SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT

Exhibit 10.1

CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS BOTH NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE REGISTRANT IF PUBLICLY DISCLOSED. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.

SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT

 

Between:

 

TIAA, FSB, as Buyer

 

and

 

HOME POINT FINANCIAL CORPORATION, as Seller

 

Dated as of September 16, 2022

 

TABLE OF CONTENTS

 

 

 

SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT

 

This SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT (this “Agreement”), dated as of September 16, 2022, is made and entered into by and between HOME POINT FINANCIAL CORPORATION, a New Jersey corporation (“Seller”), and TIAA, FSB, a federal savings association (“Buyer”).

 

RECITALS

 

 

 

 

 

From time to time the parties hereto may enter into transactions in which ▇▇▇▇▇▇ agrees to transfer to Buyer Eligible Mortgage Loans on a servicing released basis against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller such Eligible Mortgage Loans on a servicing released basis at a date certain after the related Purchase Date, against the transfer of funds by Seller. Each such transaction shall be referred to herein as a “Transaction” and shall be governed by this Agreement (including any supplemental terms or conditions contained in any annexes identified herein, as applicable hereunder), unless otherwise agreed in writing.  This Agreement is not a commitment by ▇▇▇▇▇ to enter into Transactions with Seller but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with Seller.  Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement.  Any such commitment shall be set forth in the Pricing Letter, and shall be subject to satisfaction of all terms and conditions of this Agreement.

 

Except as otherwise expressly set forth herein, the TIAA Bank Warehouse Customer Guide is one of the Facility Documents as defined below.  The TIAA Bank Warehouse Customer Guide is incorporated by reference into this Agreement and Seller agrees to adhere to all terms, conditions and requirements of the TIAA Bank Warehouse Customer Guide.  Buyer may amend the TIAA Bank Warehouse Customer Guide from time to time as provided in Section 35(e).  In the event of a conflict or inconsistency between this Agreement and the TIAA Bank Warehouse Customer Guide, the terms of this Agreement shall govern.  Seller’s execution and delivery of this Agreement constitutes Seller’s acknowledgment of receipt of the TIAA Bank Warehouse Customer Guide and Seller’s agreement to the terms and conditions set forth therein and herein with respect thereto.

 

The Pricing Letter is one of the Facility Documents as defined below.  The Pricing Letter is incorporated by reference into this Agreement and Seller agrees to adhere to all terms, conditions and requirements of the Pricing Letter as incorporated herein.  In the event of a conflict or inconsistency between this Agreement and the Pricing Letter, the terms of the Pricing Letter shall govern.

 

 

Capitalized terms used but not defined herein shall have the respective meanings set forth in the Pricing Letter.  As used herein, the following terms shall have the following meanings (all terms defined in this Section 2 or in other provisions of this Agreement in the singular to have the same meanings when used in the plural and vice versa):

 

“1934 Act” shall have the meaning set forth in Section 32 hereof.

 

“Accepted Servicing Practices” shall mean, with respect to any Mortgage Loan, those mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located.

 

“Adjustable Rate Loan” shall mean a Mortgage Loan that provides for the adjustment of the Mortgage Interest Rate payable in connection with such Mortgage Loan.

 

“Adjusted Tangible Net Worth” shall mean, with respect to any Person at any date, the Net Worth of such Person plus (a) (i) all unpaid principal of all Subordinated Debt of such Person at such date; and (ii) the MSR Value at such date; minus:  (b) (i) the aggregate book value of all intangible assets of such Person and its consolidated Subsidiaries (as determined in accordance with GAAP), including, without limitation, goodwill; trademarks, trade names, service marks, copyrights, patents, licenses and franchises; capitalized Servicing Rights; organizational expenses and deferred expenses; (ii) receivables from equity owners, Affiliates or employees; (iii) advances of loans to Affiliates; (iv) investments in Affiliates; (v) assets pledged to secure any liabilities not included in the Indebtedness of such Person; and (vi) any other assets which would be deemed by HUD to be unacceptable in calculating adjusted tangible net worth; in all cases, calculated on a consolidated basis and determined in accordance with GAAP consistent with those applied in the preparation of the Financial Statements referred to herein.

 

“Affiliate” shall mean with respect to any Person, any “affiliate” of such Person, as such term is defined in the Bankruptcy Code.  Notwithstanding the foregoing, neither Stone Point Capital nor any of its  Trident Funds shall be considered an “Affiliate” of Seller as defined under this Agreement.

 

“Agency” shall mean Freddie Mac, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇ ▇▇▇, as applicable.

“Agency-Required eNote Legend” means the legend or paragraph required by ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac, as applicable, to be set forth in the text of an eNote, as may be amended from time to time by ▇▇▇▇▇▇ ▇▇▇ or Freddie Mac, as applicable.

 

“Aging Limit” shall have the meaning specified in the Pricing Letter.

 

“Agreement” shall mean this Second Amended and Restated Master Repurchase Agreement between Buyer and Seller, dated as of the date hereof, as the same may be amended, supplemented or otherwise modified in accordance with the terms hereof.

 

“ALTA” shall mean the American Land Title Association, or any successors thereto.

 

“Annual Financial Statement Date” shall have the meaning set forth in the Pricing Letter.

 

“Anti-Money Laundering Laws” shall have the meaning set forth in Section 11(z) hereof.

 

“Appraisal” shall mean an appraisal by a licensed appraiser selected in accordance with Agency guidelines and not identified to Seller as an unacceptable appraiser by an Agency, and who is experienced in estimating the value of property of that same type in the community where it is located, a signed copy of the written report of which Appraisal is in the possession of Seller or the Subservicer.

 

“Appraised Value” shall mean the value set forth in an Appraisal made in connection with the origination of the related Mortgage Loan as the value of the Mortgaged Property.

 

“Appropriate Federal Banking Agency” shall have the meaning ascribed to it by Section 1813(q) of Title 12 of the United States Code, as amended from time to time.

 

 

“Approved Mortgage Product” shall have the meaning specified in the Pricing Letter.

 

“Approved Servicing Appraiser” shall mean an independent appraiser that is nationally known as an expert in the evaluation of Servicing Rights, and is pre-approved in writing by ▇▇▇▇▇ from time to time, in its commercially reasonable discretion. As of the date hereof, SitusAMCCapital Markets is Borrower’s Approved Servicing Appraiser for the purposes of this Agreement. Bank reserves the right at any time in its commercially reasonable discretion to withdraw such approval on a prospective basis by written notice to ▇▇▇▇▇▇▇▇.

 

“Approved Tax Service Contract Provider” shall mean any tax service contract provider as approved from time to time by ▇▇▇▇▇, in its reasonable discretion.

 

“Asset Value” shall mean with respect to each Purchased Mortgage Loan that is:

 

 

 

(c)          Notwithstanding and without limiting the generality of the foregoing, Seller acknowledges that the Asset Value of a Purchased Mortgage Loan may be reduced to zero by Buyer, in its sole discretion, without notice, if:

 

(i)          such Purchased Mortgage Loan ceases to be an Eligible Mortgage Loan;

 

(ii)        the Purchased Mortgage Loan has been released from the possession of Custodian (other than to a Takeout Investor pursuant to a Bailee Letter or, in the case of eMortgage Loans, pursuant to an equivalent agreement) for a period in excess of [***] Business Days;

 

(iii)       the Purchased Mortgage Loan has been released from the possession of Custodian to a Takeout Investor pursuant to a Bailee Letter or, in the case of eMortgage Loans, pursuant to an equivalent agreement, for a period in excess of [***] calendar days;

 

(iv)       the Purchased Mortgage Loan is a Wet Mortgage Loan for which the related Mortgage File has not been received by Custodian by the Wet Delivery Deadline for such Purchased Mortgage Loan;

 

(v)         such Purchased Mortgage Loan is rejected by the related Takeout Investor;

 

(vi)        such Purchased Mortgage Loan is or becomes a Defective Mortgage Loan or a Delinquent Mortgage Loan;

 

(vii)     such Purchased Mortgage Loan has been subject to a Transaction hereunder for a period of greater than the applicable Transaction Term Limitation;

 

(viii)    Buyer has determined in its  commercially reasonable discretion in a manner that is consistent with its determination for other similarly situated sellers that the Purchased Mortgage Loan is not eligible for whole loan sale or securitization in a transaction consistent with the prevailing sale and securitization industry with respect to substantially similar Mortgage Loans; or

 

(ix)       such Purchased Mortgage Loan contains a breach of a representation or warranty made by Seller in this Agreement.

 

The aggregate Asset Value of Mortgage Loans included in any Concentration Category shall not exceed the Concentration Limit applicable to such Concentration Category.

 

“Assignment and Acceptance” shall have the meaning set forth in Section 18 hereof.

 

“Assignment of Proprietary Lease” shall mean the specific agreement creating a first Lien on and pledge of the Co-op Shares and appurtenant Proprietary Lease securing a Co-op Loan.

 

“Bailee Letter” shall have the meaning assigned to such term in the Custodial Agreement.

