EXHIBIT 10.2
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MASTER REPURCHASE AGREEMENT
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as buyer
("Buyer", which term shall include any "Principal"
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as defined and provided for in Annex I) or as agent pursuant hereto ("Agent"),
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FAMILY LENDING SERVICES, INC., as seller ("Seller"), and
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Dated October 5, 2001
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TABLE OF CONTENTS
Page
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1. Applicability ......................................................... 1
2. Definitions ........................................................... 1
3. Program; Initiation of Transactions ................................... 17
4. Repurchase ............................................................ 18
5. Price Differential .................................................... 19
6. Margin Maintenance .................................................... 20
7. Income Payments ....................................................... 20
8. Security Interest ..................................................... 21
9. Payment and Transfer .................................................. 22
10. Conditions Precedent .................................................. 22
11. Program ............................................................... 24
12. Servicing ............................................................. 25
13. Representations; Warranties and Covenants ............................. 26
14. Events of Default ..................................................... 35
15. Remedies Upon Default ................................................. 37
16. Reports ............................................................... 39
17. Repurchase Transactions ............................................... 41
18. Single Agreement ...................................................... 42
19. Notices and Other Communications ...................................... 42
20. Entire Agreement; Severability ........................................ 43
21. Non assignability ..................................................... 43
22. Set-off ............................................................... 44
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23. Binding Effect; Governing Law; Jurisdiction ........................... 44
24. No Waivers, Etc. ...................................................... 44
25. Intent ................................................................ 45
26. Disclosure Relating to Certain Federal Protections .................... 45
27. Power of Attorney ..................................................... 46
28. Buyer May Act Through Affiliates ...................................... 46
29. Indemnification; Obligations .......................................... 46
30. Counterparts .......................................................... 47
31. Confidentiality ....................................................... 47
32. Recording of Communications ........................................... 47
33. Facility Fee .......................................................... 47
34. Non-Utilization Fee ................................................... 48
35. Periodic Due Diligence Review ......................................... 48
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SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased Mortgage
Loans
ANNEXES
Annex I - Buyer Acting as Agent
Annex II - Facility Fee Schedule
Annex III - Non-Utilization Fee Formula
EXHIBITS
Exhibit A - Form of Transaction Request
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Mortgage Loan Schedule and Exception Report
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Form of Opinion of Seller's counsel
Exhibit F - Underwriting Guidelines of Seller
Exhibit G - Authorized Signatories of Seller
Exhibit H - Corporate Resolutions of Seller
Exhibit I - Seller's Tax Identification Number
Exhibit J - Existing Indebtedness
Exhibit K - Wet-Ink Procedures
Exhibit L - Escrow Instruction Letter
Exhibit M - Custodial and Bank Fee Schedule
Exhibit N - Form of Servicer Notice
Exhibit O - Initial Exception Mortgage Loans
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1. Applicability
From time to time the parties hereto may enter into transactions in
which Seller agrees to transfer to Buyer Mortgage Loans (as hereinafter defined)
against the transfer of funds by Buyer, with a simultaneous agreement by Buyer
to transfer to Seller such Mortgage Loans at a date certain or on demand,
against the transfer of funds by Seller. Each such transaction shall be referred
to herein as a "Transaction" and, unless otherwise agreed in writing, shall be
governed by this Agreement, including any supplemental terms or conditions
contained in any annexes identified herein, as applicable hereunder.
2. Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Acceptable State" means any state acceptable pursuant to Seller's
Underwriting Guidelines.
"Accepted Servicing Practices" means, 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.
"Act of Insolvency" means, with respect to the Seller or any of the
Seller's Material Affiliates, (i) the filing of a petition, commencing, or
authorizing the commencement of any case or proceeding, or the voluntary joining
of any case or proceeding under any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law relating to the protection of creditors,
or suffering any such petition or proceeding to be commenced by another which is
consented to, not timely contested or results in entry of an order for relief;
(ii) the seeking of the appointment of a receiver, trustee, custodian or similar
official for Seller or such Material Affiliate or any substantial part of the
property of Seller or such Material Affiliate; (iii) the appointment of a
receiver, conservator, or manager for Seller or such Material Affiliate by any
governmental agency or authority having the jurisdiction to do so; (iv) the
making or offering by Seller or such Material Affiliate of a composition with
its creditors or a general assignment for the benefit of creditors; (v) the
admission by Seller or such Material Affiliate of its inability to pay its debts
or discharge its obligations as they become due or mature; or (vi) that any
governmental authority or agency or any person, agency or entity acting or
purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the property of Seller or such Material Affiliate, or shall
have taken any action to displace the management of Seller or such Material
Affiliate or to curtail its authority in the conduct of the business of Seller
or such Material Affiliate.
"Adjusted Tangible Net Worth" means, Net Worth plus 1% of the
outstanding servicing portfolio balance of such Person plus Subordinated Debt
(provided that Subordinated Debt shall not be taken into account to the extent
that it would cause greater than 25% of
Adjusted Tangible Net Worth to be comprised of Subordinated Debt), minus
intangible assets such as capitalized servicing rights, goodwill and trademarks,
minus notes receivable from shareholders or affiliates.
"Affiliate" means, with respect to any Person, any "affiliate" of such
Person, as such term is defined in the Bankruptcy Code.
"Aged Loan" means a Mortgage Loan which has been held by the Custodian
for the benefit of Buyer (in its capacity as Buyer hereunder or as a secured
lender) for a period of greater than 90 days but less than 120 days.
"Agency" means ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, as applicable.
"Agency Security" means a mortgage-backed security issued by an
Agency.
"Agent" means Credit Suisse First Boston Mortgage Capital LLC or any
affiliate or successor thereto.
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Alt A Mortgage Loan" means a Mortgage Loan originated in accordance
with the criteria established by Buyer for Alt-A Mortgage Loans, as determined
by Buyer in its sole discretion.
"Appraised Value" means 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.
"Asset Tape" means a remittance report on a monthly basis or as
otherwise requested by Buyer pursuant to Section 17d hereof containing servicing
information, including, without limitation, those fields reasonably requested by
Buyer from time to time, on a loan-by-loan basis and in the aggregate, with
respect to the Purchased Mortgage Loans serviced by Seller or any Servicer for
the month (or any portion thereof) prior to the Reporting Date.
"Assignment of Mortgage" means an assignment of the Mortgage, notice
of transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect the sale of the Mortgage to Buyer.
"Bailee Letter" has the meaning assigned to such term in the Custodial
Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978, as
amended from time to time.
"Bid" has the meaning set forth in Section 4(c) hereof.
"Bid Fee" has the meaning set forth in Section 4(c) hereof.
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"Business Day" means any day other than (A) a Saturday or Sunday and
(B) a public or bank holiday in New York City.
"Buyer" means Credit Suisse First Boston Mortgage Capital LLC, and any
successor hereunder.
"Buyer's Margin Amount" means with respect to any Transaction as of
any date of determination, an amount equal to the product of (A) Buyer's Margin
Percentage and (B) the Purchase Price for such Transaction.
"Buyer's Margin Percentage" means, with respect to any Transaction as
of any date, a percentage equal to the percentage obtained by dividing the (A)
Market Value of the Purchased Mortgage Loans on the Purchase Date for such
Transaction by (B) the Purchase Price on the Purchase Date for such Transaction;
provided, that, with respect to any Mortgage Loan which was not an Exception
Mortgage Loan on the related Purchase Date and which, as of the date of
determination, is an Exception Mortgage Loan, Buyer's Margin Percentage as of
such date of determination shall be equal to the percentage obtained by dividing
(A) the Market Value of such Mortgage Loan on the related Purchase Date by (B)
the amount the Purchase Price would have been on the Purchase Date if such
Mortgage Loan had been categorized as the type of Mortgage Loan (e.g., Exception
Mortgage Loan, etc.) that it is categorized on the date of determination.
"Calmco" means Vesta Servicing L.P., or any successor in interest
thereto.
"Capital Lease Obligations" means, 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.
"Change in Control" means:
(A) any transaction or event as a result of which Standard Pacific
Corp. ceases to own, beneficially or of record, 100% of the stock of
Seller;
(B) the sale, transfer, or other disposition of all or substantially
all of Seller's assets (excluding any such action taken in connection with
(x) any securitization transaction or (y) any Transaction or series of
Transactions hereunder).
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means one or more accounts established by the
Servicer into which all collections and proceeds on or in respect of the
Mortgage Loans shall be deposited by Servicer.
"Committed Mortgage Loan" means a Mortgage Loan which is the subject
of a Take-out Commitment with a Take-out Investor.
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"Conforming Mortgage Loan" means a Mortgage Loan originated in
accordance with the criteria of an Agency for purchase of Mortgage Loans,
including, without limitation, conventional Mortgage Loans, FHA Loans and VA
Loans, as determined by Buyer in its sole discretion.
"Custodial Agreement" means the custodial agreement dated as of the
date hereof, among Seller, Buyer and Custodian as the same may be amended from
time to time.
"Custodian" means LaSalle Bank, National Association or such other
party specified by Buyer and agreed to by Seller, which approval shall not be
unreasonably withheld.
"Default" means an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Dollars" and "$" means dollars in lawful currency of the United
States of America.
"Due Date" means the day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
"Effective Date" means the date upon which the conditions precedent
set forth in Section 10 shall have been satisfied.
"Electronic Tracking Agreement" means an Electronic Tracking Agreement
among Buyer, Seller, MERS and MERSCORP, Inc., to the extent applicable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which Seller is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
"Escrow Instruction Letter" means the Escrow Instruction Letter from
Seller to the Settlement Agent, in the form of Exhibit L hereto, as the same may
be modified, supplemented and in effect from time to time.
"Escrow Payments" means, 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" has the meaning specified in Section 15 hereof.
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"Event of Termination" means with respect to Seller (i) with respect
to any Plan, a reportable event, as defined in Section 4043 of ERISA, as to
which the PBGC has not by regulation waived the requirement of Section 4043(a)
of ERISA that it be notified with 30 days of the occurrence of such 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 412(m) of the Code or Section 302(e) 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 adoption of an amendment to any Plan that, pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, would result in the loss of
tax-exempt status of the trust of which such Plan is a part if Seller or any
ERISA Affiliate thereof fails to timely provide security to the Plan in
accordance with the provisions of said sections, 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(c)(11) or 412(n) of the Code with respect to any Plan.
"Exception Mortgage Loan" means any Mortgage Loan which is otherwise
ineligible for purchase hereunder, or which otherwise becomes ineligible for
purchase hereunder and which is approved by Buyer in its sole discretion,
including the Mortgage Loans listed on Exhibit O hereto (the "Initial Exception
Mortgage Loans"). The Pricing Rate, Market Value, Purchase Price and Buyer's
Margin Percentage with respect to Exception Mortgage Loans, including without
limitation, the Initial Exception Mortgage Loans, shall be set in the sole
discretion of Buyer. Buyer may at any time, and in its sole discretion, no
longer consider a Mortgage Loan which is, or would be, otherwise ineligible for
purchase to be an Exception Mortgage Loan, including, without limitation, any
Initial Exception Mortgage Loan, for any reason including without limitation as
a result of the original characteristic or defect which made it ineligible for
purchase or any other characteristic or defect which could make it ineligible
for purchase, in which case such Mortgage Loan shall have a Market Value of
zero.
"Existing Indebtedness" has the meaning specified in Section 13(a)(24)
hereof.
"▇▇▇▇▇▇ ▇▇▇" means ▇▇▇▇▇▇ Mae, the government sponsored enterprise
formerly known as the Federal National Mortgage Association.
"FHA" means 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.
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"FHA Approved Mortgagee" means a corporation or institution approved
as a mortgagee by the FHA under the National Housing Act, as amended from time
to time, and applicable FHA Regulations, and eligible to own and service
mortgage loans such as the FHA Loans.
"FHA Loan" means a Mortgage Loan which is the subject of an FHA
Mortgage Insurance Contract.
"FHA Mortgage Insurance" means, mortgage insurance authorized under
the National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Mortgage Insurance Contract" means the contractual obligation of
the FHA respecting the insurance of a Mortgage Loan.
"FHA Regulations" means 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.
"Foreclosed Loan" means a Mortgage Loan, the property securing which
has been foreclosed upon by Seller.
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage Corporation.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent basis.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over Seller or
Buyer, as applicable.
"Gross Margin" means, with respect to each adjustable rate Mortgage
Loan, the fixed percentage amount added to the Index for the purpose of
calculating the applicable Mortgage Interest Rate, as set forth in the related
Mortgage Note.
"Guarantee" means, 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 (i) endorsements for collection or
deposit in the ordinary course of business, or (ii) obligations to make
servicing advances for delinquent taxes and insurance or other obligations in
respect of a Mortgaged Property, to the extent required by Buyer. 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
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thereof as determined by such Person in good faith. The terms "Guarantee" and
"Guaranteed" used as verbs shall have correlative meanings.
"High Cost Mortgage Loans" means any Mortgage Loans classified as (a)
"high cost" loans under the Home Ownership and Equity Protection Act of 1994, as
amended or (b) "high cost," "threshold," or "predatory" loans under any other
applicable state, federal or local law.
"Income" means with respect to any Purchased Mortgage Loan at any time
until repurchased by the Seller, any principal received thereon or in respect
thereof and all interest, dividends or other distributions thereon.
"Increased Maximum Aggregate Purchase Price Period" shall mean the
period from and including November 1, 2001 up to but not including February 1,
2002.
"Indebtedness" means, for any Person: (a) obligations created, issued
or incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business, so long as such trade accounts payable are payable
within 90 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective Indebtedness so secured
has been assumed by such Person; (d) obligations (contingent or otherwise) of
such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person; (e) Capital Lease Obligations of such Person; (f) obligations of such
Person under repurchase agreements, sale/buy-back agreements or like
arrangements; (g) Indebtedness of others Guaranteed by such Person; (h) all
obligations of such Person incurred in connection with the acquisition or
carrying of fixed assets by such Person; and (i) Indebtedness of general
partnerships of which such Person is a general partner.
"Index" means, with respect to any adjustable rate Mortgage Loan, the
index identified on the Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the applicable Mortgage Interest
Rate.
"Interest Rate Adjustment Date" means the date on which an adjustment
to the Mortgage Interest Rate with respect to each Mortgage Loan becomes
effective.
"Interest Rate Protection Agreement" means, with respect to any or all
of the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
Take-out Commitment, or similar arrangement providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies, entered into by Seller and an
Affiliate of Buyer
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or such other party acceptable to Buyer in its sole good faith discretion, which
agreement is acceptable to Buyer in its sole good faith discretion.
"Jumbo Mortgage Loan" means an A quality Mortgage Loan which is not
eligible for sale to an Agency.
"LIBOR" means for each day, the rate of interest (calculated on a per
annum basis) equal to the overnight British Bankers Association Rate as reported
on the display designated as "BBAM" "Page ▇▇▇ ▇▇" on Bloomberg (or such other
display as may replace "BBAM" "Page ▇▇▇ ▇▇" on Bloomberg) on such date of
determination, and if such rate shall not be so quoted, the rate per annum at
which Buyer is offered Dollar deposits at or about 11:00 a.m., (New York City
time), on such day, by prime banks in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect of its loans are
then being conducted for delivery on such day for an overnight period, and in an
amount comparable to the amount of the Purchase Price of Transactions to be
outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
"Margin Call" has the meaning specified in Section 6(a) hereof.
"Margin Deadline" has the meaning specified in Section 6(b) hereof.
"Margin Deficit" has the meaning specified in Section 6(a) hereof.
