The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 3 contracts
Sources: Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.), Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect hereby agrees to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contraryUnless otherwise agreed, Seller shall give Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price and Custodian notice of up to the Committed Amount and shall have no obligation to enter into Transactions any proposed purchase, with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten all Mortgage Loans, prior to 5:00 p.m. (10New York City time) one (1) Business Days’ Day prior written to the proposed Purchase Date (the date on which any such notice before exercising its discretion is so given, the “Notice Date”), (ii) deliver a Mortgage Loan Schedule and a Mortgage Loan Transmission to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writingCustodian on such Notice Date, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainderand, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions (iii) with respect to all Mortgage Loans other than Wet Loans, deliver the Uncommitted Amount after Mortgage File to Custodian in accordance with the Purchase Date until the Custodial Agreement.
(b) Seller shall repurchase Purchased Loans from Buyer on each related Repurchase Date. Unless otherwise agreed, with respect Each obligation to repurchase exists without regard to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction prior or intervening liquidation or foreclosure with respect to any Purchased Asset Loan. Seller is obligated to obtain the Purchased Loans from Buyer or its designee (including the Custodian) at Seller’s expense on (or after) the related Repurchase Date.
(c) Provided that the applicable conditions in Sections 10(a) and (b) have been satisfied, each Purchased Loan that is repurchased by delivering the Seller on the Repurchase Date shall automatically become subject to a new Transaction unless Buyer is otherwise notified by the Seller at least one (1) Business Day prior to any such Repurchase Date; provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the indicated required parties Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (each, a “Required Recipient”y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Pricing Side Letter.
(d) If Seller repurchases Purchased Loans on any day which is not a Repurchase Date for such Purchased Loans, Seller shall indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or incur arising from the reemployment of funds obtained by Buyer hereunder or from fees payable to terminate the corresponding required delivery time deposits from which such funds were obtained (“Breakage Costs”), in each case for the “Required Delivery Time”):remainder of the applicable 30 day period. Buyer shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. The provisions of this Section 3(d) shall survive termination of this Agreement and the repurchase of all Purchased Loans subject to Transactions hereunder.
Appears in 2 contracts
Sources: Master Repurchase Agreement, Master Repurchase Agreement (New Century Financial Corp)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, Amount and may in its sole discretionmay, with respect to the Uncommitted Amount, from time to timeas requested by a Seller, enter into Transactions with an aggregate a Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein ..With respect to Certificates, the contrary, Purchase Price will be determined based upon the aggregate Market Value of the Loans owned by the related Trust..Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into , which Transactions with Seller for all or any portion of respect to the Uncommitted Amount. Amount shall be entered into in the sole discretion of Buyer..Unless otherwise agreed to between Buyer and the Seller in writingby Buyer, all purchases of Eligible Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. .
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction by delivering to Buyer: (i) a Transaction Notice, (ii) an estimate of the Purchase Price for such Transaction, which in the case of a Certificate shall be determined using the amount allocable to the Loans owned by or proposed to be transferred to the related Trust represented by such Certificate (which estimate may be included in a Transaction Notice), and (iii) a copy of the original Custodial Certification issued by the applicable Custodian to the Loan Seller or the related Trust, as applicable, showing that the related Mortgage Asset Files for each such Loan are held by the Custodian under the Custodial Agreement without Exceptions..A copy of each Custodial Certifications shall be delivered to ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the account of Citibank, N.A., telephone number (▇▇▇) ▇▇▇-▇▇▇▇, as agent for Buyer by overnight delivery using a nationally recognized insured overnight delivery service..In addition, the related Seller will deliver to Buyer or cause Custodian to deliver to Buyer on each Business Day, via Electronic Transmission acceptable to Buyer, an electronic data file with respect to all Purchased Loans and Loans held by Custodian on behalf of each Trust represented by a Purchased Certificate subject to a Transaction and an Exception Report showing the status of all Purchased Loans and Loans then held by Custodian for each such Trust, including but not limited to the Loans which are subject to Exceptions, and the time the related Loan Documents have been released in accordance with the terms of the Custodial Agreement. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price (which shall in all events be at least equal to $1,000,000 on each day that there is a Transaction), Pricing Rate, and Repurchase Date..In addition, each Transaction Notice shall set forth the related portion of the Purchase Price for such Transaction that is allocable to each individual Loan..Each Transaction Notice shall include a Loan Schedule in respect of the Loans proposed to be sold or owned by the related Trust represented by the Certificate that Seller proposes to include in the related Transaction. Buyer shall notify the related Seller of its agreement to enter into a Transaction and confirm the terms of such Transaction, by delivering to the related Seller a Funding Notice specifying the Loans or Trust Certificates Buyer agrees to include in such Transaction on the related Purchase Date and the portion of the related aggregate Purchase Price allocable to each Loan to be purchased or owned by the related Trust, and any other terms of the related Transaction..In the event of a conflict between the terms set forth in the Transaction Notice delivered by a Seller to Buyer and the terms set forth in the related Funding Notice delivered by Buyer to such Seller, the terms of the related Funding Notice shall control absent manifest error..In the event of a conflict between the terms set forth in this Agreement and the terms set forth in any Funding Notice, the terms of such Funding Notice shall control to the extent that the Funding Notice notes such conflict and specifies that the Funding Notice shall control. By entering into a Transaction with Buyer, each Seller consents to the terms set forth in the related Funding Notice..The Funding Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and Seller with respect to the Transaction to which the Funding Notice relates.
(c) Upon a Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, enter into a Transaction for the purchase of Loans or a Certificate, as applicable, by transferring to the related Seller or at such Seller’s direction, via wire transfer in accordance with the written wire transfer instructions provided by such Seller, the Purchase Price in immediately available funds on the related Purchase Date..With respect to each Certificate, the Purchase Price shall be determined using the Market Value of the Loans owned by the related Trust and included in the related Funding Notice..Each Seller acknowledges and agrees that the Purchase Price paid and determined based on the Market Value of any Loans related to any Transaction includes a mutually negotiated premium allocated to the portion of the related Loans that constitutes the related Servicing Rights, which Servicing Rights shall be owned by the Buyer with respect to Purchased Loans and by the related Trust with respect to Purchased Certificates..No additional Loans may be contributed to any Trust represented by a Purchased Certificate following the initial Purchase Date related to such Purchased Certificate.
(d) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein;
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Purchased Assets hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and Seller shall, at its option, either (a) pay the Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of Seller’s receipt of such notice from Buyer and terminate this Agreement or (b) pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of maintaining the Transactions..In the event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a pro rated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective.
(e) Sellers shall repurchase the related Purchased Assets from Buyer on each related Repurchase Date..Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset Loan or any Loan held by delivering the Trust.
(f) Provided that no Default shall have occurred and be continuing, unless Buyer is notified by the Sellers to the indicated required parties contrary not later than 11:00 a.m. New York City time at least two (each2) Business Days prior to any such Repurchase Date, on each related Repurchase Date each Purchased Asset shall automatically become subject to a new Transaction..In such event, the related Repurchase Date on which such Transaction becomes subject to a new Transaction shall become the “Required Recipient”Purchase Date” for such Transaction. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table Pricing Side Letter.
(g) If a Seller intends to repurchase any Purchased Assets or pay the portion of the Repurchase Price allocable to any Loans on any day that is not a Repurchase Date, such Seller shall give prior written notice thereof to Buyer by 2:00 p.m. (New York City time) on the date of repurchase..If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid.
(h) If any change in a Requirement of Law after the date hereof (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever (excluding Excluded Taxes, Other Taxes, and any Tax imposed on or with respect to payments made under any Program Document) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder; or
(iii) shall impose on Buyer any other condition (other than taxes); and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and Sellers shall, at their option, either (a) pay the Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of Sellers’ receipt of such notice from Buyer and terminate this Agreement or (b) promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable..In the event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a pro-rated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective.
(i) If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and Sellers shall, at their option, either (a) pay the corresponding required delivery time Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of Sellers’ receipt of such notice from Buyer and terminate this Agreement or (b) promptly pay to Buyer such additional amount or amounts as will thereafter compensate Buyer for any such reduction that was incurred by Buyer within ninety (90) days of Buyer’s notice thereof..In the “Required Delivery Time”):event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a pro-rated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective. If Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Sellers of the event by reason of which it has become so entitled providing reasonable supporting detail as to such additional amounts..A certificate as to any additional amounts payable pursuant to this subsection submitted by Buyer to Sellers shall be conclusive in the absence of manifest error.
(j) Provided no Default or Event of Default has occurred and is continuing, Sellers may request that Buyer agree to extend the Termination Date for a period of one hundred eighty (180) days by providing a written request for such extension to Buyer no earlier than one hundred twenty (120) days prior to the Termination Date, but no later than sixty (60) days prior to the Termination Date; provided that such extension of the Termination Date shall be at Buyer’s sole discretion and shall be effective on the then current Termination Date and any Transactions outstanding on the then current Termination Date shall be terminated and new Transactions shall be entered into as of such date.
Appears in 2 contracts
Sources: Master Repurchase Agreement (Sutherland Asset Management Corp), Master Repurchase Agreement (Sutherland Asset Management Corp)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, Purchaser shall enter into Transactions; provided that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to lesser of (a) the Uncommitted Maximum Aggregate Purchase Price (less the sum of the MSR Facility Borrowed Amount after and the Aggregate EPF Purchase Date until Price) and (b) the related Repurchase Date. Asset Base.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Mortgage Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”):
Appears in 2 contracts
Sources: Master Repurchase Agreement (PennyMac Mortgage Investment Trust), Master Repurchase Agreement (Pennymac Financial Services, Inc.)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, Purchaser may enter into Transactions; provided that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to lesser of (a) the Uncommitted Amount after Maximum Aggregate Purchase Price (less the Aggregate EPF Purchase Date until Price) or (b) the related Repurchase Date. Asset Base.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”):
Appears in 2 contracts
Sources: Master Repurchase Agreement (Walter Investment Management Corp), Master Repurchase Agreement (Walter Investment Management Corp)
The Transactions. (a) Subject Prior to the occurrence of an Event of Default and subject to the terms and conditions of the Program Documentsset forth herein, Buyer shall, with respect to the Committed Amount, and may in its sole and absolute discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with Seller in an aggregate principal amount that will not result in the Aggregate Facility Purchase Price for all Purchased Assets acquired by Buyer and Mortgage Loans subject to then outstanding Transactions at under this Agreement, together with any one time not Eligible Mortgage Loans that are being offered by Seller for purchase under such Transaction to exceed exceed, as of any date determination, the Maximum Aggregate Purchase Price. Within the foregoing limits and subject to the terms and conditions set forth herein, Seller and ▇▇▇▇▇ may enter into Transactions. Notwithstanding anything contained herein in this Agreement to the contrary, Buyer shall only have the an obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount Amount, and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to in writing between Buyer ▇▇▇▇▇ and the Seller in writingSeller, all purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer shall not have the right, however, right to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):.
Appears in 2 contracts
Sources: Master Repurchase Agreement and Securities Contract (UWM Holdings Corp), Master Repurchase Agreement and Securities Contract (UWM Holdings Corp)
The Transactions. (a) a. Subject to the terms and conditions of the Program Documents, Buyer shall, with respect hereby agrees to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and not to exceed the Maximum Committed Purchase Price (individually, a “Committed Transaction”; collectively, the “Committed Transactions”).
b. In addition to the foregoing, the Buyer may from time to time in its sole discretion, subject to outstanding the terms and conditions of the Program Documents, enter into Transactions in excess of the Maximum Committed Purchase Price (individually, an “Uncommitted Transaction”, collectively, the “Uncommitted Transactions”) with the Seller, in an aggregate principal amount at any one time up to but not to exceeding the Maximum Uncommitted Purchase Price (together, the aggregate principal balance of Transactions may not exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation This Agreement to enter into Uncommitted Transactions is not a commitment by Buyer, but rather sets forth procedures to be used in connection with periodic requests for Buyer to enter into Uncommitted Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have Seller. The Seller hereby acknowledges that Buyer is under no obligation to agree to enter into any Uncommitted Transactions with respect pursuant to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amountthis Agreement. Unless otherwise agreed to between Buyer and by the Seller parties, in writingdetermining whether Transactions are Committed Transactions or Uncommitted Transactions, all purchases of Eligible Loans subject to outstanding such Transactions at any one time shall first be first deemed committed Committed Transactions up to the Maximum Committed Amount Purchase Price, and then the remainder, if any, remainder shall be deemed uncommitted up Uncommitted Transactions. The Buyer may, at any time, terminate the Seller’s ability to enter into new Uncommitted Amount. Buyer shall not have Transactions by providing written notice to the right, however, to terminate any Transactions with Seller.
c. With respect to the Uncommitted Amount after the Purchase Date until the any Transaction, Seller shall repurchase Purchased Assets from Buyer on each related Repurchase Date. Unless otherwise agreed, with respect Each obligation to repurchase subsists without regard to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction prior or intervening liquidation or foreclosure with respect to any Purchased Asset. Seller is obligated to obtain the Purchased Assets from Buyer or its designee (including the Custodian) at Seller’s expense on (or after) the related Repurchase Date.
d. Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, each Purchased Asset that is repurchased by delivering Seller on the Repurchase Date occurring on the 25th day of each month (or, if such 25th day is not a Business Day, the immediately following Business Day) following the related Purchase Date (the day of the month so determined for each month, or any other date designated by Seller to the indicated required parties (eachBuyer for such a repurchase on at least one Business Day’s prior notice to Buyer, a “Required RecipientRepurchase Date”, which term shall also include the date determined by application of Section 19 (a)) shall automatically become subject to a new Transaction unless Buyer is notified by Seller at least one (1) Business Day prior to any such Repurchase Date, provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Side Letter.
e. If Buyer locks in the rate of LIBOR at the request of Seller and Seller repurchases Purchased Assets on any day which is not the Repurchase Date set forth in Section 3(d) above, Seller shall indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or incur arising from the reemployment of funds obtained by Buyer hereunder or from fees payable to terminate the corresponding required delivery time deposits from which such funds were obtained (“Breakage Costs”), in each case for the “Required Delivery Time”):remainder of the applicable 30 day period. Buyer shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. This Section shall survive termination of this Agreement and the repurchase of all Purchased Assets subject to Transactions hereunder.
Appears in 2 contracts
Sources: Master Repurchase Agreement (New Century Financial Corp), Master Repurchase Agreement (New Century Financial Corp)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer (or Agent on behalf of Buyer) and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, Purchaser may enter into Transactions provided, that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to lesser of (i) the Uncommitted Amount after Maximum Aggregate Purchase Price (less the Aggregate EPF Purchase Date until Price) and (ii) the related Repurchase Date. Asset Base.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Mortgage Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time” ): Eligible Mortgage Loans (other than Wet-Ink Mortgage Loans) Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser and Custodian No later than 5:00 p.m. (New York City time) on the requested Purchase Date For Correspondent Loans, the Correspondent Seller Release, duly executed and delivered by each applicable Correspondent Seller No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser The complete Mortgage Files to Custodian for each Mortgage Loan subject to such Transaction No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Custodian AM Funded Wet-Ink Mortgage Loans Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser and Custodian No later than 12:00 noon (New York City time) on the requested Purchase Date PM Funded Wet-Ink Mortgage Loans Seller Mortgage Loan Schedule No later than 2:30 p.m. (New York City time) on the requested Purchase Date Purchaser and Custodian No later than 4:30 p.m. (New York City time) on the requested Purchase Date The date on which any notice pursuant to this Section 3(c) is given is known as the “Notice Date”. By submitting a Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the form of Transaction Notice attached as Exhibit C hereto.
(d) With respect to each Wet-Ink Mortgage Loan, within the time period specified in the Pricing Side Letter, Seller shall cause the related Settlement Agent to deliver, or shall promptly deliver upon receipt from Settlement Agent, to the Custodian the remaining documents in the Mortgage File.
(e) Upon Seller’s request to enter into a Transaction pursuant to Section 3(c) and assuming all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, and provided no Default or Event of Default shall have occurred and be continuing, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount, and may, in its sole discretion with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by transferring the Purchase Price (net of any related Structuring Fee, Non-Utilization Fee, or any other unpaid fees and expense then due and payable by Seller to Purchaser pursuant to this Agreement) in accordance with the following wire instructions or as otherwise provided: Receiving Bank: Deutsche Bank Trust Company America ABA#: [***] Account Name: Disbursement Account for Barclays Bank PLC Account Number: [***] Attention: [***] Seller acknowledges and agrees that the Purchase Price includes a mutually negotiated premium allocable to the portion of the Purchased Assets that constitutes the related Servicing Rights.
(f) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to Purchaser. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, Seller shall pay to Purchaser the Price Differential then due and payable for (x) all outstanding Transactions and (y) Purchased Assets for which Purchaser has received the related Repurchase Price (other than Price Differential) pursuant to Section 3(g) during the prior calendar month.