 

“Bankruptcy Code” shall mean the United States Bankruptcy Code of 1978, as amended from time to time.

 

“Business Day” shall mean a day other than (i) a Saturday or a Sunday, (ii) a day on which the New York Stock Exchange or the Federal Reserve Bank of New York is closed, (iii) a day on which banks in New York, New York, Boston Massachusetts, Indianapolis, Indiana, or Jacksonville, Florida are authorized or obligated to close their regular banking business, or (iv) any day on which the offices of the Custodian are closed.

 

“Buyer” is defined in the introductory paragraph of this Agreement and includes its successors in interest and assigns and, with respect to Section 7, its participants.

 

“Capital Lease Obligations” shall mean, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

 

“Cash Equivalents” shall mean (a) securities with maturities of [***] days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of [***] or less from the date of acquisition and overnight bank deposits of Buyer or its Affiliates or of any commercial bank having capital and surplus in excess of [***], (c) repurchase obligations of Buyer or its Affiliates or of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within [***] days after the day of acquisition, (e) securities with maturities of [***]days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s, (f) securities with maturities of [***] days or less from the date of acquisition backed by standby letters of credit issued by Buyer or any commercial bank satisfying the requirements of clause (b) of this definition, or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.

 

“Change in Control” shall have the meaning specified in the Pricing Letter.

 

“Closing Protection Letter” shall mean a letter of indemnification from a title insurer addressed to Seller and/or Buyer or for which Buyer is a third party beneficiary, with coverage that is customarily acceptable to Persons engaged in the origination of mortgage loans, identifying the Settlement Agent covered thereby and indemnifying Seller and/or Buyer (directly or as a third party beneficiary) against losses incurred due to malfeasance or fraud by the Settlement Agent or the failure of the Settlement Agent to follow the specific escrow instructions specified by Seller to the Settlement Agent or otherwise by Buyer with respect to the closing of the Mortgage Loan.  The Closing Protection Letter shall be either with respect to the individual Mortgage Loan being purchased pursuant hereto or a blanket Closing Protection Letter which covers closings conducted by the Settlement Agent in the jurisdiction in which the closing of such Mortgage Loan takes place.

 

“CLTA” shall mean the California Land Title Association, or any successors thereto.

 

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

 

“Concentration Category” shall have the meaning specified in the Pricing Letter.

 

“Concentration Limit” shall mean, for each Concentration Category, the applicable limitation set forth in the Pricing Letter.

 

“Confidential Terms” shall have the meaning set forth in Section 30 hereof.

 

“Confidential Information” shall have the meaning set forth in Section 30 hereof.

 

“Conforming Mortgage Loan” shall have the meaning set forth in the Pricing Letter.

 

“Control Failure” means, with respect to an eMortgage, (i) Buyer shall not be designated as the Controller of the eNote in the MERS eRegistry by the Controller Status Transfer Deadline, (ii) the Custodian shall not be designated as the Location and Delegatee or the eNote in the MERS eRegistry by the Controller Status Transfer Deadline, (iii) the eVault shall have released the Authoritative Copy of an eNote without the prior direction of Buyer or the Custodian, or (iv) if the Custodian initiated any changes on the MERS eRegistry in contravention of the terms of the Custodial Agreement.

“Controller” means, with respect to an eNote, the party designated in the MERS eRegistry as the “Controller”.

“Controller Status Transfer Deadline” means [***] Business Days after the Purchase Date.

 

“Conventional Mortgage Loan” shall mean a Conforming Mortgage Loan other than a Government Mortgage Loan.

 

“Co-op Corporation” shall mean, with respect to any Co-op Loan, the cooperative apartment corporation that holds legal title to the related Co-op Project and grants occupancy rights to units therein to stockholders through Proprietary Leases or similar arrangements.

 

“Co-op Loan” shall mean a Mortgage Loan secured by the pledge of stock allocated to a dwelling unit in a residential cooperative housing corporation and the collateral assignment of the related Proprietary Lease.

 

“Co-op Project” shall mean, with respect to any Co-op Loan, all real property and improvements thereto and rights therein and thereto owned by a Co-op Corporation including without limitation the land, separate dwelling units and all common elements.

 

“Co-op Shares” shall mean, with respect to any Co-op Loan, the shares of stock issued by a Co-op Corporation and allocated to a Co-op Unit and represented by a stock certificate or certificates.

 

“Co-op Unit” shall mean, with respect to any Co-op Loan, a specific unit in a Co-op Project.

 

“Costs” shall have the meaning set forth in Section 15(a) hereof.

 

“Covenant Net Income” shall mean Net Income excluding FMV Adjustments.

 

“Credit File” shall mean with respect to each Mortgage Loan, the documents and instruments relating to the origination and administration of such Mortgage Loan.

 

“Custodial Agreement” shall mean that certain Amended and Restated Custodial Agreement dated as of November 6, 2020, among Seller, the Buyer and Custodian, , as the same may be amended from time to time.

 

“Custodial Loan Transmission” shall have the meaning set forth in the Custodial Agreement.

 

“Custodian” shall mean U.S. Bank National Association, or any successor thereto under the Custodial Agreement.

 

“Daily Activity Report” shall mean for each Business Day, the daily activity pursuant to this Agreement reflected on the TIAA Bank Warehouse Electronic System, including without limitation, any purchases of Mortgage Loans, any repurchases of Mortgage Loans, any payments received by Buyer or in the Inbound Account with respect to the Purchased Mortgage Loans, and the activity in each of the Inbound and Haircut Accounts.

 

“Debt for Borrowed Money Arrangements” shall have the meaning set forth in Section 11(o) hereof.

 

“Default” shall mean an Event of Default or an event that with notice or lapse of time or both would become an Event of Default.

 

“Defective Mortgage Loan” shall mean a Mortgage Loan (a) which is in foreclosure, has been foreclosed upon or has been converted to real estate owned property, (b) for which the Mortgagor is in bankruptcy, (c) that is not either (i) subject to a valid and binding Takeout Commitment or (ii) unless a Takeout Commitment is required for the applicable Approved Mortgage Product type, covered within Seller’s hedging program, as approved by Buyer, (d) that is subject to a Takeout Commitment with respect to which Seller is in default, (e) that is rejected or excluded for any reason from the related Takeout Commitment by the Takeout Investor, (f) that is not purchased by the Takeout Investor in compliance with the Takeout Commitment at or prior to the expiration or termination of the Takeout Commitment for any reason, or (g) that is not repurchased by Seller in compliance with the provisions of this Agreement, or (h) which was, but ceases to be, an Eligible Mortgage Loan, including if the representations and warranties set forth in Schedule 1 to this Agreement cease to be true and correct with respect to such Mortgage Loan.

 

“Delegatee” means, with respect to an eNote, the party designated in the MERS eRegistry as the “Delegatee” or “Delegatee for Transfers” of Buyer, who in such capacity is authorized by the Buyer to perform certain MERS eRegistry transactions on behalf of the Buyer.

 

“Delinquent Mortgage Loan” shall mean any Mortgage Loan as to which any Monthly Payment, or part thereof, remains unpaid for [***] days or more following the original Due Date for such Monthly Payment.

 

“Dollars” and “$” shall mean lawful money of the United States of America.

 

“Due Date” shall mean the day of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace.

 

“Due Diligence Costs” shall have the meaning set forth in Section 17 hereof.

 

“Due Diligence Review” shall mean the performance by Buyer of any or all of the reviews permitted under Section 17 hereof with respect to Seller, any or all of the Purchased Mortgage Loans, or any Mortgage Loans submitted for purchase hereunder, as desired by ▇▇▇▇▇ from time to time.

 

“E-Sign” shall mean the federal Electronic Signatures in Global and National Commerce Act, as amended from time to time.

 

“Effective Date” September 16, 2022.

 

“Electronic Record” shall mean “Record” and “Electronic Record,” both as defined in E-Sign, and shall include, but not be limited to, recorded telephone conversations, fax copies or electronic transmissions, including, without limitation, those involving the TIAA Bank Warehouse Electronic System.  With respect to an eMortgage Loan, “Electronic Record” means the related eNote and all other documents comprising the Asset File electronically created and that are stored in an electronic format, if any

 

“Electronic Signature” shall have the meaning set forth in E-Sign.

 

“Electronic Tracking Agreement” shall mean that certain Electronic Tracking Agreement dated as of July 26, 2016 among Buyer, Seller, MERS and MERSCORP, Inc., as the same may be amended from time to time.

 

“Electronic Transactions” shall mean transactions conducted using Electronic Records and/or Electronic Signatures or fax copies of signatures.

 

“Eligible Mortgage Loan” shall mean a Mortgage Loan which (a) is an Approved Mortgage Product, and (b) complies with the representations and warranties set forth on Schedule 1 hereto.

 

“eMortgage Loan” means a Mortgage Loan with respect to which there is an eNote and as to which some or all of the other documents comprising the related Required Documents and Records may be created electronically and not by traditional paper documentation with a pen and ink signature.