"Market Value" means, with respect to any Purchased Mortgage Loan as
of any date of determination, the whole-loan servicing released fair market
value of such Purchased Mortgage Loan on such date as determined by Buyer (or an
Affiliate thereof) in its sole good faith discretion. Without limiting the
generality of the foregoing, Seller acknowledges that (a) in the event that a
Purchased Mortgage Loan is not subject to a Take-out Commitment or otherwise
hedged in a manner acceptable to Buyer, Buyer may deem the Market Value for such
Mortgage Loan to be no greater than par and (b) the Market Value of a Purchased
Mortgage Loan may be reduced to zero by Buyer if:
(i) a breach of a representation, warranty or covenant made by
Seller in this Agreement with respect to such Purchased Mortgage Loan
has occurred and is continuing;
(ii) such Purchased Mortgage Loan is not a Non-Performing
Mortgage Loan;
(iii) such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement (other than
to a Take-out Investor pursuant to a Bailee Letter) for a period in
excess of ten (10) calendar days;
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(iv) such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement to a
Take-out Investor pursuant to a Bailee Letter for a period in excess
of 45 calendar days;
(v) such Purchased Mortgage Loan has been held by the
Custodian for the benefit of Buyer (in its capacity as Buyer hereunder
or as a secured lender) for a period of greater than (a) 90 days for
all Mortgage Loans other than Aged Loans or (b) 120 days with respect
to each Aged Loan;
(vi) such Purchased Mortgage Loan is a Wet-Ink Mortgage Loan
for which the Wet-Ink Documents has not been delivered to the
Custodian on or prior to the seventh Business Day after the related
Purchase Date;
(vii) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Aged Loans that are Purchased Mortgage Loans exceeds $5
million;
(viii) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Alt A Mortgage Loans that are Purchased Mortgage Loans
exceeds $15 million;
(ix) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Wet-Ink Mortgage Loans that are Purchased Mortgage Loans
exceeds 30% of the then applicable Maximum Aggregate Purchase Price;
(x) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Sub-Prime Mortgage Loans that are Purchased Mortgage
Loans exceeds $2.5 million.
(xi) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Second Lien Mortgage Loans that are Purchased Mortgage
Loans exceeds $4 million.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of Seller or any Material Affiliate taken
as a whole; (b) a material impairment of the ability of Seller or any Affiliate
that is a party to any Program Agreement to perform under any Program Agreement
and to avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability of any Program Agreement
against Seller or any Affiliate that is a party to any Program Agreement.
"Material Affiliates" means any of Seller's Subsidiaries, or Standard
Pacific Corp.
"Maximum Aggregate Purchase Price" means SIXTY MILLION DOLLARS
($60,000,000); provided, however, that during the Increased Maximum Aggregate
Purchase
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Price Period, the Maximum Aggregate Purchase Price means NINETY MILLION DOLLARS
($90,000,000).
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS System" means the system of recording transfers of mortgages
electronically maintained by MERS.
"Monthly Payment" means the scheduled monthly payment of principal and
interest on a Mortgage Loan.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successors
thereto.
"Mortgage" means each mortgage, assignment of rents, security
agreement and fixture filing, or deed of trust, assignment of rents, security
agreement and fixture filing, deed to secure debt, assignment of rents, security
agreement and fixture filing, or similar instrument creating and evidencing a
lien on real property and other property and rights incidental thereto.
"Mortgage File" means, with respect to a Mortgage Loan, the documents
and instruments relating to such Mortgage Loan and set forth in Exhibit F to the
Custodial Agreement.
"Mortgage Interest Rate" means the rate of interest borne on a
Mortgage Loan from time to time in accordance with the terms of the related
Mortgage Note.
"Mortgage Interest Rate Cap" means, with respect to an adjustable rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
"Mortgage Loan" means any Sub-Prime Mortgage Loan, Exception Mortgage
Loan, Jumbo Mortgage Loan, Alt A Mortgage Loan, Second Lien Mortgage Loan or
Conforming Mortgage Loan which is a fixed or floating-rate, first or second
lien, one-to-four-family residential mortgage or home equity loan evidenced by a
promissory note and secured by a mortgage, which satisfies the requirements set
forth in the Underwriting Guidelines and Section 13(b) hereof; provided,
however, that, except as expressly approved in writing by Buyer, Mortgage Loans
shall not include any "high-LTV" loans (i.e., a mortgage loan having a
loan-to-value ratio in excess of 100% or in excess of such lower percentage set
forth in the Underwriting Guidelines or with respect to Second Lien Mortgage
Loans, a combined loan-to value ratio, in excess of the lower of (i) the
percentage specified in the Underwriting Guidelines or (ii) 100%) or any High
Cost Mortgage Loans and; provided, further, that the origination date with
respect to such Mortgage Loan is no earlier than thirty (30) days prior to the
related Purchase Date.
"Mortgage Loan Schedule" means with respect to any Transaction as of
any date, a mortgage loan schedule in the form of either (a) Exhibit C attached
hereto or (b) a computer tape or other electronic medium generated by Seller and
delivered to Buyer and Custodian,
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which provides information (including, without limitation, the information set
forth on Exhibit C attached hereto) relating to the Purchased Mortgage Loans in
a format acceptable to Buyer.
"Mortgage Loan Schedule and Exception Report" has the meaning assigned
to such term in the Custodial Agreement
"Mortgage Note" means the promissory note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of the
debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor or obligors on a Mortgage Note,
including any person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been or are required to be
made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Income" means, for any period and any Person, the net income of
such Person for such period as determined in accordance with GAAP.
"Net Worth" means, with respect to any Person, an amount equal to, on
a consolidated basis, such Person's stockholder equity (determined in accordance
with GAAP).
"1934 Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Non-Performing Mortgage Loan" means (i) any Mortgage Loan for which
any payment of principal or interest is more than twenty-nine (29) days past
due, (ii) any Mortgage Loan with respect to which the related mortgagor is in
bankruptcy or (iii) any Mortgage Loan with respect to which the related
mortgaged property is in foreclosure.
"Notice Date" has the meaning given to it in Section 3(b) hereof.
"Obligations" means (a) all of Seller's indebtedness, obligations to
pay the Repurchase Price on the Repurchase Date, the Price Differential on each
Price Differential Payment Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in connection with, the
Program Agreements, whether now existing or hereafter arising; (b) any and all
sums paid by Buyer or on behalf of Buyer in order to preserve any Purchased
Mortgage Loan or its interest therein; (c) in the event of any proceeding for
the collection or enforcement of any of Seller's indebtedness, obligations or
liabilities referred to in clause (a), the reasonable expenses of retaking,
holding, collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Mortgage Loan, or of any exercise by Buyer of its
rights under the Program Agreements, including, without limitation, attorneys'
fees and disbursements and court costs; and (d) all of Seller's indemnity
obligations to Buyer or Custodian or both pursuant to the Program Agreements.
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"PBCG" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, unlimited liability company, join
stock company, trust, unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"Post Default Rate" means an annual rate of interest equal to the
Pricing Rate plus 3%.
"Price Differential" means with respect to any Transaction as of any
date of determination, an amount equal to the product of (A) the Pricing Rate
for such Transaction and (B) the Purchase Price for such Transaction, calculated
daily on the basis of a 360-day year 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.
"Price Differential Payment Date" means, with respect to a Purchased
Mortgage Loan, the 5th day of the month following the related Purchase Date and
each succeeding 5th day of the month thereafter; provided, that, with respect to
such Purchased Mortgage Loan, the final Price Differential Payment Date shall be
the related Repurchase Date; and provided, further, that if any such day is not
a Business Day, the Price Differential Payment Date shall be the next succeeding
Business Day.
"Pricing Rate" means LIBOR plus:
(a) 0.95% with respect to Transactions the subject of which are
Conforming Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged
Loans or Second Lien Mortgage Loans);
(b) 0.95% with respect to Transactions the subject of which are
Jumbo Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged Loans or
Second Lien Mortgage Loans);
(c) 1.125% with respect to Transactions the subject of which are
Sub-Prime Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged
Loans or Second Lien Mortgage Loans);
(d) 1.125% with respect to Transactions the subject of which are
Alt A Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged Loans or
Second Lien Mortgage Loans);
(e) 1.25% with respect to Transactions the subject of which are
Wet-Ink Mortgage Loans;
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(f) 1.25% with respect to Transactions the subject of which are
or Second Lien Mortgage Loans (other than Aged Loans);
(g) 1.50% with respect to Transactions the subject of which are
Aged Loans; and
(h) the rate determined in the sole discretion of Buyer with
respect to Transactions the subject of which are Exception Mortgage
Loans.
The Pricing Rate shall change in accordance with LIBOR, as provided in
Section 5(a).
"Principal" has the meaning given to it in Annex I.
"Program Agreements" means, collectively, the Servicing Agreement, the
Servicer Notice, the Custodial Agreement, this Agreement, the Electronic
Tracking Agreement, if entered into, and, with respect to each Exception
Mortgage Loan, a Purchase Confirmation.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Confirmation" means a confirmation of a Transaction, in the
form attached as Exhibit B hereto.
"Purchase Date" means the date on which Purchased Mortgage
Loans are to be transferred by Seller to Buyer.
"Purchase Price" means (i) on the Purchase Date, (A) with respect to
each Purchased Mortgage Loan other than a Sub-Prime Mortgage Loan, the price at
which each Purchased Mortgage Loan is transferred by Seller to Buyer, which
shall not exceed the lesser of (w) the outstanding principal amount thereof as
set forth on the related Mortgage Loan Schedule and Exception Report and (x) (1)
the Market Value of such Purchased Mortgage Loan multiplied by (2) the
applicable Purchase Price Percentage, and (B) with respect to Purchased Mortgage
Loans that are Sub-Prime Mortgage Loans, the price at which each Purchased
Mortgage Loan is transferred by Seller to Buyer, which shall not exceed the
applicable Purchase Price Percentage multiplied by the lesser of (y) the
outstanding principal amount thereof as set forth on the related Mortgage Loan
Schedule and Exception Report and (z) the Market Value of such Purchased
Mortgage Loan, and (ii) thereafter, except where Buyer and Seller agree
otherwise, the applicable amount determined under the immediately preceding
clause (i) decreased by the amount of any cash transferred by Seller to Buyer
pursuant to Section 4(c) hereof or applied to reduce Seller's obligations under
clause (ii) of Section 4(b) hereof.
"Purchase Price Percentage" means, with respect to each Mortgage Loan,
the following percentage, as applicable:
(a) 98% with respect to Purchased Mortgage Loans that are Jumbo
Mortgage Loans (other than Second Lien Mortgage Loans);
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(b) 98% with respect to Purchased Mortgage Loans that are Conforming
Mortgage Loans (other than Second Lien Mortgage Loans);
(c) 97% with respect to Purchased Mortgage Loans that are Alt A
Mortgage Loans (other than Second Lien Mortgage Loans);
(d) 95% with respect to Purchased Mortgage Loans that are Sub-Prime
Mortgage Loans;
(e) 95% with respect to Transactions the subject of which are Second
Lien Mortgage Loans; and
(f) with respect to Transactions the subject of which are Exception
Mortgage Loans, a percentage to be determined by Buyer in its sole
discretion;
"Purchased Mortgage Loans" means the collective reference to Mortgage
Loans together with the Repurchase Assets related to such Mortgage Loans
transferred by Seller to Buyer in a Transaction hereunder, listed on the related
Mortgage Loan Schedule attached to the related Transaction Request, which such
Mortgage Loans the Custodian has been instructed to hold pursuant to the
Custodial Agreement.
"Qualified Insurer" means a mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
"Qualified Originator" means an originator of Mortgage Loans which is
acceptable under the Underwriting Guidelines.
"Records" means 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 Purchased
Mortgage Loan. Records shall include the mortgage notes, any Mortgages, the
Mortgage Files, the credit files related to the Purchased Mortgage Loan and any
other instruments necessary to document or service a Mortgage Loan.
"REO Property" means real property acquired by Seller or the Servicer
for the benefit of Seller, including a Mortgaged Property acquired through
foreclosure of a Mortgage Loan or by deed in lieu of such foreclosure.
"Reporting Date" means the 5th day of each month or, if such day is
not a Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in Section 8
hereof.
"Repurchase Date" means the earlier of (i) the Termination Date, (ii)
the date set forth in the applicable Purchase Confirmation, (iii) the date
determined by application of Section 16 hereof or (iv) the date identified to
Buyer by Seller as the date that the related Mortgage Loan is to be sold
pursuant to a Take-out Commitment.
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"Repurchase Price" means the price at which Purchased Mortgage Loans
are to be transferred from Buyer to Seller upon termination of a Transaction,
which will be determined in each case (including Transactions terminable upon
demand) as the sum of the Purchase Price and the accrued but unpaid Price
Differential as of the date of such determination.
"Request for Certification" means a notice sent to the Custodian
reflecting the sale of one or more Purchased Mortgage Loans to Buyer hereunder.
"Requirement of Law" means, with respect to any Person, any law,
treaty, rule or regulation or determination of an arbitrator, a court or other
governmental authority, 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" means shall mean, as to any Person, the chief
executive officer or, with respect to financial matters, the chief financial
officer of such Person.
"S&P" means Standard & Poor's Ratings Services, or any successor
thereto.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Second Lien Mortgage Loan" means a second lien Mortgage Loan where
the second lien on the related Mortgaged Property is contemplated and incurred
simultaneously with the first lien on the related Mortgaged Property.
"Seller" means Family Lending Services, Inc. or its permitted
successors and assigns.
"Servicer" means Calmco Servicing, LP, or any other servicer approved
by Buyer in its sole discretion, which may be Seller.
"Servicer Notice" means the notice acknowledged by the Servicer
substantially in the form of Exhibit N hereto.
"Servicing Agreement" means a servicing agreement among Seller, Buyer
and a Servicer as the same may be amended from time to time.
"Settlement Agent" means, with respect to any Transaction the subject
of which is a Wet-Ink Mortgage Loan, the entity approved by Buyer, in its sole
good-faith discretion, which may be a title company, escrow company or attorney
in accordance with local law and practice in the jurisdiction where the related
Wet-Ink Mortgage Loan is being originated. A Settlement Agent is deemed approved
unless Buyer notifies Seller otherwise at any time electronically or in writing.
"SIPA" means the Securities Investor Protection Act of 1970, as
amended from time to time.
"Subordinated Debt" means, Indebtedness of Seller which is (i)
unsecured, (ii) no part of the principal of such Indebtedness is required to be
paid (whether by way of mandatory
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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 are subordinated to the prior payment in
full of the principal of and interest (including post-petition obligations) on
the Transactions and all other obligations and liabilities of Seller to Buyer
hereunder on terms and conditions approved in writing by Buyer and all other
terms and conditions of which are satisfactory in form and substance to Buyer.
"Subsidiary" means, 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.
"Sub-Prime Mortgage Loan" means a first lien Mortgage Loan which
originated in accordance with the criteria established by Buyer for sub-prime
mortgage loans, as determined by Buyer in its sole discretion, and in which the
FICO score is no less than 530. Any Sub-Prime Mortgage Loans not subject to a
Take-out Commitment by Buyer or an Affiliate of Buyer must be pre-approved for
purchase by the Take-out Investor as evidenced by an approval through an
automated underwriting system or such other written approval acceptable to
Buyer.
"Take-out Commitment" means a commitment of Seller to either (a) sell
one or more Mortgage Loans to a Take-out Investor or (b) (i) swap one or more
Mortgage Loans with a Take-out Investor that is an Agency for an Agency
Security, and (ii) sell the related Agency Security to a Take-out Investor, and
in each case, the corresponding Take-out Investor's commitment back to Seller to
effectuate any of the foregoing, as applicable. With respect to any Take-out
Commitment with an Agency, the applicable agency documents list Buyer as sole
subscriber.
"Take-out Investor" means (i) an Agency or (ii) other institution
which has made a Take-out Commitment and has been approved by Buyer.
"Termination Date" means the earlier of (a) October [4], 2002 and (b)
the date of the occurrence of an Event of Default.
"Test Period" means any period of three (3) consecutive calendar
months.
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from Seller to Buyer, in the
form attached as Exhibit A hereto, to enter into a Transaction.
