MASTER REPURCHASE AGREEMENT among CALIBER MORTGAGE PARTICIPANT I LLC (“Seller”) and CALIBER HOME LOANS, INC. (“Guarantor”) and GOLDMAN SACHS BANK USA (“Buyer”) dated as of October 15, 2020
Exhibit 10.120
CERTAIN IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THE EXHIBIT BECAUSE IT IS
BOTH NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM TO THE
REGISTRANT IF PUBLIC DISCLOSED. [***] INDICATES THAT INFORMATION HAS BEEN REDACTED.
EXECUTION VERSION
among
CALIBER MORTGAGE PARTICIPANT I LLC
(“Seller”)
and
(“Guarantor”)
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA
(“Buyer”)
dated as of
October 15, 2020
TABLE OF CONTENTS
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TABLE OF CONTENTS
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TABLE OF CONTENTS
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EXHIBITS
| Exhibit A: | Glossary of Defined Terms | |
| Exhibit B: | [Reserved] | |
| Exhibit C: | Form of Officer’s Certificate | |
| Exhibit D: | Assignment of Closing Protection Letter | |
| Exhibit E: | Form of Power of Attorney | |
| Exhibit F: | Wiring Instructions | |
| Exhibit G: | Form of Servicer Notice | |
| Exhibit I: | Form of Trade Assignment | |
| Exhibit H: | Representations and Warranties | |
SCHEDULES
| Schedule 1: | Filing Jurisdictions and Offices | |
| Schedule 2: | Ownership Structure of Guarantor and its Subsidiaries | |
| Schedule 3: | Indebtedness Guarantor | |
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THIS MASTER REPURCHASE AGREEMENT (the “Agreement”) is made and entered into as of October 15, 2020, by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA, a national banking institution (“Buyer”), Caliber Mortgage Participant I LLC, a Delaware limited liability company (“Seller”), and Caliber Home Loans, Inc., a Delaware corporation (“Guarantor”).
RECITALS
| A. | Seller has requested Buyer to enter into transactions with Seller whereby Seller may, from time to time, sell to Buyer a Participation Interest in certain residential mortgage loans (including the Servicing Rights released thereto) and/or other mortgage related assets and interests, against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to sell to Seller such purchased assets at a date certain or on demand after the Purchase Date, against the transfer of funds by Seller (each such transaction, a “Transaction”). |
| B. | Buyer has agreed to enter into such Transactions, subject to the terms and conditions set forth in this Agreement. |
NOW, THEREFORE, in consideration of the mutual rights and obligations provided herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, Seller, Guarantor and Buyer agree as follows:
ARTICLE 1
DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
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Except where otherwise provided in this Agreement, any determination, consent, approval, statement or certificate made or confirmed in writing with notice to Seller by Buyer or an authorized officer of Buyer provided for in this Agreement is conclusive and binds the parties in the absence of manifest error. A reference to an agreement includes a security interest, guarantee, agreement or legally enforceable arrangement whether or not in writing related to such agreement.
A reference to a document includes an agreement (as so defined) in writing or a certificate, notice, instrument or document, or any information recorded in electronic form. Where Seller is required to provide any document to Buyer under the terms of this Agreement, the relevant document shall be provided in writing in either electronic or printed form unless Buyer requests otherwise. At the request of Buyer, the document shall be provided in electronic form or both printed and electronic form.
This Agreement is the result of negotiations among, and has been reviewed by counsel to, Buyer and Seller, and is the product of all parties. In the interpretation of this Agreement, no rule of construction shall apply to disadvantage one party on the ground that such party proposed or was involved in the preparation of any particular provision of this Agreement or this Agreement itself. Except where otherwise expressly stated, Buyer may give or withhold, in good faith or give conditionally, approvals and consents and may form opinions and make determinations at its sole and absolute discretion. All determinations by Buyer at its sole or absolute discretion shall be made in good faith. Any requirement of good faith, discretion or judgment by Buyer shall not be construed to require Buyer to request or await receipt of information or documentation not immediately available from or with respect to Seller, a servicer of the Related Mortgage Loans, any other Person or the Purchased Assets themselves. All references herein or in any Principal Agreement to “good faith” means good faith as defined in Section 1-201(b)(20) of the Uniform Commercial Code.
ARTICLE 2
AMOUNT AND TERMS OF TRANSACTIONS
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| ANY TRANSACTION WITH RESPECT TO THE UNCOMMITTED AMOUNT. BUYER’S ENTRY INTO A TRANSACTION WITH RESPECT TO THE UNCOMMITTED AMOUNT HEREUNDER SHALL NOT OBLIGATE BUYER TO ENTER INTO ANY FUTURE TRANSACTIONS WITH RESPECT TO THE UNCOMMITTED AMOUNT HEREUNDER. |
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| 2.4 | Maximum Transaction Amounts. The Purchase Price for each proposed Transaction shall not exceed the least of: |
| (a) | the product of the applicable Type Sublimit (expressed as a decimal and as determined by the Type of Purchased Asset) and the Aggregate Transaction Limit or the Aggregate Outstanding Purchase Price, as applicable pursuant to the Transactions Terms Letter; |
| (b) | the Aggregate Transaction Limit minus the Aggregate Outstanding Purchase Price of all other Transactions outstanding, if any; and |
| (c) | the Asset Value of the related Purchased Asset(s). |
| 2.6 | Price Differential. |
| (a) | Price Differential. Notwithstanding that Buyer and Seller intend that the Transactions hereunder be sales by Seller to Buyer of the Purchased Assets for all purposes except accounting and tax purposes, Seller shall pay Buyer accrued interest on the Purchase Price for each Purchased Asset calculated from the Purchase Date until, but not including, the date on which the Repurchase Price is paid, in an amount equal to the Price Differential; provided that if the Repurchase Price for a Transaction is not paid by Seller when due (whether at the Repurchase Date, upon acceleration or otherwise), the Repurchase Price shall bear a Price Differential from the date due until paid in full at an annual rate equal to the Default Rate. For the avoidance of doubt, upon and after the occurrence of an Aging Event with respect to a Purchased Asset, the Purchase Price for such Purchased Asset shall bear a Price Differential at an annual rate equal to the sum of the Applicable Pricing Rate plus the Type Margin for an Aging Event Asset. |
| (b) | Time for Payment. Price Differential with respect to any Purchased Asset shall be due and payable on the Price Differential Date occurring in the month following the related Purchase Date and thereafter on each subsequent Price Differential Date based in each case upon an invoice provided by Buyer to Seller three (3) Business Days before such Price Differential Date setting forth the Price Differential accrued during the Collection Period immediately preceding such Price Differential Date. Notwithstanding anything to the contrary in this Section 2.6(b), in the event the Asset Value of any Purchased Asset is marked to zero and Seller requests Buyer to release its security interest in such Purchased Asset or any Purchased Items related thereto, Buyer shall not release any such security interest therein unless and until Seller shall have paid to Buyer the Repurchase Price for such Purchased Asset. |
