 3(f), 3(g), 10(g) or 10(l) above or this Paragraph 11(b);
(2) Waive or amend the definition of Eligible A/B Mortgage Loan,
Warehousing Loan, Unit Collateral Value, Tranche A Borrowing Base, Tranche
B Borrowing Base, Collateral Value of the Tranche A Borrowing Base, or
Collateral Value of the Tranche B Borrowing Base;
(3) Reduce the principal of, or rate of interest on, the Loans or
reduce any fees payable hereunder or extend the required payment dates of
any of the Obligations;
(4) Except as expressly provided for hereunder, modify the
Aggregate Tranche A Credit Limit or the Aggregate Tranche B Credit Limit;
(5) Modify any Lender's Maximum Commitment;
(6) Modify the definition of "Majority Lenders", "Percentage
Share", or "Repayment Share";
48
<PAGE>
(7) Extend the Maturity Date;
(8) Release any Collateral except as expressly permitted under
the Credit Documents; or
(9) Modify any provision in the Credit Documents which expressly
requires consent of one hundred percent (100%) of the Lenders.
In addition, no amendment or waiver shall, unless agreed to in writing by the
affected Agent, modify the rights or duties of such Agent. It is expressly
agreed and understood that the failure by the required Lenders to elect to
accelerate amounts outstanding hereunder or to terminate the obligation of the
Lenders to make Loans hereunder shall not constitute an amendment or waiver of
any term or provision of this Agreement.
11(c) Cumulative Rights; No Waiver. The rights, powers and remedies of
----------------------------
the Administrative Agent, the Collateral Agent, and the Lenders under the Credit
Documents are cumulative and in addition to all rights, powers and remedies
provided under any and all agreements among the Companies and the Administrative
Agent, the Collateral Agent and the Lenders relating hereto, at law, in equity
or otherwise. Any delay or failure by the Administrative Agent, the Collateral
Agent or the Lenders to exercise any right, power or remedy shall not constitute
a waiver thereof by the Administrative Agent, the Collateral Agent and the
Lenders, and no single or partial exercise by the Administrative Agent, the
Collateral Agent, and the Lenders of any right, power or remedy shall preclude
other or further exercise thereof or any exercise of any other rights, powers or
remedies.
11(d) Entire Agreement. This Agreement, the documents and agreements
----------------
referred to herein and that certain letter agreement among the Administrative
Agent and the Companies dated as of February 17, 1995, embody the entire
agreement and understanding between the parties hereto and supersede all prior
agreements and understandings relating to the subject matter hereof and thereof,
except that any Liens granted pursuant to any prior agreements shall not be
impaired and shall continue in full force and effect.
11(e) Survival. All representations, warranties, covenants and
--------
agreements on the part of the Companies contained in the Credit Documents shall
survive the termination of this
49
<PAGE>
Agreement and shall be effective until the Obligations are paid and performed in
full or longer as expressly provided herein.
11(f) Notices. All notices given by any party to the others under the
-------
Credit Documents shall be in writing unless otherwise provided for herein,
delivered personally or by depositing the same in the United States mail,
registered, with postage prepaid, addressed to the party at the address set
forth on Schedule II set forth in the Addendum, or by facsimile addressed to the
-----------
party at the number set forth on Schedule II set forth in the Addendum. Any
-----------
party may change the address to which notices are to be sent by notice of such
change to each other party given as provided herein. Such notices shall be
effective on the date received or, if mailed, on the third Business Day
following the date mailed.
11(g) Governing Law/Waiver of Jury Trial. This Agreement shall be
----------------------------------
governed by and construed in accordance with the laws of the State of North
Carolina. TO THE EXTENT PERMITTED BY LAW, THE COMPANIES HEREBY JOINTLY AND
SEVERALLY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE CREDIT DOCUMENTS. THIS PROVISION
IS A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS ENTERING INTO THE CREDIT
DOCUMENTS.
11(h) Sub-Participation by Lenders. Any Lender may at any time sell to
----------------------------
one or more financial institutions (each of such financial institutions being
herein called a "Participant") participating interests in any of the Obligations
held by such Lender and its commitments hereunder; provided, however, that:
(1) No participation contemplated by this Paragraph 11(h) shall
relieve such Lender from its obligations hereunder or under any other
Credit Document;
(2) Such Lender shall remain solely responsible for the
performance of such obligations;
(3) The Companies, the Administrative Agent, the Collateral Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under the
Credit Documents; and
(4) The participation agreement between such
50
<PAGE>
Lender and the Participant shall provide that the sole voting rights of the
Participant are with respect to those items on which such Lender is
entitled to vote pursuant to Paragraphs 11(b)(3), 11(b)(7) and 11(b)(8)
above or any vote to amend Paragraph 11(b).
11(i) Assignments by Lenders. Any Lender may assign all or any part of
----------------------
such Lender's Maximum Commitment, subject to the consent of the Companies, which
consent shall not be unreasonably withheld, to any other Lender or to any other
party not a party to this Agreement as of the date hereof; provided, however,
that (x) the accepting Lender or other accepting party shall be a financial
institution with capital of at least $100,000,000, (y) the accepting Lender's or
other accepting party's Maximum Commitment shall be no less than $5,000,000, and
(z) the assigning Lender's Maximum Commitment after such assignment shall be no
less than $10,000,000; except that any Lender may at any time pledge or assign
all or any portion of such Lender's rights under this Agreement and the other
Credit Documents to a Federal Reserve Bank. Any assignment hereunder shall be in
form and content approved by the Administrative Agent which such approval shall
not be unreasonably withheld. Upon any such assignment (i) this Agreement will
be amended by the parties hereto and by the party receiving the assignment to
reflect such assignment, (ii) the Administrative Agent will deliver an updated
Commitment Schedule to the Companies and the Lenders reflecting such assignment,
(iii) the outstanding Loans will be reallocated among the Lenders (including the
party receiving the assignment) in accordance with such updated Commitment
Schedule, and (iv) if the party receiving the assignment is not currently a
party to the Agreement, the Companies will deliver a Note to such party.
11(j) Addition of New Lender. The Company may at any time propose that
----------------------
a financial institution become an additional Lender hereunder other than by
assignment of the Maximum Commitment of an existing Lender; provided, however,
that such additional party shall be a financial institution with capital of at
least $100,000,000 and shall be subject to the consent of the Administrative
Agent, which consent shall not be unreasonably withheld. Upon the addition of
any such party as an additional Lender hereunder, (i) this Agreement will be
amended by the parties hereto and by the party becoming an additional Lender
hereunder to reflect the addition of such party as a Lender hereunder, (ii) the
Administrative Agent will deliver an updated Commitment Schedule to the
Companies and the Lenders reflecting the addition of such party as a Lender,
(iii) the outstanding
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<PAGE>
Loans will be reallocated among the Lenders (including the additional Lender) in
accordance with such updated Commitment Schedule, and (iv) the Companies will
deliver a Note to such party.