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"Trust Receipt and Certification" means, with respect to any
Transaction as of any date, a receipt and certification in the form attached as
an exhibit to the Custodial Agreement.
"Underwriting Guidelines" means the standards, procedures and
guidelines of Seller for underwriting and acquiring Mortgage Loans, which are
set forth in written policies and procedures of Seller, and the guidelines of
the Agencies and any Takeout Investor or Investors for underwriting and
acquiring Mortgage Loans, which guidelines are acceptable to Buyer in its sole
discretion, which guidelines are listed or attached hereto in Exhibit F.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
"VA" means the U.S. Department of Veterans Affairs, an agency of the
United States of America, or any successor thereto including the Secretary of
Veterans Affairs.
"VA Approved Lender" means a lender which is approved by the VA to act
as a lender in connection with the origination of VA Loans.
"VA Loan" means a Mortgage Loan which is subject of a VA Loan Guaranty
Agreement as evidenced by a VA Loan Guaranty Agreement, or a Mortgage Loan which
is a vender loan sold by the VA.
"VA Loan Guaranty Agreement" means the obligation of the United States
to pay a specific percentage of a Mortgage Loan (subject to a maximum amount)
upon default of the Mortgagor pursuant to the Servicemen's Readjustment Act, as
amended.
"Violation Deadline" has the meaning assigned thereto in Section 4(c)
hereof.
"Wet-Ink Documents" means, with respect to any Wet-Ink Mortgage Loan,
the documents set forth in Exhibit K hereto.
"Wet-Ink Mortgage Loan" means a Mortgage Loan which Seller is selling
to Buyer simultaneously with the origination thereof.
3. Program; Initiation of Transactions
a. From time to time Buyer will purchase from Seller certain Mortgage
Loans that have been either originated by Seller or purchased by Seller from
other originators. All Purchased Mortgage Loans shall exceed or meet the
Underwriting Guidelines, and shall be serviced by Servicer. The aggregate
Purchase Price of Purchased Mortgage Loans subject to outstanding Transactions
shall not exceed the Maximum Aggregate Purchase Price.
b. With respect to each Transaction involving Mortgage Loans which are
not Wet-Ink Mortgage Loans, Seller shall give Buyer and Custodian at least 1
Business Day's prior notice of any proposed Purchase Date (the date on which
such notice is given, the "Notice Date"); provided, that if Seller is delivering
25 or fewer Mortgage Loans, which are not Wet-Ink
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Mortgage Loans, on a Purchase Date, the notice shall be delivered on or before
10:30 a.m. (New York City time) on the Purchase Date. With respect to Wet-Ink
Mortgage Loans, Seller shall deliver notice of any proposed purchase on or
before 3:30 p.m. (New York City time) on the Purchase Date. On the Notice Date,
Seller shall (i) request that Buyer enter into a Transaction by furnishing to
Buyer a Transaction Request, (ii) deliver to Buyer and Custodian a Mortgage Loan
Schedule and (iii) deliver to Custodian a Request for Certification and each
Mortgage File or Wet-Ink Documents for each Wet-Ink Mortgage Loan in accordance
with Section 10(b)(3) and otherwise comply with the procedures set forth in
Exhibit K hereto.
c. With respect to each Exception Mortgage Loan, upon receipt of the
Transaction Request, Buyer shall, consistent with this Agreement, specify the
terms for such proposed Transaction, including the Purchase Price, the Pricing
Rate, the Market Value and the Repurchase Date in respect of such Transaction.
The terms thereof shall be set forth in the Purchase Confirmation to be
delivered to Seller on or prior to the Purchase Date.
d. With respect to each Exception Mortgage Loan, the Purchase
Confirmation, together with this Agreement, shall constitute conclusive evidence
of the terms agreed between Buyer and Seller with respect to the Transaction to
which the Purchase Confirmation relates, and Seller's acceptance of the related
proceeds shall constitute Seller's agreement to the terms of such Purchase
Confirmation. It is the intention of the parties that, with respect to each
Exception Mortgage Loan, each Purchase Confirmation shall not be separate from
this Agreement but shall be made a part of this Agreement. In the event of any
conflict between this Agreement and, with respect to each Exception Mortgage
Loan, a Purchase Confirmation, the terms of the Purchase Confirmation shall
control with respect to the related Transaction.
e. Upon the satisfaction of the applicable conditions precedent set
forth in Section 10 hereof, all of Seller's interest in the Repurchase Assets
shall pass to Buyer on the Purchase Date, against the transfer of the Purchase
Price to Seller. Upon transfer of the Mortgage Loans to Buyer as set forth in
this Section and until termination of any related Transactions as set forth in
Sections 4 or 16 of this Agreement, ownership of each Mortgage Loan, including
each document in the related Mortgage File and Records, is vested in Buyer;
provided that, prior to the recordation by the Custodian as provided for in the
Custodial Agreement record title in the name of Seller to each Mortgage shall be
retained by Seller in trust, for the benefit of Buyer, for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
f. With respect to each Wet-Ink Mortgage Loan, by no later than 12:00
noon, (New York City time) on the seventh Business Day following the applicable
Purchase Date, Seller shall cause the related Settlement Agent to deliver to the
Custodian the remaining documents in the Mortgage File.
4. Repurchase
a. Seller shall repurchase the related Purchased Mortgage Loans from
Buyer on each related Repurchase Date. 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
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Price for such Purchased Mortgage Loan on each Price Differential Payment Date
except as otherwise provided herein). Seller is obligated to repurchase and take
physical possession of the Purchased Mortgage Loans from Buyer or its designee
(including the Custodian) at Seller's expense on the related Repurchase Date.
b. Provided that Buyer has received the related Repurchase Price upon
repurchase of all of the Purchased Mortgage Loans, Buyer agrees to release its
ownership interest hereunder in the Purchased Mortgage Loans (including, the
Repurchase Assets related thereto) at the request of Seller. With respect to
payments in full by the related Mortgagor of a Purchased Mortgage Loan, Seller
agrees to (i) provide Buyer with a copy of a report from the related Servicer
indicating that such Purchased Mortgage Loan has been paid in full, (ii) remit
to Buyer, within two Business Days, the Repurchase Price with respect to such
Purchased Mortgage Loans and (iii) provide Buyer a notice specifying each
Purchased Mortgage Loan that has been prepaid in full. Buyer agrees to release
its ownership interest in Purchased Mortgage Loans which have been prepaid in
full after receipt of evidence of compliance with clauses (i) through (iii) of
the immediately preceding sentence.
c. In the event that at any time any Purchased Mortgage Loan violates
the applicable sublimit set forth in the definition of Market Value, Buyer may,
in its sole discretion, redesignate such Mortgage Loan as an Exception Mortgage
Loan. If Buyer does not redesignate such Mortgage Loan as an Exception Mortgage
Loan, and if Seller fails to notify Buyer within five (5) Business Days
following notice or knowledge of such violation that Seller does not want to
receive a bid for such Mortgage Loan as described below, Buyer or an Affiliate
of Buyer may offer to terminate Seller's right and obligation to repurchase such
Mortgage Loan by paying Seller a price to be set by Buyer in its sole discretion
(a "Bid"). Seller, within five (5) Business Days of receipt of Buyer's bid (the
"Violation Deadline") may, in its sole discretion, either (i) accept Buyer's
bid, terminating Seller's right to repurchase such Mortgage Loan under this
Agreement or (ii) immediately repurchase the Mortgage Loan at the Repurchase
Price in accordance with this Section 4. Seller shall pay Buyer a bid fee equal
to $250 (the "Bid Fee") with respect to each Mortgage Loan on which Buyer or its
Affiliate makes a Bid, regardless of whether the Bid is accepted and such Bid
Fee shall be due and payable to Buyer on or before the Violation Deadline. Any
amount paid by Buyer or its Affiliate to terminate Seller's right to repurchase
a Purchased Mortgage Loan if a Bid is accepted pursuant to this Section shall be
applied by Buyer toward the outstanding Repurchase Price for the applicable
Transaction.
5. Price Differential.
a. On each Business Day that a Transaction is outstanding, the Pricing
Rate shall be reset and, unless otherwise agreed, the accrued and unpaid Price
Differential shall be settled in cash on each related Price Differential Payment
Date. Two Business Days prior to the Price Differential Payment Date, Buyer
shall give Seller written or electronic notice of the amount of the Price
Differential due on such Price Differential Payment Date. On the Price
Differential Payment Date, Seller shall pay to Buyer the Price Differential for
such Price Differential Payment Date (along with any other amounts to be paid
pursuant to Sections 7, 34 and 35 hereof), by wire transfer in immediately
available funds.
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b. If Seller fails to pay all or part of the Price Differential by
3:00 p.m. (New York City time) on the related Price Differential Payment Date,
with respect to any Purchased Mortgage Loan, Seller shall be obligated to pay to
Buyer (in addition to, and together with, the amount of such Price Differential)
interest on the unpaid Repurchase Price at a rate per annum equal to the Post
Default Rate from and after the date of such failure until the Price
Differential is received in full by Buyer.
6. Margin Maintenance
a. If at any time the Market Value of any Purchased Mortgage Loan
subject to a Transaction is less than Buyer's Margin Amount for such Transaction
(a "Margin Deficit"), then Buyer may by notice to any Seller require Seller to
transfer to Buyer cash in an amount at least equal to the Margin Deficit (such
requirement, a "Margin Call").
b. Notice delivered pursuant to Section 6(a) may be given by any
written means. Any notice given before 10:00 a.m. (New York City time) on a
Business Day shall be met, and the related Margin Call satisfied, no later than
5:00 p.m. (New York City time) on such Business Day; notice given after 10:00
a.m. (New York City time) on a Business Day shall be met, and the related Margin
Call satisfied, no later than 5:00 p.m. (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"). 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.
7. Income Payments
a. If Income is paid in respect of any Purchased Mortgage Loan during
the term of a Transaction, such Income shall be the property of Buyer.
Notwithstanding the foregoing, and provided no Event of Default has occurred and
is continuing, Buyer agrees that if a third-party Servicer is in place for any
Purchased Mortgage Loans, such Servicer shall deposit such Income to the
Collection Account. Seller shall deposit all Income received in its capacity as
Servicer of any Purchased Mortgage Loans to the Collection Account in accordance
with Section 12(c) hereof.
b. Provided no Event of Default has occurred and is continuing, on
each Price Differential Payment Date, Seller shall remit to Buyer an amount
equal to the Price Differential out of the interest portion of the Income paid
in respect to the Purchased Mortgage Loans for the preceding month in accordance
with Section 5 of this Agreement. Upon termination of any Transaction, to the
extent that there is any excess Income after repayment of all amounts to be
transferred to Buyer by Seller, Buyer, in its sole option, may apply the excess
income to reduce the Repurchase Price due upon termination of any other
outstanding Transactions or return such excess income to the Seller.
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c. In the event that an Event of Default has occurred and is
continuing, notwithstanding any provision set forth herein, Seller shall remit
to Buyer all Income received with respect to each Purchased Mortgage Loan on the
related Price Differential Payment Date or on such other date or dates as Buyer
notifies Seller in writing. In such event, Buyer shall apply such Income to
reduce the Obligations or shall return such Income to Seller on each Price
Differential Payment Date.
d. Notwithstanding any provision to the contrary in this Section 7,
within two (2) Business Days of receipt by Seller of any prepayment of principal
in full, with respect to a Purchased Mortgage Loan, Seller shall remit such
amount to Buyer and Buyer shall immediately apply any such amount received by
Buyer to reduce the amount of the Repurchase Price due upon termination of the
related Transaction.
e. Notwithstanding anything to the contrary set forth herein, upon
notice by Buyer to Seller, Seller shall remit to Buyer all collections received
by Servicer or Seller on the Purchased Mortgage Loans in accordance with Buyer's
directions no later than the day on which aggregate collections of principal and
interest (excluding principal prepayments) on the Purchased Mortgaged Loans
reaches an amount to be indicated by Buyer in its sole discretion.
8. Security Interest
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, Seller hereby pledges to Buyer as security for the performance by Seller
of its Obligations and hereby grants, assigns and pledges to Buyer a fully
perfected first priority security interest in the Purchased Mortgage Loans, the
Records, and all related servicing rights, the Program Agreements (to the extent
such Program Agreements and Seller's right thereunder relate to the Purchased
Mortgage Loans), any related Take-out Commitments, Property, all insurance
policies and insurance proceeds relating to any Mortgage Loan or the related
Mortgaged Property, including, but not limited to, any payments or proceeds
under any related primary insurance, hazard insurance and FHA Mortgage Insurance
Contracts and VA Loan Guarantee Agreements (if any), Income, the Collection
Account, Interest Rate Protection Agreements, accounts (including any interest
of Seller in escrow accounts) and any other contract rights, accounts, payments,
rights to payment (including payments of interest or finance charges) general
intangibles and other assets relating to the Purchased Mortgage Loans
(including, without limitation, any other accounts) or any interest in the
Purchased Mortgage Loans, the servicing of the Purchased Mortgage Loans, and any
proceeds (including the related securitization proceeds) and distributions with
respect to any of the foregoing and any other property, rights, title or
interests as are specified on a Transaction Request and/or Trust Receipt and
Certification, in all instances, whether now owned or hereafter acquired, now
existing or hereafter created (collectively, the "Repurchase Assets"). Seller
agrees to execute, deliver and/or file such documents and perform such acts as
may be reasonably necessary to fully perfect Buyer's security interest created
hereby. Furthermore, the Seller hereby authorizes the Buyer to file financing
statements relating to the Repurchase Assets without the signature of the
Seller, as the Buyer, at its option, may deem appropriate. The Seller shall pay
the filing costs for any financing statement or statements prepared pursuant to
this Section.
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9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds to
be made by Seller hereunder shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Buyer at the following
account maintained by Buyer: Account No. ▇▇-▇▇▇-▇▇▇, for the account of CSFB
Buyer/Family Lending Seller - Inbound Account, Deutsche Bank, ABA No. 021 001
033 or such other account as Buyer shall specify to Seller in writing. Seller
acknowledges that it has no rights of withdrawal from the foregoing account. All
Purchased Mortgage Loans transferred by one party hereto to the other party
shall be in suitable form for transfer or shall be accompanied by duly executed
instruments of transfer or assignment in blank and such other documentation as
the transferee may reasonably request. All Purchased Mortgage Loans shall be
evidenced by a Trust Receipt and Certification. Any Repurchase Price received by
Buyer after 2:00 p.m. (New York City time) shall be deemed received on the next
succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial
Transaction, Buyer shall have received on or before the day of such initial
Transaction the following, in form and substance satisfactory to Buyer and duly
executed by Seller and each other party thereto:
(1) Program Agreements. The Program Agreements (including a Custodial
Agreement in a form acceptable to Buyer) duly executed and delivered by the
parties thereto and being in full force and effect, free of any
modification, breach or waiver.
(2) Security Interest. Evidence that all other actions necessary or,
in the opinion of Buyer, desirable to perfect and protect Buyer's interest
in the Purchased Mortgage Loans and other Repurchase Assets have been
taken, including, without limitation, duly executed and filed Uniform
Commercial Code financing statements on Form UCC-1.
(3) Organizational Documents. A certified copy of Seller's charter,
bylaws and corporate resolutions approving the Program Agreements and
transactions thereunder (either specifically or by general resolution) and
all documents evidencing other necessary corporate action or governmental
approvals as may be required in connection with the Program Agreements.
(4) Good Standing Certificate. A certified copy of a good standing
certificate of Seller, dated as of no earlier than the date 10 Business
Days prior to the Purchase Date with respect to the initial Transaction
hereunder.
(5) Incumbency Certificate. An incumbency certificate of the corporate
secretary of each of Seller, certifying the names, true signatures and
titles of the representatives duly authorized to request transactions
hereunder and to execute the Program Agreements.
(6) Opinion of Counsel. An opinion of Seller's counsel, in form and
substance substantially as set forth in Exhibit E attached hereto.