| (c) | Computations. All computations of Price Differential and fees payable hereunder shall be based upon the actual number of days (including the first day but excluding the last day) occurring in the relevant period, and a three-hundred sixty (360) day year. |
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ARTICLE 3
PROCEDURES FOR REQUESTING AND ENTERING INTO TRANSACTIONS
| 3.1 | Request for Transaction. |
| (a) | Request for Transaction. Seller shall request a Transaction by delivering to Buyer and Disbursement Agent a Transaction Request no later than [***] (New York City time) on the requested Purchase Date with respect to both Dry Mortgage Loans and Wet Mortgage Loans. Buyer shall be under no obligation to enter into any Transaction or Transactions requested by Seller if the Purchase Price relates to the Uncommitted Amount. Assuming the satisfaction of all conditions precedent set forth in Article 7 and as otherwise set forth in this Agreement, Buyer may, for any Transaction with respect to the Uncommitted Amount and shall, for any Transaction with respect to the Committed Amount, confirm to Seller the terms of Transactions electronically or in writing. Buyer reserves the right to reject any Transaction Request that Buyer determines fails to comply with the terms and conditions of this Agreement. By submitting a Transaction Request hereunder (i) such Transaction Request shall be deemed to be, and Seller acknowledges and agrees that such Transaction Request shall constitute, notification to Buyer by Seller that Seller wishes to enter into a Transaction under this Agreement and (ii) Seller shall be deemed to have represented and warranted that (a) as of the applicable Purchase Date, all conditions precedent to a Transaction as set forth in Section 7.1 and Section 7.2 of this Agreement have been satisfied, (b) the representations and warranties of Seller set forth in Article 8 of this Agreement are true and correct in all material respects as if made on and as of the date of the applicable Transaction, except to the extent that such representations and warranties expressly relate to an earlier specified date or period, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date, and (c) no Potential Default, Event of Early Termination, Event of Default or Material Adverse Effect with respect to Seller has occurred and is continuing. |
| (b) | Failure to Enter into Transaction; Cancellation of Transaction. If Seller fails three (3) times or more to enter into a Transaction, in each case after such third (3rd) time, after Seller has requested such Transaction and submitted a Transaction Request in connection with such request, for each Transaction requested by Seller thereafter for which Seller fails to enter into such Transaction after Seller has requested such Transaction and submitted a Transaction Request in connection with such request, Seller shall reimburse Buyer for any reasonable and documented out-of-pocket losses, costs and expenses incurred by Buyer in connection with such failure to enter into the Transaction. In addition, with respect to any Transaction, including the initial Transaction, if following disbursement by Buyer of the Purchase Price relating to such Transaction, Seller cancels such Transaction, in each case, Seller shall pay Buyer a Price Differential on such Purchase Price from the Purchase Date until, but not including, the date the Purchase Price is returned to Buyer. |
| (c) | Form of Transaction Request. Buyer shall have the right to revise or supplement the form of the Transaction Request from time to time by giving prior written notice thereof to Seller and Seller shall incorporate such revision or supplement within sixty (60) calendar days. |
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| 3.2 | Delivery of Mortgage Loan Documents. |
| (a) | Dry Mortgage Loans. Prior to any Transaction related to a Dry Mortgage Loan, Guarantor shall deliver to Buyer or its Custodian, or authorize, direct and cause the Closing Agent to deliver to Buyer or its Custodian, any related Mortgage Loan Documents in accordance with and pursuant to the terms of Section 7.2 and the Custodial Agreement. |
| (b) | Wet Mortgage Loans. With respect to a Transaction the subject of which is a Wet Mortgage Loan, (i) Guarantor shall deliver to Buyer or its Custodian the related Mortgage Loan Documents in Guarantor’s possession, and (ii) Guarantor shall authorize, direct and cause the Closing Agent to deliver the related Mortgage Loan Documents directly to Buyer or its Custodian, in each case, within the Maximum Dwell Time in accordance with the terms of Section 7.2, Exhibit B hereof and the Custodial Agreement. |
| (c) | Pooled Mortgage Loans. With respect to a Transaction the subject of which is a Pooled Mortgage Loan, the provisions of the Joint Securities Account Control Agreement and the Joint Account Control Agreement shall control. In addition, unless the transaction is subject to the Joint Securities Account Control Agreement, Guarantor shall deliver to Buyer or its designee a duly executed Trade Assignment, as applicable, together with a true and complete copy of the Purchase Commitment with respect to the related Mortgage Backed Security in accordance with and pursuant to the terms of Section 7.2. |
| (d) | Government Mortgage Loans. With respect to a Transaction the subject of which is a Government Mortgage Loan, Seller shall, at the request of Buyer, cause to deliver, and Guarantor shall, at the request of Buyer, deliver, to Buyer or its Custodian, within forty- five (45) calendar days following the Purchase Date for such Mortgage Loan, the FHA Mortgage Insurance Contract, the VA Loan Guaranty Agreement or the RD Loan Guaranty Agreement, as applicable, or evidence of such insurance or guaranty, as applicable, including proof of payment of the premium and the case number so Buyer can access the information on the computer system maintained by FHA, the VA or the RD. |
| (e) | Mortgage Loan Documents in Guarantor’s Possession. At all times during which the Mortgage Loan Documents related to any Related Mortgage Loan are in the possession of Guarantor, and until the Purchased Mortgage Loan related to such Related Mortgage Loan is repurchased, Guarantor shall hold such Mortgage Loan Documents in trust separate and apart from Guarantor’s own documents and assets and for the exclusive benefit of Buyer and shall act only in accordance with Buyer’s written instructions thereto. Such Mortgage Loan Documents should be clearly marked as subject to delivery to Buyer. |
| (f) | Other Mortgage Loan Documents in Guarantor’s Possession. With respect to each Related Mortgage Loan, until the Purchased Mortgage Loan related to such Related Mortgage Loan is repurchased, Guarantor shall hold in trust separate and apart from Guarantor’s own documents and assets and for the exclusive benefit of Buyer all mortgage loan documents related to such Related Mortgage Loan and not delivered to Buyer, including, without limitation, the Other Mortgage Loan Documents, as applicable. All such mortgage loan documents shall be clearly marked as subject to the ownership of Buyer. |
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| 3.4 | Wire-out Account. |
| (a) | Minimum Balance. Seller and Guarantor shall cause the Disbursement Agent to establish and maintain the Wire-out Account as a segregated time or demand deposit account for the benefit of Guarantor and shall at all times maintain a balance in the Wire-out Account of not less than $0.00. |