(g) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, Seller shall pay to Purchaser the related Repurchase Price (other than the related accrued Price Differential) together with any other Obligations then due and payable under this Agreement, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to Purchaser, and Purchaser shall transfer to Seller the related Purchased Assets.
(h) If Agent determines in its good faith and commercially reasonable discretion that any Change in Law (except a Change in Law with regard to Taxes (or taxes expressly excluded from Taxes), which is governed solely by Section 8) or any change in accounting rules regarding capital requirements has the effect of reducing the rate of return on Purchaser’s capital or on the capital of any Affiliate of Purchaser under this Agreement as a consequence of such Change in Law or change in accounting rules, then from time to ▇▇▇▇ ▇▇▇▇▇▇ will compensate Purchaser or Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law or change in accounting rules on terms similar to those imposed by Purchaser, except for such amounts which could have been reasonably mitigated by the Purchaser. Further, if due to the introduction of, any change in, or the compliance by Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions (except a Change in Law with regard to Taxes (or taxes expressly excluded from Taxes), which is governed solely by Section 8), then Seller shall, from time to time and upon demand by Purchaser, compensate Purchaser or Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder. Purchaser shall provide Seller with reasonably detailed notice as to any such Change in Law, change in accounting rules or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof.
(i) Seller shall indemnify the Purchaser and hold the Purchaser harmless from any losses, out of pocket costs and/or expenses which the Purchaser may sustain or incur as a result of terminating any Transaction on or before a Repurchase Date arising from the reemployment of funds obtained by the Purchaser hereunder or from actual out of pocket fees and expenses payable to terminate the deposits from which such funds were obtained (“Breakage Costs”). The Agent shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by the Purchaser to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest or demonstrable error. The provisions of this Section 3(i) shall survive termination of this Agreement.
(j) If on any Business Day Agent determines in good faith (which determination shall be conclusive absent manifest or demonstrable error) (a) that adequate and reasonable means do not exist for ascertaining LIBOR; or (b) that LIBOR will not adequately and fairly reflect the cost to Purchaser of entering into or maintaining outstanding Transactions; or (c) that it has become unlawful for any Purchaser to honor its obligation to enter into or maintain outstanding Transactions hereunder using LIBOR, then Agent shall give notice thereof to Seller by telephone, facsimile, or other electronic means as promptly as practicable thereafter and, until Agent notifies Seller that the circumstances giving rise to such notice no longer exist, the Pricing Rate included in any Confirmation with respect to new Transactions and in any calculation of the Price Differential with respect to outstanding Transactions will be determined, subject to the timely approval of Seller after receipt of notice of such revised rate, at a rate per annum that Purchaser determines in its good faith reasonable discretion adequately reflects the cost to Purchaser of making or maintaining such Transactions.
Appears in 1 contract
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten one (101) Business Days’ Day prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, Amount and may in its sole discretionmay, with respect to the Uncommitted Amount, from time to timetime as requested by Seller, enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount, which Transactions shall be entered into in the sole discretion of Buyer. Buyer and Seller agree that the Purchased Loans transferred to Buyer in any Transaction hereunder may include Eligible Loans which are Wet Loans (subject to any applicable sub-limits regarding Wet Loans set forth herein or any Program Document; provided that Buyer in any event such sub-limit regarding Wet Loans shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of not be less than $[***] in the Uncommitted Amountaggregate). Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. .
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction by delivering (i) to Buyer, Custodian and Disbursement Agent a Transaction Notice, (ii) to Buyer, Custodian and Disbursement Agent an estimate of the Purchase Price for Eligible Loans to be purchased on the Purchase Date (which estimate may be included in a Transaction Notice) and (iii) to Custodian, the Mortgage Files for each such Eligible Loan proposed to be included in a Transaction by the times set forth in the Custodial Agreement, each in accordance with the times specified in the Custodial Agreement. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price (which shall in all events be at least equal to $[***] on each day that there is a Transaction), Pricing Rate and Repurchase Date. In addition, each Transaction Notice shall set forth the related Purchase Price allocable to each individual Loan. Each Transaction Notice shall clearly indicate those Loans that are intended to be Wet Loans and Dry Loans and include a Loan Schedule in respect of the Loans that Seller proposes to include in the related Transaction. Buyer shall notify Seller of its agreement to enter into a Transaction and confirm the terms of such Transaction by delivering to Seller a Funding Notice specifying the Loans Buyer agrees to purchase on the related Purchase Date, and any other terms of the related Transaction. In the event of a conflict between the terms set forth in the Transaction Notice delivered by Seller to Buyer and Custodian and the terms set forth in the related Funding Notice delivered by Buyer to Seller, the terms of the related Funding Notice shall control. In the event of a conflict between the terms set forth in this Agreement and the terms set forth in any Funding Notice, the terms of such Funding Notice shall control to the extent that the Funding Notice notes such conflict and specifies that the Funding Notice shall control. By entering into a Transaction with Buyer, Seller consents to the terms set forth in the related Funding Notice. The Funding Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and Seller with respect to the Transaction to which the Funding Notice relates. Seller agrees to immediately report to Custodian and Buyer by facsimile transmission or such other method acceptable to Custodian and Buyer within one Business Day of discovery that any Wet Loans that were previously subject to a Transaction do not close for any reason and any Loans which are subject to a Rescission.
(c) Pursuant to the Custodial Agreement, Custodian will be required to review any Loan Documents delivered with respect to the Loans prior to [***] (New York City time) on any Business Day on the same day. In accordance with the times specified in the Custodial Agreement, Custodian will be required to deliver to Buyer, via Electronic Transmission acceptable to Buyer, Custodian Loan Transmission and an Exception Report showing the status of all Loans then held by Custodian, including but not limited to the Dry Loans and the Wet Loans which are subject to Exceptions, and the time the related Loan Documents have been released pursuant to Sections 5(a) or 5(b) of the Custodial Agreement. In accordance with the times specified in the Custodial Agreement, Custodian will be required to deliver to Buyer, on each Purchase Date, one or more Trust Receipts (as defined in the Custodial Agreement) relating to either Wet Loans or Dry Loans. The original copies of such Trust Receipts shall be delivered to ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ for the account of Citibank, N.A., telephone number ##############, as agent for Buyer by overnight delivery using a nationally recognized insured overnight delivery service.
(d) Upon Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, purchase the Eligible Loans included in the related Funding Notice by transferring to the Disbursement Account, via wire transfer in accordance with the terms of Section 11 of the Custodial Agreement (pursuant to written wire transfer instructions provided by Seller on or prior to such Purchase Date), the Purchase Price in immediately available funds on the related Purchase Date and not later than the related time set forth in the Custodial Agreement. Seller acknowledges and agrees that the Purchase Price paid in connection with any Purchased Loan that is purchased in any Transaction includes a mutually negotiated premium allocated to the portion of such Purchased Loans that constitutes the related Servicing Rights.
(e) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein;
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Loans hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Seller prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to purchase Loans hereunder, and Seller shall, at its option, either repurchase the Purchased Loans then subject to a Transaction or pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Loans.
(f) Seller shall repurchase the related Purchased Loans from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset by delivering Loan. Seller is obligated to obtain the related Purchased Loans from Buyer or its designee (including Custodian) at Seller’s expense on (or after) the related Repurchase Date.
(g) Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied and provided further no Default shall have occurred and be continuing, unless Buyer is notified to the indicated required parties contrary not later than 11:00 a.m. New York City time at least two (each2) Business Days prior to any such Repurchase Date, on each related Repurchase Date each Purchased Loan shall automatically become subject to a new Transaction. In such event, the related Repurchase Date on which such Transaction becomes subject to a new Transaction shall become the “Required Recipient”Purchase Date” for such Transaction. Seller shall deliver an updated Transaction Notice with respect to such Purchased Loans. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table Pricing Side Letter.
(h) If Seller intends to repurchase any Loans on any day which is not a Repurchase Date, Seller shall give prior written notice thereof to Buyer by 2:00 p.m. (New York City time) on the date of repurchase. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid.
(i) If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to this Agreement or any Loans purchased pursuant to it (excluding net income taxes) or change the basis of taxation of payments to Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder; or
(iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable thereafter incurred. If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall promptly pay to Buyer such additional amount or amounts as will thereafter compensate Buyer for such reduction. If Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Seller of the corresponding required delivery time (event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by Buyer to Seller shall be conclusive in the “Required Delivery Time”):absence of manifest error.
Appears in 1 contract
The Transactions. (a) a. Subject to the terms and conditions of the Program Documents, this Agreement is a commitment by the Buyer shall, with respect to purchase from the Sellers certain Purchased Assets up to the Maximum Committed Amount, Purchase Price and may in its sole discretion, with respect the Buyer hereby agrees to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all the Purchased Assets acquired by the Buyer and not to exceed the Maximum Committed Purchase Price (individually, a “Committed Transaction”; collectively, the “Committed Transactions”).
b. In addition to the foregoing, the Buyer may from time to time in its sole discretion, subject to outstanding the terms and conditions of the Program Documents, enter into Transactions in excess of the Maximum Committed Purchase Price (individually, an “Uncommitted Transaction”, collectively, the “Uncommitted Transactions”) with the Sellers, in an aggregate principal amount at any one time up to but not to exceeding the Maximum Uncommitted Purchase Price (together, the aggregate principal balance of Transactions may not exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation This Agreement to enter into Uncommitted Transactions is not a commitment by the Buyer, but rather sets forth procedures to be used in connection with periodic requests for the Buyer to enter into Uncommitted Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have related Seller. The Sellers hereby acknowledge that the Buyer is under no obligation to agree to enter into any Uncommitted Transactions with respect pursuant to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amountthis Agreement. Unless otherwise agreed to between Buyer and by the Seller parties, in writingdetermining whether Transactions are Committed Transactions or Uncommitted Transactions, all purchases of Eligible Loans subject to outstanding such Transactions at any one time shall first be first deemed committed Committed Transactions up to the Maximum Committed Amount Purchase Price, and then the remainder, if any, remainder shall be deemed uncommitted up Uncommitted Transactions. The Buyer may, at any time, terminate the Sellers’ ability to enter into new Uncommitted Amount. Buyer shall not have Transactions by providing written notice to the right, however, to terminate any Transactions with Sellers.
c. With respect to any Transaction, the Uncommitted Amount after related Seller shall repurchase the Purchase Date until Purchased Assets from the Buyer on each related Repurchase Date. Unless otherwise agreed, with respect Each obligation to repurchase subsists without regard to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction prior or intervening liquidation or foreclosure with respect to any Purchased Asset. The related Seller is obligated to obtain the Purchased Assets from the Buyer or its designee (including the Custodian) at its own expense on (or after) the related Repurchase Date.
d. Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, each Purchased Asset that is repurchased by delivering the related Seller on the Repurchase Date occurring on the 25th day of each month (or, if such 25th day is not a Business Day, the immediately following Business Day) following the related Purchase Date (the day of the month so determined for each month, or any other date designated by the related Seller to the indicated required parties (eachBuyer for such a repurchase on at least one Business Day’s prior notice to the Buyer, a “Required RecipientRepurchase Date”, which term shall also include the date determined by application of Section 19 (a)) shall automatically become subject to a new Transaction unless the Buyer is notified by such Seller at least one (1) Business Day prior to any such Repurchase Date, provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Side Letter.
e. If the Buyer locks in the rate of LIBOR at the request of such Seller and such Seller repurchases the Purchased Assets on any day which is not the Repurchase Date set forth in Section 3(d) above, such Seller shall indemnify the Buyer and hold the Buyer harmless from any losses, costs and/or expenses which the Buyer may sustain or incur arising from the reemployment of funds obtained by the corresponding required delivery time Buyer hereunder or from fees payable to terminate the deposits from which such funds were obtained (“Breakage Costs”), in each case for the “Required Delivery Time”):remainder of the applicable 30 day period. The Buyer shall deliver to such Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by the Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon such Seller, absent manifest error. This Section shall survive termination of this Agreement and the repurchase of all the Purchased Assets subject to Transactions hereunder.
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
The Transactions. (a) Subject to the terms limitations set forth in this Agreement, (including without limitation Section 3(b) below), it is acknowledged and conditions agreed that, notwithstanding any other provision of this Agreement to the Program Documentscontrary, Buyer shallthe facility provided under this Agreement is a committed facility, with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents (including, but not limited to, the conditions precedent set forth in Section 10 hereof), Purchaser shall enter into Transactions provided, that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to lesser of (a) the Uncommitted Amount after Maximum Aggregate Purchase Price and (b) the Purchase Date until the related Repurchase Date. Asset Base.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Mortgage Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”): Eligible Mortgage Loans (other than Wet-Ink Mortgage Loans) Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser and Custodian No later than 3:00 p.m. (New York City time) on the requested Purchase Date For all Eligible Mortgage Loans (other than Wet-Ink Mortgage Loans): the complete Mortgage Files to Custodian for each Mortgage Loan subject to such Transaction No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Custodian Wet-Ink Mortgage Loans Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser, Custodian and Disbursement Agent No later than two (2) hours after receipt of the Required Delivery Items within the Required Delivery Time on the requested Purchase Date The date on which any notice pursuant to this Section 3(c) is given is known as the “Notice Date”. By submitting a Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the form of Transaction Notice attached as Exhibit C hereto.
(d) With respect to each Wet-Ink Mortgage Loan, immediately following the Purchase Date, Seller shall deliver or cause to be delivered to the Custodian the remaining documents in the Mortgage File. Upon the Wet-Ink Mortgage Loan Document Receipt Date, the related Wet-Ink Mortgage Loan shall become a Dry Mortgage Loan.
(e) Upon Seller’s request to enter into a Transaction pursuant to Section 3(c) and assuming all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met (or been waived in writing by Purchaser or Agent with respect to Section 10(b)), and provided no Default or Event of Default shall have occurred and be continuing, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount and Purchaser may, in its sole discretion, in the case of a Transaction with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by transferring the Purchase Price (net of any related Initial Fee, Structuring Fee, Transaction Fee, Non-Utilization Fee or any other unpaid fees and expense then due and payable by Seller to Purchaser pursuant to the Agreement) in accordance with the following wire instructions or as otherwise provided: Receiving Bank: ▇▇▇▇▇ Fargo Bank ABA#: [***] Account Name: Velocity Commercial Capital Account Number: [***] Attention: DACA Team Seller acknowledges and agrees that the Purchase Price includes a mutually negotiated premium allocable to the portion of the Purchased Assets that constitutes the related Servicing Rights.
(f) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to Purchaser. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, Seller shall pay to Purchaser the Price Differential then due and payable for (x) all outstanding Transactions and (y) Purchased Assets for which Purchaser has received the related Repurchase Price (other than Price Differential) pursuant to Section 3(g) during the prior calendar month.
(g) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, Seller shall pay to Purchaser the related Repurchase Price (other than the related accrued Price Differential) together with any other Obligations then due and payable, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to Purchaser.
(h) If Agent determines in its sole discretion that any Change in Law or any change in accounting rules regarding capital requirements has the effect of reducing the rate of return on Purchaser’s capital or on the capital of any Affiliate of Purchaser under this Agreement as a consequence of such Change in Law or change in accounting rules, then from time to ▇▇▇▇ ▇▇▇▇▇▇ will compensate Purchaser or Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law or change in accounting rules on terms similar to those imposed by Purchaser thereafter and for the immediately preceding thirty (30) day period. Further, if due to the introduction of, any change in, or the compliance by Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions, then Seller shall, from time to time and upon demand by Purchaser, compensate Purchaser or Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder thereafter and for the immediately preceding thirty (30) day period. Purchaser shall provide Seller with prompt notice as to any such Change in Law, change in accounting rules or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof. Purchaser agrees that it shall treat all of its similarly-situated counterparties in the same manner.
(i) Seller shall pay to Agent on behalf of Purchaser the Non-Utilization Fee in accordance with the terms of the Pricing Side Letter. All payments shall be made to Purchaser in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Purchaser may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.