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(7) Subordination Agreement. With respect to any Indebtedness of the
Seller owed to an Affiliate of the Seller, a Subordination Agreement in
form and substance acceptable to Buyer.
(8) Fees. Payment of any fees due to Buyer hereunder.
b. All Transactions. The obligation of Buyer to enter into each
Transaction pursuant to this Agreement is subject to the following conditions
precedent:
(1) Due Diligence Review. Without limiting the generality of Section
36 hereof, Buyer shall have completed, to its satisfaction, its due
diligence review of the related Mortgage Loans and Seller and the Servicer.
(2) Required Documents.
(a) With respect to each Purchased Mortgage Loan which is not a
Wet-Ink Mortgage Loan, the Mortgage File has been delivered to the
Custodian (i) with respect to any purchase of 25 or fewer Mortgage
Loans on a single Purchase Date, on or prior to 3:00 p.m. (New York
City time) on the Purchase Date, and (ii) with respect to any purchase
of 26 or more Mortgage Loans on a single Purchase Date, at least 24
hours prior to the Purchase Date;
(b) With respect to each Wet-Ink Mortgage Loan, the Wet-Ink
Documents have been delivered to Buyer or Custodian, as the case may
be, by 3:30 p.m. (New York City time) on the Purchase Date.
(3) Transaction Documents. Buyer or its designee shall have received
on or before the day of such Transaction (unless otherwise specified in
this Agreement) the following, in form and substance satisfactory to Buyer
and (if applicable) duly executed:
(a) A Transaction Request delivered pursuant to Section 3(c)
hereof and a Purchase Confirmation.
(b) The Request for Certification and the related Mortgage Loan
Schedule and Exception Report, and the Trust Receipt.
(c) Such certificates, opinions of counsel or other documents as
Buyer may reasonably request.
(4) No Default. No Default or Event of Default shall have occurred and
be continuing;
(5) Requirements of Law. Buyer shall not have determined that the
introduction of or a change in any Requirement of Law or in the
interpretation or administration of any Requirement of Law applicable to
Buyer has made it unlawful, and no Governmental Authority shall have
asserted that it is unlawful, for Buyer to enter into Transactions with a
Pricing Rate based on LIBOR.
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(6) Representations and Warranties. Both immediately prior to the
related Transaction and also after giving effect thereto and to the
intended use thereof, the representations and warranties made by Seller in
each Program Agreement shall be true, correct and complete 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).
(7) Electronic Tracking Agreement. To the extent Seller is selling
Mortgage Loans which are registered on the MERS(R) System, an Electronic
Tracking Agreement entered into, duly executed and delivered by the parties
thereto and being in full force and effect, free of any modification,
breach or waiver.
(8) Material Adverse Change. None of the following shall have occurred
and/or be continuing:
(a) Credit Suisse First Boston, New York Branch's corporate bond
rating as calculated by S&P or ▇▇▇▇▇'▇ has been lowered or downgraded
to a rating below investment grade by S&P or ▇▇▇▇▇'▇;
(b) 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 mortgage loans or securities or an event or events shall
have occurred resulting in Buyer not being able to finance Purchased
Assets 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
(c) 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
11. Program; Costs
a. Seller shall reimburse Buyer for any of Buyer's reasonable
out-of-pocket costs, including due diligence review costs and reasonable
attorney's fees, incurred by Buyer in determining the acceptability to Buyer of
any Mortgage Loans. Seller shall also pay, or reimburse Buyer if Buyer shall
pay, any termination fee, which may be due any servicer. Seller shall pay the
fees and expenses of Buyer's counsel in connection with the Program Agreements.
Legal fees for any subsequent amendments to this Agreement or related documents
shall be borne by Seller. Seller shall pay ongoing custodial and bank fees and
expenses as set forth on Exhibit M hereto, and any other ongoing fees and
expenses under any other Program Document.
b. If Buyer determines that, due to the introduction of, any change
in, or the compliance by Buyer with (i) any eurocurrency reserve requirement or
(ii) the interpretation of any law, regulation or any guideline or request from
any central bank or other Governmental
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Authority (whether or not having the force of law), there shall be an increase
in the cost to Buyer in engaging in the present or any future Transactions, then
Seller agrees to pay to Buyer, from time to time, upon demand by Buyer (with a
copy to Custodian) the actual cost of additional amounts as specified by Buyer
as sufficient to compensate Buyer for such increased costs.
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, provided, however, that the Buyer shall use good
faith efforts to (i) calculate such amounts in a manner which is consistent with
the manner in which it makes calculations for comparable claims with respect to
similarly situated sellers and (ii) not allocate to the Seller a proportionately
greater amount of such additional compensation than it allocates to each of its
other similarly situated sellers.
d. With respect to any Transaction, Buyer may conclusively rely upon,
and shall incur no liability to Seller in acting upon, any request or other
communication that Buyer reasonably believes to have been given or made by a
person authorized to enter into a Transaction on Seller's behalf, whether or not
such person is listed on the certificate delivered pursuant to Section 10(a)(5)
hereof. In each such case, the terms of the Purchase Confirmation, request or
other communication shall be deemed correct absent manifest error.
e. Notwithstanding the assignment of the Program Agreements with
respect to each Purchased Mortgage Loan to Buyer, Seller agrees and covenants
with Buyer to enforce diligently Seller's rights and remedies set forth in the
Program Agreements.
f. Any payments made by Seller to Buyer shall be free and clear of,
and without deduction or withholding for, any taxes; provided, however, that if
such payer shall be required by law to deduct or withhold any taxes from any
sums payable to Buyer, then such payer shall (A) make such deductions or
withholdings and pay such amounts to the relevant authority in accordance with
applicable law, (B) pay to Buyer the sum that would have been payable had such
deduction or withholding not been made, and (C) at the time Price Differential
is paid, pay to Buyer all additional amounts as specified by Buyer to preserve
the after-tax yield Buyer would have received if such tax had not been imposed.
12. Servicing
a. Seller, on Buyer's behalf, shall contract with Servicer to, or if
Seller is the Servicer, Seller shall, service the Mortgage Loans consistent with
the degree of skill and care that Seller customarily requires with respect to
similar Mortgage Loans owned or managed by it and in accordance with Accepted
Servicing Practices. The Servicer shall (i) comply with all applicable Federal,
State and local laws and regulations, (ii) maintain all state and federal
licenses necessary for it to perform its servicing responsibilities hereunder
and (iii) not impair the rights of Buyer in any Mortgage Loans or any payment
thereunder. Buyer may terminate the servicing of any Mortgage Loan with the
then-existing servicer in accordance with Section 12(e) hereof.
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b. Seller shall cause the Servicer to hold or cause to be held all
escrow funds collected by Servicer with respect to any Purchased Mortgage Loans
in trust accounts and shall apply the same for the purposes for which such funds
were collected.
c. Seller shall cause the Servicer to deposit all collections received
by Servicer on the Purchased Mortgage Loans in the Collection Account no later
than the 5th Business Day following receipt; provided, however, that any amounts
required to be remitted to Buyer shall be deposited in the Collection Account on
or prior to the day on which such remittance is to occur.
d. Upon Buyer's request, Seller shall provide promptly to Buyer (i) a
Servicer Notice addressed to and agreed to by the Servicer of the related
Purchased Mortgage Loans, advising such Servicer of such matters as Buyer may
reasonably request, including, without limitation, recognition by the Servicer
of Buyer's interest in such Purchased Mortgage Loans and the Servicer's
agreement that upon receipt of notice of an Event of Default from Buyer, it will
follow the instructions of Buyer with respect to the Purchased Mortgage Loans
and any related Income with respect thereto.
e. Upon the occurrence of an Event of Default hereunder or a material
default under the Servicing Agreement, Buyer shall have the right to immediately
terminate the Servicer's right to service the Purchased Mortgage Loans under the
Servicing Agreement without payment of any penalty or termination fee. Seller
and the Servicer shall cooperate in transferring the servicing of the Purchased
Mortgage Loans to a successor servicer appointed by Buyer in its sole
discretion.
f. If Seller should discover that, for any reason whatsoever, Seller
or any entity responsible to Seller for managing or servicing any such Purchased
Mortgage Loan has failed to perform fully Seller's obligations under the Program
Agreements or any of the obligations of such entities with respect to the
Purchased Mortgage Loans, Seller shall promptly notify Buyer.
13. Representations and Warranties
a. Seller represents and warrants to Buyer as of the date hereof and
as of each Purchase Date for any Transaction that:
(1) Seller Existence. Seller has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(2) Licenses. Seller is duly licensed or is otherwise qualified in
each jurisdiction in which it transacts business for the business which it
conducts and is not in default of any applicable federal, state or local
laws, rules and regulations unless, in either instance, the failure to take
such action is not reasonably likely (either individually or in the
aggregate) to cause a Material Adverse Effect (hereinafter defined) and is
not, to the best of Seller's knowledge, in default of such state's
applicable laws, rules and regulations. Seller has the requisite power and
authority and legal right to originate and purchase Mortgage Loans (as
applicable) and to own, sell and ▇▇▇▇▇ ▇ ▇▇▇▇ on all of its right, title
and interest in and to the Mortgage Loans, and to execute and deliver,
engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement, each Program Agreement and any
Transaction Request or, if
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applicable, Purchase Confirmation. Seller is an FHA Approved Mortgagee and
VA Approved Lender.
(3) Power. Seller has all requisite corporate or other power, and has
all governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to
be conducted, except where the lack of such licenses, authorizations,
consents and approvals would not be reasonably likely to have a Material
Adverse Effect.
(4) Due Authorization. Seller has all necessary corporate or other
power, authority and legal right to execute, deliver and perform its
obligations under each of the Program Agreements, as applicable. This
Agreement, any Transaction Request, Purchase Confirmation and the Program
Agreements have been (or, in the case of Program Agreements and any
Transaction Request, Purchase Confirmation not yet executed, will be) duly
authorized, executed and delivered by Seller, all requisite corporate
action having been taken, and each is valid, binding and enforceable
against Seller in accordance with its terms except as such enforcement may
be affected by bankruptcy, by other insolvency laws, or by general
principles of equity.
(5) Financial Statements. The Seller has heretofore furnished to Buyer
a copy of (a) its consolidated balance sheet for the fiscal year of the
Seller ended December 31, 2000 and the related consolidated statements of
income and retained earnings and of cash flows for the Seller and its
consolidated Subsidiaries for such fiscal year, setting forth in each case
in comparative form the figures for the previous year, with the opinion
thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (b) its consolidated balance sheet for
the quarterly fiscal periods of the Seller ended March 31, 2001 and June
30, 2001 and the related consolidated statements of income and retained
earnings and of cash flows for the Seller and its consolidated Subsidiaries
for such quarterly fiscal periods, setting forth in each case in
comparative form the figures for the previous year. All such financial
statements are complete and correct and fairly present, in all material
respects, the consolidated financial condition of the Seller and its
Subsidiaries and the consolidated results of their operations as at such
dates and for such fiscal periods, all in accordance with GAAP applied on a
consistent basis. Since December 31, 2000, there has been no material
adverse change in the consolidated business, operations or financial
condition of the Seller and its consolidated Subsidiaries taken as a whole
from that set forth in said financial statements nor is Seller aware of any
state of facts which (without notice or the lapse of time) would or could
result in any such material adverse change. The Seller has, on the date of
the statements delivered pursuant to this Section (the "Statement Date") no
liabilities, direct or indirect, fixed or contingent, matured or unmatured,
known or unknown, or liabilities for taxes, long-term leases or unusual
forward or long-term commitments not disclosed by, or reserved against in,
said balance sheet and related statements, and at the present time there
are no material unrealized or anticipated losses from any loans, advances
or other commitments of Seller except as heretofore disclosed to Buyer in
writing.
(6) Event of Default. There exists no Event of Default under Section
15(b) hereof, which default gives rise to a right to accelerate
indebtedness as referenced in
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Section 15(b) hereof, under any mortgage, borrowing agreement or other
instrument or agreement pertaining to indebtedness for borrowed money or to
the repurchase of mortgage loans or securities.
(7) Solvency. Seller is solvent and will not be rendered insolvent by
any Transaction and, after giving effect to such Transaction, will not be
left with an unreasonably small amount of capital with which to engage in
its business. Seller does not intend to incur, nor believes that it has
incurred, debts beyond its ability to pay such debts as they mature and is
not contemplating the commencement of insolvency, bankruptcy, liquidation
or consolidation proceedings or the appointment of a receiver, liquidator,
conservator, trustee or similar official in respect of such entity or any
of its assets. The amount of consideration being received by Seller upon
the sale of the Purchased Mortgage Loans to Buyer constitutes reasonably
equivalent value and fair consideration for such Purchased Mortgage Loans.
Seller is not transferring any Purchased Mortgage Loans with any intent to
hinder, delay or defraud any of its creditors.
(8) No Conflicts. The execution, delivery and performance by Seller
of this Agreement, any Transaction Request or Purchase Confirmation
hereunder and the Program Agreements do not conflict with any term or
provision of the certificate of incorporation or by-laws of Seller or any
law, rule, regulation, order, judgment, writ, injunction or decree
applicable to Seller of any court, regulatory body, administrative agency
or governmental body having jurisdiction over Seller, which conflict would
have a Material Adverse Effect and will not result in any violation of any
such mortgage, instrument, agreement or repurchase agreement.
(9) True and Complete Disclosure. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, any Material
Affiliate thereof or any of their officers furnished or to be furnished to
Buyer in connection with the initial or any ongoing due diligence of
Seller, or any Material Affiliate or officer thereof, negotiation,
preparation, or delivery of the Program Agreements are true and complete
and do not omit to disclose any material facts necessary to make the
statements herein or therein, in light of the circumstances in which they
are made, not misleading. All financial statements have been prepared in
accordance with GAAP.
(10) Approvals. No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or
court is required under applicable law in connection with the execution,
delivery and performance by Seller of this Agreement, any Transaction
Request, Purchase Confirmation and the Program Agreements.
(11) Litigation. There is no action, proceeding or investigation
pending with respect to which Seller has received service of process or, to
the best of Seller's knowledge threatened against it before any court,
administrative agency or other tribunal (A) asserting the invalidity of
this Agreement, any Transaction, Transaction Request, Purchase Confirmation
or any Program Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, any
-28-
Transaction Request, Purchase Confirmation or any Program Agreement, (C)
makes a claim or claims in an aggregate amount greater than $1,000,000, (D)
which requires filing with the Securities and Exchange Commission in
accordance with the 1934 Act or any rules thereunder or (E) which might
materially and adversely affect the validity of the Mortgage Loans or the
performance by it of its obligations under, or the validity or
enforceability of, this Agreement, any Transaction Request, Purchase
Confirmation or any Program Agreement.
(12) Material Adverse Change. There has been no material adverse
change in the business, operations, financial conditions, properties or
prospects of Seller or its Material Affiliates since the date set forth in
the most recent financial statements supplied to Buyer.
(13) Ownership. Upon payment of the Purchase Price and the filing of
the financing statement and delivery of the Mortgage Files to the Custodian
and the Custodian's receipt of the related Request for Certification, Buyer
shall become the sole owner of the Purchased Mortgage Loans and related
Repurchase Assets, free and clear of all liens and encumbrances subject to
Seller's right to repurchase such Mortgage Loans hereunder.
(14) Underwriting Guidelines. The Underwriting Guidelines provided to
Buyer are the true and correct Underwriting Guidelines of Seller.
(15) Taxes. Seller and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns that are required to be
filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by any of them, except for any such
taxes as are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves have been provided. The charges, accruals and reserves on the
books of Seller, and its Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of Seller, adequate.