| (b) | Deposits. Guarantor shall deposit funds into the Wire-out Account in accordance with the terms of this Agreement, including, without limitation, Section 3.3 and Section 3.4(a), and the Disbursement Agent and Account Bank Agreement. |
| (c) | Failure to Maintain Balance. If, at any time, Seller or Guarantor fails to maintain in the Wire-out Account a minimum balance of $0.00 as required hereunder and under the Disbursement Agent and Account Bank Agreement, Buyer shall have the right to immediately stop entering into Transactions with Seller that would require amounts from the Wire-out Account until such time as Seller or Guarantor has made an appropriate deposit into the Wire-out Account such that a minimum balance of $0.00 is on deposit in the Wire-out Account as required hereunder and the Disbursement Agent and Account Bank Agreement. |
| (d) | Location of Wire-out Account. Neither Seller nor Guarantor shall change the identity or location of the Wire-out Account without thirty (30) calendar days prior notice to the Disbursement Agent. |
| 3.5 | Payment of Purchase Price. |
| (a) | Payment of Purchase Price. On the Purchase Date for each Transaction, ownership of the Purchased Assets shall be transferred to Buyer against the simultaneous transfer of the Purchase Price to Seller, or on behalf of Seller to an Approved Payee, as applicable, and simultaneously with the delivery to Buyer (or the Custodian on its behalf) of the Purchased Assets relating to each Transaction. With respect to the Purchased Assets being sold by Seller on the Purchase Date, Seller hereby sells, transfers, conveys and assigns to Buyer or its designee without recourse, but subject to the terms of this Agreement, all of Seller’s right, title and interest in and to the Purchased Assets, together with all right, title and interest of Seller in and to all amounts due and payable under the terms of such Purchased Assets. |
| (b) | Methods of Payment. On or prior to the Purchase Date for each Transaction, subject to the satisfaction of all conditions precedent set forth in Section 7.1 (with respect to the Initial Transaction) and Section 7.2 (with respect to all Transactions) and as otherwise set forth in this Agreement, Buyer shall remit or cause to be remitted by wire transfer of immediately available funds the Purchase Price for all Transactions described in the applicable Transaction Request to the Disbursement Account within one (1) hour of the receipt by the Buyer of such Transaction Request from Seller, provided that such Transaction Request is received by Buyer on or prior to 4:00 p.m. (New York city time) on such Purchase Date. Upon receipt of such funds, the receipt of the Haircut with respect to such Transactions pursuant to the Disbursement Agent and Account Bank Agreement, as applicable, and the related Transaction Request, the Disbursement Agent shall remit such funds by wire transfer in accordance with Seller’s wire instructions set forth in the applicable Transaction Request to Guarantor or to its Approved Payee, as applicable. Notwithstanding the foregoing, Buyer shall not be obligated to direct the Disbursement Agent to pay, and the |
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| Disbursement Agent shall not be obligated to pay in accordance with such direction of Buyer, the Purchase Price and the related Haircut, as applicable, under any method of payment to any Person that is not an Approved Payee. Further, the payment of the Purchase Price and the related Haircut, as applicable, by the Disbursement Agent to any Person that is not an Approved Payee shall not make such Person an Approved Payee. Any funds disbursed by Buyer to the Disbursement Account or by the Disbursement Agent to Guarantor or its Approved Payee shall be subject to all applicable federal, state and local laws, including, without limitation, regulations and policies of the Board of Governors of the Federal Reserve System on Reduction of Payments System Risk. Each of Guarantor and Seller acknowledges that as a result of Buyer’s or Disbursement Agent’s compliance with such applicable laws, regulations and policies, or equipment malfunction beyond the reasonable control of Buyer or the Disbursement Agent, the payment of a Purchase Price and the related Haircut, as applicable, may be delayed. Buyer or the Disbursement Agent shall not be liable to Seller or Guarantor for any costs, losses or damages arising from or relating to any such delays. |
| (c) | Transaction Limitations and Other Restrictions Relating to Closing Agents. Notwithstanding that a particular Transaction Request will not exceed the Aggregate Transaction Limit or applicable Type Sublimit, if the payment of the Purchase Price for such Transaction to the related Closing Agent will violate applicable law, Buyer may, upon prior notice to Seller, refuse to direct the Disbursement Agent to pay, and the Disbursement Agent shall not pay in accordance with such direction of Buyer, the Purchase Price to such Closing Agent. |
| (d) | Return of Purchase Price. If a Wet Mortgage Loan subject to a Transaction is not closed on the same day on which the Purchase Price was funded, Seller shall promptly return, or cause to be immediately returned (but in any event within one (1) Business Day of Seller’s or Guarantor’s knowledge or receipt of notice of such non-closure) the Purchase Price with respect to such Wet Mortgage Loan by wire transfer of immediately available funds to the Funding Deposit Account in accordance with Buyer’s wire instructions set forth on Exhibit F. Further, Seller shall pay Buyer all fees and expenses incurred by Buyer in connection with the funding of the Purchase Price for such Wet Mortgage Loan and, from the date of such funding up to but excluding the date such Purchase Price is returned to Buyer, Seller shall also pay Buyer any Price Differential accrued on such Purchase Price promptly upon notification from Buyer; provided, however, that Price Differential shall continue to accrue until the Purchase Price is returned to Buyer. |
| (e) | Disbursement Account. |
| (i) | In accordance with the Disbursement Agent and Account Bank Agreement, the Disbursement Agent has established and shall maintain a segregated time or demand deposit account with the Account Bank for and on behalf of Guarantor (the “Disbursement Account”). |
| (ii) | Each of Seller and Guarantor hereby grants to Buyer a continuing first-priority security interest in (1) all right, title and interest in and to the Disbursement Account and (2) any funds of Seller or Guarantor at any time deposited or held in the Disbursement Account, whether such funds are required to be deposited and held in the Disbursement Account or otherwise. Seller and Guarantor shall, as a condition precedent to Buyer’s obligation to enter into any Transaction hereunder, cause the Account Bank to enter into the Disbursement Agent and Account Bank |
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| Agreement with respect to the Disbursement Account. The pledge and security interest contained in this paragraph shall be considered “a security agreement or other arrangement or other credit enhancement” that is “related to” the Agreement and Transactions hereunder within the meaning of Bankruptcy Code Sections 101(38A)(A), 101(47)(a)(v) and 741(7)(A)(x). Seller and Guarantor each understands and agrees that the Disbursement Account shall be subject to a Disbursement Agent and Account Bank Agreement. |