Appears in 1 contract
Sources: Master Repurchase Agreement (Velocity Financial, LLC)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer Agent on behalf of Buyers shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer Agent on behalf of Buyers and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein Subject to the contraryterms and conditions of the Program Documents, Buyer Agent on behalf of Buyers shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer Agent shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer Agent and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Except as otherwise expressly set forth in this Agreement, neither Agent nor any Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Agent on behalf of Buyers enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):): LEGAL02/41245355v3 Purchased Asset Type Required Delivery Items Required Delivery Time Required Recipient Required Purchase Time Eligible Loans (i) a Transaction Notice, appropriately completed, and (ii) a Loan Schedule No later than 11:00 a.m. (Eastern time) on the Business Day of the requested Purchase Date Agent No later than 4:30 p.m. (Eastern time) on the requested Purchase Date (i) a Loan Schedule and (ii) the Mortgage File for each Loan proposed to be included in such Transaction No later than 2:00 p.m. (Eastern time) on the Business Day of the requested Purchase Date Custodian At the Seller’s option, the Seller may provide an estimate of the next day Loan funding to be delivered to the Agent and Disbursement Agent. In addition to the foregoing, with respect to each eNote the Seller shall cause (on or prior to 11:00 a.m. (Eastern time) on the requested Purchase Date), (i) the Authoritative Copy of the related eNote to be delivered to the eVault via a secure electronic file, (ii) the Controller status of the related eNote to be transferred to Agent, (iii) the Location status of the related eNote to be transferred to Custodian, and (iv) the Delegatee status of the related eNote to be transferred to Custodian, in each case using MERS eDelivery and the MERS eRegistry. Each Transaction Notice shall include a Loan Schedule. Agent will confirm the terms of such Transaction, including the proposed Purchase Date, Purchase Price and Pricing Rate, by sending to the Seller, in electronic or other format, a “Confirmation”, no later than 12:30 p.m. (Eastern time) on the requested Purchase Date, which will be confirmed electronically (by email or otherwise) by Seller prior to Agent on behalf of Buyers entering into such Transaction. Any such Transaction Notice and the related Confirmation, together with this Agreement, shall constitute conclusive evidence, absent manifest error, of the terms agreed to between Agent on behalf of Buyers and the Seller with respect to the Transaction to which the Transaction Notice and Confirmation, if any, relates. By entering in to a Transaction with Agent on behalf of Buye▇▇, ▇▇e Seller consents to the terms set forth in any related Confirmation.
(b) Pursuant to the Custodial Agreement, the Custodian shall review the applicable documents in the applicable Mortgage Files delivered prior to 2:00 p.m. (Eastern time) by the Seller on any Business Day on the same day. Not later than 3:00 p.m. (Eastern time) on each Business Day, the Custodian shall deliver to Agent, via Electronic Transmission acceptable to Agent, the Custodial Loan Transmission showing the status of all Loans then held by the Custodian, including but not limited to an Exception Report showing all Loans which are subject to Exceptions, and the time the related Loan Documents have been released pursuant to Section 5(a) or 7(a) of the Custodial Agreement. In addition, in accordance with the Custodial Agreement the Custodian shall deliver to Agent upon the initial Transaction, a Trust Receipt with a Custodial Loan Transmission attached thereto. Each Custodial Loan Transmission subsequently delivered by the Custodian to Agent shall supersede and cancel the Custodial Loan Transmission previously delivered by the Custodian to Agent under the Custodial Agreement, and shall replace the Custodial Loan Transmission that is then appended to the Trust Receipt and shall control and be binding upon Agent, Seller, and the Custodian. The Trust Receipt shall be delivered in accordance with the terms of the Custodial Agreement.
(c) Upon the Seller’s request to enter into a Transaction pursuant to Section 3(a) hereof, Agent on behalf of Buyers shall with respect to the Committed Amount and may in its sole and absolute discretion with respect to the Uncommitted Amount, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and 9(b) hereof have been met, and provided no Default or Event of Default shall have occurred and be continuing, not later than the required time on the requested Purchase Date set forth in the table above (the “Required Purchase Time”) purchase the Eligible Loans included in the related Transaction Notice by transferring, via wire transfer (pursuant to the related wire transfer instructions set forth on Exhibit F hereto) in immediately available funds, the Purchase Price. The Seller acknowledges and agrees that the Purchase Price paid in connection with any Purchased Asset that is purchased in any Transaction includes a premium allocable to the portion of such Purchased Asset that constitutes the related Servicing Rights. The Servicing Rights and other servicing provisions under this LEGAL02/41245355v3 Agreement are not severable from or to be separated from the Purchased Assets under this Agreement, and such Servicing Rights and other servicing provisions of this Agreement constitute (a) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or other arrangement or other credit enhancement related to this Agreement within the meaning of Section 101(47)(A)(v) of the Bankruptcy Code.
(d) With respect to any request for a Wet-Ink Transaction, the provisions of this Section 3(d) shall be applicable.
(i) Unless otherwise agreed, Seller shall request that Agent on behalf of Buyers enter into a Wet-Ink Transaction with respect to any Purchased Asset that is a Wet-Ink Loan by delivering to Agent a Transaction Notice, appropriately completed, and to Agent and Custodian a Loan Schedule by 4:00 p.m. (Eastern time) on the Business Day of the requested Purchase Date.
(ii) On the requested Purchase Date for a Wet-Ink Transaction, Seller may deliver to Agent with a copy to Custodian, no more than five (5) transmissions. The latest transmission must be received by Agent no later than 4:00 p.m. (Eastern time), on such Purchase Date. Such Transaction Notice shall specify the requested Purchase Date.
(iii) Seller shall deliver (or cause to be delivered) and release to Custodian the Mortgage File pertaining to each such Wet-Ink Loan subject to the requested Transaction on or before the date that is twelve (12) Business Days following the applicable Purchase Date in accordance with the terms and conditions of the Custodial Agreement. Subject to the terms of the Custodial Agreement, on the applicable Purchase Date and on each Business Day following the applicable Purchase Date, no later than 5:00 p.m. (Eastern time) pursuant to the Custodial Agreement, Custodian shall deliver to Agent and Seller by email a schedule listing each Wet-Ink Loan subject to a Transaction with respect to which the complete Mortgage File has not been received by Custodian (the “Wet-Aged Report”). Agent may confirm that the information in the Wet-Aged Report is consistent with the information provided to Agent pursuant to Section 3(d)(i).
(iv) Upon Seller’s request for a Transaction pursuant to Section 3(d)(i), Agent on behalf of Buyers shall (with respect to the Committed Amount) and may in its sole and absolute discretion (with respect to the Uncommitted Amount), upon satisfaction of all conditions precedent set forth in this Section 3 and in Sections 9(a) and 9(b), and provided that no Default or Event of Default shall have occurred and be continuing, enter into a Transaction with Seller on the requested Purchase Date, in the amount so requested.
(v) Subject to this Section 3 and Sections 9(a) and 9(b), such Purchase Price will then be made available by Custodian transferring at the direction of Agent on behalf of Buyers, via wire transfer, the amount of such Purchase Price from the account of Agent on behalf of Buyers maintained with Custodian to the account of the designated Closing Agent pursuant to disbursement instructions provided by Seller on the electronic system maintained by Custodian; provided, however, that (i) Agent has been provided such disbursement instructions and shall not have rejected, in its reasonable discretion, any wiring location, (ii) Custodian shall not, in any event, (A) transfer funds to Seller or any Affiliate of Seller (other than Amrock LLC or one of its Subsidiaries in its capacity as Closing Agent) or (B) transfer funds in excess of the original principal balance of the related Wet-Ink Loan. Upon notice from the Closing Agent to Seller that the related Wet-Ink Loan was not originated, the Wet-Ink Loan shall be removed from the list of Eligible Loans and the Closing Agent shall immediately return the funds via wire transfer to the account of Agent on behalf of Buyers maintained with Custodian. Seller shall notify Agent if a Wet-Ink Loan was not originated and has been removed from the list of Eligible Loans.
(e) Anything herein to the contrary notwithstanding, if Agent determines in its commercially reasonable discretion that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining any LIBOR Rate, LIBOR Rates are no longer in existence, or a Governmental Authority having jurisdiction over Agent or any Buyer has made a public statement identifying a specific date after which any LIBOR Rate shall no longer be made available or used for LEGAL02/41245355v3 determining the interest rate of loans (such specific date, the “Scheduled Unavailability Date”), Agent shall give prompt notice thereof to Seller, whereupon the Applicable Pricing Rate from the date specified in such notice (and Agent shall use good faith efforts to ensure that such date specified is at least ninety (90) days (but in no event less than forty-five (45) days) prior to such anticipated Scheduled Unavailability Date), until such time as the notice has been withdrawn by Agent, shall be an alternative benchmark rate (including any mathematical or other adjustments to the benchmark rate (if any) incorporated therein) (any such rate, a “Successor Rate”), together with any proposed Successor Rate Conforming Changes, as determined by Agent in its commercially reasonable discretion and consented to by the Seller (such consent not to be unreasonably withheld) prior to such Scheduled Unavailability Date. The Successor Rate will be determined by Agent (subject to the consent of the Seller) with due consideration to the then prevailing market practice for determining a rate of interest for newly originated commercial loans in the United States and in a manner and format consistent with Agent or the applicable Buyer’s established business practices relating to entities similar to Agent or such Buyer, as applicable, and to purchased assets similar to the Loans, and may reflect appropriate mathematical or other adjustments to account for the transition from the One-Month LIBOR Rate to the Successor Rate (including any Successor Rate Conforming Changes); provided, further, that the foregoing shall only apply to repurchase transactions that are under the supervision of the New York structured finance group of Agent or such Buyer, as applicable. If Seller and Agent are unable to mutually agree upon a Successor Rate and Successor Rate Conforming Changes by the Scheduled Unavailability Date, then Agent’s determination of Successor Rate and Successor Rate Conforming Changes shall govern; provided that Seller, by delivery of written notice to the Agent, within forty five (45) days following the Scheduled Unavailability Date, may terminate the Program Documents, effective upon repurchase of all (but not a portion) of the aggregate Purchased Assets by repayment of the Repurchase Price therefor and payment of all other Obligations outstanding under the Program Documents.
(f) The Seller shall repurchase, and Agent on behalf of Buyers shall sell, Purchased Assets from Agent on behalf of Buyers on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset (but liquidation or foreclosure proceeds received by Agent on behalf of Buyers shall be applied to reduce the Repurchase Price for such Purchased Asset). Upon receipt of the Repurchase Price in full therefor and provided that no Default or Event of Default shall have occurred and be continuing, Agent on behalf of Buyers is obligated to deliver (or cause its designee to deliver) physical possession of the Purchased Assets (or Control with respect to eMortgage Loans) to Seller or its designee on the related Repurchase Date. Upon such transfer of the Loans back to Seller, ownership of each Loan, including each document in the related Mortgage File and Records, is vested in Seller. Notwithstanding the foregoing, if such release and termination gives rise to or perpetuates a Margin Deficit, Agent shall notify the Seller of the amount thereof and the Seller shall thereupon satisfy the Margin Call in the manner specified in Section 6(b), following which Agent shall promptly perform its obligations as set forth above in this Section 3(f). Notwithstanding anything herein to the contrary, Seller shall have the right to repurchase any or all of the Purchased Assets at any time upon one (1) Business Day’s prior notice to Agent, without incurring breakage fees.
(g) On any Repurchase Date, the Seller may, without cause and for any reason whatsoever, terminate this Agreement and effectuate a repurchase of all Purchased Assets then subject to Transactions at the related aggregate Repurchase Price (a “Seller Termination”); provided that Seller shall (i) exercise such termination rights in good faith, and (ii) remit the Repurchase Price for such Purchased Assets and satisfy all other outstanding Obligations within one (1) Business Day of such Repurchase Date. The Seller hereby acknowledges and agrees that upon the occurrence of a Seller Termination, the Seller shall not be entitled to repayment or reimbursement of any fees, costs or expenses paid by the Seller to Agent or any Buyer under this Agreement or any other Program Document, unless otherwise expressly provided for under this Agreement; provided that as a condition to such Seller Termination, Seller shall remit to NCFA Buyer all unpaid installments of the Commitment Fee.
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall will use commercially reasonable efforts to provide Seller with at least ten seven (107) Business Days’ prior written notice and shall in no event provide, less than three (3) Business Days’ notice, before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer ▇▇▇▇▇ and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer Agent on behalf of Buyers shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer Agent on behalf of Buyers and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein Subject to the contraryterms and conditions of the Program Documents, Buyer Agent on behalf of Buyers shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer Agent shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer Agent and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Except as otherwise expressly set forth in this Agreement, neither Agent nor any Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Agent on behalf of Buyers enter into a Transaction with respect to any Purchased Asset by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):): LEGAL02/40118759v8
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have .
(b) Subject to the rightterms and conditions of the Program Documents, howeverPurchaser shall, up to terminate any Transactions the Committed Amount, and may, with respect to the Uncommitted Amount after at the sole discretion of Purchaser or Agent, enter into Transactions provided, that the Aggregate MRA Purchase Date until Price shall not exceed, as of any date of determination, the related Repurchase Date. lesser of (i) the Maximum Aggregate Purchase Price and (ii) the Asset Base.
(c) Unless otherwise agreed, with respect if Seller wishes to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset by delivering one or more Eligible Mortgage Loans, then Seller shall deliver a Prefunding Request to Purchaser and Disbursement Agent no later than [***] (New York City time) on the Business Day prior to the indicated required parties requested Purchase Date, which Prefunding Request shall specify the amount that Seller requests Purchaser to fund on the related Purchase Date (eachsuch amount, the “Prefunded Amount”), which Prefunded Amount shall not be less than [***] and shall represent a “Required Recipient”good faith estimate of the amount needed for the fundings on the next Business Day. By submitting the Prefunding Request, Seller shall be deemed to have represented that no Responsible Officer of Seller has knowledge of any fact or circumstance that would cause such Responsible Officer to reasonably believe Seller could not represent that all conditions precedent to the Transactions expected to occur the following day shall be satisfied and that all Mortgage Loans to be purchased will be Eligible Mortgage Loans. If all such conditions precedent are satisfied, then Purchaser shall make commercially reasonable efforts to remit the Prefunded Amount to the Disbursement Account by [***] (New York City time) on the required delivery items Purchase Date; provided that if the Prefunded Amount would require the use of the Uncommitted Amount, Purchaser may choose to reduce the Prefunded Amount accordingly. Remitting the Prefunded Amount to the Disbursement Account shall not constitute a purchase or an agreement to purchase any Mortgage Loan.
(eachd) Once a Prefunding Request has been submitted, Seller may request that Purchaser actually purchase Eligible Mortgage Loans by submitting Seller Mortgage Loan Schedules to Purchaser and Custodian. Seller may submit up to [***] Seller Mortgage Loan Schedules at any time after the submission of the Prefunding Request until [***] (New York City time) on the Purchase Date. By submitting a “Required Delivery Item”) Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the table below form of Transaction Notice attached as Exhibit C hereto. Upon Seller’s request to enter into a Transaction pursuant to this Section 3(d), if all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, if all Mortgage Loans to be purchased are Eligible Mortgage Loans, and if no Default or Event of Default shall have occurred and be continuing, then, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount, and may, in its sole discretion with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by instructing the corresponding required delivery time Disbursement Agent to disburse the Purchase Price (net of any related Structuring Fee, Non-Utilization Fee, or any other unpaid fees and expense then due and payable by Seller to Purchaser pursuant to this Agreement) in accordance with the Custodial and Disbursement Agreement. No later than [***] (New York City time) on each Purchase Date, Seller shall submit via email to Purchaser and Disbursement Agent the amount of the Seller Funded Portion then standing to the credit of the Disbursement Account related to rescissions, other unfunded Mortgage Loans or any other unused amounts that Seller has calculated should be returned to Seller (the “Required Delivery TimeProposed Seller Refund”):). No later than [***] (New York City time), the Purchaser shall subsequently respond via email to Seller and Disbursement Agent to confirm or contest Seller’s calculation of the Proposed Seller Refund. If Purchaser confirms Seller’s calculation of the Proposed Seller Refund, then no later than [***] (New York City time), Seller shall subsequently initiate a wire for the amount of such Proposed Seller Refund from the Disbursement Account. Disbursement Agent shall verify that (i) Purchaser has confirmed Seller’s calculation of the Proposed Seller Refund and (ii) the amount of such wire matches the amount of the Proposed Seller Refund and, upon verification of clauses (i) and (ii), shall release the wire to Seller pursuant to the wire instructions Seller provides. To the extent Purchaser contests or does not otherwise confirm the Proposed Seller Refund, Seller shall not initiate any wires from the Disbursement Account. With respect to any amounts remaining in the Disbursement Account at [***] (New York City time) on each Business Day, Disbursement Agent shall sweep such amount Purchaser in accordance with the terms of the Custodial and Disbursement Agreement.