11(k) Counterparts. This Agreement and the other Credit Documents may
------------
be executed in any number of counterparts, all of which together shall
constitute one agreement.
11(l) Adjustment of Borrowing Base.
----------------------------
(1) On any date on which the sum of (i) the Aggregate Unit
Collateral Values of all Eligible A/B Mortgage Loans included in the
Tranche A Borrowing Base or the Tranche B Borrowing Base which are of the
type described in the last paragraph of the definition of "Eligible A/B
Mortgage Loan" (it being understood that for the purpose of this provision,
the terms "Eligible A/B Mortgage Loans," "Tranche A Borrowing Base" and
"Tranche B Borrowing Base" shall mean both such terms as defined herein and
---- ---
such terms as defined in the Facility II Agreement), (ii) the Collateral
Value of the Tranche D Borrowing Base attributable to Construction Loans of
the type described in the second proviso to the definition of "Construction
Loan" (or, if any such Construction Loan is nonconforming solely due to the
sales price or construction cost of any single-family tract home to be
constructed in connection therewith, the sales price or construction cost
of such home), (iii) the Collateral Value of the Tranche E Borrowing Base
attributable to Servicing Loans of the type described in the proviso to the
definition of "Servicing Loan", and (iv) the Collateral Value of the
Tranche F Borrowing Base attributable to Foreclosure/Repurchase Loans of
the type described in the proviso to the definition of
"Foreclosure/Repurchase Loan," (collectively, the "Non-conforming
Collateral Amount") (it being understood that for the purposes of this
Paragraph 11(l), the terms "Collateral Value of the Tranche D Borrowing
Base," "Collateral Value of the Tranche E Borrowing Base," "Collateral
Value of the Tranche F Borrowing Base," "Construction Loan," "Servicing
Loan" and "Foreclosure/Repurchase Loan" shall have the meanings given such
terms in the Facility II Agreement) exceeds $20,000,000, the Administrative
Agent, after consultation with the Companies, shall make such adjustments
to the Tranche A Borrowing Base and the Tranche B Borrowing Base, and shall
remove Collateral from the computation of some or all of such Borrowing
Bases, as may be necessary to cause the Non-
52
<PAGE>
Conforming Collateral Amount to be less than or equal to $20,000,000.
(2) On any date on which the Collateral Value of the Tranche A
Borrowing Base attributable to Warehousing Loans (it being understood that
for the purpose of this provision, the terms "Warehousing Loans" and
"Collateral Value of the Tranche A Borrowing Base" shall mean both such
terms as defined herein and such terms as defined in the Facility II
Agreement) (collectively, the "Warehousing Collateral Amount") exceeds
$150,000,000, the Administrative Agent, after consultation with the
Companies, shall made such adjustments to the Tranche A Borrowing Base, and
shall remove Warehousing Loans from the computation of the Tranche A
Borrowing Base, as may be necessary to cause the Warehousing Collateral
Amount to be less than or equal to $150,000,000.
11(m) Co-Agents. The Co-Agents shall have no agency duties or
---------
obligations under this Agreement or any of the other Credit Documents.
12. Definitions. For purposes of this Agreement, the terms set forth
-----------
below shall have the following meanings:
"Addendum" shall mean the Amended and Restated Addendum of Schedules and
--------
Exhibits attached to this Agreement and incorporated herein by reference, such
Addendum to be considered to be a part of this Agreement for all purposes.
"Additional Required Documents" shall mean, with respect to any Loan, those
-----------------------------
items described on Exhibit E set forth in the Addendum.
---------
"Adjusted Total Indebtedness", as to any Person, shall mean the
---------------------------
consolidated Indebtedness of such Person less the amount of such Indebtedness
----
attributable to collateralized mortgage obligations of such Person.
"Administrative Agent" shall have the meaning given such term in the
--------------------
introductory paragraph hereof.
"Affiliate" shall mean, as to any Person, any other Person directly or
---------
indirectly controlling, controlled by or under direct or indirect common control
with, such Person. "Control" as used herein means the power to direct the
management and policies of such Person.
53
<PAGE>
"Agent" shall mean either of the Administrative Agent or the Collateral
-----
Agent, as the context may require, and "Agents" shall mean both of the
Administrative Agent and the Collateral Agent.
"Aggregate Facility Commitment" shall mean, at any time, the sum of the
-----------------------------
Lenders' Maximum Commitments at such time; provided that such sum shall not
-------- ----
exceed $250,000,000 at any time.
"Aggregate Tranche A Credit Limit" shall mean, at any time, one hundred
--------------------------------
percent (100%) of the Aggregate Facility Commitment at such time.
"Aggregate Tranche B Credit Limit" shall mean, at any time, one hundred
--------------------------------
percent (100%) of the Aggregate Facility Commitment at such time.
"Agreement" shall mean this Agreement, as the same may be amended, extended
---------
or replaced from time to time.
"Applicable Corporate Rate" shall mean, with respect to any Corporate Rate
-------------------------
Loan, the Corporate Rate plus the Applicable Spread.
"Applicable Eurodollar Rate" shall mean, with respect to any Eurodollar
--------------------------
Loan for the Interest Period applicable to such Eurodollar Loan, the rate per
annum (rounded upward, if necessary, to the next higher 1/1000 of one percent
(.001%)) calculated in accordance with the following formula:
ER +
---------
Applicable Eurodollar Rate = 1-ERP AS
where
ER = Eurodollar Rate
ERP = Eurodollar Reserve Percentage
AS = Applicable Spread
"Applicable Spread" shall mean (i) with respect to any Tranche A Loan,
-----------------
six-tenths of one percent (0.6%); and (ii) with respect to any Tranche B Loan,
six-tenths of one percent (0.6%).
"Approved Investor" shall mean any Person pre-approved (which pre-approval
-----------------
may be limited in dollar amounts by type and otherwise) by the Majority Lenders
(including those shown on Schedule
--------
54
<PAGE>
III set forth in the Addendum) and which approval has not been revoked by the
---
Majority Lenders (such revocation to be effective on the tenth Business Day
following notice thereof given to the Companies by the Administrative Agent in
writing); provided, that the Administrative Agent shall notify the Lenders in
--------
writing of any proposed additional Approved Investor and such proposed Approved
Investor shall be deemed to have been pre-approved five (5) Business Days after
such notice has been given, unless the Majority Lenders shall have notified the
Administrative Agent prior to such date that such proposed Approved Investor is
not approved.