| (f) | Location of Disbursement Account. Neither Seller nor Guarantor shall change the identity or location of the Disbursement Account without the prior written consent of Buyer. Each of Guarantor and Seller shall from time to time, at its own cost and expense, execute such directions and other papers, documents or instruments as may be reasonably requested by Buyer to reflect Buyer’s security interest in the Disbursement Account. |
| 3.6 | Approved Payees and Approved Originators. |
| (a) | Closing Agents. In order for a Closing Agent to be designated an Approved Payee with respect to any Purchase Price for Wet Mortgage Loans, Guarantor shall be in possession of the following documents and, at all times during which the following documents are in possession of Guarantor, and until the Purchased Mortgage Loan related to such Related Mortgage Loan is repurchased by Seller, Guarantor shall hold such documents in trust separate and apart from Guarantor’s own documents and assets and for the exclusive benefit of Buyer and shall act only in accordance with Buyer’s written instructions thereto and shall upon the written request of Buyer, immediately deliver such documents to Buyer at the sole expense of Guarantor and such documents shall be clearly marked as subject to delivery to Buyer: |
| (i) (1) | (A) a valid blanket Closing Protection Letter, in a form reasonably acceptable to Buyer, issued to Guarantor and/or Buyer by the title company stipulated in the final closing instructions and which is issuing the title insurance policy that covers the related Mortgage Loan and is an Acceptable Title Insurance Company, that covers closings conducted by the Closing Agent in the jurisdiction where this closing will take place and (B) if the Closing Agent is not an Acceptable Title Insurance Company or there is a loss associated with such Related Mortgage Loan, an assignment to Buyer of such Closing Protection Letter, substantially in the form of Exhibit D hereto; or |
| (2) | if the title company stipulated in the final closing instructions which is issuing the title policy that covers the applicable Mortgage Loan has not issued to Buyer a blanket Closing Protection Letter, which covers closings conducted by this Closing Agent in the jurisdiction where this closing will take place: |
| (A) | a valid Closing Protection Letter, in a form reasonably acceptable to Buyer, issued to Guarantor and/or Buyer by the title company stipulated in the final closing instructions, which is issuing the title insurance policy that covers the related Mortgage Loan and is an Acceptable Title Insurance Company, that covers the closing of this specific Mortgage Loan and, if the Closing Agent is not an Acceptable Title Insurance Company or there is a loss associated |
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| with such Related Mortgage Loan, an assignment to Buyer of such Closing Protection Letter, substantially in the form of Exhibit D hereto; or |
| (B) | with respect to those jurisdictions for which Closing Protection Letters are not available or are limited in their applicability, in each case in the sole and absolute discretion of Buyer, any other documents Buyer may require; and |
| (ii) | evidence that the Irrevocable Closing Instructions, signed by Guarantor, have been delivered to such Closing Agent. |
| (b) | Closing Agent Approval Process. Upon possession and retention by Guarantor of the documents set forth in Section 3.6(a) in accordance with Section 3.6(a) and Section 9.9, such Closing Agent shall be an Approved Payee with respect to such Purchase Price. Buyer may withdraw its approval of any Closing Agent as an Approved Payee if Seller does not deliver such documents set forth in Section 3.6(a) to Buyer in accordance with Section 3.6(a) or if Buyer becomes aware of any facts or circumstances at any time related to such Closing Agent which Buyer determines materially and adversely affects the Closing Agent or otherwise makes the Closing Agent unacceptable as an Approved Payee. Buyer shall promptly notify Seller of any withdrawal of approval of an Approved Payee. |
| (c) | Correspondent of Guarantor. In order for a correspondent of Guarantor to be designated an Approved Originator with respect to any Mortgage Loan, Guarantor shall have approved such correspondent pursuant to a process and standards approved by Buyer, in Buyer’s sole discretion. |
| (d) | Correspondent Approval Process. Upon approval by Guarantor in accordance with Section 3.6(c), such correspondent shall be an Approved Originator with respect to such Mortgage Loan. Buyer may withdraw its approval of any correspondent as an Approved Originator if Buyer becomes aware of any facts or circumstances at any time related to such correspondent which Buyer determines materially and adversely affects the correspondent or otherwise makes the correspondent unacceptable as an Approved Originator. Buyer shall promptly notify Seller or Guarantor of any withdrawal of approval of an Approved Originator. |
| 4.1 | Repurchase Price. |
| (a) | Payment of Repurchase Price. The Repurchase Price for each applicable Purchased Asset shall be payable in full by wire transfer of immediately available funds to the Funding |
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| Deposit Account in accordance with Buyer’s wire instructions set forth on Exhibit F upon the earliest to occur of (i) the Repurchase Date of the related Purchased Asset, (ii) at Buyer’s sole option, upon the occurrence of any Repurchase Acceleration Event with respect to such Purchased Asset, (iii) at Buyer’s sole option, upon the occurrence and continuance of an Event of Default, or (iv) the Facility Termination Date. Such obligation to repurchase exists without regard to any prior or intervening liquidation or foreclosure with respect to any Purchased Asset. While it is anticipated that Seller will repurchase each Purchased Asset on its related Repurchase Date, Seller may repurchase and Buyer will sell any Purchased Asset hereunder on demand to Seller without any prepayment penalty or premium. In such circumstance, Buyer shall direct the Disbursement Agent to apply the Repurchase Price received from Seller in accordance with Section 4.8. |
| (b) | Effect of Payment of Repurchase Price. On the Repurchase Date (or such other date on which the Repurchase Price is received in full by Buyer), termination of the related Transaction will be effected by the repurchase by Seller or its designee of the Purchased Assets and any related Purchased Items and the simultaneous transfer of the Repurchase Price to an account of Buyer (in each case subject to the provisions of Section 6.4), and all of Buyer’s rights, title and interests therein shall then be conveyed to Seller or its designee; provided that, Buyer shall not be deemed to have terminated or conveyed its interest in such Purchased Assets and any related Purchased Items if an Event of Default shall then be continuing or shall be caused by such repurchase or if such repurchase gives rise to or perpetuates a Margin Deficit that is not satisfied in accordance with Section 6.3(b). With respect to Related Mortgage Loans, Seller is obligated to obtain the related Mortgage Loan Documents from the Custodian at Seller’s expense on or following the Repurchase Date. On each Repurchase Date (or such other date on which the Repurchase Price, less any Price Differential due on the next succeeding Price Differential Date, is received in full by Buyer), Buyer shall be deemed to have simultaneously released the pledge of the applicable Purchased Asset and any related Purchased Items in each case without any further action by Buyer or any other Person and such Purchased Asset and any related Purchased Items shall be transferred to Seller