Appears in 1 contract
Sources: Master Repurchase Agreement (Home Point Capital Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amountmay, from time to time, time enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Loans subject to outstanding Transactions at any one time Assets shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. The Buyer shall not have the right, howeverupon written notice to the related Seller, to terminate any Transactions with respect to the Uncommitted Amount after and require the repurchase of any such Assets within two Business Days of such notice. Buyer shall have the obligation to enter into Transactions up to the Maximum Aggregate Purchase Date until the related Repurchase DatePrice. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction (i) with respect to Loans by delivering: (A) a Transaction Notice substantially in the form of Exhibit D-1 hereto (a “Loan Transaction Notice”), appropriately completed, and a Loan Data Transmission to Buyer and Custodian, and (B) the Mortgage File to Custodian for each Loan proposed to be included in such Transaction, which Transaction Notice and Loan Data Transmission must be received no later than (x) in the case of Dry Loans, 12:00 p.m. (New York City time) one Business Day prior to the requested Purchase Date, (y) in the case of AM Funded Wet Loans, 12:00 p.m. (New York City time) on the requested Purchase Date and (z) in the case of PM Funded Wet Loans, 3:00 p.m. (New York City time) on the requested Purchase Date, (ii) with respect to Bonds, by delivering: (A) a Bond Summary, (B) an irrevocable Transaction Notice substantially in the form of Exhibit D-2 (a “Bond Transaction Notice”), appropriately completed, to the Bond Custodian with a copy to the Buyer (if the Buyer is not the Bond Custodian), which must be received by no later than 10:00 a.m. three (3) days prior to the requested Purchase Date; and (C) the Bond Files in accordance with Section 3(c); and (iii) with respect to Eligible Pledged Stocks, by delivering: (A) a Pledged Stock Summary, (B) an irrevocable Transaction Notice substantially in the form of Exhibit D-3 (a “Pledged Stock Transaction Notice”), appropriately completed, to the Bond Custodian with a copy to the Buyer (if the Buyer is not the Bond Custodian), which must be received no later by no later than 10:00 a.m. (New York City time) three (3) days prior to the requested Purchase Date and (C) the Pledged Stock in accordance with Section 3(d). Each Loan Transaction Notice shall clearly indicate those Loans that are intended to be Wet Loans and Dry Loans and include a Loan List in respect of the Loans that the related Seller proposes to include in the related Transaction. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price (which shall in all events be at least equal to $1,000,000), Pricing Rate and Repurchase Date. In addition, each Transaction Notice shall set forth the related Purchase Price allocable to each individual Asset, as set forth on the attached Loan Schedule or Bond Summary, as applicable. The related Seller agrees to immediately report to Custodian and the Buyer by facsimile transmission within one Business Day of discovery that any Wet Loans that were previously subject to a Transaction do not close for any reason including, but not limited to, a Rescission. The Buyers shall deliver to the Seller, by electronic or other format, a “Confirmation” specifying such terms prior to entering into such Transaction, including, without limitation, the Purchase Date, the Purchase Price, the Pricing Rate therefor and the Repurchase Date. By entering into a Transaction with the Buyer, the related Seller consents to the terms set forth in the related Confirmation. Any such Confirmation and the related Transaction Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and the related Seller with respect to the Transaction to which the Confirmation relates. In the event of any conflict between this Agreement and a Confirmation, the terms of the Confirmation shall control with respect to the related Transaction. The Buyer shall not be required to honor requests to enter into (A) more than one Transaction per week with respect to Bonds and Pledged Stock as to which the related Purchase Price would be less than $5,000,000, or (B) more than one Transaction per Business Day with respect to Dry Loans as to which the related Purchase Price would be less than $5,000,000, or (C) more than two Transactions per Business Day with respect to Wet Loans as to which the related Purchase Price would be less than $1,000,000.
(b) Pursuant to the Custodial Agreement, the Custodian shall review any Required Documents delivered prior to 10:00 a.m. (New York City time) on any Business Day on the same day. Not later than 5:00 p.m. (New York City time) on each Business Day, the Custodian shall deliver to the Buyer, via Electronic Transmission acceptable to the Buyer, the Custodian Loan Transmission and an Exception Report showing the status of all Loans then held by the Custodian, including but not limited to the Wet Loans and Dry Loans which are subject to Exceptions, and the time the related Loan Documents have been released pursuant to Sections 5(a) or 5(b) of the Custodial Agreement. With respect to Eligible Loans, the Custodian shall deliver to the Buyer by no later than (i) in the case of AM Funded Wet Loans, 1:00 p.m. (New York City time) and (ii) in the case of PM Funded Wet Loans or Dry Loans, 4:00 p.m. (New York City time), by facsimile transmission or by electronic transmission via e-mail on each Purchase Date, one or more cumulative Trust Receipts (as defined in the Custodial Agreement) relating to either Wet Loans or Dry Loans. The original copies of such Trust Receipts shall be delivered to JPMorgan Chase Bank at Four New York Plaza, Ground Floor, Outsourcing Department, New York, New York 10004, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇ for the account of Greenwich Capital Markets, telephone number (XXX) XXX-XXXX, as agent for the Buyer by overnight delivery using a nationally recognized insured overnight delivery service.
(c) With respect to Bonds, the Sellers shall (i) deliver to the Bond Custodian by no later than 10:00 a.m. (New York City time) three (3) days prior to the requested Purchase Date, copies of the documents in the related Bond Files, and (ii) deliver the originals (unless copies are specified) of such documents, including the Bonds, to the Bond Custodian no later than 3:00 p.m. (New York City time) on such Purchase Date. Sellers shall deliver the original Eligible Bonds as follows:
(i) with respect to Bonds delivered or held in definitive, certificated form, the Sellers shall deliver to the Buyer or the Bond Custodian, as applicable, the original of the relevant certificate in form suitable for transfer, with accompanying, duly executed instruments of transfer or appropriate instruments of assignment executed in the name of the Buyer or the Bond Custodian, as applicable, transfer tax stamps, and any other documents or instruments necessary in the reasonable opinion of the Buyer to effect and perfect a legally valid delivery of such security or other item of investment property to the Buyer or the Bond Custodian. Unless otherwise instructed by the Buyer, any delivery of a security or other item of investment property in definitive, certificated form shall be made to JPMorgan Chase Bank, National Association, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Outsourcing Department, ▇▇▇▇▇▇▇▇ ▇▇▇▇.
(ii) With respect to Bonds delivered through a Relevant System in book-entry form and credited to or otherwise held in an account, the Sellers shall provide written instructions to the relevant financial institution or other entity, and a copy thereof to the Buyer, sufficient if complied with to effect and perfect a legally valid delivery of the relevant interest granted therein to Buyer hereunder. In connection with any account to which the Eligible Bonds are credited or otherwise held, the Sellers shall execute and deliver such other and further documents or instruments necessary, in the reasonable opinion of the Buyer, to effect and perfect a legally valid delivery of the relevant interest granted therein to Buyer hereunder. Any account to which the Eligible Bonds are credited or otherwise shall be designated “Greenwich Capital Financial Products, Inc. Account” or such variation thereon as the Buyer may direct.
(iii) If Buyer elects, in its sole discretion, to accept Bonds in the name of a Seller, then concurrently with the delivery to the Buyer or the Bond Custodian of each original of the relevant certificate representing one or more Bonds in the form suitable for transfer with accompanying, duly executed instruments of transfer or appropriate instruments or assignment executed in blank, the related Seller shall deliver an undated stock power covering such certificate, duly executed by such Seller with, if the Buyer so requests, signature guaranteed, along with any other documents necessary to re-register the Bonds.
(d) With respect to Pledged Stock, the Sellers shall deliver to the Bond Custodian by no later than 10:00 a.m. (New York City time) three (3) days prior to the requested Purchase Date, with copies to the Buyer (if the Buyer is not the Bond Custodian), the original Pledged Stock. All Pledged Stock shall be delivered or held in definitive, certificated form. The Sellers shall deliver to the Bond Custodian the original of the relevant certificate in form suitable for transfer, with accompanying, duly executed instruments of transfer or appropriate instruments of assignment executed in the name of the Buyer or the Bond Custodian, as applicable, transfer tax stamps, and any other documents or instruments necessary in the reasonable opinion of the Buyer to effect and perfect a legally valid delivery of such security or other item of investment property to the Buyer or the Bond Custodian. Unless otherwise instructed by Buyer, any delivery of a security or other item of investment property in definitive, certificated form shall be made to JPMorgan Chase Bank, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Outsourcing Department, ▇▇▇▇▇▇▇▇ ▇▇▇▇.
(e) Upon a Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, not later than 5:00 p.m. (New York City time) on the requested Purchase Date purchase the Eligible Assets included in the related Transaction Notice by transferring, via wire transfer (pursuant to wire transfer instructions provided by such Seller on or prior to such Purchase Date), the Purchase Price.
(f) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Rate:
(i) the Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein; or
(ii) the Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely adequately to cover the cost to the Buyer of purchasing and holding Assets hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Rate; then the Buyer shall give the Sellers prompt notice thereof and, so long as such condition remains in effect, the Buyer shall be under no obligation to purchase Assets hereunder, and the Sellers shall, at their option, either repurchase the Purchased Assets (the date of such repurchase being deemed a Repurchase Date for all purposes of this Agreement) or pay a Pricing Rate at a rate per annum as determined by the Buyer taking into account the increased cost to the Buyer of purchasing and holding the Assets.
(g) Sellers shall repurchase the related Purchased Assets from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset. Sellers are obligated to obtain the related Purchased Assets from Buyer or its designee (including the Custodian) at Sellers’ joint and several expense on (or after) the related Repurchase Date.
(h) Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, a Purchased Asset that is repurchased by delivering such Seller on the Repurchase Date (other than pursuant to Section 3(f) or Section 19 hereof) shall, provided that such Repurchase Date occurs prior to the indicated required parties Termination Date, automatically become subject to a new Transaction unless such Seller delivers notice of repurchase to Buyer with a copy to Custodian not later than 11:00 a.m. New York City time at least two (each2) Business Days prior to any such Repurchase Date. Buyer shall purchase the related Eligible Assets pursuant to the procedures set forth in Section 3(e). Notwithstanding any other provision of this Agreement, a “Required Recipient”in the event that the Repurchase Date for such new Transaction as determined under any other provision of this Agreement would be later than the Termination Date, the Repurchase Date shall instead be the Termination Date. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Pricing Side Letter.
(i) If a Seller intends to repurchase any Assets on any day which is not a Repurchase Date, such Seller shall give two (2) Business Days’ prior written notice thereof to the Buyer. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid. Such early repurchases shall be in an aggregate principal amount of at least $100,000.
(j) [reserved]
(k) If any Requirement of Law (other than with respect to any amendment made to the Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by the corresponding required delivery time Buyer with any request or directive (whether or not having the “Required Delivery Time”):force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject the Buyer to any tax of any kind whatsoever with respect to this Agreement or any Loans purchased pursuant to it (excluding net income taxes) or change the basis of taxation of payments to the Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of the Buyer which is not otherwise included in the determination of the LIBO Rate hereunder;
(iii) shall impose on the Buyer any other condition; and the result of any of the foregoing is to increase the cost to the Buyer, by an amount which the Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Sellers shall promptly pay the Buyer such additional amount or amounts as will compensate the Buyer for such increased cost or reduced amount receivable thereafter incurred. If the Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to the Buyer’s certificate of incorporation and
Appears in 1 contract
Sources: Master Repurchase Agreement (Novastar Financial Inc)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, Amount and may in its sole discretionmay, with respect to the Uncommitted Amount, from time to timeas requested by a Seller, enter into Transactions with an aggregate a Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein With respect to Certificates, the contrary, Purchase Price will be determined based upon the aggregate Market Value of the Loans owned or to be acquired on the related Purchase Date by the related Trust. Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into , which Transactions with Seller for all or any portion of respect to the Uncommitted AmountAmount shall be entered into in the sole discretion of Buyer. Unless otherwise agreed to between Buyer and the Seller in writingby Buyer, all purchases of Eligible Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. .
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction by delivering to Buyer: (i) a Transaction Notice, (ii) an estimate of the Purchase Price for such Transaction, which in the case of a Certificate shall be determined using the amount allocable to the Loans owned by or proposed to be transferred to the related Trust represented by such Certificate (which estimate may be included in a Transaction Notice), and (iii) a copy of the original Custodial Certification issued by the applicable Custodian to the related Loan Seller or the related Trust, as applicable, showing that the related Mortgage Asset Files for each such Loan are held by the Custodian under the applicable Custodial Agreement without Exceptions. A copy of each Custodial Certifications shall be delivered to ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the account of Citibank, N.A., telephone number (▇▇▇) ▇▇▇-▇▇▇▇, as agent for Buyer by overnight delivery using a nationally recognized insured overnight delivery service. In addition, the related Seller will deliver to Buyer or cause Custodian to deliver to Buyer on each Business Day, via Electronic Transmission acceptable to Buyer, an electronic data file with respect to all Purchased Loans and Loans held by Custodian on behalf of each Trust represented by a Purchased Certificate subject to a Transaction and an Exception Report showing the status of all Purchased Loans and Loans then held by Custodian for each such Trust, including but not limited to the Loans which are subject to Exceptions, and the time the related Loan Documents have been released in accordance with the terms of the applicable Custodial Agreement. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price (which shall in all events be at least equal to $1,000,000 on each day that there is a Transaction), Pricing Rate, and Repurchase Date. In addition, each Transaction Notice shall set forth the related portion of the Purchase Price for such Transaction that is allocable to each individual Loan. Each Transaction Notice shall clearly indicate whether each such Loan is intended to be a Residential Loan, a Business Purpose Loan or a ReadyCap Origination Loan, and shall include a Loan Schedule in respect of the Loans proposed to be sold to or owned by the related Trust represented by the related Purchased Certificate or the Certificate that a Seller proposes to include in the related Transaction. Buyer shall notify the related Seller of its agreement to enter into a Transaction and confirm the terms of such Transaction, by delivering to the related Seller a Funding Notice specifying the Loans or Trust Certificates (or Loans to be acquired by a Trust represented by a Purchased Certificate) Buyer agrees to include in such Transaction on the related Purchase Date and the portion of the related aggregate Purchase Price allocable to each Loan to be purchased or owned by the related Trust, and any other terms of the related Transaction. In the event of a conflict between the terms set forth in the Transaction Notice delivered by a Seller to Buyer and the terms set forth in the related Funding Notice delivered by Buyer to such Seller, the terms of the related Funding Notice shall control absent manifest error. In the event of a conflict between the terms set forth in this Agreement and the terms set forth in any Funding Notice, the terms of such Funding Notice shall control to the extent that the Funding Notice notes such conflict and specifies that the Funding Notice shall control. By entering into a Transaction with Buyer, each Seller consents to the terms set forth in the related Funding Notice. The Funding Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and the related Seller with respect to the Transaction to which the Funding Notice relates.
(c) Upon a Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, enter into a Transaction for the purchase of Loans, purchase of Loans by a Trust represented by a Purchased Certificate or a Certificate, as applicable, by transferring to the related Seller or at such Seller’s direction, via wire transfer in accordance with the written wire transfer instructions provided by such Seller, the Purchase Price in immediately available funds on the related Purchase Date. With respect to each Certificate, the Purchase Price shall be determined using the Market Value of the Loans owned by the related Trust and included in the related Funding Notice. Each Seller acknowledges and agrees that the Purchase Price paid and determined based on the Market Value of any Loans related to any Transaction includes a mutually negotiated premium allocated to the portion of the related Loans that constitutes the related Servicing Rights, which Servicing Rights shall be owned by the Buyer with respect to Purchased Loans and by the related Trust with respect to Purchased Certificates.
(d) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein;
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Purchased Assets hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and the related Seller shall, at its option, either (a) pay the Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of such Seller’s receipt of such notice from Buyer and terminate this Agreement or (b) pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of maintaining the Transactions. In the event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a prorated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective.
(e) Sellers shall repurchase the related Purchased Assets from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset Loan or any Loan held by delivering the Trust.
(f) Provided that no Default shall have occurred and be continuing, unless Buyer is notified by the Sellers to the indicated required parties contrary not later than 11:00 a.m. New York City time at least two (each2) Business Days prior to any such Repurchase Date, on each related Repurchase Date each Purchased Asset shall automatically become subject to a new Transaction. In such event, the related Repurchase Date on which such Transaction becomes subject to a new Transaction shall become the “Required Recipient”Purchase Date” for such Transaction. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table Pricing Side Letter.
(g) If a Seller intends to repurchase any Purchased Assets or pay the portion of the Repurchase Price allocable to any Loans on any day that is not a Repurchase Date, such Seller shall give prior written notice thereof to Buyer by 2:00 p.m. (New York City time) on the date of repurchase. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid.
(h) If any change in a Requirement of Law after the date hereof (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever (excluding Excluded Taxes, Other Taxes, and any Tax imposed on or with respect to payments made under any Program Document) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder; or
(iii) shall impose on Buyer any other condition (other than taxes); and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and Sellers shall, at their option, either (a) pay the Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of Sellers’ receipt of such notice from Buyer and terminate this Agreement or (b) promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable. In the event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a pro-rated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective.
(i) If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Loans or Certificates hereunder, and Sellers shall, at their option, either (a) pay the corresponding required delivery time Repurchase Price and all other Obligations then due and owing hereunder within thirty (30) days of Sellers’ receipt of such notice from Buyer and terminate this Agreement or (b) promptly pay to Buyer such additional amount or amounts as will thereafter compensate Buyer for any such reduction that was incurred by Buyer within ninety (90) days of Buyer’s notice thereof. In the “Required Delivery Time”):event Sellers elect to pay the Repurchase Price and all other Obligations and terminate this Agreement pursuant to clause (a) above, Sellers shall be entitled to a refund of a pro-rated portion of any Commitment Fee actually paid by Sellers with respect to any period after the date on which such payment and termination become effective. If Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Sellers of the event by reason of which it has become so entitled providing reasonable supporting detail as to such additional amounts. A certificate as to any additional amounts payable pursuant to this subsection submitted by Buyer to Sellers shall be conclusive in the absence of manifest error.