“eNote” means, with respect to any eMortgage Loan, the electronically created and stored Note that is a Transferable Record.

“eNote Delivery Requirement” has the meaning assigned to such term in Section 10(a).

“eVault” means an electronic repository identified by ▇▇▇▇▇▇▇▇▇ and established and maintained by an eVault Provider for delivery and storage of eNotes.  eNotes held in the eVault shall be registered on, and subject to, the MERS eRegistry

“eVault Provider” has the meaning set forth in the Custodial Agreement.

 

“EO13224” shall have the meaning set forth in Section 11(aa) hereof.

 

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor thereto, and the regulations promulgated and rulings issued thereunder.

 

“ERISA Affiliate” shall, with respect to Seller, mean any Person which is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code is treated as a single employer described in Section 414(m) or (o) of the Code.

 

“ERISA Liability Threshold” shall have the meaning specified in the Pricing Letter.

 

“Escrow Amount” shall mean any amounts paid by the Mortgagor or retained by Seller with respect to the Mortgage Loan that constitute escrowed funds, which shall include any amounts representing Escrow Payments or unapplied principal prepayments.

 

“Escrow Payments” shall mean, with respect to any Mortgage Loan, the amounts constituting ground rents, taxes, assessments, water rates, sewer rents, municipal charges, mortgage insurance premiums, fire and hazard insurance premiums, condominium charges, and any other payments required to be escrowed by the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.

 

“Event of Default” shall have the meaning specified in Section 13 hereof.

 

“Event of ERISA Termination” shall, with respect to Seller or any ERISA Affiliate, mean (i) with respect to any Plan, a Reportable Event, or (ii) the withdrawal of Seller or any ERISA Affiliate thereof from a Plan during a plan year in which it is a substantial employer, as defined in Section 4001(a)(2) of ERISA, or (iii) the failure by Seller or any ERISA Affiliate thereof to meet the minimum funding standard of Section 412 of the Code or Section 302 of ERISA with respect to any Plan, including, without limitation, the failure to make on or before its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA, or (iv) the distribution under Section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate thereof to terminate any Plan, or (v) the failure to meet the requirements of Section 436 of the Code resulting in the loss of qualified status under Section 401(a)(29) of the Code, or (vi) the institution by the PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vii) the receipt by Seller or any ERISA Affiliate thereof of a notice from a Multiemployer Plan that action of the type described in the previous clause (vi) has been taken by the PBGC with respect to such Multiemployer Plan, or (viii) any event or circumstance exists which may reasonably be expected to constitute grounds for Seller or any ERISA Affiliate thereof to incur liability under Title IV of ERISA or under Sections 412(b) or 430 (k) of the Code with respect to any Plan.

 

“Excess Proceeds” shall mean the excess, if any, of the proceeds received in the Inbound Account with respect to a purchase or repurchase of a Purchased Mortgage Loan over the Repurchase Price for such Purchased Mortgage Loan.

 

“Existing Subordinated Debt” shall mean all Subordinated Debt, if any, existing as of the Effective Date, as set forth on Schedule 6 to the Pricing Letter.

 

“Expenses” shall mean all present and future expenses incurred by or on behalf of Buyer or the Custodian in connection with this Agreement or any of the other Facility Documents and any amendment, supplement or other modification or waiver related hereto or thereto, whether incurred heretofore or hereafter, which expenses shall include without limitation the cost of title, lien, judgment and other record searches; attorneys’ fees; and costs of preparing and recording any UCC financing statements or other filings necessary to perfect the security interest created hereby.

 

“Facility Documents” shall mean this Agreement, the Pricing Letter, the TIAA Bank Warehouse Customer Guide, the Electronic Tracking Agreement, the Custodial Agreement, each Servicer Notice, if any, the Power of Attorney, and each Subordination Agreement, if any.

 

“Facility Termination Threshold” shall have the meaning specified in the Pricing Letter.

 

“▇▇▇▇▇▇ ▇▇▇” shall mean ▇▇▇▇▇▇ ▇▇▇, or any successor thereto.

 

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

 

“FCPA” shall have the meaning set forth in Section 11(ee) hereof.

 

“FDIA” shall have the meaning set forth in Section 31 hereof.

 

“FDICIA” shall have the meaning set forth in Section 31 hereof.

 

“FHA” shall mean the Federal Housing Administration, an agency within the United States Department of Housing and Urban Development, or any successor thereto, and including the Federal Housing Commissioner and the Secretary of Housing and Urban Development where appropriate under the FHA Regulations.

 

“FHA Loan” shall mean a Mortgage Loan which is the subject of an FHA Mortgage Insurance Certificate.

 

“FHA Mortgage Insurance Certificate” shall mean the certificate evidencing the contractual obligation of the FHA respecting the insurance of a Mortgage Loan.

 

“FHA Regulations” shall mean the regulations promulgated by the Department of Housing and Urban Development under the National Housing Act, as amended from time to time and codified in 24 Code of Federal Regulations, and other Department of Housing and Urban Development issuances relating to FHA Loans, including the related handbooks, circulars, notices and mortgagee letters.

 

“FICO” shall mean Fair ▇▇▇▇▇ Corporation, or any successor thereto.

 

“Fidelity Insurance” shall mean, collectively, whether or not provided in the same policy or policies, insurance coverage with respect to employee errors, omissions, dishonesty, forgery, theft, disappearance and destruction, robbery and safe burglary, property (other than money and securities) and computer fraud in an aggregate amount reasonably acceptable to Buyer.  Compliance with FNMA requirements shall be deemed acceptable by Buyer under this Agreement.

 

“Financial Condition Covenants” shall mean each of the covenants set forth in Section 3 of the Pricing Letter.

 

“Financial Reporting Party” shall have the meaning specified in the Pricing Letter.

 

“Financial Statements” shall mean the consolidated financial statements of the Financial Reporting Party prepared in accordance with GAAP for the year or other period then ended. Such financial statements will be audited, in the case of annual statements, by an Approved CPA.

 

“Fitch” shall mean Fitch Ratings, Inc., or any successor thereto.

 

“Flood Policy Insurer” shall mean any of the insurers employed by Seller in the ordinary course of its business that are reasonably acceptable to the Buyer.

 

“FMV Adjustments” shall mean adjustments to the capitalized value of Seller’s Servicing Rights resulting from changes in valuation inputs or assumptions used in the valuation model.

 

“▇▇▇▇▇▇▇ ▇▇▇” shall mean ▇▇▇▇▇▇▇ ▇▇▇, or any successor thereto.

 

“GAAP” shall mean generally accepted accounting principles in the United States of America, applied on a consistent basis and applied to both classification of items and amounts, and shall include, without limitation, the official interpretations thereof by the Financial Accounting Standards Board, its predecessors and successors.

 

“▇▇▇▇▇▇ ▇▇▇” shall mean the Government National Mortgage Association, or any successor thereto.

 

“▇▇▇▇▇▇ Mae Buyout Loan” shall have the meaning set forth in the Pricing Letter.

 

“▇▇▇▇▇▇ ▇▇▇ MBS Guide” shall mean the ▇▇▇▇▇▇ Mae Mortgage-Backed Securities Guide (▇▇▇▇▇▇ ▇▇▇ 5500.3, Rev. 1).

 

“GLB Act” shall have the meaning set forth in Section 30 hereof.

 

 

“Governmental Authority” shall mean any nation or government, any state, county, municipality or other political subdivision thereof or any governmental body, agency, authority, department or commission (including, without limitation, any taxing authority) or any instrumentality or officer of any of the foregoing (including, without limitation, any court or tribunal) exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any corporation, partnership or other entity directly or indirectly owned by or controlled by the foregoing (including without limitation the Appropriate Federal Banking Agency).

 

“Guarantee” shall mean, as to any Person, any obligation of such Person directly or indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the payment of any Indebtedness of any other Person or otherwise protecting the holder of such Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, or to take-or-pay or otherwise); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business.  The amount of any Guarantee of a Person shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.  The terms “Guarantee” and “Guaranteed” used as verbs shall have correlative meanings.

 

“Haircut Account” shall mean the account established pursuant to Section 9(e) hereof.

 

“Haircut Amount” shall mean the excess of the outstanding principal balance of the Purchased Mortgage Loan being purchased on the Purchase Date over the Purchase Price for such Purchased Mortgage Loan.

 

“Hash Value” means, with respect to an eNote, the unique, tamper-evident digital signature of such eNote that is stored with MERS.

 

 

“High Cost Mortgage Loan” shall mean a mortgage loan classified as (a) a “high cost” or “higher priced” loan under the Home Ownership and Equity Protection Act of 1994 or (b) a “high cost,” “high risk,” “high rate,” “threshold,” “covered,” or “predatory” loan under any other applicable state, federal or local law (or a similarly classified loan using different terminology under a law, regulation or ordinance imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees).

 

“HUD” shall mean the Department of Housing and Urban Development.

 

“Inbound Account” shall mean the account established pursuant to Section 9(d) hereof.