"Approved Repo Lender" shall mean any Approved Investor or any other entity
--------------------
pre-approved by the Majority Lenders (including those shown on Schedule III set
------------
forth in the Addendum) and which approval has not been revoked by the Majority
Lenders (such revocation to be effective on the tenth Business Day following
notice thereof given to the Companies by the Administrative Agent in writing);
provided, that the Administrative Agent shall notify the Lenders in writing of
--------
any proposed additional Approved Repo Lender and such proposed Approved Repo
Lender shall be deemed to have been pre-approved five (5) Business Days after
such notice has been given, unless the Majority Lenders shall have notified the
Administrative Agent prior to such date that such proposed Approved Repo Lender
is not approved.
"Authorized Officers" shall mean, with respect to the Companies, any of the
-------------------
officers set forth on Schedule IV set forth in the Addendum.
-----------
"Book Net Worth", as to any Person, shall mean the excess of consolidated
--------------
total assets of such Person over consolidated total liabilities of such Person,
each as determined in accordance with GAAP.
"Borrowing Base" shall mean the Tranche A Borrowing Base or the Tranche B
--------------
Borrowing Base, as the context may require, and "Borrowing Bases" shall mean,
---------------
collectively, the Tranche A Borrowing Base and the Tranche B Borrowing Base.
"Borrowing Base Schedule" shall mean a schedule prepared by Collateral
-----------------------
Agent and certified to by the Companies in the form of that set forth as Exhibit
-------
F-1 in the Addendum.
---
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
------------
on which banks in Charlotte, North Carolina or Los
55
<PAGE>
Angeles, California are authorized or obligated to close their regular banking
business.
"Capitalized Lease Obligations" of any Person shall mean the obligations of
-----------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Co-Agent" shall mean any of The Bank of New York, Guaranty Federal Bank
--------
F.S.B. or NationsBank of Texas, N.A., and "Co-Agents" shall mean all of such
Lenders collectively.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Collateral" shall mean the "A/B Collateral" as such term is defined in
----------
the Security Agreement.
"Collateral Agent" shall mean Bankers Trust Company of California, N.A., a
----------------
national banking association, or such other Person which may be designated as
such in accordance with the terms of the Credit Documents.
"Collateral Value of the Tranche A Borrowing Base" shall mean at any date
------------------------------------------------
the sum of (i) the sum of the Unit Collateral Values of all Eligible A/B
Mortgage Loans included in the Tranche A Borrowing Base at such date (including
Eligible A/B Mortgage Loans shipped into pools supporting Mortgage Backed
Securities pending sale of such Mortgage Backed Securities and delivery of the
sale proceeds thereof to the Settlement Account) (which amount shall be subject
to adjustment as provided in Paragraph 11(l) above); plus (ii) the product of
(A) the aggregate outstanding principal balance of those Warehousing Loans made
by the Companies to sub-borrowers and included in the Tranche A Borrowing Base
at such date which are less than thirty (30) days delinquent multiplied by (B)
ninety-eight percent (98%).
"Collateral Value of the Tranche B Borrowing Base" shall mean at any date
------------------------------------------------
the sum of the Unit Collateral Values of all Eligible A/B Mortgage Loans
included in the Tranche B Borrowing Base at such date (which amount shall be
subject to adjustment as provided
56
<PAGE>
in Paragraph 11(l) above).
"Commitment Schedule" shall mean a schedule in the form provided by the
-------------------
Administrative Agent, with the initial Commitment Schedule being set forth as
Schedule I-1 in the Addendum.
------------
"Commonly Controlled Entity" of a Person shall mean a Person, whether or
--------------------------
not incorporated, which is under common control with such Person within the
meaning of Section 414(c) of the Internal Revenue Code.
"Companies" shall have the meaning given such term in the introductory
---------
paragraph hereof.
"Construction-to-Permanent Mortgage Loan" shall mean a Mortgage Loan made
---------------------------------------
to an Obligor to finance the construction of a single family residence, which
Mortgage Loan converts from a construction loan to a permanent loan upon
completion of the construction of such improvements, and which Mortgage Loan
shall conform to the underwriting guidelines of the Companies for Construction-
to-Permanent Mortgage Loans.
"Contact Office" shall mean the office of the Administrative Agent at One
--------------
First Union Center, 301 South College Street, Charlotte, North Carolina 28288.
"Contractual Obligation" as to any Person shall mean any provision of any
----------------------
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Corporate Rate" shall mean, for any day, a fluctuating interest rate per
--------------
annum equal to the weekly average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers for each seven-day period ending on Wednesday of each week which
includes such day, as published in Statistical Release H.15 by the Federal
Reserve System, or, if such rate is not so published for any week, 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 the Administrative Agent.
"Corporate Rate Loan" shall mean a Tranche A Corporate Rate Loan, a Tranche
-------------------
B Corporate Rate Loan or a Swing Line Loan, as applicable.
57
<PAGE>
"Corporate Rate Loans" shall mean, collectively, Tranche A Corporate Rate
--------------------
Loans, Tranche B Corporate Rate Loans and Swing Line Loans.
"Covenant Compliance Certificate" shall mean a certificate in the form set
-------------------------------
forth as Exhibit G in the Addendum.
---------
"Credit Documents" shall mean this Agreement, the Security Agreement, the
----------------
Custodial Agreement, the Notes and each other document, instrument and agreement
executed by the Companies in connection herewith, as any of the same may be
amended, extended or replaced from time to time.
"Custodial Agreement" shall have the meaning given such term in Paragraph
-------------------
4(b) above, as the same may be amended, extended or replaced from time to time.
"CWM" shall mean CWM Mortgage Holdings, Inc., a Delaware corporation.
---
"Delinquency Report" shall mean a report substantially in the form set
------------------
forth as Exhibit M in the Addendum.
---------
"Eligible A/B Mortgage Loan" shall mean a Mortgage Loan with respect to
--------------------------
which each of the following statements shall be accurate and complete (and the
Companies by confirming the inclusion of such Mortgage Loan in any computation
of the Collateral Value of the Tranche A Borrowing Base or the Collateral Value
of the Tranche B Borrowing Base shall be deemed to so represent and warrant to
the Administrative Agent and the Lenders at and as of the date of such
computation):
(a) Said Mortgage Loan is a binding and valid obligation of the
Obligor thereon, in full force and effect and enforceable in accordance with its
terms, subject to the effect of applicable bankruptcy and other similar laws
affecting the rights of creditors generally and the effect of equitable
principles whether applied in an action at law or a suit in equity.