(16) Investment Company. Neither Seller nor any of its Subsidiaries is
an "investment company", or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(17) Chief Executive Office; Jurisdiction of Organization. During the
four months immediately preceding July 1, 2001 and on the Effective Date,
Seller's chief executive office, is, and has been, located at ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. On the Effective Date,
Seller's jurisdiction of organization is Delaware. Seller shall provide
Buyer with thirty days advance notice of any change in Seller's principal
office or place of business or jurisdiction. Seller has no trade name.
During the preceding five years, Seller has not been known by or done
business under any other name, corporate or fictitious, and has not filed
or had filed against it any bankruptcy receivership or similar petitions
nor has it made any assignments for the benefit of creditors.
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(18) Location of Books and Records. The location where Seller keeps its
books and records, including all computer tapes and records relating to the
Purchased Mortgage Loans and the related Repurchase Assets is its chief
executive office.
(19) Adjusted Tangible Net Worth. On the Effective Date, Seller's Adjusted
Tangible Net Worth is greater than $9 million; provided that, during the
Increased Maximum Aggregate Purchase Price Period, Seller shall maintain an
Adjusted Tangible Net Worth greater than $10.5 million.
(20) ERISA. Each Plan to which Seller or its Subsidiaries make direct
contributions, and, to the knowledge of Seller, each other Plan and each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law.
(21) Adverse Selection. Seller has not selected the Purchased Mortgage
Loans in a manner so as to adversely affect Buyer's interests.
(22) Agreements. Neither Seller nor any Subsidiary of Seller is a party to
any agreement, instrument, or indenture or subject to any restriction materially
and adversely affecting its business, operations, assets or financial condition,
except as disclosed in the financial statements described in Section 13(a)(5)
hereof. Neither Seller nor any Subsidiary of Seller is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement, instrument, or indenture which default
would reasonably be expected to have a material adverse effect on the business,
operations, properties, or financial condition of Seller as a whole. No holder
of any indebtedness of Seller or of any of its Subsidiaries has given notice of
any asserted default thereunder.
(23) Other Indebtedness. All Indebtedness (other than Indebtedness
evidenced by this Agreement) of Seller existing on the date hereof is listed on
Exhibit J hereto (the "Existing Indebtedness").
(24) Agency Approvals. With respect to each Agency Security and to the
extent necessary, Seller is an FHA Approved Mortgagee and a VA Approved Lender.
Seller is also approved by ▇▇▇▇▇▇ ▇▇▇ as an approved lender and ▇▇▇▇▇▇▇ Mac as
an approved seller/servicer, and, to the extent necessary, approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and 211 of
the National Housing Act. In each such case, Seller is in good standing, with no
event having occurred or Seller having any reason whatsoever to believe or
suspect will occur prior to the issuance of the Agency Security or the
consummation of the Take-out Commitment, as the case may be, including, without
limitation, a change in insurance coverage which would either make Seller unable
to comply with the eligibility requirements for maintaining all such applicable
approvals or require notification to the relevant Agency or to the Department of
Housing and Urban Development, FHA or VA. Should Seller for any reason cease to
possess all such applicable approvals, or should notification to the relevant
Agency or to the Department of Housing and Urban Development, FHA or VA
-30-
be required, Seller shall so notify Buyer immediately in writing. Seller
has adequate financial standing, servicing facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans
of the same types as may from time to time constitute Mortgage Loans and in
accordance with Accepted Servicing Practices.
b. With respect to every Purchased Mortgage Loan, Seller represents
and warrants to Buyer as of the applicable Purchase Date for any Transaction and
each date thereafter that each representation and warranty set forth on Schedule
1 is true and correct.
c. The representations and warranties set forth in this Agreement
shall survive transfer of the Purchased Mortgage Loans to Buyer and shall
continue for so long as the Purchased Mortgage Loans are subject to this
Agreement. Upon discovery by Seller, Servicer or Buyer of any breach of any of
the representations or warranties set forth in this Agreement, the party
discovering such breach shall promptly give notice of such discovery to the
others. Buyer has the right to require, in its unreviewable discretion, Seller
to repurchase within 1 Business Day after receipt of notice from Buyer any
Purchased Mortgage Loan (i) for which a breach of one or more of the
representations and warranties referenced in Section 13(b) exists and which
breach has a material adverse effect on the value of such Mortgage Loan or the
interests of Buyer or (ii) which is determined by Buyer, in its good faith
discretion, to be unacceptable for inclusion in a securitization.
14. Covenants
Seller covenants with Buyer that, during the term of this facility:
a. Adjusted Tangible Net Worth. For each quarter commencing after
December 31, 2000, Seller shall maintain an Adjusted Tangible Net Worth greater
than $9 million.
b. Indebtedness to Adjusted Tangible Net Worth Ratio. For each quarter
commencing after December 31, 2000, Seller's ratio of Indebtedness to Adjusted
Tangible Net Worth shall not exceed 10:1.
c. Litigation. Seller will promptly, and in any event within ten (10)
days after service of process on any of the following, give to Buyer notice of
all litigation, actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are threatened or pending) or other legal
or arbitrable proceedings affecting Seller or any of its Subsidiaries or
affecting any of the Property of any of them before any Governmental Authority
that (i) questions or challenges the validity or enforceability of any of the
Program Agreements or any action to be taken in connection with the transactions
contemplated hereby, (ii) makes a claim or claims in an aggregate amount greater
than $1,000,000, (iii) which, individually or in the aggregate, if adversely
determined, would be reasonably likely to have a Material Adverse Effect, or
(iv) requires filing with the Office of the Comptroller of the Currency in
accordance its regulations.
d. Prohibition of Fundamental Changes. Seller shall not enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation, winding up or dissolution) or sell
all or substantially all of its assets;
-31-
provided, that Seller may merge or consolidate with (a) any wholly owned
subsidiary of Seller, or (b) any other Person if Seller is the surviving
corporation; and provided further, that if after giving effect thereto, no
Default would exist hereunder.
e. Servicer; Asset Tape. Upon the occurrence of any of the following
(a) the occurrence and continuation of an Event of Default, (b) upon any
Purchased Mortgage Loan becoming an Aged Loan, (c) the fifth Business Day of
each month, or (d) upon the request of Buyer, Seller shall cause Servicer to
provide to Buyer, electronically, in a format mutually acceptable to Buyer and
Seller, an Asset Tape by no later than the Reporting Date. Seller shall not
cause the Mortgage Loans to be serviced by any servicer other than a servicer
expressly approved in writing by Buyer, which approval shall be deemed granted
by Buyer with respect to Seller with the execution of this Agreement.
f. Insurance. Seller or any of Seller's Affiliates will continue to
maintain, for Seller and its subsidiaries, insurance coverage with respect to
employee dishonesty, forgery or alteration, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to ▇▇▇▇▇▇ ▇▇▇
and ▇▇▇▇▇▇▇ Mac.
g. No Adverse Claims. Seller warrants and will defend, and shall cause
any Servicer to defend, the right, title and interest of Buyer in and to all
Purchased Mortgage Loans and the related Repurchase Assets against all adverse
claims and demands.
h. Assignment. Except as permitted herein, neither Seller nor any
Servicer shall sell, assign, transfer or otherwise dispose of, or grant any
option with respect to, or pledge, hypothecate or grant a security interest in
or lien on or otherwise encumber (except pursuant to the Program Agreements),
any of the Purchased Mortgage Loans or any interest therein, provided that this
Section shall not prevent any transfer of Purchased Mortgage Loans in accordance
with the Program Agreements.
i. Security Interest. Seller shall do all things necessary to preserve
the Purchased Mortgage Loans and the related Repurchase Assets so that they
remain subject to a first priority perfected security interest hereunder.
Without limiting the foregoing, Seller will comply with all rules, regulations
and other laws of any Governmental Authority and cause the Purchased Mortgage
Loans or the related Repurchase Assets to comply with all applicable rules,
regulations and other laws. Seller will not allow any default for which Seller
is responsible to occur under any Purchased Mortgage Loans or the related
Repurchase Assets or any Program Agreement and Seller shall fully perform or
cause to be performed when due all of its obligations under any Purchased
Mortgage Loans or the related Repurchase Assets and any Program Agreement.
j. Records.
(1) Seller shall collect and maintain or cause to be collected and
maintained all Records relating to the Purchased Mortgage Loans in
accordance with industry custom and practice for assets similar to the
Purchased Mortgage Loans, including those maintained pursuant to the
preceding subparagraph, and all such Records shall be in
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Custodian's possession unless Buyer otherwise approves. Seller will not
allow any such papers, records or files that are an original or an only
copy to leave Custodian's possession, except for individual items removed
in connection with servicing a specific Mortgage Loan, in which event
Seller will obtain or cause to be obtained a receipt from a financially
responsible person for any such paper, record or file. Seller or the
Servicer of the Purchased Mortgage Loans will maintain all such Records not
in the possession of Custodian in good and complete condition in accordance
with industry practices for assets similar to the Purchased Mortgage Loans
and preserve them against loss.
(2) For so long as Buyer has an interest in or lien on any Purchased
Mortgage Loan, Seller will hold or cause to be held all related Records in
trust for Buyer. Seller shall notify, or cause to be notified, every other
party holding any such Records of the interests and liens in favor of Buyer
granted hereby.
(3) Upon reasonable advance notice from Custodian or Buyer, Seller
shall (x) make any and all such Records available to Custodian or Buyer to
examine any such Records, either by its own officers or employees, or by
agents or contractors, or both, and make copies of all or any portion
thereof, and (y) permit Buyer or its authorized agents to discuss the
affairs, finances and accounts of Seller with its chief operating officer
and chief financial officer and to discuss the affairs, finances and
accounts of Seller with its independent certified public accountants.
k. Books. Seller shall keep or cause to be kept in reasonable detail
books and records of account of its assets and business and shall clearly
reflect therein the transfer of Purchased Mortgage Loans to Buyer.
l. Approvals. Seller shall maintain all licenses, permits or other
approvals necessary for Seller to conduct its business and to perform its
obligations under the Program Agreements, and Seller shall conduct its business
strictly in accordance with applicable law.
m. Material Change in Business. Seller shall not make any material
change in the nature of its business as carried on at the date hereof.
n. Underwriting Guidelines. Without the prior written consent of
Buyer, Seller shall not amend or otherwise modify the Underwriting Guidelines.
Without limiting the foregoing, in the event that Seller or any Agency or
Takeout Investor makes any amendment or modification to the Underwriting
Guidelines, Seller shall promptly deliver to Buyer a complete copy of the
amended or modified Underwriting Guidelines.
o. Distributions. If an Event of Default has occurred and is
continuing, Seller shall not pay any dividends with respect to any capital stock
or other equity interests in such entity, whether now or hereafter outstanding,
or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of Seller.
p. Applicable Law. Seller shall comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority.
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q. Existence. Seller shall preserve and maintain its legal existence
and all of its material rights, privileges, licenses and franchises.
r. Chief Executive Office; Jurisdiction of Organization. Seller shall
not move its chief executive office from the address referred to in Section
13(a)(17) or change its jurisdiction of organization from the jurisdiction
referred to in Section 13(a)(17) unless it shall have provided Buyer 30 days'
prior written notice of such change.
s. Taxes. Seller shall pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained.
t. Transactions with Affiliates. Seller will not enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise not prohibited under the Program Agreements,
(b) in the ordinary course of Seller's business and (c) upon fair and reasonable
terms no less favorable to Seller than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate.
u. Guarantees. Seller shall not create, incur, assume or suffer to
exist any Guarantees, except (i) to the extent reflected in Seller's financial
statements or notes thereto and (ii) to the extent the aggregate Guarantees of
Seller do not exceed $2 million.
v. Indebtedness. Seller shall not incur any additional material
Indebtedness (other than (i) the Existing Indebtedness in amounts not to exceed
the amounts specified on Exhibit J hereto and (ii) usual and customary accounts
payable for a mortgage company) without the prior written consent of Buyer.
w. Hedging. Seller has entered into Interest Rate Protection
Agreements with respect to the Alt A Mortgage Loans, Jumbo Mortgage Loans and
Conforming Mortgage Loans, having terms with respect to protection against
fluctuations in interest rates acceptable to Buyer in its sole discretion.
x. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of Seller any Affiliate thereof
or any of their officers furnished to Buyer hereunder and during Buyer's
diligence of Seller, taken as a whole, are and will be true and complete and do
not omit to disclose any material facts necessary to make the statements herein
or therein, in light of the circumstances in which they are made, not
misleading. All required financial statements, information and reports delivered
by Seller to Buyer pursuant to this Agreement shall be prepared in accordance
with U.S. GAAP, or, if applicable, to SEC filings, the appropriate SEC
accounting regulations.
y. Agency Approvals; Servicing. Seller shall maintain its status with
▇▇▇▇▇▇ ▇▇▇ as an approved lender and ▇▇▇▇▇▇▇ Mac as an approved seller/servicer,
in each case in good standing. Seller shall service all Purchased Mortgage Loans
which are Committed Mortgage Loans in accordance with the applicable agency
guide. Should Seller, for any reason, cease to
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possess all such applicable Agency Approvals, or should notification to the
relevant Agency or to the Department of Housing and Urban Development, FHA or VA
be required, such Seller shall so notify Buyer immediately in writing.
Notwithstanding the preceding sentence, Seller shall take all necessary action
to maintain all of their applicable Agency Approvals at all times during the
term of this Agreement and each outstanding Transaction. Seller has adequate
financial standing, servicing facilities, procedures and experienced personnel
necessary for the sound servicing of mortgage loans of the same types as may
from time to time constitute Mortgage Loans and in accordance with Accepted
Servicing Practices.
z. Take-out Payments. With respect to each Committed Mortgage Loan,
Seller shall arrange that all payments under the related Take-out Commitment
shall be paid directly to Buyer at the account set forth in Section 9 hereof, or
to an account approved by Buyer in writing prior to such payment. With respect
to any Agency Take-out Commitment, if applicable, (1) with respect to the wire
transfer instructions as set forth in ▇▇▇▇▇▇▇ Mac Form 987 (Wire Transfer
Authorization for a Cash Warehouse Delivery) such wire transfer instructions are
identical to Buyer's wire instructions or Buyer has approved such wire transfer
instructions in writing in its sole discretion, or (2) the Payee Number set
forth on ▇▇▇▇▇▇ Mae Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity
Mortgage Loan Schedule) or ▇▇▇▇▇▇ ▇▇▇ Form 1069 (Adjustable-Rate Mortgage Loan
Schedule), as applicable, is identical to the Payee Number that has been
identified by Buyer in writing as Buyer's Payee Number or Buyer has previously
approved the related Payee Number in writing in its sole discretion; with
respect to any Take-out Commitment with an Agency, the applicable agency
documents list Buyer as sole subscriber, unless otherwise agreed to in writing
by Buyer, in Buyer's sole discretion.
aa. No Pledge. Seller shall not pledge, transfer or convey any
security interest in the Collection Account to any Person without the express
written consent of Buyer.
bb. No Investment in Standard Pacific Corp. The Seller shall not (A)
make or maintain any investments in the form of advances or notes receivable, or
(B) make or maintain any other investments outstanding, in either case, in
Standard Pacific Corp. at any time (i) during the Increased Aggregate Maximum
Purchase Price Period or (ii) following a downgrade of Standard Pacific Corp.'s
corporate bond rating either below "BB" by S&P or below "Ba2" by ▇▇▇▇▇'▇.