 

“Income” shall mean, with respect to any Mortgage Loan at any time, any principal thereof then payable, and all interest, dividends or other distributions payable thereon and all proceeds thereof other than any amounts designated as payment for escrows items thereunder.

 

“Indebtedness” shall mean, with respect to any Person, total liabilities, as reported on that Person’s balance sheet and calculated in accordance with GAAP including any liabilities of others guaranteed by such Person, but excluding liabilities associated with Mortgage Loans serviced by Seller that are eligible for repurchase pursuant to Chapter 18 of the ▇▇▇▇▇▇ ▇▇▇ MBS Guide.

 

“Indemnified Party” shall have the meaning set forth in Section 15(a) hereof.

 

“Initial Haircut Account Funded Amount” shall mean, with respect to any Purchased Mortgage Loan, the amount deposited by Seller into the Haircut Account on or prior to the related Purchase Date, which amount shall equal the Haircut Amount plus any Escrow Amount related to the Purchased Mortgage Loan.

 

 

“Interest Expense” shall mean, for any period, total interest expense (including that attributable to Capital Lease Obligations) of such Person and its Subsidiaries for such period with respect to all outstanding Indebtedness of such Person and its Subsidiaries (including, without limitation, all commissions, discounts and other fees and charges owed by such Person with respect to letters of credit and bankers’ acceptance financing and net costs of such Person under Hedge Agreements in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).

 

“Lien” shall mean any security interest, mortgage, pledge, lien, claim on property, charge or encumbrance (including any conditional sale or other title retention agreement) or any lease in the nature thereof.

 

“Litigation Threshold” shall have the meaning specified in the Pricing Letter.

 

 

“Location” means, with respect to an eNote, the location of such eNote which is established by reference to the MERS eRegistry.

 

“Margin Call” shall have the meaning specified in Section 4.

 

“Margin Deficit” shall have the meaning specified in Section 4.

 

“Market Value” shall mean, as of any date with respect to any Purchased Mortgage Loan, the price at which such Mortgage Loan could readily be sold as determined by Buyer in its sole discretion,  provided, however, that the “Market Value” of any Mortgage Loan that is not an Eligible Mortgage Loan is zero.

 

“Material Adverse Effect” shall mean a material adverse effect on (a) the Property, business, operations, or financial condition of Seller and its Subsidiaries taken as a whole, (b) the ability of Seller to perform its obligations under any of the Facility Documents to which it is a party, (c) the validity or enforceability of any of the Facility Documents (other than the TIAA Bank Warehouse Customer Guide), (d) the rights and remedies of Buyer or any Affiliate under any of the Facility Documents (other than the TIAA Bank Warehouse Customer Guide), (e) the timely payment of any amounts payable under the Facility Documents or (f) the Asset Value of the Purchased Mortgage Loans taken as a whole.

 

“Maturity Event” shall mean with respect to a Mortgage Loan, the earliest to occur of:  (a) the Mortgaged Property is sold or transferred; (b) the death of the last remaining Mortgagor; (c) the Mortgaged Property ceases to be the principal residence of a Mortgagor for reasons other than death and the Mortgaged Property is not the principal residence of at least one other Mortgagor, together with the required FHA approval; (d) for a period of longer than [***]consecutive months, a Mortgagor fails to occupy the Mortgaged Property because of physical or mental illness and the Mortgaged Property is not the principal residence of at least one other Mortgagor, together with the required FHA approval; or (e) Mortgagor violates any other covenant of the Mortgage or Mortgage Note and is unable (or refuses) to correct the violation, together with the required FHA approval.

 

“Maximum Purchase Amount” shall have the meaning specified in the Pricing Letter.

 

“MERS” shall mean Mortgage Electronic Registration Systems, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor thereto.

 

“MERS eRegistry” means the electronic registry operated by MERSCORP Holdings, Inc. that acts as the legal system of record that identifies the Controller, Delegatee and Location of the Authoritative Copy of registered eNotes.

 

“MERS System” shall mean the system of recording transfers of mortgages electronically maintained by MERS.

 

“Minimum Reserve Amount” shall have the meaning specified in the Pricing Letter.

 

“Monthly Payment” shall mean the scheduled monthly payment of principal and interest on a Mortgage Loan.

 

“Moody’s” shall mean Moody’s Investor’s Service, Inc. or any successors thereto.

 

“Mortgage” shall mean each mortgage, assignment of rents, security agreement and fixture filing, deed of trust, deed to secure debt, or similar instrument creating and evidencing a lien on real property and other property and rights incidental thereto, unless such Mortgage is granted in connection with a Co-op Loan, in which case the first lien position is in the Co-op Shares of the subject Co-op Corporation and in the tenant’s rights in the Proprietary Lease relating to such Co-op Shares.

 

“Mortgage File” shall mean, with respect to a Mortgage Loan, the documents and instruments relating to such Mortgage Loan and set forth in the TIAA Bank Warehouse Customer Guide and the Custodial Agreement.

 

“Mortgage Interest Rate” shall mean the rate of interest borne on a Mortgage Loan from time to time in accordance with the terms of the related Mortgage Note.

 

“Mortgage Loan” shall mean any first lien, one-to-four-family residential mortgage loan evidenced by a Mortgage Note and secured by a Mortgage.

 

“Mortgage Loan Schedule” shall mean with respect to any Transaction as of any date, a mortgage loan schedule in the form of a computer tape or other electronic medium generated by Seller and delivered to Buyer via the TIAA Bank Warehouse Electronic System and to Custodian as specified in the Custodial Agreement, which provides information (including, without limitation, the information required pursuant to the TIAA Bank Warehouse Customer Guide) relating to the Purchased Mortgage Loans in a format required pursuant to the TIAA Bank Warehouse Customer Guide.

 

“Mortgage Note” shall mean the promissory note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage.

 

“Mortgaged Property” shall mean the real property securing repayment, or other Co-op Loan collateral, of the debt evidenced by a Mortgage Note.

 

“Mortgagor” shall mean the obligor or obligors on a Mortgage Note, including any Person who has assumed or guaranteed the obligations of the obligor thereunder.

 

“MSR Appraised Value” means, as of any date of determination, the fair market value of Seller’s Servicing Rights at such time, calculated as a percentage (using the mid-point if expressed as a range) of the then unpaid principal balances of each category of Mortgage Loan then being serviced, as set forth in a Servicing Rights Appraisal.  For the avoidance of doubt, in order to take into account changes in the unpaid principal balances of Mortgage Loans from the date of a particular appraisal to the date of any later determination of MSR Value for purposes of calculating Adjusted Tangible Net Worth at any time, the applicable value percentage shall be applied to the then (updated) unpaid principal balance of Mortgage Loans then included in Seller’s capitalized Servicing Rights within each applicable category of Mortgage Loans of the date of such later determination of MSR Value.

 

“MSR Value” shall mean, as of any date of determination, the lesser of (a) Seller’s capitalized Servicing Rights at such time, and (b) as applicable, and with respect to the same Servicing Rights (i) the MSR Appraised Value, at such time, with respect to those Mortgage Loans then included in Seller’s capitalized Servicing Rights, or (ii) if the applicable Servicing Rights Appraisal has not been timely delivered to Buyer, such amount as Buyer shall determine in its commercially reasonable discretion, using such means of valuation as it deems appropriate under the circumstances.

 

“Multiemployer Plan” shall mean, with respect to Seller, a “multiemployer plan” as defined in Section 3(37) of ERISA which is or was at any time during the current year or the immediately preceding five years contributed to (or required to be contributed to) by Seller or any ERISA Affiliate thereof on behalf of its employees and which is covered by Title IV of ERISA.

 

“Net Account Funded Amount” shall mean, for each Purchased Mortgage Loan, the Initial Haircut Account Funded Amount minus the Haircut Amount withdrawn from the Haircut Account by Buyer plus all additional amounts received in the Haircut Account related to the applicable Purchased Mortgage Loan, including amounts on account of Repurchase Price (including, without duplication, Excess Proceeds) minus any Shortfall Proceeds withdrawn by Buyer on account of the applicable Purchased Mortgage Loan, minus all Warehouse Fees withdrawn by Buyer on account of the applicable Purchased Mortgage Loan minus any additional amounts withdrawn by Buyer as permitted under Section 9(e) or otherwise, and attributed (in the sole discretion of Buyer) to such Purchased Mortgage Loan.

 

“Net Income” shall mean, for any Person for any period, the net income of such Person for such period as determined on a consolidated basis in accordance with GAAP.

 

“Net Worth” shall mean, with respect to any Person, an amount equal to, on a consolidated basis, such Person’s stockholder equity (determined in accordance with GAAP).

 

 

“Obligations” shall mean: (a) any amounts owed by Seller to Buyer in connection with a Transaction hereunder, together with interest thereon (including interest which would be payable as post-petition interest in connection with any bankruptcy or similar proceeding) and all other fees or expenses which are payable hereunder or under any of the Facility Documents; (b) all other obligations or amounts owed by Seller to Buyer or an Affiliate of Buyer under any other contract or agreement, in each case, whether such amounts or obligations owed are direct or indirect, absolute or contingent, matured or unmatured.