(b) Said Mortgage Loan is genuine in all respects as appearing on its
face and as represented in the books and records of the Companies and all
information set forth therein is true and correct.
(c) Said Mortgage Loan is free of any default of any
58
<PAGE>
party thereto (including the Companies), other than as expressly permitted
pursuant to subparagraph (d) below, counterclaims, offsets and defenses and from
any rescission, cancellation or avoidance, whether by operation of law or
otherwise.
(d) No payment under said Mortgage Loan is more than sixty (60) days
past due the payment due date set forth in the underlying promissory note and
deed of trust (or mortgage); provided, however, that a Mortgage Loan which is
-------- -------
more than sixty (60) days delinquent may be an Eligible A/B Mortgage Loan and
may be included in the Tranche B Borrowing Base so long as the Unit Collateral
Value of said Mortgage Loan, when added to the Unit Collateral Values of all
other Mortgage Loans included in the Tranche B Borrowing Base which are more
than sixty (60) days delinquent, does not exceed five percent (5%) of the
Collateral Value of the Tranche B Borrowing Base (including the Collateral Value
of Mortgage Loans more than 60 days past due included or to be included in the
Tranche B Borrowing Base).
(e) Said Mortgage Loan contains the entire agreement of the parties
thereto with respect to the subject matter thereof, has not been modified or
amended in any material respect and is free of concessions or understandings
with the Obligor thereon of any kind not expressed in writing therein.
(f) Said Mortgage Loan complies in all material respects as required
by and in accordance with all applicable laws and regulations governing the
same, including, without limitation, the federal Consumer Credit Protection Act
and the regulations promulgated thereunder and all applicable usury laws and
restrictions, and all notices, disclosures and other statements or information
required by law or regulation to be given, and any other act required by law or
regulation to be performed, in connection with said Mortgage Loan have been
given and performed substantially as required.
(g) All advance payments and other deposits on said Mortgage Loan have
been paid in cash, and no part of said sums has been loaned, directly or
indirectly, by the Companies to the Obligor and there have been no prepayments
on account of said Mortgage Loan except as disclosed to the Collateral Agent.
(h) At all times said Mortgage Loan will be free and clear of all
Liens, except in favor of the Collateral Agent for the benefit of the Lenders.
59
<PAGE>
(i) The Property covered by said Mortgage Loan is insured against loss
or damage by fire and all other hazards normally included within standard
extended coverage in accordance with the provisions of said Mortgage Loan.
(j) The Property covered by said Mortgage Loan is free and clear of
all Liens except of the Companies subject only to (1) the Lien of current real
property taxes and assessments not yet delinquent; (2) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record,
as of the date of recording, as are acceptable to mortgage lending institutions
generally and specifically referred to in a lender's title insurance policy
delivered to the originator of the Mortgage Loan and (i) referred to or
otherwise considered in the appraisal made for the originator of the Mortgage
Loan or (ii) which do not materially adversely affect the appraised value of the
Property as set forth in such appraisal; (3) other matters to which like
properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage Loan or the
use, enjoyment, value or marketability of the related Property; and (4) Liens
subordinate in priority to the Lien in favor of the Companies; provided,
--------
however, that such Property may be subject to one (1) Lien prior to the Lien in
-------
favor of the Companies so long as, if said Mortgage Loan is included in the
Tranche B Borrowing Base, the Unit Collateral Value of said Mortgage Loan, when
added to the Unit Collateral Values of all other Mortgage Loans included in the
Tranche B Borrowing Base with respect to which the underlying Property is
subject to one (1) Lien prior to the Lien in favor of the Companies, does not
exceed twenty-five percent (25%) of the aggregate outstanding principal amount
of all Tranche B Loans at such time.
(k) If said Mortgage Loan has been withdrawn from the possession of
the Collateral Agent, and (1) shipped by the Collateral Agent to the Companies
for purposes of correcting clerical or other nonsubstantive documentation
problems pursuant to a trust receipt, or (2) shipped by the Collateral Agent
directly to a permanent investor for purchase, or (3) shipped by the Collateral
Agent directly to a custodian for purposes of formation of a pool supporting a
Mortgage-Backed Security, such shipment shall in all aspects conform to the
requirements of Section 5 of the Custodial Agreement in form, aggregate number
of Mortgage Loans permitted to be shipped, and amount of time such Mortgage
Loans may remain withdrawn from Collateral Agent's possession.
60
<PAGE>
(l) If such Mortgage Loan was originated by the Companies, the date of
the underlying promissory note is no earlier than (i) if such Mortgage Loan is
included in the Tranche A Borrowing Base, forty-five (45) days prior to the date
said Mortgage Loan is first submitted to the Collateral Agent, (ii) if such
Mortgage Loan is included in the Tranche B Borrowing Base and has not previously
been included in the Tranche A Borrowing Base, forty-five (45) days prior to the
date said Mortgage Loan is first submitted to the Collateral Agent, and (iii) if
such Mortgage Loan is included in the Tranche B Borrowing Base and was
previously included in the Tranche A Borrowing Base, one hundred sixty-five
(165) days prior to the date said Mortgage Loan is first submitted to the
Collateral Agent for inclusion in the Tranche B Borrowing Base (provided,
--------
however, that for the purpose hereof, the phrases "Tranche A Borrowing Base" and
-------
"Tranche B Borrowing Base" shall be deemed to mean both such terms as defined in
this Agreement and as defined in the Facility II Agreement).
---
(m) If such Mortgage Loan was acquired by the Companies, such Mortgage
Loan was included in the Tranche A Borrowing Base within forty-five (45) days of
the acquisition of such Mortgage Loan (provided, however, that for the purpose
-------- -------
hereof, the phrase "Tranche A Borrowing Base" shall be deemed to mean such term
as defined in this Agreement and as defined in the Facility II Agreement).
---
(n) The improvements on the Property were not constructed with the
proceeds of the Mortgage Loan and consist of a completed one-to-four unit single
family residence, including but not limited to a condominium, planned unit
development, a townhouse or a co-op; provided, however, that a Mortgage Loan,
-------- -------
the proceeds of which were used to construct the improvements on the Property
relating thereto, may be an Eligible A/B Mortgage Loan and may be included in
the Tranche B Borrowing Base so long as (i) it is a Construction-to-Permanent
Mortgage Loan and (ii) the Unit Collateral Value of said Construction-to-
Permanent Mortgage Loan, when added to the Unit Collateral Values of all other
Construction-to-Permanent Mortgage Loans included in the Tranche B Borrowing
Base, does not exceed the greater of (i) twenty percent (20%) of the Aggregate
Tranche B Credit Limit, or (ii) forty percent (40%) of the Collateral Value of
the Tranche B Borrowing Base (including the Collateral Value of Construction-to-
Permanent Loans included or to be included in the Tranche B Borrowing Base).