15. Events of Default
Each of the following shall constitute an "Event of Default"
hereunder:
a. Payment Failure. Failure of Seller to (i) make any payment of
Price Differential or Repurchase Price or any other sum which has become due, on
a Price Differential Payment Date or a Repurchase Date or otherwise, whether by
acceleration or otherwise, under the terms of this Agreement, any other
warehouse and security agreement or any other document evidencing or securing
indebtedness of Seller to Buyer or to any affiliate of Buyer, or (ii) cure any
Margin Deficit when due pursuant to Section 6 hereof.
b. Cross Default. Any of Seller or any of Seller's Material
Affiliates shall be in default under (i) any Indebtedness of Seller or any of
Seller's Material Affiliates which has, in
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any one instance, or in the aggregate, an outstanding principal balance (or
equivalent) in excess of $3,000,000, which default or defaults (1) involves the
failure to pay a matured obligation, or (2) permits the acceleration of the
maturity of obligations by any other party to or beneficiary with respect to
such Indebtedness, or (ii) any other contract to which Seller or any of Seller's
Material Affiliates is a party which has, in any one instance, or in the
aggregate, an outstanding principal balance (or equivalent) in excess of
$3,000,000, which default (1) involves the failure to pay a matured obligation,
or (2) permits the acceleration of the maturity of obligations by any other
party to or beneficiary of such contract.
c. Assignment. Assignment or attempted assignment by Seller of this
Agreement or any rights hereunder without first obtaining the specific written
consent of Buyer, or the granting by Seller of any security interest, lien or
other encumbrances on any Purchased Mortgage Loans to any person other than
Buyer.
d. Insolvency. An Act of Insolvency shall have occurred with respect
to Seller or any of Seller's Material Affiliates.
e. Material Adverse Change. Any material adverse change in the
Property, business, financial condition or operations of Seller or any of
Seller's Material Affiliates shall occur, in each case as determined by Buyer in
its sole good faith discretion, or any other condition shall exist which, in
Buyer's sole good faith discretion, constitutes a material impairment of
Seller's ability to perform its obligations under this Agreement or any other
Program Agreement.
f. Breach of Financial Representation or Covenant or Obligation. A
breach by Seller of any of the representations, warranties or covenants or
obligations set forth in Sections 13(a)(1), 13(a)(7), 13(a)(12), 13(a)(19),
13(a)(23), ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇ of this Agreement.
g. Breach of Non-Financial Representation or Covenant. A breach by
Seller of any other material representation, warranty or covenant set forth in
this Agreement (and not otherwise specified in Section 15(f) above) breach is
not cured within seven (7) Business Days (other than the representations and
warranties set forth in Schedule 1, which shall be considered solely for the
purpose of determining the Market Value and the obligation to repurchase such
Mortgage Loan unless (i) Seller shall have made any such representations and
warranties with knowledge that they were materially false or misleading at the
time made, (ii) any such representations and warranties have been determined by
Buyer in its sole discretion to be materially false or misleading on a regular
basis, or (iii) Buyer, in its sole discretion, determines that such breach of a
material representation, warranty or covenant materially and adversely affects
(A) the condition (financial or otherwise) of Seller or any of Seller's Material
Affiliates, or (B) Buyer's determination to enter into this Agreement or
Transactions with Seller, then such breach shall constitute an immediate Event
of Default and Seller shall have no cure right hereunder.
h. Change of Control. The occurrence of a Change in Control.
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i. Failure to Transfer. Seller fails to transfer the Purchased
Mortgage Loans to Buyer on the applicable Purchase Date (provided Buyer has
tendered the related Purchase Price).
j. Judgment. A final judgment or judgments for the payment of money in
excess of $1,000,000 in the aggregate shall be rendered against the Seller or
any of Seller's Material Affiliates by one or more courts, administrative
tribunals or other bodies having jurisdiction and the same shall not be
satisfied, discharged (or provision shall not be made for such discharge) or
bonded, or a stay of execution thereof shall not be procured, within 30 days
from the date of entry thereof.
k. Government Action. Any Governmental Authority or any person, agency
or entity acting or purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate, or to assume custody or
control of, all or any substantial part of the Property of Seller or any of
Seller's Material Affiliates, or shall have taken any action to displace the
management of Seller or any of Seller's Material Affiliates or to curtail its
authority in the conduct of the business of Seller or any of Seller's Material
Affiliates, or takes any action in the nature of enforcement to remove, limit or
restrict the approval of Seller or any of Seller's Material Affiliates as an
issuer, buyer or a seller/servicer of Loans or securities backed thereby, and
such action provided for in this subparagraph (k) shall not have been
discontinued or stayed within 30 days.
l. Inability to Perform. An officer of Seller shall admit its
inability to, or its intention not to, perform any of Seller's Obligations
hereunder.
m. Security Interest. This Agreement shall for any reason cease to
create a valid, first priority security interest in any material portion of the
Purchased Mortgage Loans purported to be covered hereby.
n. Financial Statements. Seller's audited annual financial statements
or the notes thereto or other opinions or conclusions stated therein shall be
qualified or limited by reference to the status of Seller as a "going concern"
or a reference of similar import.
An Event of Default shall be deemed to be continuing unless expressly
waived by Buyer in writing.
16. Remedies Upon Default
In the event that an Event of Default shall have occurred and while it
is continuing:
a. Buyer may, at its option (which option shall be deemed to have been
exercised immediately upon the occurrence of an Act of Insolvency), declare an
Event of Default to have occurred hereunder and, upon the exercise or deemed
exercise of such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to occur (except
that, in the event that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise, such Transaction
shall be deemed immediately canceled). Buyer shall (except upon the occurrence
of an Act of Insolvency) give notice to Seller of the exercise of such option as
promptly as practicable.
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b. If Buyer exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Section, (i) Seller's obligations in
such Transactions to repurchase all Purchased Mortgage Loans, at the Repurchase
Price therefor on the Repurchase Date determined in accordance with subparagraph
(a) of this Section, shall thereupon become immediately due and payable, (ii)
all Income paid after such exercise or deemed exercise shall be retained by
Buyer and applied, in Buyer's sole discretion, to the aggregate unpaid
Repurchase Prices for all outstanding Transactions and any other amounts owing
by Seller hereunder, and (iii) unless Seller satisfies all of its Obligations
hereunder, Seller shall immediately deliver to Buyer the Mortgage Files relating
to any Purchased Mortgage Loans subject to such Transactions then in Seller's
possession or control.
c. Buyer also shall have the right to obtain physical possession, and
to commence an action to obtain physical possession, of all Records and files of
Seller relating to the Purchased Mortgage Loans and all documents relating to
the Purchased Mortgage Loans (including, without limitation, any legal, credit
or servicing files with respect to the Purchased Mortgage Loans) which are then
or may thereafter come in to the possession of Seller or any third party acting
for Seller. To obtain physical possession of any Purchased Mortgage Loans held
by Custodian, Buyer shall present to Custodian a Trust Receipt and
Certification. Buyer shall be entitled to specific performance of all agreements
of Seller contained in this Agreement.
d. Buyer shall have the right to direct all servicers then servicing
any Purchased Mortgage Loans to remit all collections thereon to Buyer, and if
any such payments are received by Seller, Seller shall not commingle the amounts
received with other funds of Seller and shall promptly pay them over to Buyer.
Buyer shall also have the right to terminate any one or all of the servicers
then servicing any Purchased Mortgage Loans with or without cause. In addition,
Buyer shall have the right to immediately sell the Purchased Mortgage Loans.
Such disposition of Purchased Mortgage Loans may be, at Buyer's option, on
either a servicing-released or a servicing-retained basis. Buyer shall be
entitled to place the Purchased Mortgage Loans in a pool for issuance of
mortgage-backed securities at the then-prevailing price for such securities and
to sell such securities for such prevailing price in the open market. Buyer
shall also be entitled to sell any or all of such Mortgage Loans individually
for the prevailing price.
e. Upon the occurrence and during the continuation of one or more
Events of Default, Buyer may apply any proceeds from the liquidation of the
Purchased Mortgage Loans to the Repurchase Prices hereunder and all other
Obligations in the manner Buyer deems appropriate in its sole discretion.
f. Seller shall be liable to Buyer for (i) the amount of all
reasonable legal or other expenses (including, without limitation, all costs and
expenses of Buyer in connection with the enforcement of this Agreement or any
other agreement evidencing a Transaction, whether in action, suit or litigation
or bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally, further including, without limitation, the reasonable fees and
expenses of counsel (including the costs of internal counsel of Buyer) incurred
in connection with or as a result of an Event of Default, (ii) damages in an
amount equal to the cost (including all fees, expenses and commissions) of
entering into replacement transactions and entering into or terminating hedge
transactions in connection with or as a result of an Event of Default, and
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(iii) any other loss, damage, cost or expense directly arising or resulting from
the occurrence of an Event of Default in respect of a Transaction.
g. To the extent permitted by applicable law, Seller shall be liable
to Buyer for interest on any amounts owing by Seller hereunder, from the date
Seller becomes liable for such amounts hereunder until such amounts are (i) paid
in full by Seller or (ii) satisfied in full by the exercise of Buyer's rights
hereunder. Interest on any sum payable by Seller under this Section 16(g) shall
be at a rate equal to the Post-Default Rate.
h. Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable law.
i. Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except to the extent
provided in subsections (a) and (d) of this Section, at any time thereafter
while such Event of Default is continuing without notice to Seller. All rights
and remedies arising under this Agreement as amended from time to time hereunder
are cumulative and not exclusive of any other rights or remedies which Buyer may
have.
j. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives any defenses
Seller might otherwise have to require Buyer to enforce its rights by judicial
process. Seller also waives any defense (other than a defense of payment or
performance) Seller might otherwise have arising from the use of nonjudicial
process, enforcement and sale of all or any portion of the Purchased Mortgage
Loans, or from any other election of remedies. Seller recognizes that
nonjudicial remedies are consistent with the usages of the trade, are responsive
to commercial necessity and are the result of a bargain at arm's length.
k. Buyer shall have the right to perform reasonable due diligence with
respect to Seller and the Mortgage Loans, which review shall be at the expense
of Seller.
17. Reports
a. Notices. Seller shall furnish to Buyer (x) promptly, copies of any
material and adverse notices (including, without limitation, notices of
defaults, breaches, potential defaults or potential breaches) and any material
financial information that is not otherwise required to be provided by Seller
hereunder which is given to Seller's lenders, (y) immediately, notice of the
occurrence of any Event of Default hereunder or default or breach by Seller or
Servicer of any obligation under any Program Agreement or any material contract
or agreement of Seller or Servicer or the occurrence of any event or
circumstance that Seller reasonably expects has resulted in, or will, with the
passage of time, result in, a Material Adverse Effect or an Event of Default or
such a default or breach by such party and (z) the following:
(1) as soon as available and in any event within forty-five (45)
calendar days after the end of each calendar quarter, the unaudited
consolidated and consolidating balance sheets of Seller and its
consolidated Subsidiaries as at the end of such period and the related
unaudited consolidated and consolidating statements of income and retained
earnings and of cash flows for the Seller and its consolidated Subsidiaries
for such period
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and the portion of the fiscal year through the end of such period,
accompanied by a certificate of a Responsible Officer of Seller, which
certificate shall state that said consolidated and consolidating
financial statements fairly present in all material respects the
consolidated financial condition and results of operations of Seller
and its consolidated Subsidiaries in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end adjustments);
(2) as soon as available and in any event within ninety (90)
days after the end of each fiscal year of Seller, the consolidated and
consolidating balance sheets of Seller and its consolidated
Subsidiaries as at the end of such fiscal year and the related
consolidated and consolidating statements of income and retained
earnings and of cash flows for the Seller and its consolidated
Subsidiaries for such year, setting forth in each case in comparative
form the figures for the previous year, accompanied by an opinion
thereon of independent certified public accountants of recognized
national standing, which opinion shall be acceptable to Buyer in its
sole good faith discretion, shall have no "going concern" or scope of
audit qualification and shall state that said consolidated and
consolidating financial statements fairly present the consolidated
financial condition and results of operations of Seller and its
respective consolidated Subsidiaries as at the end of, and for, such
fiscal year in accordance with GAAP;
(3) such other prepared statements that Buyer may reasonably
request;
(4) if applicable, copies of any 10-Ks, 10-Qs, registration
statements and other "corporate finance" SEC filings (other than 8-Ks)
by Seller or an Affiliate, within 5 Business Days of their filing with
the SEC;
(5) from time to time such other information regarding the
financial condition, operations, or business of the Seller as Buyer may
reasonably request;
(6) as soon as reasonably possible, and in any event within
thirty (30) days after a Responsible Officer of the Seller has
knowledge of the occurrence of any Event of Termination, stating the
particulars of such Event of Termination in reasonable detail;
(7) As soon as reasonably possible, notice of any of the
following events:
(a) change in the insurance coverage required of Seller,
Servicer or any other Person pursuant to any Program Agreement,
with a copy of evidence of same attached;
(b) any material dispute, litigation, investigation,
proceeding or suspension between Seller or Servicer, on the one
hand, and any Governmental Authority or any Person;
(c) any material change in accounting policies or
financial reporting practices of Seller or Servicer;
(d) with respect to any Purchased Mortgage Loan,
immediately upon receipt of notice or knowledge thereof, that
the underlying Secured Property has
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been damaged by waste, fire, earthquake or earth movement, windstorm,
flood, tornado or other casualty, or otherwise damaged so as to affect
adversely the value of such Mortgaged Loan;
(e) any material issues raised upon examination of Seller or
Seller's facilities by any Governmental Authority;
(f) promptly upon receipt of notice or knowledge of (i) any
default related to any Repurchase Asset, (ii) any lien or security
interest (other than security interests created hereby or by the other
Program Agreements) on, or claim asserted against, any of the Purchased
Mortgage Loans; and
(g) any other event, circumstance or condition that has
resulted, or has a possibility of resulting, in a Material Adverse
Effect with respect to Seller or Servicer.
b. Officer's Certificates.
(1) Seller will furnish to Buyer, at the time the Seller furnishes each
set of financial statements pursuant to Section 17(a)(1) or (2) above, a
certificate of a Responsible Officer of Seller in the form of Exhibit D
hereto.
c. Mortgage Loan Reports. Seller will furnish to Buyer monthly
electronic Mortgage Loan performance data, including, without limitation,
delinquency reports (i.e., delinquency, foreclosure and net charge-off reports).
d. Asset Tape. Seller shall provide to Buyer, electronically, in a
format mutually acceptable to Buyer and Seller, an Asset Tape by no later than
the Reporting Date.
e. Other. Seller shall deliver to Buyer any other reports or
information reasonably requested by Buyer or as otherwise required pursuant to
this Agreement.
18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions with
the Purchased Mortgage Loans or otherwise pledge, hypothecate, assign, transfer
or otherwise convey the Purchased Mortgage Loans with a counterparty of Buyer's
choice. Unless an Event of Default shall have occurred, no such transaction
shall relieve Buyer of its obligations to transfer Purchased Mortgage Loans to
Seller pursuant to Section 4 or 6 hereof, or of Buyer's obligation to credit or
pay Income to, or apply Income to the obligations of, Seller pursuant to Section
7 hereof. In the event Buyer engages in a repurchase transaction with any of the
Purchased Mortgage Loans or otherwise pledges or hypothecates any of the
Purchased Mortgage Loans, Buyer shall have the right to assign to Buyer's
counterparty any of the applicable representations or warranties herein and the
remedies for breach thereof, as they relate to the Purchased Mortgage Loans that
are subject to such repurchase transaction.
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19. Single Agreement
Buyer and Seller acknowledge that, and have entered hereunto, and
will enter into each Transaction hereunder, in consideration of and in reliance
upon the fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respec t
of all Transactions hereunder, (ii) that each of them shall be entitled to
set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of them
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or
Purchase Confirmations, which shall be delivered via facsimile only),
statements, demands or other communications hereunder may be given by a party to
the other by mail, facsimile, messenger or otherwise to the address specified
below, or so sent to such party at any other place specified in a notice of
change of address hereafter received by the other. All notices, demands and
requests hereunder may be made orally, to be confirmed promptly in writing, or
by other communication as specified in the preceding sentence.