 

“OFAC” shall have the meaning set forth in Section 11(aa) hereof.

 

“Other Taxes” shall have the meaning set forth in Section 7(b) hereof.

 

“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

 

“Person” shall mean any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, unincorporated association or government (or any agency, instrumentality or political subdivision thereof).

 

“Plan” shall mean any employee pension benefit plan within the meaning of section 3(2) of ERISA that is or was at any time during the current year or immediately preceding five years established, maintained or contributed to by either Seller or any ERISA Affiliate thereof and that is covered by Title IV of ERISA, other than a Multiemployer Plan.

 

“Pledge Instruments” shall mean the Assignment of Proprietary Lease and the stock power related to the Co-op Shares.

 

 

“Power of Attorney” shall mean that certain Power of Attorney dated as of September 16, 2022, executed by the Seller in favor of the Buyer.

 

“Price Differential” shall mean, with respect to any Transaction hereunder as of any date, the aggregate amount obtained by daily application of the Pricing Rate (or, during the continuation of an Event of Default, by daily application of the Post-Default Rate) for such Transaction to the Purchase Price for such Transaction on a 360 day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the Repurchase Date (reduced by any amount of such Price Differential previously paid by Seller to Buyer with respect to such Transaction).

 

“Pricing Letter” shall mean that certain letter agreement between Bu▇▇▇ ▇nd Seller, dated as of the date hereof, as the same may be amended from time to time.

 

“Pricing Rate” shall mean a rate per annum equal to the sum of (a) the SOFR Rate plus (b) the Pricing Spread.

 

“Pricing Spread” shall have the meaning specified in the Pricing Letter.

 

“Prohibited Person” shall have the meaning set forth in Section 11(aa) hereof.

 

“Property” shall mean any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

 

“Proprietary Lease” shall mean the lease of a Co-op Unit evidencing the possessory interest of the owner of the Co-op Shares in such Co-op Unit.

 

“Purchase Date” shall mean the date on which Purchased Mortgage Loans are transferred by Seller to Buyer or its designee.

 

“Purchase Price” shall have the meaning specified in the Pricing Letter.

 

“Purchase Price Percentage” shall have the meaning specified in the Pricing Letter.

 

“Purchased Mortgage Loan” shall mean each Mortgage Loan sold by Seller to Buyer in a Transaction, as reflected in the TIAA Bank Warehouse Electronic System and as evidenced by the Daily Activity Report, prior to the time repurchased by Seller in accordance with the terms hereof.

 

“Qualified Insurer” shall mean a mortgage guaranty insurance company duly authorized and licensed where required by law to transact mortgage guaranty insurance business and acceptable under the Underwriting Guidelines.

 

“Rating Agency” shall mean any of S&P, Moody’s or Fitch.

 

“Recognition Agreement” shall mean an agreement among a Co-op Corporation, a lender, and a Mortgagor with respect to a Co-op Loan whereby such parties (i) acknowledge that such lender may make, or intends to make, such Co-op Loan, and (ii) make certain agreements with respect to such Co-op Loan.

 

“Records” shall mean all instruments, agreements and other books, records, and reports and data generated by other media for the storage of information maintained by Seller or any other person or entity with respect to a Mortgage Loan. Records shall include the Mortgage Notes, any Mortgages, the Mortgage Files, the credit files related to a Mortgage Loan and any other instruments necessary to document or service a Mortgage Loan.

 

“Register” shall have the meaning set forth in Section 19(b) hereof.

 

“Regulations T, U and X” shall mean Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.

 

“Reportable Event” shall mean any of the events set forth in Section 4043 of ERISA, other than those events as to which the thirty day notice period is waived under PBGC Reg. § 4043.

 

“Repurchase Assets” shall have the meaning provided in Section 8(a) hereof.

 

“Repurchase Date” shall mean the date on which Seller is to repurchase the Purchased Mortgage Loans, or any particular Purchased Mortgage Loan, subject to a Transaction from Buyer, which shall be the earliest of (a) the date specified pursuant to Section 3(d)(i), (b) a date no later than the applicable Aging Limit, (c) one (1) Business Day after such Purchased Mortgage Loan is no longer an Eligible Mortgage Loan, (d) the Termination Date, or (e) any date determined by application of the provisions of Sections 3(d) or 14.

 

“Repurchase Price” shall mean the price at which Purchased Mortgage Loans are to be transferred from Buyer or its designee to Seller upon termination of a Transaction, which will be determined in each case as to any Purchased Mortgage Loan as the sum of (a) the Purchase Price for such Purchased Mortgage Loan as of the date of such determination, plus (b) any accrued and unpaid Price Differential with respect to such Purchased Mortgage Loan as of the date of such determination, plus (c) any other accrued and unpaid fees, expenses, indemnities, and other amounts then due and owing to Buyer with respect to such Purchased Mortgage Loan.

 

“Requirement of Law” shall mean as to any Person, all requirements and prohibitions contained in the Certificate of Incorporation, Bylaws, Certificate of Formation, Operating Agreement or other organizational or governing documents of such Person, and of any law, treaty, rule, regulation, procedure or any determination of an arbitrator or a determination of a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property, or to which such Person or any of its Property is subject.

 

“Responsible Officer” shall mean, as to Buyer and Seller, respectively, an officer or other authorized representative of such Person listed on Schedule 3 to the Pricing Letter, as such Schedule 3 may be amended from time to time.

 

“Reserve Account” shall mean the account established pursuant to Section 9(c) hereof.

“Reserve Amount” shall mean all cash and other amounts on deposit in the Reserve Account.

 

 

“S&P” shall mean Standard & Poor’s Ratings Services, or any successor thereto.

 

“SEC” shall have the meaning set forth in Section 32 hereof.

 

“Seller” is defined in the introductory paragraph of this Agreement, and includes any permitted successor in interest thereto.

 

“Servicer Notice” shall mean a notice acknowledged by each Subservicer, if any, substantially in the form of Exhibit B hereto.

 

“Servicing Agreement” shall have the meaning set forth in Section 16(c) hereof.

 

“Servicing Rights” shall mean the rights of any Person to administer, service or subservice Mortgage Loans, to collect Income thereon, or to possess related Records.

 

“Servicing Rights Appraisal” shall mean a written appraisal or evaluation by an Approved Servicing Appraiser evaluating the MSR Appraised Value of all of the Servicing Rights as of a date stated in the written report of such evaluation, each such evaluation and report to be made at Seller’s expense, to be addressed to Buyer and to be in form and substance acceptable to Buyer in its commercially reasonable discretion.

 

“Settlement Agent” shall mean, with respect to any Transaction, the entity approved by Bu▇▇▇, in its sole discretion, which may be a title company, escrow company or attorney in accordance with local law and practice in the jurisdiction where the proceeds of the related Mortgage Loan are being disbursed.

 

“Shortfall Proceeds” shall mean the shortfall, if any, between the proceeds received in the Inbound Account with respect to a purchase or repurchase of a Purchased Mortgage Loan and the Repurchase Price for such Purchased Mortgage Loan.

 

“SIPA” shall have the meaning set forth in Section 32 hereof.

 

“SOFR Floor” shall have the meaning set forth in the Pricing Letter.

“SOFR Rate” shall mean, with respect to each day a Transaction is outstanding, the rate per annum equal to the greater of (a) Term SOFR as quoted by Bloomberg Finance L.P., or any quoting service or commonly available source utilized by Buyer, for the purpose of displaying Term SOFR on such date (and if such date is not a Business Day, the SOFR Rate in effect on the Business Day immediately preceding such date), and (b) the SOFR Floor. Notwithstanding the foregoing, if (i) Term SOFR ceases to exist or be published by the Term SOFR Administrator (or any successor or substitute), (ii) there is a material disruption to Term SOFR, including but not limited to other lenders in the industry switching from Term SOFR to another interest rate, (iii) there is a change in the methodology of calculating Term SOFR or (iv) in the reasonable expectation of the Buyer, any of the events specified in clause (i), (ii) or (iii) will occur; then the rate for the applicable interest period will be determined by such alternate method designed to measure interest rates in a similar manner, as determined by the Buyer.  In order to account for the relationship of the replacement index to the original Term SOFR, such alternate method will incorporate any spread to any replacement index as is necessary to ensure that Seller and the Buyer are in a similar economic position as the original Term SOFR.

 

“Subordinated Debt” means, Indebtedness of Seller (i) which is unsecured, (ii) no part of the principal of such Indebtedness is required to be paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory prepayment or otherwise) prior to the date which is one year following the Termination Date and (iii) the payment of the principal of and interest on such Indebtedness and other obligations of Seller in respect of such Indebtedness is subordinated to the prior payment in full of the principal of and interest (including post-petition obligations) on the Transactions and all Obligations on terms and conditions that are satisfactory in form and substance to Buyer in its commercially reasonable discretion.  Subordinated Debt, if any, outstanding as of the Effective Date is as set forth on Schedule 6 to the Pricing Letter.