(o) There has been delivered to the Collateral Agent the Required
Documents for said Mortgage Loan; provided, however,
-------- -------
61
<PAGE>
that a Mortgage Loan, the Required Documents for which have not been delivered
to the Collateral Agent, may be an Eligible A/B Mortgage Loan and may be
included in the Tranche A Borrowing Base or in the Tranche B Borrowing Base so
long as (i) such Mortgage Loan meets the requirements set forth for a "Wet
Mortgage Loan" as defined in and pursuant to Section 3.3 of the Custodial
Agreement, including the ultimate delivery of the Required Documents in
connection therewith to the Collateral Agent within the time specified in such
Section 3.3; and (ii) the Unit Collateral Value of said Mortgage Loan, when
added to the Unit Collateral Value of all other Mortgage Loans included in the
Tranche A Borrowing Base or the Tranche B Borrowing Base which are "Wet Mortgage
Loans" under the Custodial Agreement, does not exceed twenty percent (20%) of
the aggregate outstanding principal amount of all Tranche A Loans and Tranche B
Loans at such time.
(p) The servicing rights relating to said Mortgage Loan are not
subject to any Lien, claim, interest or negative pledge in favor of any Person
other than as permitted hereunder.
(q) INTENTIONALLY OMITTED.
(r) Said Mortgage Loan has not previously been delivered to the
Collateral Agent, then shipped to an investor or certifying custodian and
returned to the Collateral Agent on account of a deficiency or impairment of
such Mortgage Loan which would cause such Mortgage Loan to be unsuitable for
purchase at a price customarily obtainable for Mortgage Loans meeting the
requirements set forth in the Indy Mac Seller/Servicer Guide or inclusion in a
pool containing other Mortgage Loans generally conforming to the requirements
set forth in the Indy Mac Seller/Servicer Guide.
(s) The Companies or other originator of such Mortgage Loan obtained
such appraisal in connection with the origination of said Mortgage Loan as would
satisfy all appraisal requirements for said Mortgage Loan if such had been
originated by a federally insured depositary institution.
(t) Said Mortgage Loan is covered by a Take-Out Commitment or a
Hedging Arrangement which is in full force and effect on the date such Mortgage
Loan was closed and continues to be so covered, and the Companies and the
Mortgage Loan are in full compliance therewith (provided, however, that said
-------- -------
Mortgage Loan need not be covered by a Take-Out Commitment or a Hedging
Arrangement if said Mortgage Loan is included in the Tranche B Borrowing
62
<PAGE>
Base or if the Administrative Agent in its sole discretion determines that such
Mortgage Loan is not subject to material interest rate risk exposure); and
(u) Said Mortgage Loan has been underwritten and purchased pursuant to
the programs and procedures set forth in the Indy Mac Seller/Servicer Guide.
In determining the eligibility set forth above of any Mortgage Loan, any of the
requirements for eligibility set forth above may be waived by the Administrative
Agent in its sole discretion upon request for such waiver by the Companies prior
to the delivery of such Mortgage Loan to the Collateral Agent with notice of
such waiver to be given to all Lenders in the next collateral report provided to
the Lenders pursuant to Paragraph 7 of the Security Agreement if such waiver is
in force on the date of such collateral report; provided, however, that the Unit
-------- -------
Collateral Value of any Mortgage Loan approved by the Administrative Agent as an
Eligible A/B Mortgage Loan pursuant to such a waiver, when added to (i) the
Aggregate Unit Collateral Values of all other Eligible A/B Mortgage Loans
included in the Tranche A Borrowing Base or the Tranche B Borrowing Base which
have been approved by the Administrative Agent pursuant to such a waiver, (ii)
the Collateral Value of the Tranche D Borrowing Base attributable to
Construction Loans of the type discussed in the second proviso to the definition
of "Construction Loan" (or, if any such Construction Loan is nonconforming
solely due to the sales price or construction cost of any single-family tract
home to be constructed in connection therewith, the sales price or construction
cost of such home), (iii) the Collateral Value of the Tranche E Borrowing Base
attributable to Servicing Loans of the type described in the proviso to the
definition of "Servicing Loan, and (iv) the Collateral Value of the Tranche F
Borrowing Base attributable to Foreclosure/Repurchase Loans of the type
described in the proviso to the definition of "Foreclosure/Repurchase Loan,"
does not exceed $20,000,000.00 (it being understood that for the purpose of this
proviso, (A) the terms "Tranche A Borrowing Base" and "Tranche B Borrowing Base"
shall mean both such terms as defined herein and such terms as defined in the
---- ---
Facility II Agreement, and (B) the terms "Collateral Value of the Tranche D
Borrowing Base," "Collateral Value of the Tranche E Borrowing Base," "Collateral
Value of the Tranche F Borrowing Base," "Construction Loans," "Servicing Loans,"
and "Foreclosure/Repurchase Loans" shall have the meanings given to such terms
in the Facility II Agreement), and further provided, that the Unit Collateral
------- --------
Value of any Mortgage Loan approved by the Administra-
63
<PAGE>
tive Agent as an Eligible A/B Mortgage Loan pursuant to such a waiver, when
added to the Aggregate Unit Collateral Values of all other Eligible A/B Mortgage
Loans included in the Tranche A Borrowing Base or the Tranche B Borrowing Base
which have been approved by the Administrative Agent pursuant to such a waiver,
does not exceed twenty percent (20%) of the Aggregate Tranche A Credit Limit (it
being understood that for the purposes of this provision, the terms "Aggregate
Tranche A Credit Limit," "Tranche A Borrowing Base," "Tranche B Borrowing Base,"
"Tranche A Loans" and "Tranche B Loan" shall mean both such terms as defined
----
herein and such terms as defined in the Facility II Agreement).
---
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
the same may from time to time be supplemented or amended.
"ERISA Affiliate" shall mean, with respect to any Person, any trade or
---------------
business (whether or not incorporated) that is a member of the group of which
such Person is a member and which is treated as a single employer under Section
414 of the Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder in effect from time to time.
"Eurodollar Business Day" shall mean a Business Day upon which commercial
-----------------------
banks in London, England and New York, New York are open for domestic and
international business (including dealings in United States dollars).
"Eurodollar Loan" shall mean a Tranche A Eurodollar Loan or a Tranche B
---------------
Eurodollar Loan, as applicable.
"Eurodollar Loans" shall mean, collectively, Tranche A Eurodollar Loans and
----------------
Tranche B Eurodollar Loans.