If to Seller:
Family Lending Services, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Standard Pacific Corp.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
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If to Buyer:
For Transaction Requests and Purchase Confirmations:
Credit Suisse First Boston Mortgage Capital LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
For all other Notices:
Credit Suisse First Boston Mortgage Capital LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
Credit Suisse First Boston Mortgage Capital LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between
the parties containing general terms and conditions for repurchase transactions.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
22. Non assignability
The Program Agreements are not assignable by Seller. Buyer may from time to time
assign all or a portion of its rights and obligations under this Agreement and
the Program Agreements; provided, however that Buyer shall maintain, for review
by Seller upon written request, a register of assignees and a copy of an
executed assignment and acceptance by Buyer and assignee ("Assignment and
Acceptance"), specifying the percentage or portion of such rights and
obligations assigned. Upon such assignment, (a) such assignee shall be a party
hereto and to each Program Agreement to the extent of the percentage or portion
set forth in the Assignment and Acceptance, and shall succeed to the applicable
rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent
that such rights and obligations have been so assigned by it to
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either (i) an Affiliate of Buyer which assumes the obligations of Buyer or (ii)
to another Person approved by Seller (such approval not to be unreasonably
withheld) which assumes the obligations of Buyer, be released from its
obligations hereunder and under the Program Agreements. Unless otherwise stated
in the Assignment and Acceptance, Seller shall continue to take directions
solely from Buyer unless otherwise notified by Buyer in writing. Buyer may
distribute to any prospective assignee any document or other information
delivered to Buyer by Seller.
23. Set-off
In addition to any rights and remedies of Buyer provided by
law, Buyer shall have the right, without prior notice to Seller, any such notice
being expressly waived by Seller to the extent permitted by applicable law, upon
any amount becoming due and payable by Seller hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by Buyer or any
branch or agency thereof to or for the credit or the account of Seller. Buyer
agrees promptly to notify Seller after any such set-off and application made by
Buyer; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. Seller
acknowledges that the obligations of Buyer hereunder or otherwise are not the
subject of any guaranty by, or recourse to, any direct or indirect parent or
other Affiliate of Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
b. SELLER HEREBY WAIVES TRIAL BY JURY. SELLER HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF
NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION OR
PROCEEDING. SELLER HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO,
EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH
RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either
party shall constitute a waiver of any other Event of Default and no exercise of
any remedy hereunder by
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any party shall constitute a waiver of its right to exercise any other remedy
hereunder. No modification or waiver of any provision of this Agreement and no
consent by any party to a departure herefrom shall be effective unless and until
such shall be in writing and duly executed by both of the parties hereto.
Without limitation on any of the foregoing, the failure to give a notice
pursuant to Section 6(a), 16(a) or otherwise, will not constitute a waiver of
any right to do so at a later date.
26. Intent
a. The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the United
States Code, as amended (except insofar as the type of Purchased Mortgage Loans
subject to such Transaction or the term of such Transaction would render such
definition inapplicable), and a "securities contract" as that term is defined in
Section 741 of Title 11 of the United States Code, as amended (except insofar as
the type of assets subject to such Transaction would render such definition
inapplicable).
b. It is understood that either party's right to liquidate
Purchased Mortgage Loans delivered to it in connection with Transactions
hereunder or to exercise any other remedies pursuant to Section 16 hereof is a
contractual right to liquidate such Transaction as described in Sections 555 and
559 of Title 11 of the United States Code, as amended.
c. The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the Federal Deposit
Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a
"qualified financial contract," as that term is defined in FDIA and any rules,
orders or policy statements thereunder (except insofar as the type of assets
subject to such Transaction would render such definition inapplicable).
d. It is understood that this Agreement constitutes a "netting
contract" as defined in and subject to Title IV of the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA") and each payment entitlement and
payment obligation under any Transaction hereunder shall constitute a "covered
contractual payment entitlement" or "covered contractual payment obligation",
respectively, as defined in and subject to FDICIA (except insofar as one or both
of the parties is not a "financial institution" as that term is defined in
FDICIA).
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a
broker or dealer registered with the SEC under Section 15 of the 1934 Act, the
Securities Investor Protection Corporation has taken the position that the
provisions of the SIPA do not protect the other party with respect to any
Transaction hereunder;
b. in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer registered with
the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to
the other party with respect to any Transaction hereunder; and
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c. in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution pursuant to a
Transaction hereunder are not a deposit and therefore are not insured by the
Federal Deposit Insurance Corporation or the National Credit Union Share
Insurance Fund, as applicable.
28. Power of Attorney
Seller hereby authorizes Buyer to file such financing statement or
statements which Buyer deems appropriate to perfect and continue its ownership
interest in and/or the security interest granted hereby relating to the
Purchased Mortgage Loans, without Seller's signature thereon as Buyer, at its
option, may deem appropriate. Seller hereby appoints Buyer as Seller's agent and
attorney-in-fact to protect, preserve and realize upon the Purchased Mortgage
Loans, including, but not limited to, the right to endorse notes, complete
blanks in documents, transfer servicing, and sign assignments on behalf of
Seller as its agent and attorney-in-fact. This agency and power of attorney is
coupled with an interest and is irrevocable without Buyer's consent.
Notwithstanding the foregoing, the power of attorney hereby granted may be
exercised only during the occurrence and continuance of any Event of Default
hereunder. Seller shall pay the filing costs for any financing statement or
statements prepared pursuant to this Section 28.
29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more
affiliates for the purpose of performing any action hereunder.
30. Indemnification; Obligations
a. Seller agrees to hold Buyer and each of its respective
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") harmless from and indemnify each Indemnified Party (and
will reimburse each Indemnified Party as the same is incurred) against all
liabilities, losses, damages, judgments, costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) of any kind which may be
imposed on, incurred by, or asserted against any Indemnified Party relating to
or arising out of this Agreement, any Transaction Request, Purchase
Confirmation, any Program Agreement or any transaction contemplated hereby or
thereby resulting from anything other than the Indemnified Party's gross
negligence or willful misconduct. Seller also agrees to reimburse each
Indemnified Party for all reasonable out-of-pocket expenses in connection with
the enforcement of this Agreement and the exercise of any right or remedy
provided for herein, any Transaction Request, Purchase Confirmation and any
Program Agreement, including, without limitation, the reasonable fees and
disbursements of counsel. Seller's agreements in this Section 30 shall survive
the payment in full of the Repurchase Price and the expiration or termination of
this Agreement. Seller hereby acknowledges that its obligations hereunder are
recourse obligations of Seller and are not limited to recoveries each
Indemnified Party may have with respect to the Purchased Mortgage Loans. Seller
also agrees not to assert any claim against Buyer or any of its Affiliates, or
any of their respective officers, directors, employees, attorneys and agents, on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the facility established
hereunder, the actual or proposed use of the proceeds of the Transactions, this
Agreement or any of the transactions contemplated thereby.
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THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES,
WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT) OF THE INDEMNIFIED PARTIES.
b. Without limitation to the provisions of Section 4, if any
payment of the Repurchase Price of any Transaction is made by Seller other than
on the then scheduled Repurchase Date thereto as a result of an acceleration of
the Repurchase Date pursuant to Section 16 or for any other reason, Seller
shall, upon demand by Buyer, pay to Buyer an amount sufficient to compensate
Buyer for any losses, costs or expenses that it may reasonably incur as of a
result of such payment.
c. Without limiting the provisions of Section 30(a) hereof, if
Seller fails to pay when due any costs, expenses or other amounts payable by it
under this Agreement, including, without limitation, fees and expenses of
counsel and indemnities, such amount may be paid on behalf of Seller by Buyer,
in its sole discretion.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
32. Confidentiality
This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and Agent and shall
be held by Seller in strict confidence and shall not be disclosed to any third
party without the written consent of Buyer except for (i) disclosure to Seller's
direct and indirect affiliates and Subsidiaries, attorneys or accountants, but
only to the extent such disclosure is necessary and such parties agree to hold
all information in strict confidence, or (ii) disclosure required by law, rule,
regulation or order of a court or other regulatory body.
33. Recording of Communications
Buyer and Seller shall have the right (but not the obligation)
from time to time to make or cause to be made tape recordings of communications
between its employees and those of the other party with respect to Transactions.
Buyer and Seller consent to the admissibility of such tape recordings in any
court, arbitration, or other proceedings. The parties agree that a duly
authenticated transcript of such a tape recording shall be deemed to be a
writing conclusively evidencing the parties' agreement.
34. Facility Fee
Seller shall pay to Buyer in immediately available funds a non-
refundable fee due and owing upon closing and payable in arrears no later than
the Price Differential Payment Date following the end of each calendar quarter,
in the amount set forth in the fee schedule attached hereto as Annex II. Such
payment shall be made in Dollars, in immediately available funds, without
deduction, set-off or counterclaim, to Buyer at such account designated by
Buyer.
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35. Non-Utilization Fee
No later than the Price Differential Payment Date following the end
of each calendar month, Seller shall pay in immediately available funds to Buyer
a non-refundable fee calculated in accordance with the formula set forth in the
schedule attached hereto as Annex III. Such payment shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
Buyer at such account designated by Buyer.
36. Periodic Due Diligence Review
Seller acknowledges that Buyer has the right to perform continuing
due diligence reviews with respect to the Mortgage Loans, for purposes of
verifying compliance with the representations, warranties and specifications
made hereunder, or otherwise, and Seller agrees that upon reasonable (but no
less than one (1) Business Day's) prior notice unless an Event of Default shall
have occurred and is continuing, in which case no notice is required, to Seller,
Buyer or its authorized representatives will be permitted during normal business
hours to examine, inspect, and make copies and extracts of, the Mortgage Files
and any and all documents, records, agreements, instruments or information
relating to such Mortgage Loans in the possession or under the control of Seller
and/or the Custodian. Seller also shall make available to Buyer a knowledgeable
financial or accounting officer for the purpose of answering questions
respecting the Mortgage Files and the Mortgage Loans. Without limiting the
generality of the foregoing, Seller acknowledges that Buyer may purchase
Mortgage Loans from Seller based solely upon the information provided by Seller
to Buyer in the Purchased Assets Schedule and the representations, warranties
and covenants contained herein, and that Buyer, at its option, has the right at
any time to conduct a partial or complete due diligence review on some or all of
the Mortgage Loans purchased in a Transaction, including, without limitation,
ordering Broker's price opinions, new credit reports and new appraisals on the
related Mortgaged Properties and otherwise re-generating the information used to
originate such Mortgage Loan. Buyer may underwrite such Mortgage Loans itself or
engage a mutually agreed upon third party underwriter to perform such
underwriting. Seller agrees to cooperate with Buyer and any third party
underwriter in connection with such underwriting, including, but not limited to,
providing Buyer and any third party underwriter with access to any and all
documents, records, agreements, instruments or information relating to such
Mortgage Loans in the possession, or under the control, of Seller. Seller
further agrees that Seller shall pay all reasonable out-of-pocket costs and
expenses incurred by Buyer in connection with Buyer's activities pursuant to
this Section 36 ("Due Diligence Costs")
[Signature Page Follows]
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Credit Suisse First Boston Mortgage Capital LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
----------------------------------------
Date: October 5, 2001
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Family Lending Services, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: President
----------------------------------------
Date: October 5, 2001
----------------------------------------
AMENDMENT NO. 1
TO MASTER REPURCHASE AGREEMENT
Amendment No. 1, dated as of December 28, 2001, (this "Amendment"),
between CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer") and FAMILY
LENDING SERVICES, INC. (the "Seller").
RECITALS
The Buyer and the Seller are parties to that certain Master Repurchase
Agreement, dated as of October 5, 2001 (the "Existing Repurchase Agreement"; as
amended by this Amendment, the "Repurchase Agreement"). Capitalized terms used
but not otherwise defined herein shall have the meanings given to them in the
Existing Repurchase Agreement.
The Buyer and the Seller have agreed, subject to the terms and
conditions of this Amendment, that the Existing Repurchase Agreement be amended
to reflect certain agreed upon revisions to the terms of the Existing Repurchase
Agreement.
Accordingly, the Buyer and the Seller hereby agree, in consideration
of the mutual premises and mutual obligations set forth herein, that the
Existing Repurchase Agreement is hereby amended as follows:
SECTION 1. Definitions.
(a) Section 2 of the Existing Repurchase Agreement is hereby
temporarily amended by adding the following defined the, which amendment shall
be effective solely during the Additional Increased Maximum Aggregate Purchase
Price Period (as defined below):
""Additional Increased Maximum Aggregate Purchase Price Period" shall
mean the period beginning on the date hereof through and including
January 15, 2002."
(b) Section 2 of the Existing Repurchase Agreement is hereby
temporarily amended by deleting the definition of "Maximum Aggregate Purchase
Price" in its entirety and replacing it with the following language, which
amendment shall be effective solely during the Additional Increased Maximum
Aggregate Purchase Price Period:
""Maximum Aggregate Purchase Price" means NINETY-EIGHT MILLION DOLLARS
($98,000,000)."
SECTION 2. Conditions Precedent. This Amendment shall become effective
as of the date hereof (the "Amendment Effective Date"), subject to the
satisfaction of the following conditions precedent:
2.1 Delivered Documents. On the Amendment Effective Date, the
Buyer shall have received the following documents, each of which shall
be satisfactory to the Buyer in form and substance:
1
(a) this Amendment, executed and delivered by a duly authorized
officer of the Buyer and Seller;
(b) such other documents as the Buyer or counsel to the Buyer may
reasonable request.
SECTION 3 Representations and Warranties. The Seller hereby represents
and warrants to the Buyer that it is in compliance with all the terms
and provisions set forth in the Repurchase Agreement on their part to
be observed or performed, and that no Event of Default has occurred or
is continuing, and hereby confirms and reaffirms the representations
and warranties contained in Section 13 of the Repurchase Agreement.
SECTION 4. Limited Effect. Except as expressly amended and modified by
this Amendment, the Existing Repurchase Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its
terms. The amendments set forth in this Amendment shall expire upon
the expiration of the Additional Increased Maximum Aggregate Purchase
Price Period at which time the definition of Maximum Aggregate
Purchase Price shall revert to that set forth in the Existing
Repurchase Agreement.
SECTION 5. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which
shall be an original and all of which taken together shall constitute
one and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
Buyer: CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC,
as Buyer
By: /s/ ▇▇▇▇▇▇▇ ▇. Detwile
-----------------------------------
▇▇▇▇▇▇▇ ▇. Detwile:
Managing Director
Seller: FAMILY LENDING SERVICES, INC.
as Seller
By: /s/ ▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇▇▇▇▇▇
Vice President
1
EXECUTION VERSION
AMENDMENT NO. 2
TO MASTER REPURCHASE AGREEMENT
Amendment No. 2, dated as of March 1, 2002 (this "Amendment"), between
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer") and FAMILY LENDING
SERVICES, INC. (the "Seller").
RECITALS
The Buyer and the Seller are parties to that certain Master Repurchase
Agreement, dated as of October 5, 2001, as amended by Amendment No. 1. dated as
of December 28, 2001, (the "Existing Master Repurchase Agreement"; as amended by
this Amendment, the "Master Repurchase Agreement"). Capitalized terms used but
not otherwise defined herein shall have the meanings given to them in the
Existing Master Repurchase Agreement.
The Buyer and the Seller have agreed, subject to the terms and
conditions of this Amendment, that the Existing Master Repurchase Agreement be
amended to reflect certain agreed upon revisions to the terms of the Existing
Master Repurchase Agreement.
Accordingly, the Buyer and the Seller hereby agree, in consideration
of the mutual premises and mutual obligations set forth herein, that the
Existing Master Repurchase Agreement is hereby amended as follows:
SECTION 1. Definitions. Section 2 of the Existing Master Repurchase
Agreement is hereby amended as follows:
(a) The definition of "Exception Mortgage Loan" is hereby amended by
adding the following language at the end of the first sentence thereof:
"; provided, however, that Seller shall pay to Buyer a fee of $25 with
respect to any such approval of an Exception Mortgage Loan other than a Wet-Ink
Mortgage Loan and $10 with respect to any such approval of an Exception Mortgage
Loan which is a Wet-Ink Mortgage Loan provided, that upon 30 days' notice to the
Seller, Buyer may change such Exception Mortgage Loan fee."