or its designee free and clear of any liens, pledges or encumbrances. On the Repurchase Date (or such other date on which the Repurchase Price is received in full by Buyer), Seller shall, with the prior written consent of Buyer, take such action that is necessary to revise the Participation Certificate (as defined in the Participation Agreement) to reflect the removal of the applicable Related Mortgage Loans or Mortgage- Backed Securities, as applicable, with respect to the applicable Purchased Assets and any related Purchased Items, and Seller shall provide Buyer with evidence of the same. To the extent any Uniform Commercial Code financing statement filed against Seller by Buyer specifically identifies such Purchased Asset and any related Purchased Items or, upon Seller’s request, at the expense of Seller and within reasonable time to file such Uniform Commercial Code financing statement, Buyer shall deliver an amendment thereto or termination thereof evidencing the release of such Purchased Asset and any related Purchased Items from Buyer’s security interest therein. Any such transfer or release shall be without recourse to Buyer and without representation or warranty by Buyer, except that Buyer shall represent to Seller, to the extent that good title was transferred and assigned by Seller to Buyer hereunder on the related Purchase Date, that Buyer is the sole owner of such Purchased Asset and any related Purchased Items, free and clear of any other interests or Liens caused by Buyer’s actions or inactions. |
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| (a) | Buyer has determined that the Purchased Asset is a Defective Asset; |
| (b) | thirty (30), or in the case of Jumbo Loans forty-five (45), calendar days elapse from the date the related Mortgage Loan Documents were delivered to an Approved Investor and such Approved Investor has not returned such Mortgage Loan Documents or purchased such Purchased Asset, unless an extension is granted by Buyer; |
| (c) | ten (10) Business Days, or in the case of any Mortgage Loan Document required to be recorded, thirty (30) calendar days, elapse from the date of a related Mortgage Loan Document was delivered to Seller for correction or completion or for servicing purposes, without being returned to Buyer or its designee; |
| (d) | with respect to a Wet Mortgage Loan, Seller fails to deliver to Buyer the related Mortgage Loan Documents within the Maximum Dwell Time with respect to Seller’s obligation to deliver the related Mortgage Loan Documents to Buyer or any Mortgage Loan Document delivered to Buyer, upon examination by Buyer, is found not to be in compliance with the requirements of this Agreement or the related Purchase Commitment and is not corrected within the Maximum Dwell Time with respect to Seller’s obligation to deliver the related Mortgage Loan Documents to Buyer or its Custodian; |
| (e) | regardless of whether a Purchased Mortgage Loan is a Defective Asset, a foreclosure or similar type of proceeding is initiated with respect to such Mortgage Loan; |
| (f) | the further sale of a Purchased Asset or Related Mortgage Loan by Seller or Guarantor to any party other than an Approved Investor; |
| (g) | with respect to any Pooled Mortgage Loan that has been pooled to support a Mortgage- Backed Security issued by Guarantor and fully guaranteed by ▇▇▇▇▇▇ ▇▇▇ for which Buyer has executed a Form HUD 11711A, the Custodian ceases to hold the Mortgage Loan File and the related Mortgage Loan Documents in respect thereof for the sole and exclusive benefit of Buyer at any time prior to the issuance of the related Mortgage-Backed Security, or with respect to all other Purchased Mortgage Loans, the Custodian ceases to hold the related Mortgage Loan File and all Mortgage Loan Documents in respect thereof for the sole and exclusive benefit of Buyer at any time other than as released pursuant to, and in accordance with, the terms of the Custodial Agreement; |
| (h) | with respect to any Pooled Mortgage Loan, if the applicable Agency has not issued the related Mortgage-Backed Security to the Depository in the name of Buyer or Buyer’s nominee on the related Settlement Date; |
| (i) | with respect to any Mortgage-Backed Security that is subject to a Transaction pursuant to Section 3.7, if Buyer has not received the related Takeout Price from the Approved Investor on the related Settlement Date set forth in the related Purchase Commitment; or |
| (j) | with respect to any Pooled Mortgage Loan or Mortgage Backed Security, unless the transaction is subject to the Joint Securities Account Control Agreement, if Guarantor has failed to deliver the related Trade Assignment, if required, to Buyer in accordance with the requirements set forth in Section 7.2(p). |
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| 4.5 | Increased Costs. |
| (a) | Notwithstanding anything to the contrary in this Agreement, if Buyer determines that any change in any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof (i) subjects Buyer to any tax of any kind whatsoever with respect to this Agreement or any Purchased Assets or changes the basis of taxation of payments to Buyer in respect thereof, in each case excluding any Indemnified Taxes (which shall be governed by Section 12.3), Taxes described in clauses (b) through (d) of the definition of Excluded Taxes, and Connection Income Taxes, (ii) imposes, modifies or holds applicable any reserve, special deposit, compulsory advance or similar requirement against assets held by deposits or other liabilities in or for the account of Transactions or extensions of credit by, or any other acquisition of funds by any office of Buyer which is not otherwise included in the determination of the Applicable Pricing Rate hereunder, or (iii) imposes on Buyer any other condition, the result of which is to increase the cost to Buyer, by an amount which Buyer reasonably deems to be material, of effecting or maintaining purchases hereunder, or to reduce any amount receivable hereunder in respect thereof, then, in any such case, Seller shall, at its option and in its sole and absolute discretion, either (1) terminate all of the Transactions and repurchase all of the Purchased Assets or (2) promptly pay Buyer such additional amount or amounts as will compensate Buyer for such increased cost or reduced |
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| amount receivable thereafter incurred; provided, however, that nothing contained in this Section 4.5(a) shall relieve Buyer of its obligation to refund Seller the pro-rated portion of the Upfront Fee that was paid by Seller on or before the Effective Date to the extent set forth in the Transactions Terms Letter. |
| (b) | If Buyer has determined that the adoption of or any change in any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof has the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall, at its option and in its sole and absolute discretion, either (1) terminate all of the Transactions and repurchase all of the Purchased Assets or (2) promptly pay Buyer such additional amount or amounts as will thereafter compensate Buyer for such reduction; provided, however, that nothing contained in this Section 4.5(b) shall relieve Buyer of its obligation to refund Seller the pro-rated portion of the Upfront Fee that was paid by Seller on or before the Effective Date to the extent set forth in the Transactions Terms Letter. |
If Buyer becomes entitled to claim any additional amounts pursuant to this Section 4.5, 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 subsection submitted by Buyer to Seller shall be conclusive in the absence of manifest error.