"Eurodollar Rate" shall mean, with respect to any Eurodollar Loan for the
---------------
Interest Period applicable to such Eurodollar Loan, the arithmetic average of
the rates at which deposits in immediately available U.S. dollars in an amount
equal to the aggregate amount of Eurodollar Loans proposed to be subject to such
rates having a maturity approximately equal to such Interest Period are offered
to or by reference banks in the London interbank market, as determined by the
Administrative Agent by reference to page 3750 or 4833, as applicable, of the
Telerate Systems Incorporated screen service as of 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such Interest Period.
64
<PAGE>
"Eurodollar Reserve Percentage" shall mean for any day, that percentage
-----------------------------
expressed as a decimal, which is in effect on such day, as specified by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum aggregate reserve requirement (including all basis,
supplemental, marginal and other reserves) which is imposed on eurocurrency
liabilities.
"Event of Default" shall have the meaning set forth in Paragraph 9 above.
----------------
"Facility II Agreement" shall mean that certain Facility II Credit
---------------------
Agreement among the Companies, the Lenders and the Administrative Agent
providing for the extension of certain two-year revolving credit facilities, as
such agreement may be amended, extended or restated from time to time.
"Fair Market Value" shall mean, with respect to any Mortgage Loan, the
-----------------
market bid price obtainable for such Mortgage Loan, as such market bid price
shall be determined no less frequently than monthly on a reasonable basis by the
Administrative Agent by reference to the average of bids therefor solicited by
the Administrative Agent and obtained from at least three (3) dealers with a
general reputation as being reputable in the pricing of Mortgage Loans.
"First Union" shall mean First Union National Bank of North Carolina, a
-----------
national banking association.
"Funding Account" shall mean, collectively, Account No. 2000000718426,
---------------
Account No. 2000000718439, Accounting No. 2000000718442, Account No.
2000000718455, Account No. 2000000718468 and Account No. 2000000718471, which
accounts are maintained in the Administrative Agent's name alone with the
Administrative Agent at the Contact Office.
"GAAP" shall mean generally accepted accounting principles in the United
----
States of America in effect from time to time.
"Governmental Authority" shall mean any nation or government, any state or
----------------------
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Hedging Arrangement" shall mean an arrangement or agreement to which the
-------------------
Companies are party which is designed to diminish the Companies' interest rate
risk exposure, which such arrangements or
65
<PAGE>
agreements shall be made in accordance with the Companies' standard practices as
disclosed to and reasonably approved by the Administrative Agent from time to
time.
"ILC" shall mean Independent Lending Corporation, a Delaware corporation.
---
"Indebtedness" of any Person shall mean all items of indebtedness which, in
------------
accordance with GAAP and practices thereof, would be included in determining
liabilities as shown on the liability side of a statement of condition of such
Person as of the date as of which indebtedness is to be determined, including:
without limitation, all obligations for money borrowed and Capitalized Lease
Obligations, all amounts for which such Person may be obligated under gestation
or other repurchase facilities, and shall also include all indebtedness and
liabilities of others assumed or guaranteed by such Person or in respect of
which such Person is secondarily or contingently liable (other than by
endorsement of instruments in the course of collection) whether by reason of any
agreement to acquire such indebtedness or to supply or advance sums or
otherwise.
"Indy Mac" shall mean Independent National Mortgage Corporation, a Delaware
--------
corporation.
"Interest Period" shall mean with respect to any Eurodollar Loan the period
---------------
commencing on the date advanced and ending one, two or three weeks, or one, two,
three or six months, thereafter, as designated in the related Loan Request,
provided, however, that (i) any Interest Period which would otherwise end on a
day which is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless by such extension it would fall in
another calendar month, in which case such Interest Period shall end on the
immediately preceding Eurodollar Business Day; (ii) any Interest Period
applicable to a Eurodollar Loan which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall, subject to the provisions of clause (i) hereof, end on
the last day of such calendar month; and (iii) no such Interest Period shall
extend beyond the Maturity Date.
"Lender" shall have the meaning given such term in the introductory
------
paragraph hereof.
"Lien" shall mean any security interest, mortgage, pledge, lien, claim on
----
property, charge or encumbrance (including any
66
<PAGE>
conditional sale or other title retention agreement), any lease in the nature
thereof, and the filing of or agreement to give any financing statement under
the Uniform Commercial Code of any jurisdiction.
"Loan" shall mean a Tranche A Loan, a Tranche B Loan or a Swing Line Loan,
----
as applicable.
"Loans" shall mean, collectively, Tranche A Loans, Tranche B Loans and
-----
Swing Line Loans.
"Loan Purchase/Sale Schedule" shall mean a schedule substantially in the
---------------------------
form of that set forth as Exhibit L in the Addendum.
---------
"Loan Request" shall mean a request for a Loan conveyed to the
------------
Administrative Agent from an duly Authorized Officer of the Companies, with such
request to be confirmed in writing upon the request of the Administrative Agent.
"Loans" shall mean, collectively, Tranche A Loans and Tranche B Loans.
-----
"Majority Lenders" shall mean the Lenders holding not less than fifty-one
----------------
percent (51%) of the Repayment Shares.
"Master Servicing Portfolio" shall mean the aggregate outstanding principal
--------------------------
amount at the time of determination of the Mortgage Loans serviced by the
Companies or their affiliates under Master Servicing Contracts.
"Maturity Date" shall mean the earlier of: (a) October 24, 1996, as such
-------------
date may be extended from time to time in writing by one hundred percent (100%)
of the Lenders, in their sole discretion and (b) the date the Lenders terminate
their obligation to make further Loans hereunder pursuant to Paragraph 9 above.
"Maximum Commitment" shall mean, with respect to any Lender, the dollar
------------------
amount specified as such Lender's "Maximum Commitment" in the Commitment
Schedule set forth as Schedule I-1 in the Addendum.
------------
"Maximum Swing Line Commitment" shall mean with respect to First Union the
-----------------------------
excess of $20,000,000 over the aggregate principal amount of outstanding Swing
Line Loans under the Facility II Agreement; provided, however, that on any day
that the aggregate outstanding principal balance of all Loans held by First
Union
67
<PAGE>
equals First Union's Maximum Commitment, then the Maximum Swing Line Commitment
shall be zero ($0).
"Mortgage-Backed Security" shall mean any security (including, without
------------------------
limitation, a participation certificate) that represents an interest in a pool
of mortgages, deeds of trusts or other instruments creating a Lien on Property
which is improved by a completed single family residence, including but not
limited to a condominium, planned unit development or townhouse.