 

“Subordination Agreement” shall mean an agreement among Buyer, Seller, and all applicable third parties which satisfies the requirements of clause (iii) of the definition of “Subordinated Debt.”

 

“Subservicer” shall have the meaning set forth in Section 16(c) hereof, and includes the permitted successors and assigns of each such Person, including any Successor Servicer.  The Subservicer, if any, on the Effective Date is identified on Schedule 5 to the Pricing Letter.

 

“Subsidiary” shall mean, with respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

 

“Successor Servicer” shall have the meaning set forth in Section 16(h) hereof.

 

“Surplus Amount” shall have the meaning specified in the Pricing Letter.

 

“Takeout Commitment” shall mean a commitment of Seller to sell one or more Mortgage Loans to a Takeout Investor, and the corresponding Takeout Investor’s commitment back to Seller to effectuate the foregoing.

 

“Takeout Investor” shall mean any institution which has made a Takeout Commitment and has been approved by Buyer, in its sole and absolute discretion.

 

“Takeout Investor Purchase Advice” shall mean a summary of the purchase and sale of a Purchased Mortgage Loan to a Takeout Investor and shall specify the proceeds to be paid by the Takeout Investor and shall direct such proceeds to be paid into the Inbound Account.

 

“Taxes” shall have the meaning set forth in Section 7(a) hereof.

 

“Term SOFR” means the Term SOFR reference rate for a one-month tenor as administered by the Term SOFR Administrator and quoted by Bloomberg Finance L.P., or any quoting service or commonly available source utilized by Buyer.

“Term SOFR Administrator” means CME Group Benchmark Administration Limited or a successor administrator of the index selected by ▇▇▇▇▇ in its sole discretion.

 

“Termination Date” shall have the meaning specified in the Pricing Letter.

 

“Test Date” shall have the meaning specified in the Pricing Letter.

 

“TIAA Bank” means TIAA, FSB, formerly known as EverBank.

 

“TIAA Bank Warehouse Customer Guide” shall mean the guidelines and other information provided to Seller by Buyer from time to time, setting forth the policies and procedures to be followed by Seller when utilizing the facility contemplated under this Agreement, including without limitation information and parameters input into the TIAA Bank Warehouse Electronic System regarding LTV limitations as established by Buyer from time to time.

 

“TIAA Bank Warehouse Electronic System” shall mean the system utilized by Buyer either directly, or through its vendors, and which may be accessed by Seller in connection with delivering and obtaining information and requests as described further in the TIAA Bank Warehouse Customer Guide.

 

“Transaction” shall have the meaning specified in Section 1.

 

“Transaction Request” shall mean a request from Seller to Buyer to enter into a Transaction, which shall be submitted electronically to Buyer through the TIAA Bank Warehouse Electronic System in accordance with the TIAA Bank Warehouse Customer Guide and to Custodian in accordance with the Custodial Agreement.

 

“Transaction Term Limitation” shall have the meaning specified in the Pricing Letter.

 

“Trust Receipt” shall have the meaning set forth in the Custodial Agreement.

 

“Underwriting Guidelines” shall mean the standards, procedures and guidelines of the Seller for underwriting and acquiring Mortgage Loans, which are set forth in the written policies and procedures of the Seller, as in effect from time to time, a copy of which shall have been provided to Buyer as required hereunder and such other (i) guidelines mandated by federal regulations, with notice to Buyer of such guidelines, and (ii) guidelines as are identified and approved in writing by Buyer in its commercially reasonable discretion.

 

“Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any Repurchase Assets or the continuation, renewal or enforcement thereof is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection.

 

“USPAP Guidelines” shall mean the Uniform Standards of Professional Appraisal Practice, as approved by the Appraisal Standards Board of The Appraisal Foundation, as revised, interpreted and amended from time to time.

 

“VA” shall mean the Veterans Administration and any successor agency.

 

“Warehouse Facility” shall mean any loan, repurchase or other arrangement for incurring Indebtedness secured by ▇▇▇▇▇▇’s Mortgage Loans.

 

“Warehouse Fees” shall have the meaning specified in the Pricing Letter.

 

“Wet Delivery Deadline” shall have the meaning specified in the Pricing Letter.

 

“Wet File” shall mean, with respect to a Wet Mortgage Loan, the documents and instruments relating to such Mortgage Loan and set forth in the TIAA Bank Warehouse Customer Guide.

 

“Wet Mortgage Loan” shall mean an Eligible Mortgage Loan which Seller is selling to Buyer simultaneously with the origination thereof and for which the Mortgage File has not been delivered to Custodian.

 

 

(a)         Conditions Precedent to Initial Transaction.  ▇▇▇▇▇’s agreement to enter into the initial Transaction hereunder is subject to the satisfaction, immediately prior to or concurrently with the making of such Transaction, of the condition precedent that Buyer shall have received from Seller any fees and expenses payable hereunder, and all of the following documents, each of which shall be satisfactory to Buyer and its counsel in form and substance:

 

 

(A)          Agreement.  This Agreement, duly executed by the parties thereto.

 

 

(C)          Pricing Letter.  The Pricing Letter, duly executed by the parties thereto.

 

(D)          Custodial Agreement.  The Custodial Agreement and any and all similar agreements executed in connection with the Existing MRA shall remain in full force and effect.

 

 

(F)         Subordination Agreements.  The Subordination Agreements and any and all similar agreements executed in connection with the Existing MRA shall remain in full force and effect.

 

(G)          Intercreditor Agreement.  Any and all intercreditor agreements executed in connection with the Existing MRA shall remain in full force and effect.

 

 

(ii)         Organizational Documents.  A certificate of corporate or other applicable entity existence of Seller and certified copies of the charter and bylaws (or equivalent documents) of Seller and of all corporate or other applicable authority documents for Seller with respect to the execution, delivery and performance of the Facility Documents and each other document to be delivered by Seller from time to time in connection herewith.

 

(iii)       Good Standing Certificate.  A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date 10 Business Days prior to the Effective Date.

 

(iv)         Incumbency Certificate.  An incumbency certificate of the corporate secretary of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Facility Documents.

 

(v)          Opinion of Counsel.  An opinion of ▇▇▇▇▇▇’s counsel, in form and substance acceptable to Buyer in its commercially reasonable discretion.

 

(vi)         Security Interest.  Evidence that all other actions necessary or, in the opinion of ▇▇▇▇▇, desirable to perfect and protect ▇▇▇▇▇’s interest in the Purchased Mortgage Loans and other Repurchase Assets have been taken, including, without limitation, UCC searches and duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1.

 

(vii)       Insurance.  Evidence that Seller has added endorsements for theft of warehouse lender money and collateral, naming Buyer as a loss payee under its Fidelity Insurance and as a direct loss payee/right of action under its errors and omissions insurance policy.

 

(viii)      Fees.  Payment of any fees and other costs and expenses due to and invoiced by Buyer hereunder and to Custodian under the Custodial Agreement.

 

(ix)         Other Documents.  Such other documents as Buyer may reasonably request, in form and substance reasonably acceptable to Buyer.

 

 

(i)          Due Diligence Review.  Without limiting the generality of Section 17 hereof, Buyer shall have completed, to its satisfaction, its due diligence review of the related Mortgage Loans and Seller.

 

(ii)          No Default.  No Default or Event of Default shall have occurred and be continuing under, and such Transaction is in full compliance with all applicable terms and conditions of, the Facility Documents.

 

(iii)        Representations and Warranties.  Both immediately prior to the Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in Section 11 hereof and by Seller in any other Facility Document to which they respectively are a party, shall be true and accurate on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).

 

(iv)       Maximum Purchase Price.  After giving effect to the requested Transaction, the aggregate outstanding Purchase Price for all Purchased Mortgage Loans subject to then outstanding Transactions under this Agreement shall not exceed the Maximum Purchase Amount.

 

(v)          No Margin Deficit.  Both immediately prior to, and after giving effect to, the requested Transaction, there shall be no Margin Deficit.

 

(vi)         Transaction Request.  Seller shall have delivered to Buyer, in accordance with the timeframes and in the manner set forth in the TIAA Bank Warehouse Customer Guide, and to Custodian, in accordance with the timeframes and in the manner set forth in the Custodial Agreement, (a) a Transaction Request and (b) a Mortgage Loan Schedule with respect to all Mortgage Loans subject to the requested Transaction.

 

(vii)       Delivery of Wet File and Mortgage File.  Seller shall have delivered to Custodian, in accordance with the timeframes set forth in the Custodial Agreement, with respect to each Mortgage Loan subject to the requested Transaction (a) which is not a Wet Mortgage Loan, the Mortgage File with respect to each such Mortgage Loan and (b) with respect to each Wet Mortgage Loan, (1) the Wet File with respect to each such Mortgage Loan and (2) on or prior to the Wet Delivery Deadline, the Mortgage File.

 

(viii)       Delivery of Trust Receipt.  Custodian shall have delivered to Buyer, in accordance with the timeframes set forth in the Custodial Agreement, a Trust Receipt (accompanied by a Custodial Loan Transmission) with respect to each Mortgage Loan subject to the requested Transaction.