| 4.6 | Effect of Applicable Pricing Rate Transition Event. |
| (a) | Applicable Pricing Rate Replacement. Notwithstanding anything to the contrary herein or in any other Principal Agreements, if an Applicable Pricing Rate Transition Event or an Early Opt-in Election, as applicable, and its related Applicable Pricing Rate Replacement Date have occurred prior to the Reference Time in respect of any determination of the Applicable Pricing Rate on any date, the Applicable Pricing Rate Replacement will replace the then-current Applicable Pricing Rate for all purposes hereunder or under any Principal Agreement in respect of such determination on such date and all determinations on all subsequent dates. If the Applicable Pricing Rate Replacement is determined in accordance with clause (a) or (b) of the definition of “Applicable Pricing Rate Replacement,” in connection with an Applicable Pricing Rate Transition Event, such Applicable Pricing Rate Replacement will become effective as of the Reference Time on the Applicable Pricing Rate Replacement Date without any amendment to, or further action or consent of any other party to, this Agreement. If the Applicable Pricing Rate Replacement is determined in accordance with clause (c) of the definition of “Applicable Pricing Rate Replacement” or in connection with an Early Opt-in Election, such Applicable Pricing Rate Replacement will become effective at 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Applicable Pricing Rate Replacement is provided to Seller without any amendment to this Agreement or further action or consent of Seller. |
| (b) | Benchmark Replacement Conforming Changes. In connection with the implementation of an Applicable Pricing Rate Replacement, Buyer will have the right to make Applicable Pricing Rate Replacement Conforming Changes from time to time and, notwithstanding |
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| anything to the contrary herein or in any other Principal Agreement, any amendments implementing such Applicable Pricing Rate Replacement Conforming Changes will become effective without any further action or consent of Seller. |
| (c) | Notices; Standards for Decisions and Determinations. Buyer will promptly notify Seller of (i) any occurrence of an Applicable Pricing Rate Transition Event or an Early Opt-in Election, as applicable, and its related Applicable Pricing Rate Replacement Date, (ii) the implementation of any Applicable Pricing Rate Replacement, (iii) the effectiveness of any Applicable Pricing Rate Replacement Conforming Changes and (iv) the removal or reinstatement of any tenor of Term SOFR pursuant to Section 4.6(d) below. Any determination, decision or election that may be made by Buyer pursuant to this Section 4.6, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in Buyer’s discretion and without consent from Seller. |
| (d) | Unavailability of Tenor of Term SOFR. Notwithstanding anything to the contrary herein or in any other Principal Agreement, at any time and with respect to any Collection Period, if the Applicable Pricing Rate at such time is Term SOFR and Term SOFR for the applicable tenor is not displayed on a screen or other information service that publishes such rate from time to time as selected by Buyer in its reasonable discretion, Buyer may (i) modify the definition of “Collection Period” for all determinations of price differential at or after such time to remove such unavailable tenor and (ii) if Term SOFR, as applicable, for the applicable tenor is displayed on such screen or information service after its removal pursuant to clause (i) above, modify the definition of “Collection Period” for all determinations of interest at or after such time to reinstate such previously removed tenor. |
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| (a) | first, to Buyer the outstanding Repurchase Price of any Resolved Asset; provided, however, that Buyer shall be entitled, in its sole and absolute discretion, to not apply any portion of such Repurchase Price included in the Repurchase Price pursuant to clause (c) of the definition of “Repurchase Price” and instead, to include such portion of such Repurchase Price in a subsequent invoice provided by Buyer to Seller pursuant to Section 2.6(b); |
| (b) | second, to satisfy any outstanding Margin Deficit as provided in Section 6.3(b); and |
| (c) | third, subject to Section 4.12, to Seller, by remitting such amounts to the Guarantor’s operating account as directed in writing by Guarantor to Buyer, or, if an Event of Default has occurred and is continuing, to the Collection Account (as defined in the Credit Agreement). |
Notwithstanding the foregoing, Buyer and Seller agree that all funds received in the Funding Deposit Account before 6:00 p.m. (New York City time) on any Business Day shall be recorded and reported as received on such Business Day and all distributions made pursuant to this Section 4.8 shall be made as if such funds were applied in accordance with this Section 4.8 on the Business Day that such funds were received in the Funding Deposit Account as long as such funds were received before 6:00 p.m. (New York City time). Funds received after 6:00 p.m. (New York City time) shall be treated as if received on the next Business Day.
Further, Buyer and Seller intend and agree that all such payments shall be “settlement payments” as such term is defined in Bankruptcy Code Section 741(8).
| 4.9 | Method of Payment. Except as otherwise specifically provided herein, all payments hereunder must be received by Buyer on the date when due and shall be made in United States dollars by wire transfer of immediately available funds to the Funding Deposit Account in accordance with Buyer’s wire instructions set forth on Exhibit F. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof shall be the succeeding Business Day, and with respect to payments of the Purchase Price, the Price Differential thereon shall be payable at an annual rate equal to the sum of the Applicable Pricing Rate plus the applicable Type Margin during such extension. All payments made by or on behalf of Seller with respect to any Transaction shall be applied in accordance with Section 4.12 and Section 4.8 and shall be made in such amounts as may be necessary in order that all such payments after withholding for or on account of any present or future Indemnified Taxes imposed by any Governmental Authority, compensate Buyer for any additional cost or reduced amount receivable of making or maintaining Transactions as a result of such Indemnified Taxes, as set forth, and subject to, Sections 4.5 and 12.3. Any payments received by Buyer after 6:00 p.m. (New York City time) shall be applied in accordance with the immediately preceding sentence on the succeeding Business Day. All payments to be made by or on behalf of Seller with respect to any Transaction shall be made without set-off, counterclaim or other defense, unless otherwise expressly permitted by Buyer in writing in Buyer’s sole discretion. |
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Book Account. Buyer and Seller shall maintain an account on their respective books of all Transactions entered into between Buyer and Seller and for which the Repurchase Price has not yet been paid. Notwithstanding the foregoing, Seller shall be responsible for maintaining its own book account and records of Transactions entered into with Buyer, amounts due to Buyer in connection with such Transactions and for paying such amounts when due. Failure of Seller to maintain an account on its books with information regarding any Transaction shall not excuse Seller’s timely performance of all obligations under this Agreement, including, without limitation, payment obligations under this Agreement.
| 4.12 | Payments to Seller. Buyer shall pay, or cause to be paid to, Guarantor, by remitting such amounts to the Guarantor’s operating account as directed in writing by Guarantor to Buyer, or, if an Event of Default has occurred and is continuing, the Collection Account (as defined in the Credit Agreement), all amounts in excess of those amounts due to Buyer in accordance with the Principal Agreements on the Business Day immediately following the Business Day on which both (1) a payment by Guarantor, Seller or an Approved Investor pursuant to a Purchase Commitment and (2) a Purchase Advice relating to such payment without discrepancy has been made to the Funding Deposit Account in accordance with Buyer’s wire instructions set forth on Exhibit F; provided, that Buyer and Seller agree that all amounts received in accordance with this Section 4.12 in the Funding Deposit Account pursuant to a Purchase Commitment before 6:00 p.m. (New York City time) on any Business Day shall be recorded and reported as received on such Business Day and all remittances pursuant to this Section 4.12 shall be made as if such amounts were remitted on the Business Day that such amounts were received in accordance with this Section 4.12 in the Funding Deposit Account as long as such amounts were received before 6:00 p.m. (New York City time) in accordance with this Section 4.12. Amounts received after 6:00 p.m. (New York City time) shall be deemed to have been received on the next Business Day. Buyer shall use reasonable efforts to notify Seller if there is a discrepancy between a wire transfer and the related Purchase Advice, and thereafter, Seller shall notify Buyer as to whether Buyer should accept such settlement payment despite the discrepancy between the amount received and the related Purchase Advice; provided, however, that if an Event of Default, Event of Early Termination or Potential Default has occurred and is continuing, Buyer is not obligated to receive approval from Seller prior to accepting any amounts received and releasing the related Purchased Assets. |
ARTICLE 5
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| shall pay any fees payable to the Disbursement Agent pursuant to the Disbursement Agent and Account Bank Agreement and shall pay any actual and documented fees payable to any calculation agent appointed by Buyer, or reimburse Buyer for any such fees payable to any such calculation agent, based upon invoices, from time to time, provided by Buyer to Seller. |
ARTICLE 6
SECURITY; SERVICING; MARGIN ACCOUNT MAINTENANCE; CUSTODY OF MORTGAGE LOAN DOCUMENTS; REPURCHASE TRANSACTIONS; DUE DILIGENCE
Each of Seller and Guarantor acknowledges that Buyer is the owner of a Participation Interest in the Servicing Rights related to any Related Mortgage Loan, but, for the avoidance of doubt, Buyer acknowledges that Guarantor retains legal title to the Servicing Rights in respect of the Mortgage Loans constituting the Purchased Assets. Without limiting the generality of the foregoing and for the avoidance of doubt, if any determination is made that a Participation Interest in the Servicing Rights related to any Related Mortgage Loan were not sold to Buyer or that the Servicing Rights are not an interest in such Related Mortgage Loan and are severable from such Related Mortgage Loan despite Buyer’s, Guarantor’s and Seller’s express intent herein and the other Principal Agreement to treat a Participation Interest in them as included in the purchase and sale transaction, each of Guarantor and Seller hereby pledges, assigns and grants to Buyer a continuing first priority security interest in and lien upon the Servicing Rights related to such Related Mortgage Loans, and Buyer shall have all the rights and remedies of a “secured party” under the Uniform Commercial Code with respect thereto. In addition, each of Guarantor and Seller further grants, assigns and pledges to Buyer a first priority security interest in and lien upon its rights to (i) all documentation and rights to receive documentation related to such Servicing Rights and the servicing of each of the Related Mortgage Loans, (ii) all Income related to the Purchased Assets received by Guarantor or Seller, (iii) all rights to receive such Income, (iv) all other Purchased Items, and (v) all products, proceeds and distributions relating to or constituting any or all of the foregoing (collectively, and together with the pledge of Servicing Rights in the immediately preceding sentence, the “Related Credit Enhancement”). The Related Credit Enhancement is hereby pledged as further security for Guarantor’s and Seller’s obligations to Buyer hereunder and under any other Principal Agreement.