"Mortgage Loan" shall mean a residential real estate secured loan,
-------------
including, without limitation: (a) a promissory note, any reformation thereof
and related deed of trust (or mortgage) and security agreement; (b) all
guaranties and insurance policies, including, without limitation, all mortgage
and title insurance policies and all fire and extended coverage insurance
policies and rights of the mortgagee or beneficiary to return premiums or
payments with respect thereto; and (c) all right, title and interest of the
mortgagee or beneficiary in the Property covered by said deed of trust (or
mortgage).
"Multiemployer Plan" shall mean, as to the Companies or any of their ERISA
------------------
Affiliates, a Plan of such Person which is a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Notes" shall have the meaning given such term in Paragraph 3(k) above.
-----
"Obligations" shall mean any and all debts, obligations and liabilities of
-----------
the Companies to the Administrative Agent, the Collateral Agent or the Lenders
(whether now existing or hereafter arising, voluntary or involuntary, whether or
not jointly owed with others, direct or indirect, absolute or contingent,
liquidated or unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred), arising out of or
related to the Credit Documents.
"Obligor" shall mean the Person or Persons obligated to pay the
-------
Indebtedness which is the subject of a Mortgage Loan.
"Participant" shall have the meaning given such term in Paragraph 11(h)
-----------
above.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA and any successor thereto.
68
<PAGE>
"Percentage Share" shall mean, with respect to each Lender, the ratio
----------------
expressed as a percentage which (a) such Lender's Maximum Commitment bears to
(b) the Aggregate Facility Commitment.
"Permitted Other Debt" shall mean that Indebtedness described as "Permitted
--------------------
Other Debt" on Exhibit H set forth in the Addendum.
---------
"Permitted Secured Debt" shall mean that Indebtedness which is the subject
----------------------
of a Lien and described as "Permitted Secured Debt" on Exhibit H set forth in
---------
the Addendum.
"Person" shall mean any corporation, natural person, firm, joint venture,
------
partnership, limited liability company, trust, unincorporated organization or
Governmental Authority.
"Plan" shall mean, as the Companies or any of their ERISA Affiliates, any
----
pension plan that is covered by Title IV of ERISA and in respect of which such
Person or a Commonly Controlled Entity of such Person is an "employer" as
defined in Section 3(5) of ERISA.
"Position Report" shall mean a report substantially in the form of that set
---------------
forth as Exhibit I in the Addendum.
---------
"Potential Default" shall mean an event which but for the lapse of time or
-----------------
the giving of notice, or both, would constitute an Event of Default.
"Proceeds" shall mean whatever is receivable or received when Collateral or
--------
proceeds are sold, collected, exchanged or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes, without limitation, all
rights to payment, including return premiums, with respect to any insurance
relating thereto.
"Property" shall mean the real property, including the improvements
--------
thereon, and the personal property (tangible and intangible) which are
encumbered pursuant to a Mortgage Loan.
"Regular Loan" shall mean a Tranche A Loan or a Tranche B Loan, as
------------
applicable.
"Regular Loans" shall mean, collectively, Tranche A Loans and Tranche B
-------------
Loans.
"REIT" shall mean have the meaning given to such term in the
----
69
<PAGE>
Code.
"Repayment Share" shall mean with respect to each Lender the ratio
---------------
expressed as a percentage that (i) the aggregate outstanding Loans held by each
Lender bears to (ii) the aggregate outstanding Loans held by all Lenders.
"Reportable Event" shall mean a reportable event as defined in Title IV of
----------------
ERISA, except actions of general applicability by the Secretary of Labor under
Section 110 of ERISA.
"Required Documents" shall mean, with respect to any Loan, those items
------------------
described on Exhibit J set forth in the Addendum.
---------
"Requirements of Law" shall mean, as to any Person, the Articles or
-------------------
Certificate of Incorporation and Bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or a final
and binding determination of an arbitrator or a determination of a court or
other 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.
"Security Agreement" shall have the meaning given such term in Paragraph
------------------
4(a) above, as the same may be amended, extended or replaced from time to time.
"Settlement Account" shall mean that certain account maintained in the name
------------------
of the Collateral Agent which account shall be the same account as the
"Financial Institution Settlement Account" to be established and maintained for
and on behalf of the Administrative Agent pursuant to Section 5.2(a) of the
Custodial Agreement.
"Single Employer Plan" shall mean, as to the Companies or any of their
--------------------
ERISA Affiliates, any Plan of such Person which is not a Multiemployer Plan.
"Statement Date" shall mean December 31, 1994.
--------------
"Swing Line Loan" and "Swing Line Loans" shall have the meanings given such
--------------- ----------------
terms in Paragraph 2A(a) above.
"Take-Out Commitment" with respect to any Mortgage Loan shall mean a bona
-------------------
fide current, unused and unexpired whole loan commitment or forward sale
Mortgage Backed Security (including, without
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limitation, a Warehouse-Related MBS) commitment issued in favor of and held by
the Companies made by an Approved Investor, under which said Approved Investor
agrees, prior to the expiration thereof, upon the satisfaction of certain terms
and conditions therein, to purchase such Mortgage Loan or related Mortgage
Backed Security (including, without limitation, a Warehouse-Related MBS) at a
Take-Out Price, which commitment is not subject to any term or condition which
is not customary in commitments of like nature or which, in the reasonably
anticipated course of events, cannot be fully complied with prior to the
expiration thereof.
"Take-Out Price" with respect to any Mortgage Loan shall mean the specified
--------------
price to be paid for such Mortgage Loan under the applicable Take-Out Commitment
covering said Mortgage Loan.
"Tranche A Borrowing Base" shall mean at any date all Eligible A/B Mortgage
------------------------
Loans purchased by CWM or Indy Mac pursuant to the programs and procedures
described in the Indy Mac Seller-Servicer Guide which have not been included as
---
Collateral in excess of one hundred twenty (120) days and which have been
delivered to and held by the Collateral Agent or otherwise identified as "A/B
Collateral" under the Security Agreement as collateral security for the
Obligations, together with all Warehousing Loans which have been delivered to
and held by the Collateral Agent under the Security Agreement as collateral
security for the Obligations.
"Tranche A Corporate Rate Loans" shall mean Tranche A Loans at such time as
------------------------------
they are bearing interest at the Applicable Corporate Rate or at a rate
specified pursuant to Paragraph 3(u) hereof.
"Tranche A Eurodollar Loans" shall mean Tranche A Loans at such time as
--------------------------
they are bearing interest at the Applicable Eurodollar Rate.
"Tranche A Facility" shall mean that revolving credit facility extended by
------------------
the Lenders to the Companies pursuant to Section 1 hereof.