 

 

(x)          No Material Adverse Change.  None of the following shall have occurred and/or be continuing:

 

(A)          an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by securities or an event or events shall have occurred resulting in Buyer not being able to finance Purchased Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or

 

(B)          an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Buyer not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or

 

(C)          there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement; or

 

(D)         there shall have occurred (i) a material change in financial markets, an outbreak or escalation of hostilities or a material change in national or international political, financial or economic conditions; (ii) a general suspension of trading on major stock exchanges; or (iii) a disruption in or moratorium on commercial banking activities or securities settlement services.

 

Each Transaction Request delivered by Seller hereunder shall constitute a certification by Seller that all the conditions set forth in this Section 3(b) (other than clauses (i), (v), (ix) and (x) hereof) have been satisfied (both as of the date of such notice or request and as of Purchase Date).

 

(c)          Initiation.

 

(i)          Seller shall deliver a Transaction Request through the TIAA Bank Warehouse Electronic System to Buyer on or prior to the date and time set forth in Section 3(b)(vi) prior to entering into any Transaction.  Such Transaction Request shall include all information required by Buyer pursuant to the TIAA Bank Warehouse Customer Guide.  Following receipt of such request, Buyer may in its sole discretion agree to enter into such requested Transaction, in which case it will fund the Purchase Price therefor as contemplated in this Agreement.  Buyer’s funding the Purchase Price of the Transaction and Seller’s acceptance thereof will constitute the parties agreement to enter into such Transaction.  Buyer shall confirm the terms of each Transaction on the TIAA Bank Warehouse Electronic System, including information that sets forth (A) the Purchase Date, (B) the Purchase Price, (C) the Repurchase Date, (D) the Pricing Rate applicable to the Transaction, (E) the applicable Purchase Price Percentages, and (F) additional terms or conditions not inconsistent with this Agreement; provided that Buyer’s failure to enter the information into the TIAA Bank Warehouse Electronic System shall not affect the obligations of Seller with respect to such Transaction.  This Agreement is not a commitment by ▇▇▇▇▇ to enter into Transactions with Seller but rather sets forth the procedures to be used in connection with periodic requests for Buyer to enter into Transactions with Seller.  Seller hereby acknowledges that Buyer is under no obligation to agree to enter into, or to enter into, any Transaction pursuant to this Agreement.

 

(ii)         The information entered into the TIAA Bank Warehouse Electronic System with respect to any Transaction, together with this Agreement, shall be conclusive evidence of the terms of the Transaction(s) covered thereby unless objected to in writing by Seller no more than two (2) Business Days after the Purchase Date of the Transaction.  An objection sent by Seller must state specifically that such writing is an objection, must specify the provision(s) being objected to by Seller, must set forth such provision(s) in the manner that Seller believes they should be stated, and must be received by Buyer no more than [***]Business Days after the Purchase Date for the Transaction.  Notwithstanding the foregoing, to the extent that Seller accepts funding of the Transaction, Seller shall be deemed to have consented to the terms of the Transaction as set forth in the TIAA Bank Warehouse Electronic System.  All Transactions entered into on any Business Day shall be reflected in the Daily Activity Report on such Business Day.

 

(iii)       Except as otherwise provided in the definition of Termination Date, the Repurchase Date for each Transaction shall not be later than the Termination Date.

 

(iv)         Subject to the terms and conditions of this Agreement, prior to the Termination Date Seller may sell, repurchase and resell Eligible Mortgage Loans hereunder.

 

(v)          No later than the date and time set forth in the Custodial Agreement, Seller shall deliver to  Custodian (x) the Mortgage Loan File pertaining to each Eligible Mortgage Loan (other than Wet Mortgage Loans) to be purchased by Buyer, and (y) the Wet File for each Wet Mortgage Loan to be purchased by Buyer.

 

(vi)         Upon Buyer’s receipt of the Trust Receipt (accompanied by a Custodial Loan Transmission) in accordance with the Custodial Agreement and subject to the provisions of this Section 3, the Purchase Price will then be made available to Seller by Buyer transferring, via wire transfer, in the aggregate amount of such Purchase Price in funds immediately available, as provided in Section 9(b).

 

 

(d)          Repurchase; Purchase by a Takeout Investor.

 

(i)          Seller may repurchase Purchased Mortgage Loans without penalty or premium on any date.  Such repurchase may occur simultaneously with a sale of the Purchased Mortgage Loan to a Takeout Investor.  If Seller intends to make such a repurchase, Seller shall give written notice thereof to Buyer through the TIAA Bank Warehouse Electronic System in accordance with the TIAA Bank Warehouse Customer Guide, and to Custodian in accordance with the Custodial Agreement, designating the Purchased Mortgage Loans to be repurchased and providing such other information required pursuant thereto, including, without limitation, delivery of a Takeout Investor Purchase Advice to the extent that such Purchased Mortgage Loan shall be purchased by a Takeout Investor.  If such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, and, on receipt, such amount shall be applied to the Repurchase Price for the designated Purchased Mortgage Loans.

 

(ii)          On the Repurchase Date, termination of the Transaction will be effected by reassignment to Seller or its designee of the Purchased Mortgage Loans (including the related Servicing Rights and any Income in respect thereof received by Buyer not previously credited or transferred to, or applied to the Obligations of, Seller) against the simultaneous transfer of the Repurchase Price to an account of Buyer.  Such obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Mortgage Loan (but liquidation or foreclosure proceeds received by Buyer shall be applied to reduce the Repurchase Price for such Purchased Mortgage Loan except as otherwise provided herein).  Seller shall comply with all of the provisions of the TIAA Bank Warehouse Customer Guide and the Custodial Agreement in order to effectuate a repurchase hereunder.  Seller is obligated to obtain the Mortgage Files from Buyer or its designee at Seller’s expense on the Repurchase Date.  All repurchases effected on any Business Day shall be reflected in the Daily Activity Report for such Business Day. On each Repurchase Date, upon ▇▇▇▇▇’s receipt of the Repurchase Price with respect to the applicable Purchased Mortgage Loan, Buyer shall be deemed to have simultaneously released its interest in the applicable Purchased Mortgage Loan in accordance with the relevant Bailee Letter if applicable, and otherwise without any further action by Buyer or any other Person and such Purchased Mortgage Loan shall be transferred to the Seller or its designee free and clear of any liens, pledges or encumbrances of Buyer hereunder.

 

 

(a)          Buyer shall determine the Asset Value of each Purchased Mortgage Loan at such intervals as determined by Buyer in its sole discretion.

 

(b)          If at any time the Asset Value of any Purchased Mortgage Loans subject to a Transaction is less than the Purchase Price for such Transaction, or any applicable Concentration Limit has been exceeded (a “Margin Deficit”), then Buyer may by notice to Seller (as such notice is more particularly set forth below, a “Margin Call”), require Seller to transfer to Buyer or its designee cash so that, as applicable, (i) the Asset Value of the Purchased Mortgage Loans will thereupon equal or exceed the Purchase Price for such Transaction, and (ii) no Concentration Limit will be exceeded.

 

(c)          Notice delivered pursuant to Section 4(b) may be given by any written or electronic means.  Any notice given before [***] (New York City time) on a Business Day shall be met, and the related Margin Call satisfied, no later than [***]. (New York City time) on such Business Day; notice given after [***]. (New York City time) on a Business Day shall be met, and the related Margin Call satisfied, no later than [***]. (New York City time) on the following Business Day (the foregoing time requirements for satisfaction of a Margin Call are referred to as the “Margin Deadlines”).

 

(d)         The failure of Buyer, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date.  Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.

 

(e)         Any cash transferred to Buyer pursuant to Section 4(b) above shall be credited to the Repurchase Price of the related Transactions, or, at Buyer’s option, may be placed in the Reserve Account until such time that Buyer determines, in its sole discretion, that the Margin Deficit has been eliminated, and following elimination of the Margin Deficit Buyer shall deposit the remaining portion of the cash transfer in excess of the Minimum Reserve Amount, if any, into the Haircut Account.

 

 

(a)          All Income, and all rights to Income, of, on, or otherwise with respect to all Purchased Mortgage Loans is the sole and exclusive property of Buyer as the owner thereof, pending repurchase on the related Repurchase Date.  Notwithstanding the foregoing, and provided no Default has occurred and is continuing, ▇▇▇▇▇ agrees that Seller shall be entitled to receive, solely from such Income, an amount equal to all Income received in respect of the Purchased Assets; provided, however, that any Income received by or on behalf of Seller while the related Transaction is outstanding shall be deemed held by Seller solely in trust for Buyer pending the repurchase on the related Repurchase Date.

 

 

 

 

 

(a)         If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and bylaws or other organizational or governing documents) or any change in the governmental or judicial 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 or increased Tax of any kind whatsoever with respect to this Agreement or any Transaction or change the basis of taxation of payments to Buyer in respect thereof (other than Taxes described in clauses (I) through (IV) of Section 7(a);

 

(ii)          shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other 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 SOFR 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 entering, continuing or maintaining any Transaction or to reduce any amount due or owing hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as calculated by Buyer in good faith as will compensate Buyer for such increased cost or reduced amount receivable.