(j) Provided no Default or Event of Default has occurred and is continuing, Sellers may request that Buyer agree to extend the Termination Date for a period of one hundred eighty (180) days by providing a written request for such extension to Buyer no earlier than one hundred twenty (120) days prior to the Termination Date, but no later than sixty (60) days prior to the Termination Date; provided that such extension of the Termination Date shall be at Buyer’s sole discretion and shall be effective on the then current Termination Date and any Transactions outstanding on the then current Termination Date shall be terminated and new Transactions shall be entered into as of such date.
Appears in 1 contract
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at Purchaser shall not have any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into any Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Loans subject to outstanding Transactions at any one time Assets hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, the Purchaser may enter into Transactions; provided, that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Maximum Aggregate Purchase Date until the related Repurchase Date. Price.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Mortgage Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”): Purchased Asset Type Required Delivery Items Required Delivery Time Required Recipient Required Purchase Time Eligible Mortgage Loan Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser, Agent and Custodian No later than 5:00 p.m. (New York City time) on the requested Purchase Date The complete Mortgage Files to Custodian for each Mortgage Loan subject to such Transaction Custodian The date on which any notice pursuant to this Section 3(c) is given is known as the “Notice Date”. By submitting a Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the form of Transaction Notice attached as Exhibit C hereto.
(d) Upon Seller’s request to enter into a Transaction pursuant to Section 3(c) and assuming all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, and provided no Default or Event of Default shall have occurred and be continuing, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount, and may, in its sole discretion, in the case of a Transaction with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by transferring the Purchase Price (net of any unpaid Commitment Fee or any other unpaid fees and expense then due and payable by Seller to the Purchaser pursuant to this Agreement) in accordance with Seller’s Wire Instructions or as otherwise provided. Seller acknowledges and agrees that the Purchase Price includes a mutually negotiated premium allocable to the portion of the Purchased Items that constitutes the related Servicing Rights.
(e) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to the Purchaser from Seller. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, Seller shall pay to the Purchaser the Price Differential then due and payable by it for (x) all outstanding related Transactions and (y) Purchased Assets for which the Purchaser has received the related Repurchase Price (other than Price Differential) pursuant to Section 3(f) during the prior calendar month.
(f) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, Seller shall pay to the Purchaser the related Repurchase Price (other than the related accrued Price Differential) together with any other Obligations then due and payable, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to the Purchaser, as set forth in Section 6.
(g) If Agent determines in its sole discretion that any Change in Law or any change in accounting rules regarding capital requirements has the effect of reducing the rate of return on either Purchaser’s capital or on the capital of any Affiliate of either Purchaser under this Agreement as a consequence of such Change in Law or change in accounting rules (it being understood that Purchaser will make such determination consistent with those made with respect to similar borrowers or sellers under similar credit or repurchase agreements), then from time to ▇▇▇▇ ▇▇▇▇▇▇ will compensate the Purchaser or Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law or change in accounting rules on terms similar to those imposed by the Purchaser. Further, if due to the introduction of, any change in, or the compliance by either Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to the Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions (it being understood that Purchaser will make the foregoing determinations consistent with those made with respect to similar borrowers or sellers under similar credit or repurchase agreements), then Seller shall, from time to time and upon demand by the Purchaser, compensate the Purchaser or Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder. The Purchaser shall provide Seller with notice as to any such Change in Law, change in accounting rules or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof.
(h) Following the date on which Seller requests and receives term funding from Purchaser, Seller shall indemnify the Purchaser and hold the Purchaser harmless from any losses, costs and/or expenses that the Purchaser may sustain or incur as a result of terminating any Transaction on or before a Repurchase Date arising from the reemployment of funds obtained by the Purchaser hereunder or from actual out-of-pocket fees and expenses payable to terminate the deposits from which such funds were obtained (“Breakage Costs”). The Agent shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by the Purchaser to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. The provisions of this Section 3(h) shall survive termination of this Agreement.
(i) If on any Business Day Agent determines (which determination shall be conclusive absent manifest error) (a) that adequate and reasonable means do not exist for ascertaining LIBOR; or (b) that LIBOR will not adequately and fairly reflect the cost to the Purchaser of entering into or maintaining outstanding Transactions; or (c) that it has become unlawful for it to honor its obligation to enter into or maintain outstanding Transactions hereunder using LIBOR, then Agent shall give notice thereof to Seller by telephone, facsimile, or other electronic means as promptly as practicable thereafter and, until Agent notifies Seller that the circumstances giving rise to such notice no longer exist, the Pricing Rate included in any Confirmation with respect to new Transactions and in any calculation of the Price Differential with respect to outstanding Transactions will be determined, subject to the timely approval of Seller after receipt of notice of such revised rate, at a rate per annum that the Purchaser determine in its reasonable discretion adequately reflects the cost to the Purchaser of making or maintaining such Transactions.
(j) REO Property.
(i) Seller has taken all actions necessary to fully establish the REO Subsidiary, including, but without limitation, filing a certificate of formation with the applicable state and executing the LLC Agreement.
(ii) Seller (A) holds and will transfer, upon REO Subsidiary becoming a party to the Custodial Agreement, certain REO Properties unrelated to Mortgage Loans that are Purchased Assets (the “Initial REO Properties”) to the REO Subsidiary and shall promptly transfer the REO Asset along with written notice of the Transaction in the form of an REO Subsidiary Schedule of Assets to the Purchaser and Custodian and has transferred to the Custodian electronic copies of the applicable REO Deeds (such date, the “Initial REO Transfer Date”) and (B) (x) subject to any applicable redemption period, has delivered to the Purchaser evidence, as described in clause (iv) hereof, that Seller has caused the REO Deed to be sent for recording in the applicable office of the applicable jurisdiction and (y) has transferred to the Custodian the related REO Property File as the documents contained in therein come into existence.
(iii) At any time subsequent to the initial Transaction that a Mortgage Loan that is a Purchased Asset is foreclosed upon, (A) the record title in such Mortgage Loan shall promptly be vested in and retained by the Nominee, and Seller shall transfer to the Custodian an electronic copy of the related REO Deed (such date, the “Foreclosure Date”) and (B) Seller shall (x) subject to any applicable redemption period, promptly deliver to Purchaser evidence, as described in clause (iv) hereof, that Seller has caused the REO Deed to be sent for recording in the applicable office of the applicable jurisdiction and (y) promptly transfer to the Custodian the related REO Property File as the documents contained in therein come into existence; but, with respect items related to insurance, no more than twenty (20) days, and with respect to items related to the REO Deed, no more than forty-five (45) days, in each case from the Foreclosure Date, unless otherwise agreed to by Purchaser or Agent; provided that if Seller fails to deliver such evidence provided in (x) and (y) of this clause (iii) within the applicable time periods, the related REO Property shall have a Market Value of zero.
(iv) For purposes of this Agreement, a Mortgage Loan that is a Purchased Asset shall be deemed to have converted into an REO Property upon the earliest to occur of the following: (A) an REO Deed shall have been received in the name of the Nominee of the REO Subsidiary with respect to the Mortgaged Property related to such Mortgage Loan; (B) the Nominee of the REO Subsidiary shall have received a receipt or other written acknowledgment acceptable to Purchaser from the filing clerk evidencing the submission for filing of an REO Deed with respect to the Mortgaged Property related to such Mortgage Loan, (C) the Nominee of the REO Subsidiary shall have received a receipt issued by a Governmental Authority evidencing the REO Subsidiary’s right to receive the REO Deed for the Mortgaged Property related to such Mortgage Loan or (D) Purchaser shall have received such other evidence of the Nominee of the REO Subsidiary’s interest in such Converted REO Property acceptable to Purchaser in its reasonable discretion.
(v) On any Foreclosure Date, a Transaction shall be deemed to occur with respect to the Converted REO Property, and the Repurchase Price with respect to such Mortgage Loan shall be reduced to zero and such Repurchase Price shall be accounted for in determining the Purchase Price of such Converted REO Property. A Transaction Notice shall not be required for any such deemed Transaction to occur; however, Seller shall provide prompt written notice in the form of an REO Subsidiary Schedule of Assets to Purchaser and Custodian upon such deemed conversion.
(vi) Pursuant to that certain Flow Assignment Agreement, to be dated at a date following the Effective Date, between REO Subsidiary and RMS, RMS may from time to time assign certain Eligible Mortgage Loans subject to a Transaction to REO Subsidiary. Upon the assignment of any such Eligible Mortgage Loan to REO Subsidiary, Seller shall provide notice thereof to the Purchaser and deliver to the Purchaser an updated Seller Mortgage Loan Schedule showing updated ownership of Eligible Mortgage Loans subject to a Transaction. Thereafter, Seller shall cause REO Subsidiary to fulfill all obligations with respect to such Eligible Mortgage Loans (including without limitation those in Sections 3(e) and (f)). To the extent that an Eligible Mortgage Loan subject to a Transaction is transferred to REO Subsidiary, the value of the REO Asset shall be deemed not to increase by the Purchase Price of such Eligible Mortgage Loans; however any such Eligible Mortgage Loan will retain the Purchase Price assigned to it when it became subject to a Transaction.
(vii) Notwithstanding any of the foregoing, if a Mortgagor shall resume payments on any Eligible Mortgage Loans held by the REO Subsidiary, the parties hereto agree that the REO Subsidiary shall immediately assign such Eligible Mortgage Loans to Seller and provide notice thereof to the Custodian and the Purchaser (in the case of the Purchaser, along with an updated Seller Mortgage Loan Schedule showing updated ownership of Eligible Mortgage Loans subject to a Transaction).
Appears in 1 contract
Sources: Master Repurchase Agreement
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have .
(b) Subject to the rightterms and conditions of the Program Documents, howeverPurchaser shall, up to terminate any Transactions the Committed Amount, and may, with respect to the Uncommitted Amount after at the sole discretion of Purchaser or Agent, enter into Transactions provided, that the Aggregate MRA Purchase Date until Price shall not exceed, as of any date of determination, the related Repurchase Date. lesser of (i) the Maximum Aggregate Purchase Price and (ii) the Asset Base.
(c) Unless otherwise agreed, with respect if Seller wishes to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset by delivering one or more Eligible Mortgage Loans, then Seller shall deliver a Prefunding Request to Purchaser and Disbursement Agent no later than [***] (New York City time) on the Business Day prior to the indicated required parties requested Purchase Date, which Prefunding Request shall specify the amount that Seller requests Purchaser to fund on the related Purchase Date (eachsuch amount, the “Prefunded Amount”), which Prefunded Amount shall not be less than [***] and shall represent a “Required Recipient”good faith estimate of the amount needed for the fundings on the next Business Day. By submitting the Prefunding Request, Seller shall be deemed to have represented that no Responsible Officer of Seller has knowledge of any fact or circumstance that would cause such Responsible Officer to reasonably believe Seller could not represent that all conditions precedent to the Transactions expected to occur the following day shall be satisfied and that all Mortgage Loans to be purchased will be Eligible Mortgage Loans. If all such conditions precedent are satisfied, then Purchaser shall make commercially reasonable efforts to remit the Prefunded Amount to the Disbursement Account by [***] (New York City time) on the required delivery items Purchase Date; provided that if the Prefunded Amount would require the use of the Uncommitted Amount, Purchaser may choose to reduce the Prefunded Amount accordingly. Remitting the Prefunded Amount to the Disbursement Account shall not constitute a purchase or an agreement to purchase any Mortgage Loan.
(eachd) Once a Prefunding Request has been submitted, Seller may request that Purchaser actually purchase Eligible Mortgage Loans by submitting Seller Mortgage Loan Schedules to Purchaser and Custodian. Seller may submit up to [***] Seller Mortgage Loan Schedules at any time after the submission of the Prefunding Request until [***] (New York City time) on the Purchase Date. By submitting a “Required Delivery Item”) Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the table below form of Transaction Notice attached as Exhibit C hereto. Upon Seller’s request to enter into a Transaction pursuant to this Section 3(d), if all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, if all Mortgage Loans to be purchased are Eligible Mortgage Loans, and if no Default or Event of Default shall have occurred and be continuing, then, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount, and may, in its sole discretion with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by instructing the Disbursement Agent to disburse the Purchase Price (net of any related Structuring Fee, Non-Utilization Fee, or any other unpaid fees and expense then due and payable by Seller to Purchaser pursuant to this Agreement) in accordance with the Custodial and Disbursement Agreement. No later than [***] (New York City time) on each Purchase Date, Seller shall submit via email to Purchaser and Disbursement Agent the amount offunded by the corresponding required delivery time Seller Funded Portion then-standing to the credit of the Disbursement Account related to rescissions, other unfunded Mortgage Loans or any other unused amounts that Seller has calculated should be returned to Seller (the “Required Delivery TimeProposed Seller Refund”):). No later than [***] (New York City time) on such Purchase Date, Purchaser shall subsequently respond via email to Seller and Disbursement Agent to clearly state confirmation or rejection of Seller’s calculation of the Proposed Seller Refund. If Purchaser confirms Seller’s calculation of the Proposed Seller Refund, then no later than [***] (New York City time) on such Purchase Date, Seller shall initiate a wire in the amount of such Proposed Seller Refund from the Disbursement Account. Upon Disbursement Agent’s (i) receipt of such email from Purchaser confirming Seller’s calculation of the Proposed Seller Refund and (ii) verification that the amount of such wire initiated by Seller matches the amount of the Proposed Seller Refund reflected in such Purchaser’s email confirmation, Disbursement Agent shall release the wire to Seller pursuant to the wire instructions Seller provides. To the extent Purchaser rejects or does not otherwise confirm the Proposed Seller Refund, Seller shall not initiate and Disbursement Agent shall not release any wires from the Disbursement Account. With respect to any amounts remaining in the Disbursement Account at [***] (New York City time) on each Purchase Date, the Disbursement Agent shall cause such amounts to be remitted to Purchaser in accordance with the terms of the Custodial and Disbursement Agreement.
Appears in 1 contract
Sources: Master Repurchase Agreement (Home Point Capital Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretionmay, with respect to the Uncommitted Amount, from time to timetime as requested by Sellers, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein , with a simultaneous agreement by Buyer to transfer to Sellers the Purchased Assets and the related Purchased Items on the Repurchase Date, against the transfer of funds by Seller, in an amount equal to the contrary, Repurchase Price. Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount, which Transactions shall be entered into in the sole discretion of Buyer; provided that Buyer shall provide Seller Sellers with at least ten (10) [***] Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller Sellers for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between by Buyer and the Seller Sellers in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time Assets hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer and Sellers agree that the Purchased Assets transferred to Buyer in any Transaction hereunder may include Eligible Loans that are Wet Loans subject to any applicable sub-limits regarding Wet Loans set forth in the Pricing Side Letter. Buyer shall not have the right, however, right to terminate any Transactions with respect to the Uncommitted Amount after the related Purchase Date until the related Repurchase Date. .
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller Sellers shall request that Buyer enter into a Transaction by delivering (i) to Buyer, Custodian and Disbursement Agent a Transaction Notice, (ii) to Buyer, Custodian and Disbursement Agent an estimate of the Purchase Price for Eligible Assets to be purchased on the Purchase Date (which estimate may be included in a Transaction Notice) and (iii) to Custodian, the Mortgage Files for each such Eligible Asset which is proposed to be included in a Transaction by the times set forth in the Custodial Agreement, each in accordance with the times specified in the Custodial Agreement. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price, Pricing Rate and Repurchase Date and include a Loan Schedule in respect of the Loans and Participation Interests that a Seller proposes to include in the related Transaction. In addition, each Transaction Notice shall set forth the related Purchase Price allocable to each individual Loan and the related Participation Interest. Each Transaction Notice shall clearly indicate those Loans that are intended to be Wet Loans, Wet Correspondent Loans and Dry Loans and include a Loan Schedule in respect of the Loans and Participation Interests that a Seller proposes to include in the related Transaction. Buyer shall notify Sellers of its agreement to enter into a Transaction and confirm the terms of such Transaction by delivering to Sellers a Funding Notice specifying the Loans and Participation Interests Buyer agrees to purchase on the related Purchase Date, and any other terms of the related Transaction, by 3:30 p.m. (New York City time) on the related Funding Date provided that Sellers have delivered the related Transaction Notice prior to 1:30 p.m. (New York City time) on such date and provided further that all other conditions herein and in the Custodial Agreement have been satisfied. In the event of a conflict between the terms set forth in the Transaction Notice delivered by Sellers to Buyer and Custodian and the terms set forth in the related Funding Notice delivered by Buyer to Sellers, the terms of the related Funding Notice shall control. In the event of a conflict between the terms set forth in this Agreement and the terms set forth in any Funding Notice, the terms of such Funding Notice shall control to the extent that the Funding Notice notes such conflict and specifies that the Funding Notice shall control. By entering into a Transaction with Buyer, each Seller consents to the terms set forth in the related Funding Notice. The Funding Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and each Seller with respect to the Transaction to which the Funding Notice relates. Simultaneously with the delivery to Buyer of each Transaction Notice, the Participation Interest in each Loan listed on such Transaction Notice shall be deemed automatically to be incorporated by reference into the Participation Schedule and included in the Participation Interests represented by the Participation Certificates. On each Business Day, Buyer shall provide to Sellers an updated cumulative schedule of all Participation Interests then subject to Transactions (each, an “End of Day Report”), and Sellers shall update the Participation Schedule on a daily basis to include all Participation Interests included in the most recently delivered End of Day Report. Sellers agree to promptly report to Custodian and Buyer by facsimile transmission or such other method acceptable to Custodian and Buyer within [***] of discovery that any Wet Loans that were previously subject to a Transaction do not close for any reason and any Loans which are subject to a Rescission.