At any time and from time to time, upon the written request of Buyer, and at the sole expense of Seller, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer may request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including, without limitation, the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any jurisdiction with respect to the Purchased Assets and related Purchased Items and the liens created hereby. Seller also hereby authorizes Buyer to file any such financing or continuation statement in a manner
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| consistent with this Agreement to the extent permitted by applicable law. For purposes of the Uniform Commercial Code and all other relevant purposes, this Agreement shall constitute a security agreement. |
| 6.2 | Servicing. |
| (a) | Servicing. In recognition that Guarantor retains legal title to the Servicing Rights in respect of each Related Mortgage Loan, subject to paragraphs (b) and (c) below, Guarantor shall continue to service the Related Mortgage Loans directly or another Servicer shall service the Related Mortgage Loans pursuant to the applicable Servicing Agreement and Servicer Notice. |
| (b) | Appointment of Servicer. Upon the occurrence of an Event of Default and for so long as the Event of Default is continuing, Buyer shall have the right to direct the servicing of the Related Mortgage Loans subject to the applicable Servicing Agreement and Servicer Notice, if any, and in the event Guarantor is servicing such Mortgage Loans directly (i.e., without the use of any other Servicer), then Buyer may, in its sole discretion, appoint a successor servicer to service any Related Mortgage Loan (each a “Successor Servicer”). In the event of such an appointment, Guarantor and Seller, as applicable, shall perform all acts and take all action so that any part of the Mortgage Loan File and related Servicing Records held by Guarantor or Seller, together with all funds in the Custodial Account and other receipts relating to such Related Mortgage Loan, are promptly delivered to the Successor Servicer. Guarantor and Seller shall have no claim for servicing fees, lost profits or other damages if Buyer appoints a Successor Servicer in accordance with this Section 6.2(b). The fact that a Servicer may be entitled to a servicing fee for interim servicing of the Related Mortgage Loans or that Buyer may provide a separate notice of default to a Servicer regarding the servicing of the Related Mortgage Loans shall not affect or otherwise change Buyer’s ownership of a Participation Interest in the Servicing Rights related to the Related Mortgage Loans. |
| (c) | Interim Servicing Period; No Servicing Fee or Income. Buyer shall have no right to terminate Guarantor or Servicer, as applicable, as the interim servicer other than upon the occurrence and during the continuance of an Event of Default, subject to Seller’s appointment right set forth in the first sentence of Section 6.2(m). |
| (d) | Servicing Agreement. If there is a Servicer of the Related Mortgage Loans other than Guarantor, Buyer or an Affiliate of Buyer, Seller or Guarantor may, in either case in its discretion, enter into a Servicing Agreement and a Servicer Notice with such Servicer, which such Servicing Agreement shall be acceptable to Buyer in its sole discretion, and such Servicer Notice shall be substantially in the form attached hereto as Exhibit G or such other form approved by Buyer in the sole discretion of Buyer. Without the prior written consent of Buyer, exercised in Buyer’s sole discretion, neither Guarantor nor Seller shall agree to (1) any material, in Buyer’s sole discretion, modification, amendment or waiver of any Servicing Agreement, (2) any termination of any Servicing Agreement or (3) the assignment, transfer, or material deletion of any of its rights or obligations (in respect of any Related Mortgage Loan) under any Servicing Agreement. |
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| (e) | Servicing Obligations of Seller and Guarantor. Guarantor shall, or pursuant to the applicable Servicing Agreement, Seller or Guarantor, as applicable, shall cause, each Servicer to: |
| (i) | service and administer the Related Mortgage Loans in accordance with prudent mortgage loan servicing standards and procedures generally accepted in the mortgage banking industry and in accordance with the degree of care and servicing standards generally prevailing in the industry, including all applicable requirements of the Agency Guides, applicable law, FHA Regulations, VA Regulations and RD Regulations, the requirements of any private mortgage insurer, as applicable, and the requirements of any applicable Purchase Commitment and the related Approved Investor, so that neither the eligibility of the Related Mortgage Loan and any related Mortgage-Backed Security for purchase under such Purchase Commitment nor the FHA Mortgage Insurance, VA Loan Guaranty Agreement, RD Loan Guaranty Agreement or any other applicable insurance or guarantee in respect of any such Related Mortgage Loan, if any, is voided or reduced by such servicing and administration; |
| (ii) | subject to Section 6.2(g), and to the extent not otherwise held by the Custodian, at all times maintain and safeguard the Mortgage Loan File for the Related Mortgage Loan in accordance with applicable law and lending industry custom and practice and shall hold such Mortgage Loan File in trust for Buyer, and in any event shall maintain and safeguard photocopies of the documents delivered to Buyer or Custodian, as applicable, pursuant to Section 3.2, and accurate and complete records of its servicing of the Related Mortgage Loan; Guarantor’s, Seller’s or Servicer’s possession of such Mortgage Loan File is for the sole purpose of servicing such Related Mortgage Loan and such retention and possession by Guarantor, Seller or such Servicer is in a custodial capacity only |
| (iii) | allow Buyer to, and Buyer may, at any time during Guarantor’s, Seller’s or Servicer’s business hours on reasonable notice, examine and make copies of such documents and records, and Guarantor or Seller or such Servicer shall deliver the originals of such documents and records to Buyer or its designee; |
| (iv) | at Buyer’s written request, promptly deliver to Buyer reports regarding the status of any Related Mortgage Loan being serviced by it, which reports shall include, but shall not be limited to, a description of any delinquency thereunder for equal to or more than thirty (30) calendar days or such other circumstances that could reasonably be expected to cause a material adverse effect with respect to the market value of such Related Mortgage Loan, Buyer’s or Guarantor’s title to such Related Mortgage Loan or the collateral securing such Related Mortgage Loan; such reports are required to be delivered until the repurchase of the Purchased Mortgage Loan with respect to such Related Mortgage Loan by the Seller; and |
| (v) | advance all reasonable, customary and/or necessary “out of pocket” costs and expenses (including reasonable attorneys’ fees and disbursements) incurred in the performance by Servicer of its servicing obligations, including, but not limited to, (1) real estate taxes and assessments (including HOA/COA) and other charges which are or may become a lien upon the Mortgaged Property, (2) insurance premiums, (3) expenses necessary to prevent or cure a violation of applicable laws, (4) customary expenses for collection and enforcement of foreclosure or deficiency judgments and (5) cost of appraisals and valuations. |