(b) The definition of "Market Value" is hereby amended by deleting
subclause (xi) and replacing it with the following:
"(xi) when the Purchase Price for such Purchased Mortgage Loan is
added to other Purchased Mortgaged Loans, the aggregate Purchase Price of all
Second Lien Mortgage Loans that are Purchased Mortgage Loans exceeds $6 million"
SECTION 2. Program; Initiation. Section 3 of the Existing Master
Repurchase Agreement is hereby amended by inserting the following language at
the end of subclause (b):
"In the event the Mortgage Loan Schedule provided by Seller contains
erroneous computer data, is not formatted properly or the computer fields are
otherwise improperly aligned, Buyer shall provide written or electronic notice
to Seller describing such error and Seller may either (i) give Buyer written or
electronic authority to correct the computer data, reformat such Mortgage Loan
Schedule or properly align the computer fields or (ii) correct the computer
data, reformat the Mortgage Loan Schedule or properly align the computer fields
itself and resubmit the Mortgage Loan Schedule as required herein. In the event
that Seller gives Buyer authority to correct the computer data, reformat the
Mortgage Loan Schedule or properly align the computer fields, Seller shall pay
$10 per change and any other direct expenses incurred by Buyer; provided, that
upon 30 day's notice to the Seller, Buyer may change such computer correction
fee. Seller shall hold Buyer harmless for such correction, reformatting or
realigning, as applicable, except as otherwise expressly provided herein"
SECTION 3. Covenants. Section 14 of the Existing Master Repurchase
Agreement is hereby amended by:
(a) Deleting subclause (a) and replacing it with the following:
"Adjusted Tangible Net Worth. Seller shall maintain an Adjusted
Tangible Net Worth greater than $6 million."
(b) Deleting subclause (bb) in its entirety and adding the following
subclause (bb):
"(bb) Net Worth. Seller shall maintain a Net Worth greater than $9
million."
SECTION 4. Exhibit M - Custodial and Bank Fee Schedule. Exhibit M to
the Existing Master Repurchase Agreement is hereby amended by adding the
following language thereto:
"Bailee Violation Letter $5 per Mortgage Loan"
SECTION 5. Ratification. In the event that any changes to a Mortgage
Loan Schedule have been made in accordance with Section 2 hereof prior to the
date of this Amendment, the terms hereof shall also govern such changes.
SECTION 6. Limited Effect. Except as expressly amended and modified by
this Amendment, the Existing Master Repurchase Agreement shall continue to be,
and shall remain, in full force and effect in accordance with its terms.
SECTION 7. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
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IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
Buyer: CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC,
as Buyer
By: /s/ ▇▇▇▇▇▇▇ ▇. Detwile
--------------------------------
▇▇▇▇▇▇▇ ▇. Detwile:
Managing Director
Seller: FAMILY LENDING SERVICES, INC.
as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
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AMENDMENT NO. 3
TO MASTER REPURCHASE AGREEMENT
Amendment No. 3, dated as of October 4, 2002 (this "Amendment"), among
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer") and FAMILY LENDING
SERVICES, INC. (the "Seller").
RECITALS
The Buyer and the Seller are parties to that certain Master Repurchase
Agreement, dated as of October 5, 2001, as amended by Amendment No. 1, dated as
of December 28, 2001 and Amendment No. 2, dated as of March 1, 2002 (the
"Existing Master Repurchase Agreement"; as amended by this Amendment, the
"Master Repurchase Agreement"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Existing Master Repurchase
Agreement.
The Buyer and the Seller have agreed, subject to the terms and
conditions of this Amendment, that the Existing Master Repurchase Agreement be
amended to reflect certain agreed upon revisions to the terms of the Existing
Master Repurchase Agreement.
Accordingly, the Buyer and the Seller hereby agree, in consideration
of the mutual premises and mutual obligations set forth herein, that the
Existing Master Repurchase Agreement is hereby amended as follows:
Section 1. Definitions. Section 2 of the Existing Master Repurchase
Agreement is hereby amended as follows:
(a) By inserting the following language at the beginning thereof:
"All capitalized terms used herein but not defined shall have the
meanings set forth in the Custodial Agreement."
(b) The definition of "Adjusted Tangible Net Worth" is hereby amended
by deleting it in its entirety and replacing it with the following:
"Adjusted Tangible Net Worth" means, for any Person, Net Worth of such
Person plus 1% of the outstanding servicing portfolio balance of such Person
plus Subordinated Debt (provided that Subordinated Debt shall not be taken into
account to the extent that it would cause Adjusted Tangible Net Worth to be
comprised of greater than 25% Subordinated Debt), minus all intangible assets,
including capitalized servicing rights, goodwill, patents, tradenames,
trademarks, copyrights, franchises, any organizational expenses, deferred
expenses, receivables from shareholders, Affiliates or employees, and any other
asset as shown as an intangible asset on the balance sheet of the Seller on a
consolidated basis as determined at a particular date in accordance with GAAP."
(c) The definition of "Alt A Mortgage Loan" is hereby amended by
deleting it in its entirety and replacing it with the following:
"Alt A Mortgage Loan" means a Mortgage Loan originated in accordance
with the criteria established in the Underwriting Guidelines submitted by Seller
and approved by Buyer for Alt A Mortgage Loans, and which has a FICO score of at
least 600.
(d) The definition of "Calmco" is hereby deleted in its entirety.
(e) The definition of "Increased Maximum Aggregate Purchase Price
Period" is hereby amended by deleting it in its entirety and replacing it
with the following, which amendment shall be effective solely during the
Increased Maximum Aggregate Purchase Price Period::
"Increased Maximum Aggregate Purchase Price Period" means the period
from and including November 1, 2002 up to but not including February 1, 2003.
(f) The definition of "Maximum Aggregate Purchase Price" is hereby
amended by deleting it in its entirety and replacing it with the following,
which amendment shall be effective solely during the Increased Maximum
Aggregate Purchase Price Period:
"Maximum Aggregate Purchase Price" means the sum of (a) the Standard
Aggregate Purchase Price plus (b) the Increased Aggregate Purchase Price. All
funds made available by Buyer to Seller under this Agreement will first be
attributed to the Standard Aggregate Purchase Price."
(g) The definition of "Post Default Rate" is hereby amended by
deleting it in its entirety and replacing it with the following:
"Post Default Rate" means an annual rate of interest equal to the
greater of (a) the Pricing Rate plus 3% or (b) the Mortgage Interest Rate.
(h) The definition of "Purchase Price Percentage" is hereby amended
by deleting it in its entirety and replacing it with the following, which
amendment shall be effective solely during the Increased Maximum Aggregate
Purchase Price Period::
"Purchase Price Percentage" means
(i) with respect to each Increased Purchase Price Mortgage Loan, 92%;
and
(ii) with respect to each Mortgage Loan (other than Increased Purchase
Price Mortgage Loans), the following percentage, as applicable:
(a) 98% with respect to Purchased Mortgage Loans that are Jumbo
Mortgage Loans (other than Second Lien Mortgage Loans);
(b) 98% with respect to Purchased Mortgage Loans that are Conforming
Mortgage Loans (other than Second Lien Mortgage Loans);
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(c) 97% with respect to Purchased Mortgage Loans that are Alt A
Mortgage Loans (other than Second Lien Mortgage Loans);
(d) 95% with respect to Purchased Mortgage Loans that are Sub-Prime
Mortgage Loans;
(e) 95% with respect to Purchased Mortgage Loans that are Second Lien
Mortgage Loans; or
(f) with respect to Transactions the subject which are Exception
Mortgage Loans, a percentage to be determined by Buyer in its sole
discretion.
(i) The definition of "Servicer" is hereby amended by deleting it in
its entirety and replacing it with the following:
"Servicer" means Seller or Fairbanks, or any other servicer approved
by Buyer in its sole discretion.
(j) The definition of "Termination Date" is hereby amended by
deleting it in its entirety and replacing it with the following:
"Termination Date" means the earlier of (a) April 4, 2003, or (b) the
date of the occurrence of an Event of Default.
(k) By inserting the following definitions in their proper
alphabetical order:
"BPO" means an opinion of the fair market value of a Mortgaged
Property given by a licensed real estate agent or broker which generally
includes three comparable sales and three comparable listings.
"E&O Insurance" means insurance coverage with respect to employee
dishonesty, forgery or alteration, theft, disappearance and destruction, robbery
and safe burglary, property (other than money and securities) and computer fraud
in an aggregate amount acceptable to ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac.
"Fairbanks" means Fairbanks Capital Corp., a corporation organized and
existing under the laws of the State of Utah, or any successor thereto.
"FICO" means Fair ▇▇▇▇▇ & Co., or any successor thereto.
"Increased Aggregate Purchase Price" means THIRTY MILLION DOLLARS
($30,000,000).
"Increased Purchase Price Mortgage Loan" means a Mortgage Loan which
is purchased with the proceeds of the Increased Aggregate Purchase Price. Any
Mortgage Loans subject to a Transaction will first be attributed to the Standard
Aggregate Purchase Price prior to any Mortgage Loans being attributed to the
Increased Aggregate Purchase Price. To the extent that funds are no longer
available under the Standard Aggregate Purchase Price, any further
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Mortgage Loans subject to a Transaction will be considered Increased Purchase
Price Mortgage Loans. For purposes of this Agreement, Mortgage Loans will be
allocated first to the Standard Aggregate Purchase Price based on the date on
which such Mortgage Loan becomes subject to this Agreement, commencing from the
earliest date to the most recent date.
"Mortgage Loan Documents" means the documents in the related Mortgage
File to be delivered to the Custodian.
"Standard Aggregate Purchase Price" means SIXTY MILLION DOLLARS
($60,000,000).
SECTION 2. Covenants. Section 14 of the Existing Master Repurchase
Agreement is hereby amended by (i) deleting subclause (bb) in its entirety and
(ii) adding the following sentence to end of subclause (a):
"Seller shall maintain a Net Worth of at least $10 million."
SECTION 3. Remedies Upon Default.
(a) Section 16(d) of the Existing Master Repurchase Agreement is
hereby amended by adding the phrase "and liquidate all Repurchase Assets"
at the end of the third sentence thereof.
(b) Section 16(e) of the Existing Master Repurchase Agreement is
hereby amended by adding the phrase "and Repurchase Assets" after the
phrase "Purchased Mortgage Loans".
(c) Section 16(j) of the Existing Master Repurchase Agreement is
hereby amended by deleting the phrase "Purchased Mortgage Loans" in the
second sentence thereof and replacing it with "Repurchase Assets".
SECTION 4. Power of Attorney. Section 28 of the Existing Master
Repurchase Agreement is hereby amended by replacing the phrase "Purchased
Mortgage Loans" with "Repurchase Assets" in the first sentence thereof.
SECTION 5. Authorizations. The Existing Master Repurchase Agreement is
hereby amended by adding the following Section 36:
"Authorizations. Any of the persons whose signatures and titles appear
on Schedule 2 are authorized, acting singly for the Seller or the Buyer, as the
case may be, under this Agreement."
SECTION 6. Schedule 2: Authorized Representatives. The Existing Master
Repurchase Agreement is hereby amended by adding Schedule 1 of this Amendment as
Schedule 2 to the Existing Master Repurchase Agreement.
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Section 7. Conditions Precedent. This Amendment shall become effective
on October 4, 2002 (the "Amendment Effective Date"), subject to the satisfaction
of the following conditions precedent:
7.1 Delivered Documents. On the Amendment Effective Date, the Buyer
shall have received the following documents, each of which shall be satisfactory
to the Buyer in form and substance:
(a) this Amendment, executed and delivered by duly authorized
officers of the Buyer and the Seller;
(b) evidence that the Seller has added the Buyer as loss payee under
the Seller's E&O Insurance; and
(c) such other documents as the Buyer or counsel to the Buyer may
reasonably request.
Section 8. Representations and Warranties. Seller hereby represents
and warrants to the Buyer that it is in compliance with all the terms and
provisions set forth in the Existing Master Repurchase Agreement on its part to
be observed or performed, and that no Event of Default has occurred or is
continuing, and hereby confirms and reaffirms the representations and warranties
contained in Section 13 of the Existing Master Repurchase Agreement.
Section 9. Limited Effect. Except as expressly amended and modified by this
Amendment, the Existing Master Repurchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
Section 10. Counterparts. This Amendment may be executed by each of
the parties hereto on any number of separate counterparts, each of which shall
be an original and all of which taken together shall constitute one and the same
instrument.
Section 11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
Buyer: CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC,
as Buyer
By: /s/ ▇▇▇▇▇▇▇ ▇. Detwile
-------------------------
▇▇▇▇▇▇▇ ▇. Detwile:
Managing Director
Seller: FAMILY LENDING SERVICES, INC.
as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Schedule 1-1
AMENDMENT NO. 4
TO MASTER REPURCHASE AGREEMENT
Amendment No. 4, dated as of October 9, 2002 (this "Amendment"), among
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC (the "Buyer") and FAMILY LENDING
SERVICES, INC. (the "Seller").
RECITALS
The Buyer and the Seller are parties to that certain Master Repurchase
Agreement, dated as of October 5, 2001, as amended by Amendment No. 1, dated as
of December 28, 2001, Amendment No. 2, dated as of March 1, 2002 and Amendment
No. 3, dated as of October 4, 2002 (the "Existing Master Repurchase Agreement";
as amended by this Amendment, the "Master Repurchase Agreement"). Capitalized
terms used but not otherwise defined herein shall have the meanings given to
them in the Existing Master Repurchase Agreement.
The Buyer and the Seller have agreed, subject to the terms and
conditions of this Amendment, that the Existing Master Repurchase Agreement be
amended to reflect certain agreed upon revisions to the terms of the Existing
Master Repurchase Agreement.
Accordingly, the Buyer and the Seller hereby agree, in consideration
of the mutual premises and mutual obligations set forth herein, that the
Existing Master Repurchase Agreement is hereby amended as follows:
Section 1. Definitions. Section 2 of the Existing Master Repurchase
Agreement is hereby amended by deleting the definition of "Increased Maximum
Aggregate Purchase Price Period" in its entirety and replacing it with the
following, which amendment shall be effective solely during the Increased
Maximum Aggregate Purchase Price Period:
"Increased Maximum Aggregate Purchase Price Period" means the period
from and including October 9, 2002 up to but not including January 9, 2003.
Section 2. Conditions Precedent. This Amendment shall become effective
on October 9, 2002 (the "Amendment Effective Date"), subject to the satisfaction
of the following conditions precedent:
2.1 Delivered Documents. On the Amendment Effective Date, the Buyer
shall have received the following documents, each of which shall be satisfactory
to the Buyer in form and substance:
(a) this Amendment, executed and delivered by duly authorized officers
of the Buyer and the Seller; and
(b) such other documents as the Buyer or counsel to the Buyer may
reasonably request.
Section 3. Representations and Warranties. Seller hereby represents
and warrants to the Buyer that it is in compliance with all the terms and
provisions set forth in the Existing Master Repurchase Agreement on its part to
be observed or performed, and that no Event of Default has occurred or is
continuing, and hereby confirms and reaffirms the representations and warranties
contained in Section 13 of the Existing Master Repurchase Agreement.
Section 4. Limited Effect. Except as expressly amended and modified by
this Amendment, the Existing Master Repurchase Agreement shall continue to be,
and shall remain, in full force and effect in accordance with its terms.
Section 5. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which shall be an
original and all of which taken together shall constitute one and the same
instrument.
Section 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
Buyer: CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC,
as Buyer
By: /s/ ▇▇▇▇▇▇▇ ▇. Detwile
---------------------------------
▇▇▇▇▇▇▇ ▇. Detwile:
Managing Director
Seller: FAMILY LENDING SERVICES, INC.
as Seller
By: /s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇▇▇
Vice President
Annex 1-1