SALES REPRESENTATIONS AND
WARRANTIES MADE IN RESPECT OF MORTGAGE LOANS SOLD TO INVESTORS IN SECONDARY
MARKET TRANSACTIONS THAT ARE TYPICAL FOR SALES OR SECURITIZATIONS OF THE TYPE
CONTEMPLATED AND MADE IN THE ORDINARY COURSE OF THE APPLICABLE BORROWER'S
BUSINESS SHALL NOT BE CONSIDERED TO BE GUARANTIES FOR PURPOSES OF THIS SECTION.
11.4
CONDITIONAL REPURCHASE, INDEMNITY OR OTHER RECOURSE OBLIGATIONS.
UNDERTAKE OR ASSUME ANY CONDITIONAL REPURCHASE, INDEMNITY OR OTHER RECOURSE
OBLIGATIONS IN RESPECT OF MORTGAGE LOANS SOLD (EXCLUDING CUSTOMARY SALES
REPRESENTATIONS AND WARRANTIES MADE IN CONNECTION WITH ANY WHOLE LOAN SALE OR
SECURITIZATION THAT ARE TYPICAL FOR WHOLE LOAN SALES OR SECURITIZATIONS OF THAT
SAME TYPE) WHICH OBLIGATIONS COULD EXPOSE THE BORROWER TO LOSSES IN EXCESS OF
TEN MILLION DOLLARS ($10,000,000) IN THE AGGREGATE.
11.8(E)
GAAP NET INCOME OF FIC.
PERMIT FIC (ON A CONSOLIDATED BASIS WITH ITS
SUBSIDIARIES) TO EARN LESS THAN ONE DOLLAR ($1) OF NET INCOME, AS DETERMINED IN
ACCORDANCE WITH GAAP AND WITHOUT REGARD TO UNREALIZED GAINS OR LOSSES FROM MARK
TO
8
MARKET VALUATIONS RESULTING FROM BORROWER'S INTEREST RATE PROTECTION AGREEMENT
DURING SUCH PERIODS, IN ANY TWO (2) CONSECUTIVE ROLLING FISCAL QUARTERS.
12.
DEFAULTS AND REMEDIES
Sections 12.1(c) and 12.1(j) are hereby amended in their entirety to henceforth
read as follows:
(C)
FAILURE OF THE BORROWERS OR ANY OF THEIR SUBSIDIARIES TO PAY ANY
OTHER DEBT WHEN DUE (OTHER THAN DEBT OF A CONSOLIDATED, WHOLLY-OWNED SUBSIDIARY
THAT IS A SPECIAL PURPOSE ENTITY INCURRED IN CONNECTION WITH PERMITTED
SECURITIZATIONS), OR ANY DEFAULT IN THE PAYMENT WHEN DUE OF ANY PRINCIPAL OR
INTEREST ON ANY OTHER SUCH DEBT OR IN THE PAYMENT WHEN DUE OF ANY CONTINGENT
OBLIGATION; OR BREACH OR DEFAULT WITH RESPECT TO ANY OTHER MATERIAL TERM OF ANY
OTHER DEBT OR OF ANY PROMISSORY NOTE, BOND, LOAN AGREEMENT, REIMBURSEMENT
AGREEMENT, MORTGAGE, INDENTURE OR OTHER AGREEMENT RELATING THERETO, IF THE
EFFECT OF ANY SUCH FAILURE, DEFAULT OR BREACH REFERRED TO IN THIS SECTION
12.1(C), IS TO CAUSE, OR TO PERMIT THE HOLDER OR HOLDERS OF SUCH OBLIGATION (OR
A TRUSTEE ON BEHALF OF SUCH HOLDER OR HOLDERS) TO CAUSE, DEBT OF THE BORROWERS
OR ANY OF THEIR SUBSIDIARIES IN THE AGGREGATE AMOUNT OF TEN MILLION DOLLARS
($10,000,000) OR MORE TO BECOME OR BE DECLARED DUE BEFORE ITS STATED MATURITY.
(J)
ANY MONEY JUDGMENT, WRIT OR WARRANT OF ATTACHMENT, OR SIMILAR
PROCESS INVOLVING IN ANY CASE AN AMOUNT IN EXCESS OF TEN MILLION DOLLARS
($10,000,000) SHALL BE ENTERED OR FILED AGAINST EITHER BORROWER OR ANY OF ITS
SUBSIDIARIES OR ANY OF THEIR RESPECTIVE ASSETS AND SHALL REMAIN UNDISCHARGED,
UNVACATED, UNBONDED OR UNSTAYED FOR A PERIOD OF SIXTY (60) DAYS OR IN ANY EVENT
LATER THAN FIVE (5) DAYS BEFORE THE DATE OF ANY PROPOSED SALE THEREUNDER
(UNLESS, IN RESPECT OF ANY SUCH CASE THE JUDGMENT DEBTOR OR THE SUBJECT OF THE
WRIT OR WARRANT OF ATTACHMENT OR SIMILAR PROCESS IS ONE OF THE RELEVANT
BORROWER'S SUBSIDIARIES OR SUCH SUBSIDIARY'S PROPERTY, AND SUCH ORDER, CASE
COMMENCEMENT, CONSENT, ASSIGNMENT, INABILITY OR FAILURE OR ADMISSION HAS NO
MATERIAL ADVERSE