(c) Pursuant to the Custodial Agreement, Custodian will be required to review any Loan Documents delivered in accordance with the time set forth in the Custodial Agreement. In accordance with the times specified in the Custodial Agreement, Custodian will be required to deliver to Buyer, via Electronic Transmission acceptable to Buyer, the related Custodian Loan Transmission and the related Exception Report showing the status of all Loans then held by Custodian, including but not limited to the Dry Loans and the Wet Loans which are subject to Exceptions, and the time the related Loan Documents have been released pursuant to the Custodial Agreement.
(d) Upon a Seller’s request to enter into a Transaction pursuant to Section 3(a), assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b), as applicable, have been met, and provided no Default shall have occurred and be continuing, Buyer shall, with respect to the Committed Amount, and may, with respect to the Uncommitted Amount, enter into a Transaction for the purchase of the Eligible Assets included in the related Funding Notice by transferring to the Disbursement Account, via wire transfer in accordance with the terms of the Custodial Agreement (pursuant to written wire transfer instructions provided by a Seller on or prior to such Purchase Date), the Purchase Price in immediately available funds on the related Purchase Date and not later than the related time set forth in the Custodial Agreement. Each Seller acknowledges and agrees that the Purchase Price paid in connection with any Purchased Asset that is purchased in any Transaction includes a mutually negotiated premium allocated to the portion of such Purchased Asset that constitutes the related Servicing Rights in connection with such Loan.
(e) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein;
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Loans hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, (A) Buyer shall be under no obligation to enter into Transactions with respect to additional Loans hereunder, unless, in the case of clauses (i) and (ii) above, Sellers agree to pay a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Loans and related Participation Interests hereunder and using an index rate comparable to that used by Buyer in connection with other comparable facilities provided by Buyer, and (B) Sellers shall, at their option, either repurchase the Purchased Assets then subject to a Transaction within [***] days (or such shorter period as is reasonably practical) or pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Loans and the related Participation Interests and using an index rate comparable to that used by Buyer in connection with other comparable facilities provided by Buyer. Notwithstanding the foregoing, and to the extent confirmed by Buyer in writing (i) any determination by Buyer under clauses (i), (ii) and (iii) of this Section 3(e) shall be made in good faith and consistently with other lending facilities with similarly situated counterparties of Buyer and (ii) Seller shall not be required to pay any such additional compensation unless Buyer is seeking similar compensation from its similarly situated counterparties and not singling Sellers out for additional compensation.
(f) Sellers shall repurchase from Buyer and Buyer shall sell to Sellers the related Purchased Assets on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset. In connection with any such repurchase, Buyer shall (i) return the related Participation Certificate (so long as such Participation Certificate is not related to any Loan or related Participation Interest that is a Purchased Asset by delivering that remains subject to a Transaction) to Sellers pursuant to Sellers’ written instructions and (ii) cooperate with Sellers in Sellers’ obtaining the related Purchased Assets (and related Purchased Items), as applicable, from Custodian pursuant to the indicated required parties terms of the Custodial Agreement at Seller’s expense on (each, a “Required Recipient”or after) the required delivery items related Repurchase Date.
(eachg) Provided that the applicable conditions in Section 9(b) have been satisfied and provided further no Default shall have occurred and be continuing, unless Buyer is notified by Sellers to the contrary not later than 11:00 a.m. New York City time at least [***] Business Days prior to any Payment Date, on each related Payment Date the Purchased Assets shall automatically and immediately become subject to a “Required Delivery Item”new Transaction. Sellers shall (i) deliver an updated Servicing Transmission and (ii) cause Custodian to deliver an updated Custodian Loan Transmission and an Exception Report, with respect to such Purchased Assets. For each new Transaction, unless otherwise agreed, (y) the accrued and unpaid Price Differential shall be settled in cash on each related Payment Date and the related Repurchase Date, and (z) the Pricing Rate shall be as set forth in the table Pricing Side Letter.
(h) Sellers shall have the right to repurchase any or all of the Purchased Assets on any day that is not a Repurchase Date upon providing [***] prior written notice thereof to Buyer by 2:00 p.m. (New York City time) on [***] prior to the proposed date of repurchase, without incurring any breakage fees. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid.
(i) If any Requirement of Law or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to this Agreement or any Loans purchased pursuant to it or change the basis of taxation of payments to Buyer in respect thereof other than, in each case, Excluded Taxes or Indemnified Taxes or Other Taxes, which are indemnified under Section 5 hereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder; or
(iii) shall impose on Buyer any other condition affecting this Agreement or the Transactions hereunder; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Buyer shall give Sellers prompt notice thereof by delivering to Sellers a certificate with reasonable detail as to any additional amounts payable pursuant to this subsection as calculated by Buyer in good faith (a “Yield Protection Notice”), which shall be conclusive in the absence of manifest error. Sellers shall, at their option, within [***] Business Days of its receipt of any such Yield Protection Notice, either (A) (1) notify Buyer of its intent to terminate this Agreement (without the imposition of any form of penalty, breakage costs or exit fees) and (2) repurchase all Purchased Assets within [***] days of such notice to Buyer or (B) pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable thereafter incurred; provided that, with respect to the immediately preceding clause (B), Sellers shall only be obligated to pay those amounts pursuant to this Section 3(i) to the extent incurred by Buyer (1) within [***] days prior to delivery of the Yield Protection Notice to Sellers or (2) on or after delivery of such Yield Protection Notice to Sellers. In the event Sellers terminate this Agreement and repurchase all Purchased Assets pursuant to clause (A) above, in no event shall Sellers pay (i) any increased costs specified in the Yield Protection Notice or (ii) any increased costs accrued during the [***] days prior to receipt of such Yield Protection Notice. If Buyer shall have determined in good faith that either (A) the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority or Official Body made subsequent to the date hereof; or (B) compliance by Buyer or any corporation controlling Buyer with: (1) any directive or request from any Governing Authority or Official Body (whether or not having the force of law) imposed after the date hereof or (2) the requirements of, whether such compliance is commenced prior to or after the date hereof, any of (x) Basel III or (y) the ▇▇▇▇-▇▇▇▇▇ Act, or any existing rules, regulations, guidance, interpretations or directives from the United States bank regulatory agencies relating to Basel III or the ▇▇▇▇-▇▇▇▇▇ Act; shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital to a level below that which Buyer or such corporation (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material to the corresponding required delivery time (extent Buyer or such corporation determines such increase in capital to be attributable to the “Required Delivery Time”):existence of the obligations or agreements of Buyer hereunder, then, in any such case, Buyer shall give Sellers prompt noti
Appears in 1 contract
The Transactions. (a) a. Subject to the terms and conditions of the Program Documents, this Agreement is a commitment by Buyer shall, with respect to purchase from Sellers certain Purchased Assets up to the Maximum Committed Amount, Purchase Price and may in its sole discretion, with respect Buyer hereby agrees to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and not to exceed the Maximum Committed Purchase Price (individually, a “Committed Transaction”; collectively, the “Committed Transactions”).
b. In addition to the foregoing, the Buyer may from time to time in its sole discretion, subject to outstanding the terms and conditions of the Program Documents, enter into Transactions in excess of the Maximum Committed Purchase Price (individually, an “Uncommitted Transaction”, collectively, the “Uncommitted Transactions”) with the Sellers, in an aggregate principal amount at any one time up to but not to exceeding the Maximum Uncommitted Purchase Price (together, the aggregate principal balance of Transactions may not exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation This Agreement to enter into Uncommitted Transactions is not a commitment by Buyer, but rather sets forth procedures to be used in connection with periodic requests for Buyer to enter into Uncommitted Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have related Seller. The Sellers hereby acknowledge that Buyer is under no obligation to agree to enter into any Uncommitted Transactions with respect pursuant to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amountthis Agreement. Unless otherwise agreed to between Buyer and by the Seller parties, in writingdetermining whether Transactions are Committed Transactions or Uncommitted Transactions, all purchases of Eligible Loans subject to outstanding such Transactions at any one time shall first be first deemed committed Committed Transactions up to the Maximum Committed Amount Purchase Price, and then the remainder, if any, remainder shall be deemed uncommitted up Uncommitted Transactions. The Buyer may, at any time, terminate the Sellers’ ability to enter into new Uncommitted Amount. Buyer shall not have Transactions by providing written notice to the right, however, to terminate any Transactions with Sellers.
c. With respect to the Uncommitted Amount after the Purchase Date until the any Transaction, related Seller shall repurchase Purchased Assets from Buyer on each related Repurchase Date. Unless otherwise agreed, with respect Each obligation to repurchase subsists without regard to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction prior or intervening liquidation or foreclosure with respect to any Purchased Asset. Related Seller is obligated to obtain the Purchased Assets from Buyer or its designee (including the Custodian) at its own expense on (or after) the related Repurchase Date.
d. Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, each Purchased Asset that is repurchased by delivering related Seller on the Repurchase Date occurring on the 25th day of each month (or, if such 25th day is not a Business Day, the immediately following Business Day) following the related Purchase Date (the day of the month so determined for each month, or any other date designated by related Seller to the indicated required parties (eachBuyer for such a repurchase on at least one Business Day’s prior notice to Buyer, a “Required RecipientRepurchase Date”, which term shall also include the date determined by application of Section 19 (a)) shall automatically become subject to a new Transaction unless Buyer is notified by such Seller at least one (1) Business Day prior to any such Repurchase Date, provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Side Letter.
e. If Buyer locks in the rate of LIBOR at the request of such Seller and such Seller repurchases Purchased Assets on any day which is not the Repurchase Date set forth in Section 3(d) above, such Seller shall indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or incur arising from the reemployment of funds obtained by Buyer hereunder or from fees payable to terminate the corresponding required delivery time deposits from which such funds were obtained (“Breakage Costs”), in each case for the “Required Delivery Time”):remainder of the applicable 30 day period. Buyer shall deliver to such Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon such Seller, absent manifest error. This Section shall survive termination of this Agreement and the repurchase of all Purchased Assets subject to Transactions hereunder.
Appears in 1 contract
Sources: Master Repurchase Agreement (New Century Financial Corp)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, time enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein , subject to the contraryterms and conditions of the Program Documents, and further subject to the following limitations:
(i) The Buyer shall have the obligation to enter into Transactions with Aames Investment and Aames Capital with respect to Eligible Loans that are Dry Loans on any Business Day, with an aggregate outstanding Purchase Price at any time up to, but not exceeding the lesser of up (A) the Maximum Aggregate Purchase Price, less the sum of (1) the aggregate outstanding Purchase Price of any Purchased Loans that are then subject to Transactions between the Committed Amount Buyer and Aames Funding Corporation and (2) the aggregate outstanding Purchase Price of any Wet Loans that are then subject to Transactions, or (B) the aggregate outstanding Purchase Price of all Purchased Loans then subject to Transactions. The Buyer shall have no obligation not be required to enter into more than one (1) Transaction with respect to Dry Loans in any Business Day.
(ii) The Buyer shall enter into Transactions with respect to the Uncommitted AmountAames Funding on any Business Day, with an aggregate outstanding Purchase Price at any time up to, but not exceeding $1,000,000; provided that Buyer shall provide Seller in connection with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of such Transaction between the Uncommitted Amount. Unless otherwise agreed to between Buyer and Aames Funding, Aames Funding shall, in addition to transferring the Seller in writing, all purchases of Eligible Purchased Loans that are subject to outstanding Transactions at any one time shall be first deemed committed up such Transaction to Buyer, pledge to the Committed Amount and then Buyer Cash Equivalents with a face value equal to the remainder, if any, shall be deemed uncommitted up the Uncommitted Amountaggregate outstanding principal balance of such Purchased Loans. The Buyer shall not have be required to enter into more than one (1) Transaction with Aames Funding in any one-week period.
(iii) The Buyer may, in its sole discretion, enter into up to three (3) Transactions with the right, however, to terminate Sellers in any Transactions one (1) Business Day with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Wet Loans.
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller Sellers shall request that Buyer enter into a Transaction by delivering (i) a Transaction Notice substantially in the form of Exhibit D hereto (a “Transaction Notice”), appropriately completed, and a Loan Schedule to Buyer and Custodian, and (ii) the Mortgage File to Custodian for each Loan proposed to be included in such Transaction, which Transaction Notice and Loan Schedule must be received no later than 2:00 p.m. (New York City time) one Business Day prior to the requested Purchase Date with respect to Dry Loans and no later than 3:00 p.m. (New York City Time) with respect to Wet Loans. Such Transaction Notice shall clearly indicate those Loans that are intended to be Wet Loans and Dry Loans and include a Loan Schedule in respect of the Eligible Loans that the related Seller proposes to include in the related Transaction. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price, Pricing Rate and Repurchase Date. Sellers agree to immediately report to Custodian and the Buyer by facsimile transmission within one Business Day of discovery that any Wet Loans that were previously subject to a Transaction do not close for any reason including, but not limited to, a Rescission. In the event that the parties hereto desire to enter into a Transaction, the Buyer shall deliver to the related Seller, in electronic or other format, a “Confirmation” specifying such terms, including, without limitation, the Purchase Date, the Purchase Price, the Pricing Rate therefor and the Repurchase Date. Any such Confirmation and the related Transaction Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and related Seller with respect to the Transaction to which the Confirmation relates. By entering in to a Transaction with the Buyer, the related Seller consents to the terms set forth in the related Confirmation. In the event of any conflict between this Agreement and a Confirmation, the terms of the Confirmation shall control with respect to the related Transaction.
(c) Pursuant to the Custodial Agreement, the Custodian shall review any Required Documents delivered prior to 12:00 p.m. (New York City time) on any Business Day on the same day. Not later than 5:30 p.m. (New York City time) on each Business Day, the Custodian shall deliver to the Buyer, via Electronic Transmission acceptable to the Buyer, the Custodian Loan Transmission and an Exception Report showing the status of all Loans then held by the Custodian, including but not limited to the Wet Loans and Dry Loans which are subject to Exceptions, and the time the related Loan Documents have been released pursuant to Sections 5(a) or 5(b) of the Custodial Agreement. In addition, the Custodian shall deliver to the Buyer no later than 5:30 p.m. (New York City time) by facsimile transmission on each Purchase Date, one or more Trust Receipts (as defined in the Custodial Agreement) relating to either Wet Loans or Dry Loans. The original copies of such Trust Receipts shall be delivered to JPMorgan Chase Bank at Four New York Plaza, Ground Floor, Outsourcing Department, New York, New York 10004, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇ for the account of Greenwich Capital Markets, telephone number (▇▇▇) ▇▇▇-▇▇▇▇, as agent for the Buyer by overnight delivery using a nationally recognized insured overnight delivery service.
(i) Upon a Seller’s request to enter into a Transaction with respect to Dry Loans pursuant to Sections 3(b), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, not later than 5:00 p.m. (New York City time) on the requested Purchase Date purchase the Eligible Loans included in the related Transaction Notice by transferring, via wire transfer (pursuant to wire transfer instructions provided by the Seller on or prior to such Purchase Date), the Purchase Price.
(ii) Upon a Seller’s request to enter into a Transaction with respect to Wet Loans pursuant to Section 3(b), Buyer may, in its sole discretion, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, not later than 3:30 p.m. (New York City time) on the requested Purchase Date purchase the Eligible Loans included in the related Transaction Notice by transferring, via wire transfer (pursuant to wire transfer instructions provided by the Seller on or prior to such Purchase Date), the Purchase Price. With respect to any Transaction with respect to Wet Loans, the Purchase Price shall be disbursed to the Settlement Agent from the Disbursement Account. Accordingly, in connection with any Wet Loan, the Sellers shall be required to deposit in the Disbursement Account prior to the closing of such Loan an amount equal to the excess of (i) the amount required to be remitted in connection with the closing of such Loan over (ii) the related Purchase Price to be paid to such Seller by Buyer for such Loan. No later than one Business Day following the related Purchase Date for each Wet Loan, the Sellers shall provide to the Buyer a complete Loan Data Transmission with respect to each Wet Loan subject to a Transaction, which Loan Data Transmission shall contain all fields required for Dry Loans. The Buyer and the Sellers agree that the procedures for requesting and entering into a Transaction with respect to Wet Loans may be modified from time to time by a written agreement executed by the Buyer and the Sellers.