"Tranche A Loan" and "Tranche A Loans" shall have the meanings given such
-------------- ---------------
terms in Paragraph 1(a) above.
"Tranche B Borrowing Base" shall mean at any date all Eligible A/B Mortgage
------------------------
Loans purchased by CWM or Indy Mac pursuant to the programs and procedures
described in the Indy Mac Seller-
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Servicer Guide which have been delivered to and held by the Collateral Agent or
otherwise identified as "A/B Collateral" under the Security Agreement as
collateral security for the Obligations and which have not been designated by
the Companies to be included in the Tranche A Borrowing Base.
"Tranche B Corporate Rate Loans" shall mean Tranche B Loans at such times
------------------------------
as they are bearing interest at the Applicable Corporate Rate or at a rate
specified pursuant to Paragraph 3(u) hereof.
"Tranche B Eurodollar Loans" shall mean Tranche B Loans at such time as
--------------------------
they are bearing interest at the Applicable Eurodollar Rate.
"Tranche B Facility" shall mean that revolving credit facility extended by
------------------
the Lenders to the Companies pursuant to Section 2 hereof.
"Tranche B Loan" and "Tranche B Loans" shall have the meanings given such
-------------- ---------------
terms in Paragraph 2(a) above.
"Unit Collateral Value" shall mean,
---------------------
(a) with respect to each Eligible A/B Mortgage Loan included in the
Tranche A Borrowing Base; ninety-eight percent (98%) of the lesser of: (1) the
unpaid principal balance thereof at the time the Eligible A/B Mortgage Loan is
included in the Tranche A Borrowing Base, or (2) the Fair Market Value.
(b) with respect to each Eligible A/B Mortgage Loan included in the
Tranche B Borrowing Base:
(i) if such Eligible A/B Mortgage Loan is sixty (60) days
delinquent or less, ninety-five percent (95%) of the lesser of: (1) the
unpaid principal amount thereof at the time such Eligible A/B Mortgage Loan
is included in the Tranche B Borrowing Base (or, in the case of a
Construction-to-Permanent Mortgage Loan, the greater of a. the principal
-
amount thereof disbursed at the date of determination or b. the maximum
-
principal amount thereof disbursed at any time), and (2) the Fair Market
Value thereof.
(ii) if such Eligible A/B Mortgage Loan is more than sixty (60)
days delinquent but is less than
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or equal to one hundred eighty (180) days delinquent, ninety percent
(90%) of the lesser of: (1) the unpaid principal amount thereof at the
time such Eligible A/B Mortgage Loan is included in the Tranche B Borrowing
Base (or, in the case of a Construction-to-Permanent Mortgage Loan, the
greater of a.
-
the principal amount thereof disbursed at the date of determination or b.
-
the maximum principal amount thereof disbursed at any time), and (2) the
Fair Market Value thereof.
(iii) if such Eligible A/B Mortgage Loan is more than one hundred
eighty (180) days delinquent, seventy-five percent (75%) of the lesser of:
(1) the unpaid principal amount thereof at the time such Eligible A/B
Mortgage Loan is included in the Tranche B Borrowing Base (or, in the case
of a Construction-to-Permanent Mortgage Loan, the greater of a. the
-
principal amount thereof disbursed at the date of determination or b. the
-
maximum principal amount thereof disbursed at any time), and (2) the Fair
Market Value thereof.
"Warehouse-Related MBS" shall have the meaning given to such term in the
---------------------
Security Agreement.
"Warehousing Loan" shall mean a loan extended by the Companies to a sub-
----------------
borrower pursuant to a revolving warehousing line of credit between the
Companies and such sub-borrower, which such loan shall be made in accordance
with the due diligence procedures set forth on Exhibit AA hereto and shall be
----------
evidenced by a loan agreement substantially in the form set forth on Exhibit BB
----------
hereto (in each instance without variation therefrom which would have a material
adverse effect on the Lenders or their interests under this Agreement unless
such variation has been consented to by the Administrative Agent pursuant to
Paragraph 8(e) above), and shall be secured by Mortgage Loans originated by such
sub-borrower (all of which are covered by Take-Out Commitments issued in favor
of such sub-borrower) and related collateral, provided that the Collateral Value
-------- ----
of the Tranche A Borrowing Base attributable to such a loan, when added to the
Collateral Value of the Tranche A Borrowing Base attributable to all other such
loans, does not exceed $150,000,000 (it being understood that for purposes of
this provision "such loans" also include "Warehousing Loans" as defined in the
Facility II Agreement and the terms "Tranche A Borrowing Base" and "Collateral
Value of the Tranche A Borrowing Base" shall mean both such terms as defined
----
herein and such terms as defined
---
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<PAGE>
in the Facility II Agreement).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CWM MORTGAGE HOLDINGS, INC.,
a Delaware corporation
By /s/ Michael W. Perry
Name Michael W. Perry
Title EVP & Chief Operating Officer
INDEPENDENT NATIONAL MORTGAGE
CORPORATION, a Delaware corporation
By /s/ Michael W. Perry
Name Michael W. Perry
Title President & Chief Executive Officer
INDEPENDENT LENDING CORPORATION
a Delaware corporation
By /s/ Michael W. Perry
Name Michael W. Perry
Title President & Chief Executive Officer
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, a
national banking association, as Administrative
Agent, L/C Bank and a Lender
By /s/ Carolyn Eskeridge
Name Carolyn Eskeridge
Title Senior Vice President
THE BANK OF NEW YORK
By /s/ Cynthia E. Crites
Name Cynthia E. Crites
Title Assistant Vice President
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CREDIT LYONNAIS, CAYMAN ISLANDS BRANCH
By: /s/ William J. Fischer
Name: William J. Fischer
Title: Vice President & Manager
DRESDNER BANK AG, LOS ANGELES AGENCY & GRAND CAYMAN
BRANCH
By: /s/ Thomas J. Nadramia
Name: Thomas J. Nadramia
Title: Vice President
By: /s/ John W. Sweeney
Name: John W. Sweeney
Title: Assistant Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Margaret K. Gallehugh
Name: Margaret K. Gallehugh
Title: Vice President
GUARANTY FEDERAL BANK F.S.B.
By: /s/ Abbie Y. Tidmore
Name: Abbie Y. Tidmore
Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Edward K. Santos
Name: Edward K. Santos
Title: Vice President
FLEET BANK, N.A. (formerly known as
NATWEST Bank N.A.)
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<PAGE>
By: /s/ Robert W. Pierson
Name: Robert W. Pierson
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Mary Pat Riggins
Name: Mary Pat Riggins
Title: Vice President
76