 

(b)       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 bylaws 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 promptly pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction.

 

(c)          If Buyer becomes entitled to claim any additional amounts pursuant to this Section, it shall promptly notify Seller of the event by reason of which it has become so entitled.  A certificate as to any additional amounts payable pursuant to this Section submitted by Buyer to Seller shall be conclusive in the absence of manifest error.

 

 

(a)         Any and all payments by Seller under or in respect of this Agreement or any other Facility Documents to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities (including penalties, interest and additions to tax) with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “Taxes”), unless required by law.  If Seller shall be required under any applicable Requirement of Law to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Facility Documents to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 7) Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made in respect of Non-Excluded Taxes.  For purposes of this Agreement the term “Non-Excluded Taxes” are Taxes imposed on or with respect to any payment made by or on account of any obligation of the Seller under this Agreement or any of the other Facility Documents other than (I) Taxes imposed on or measured by overall Net Income, franchise Taxes, and branch profits Taxes, in each case, (x) imposed as a result of Buyer or any other recipient of the payment being organized under the laws of, or having its applicable lending office in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (y) imposed as a result of a present or former connection between Buyer or any other recipient of the payment and the jurisdiction imposing such Tax (other than connection arising from such person having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Facility Documents (in which case such Taxes will be treated as Non-Excluded Taxes), (II) U.S. federal withholding Taxes imposed on amounts payable to or for the account of Buyer or other recipient of a payment hereunder pursuant to a law in effect on the date such person becomes a party to this Agreement or such person changes its lending office, except to the extent that, pursuant to Section 7, amounts were payable to such person’s assignor immediately before such person becomes a party to this Agreement or were payable before such person changed its lending office, (III) Taxes attributable to a failure by Buyer to comply with Section 7(e), and (IV) any U.S. federal withholding Taxes imposed under FATCA.

 

(b)          In addition, Seller hereby agrees to pay any present or future stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges or levies that arise from any payment made under or in respect of this Agreement or any other Facility Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement or any other Facility Document, except any such Taxes that are  imposed with respect to an assignment as a result of a present or former connection between Buyer and the jurisdiction imposing such Tax (other than connection arising from such person having executed, delivered or performed its obligations or received payments under, or enforced, this Agreement or any of the other Facility Documents) (collectively, “Other Taxes”).

 

(c)          Seller hereby agrees to indemnify Buyer for, and to hold it harmless against, the full amount of Non-Excluded Taxes and Other Taxes, and the full amount of Taxes of any kind imposed by any jurisdiction on amounts payable under this Section 7 imposed on or paid by ▇▇▇▇▇ and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto.  The indemnity by Seller provided for in this Section 7(c) shall apply and be made whether or not the Non-Excluded Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted.  Amounts payable by Seller under the indemnity set forth in this Section 7(c) shall be paid within [***] days from the date on which Buyer makes written demand therefor.

 

(d)          Within thirty (30) days after the date of any payment of Taxes, Seller (or any Person making such payment on behalf of Seller) shall furnish to Buyer for its own account a certified copy of the original official receipt evidencing payment thereof, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Buyer.

 

 

 

(g)         Without prejudice to the survival of any other agreement of Seller hereunder, the agreements and obligations of Seller contained in this Section 7 shall survive the termination of this Agreement.  Nothing contained in this Section 7 shall require Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.

 

(h)          Each party to this Agreement acknowledges that it is its intent for purposes of U.S. federal, state and local income and franchise taxes, to treat the Transaction as indebtedness of Seller that is secured by the Purchased Mortgage Loans and the Purchased Mortgage Loans as owned by Seller for federal income tax purposes in the absence of a Default by Seller.  All parties to this Agreement agree to such treatment and agree to take no action inconsistent with this treatment, unless required by law.

 

 

(a)          Security Interest.  On each Purchase Date, Seller hereby sells, assigns and conveys all rights, title, and interests in, to, and under the Purchased Mortgage Loans identified on the related Mortgage Loan Schedule or as to which Buyer otherwise pays the Purchase Price as provided herein, including the related Mortgage File and Servicing Rights and all Income therefrom.  Although the parties intend that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, and, in any event, as security for the performance by Seller of its Obligations, Seller hereby pledges to Buyer and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in all of the Seller’s right, title, and interest in, to, and under the following, in all instances whether now owned or hereafter acquired, now existing or hereafter created and wherever located (collectively, the “Repurchase Assets”):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Seller acknowledges that it has no rights to service the Purchased Mortgage Loans.  Without limiting the generality of the foregoing and in the event that Seller is deemed to retain any residual Servicing Rights, and for the avoidance of doubt, Seller grants, assigns and pledges to Buyer a security interest in the Servicing Rights and proceeds related thereto and in all instances, whether now owned or hereafter acquired, now existing or hereafter created.  The foregoing provision is intended to constitute a security agreement or other arrangement or other credit enhancement related to the Agreement and Transactions hereunder as defined under Sections 101(47)(v) and 741(7)(x) of the Bankruptcy Code.

 

Seller hereby authorizes Buyer to file such financing statement or statements relating to the Repurchase Assets and the Servicing Rights as Buyer, at its option, may deem appropriate, without the signature of Seller thereon.  Seller shall pay the filing costs for any financing statement or statements prepared pursuant to this Section 8.

 

(b)          ▇▇▇▇▇’s Appointment as Attorney in Fact.  Seller hereby irrevocably constitutes and appoints Buyer and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of Seller and in the name of Seller or in its own name, from time to time in Buyer’s discretion, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, Seller hereby gives Buyer the power and right, on behalf of Seller, without assent by, but with notice to, Seller, if an Event of Default shall have occurred and be continuing, to do the following:

 

 

 

 

 

 

Seller hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof.  This power of attorney is a power coupled with an interest and shall be irrevocable.  In addition to the foregoing, ▇▇▇▇▇▇ agrees to execute a Power of Attorney to be delivered on the date hereof.

 

Seller also authorizes Buyer, if an Event of Default shall have occurred and be continuing, from time to time, to execute, in connection with any sale provided for in Section 14 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Repurchase Assets.

 

The powers conferred on Buyer hereunder are solely to protect ▇▇▇▇▇’s interests in the Repurchase Assets and shall not impose any duty upon it to exercise any such powers.  Buyer shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither it nor any of its officers, directors, employees or agents shall be responsible to Seller for any act or failure to act hereunder, except for its or their own gross negligence or willful misconduct.

 

SECTION 9.

PAYMENT, TRANSFER; ACCOUNTS AND CUSTODY

SECTION 10.

DELIVERY OF DOCUMENTS

SECTION 11.

REPRESENTATIONS

SECTION 12.

COVENANTS

SECTION 13.

EVENTS OF DEFAULT

SECTION 14.

REMEDIES

SECTION 15.

INDEMNIFICATION AND EXPENSES; RECOURSE

SECTION 16.

SERVICING

SECTION 17.

DUE DILIGENCE

SECTION 18.

ASSIGNABILITY

SECTION 19.

TRANSFER AND MAINTENANCE OF REGISTER

SECTION 20.

HYPOTHECATION OR PLEDGE OF PURCHASED MORTGAGE LOANS

SECTION 21.

TAX AND ACCOUNTING TREATMENT

SECTION 22.

SET-OFF

SECTION 23.

TERMINABILITY

SECTION 24.

NOTICES AND OTHER COMMUNICATIONS

SECTION 25.

USE OF THE TIAA BANK WAREHOUSE ELECTRONIC SYSTEM AND OTHER ELECTRONIC MEDIA

SECTION 26.

ENTIRE AGREEMENT; SEVERABILITY; SINGLE AGREEMENT

SECTION 27.

GOVERNING LAW

SECTION 28.

SUBMISSION TO JURISDICTION; WAIVERS

SECTION 29.

NO WAIVERS, ETC.

SECTION 30.

CONFIDENTIALITY

SECTION 31.

INTENT

SECTION 32.

DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS

SECTION 33.

AUTHORIZATIONS

SECTION 34.

ACKNOWLEDGEMENT OF ANTI-PREDATORY LENDING POLICIES

SECTION 35.

MISCELLANEOUS

SECTION 36.

GENERAL INTERPRETIVE PRINCIPLES

SECTION 37.

EXISTING MRA

	SELLER:
	HOME POINT FINANCIAL CORPORATION
	By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
		Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
		Title: Treasurer

	Address for Notices:
		Home Point Financial Corporation
		▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
		▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
		Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
		E-mail: [***]Telephone No.: [***]
		With copies to Legal
		Email: [***]

Re:

Second Amended and Restated Master Repurchase Agreement, dated as of September 16, 2022 (the “Agreement”), by and between Home Point Financial Corporation (the “Seller”) and TIAA, FSB (the “Buyer”).

	Very truly yours,
	[____________________]
	By:
		Name:
		Title:

	Notary Public

My Commission expires

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