(e) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) the Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein; or
(ii) the Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely adequately to cover the cost to the Buyer of purchasing and holding Loans hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then the Buyer shall give the related Seller prompt notice thereof and, so long as such condition remains in effect, the Buyer shall be under no obligation to purchase Loans hereunder, and the related Seller shall, at its option, either repurchase such Loans or pay a Pricing Rate at a rate per annum as determined by the Buyer taking into account the increased cost to the Buyer of purchasing and holding the Loans.
(f) Sellers shall repurchase Purchased Loans from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset Loan. Sellers are obligated to obtain the Purchased Loans from Buyer or its designee (including the Custodian) at Sellers’ expense on (or after) the related Repurchase Date.
(g) Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, Sellers may request that a Purchased Loan that is repurchased by Sellers on the Repurchase Date become subject to a new Transaction by delivering notice of such request to Buyer with a copy to Custodian not later than 11:00 a.m. New York City time at least two (2) Business Day prior to any such Repurchase Date. Buyer shall purchase the related Eligible Loans pursuant to the indicated required parties procedures set forth in Section 3(d). For each new Transaction, unless otherwise agreed, (each, a “Required Recipient”y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table below Pricing Side Letter.
(h) If the Sellers intend to repurchase any Loans on any day which is not a Repurchase Date, the Sellers shall give one (1) Business Day’s prior written notice thereof to the Buyer. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid. Such early repurchases shall be in an aggregate principal amount of at least $100,000.
(i) If Sellers repurchase Purchased Loans other than as provided in Section 3(h) above, Sellers shall indemnify Buyer and hold Buyer harmless from any actual loss or expense which Buyer may sustain or incur arising from (a) the re-employment of funds obtained by Buyer to perform hereunder or from (b) fees payable to terminate the deposits from which such funds were obtained (“Breakage Costs”), in either case, which actual loss or expense shall be equal to the excess, as reasonably determined by the corresponding required delivery Lender of (i) its cost of obtaining funds to perform under such Transactions for the period from the date of such payment through the following Repurchase Date over (ii) the amount of interest likely to be realized by Lender in redeploying the funds no utilized by reason of such payment for such period. Buyer shall deliver to Sellers a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Sellers, absent manifest error. The provisions of this Section 3(i) shall survive termination of this Agreement and the repurchase of all Purchased Loans subject to Transactions hereunder.
(j) If any Requirement of Law (other than with respect to any amendment made to the Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by the Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject the Buyer to any tax of any kind whatsoever with respect to this Agreement or any Loans purchased pursuant to it (excluding net income taxes) or change the basis of taxation of payments to the Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of the Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder;
(iii) shall impose on the Buyer any other condition; and the result of any of the foregoing is to increase the cost to the Buyer, by an amount which the Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, the Sellers shall promptly pay the Buyer such additional amount or amounts as will compensate the Buyer for such increased cost or reduced amount receivable thereafter incurred or shall repurchase all of the Purchased Loans then subject to outstanding Transactions. Any payment or repurchase made by the Sellers as a result of this paragraph shall not be subject to the provisions of Section 3(i). If the Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to the Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by the Buyer or any corporation controlling the Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on the Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which the Buyer or such corporation (taking into consideration the Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by the Buyer to be material, then from time (to time, the “Required Delivery Time”):Seller shall promptly pay to the Buyer such additional amount or amounts as will thereafter compensate the Buyer for such reduction or shall repurchase all of the Purchased Loans then subject to outstanding Transactions. Any payment or repurchase made by the Sellers as a result of this paragraph shall not be subject to the provisions of Section 3(i). If the Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify the Sellers of the event by reason of which it has become so
Appears in 1 contract
Sources: Master Repurchase Agreement (Aames Investment Corp)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretionAmount and, with respect to the Uncommitted Amount, from time to timetime in its sole discretion, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller Sellers in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time Assets shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Notwithstanding anything contained herein to the contrary, Buyer shall not have the right, howeverupon written notice to Sellers, to terminate any Transactions with respect to the Uncommitted Amount after and require the Purchase repurchase of any such Purchased Assets within the earlier of (i) the next occurring Repurchase Date until the related Repurchase Dateor (ii) fifteen (15) Business Days of such notice. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect to any Purchased Asset Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):): an Asset Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Buyer No later than 4:00 p.m. (New York City time) on the requested Purchase Date
(i) an Asset Schedule and (ii) the Mortgage File for each Loan proposed to be included in such Transaction (whether or not such Loan is subject to a Participation Certificate) No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Custodian Each Asset Schedule shall include all Eligible Assets that a Seller proposes to include in the related Transaction. In the event that the parties hereto desire to enter into a Transaction on terms other than as set forth in this Agreement, Buyer shall deliver to such Seller, in electronic or other format, a “Confirmation” specifying such terms prior to entering into such Transaction, including, without limitation, the Purchase Date and the Purchase Price therefor. Any such Confirmation, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and such Seller with respect to the Transaction to which the Asset Schedule relates. By entering into a Transaction with Buyer, the related Seller consents to the terms set forth in any related Confirmation. In the event of any conflict between this Agreement and a Confirmation, the terms of the Confirmation shall control with respect to the related Transaction. It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the contrary, the facility with respect to the Uncommitted Amount provided under this Agreement is an uncommitted facility and Buyer shall have no obligation to enter into any Transactions hereunder.
(b) Upon a Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, in its sole discretion, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b) have been met, and provided no Default shall have occurred and be continuing, not later than the required time on the requested Purchase Date set forth in the table above (the “Required Purchase Time”) purchase the Eligible Assets included on the related Asset Schedule (or the proportionate increase in the value of the REO Equity Interests to be sold by a Seller to Buyer in connection with a Conveyance of Eligible Underlying Assets included on the related Asset Schedule to REO Entity, as the case may be) by transferring, via wire transfer (pursuant to wire transfer instructions provided by such Seller on or prior to such Purchase Date) in immediately available funds, the Purchase Price.
(c) Each Seller acknowledges and agrees that the Purchase Price paid in connection with any Purchased Loan that is purchased in any Transaction includes a mutually negotiated premium allocable to the portion of such Purchased Loan that constitutes the related Servicing Rights.
(d) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein; or
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely adequately to cover the cost to Buyer of purchasing and holding Assets hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Sellers prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to purchase Assets hereunder, and the related Seller shall, at its option, either repurchase such Assets or pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Assets.
(e) The related Seller shall repurchase Purchased Assets from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset. Such Seller is obligated to obtain the Purchased Assets (including the related Underlying Assets) from Buyer or its designee (including the Custodian) at such Seller’s expense on (or after) the related Repurchase Date.
(f) Provided that the applicable conditions in Sections 9(a) and (b) have been satisfied, each Purchased Asset shall automatically become subject to a new Transaction on the related Repurchase Date (other than a Repurchase Date occurring on the Termination Date) unless the related Seller is notified otherwise by Buyer at least one (1) Business Day prior to such Repurchase Date. Unless such Seller is so notified, Buyer shall purchase the related Eligible Assets (or the proportionate increase in the value of the REO Equity Interests to be sold by a Seller to Buyer in connection with a Conveyance of Eligible Underlying Assets to REO Entity, as the case may be) pursuant to the procedures set forth in Section 3(c); provided that if the Repurchase Date so determined is later than the Termination Date, the Repurchase Date for such Transaction shall automatically reset to the Termination Date, and the provisions of this sentence as it might relate to a new Transaction shall expire on such date. For each new Transaction, unless otherwise agreed, (y) the accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (z) the Pricing Rate shall be as set forth in the Pricing Side Letter.
(g) If the related Seller intends to repurchase any Assets (or with respect to the REO Equity Interests, the proportionate value thereof related to one or more Underlying Assets) on any day which is not a Repurchase Date, such Seller shall use its best efforts to give one (1) Business Day’s prior written notice thereof to Buyer. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid. Such early repurchases shall be in an aggregate principal amount of at least $100,000.
(h) If any Seller requests that Buyer reduce the size of the Committed Amount, including a reduction in the Committed Amount to $0 (whether or not there are any outstanding Transactions with respect to the Committed Amount at such time) or terminate this Agreement, in each case prior to the Termination Date, at the request of Buyer, such Seller shall indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses which Buyer may sustain or incur arising from such repurchase, which losses, costs and/or expenses shall be equal to the sum of: (a) the product of (1) the amount by which the Committed Amount is reduced (which shall in the case of termination of this Agreement or reduction in the Committed Amount to $0 be the full amount of the Committed Amount), (2) the difference between (A) the related Pricing Rate and (B) Buyer’s cost of funds, as determined by Buyer in its sole discretion, and (3) the number of days until the next scheduled Repurchase Date, divided by 360, and (b) fees payable to terminate the deposits from which such funds were obtained (“Breakage Costs”). Buyer shall deliver to Sellers a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by Buyer to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Sellers, absent manifest error. The provisions of this Section 3(h) shall survive termination of this Agreement and the repurchase of all Purchased Assets subject to Transactions hereunder.
(i) If any Requirement of Law or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to this Agreement or any Assets purchased pursuant to it (excluding net income taxes) or change the basis of taxation of payments to Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder;
(iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Sellers shall promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased costs or reduced amount receivable thereafter incurred. If Buyer shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Sellers shall promptly pay to Buyer such additional amount or amounts as will thereafter compensate Buyer for such reduction. If Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Sellers of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by Buyer to Sellers shall be conclusive in the absence of manifest error.
(j) With respect to each Purchased Participation Certificate that is subject to a Transaction hereunder, the Security that is issued on the related Conversion Date (provided it is an Eligible Security) shall replace the Participation Certificate as the Purchased Asset, and from and after such Conversion Date, the Purchased Asset subject to such Transaction shall be the Purchased Security. For the avoidance of doubt, any Eligible Security that is issued with respect to the Eligible Loans underlying a Purchased Participation Certificate shall, on the related Conversion Date, replace the Purchased Participation Certificate and automatically become subject to the Transaction to which the Purchased Participation Certificate was subject. On or prior to the related Purchase Date, the related Seller shall deliver to Buyer a duly executed Trade Assignment together with a copy of the Takeout Commitment with respect to the Related Security.
(k) It is a condition precedent to Buyer entering into any Transaction related to an REO Equity Interest hereunder that Buyer (or its designee) shall have received the original, certificated REO Equity Interests and a bond or stock power representing the endorsement thereof in blank. Upon the sale and transfer of the REO Equity Interests by the related Seller to Buyer and such endorsement as set forth herein and until the satisfaction of all Obligations, ownership of the REO Equity Interests shall be vested in Buyer until such time as such REO Equity Interests are repurchased by such Seller pursuant to the terms of this Agreement. Subject to Buyer’s exercise of its rights under and in accordance with Section 19, Buyer shall return the REO Equity Interests to such Seller within one (1) Business Day of the satisfaction of all Obligations.
(l) Unless an Event of Default shall have occurred:
(i) The related Seller shall be permitted and is hereby authorized to exercise all voting and direction rights inuring to the stockholder of the shares of the Capital Stock in REO Entity representing the REO Equity Interests under the REO Entity Agreement; provided, however, that no vote shall be cast or direction right exercised or other action taken which would impair such REO Equity Interests or REO Entity or Buyer’s rights to the REO Equity Interests or the Unwind Rights, or which would otherwise be inconsistent with or result in a violation of any provision of this Agreement, any other Program Document or any Structural Document.
(ii) Without the prior written consent of Buyer, no Seller shall (a) vote to enable, or take any other action to permit REO Entity to issue any equity interests of any nature or to issue any other equity interests convertible into or granting the right to purchase or exchange for any equity interests of REO Entity, or (b) sell, assign, transfer, exchange or otherwise dispose of, or grant any option with respect to the REO Equity Interests or (c) create, incur or permit to exist any Lien or option in favor of, or any claim of any Person with respect to the REO Equity Interests or any interest therein, except for the Lien provided for by this Agreement, or (d) enter into any agreement (other than this Agreement) or other undertaking restricting the right or ability of a Seller to sell, pledge, assign or transfer the certificate evidencing the REO Equity Interests.
(iii) Buyer shall not, without the related Seller’s prior written consent, exercise any voting or direction inuring to it with respect to the REO Equity Interests under the REO Entity Agreement, except to the extent that such voting or direction right inures to Buyer in a capacity other than as stockholder of the shares of the Capital Stock in REO Entity representing the REO Equity Interests.
(m) At any time that a Seller conveys a Purchased Asset that is an Eligible Loan to REO Entity (each, a “Conveyance”), (i) the legal and beneficial title in such Loan shall be immediately vested in REO Entity, (ii) the Buyer’s Li
Appears in 1 contract
Sources: Master Repurchase Agreement (PennyMac Mortgage Investment Trust)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and Purchaser shall have no obligation to enter into any Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Mortgage Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, Purchaser may enter into Transactions; provided, that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to lesser of (a) the Uncommitted Amount after Maximum Aggregate Purchase Price or (b) the Purchase Date until the related Repurchase Date. Asset Base.
(c) Unless otherwise agreedagreed and subject to Section 3(j), with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”): FHA Buyout Loans (i) a Transaction Notice and (ii) Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the second Business Day prior to the requested Purchase Date Purchaser and Custodian No later than 5:00 p.m. (New York City time) on the requested Purchase Date The date on which any notice pursuant to this Section 3(c) is given is known as the “Notice Date”.
(d) [Reserved].
(e) Upon Seller’s request to enter into a Transaction pursuant to Section 3(c) and assuming all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, and provided no Default or Event of Default shall have occurred and be continuing, on the requested Purchase Date, Purchaser shall in the case of a Transaction with respect to the Committed Amount and may, in its sole discretion, in the case of a Transaction with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans, each included in the related Transaction Notice, by transferring the Purchase Price (net of any Transaction Fees payable by Seller to the Purchaser pursuant to this Agreement) in accordance with the wire instructions provided by Seller. Seller acknowledges and agrees that the Purchase Price includes a mutually negotiated premium allocable to the portion of the Purchased Assets that constitutes the related Servicing Rights. The Seller shall transfer to the Purchaser the purchased Eligible Mortgage Loans.
(f) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to the Purchaser. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, the Seller shall pay to the Purchaser the Price Differential then due and payable for (x) all outstanding related Transactions and (y) Purchased Assets for which the Purchaser has received the related Repurchase Price (other than Price Differential) pursuant to Section 3(g) during the prior calendar month.
(g) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, the Seller shall pay to the Purchaser the related Repurchase Price (other than the related accrued Price Differential) together with any other Obligations then due and payable, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to the Purchaser, and the Purchaser shall transfer to Seller the related Purchased Assets.
(h) If Agent determines in good faith that any Change in Law or any change in accounting rules regarding capital requirements has the effect of reducing the rate of return on Purchaser’s capital or on the capital of any Affiliate of Purchaser under this Agreement as a consequence of such Change in Law or change in accounting rules, then from time to ▇▇▇▇ ▇▇▇▇▇▇ will compensate the Purchaser or the Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law or change in accounting rules on terms similar to those imposed by the Purchaser. Further, if due to the introduction of, any change in, or the compliance by Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions, then Seller shall, from time to time and upon demand by the Purchaser, compensate the Purchaser or the Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder. The Purchaser shall provide Seller with notice as to any such Change in Law, change in accounting rules or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof.
(i) Seller shall pay to the Purchaser the amount of any Losses which the Purchaser may sustain or incur as a result of terminating any Transaction between Seller and Purchaser on or before a Repurchase Date (except in connection with a termination of this Agreement by the Seller as a result of Purchaser’s failure to purchase an Eligible Loan solely as a result of the condition precedent set forth in Section 10(b)(xii)(C) hereof) arising from the reemployment of funds obtained by the Purchaser hereunder or from actual out of pocket fees and expenses payable to terminate the deposits from which such funds were obtained (“Breakage Costs”). The Agent shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in a commercially reasonable manner by Purchaser to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. The provisions of this Section 3(i) shall survive termination of this Agreement.
(j) Notwithstanding anything to the contrary set forth in this Agreement, Seller shall not be permitted to sell any Mortgage Loans to Purchaser hereunder pursuant to this Agreement until such time as authorized in writing by Agent, in its sole discretion.
Appears in 1 contract
Sources: Master Repurchase Agreement (Home Loan Servicing Solutions, Ltd.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets Loans acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all purchases of Eligible Loans subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction with respect by delivering (i) to any Purchased Asset Buyer, Custodian and Disbursement Agent a Transaction Notice, (ii) to Buyer, Custodian and Disbursement Agent an estimate of the Purchase Price for Eligible Loans to be purchased on the Purchase Date (which estimate may be included in a Transaction Notice) and (iii) to Custodian, the Mortgage Files for each such Eligible Loan proposed to be included in a Transaction by the times set forth in the Custodial Agreement, in each case by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the terms and conditions of contrary, the Program Documents, Buyer shall, facility provided under this Agreement is (i) a committed facility with respect to the Committed Amount, Amount and may in its sole discretion, (ii) an uncommitted facility with respect to the Uncommitted Amount, from time to time, enter into Transactions with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at Purchaser shall not have any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into any Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions hereunder with respect to the Uncommitted Amount; provided that Buyer shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer and the Seller in writing, all All purchases of Eligible Loans subject to outstanding Transactions at any one time Assets hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer .
(b) Subject to the terms and conditions of the Program Documents, the Purchaser may enter into Transactions; provided, that the Aggregate MRA Purchase Price shall not have exceed, as of any date of determination, the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Maximum Aggregate Purchase Date until the related Repurchase Date. Price.
(c) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer Purchaser enter into a Transaction with respect to any Purchased Asset Eligible Mortgage Loan by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):), and such Transaction shall occur no later than the corresponding required purchase time (the “Required Purchase Time”): Eligible Mortgage Loan Seller Mortgage Loan Schedule No later than 5:00 p.m. (New York City time) on the Business Day prior to the requested Purchase Date Purchaser, Agent and Custodian No later than 5:00 p.m. (New York City time) on the requested Purchase Date The complete Mortgage Files to Custodian for each Mortgage Loan subject to such Transaction Custodian The date on which any notice pursuant to this Section 3(c) is given is known as the “Notice Date”. By submitting a Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the form of Transaction Notice attached as Exhibit C hereto.
(d) Upon Seller’s request to enter into a Transaction pursuant to Section 3(c) and assuming all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, and provided no Default or Event of Default shall have occurred and be continuing, on the requested Purchase Date, Purchaser shall, in the case of a Transaction with respect to the Committed Amount, and may, in its sole discretion, in the case of a Transaction with respect to the Uncommitted Amount, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by transferring the Purchase Price (net of any unpaid Commitment Fee or any other unpaid fees and expense then due and payable by Seller to the Purchaser pursuant to this Agreement) in accordance with Seller’s Wire Instructions or as otherwise provided. Seller acknowledges and agrees that the Purchase Price includes a mutually negotiated premium allocable to the portion of the Purchased Items that constitutes the related Servicing Rights.
(e) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to the Purchaser from Seller. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, Seller shall pay to the Purchaser the Price Differential then due and payable by it for (x) all outstanding related Transactions and (y) Purchased Assets for which the Purchaser has received the related Repurchase Price (other than Price Differential) pursuant to Section 3(f) during the prior calendar month.
(f) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, Seller shall pay to the Purchaser the related Repurchase Price (other than the related accrued Price Differential) together with any other Obligations then due and payable, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to the Purchaser, as set forth in Section 6.
(g) If Agent determines in its sole discretion that any Change in Law or any change in accounting rules regarding capital requirements has the effect of reducing the rate of return on either Purchaser’s capital or on the capital of any Affiliate of either Purchaser under this Agreement as a consequence of such Change in Law or change in accounting rules (it being understood that Purchaser will make such determination consistent with those made with respect to similar borrowers or sellers under similar credit or repurchase agreements), then from time to ▇▇▇▇ ▇▇▇▇▇▇ will compensate the Purchaser or Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law or change in accounting rules on terms similar to those imposed by the Purchaser. Further, if due to the introduction of, any change in, or the compliance by either Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to the Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions (it being understood that Purchaser will make the foregoing determinations consistent with those made with respect to similar borrowers or sellers under similar credit or repurchase agreements), then Seller shall, from time to time and upon demand by the Purchaser, compensate the Purchaser or Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder. The Purchaser shall provide Seller with notice as to any such Change in Law, change in accounting rules or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof.
(h) Following the date on which Seller requests and receives term funding from Purchaser, Seller shall indemnify the Purchaser and hold the Purchaser harmless from any losses, costs and/or expenses that the Purchaser may sustain or incur as a result of terminating any Transaction on or before a Repurchase Date arising from the reemployment of funds obtained by the Purchaser hereunder or from actual out-of-pocket fees and expenses payable to terminate the deposits from which such funds were obtained (“Breakage Costs”). The Agent shall deliver to Seller a statement setting forth the amount and basis of determination of any Breakage Costs in such detail as determined in good faith by the Purchaser to be adequate, it being agreed that such statement and the method of its calculation shall be adequate and shall be conclusive and binding upon Seller, absent manifest error. The provisions of this Section 3(h) shall survive termination of this Agreement.
(i) If on any Business Day Agent determines (which determination shall be conclusive absent manifest error) (a) that adequate and reasonable means do not exist for ascertaining LIBOR; or (b) that LIBOR will not adequately and fairly reflect the cost to the Purchaser of entering into or maintaining outstanding Transactions; or (c) that it has become unlawful for it to honor its obligation to enter into or maintain outstanding Transactions hereunder using LIBOR, then Agent shall give notice thereof to Seller by telephone, facsimile, or other electronic means as promptly as practicable thereafter and, until Agent notifies Seller that the circumstances giving rise to such notice no longer exist, the Pricing Rate included in any Confirmation with respect to new Transactions and in any calculation of the Price Differential with respect to outstanding Transactions will be determined, subject to the timely approval of Seller after receipt of notice of such revised rate, at a rate per annum that the Purchaser determine in its reasonable discretion adequately reflects the cost to the Purchaser of making or maintaining such Transactions.
Appears in 1 contract
The Transactions. (a) Subject to the terms and conditions of the Program Documents, Buyer shall, with respect to the Committed Amount, and may in its sole discretion, with respect to the Uncommitted Amount, from time to time, enter into Transactions a Transaction with respect to (i) the Participation Certificate, on the initial Purchase Date, or (ii) a Purchase Price Increase in respect of the issuance of additional Participation Interests to Seller in respect of additional Underlying Loans proposed to be originated or purchased by the Guarantor with an aggregate Purchase Price for all Purchased Assets acquired by Buyer and subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer shall will use commercially reasonable efforts to provide Seller and Guarantor with at least ten seven (107) Business Days’ prior written notice and shall in no event provide, less than three (3) Business Days’ notice, before exercising its discretion to cease entering into Transactions with Seller and Guarantor for all or any portion of the Uncommitted Amount. Unless otherwise agreed to between Buyer Buyer, Guarantor and the Seller in writing, all purchases of Eligible Loans Purchased Assets subject to outstanding Transactions at any one time shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. Unless otherwise agreed, with respect to any Underlying Loan other than a Wet-Ink Loan, the Seller or Guarantor shall request that Buyer enter into a Transaction with respect to any Purchased Asset or proposed Purchase Price Increase in respect of the issuance of additional Participation Interests to Seller in respect of additional Underlying Loans proposed to be originated or purchased by Guarantor by delivering to the indicated required parties (each, a “Required Recipient”) the required delivery items (each, a “Required Delivery Item”) set forth in the table below by the corresponding required delivery time (the “Required Delivery Time”):
Appears in 1 contract
Sources: Master Repurchase Agreement (Rocket Companies, Inc.)
The Transactions. (a) Subject to the terms and conditions of the Program Documents, on the Initial Purchase Date, Buyer shall, upon the terms and conditions set forth herein, purchase the Purchased Certificate against the transfer of funds by Buyer in an amount equal to the Purchase Price, with a simultaneous agreement by Buyer to transfer to Seller the Purchased Certificate on the Repurchase Date, against the transfer of funds by Seller, in an amount equal to the Repurchase Price. In addition, Buyer shall, with respect to the Committed Amount, Amount and may in its sole discretionmay, with respect to the Uncommitted AmountAmount as requested by Seller, from time to time, upon the terms and conditions set forth herein, enter into Transactions with transactions in which Seller transfers either (i) additional Underlying Certificates in one or more additional Underlying Trusts that hold additional Participation Interests or (ii) additional Participation Interests to an aggregate existing Underlying Trust in an amount equal to the related Purchase Price for all Purchased Assets acquired by Buyer and Increase related to such additional Participation Interests, subject to outstanding Transactions at any one time not to exceed the Maximum Aggregate Purchase Price. Notwithstanding anything contained herein to the contrary, Buyer shall have the obligation obligation, subject to the terms and conditions of the Program Documents, to enter into Transactions with an aggregate outstanding Purchase Price of up to the Committed Amount and shall have no obligation to enter into Transactions with respect to the Uncommitted Amount; provided that Buyer , which Transactions shall provide Seller with at least ten (10) Business Days’ prior written notice before exercising its be entered into in the sole discretion to cease entering into Transactions with Seller for all or any portion of the Uncommitted AmountBuyer. Unless otherwise agreed to between Buyer and the Seller in writingby Buyer, all purchases of Eligible Loans subject to outstanding Transactions at any one time hereunder shall be first deemed committed up to the Committed Amount and then the remainder, if any, shall be deemed uncommitted up to the Uncommitted Amount. Buyer shall not have the right, however, to terminate any Transactions with respect to the Uncommitted Amount after the Purchase Date until the related Repurchase Date. .
(b) Unless otherwise agreed, with respect to any Loan other than a Wet-Ink Loan, the Seller shall request that Buyer enter into a Transaction (other than a Renewal Transaction) by delivering (i) to Buyer a Transaction Notice, (ii) to Buyer and Custodian an estimate of the Purchase Price or an estimate of the Purchase Price Increase, as applicable (which estimate, in each case, may be included in a Transaction Notice), (iii) to Custodian, the Mortgage Files for each such Eligible Loan, a Participation Interest in which is proposed to be held by an Underlying Trust and included in a Transaction by the times set forth in the Custodial Agreement, each in accordance with the times specified in the Custodial Agreement, and (iv) to Buyer, the original Custodial Certification issued by the Custodian without Exceptions, unless any such Exceptions have been otherwise approved by Buyer. Any Renewal Transaction shall be subject to the same terms and conditions specified in the original Transaction Notice unless an updated Transaction Notice is delivered to Buyer and agreed to by Buyer; provided, that if no updated Transaction Notice is delivered, the “Repurchase Date” for such Renewal Transaction shall be deemed to be the next monthly Repurchase Date or such earlier date on which a Repurchase Date may occur pursuant to the definition of “Repurchase Date” herein. Each Transaction Notice shall specify the proposed Purchase Date, Purchase Price or Purchase Price Increase, as applicable, Pricing Rate, Repurchase Date and the related Underlying Trust. In addition, each Transaction Notice shall set forth the related Purchase Price allocable to each individual Loan related to the Participation Interests. Each Transaction Notice shall include a Loan Schedule in respect of the Loans related to Participation Interests that are proposed to be transferred to an Underlying Trust. Buyer shall notify the Seller of its agreement to enter into a Transaction (other than a Renewal Transaction) and confirm the terms of such Transaction, by delivering to Seller a Funding Notice specifying the Loans related to Participation Interests that are proposed to be transferred to an Underlying Trust, and any other terms of the related Transaction. In the event of a conflict between the terms set forth in the Transaction Notice delivered by Seller to Buyer and the terms set forth in the related Funding Notice delivered by Buyer to Seller, the terms of the related Funding Notice shall control. In the event of a conflict between the terms set forth in this Agreement and the terms set forth in any Funding Notice, the terms of such Funding Notice shall control to the extent that the Funding Notice notes such conflict and specifies that the Funding Notice shall control. By entering into a Transaction with Buyer, the Seller consents to the terms set forth in the related Funding Notice. The Funding Notice, together with this Agreement, shall constitute conclusive evidence of the terms agreed to between Buyer and Seller with respect to the Transaction to which the Funding Notice relates. With respect to any Renewal Transaction, the terms of such Transaction shall be as set forth in the original Funding Notice for such Transaction, unless Buyer delivers an updated Funding Notice with respect to such Transaction.
(c) In accordance with the times specified in the Custodial Agreement, upon Seller’s request to enter into a Transaction, Seller will cause Custodian to deliver to the Buyer, with a copy to the Legal Title Trustee on behalf of the Legal Title Trust, an original Custodial Certification issued by the Custodian showing that the related Mortgage Files for each Loan are held by the Custodian under the Custodial Agreement without Exceptions, unless otherwise approved by Buyer. The original Custodial Certifications shall be delivered to ▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for the account of Citibank, N.A., telephone number (▇▇▇) ▇▇▇-▇▇▇▇, as agent for Buyer by overnight delivery using a nationally recognized insured overnight delivery service. In addition, in accordance with the times specified in the Custodial Agreement, Seller will deliver to Buyer or cause Custodian to deliver to Buyer on each Business Day, via Electronic Transmission acceptable to Buyer, an electronic data file with respect to all Loans held by Custodian on behalf of the Legal Title Trust subject to a Transaction and an Exception Report showing the status of all Loans then held by Custodian for the Legal Title Trust, including but not limited to the Loans which are subject to Exceptions, and the time the related Loan Documents have been released in accordance with the terms of the Custodial Agreement.
(d) Upon Seller’s request to enter into a Transaction pursuant to Section 3(a), Buyer shall, assuming all conditions precedent set forth in this Section 3 and in Sections 9(a) and (b), as applicable, have been met, and provided no Default shall have occurred and be continuing, enter into a Transaction for the purchase of the Purchased Certificate or for a Purchase Price Increase by transferring to Seller, via wire transfer, to the following account maintained by Seller at ▇▇▇▇▇ Fargo Bank Minnesota, N.A., ABA # ▇▇▇▇▇▇▇▇▇, BNF ▇▇▇▇▇▇▇▇▇▇, BNF Trust Wire Clearing, OBI: ZFC Trust/Acc# 25279305, the Purchase Price or the Purchase Price Increase, as applicable, in immediately available funds on the related Purchase Date and not later than the related time set forth in the Custodial Agreement. Seller acknowledges and agrees that the Purchase Price or Purchase Price Increase paid in connection with any Participation Interests related to any Transaction includes a mutually negotiated premium allocated to the portion of the related Loans that constitutes the related Servicing Rights, which Servicing Rights shall be held by the Legal Title Trust for the benefit of the owners of the Participation Interest related to such Loans.
(e) Anything herein to the contrary notwithstanding, if, on or prior to the determination of any LIBO Base Rate:
(i) Buyer determines, which determination shall be conclusive, that quotations of interest rates for the relevant deposits referred to in the definition of “LIBO Base Rate” in Section 2 are not being provided in the relevant amounts or for the relevant maturities for purposes of determining rates of interest for Transactions as provided herein;
(ii) Buyer determines, which determination shall be conclusive, that the Applicable Margin plus the relevant rate of interest referred to in the definition of “LIBO Base Rate” in Section 2 upon the basis of which the rate of interest for Transactions is to be determined is not likely to adequately cover the cost to Buyer of purchasing and holding the Participation Interests hereunder; or
(iii) it becomes unlawful for Buyer to enter into Transactions with a Pricing Rate based on the LIBO Base Rate; then Buyer shall give Seller prompt notice thereof and, so long as such condition remains in effect, Buyer shall be under no obligation to enter into Transactions with respect to additional Participation Interests hereunder, and Seller shall, at its option, either repurchase the Purchased Certificate at the Repurchase Price or pay a Pricing Rate at a rate per annum as determined by Buyer taking into account the increased cost to Buyer of purchasing and holding the Purchased Certificate.
(f) Seller shall repurchase the Purchased Certificate from Buyer on each related Repurchase Date. Each obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset Loan, the Participation Interest of which is held by delivering an Underlying Trust.
(g) Provided that the applicable conditions in Section 9(b) have been satisfied and provided further no Default shall have occurred and be continuing, unless Buyer is notified by the Seller to the indicated required parties contrary not later than 11:00 a.m. New York City time at least two (each2) Business Days prior to any such Repurchase Date, on each related Repurchase Date the Purchased Certificate shall automatically and immediately become subject to a new Transaction. In such event, the related Repurchase Date on which such Transaction becomes subject to a new Transaction shall become the “Required Recipient”Purchase Date” for such Transaction. For each new Transaction, unless otherwise agreed, (y) the required delivery items accrued and unpaid Price Differential shall be settled in cash on each related Repurchase Date, and (each, a “Required Delivery Item”z) the Pricing Rate shall be as set forth in the table Pricing Side Letter.
(h) [Reserved]
(i) If Seller intends to repurchase any Purchased Certificate or pay the portion of the Repurchase Price allocable to any Participation Interests on any day which is not a Repurchase Date, Seller shall give prior written notice thereof to Buyer by 2:00 p.m. (New York City time) on the date of repurchase. If such notice is given, the Repurchase Price specified in such notice shall be due and payable on the date specified therein, together with the Price Differential to such date on the amount prepaid.
(j) If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject Buyer to any tax of any kind whatsoever with respect to this Agreement or any Loans purchased pursuant to it (excluding net income taxes) or change the basis of taxation of payments to Buyer in respect thereof;
(ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the LIBO Base Rate hereunder; or
(iii) shall impose on Buyer any other condition; and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced amount receivable; provided, that any such determination under this Section 3(i) shall be consistent with determinations made by Buyer in respect of similar loan facilities. If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall, upon notice from Buyer of such additional amounts, promptly pay to Buyer such additional amount or amounts as will thereafter compensate Buyer for any such reduction that was incurred by Buyer within ninety (90) days of Buyer’s notice thereof; provided, that any such determination under this Section 3(i) shall be consistent with determinations made by Buyer in respect of similar loan facilities. If Buyer becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Seller of the corresponding required delivery time (event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this subsection submitted by Buyer to Seller shall be conclusive in the “Required Delivery Time”):absence of manifest error.
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