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| (f) | Sale or Transfer of Servicing Rights by Buyer. Buyer may sell or transfer any rights to service a Purchased Mortgage Loan with written notice but without the prior written consent of Seller or any Servicer. |
| (g) | Release of Mortgage Loan Files. Guarantor or Seller shall release its custody of the contents of any Mortgage Loan File only in accordance with the written instructions of Buyer, except when such release is (1) incidental to the servicing of the related Related Mortgage Loan and pursuant to and in accordance with the Custodial Agreement, (1) required to complete the Purchase Commitment, or (3) required by law. |
| (h) | Custodial Account. |
| (i) | Guarantor shall establish and maintain a segregated time or demand deposit account with the Account Bank for the benefit of Buyer (the “Custodial Account”) and upon the occurrence and during the continuance of an Event of Default, shall promptly deposit or cause Servicer to deposit (but in no event later than the date set forth in the applicable Servicing Agreement, or within two (2) Business Days of receipt thereof in the event Guarantor is the Servicer) into the Custodial Account all Income received with respect to each Purchased Asset sold hereunder. In the event Guarantor is not the Servicer, Guarantor shall cause the Servicer to deposit such amounts into the Custodial Account in the manner set forth in the applicable Servicing Agreement. The Custodial Account may not be a deposit account that is established to serve as a custodial account for mortgage loans that Guarantor, Seller or Servicer services for other parties. Under no circumstances shall Guarantor, Seller or Servicer deposit any of its own funds into the Custodial Account or otherwise commingle its own funds with funds belonging to Buyer as owner of any Purchased Asset. If Guarantor, Seller or Servicer fails to segregate any funds and commingles them with any source in breach of this Agreement, Guarantor, Seller or Servicer agrees that its share of the commingled funds is assumed to have been spent first with any remaining balance to be deemed to belong to Buyer. |
| (ii) | Guarantor hereby grants to Buyer a continuing first priority security interest in (1) all right, title, and interest in and to the Custodial Account and (2) any funds of Seller or Guarantor at any time deposited or held in the Custodial Account, whether such funds are required to be deposited and held in the Custodial Account or otherwise. Seller and Guarantor shall, as a condition precedent to Buyer’s obligation to enter into any Transaction hereunder, cause the Account Bank to enter into the Custodial Account Control Agreement with respect to the Custodial Account. The pledge and security interest contained in this paragraph shall be considered “a security agreement or other arrangement or other credit enhancement” that is “related to” the Agreement and Transactions hereunder within the meaning of Bankruptcy Code Sections 101(38A)(A), 101(47)(a)(v) and 741(7)(A)(x). Each of Seller and Guarantor understands and agrees that the Custodial Account shall be subject to a Custodial Account Control Agreement. |
| (iii) | Any Income received with respect to a Purchased Asset purchased hereunder (other than any interest accrued thereon during the period of time up to but not |
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| including the Purchase Date for such Purchased Asset), shall be segregated as described above and held in trust for the exclusive benefit of Buyer as the owner of such Purchased Asset and shall be released only as follows: |
| (1) | if a Successor Servicer is appointed by Buyer, all amounts deposited in the Custodial Account with respect to Related Mortgage Loans to be so serviced shall be transferred into an account established by the Successor Servicer pursuant to its agreement with Buyer; or |
| (2) | after the occurrence and during the continuance of an Event of Default, upon instruction by Buyer. |
| (i) | Location of Custodial Account. Each of Seller and Guarantor shall ensure that there is no change in the identity or the location of the Custodial Account without the prior written consent of Buyer. |
| (j) | Accounting of Custodial Account. Seller and Guarantor shall provide, and shall cause Servicer to provide, Buyer with read-only access to the Custodial Account. Guarantor or Seller shall promptly deliver to each of Buyer and the Disbursement Agent photocopies of all periodic bank statements and other records relating to the Custodial Account as Buyer may from time to time request. |
| (k) | Servicer Notice. As a condition precedent to Buyer funding the Purchase Price for any Purchased Mortgage Loan serviced by a Servicer other than Guarantor, Seller, Buyer, or an Affiliate of Buyer, the Guarantor or Seller shall provide to Buyer a Servicer Notice addressed to and agreed to by the Servicer, advising the Servicer of such matters as Buyer may reasonably request, including, without limitation, recognition by the Servicer of Buyer’s interest in such Related Mortgage Loans and ownership of a Participation Interest in the Servicing Rights related thereto and the Servicer’s agreement that upon receipt of notice of an Event of Default or Servicer Termination Event, subject to Guarantor’s appointment right set forth in the first sentence of Section 6.2(m), from Buyer, it will follow the instructions of Buyer with respect to the servicing of the related Related Mortgage Loans. |
| (l) | Notification of Servicer Defaults. If Seller or Guarantor should discover that for any reason whatsoever, any entity responsible to Guarantor or Seller by contract for managing or servicing any Related Mortgage Loan has failed to perform fully Guarantor’s or Seller’s obligations with respect to the management or servicing of such Related Mortgage Loan as required under this Agreement or any of the obligations of such entities with respect to the Related Mortgage Loan as delegated by Seller or Guarantor pursuant to any Servicing Agreement, Guarantor or Seller shall promptly notify Buyer. |
| (m) | Termination. If a Servicer Termination Event with respect to a Servicer other than Guarantor shall occur (which has not been waived by Buyer in its sole and absolute discretion) and no Event of Default has occurred and is continuing, then Guarantor shall have the right to designate a successor Servicer acceptable to Buyer, in Buyer’s reasonable discretion, by proposing the identity of such successor Servicer to Buyer in writing no later than five (5) Business Days following the applicable Servicer Termination Event. If (x) Guarantor has not proposed a successor Servicer to Buyer in writing within five (5) Business Days following the applicable Servicer Termination Event in accordance with the immediately preceding sentence; (y) Buyer has not accepted, in Buyer’s sole discretion, |
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| the successor Servicer proposed by Guarantor to Buyer in accordance with the immediately preceding sentence within five (5) Business Days following such applicable Servicer Termination Event; or (z) the actual servicing of the Related Mortgage Loans has not been transferred to the successor Servicer proposed by Guarantor and in accordance with the immediately preceding sentence and accepted by Buyer, in Buyer’s sole discretion, within thirty (30) calendar days following the applicable Servicer Termination Event, then Buyer shall have the right at any time to immediately terminate, and Guarantor and Seller shall terminate any Servicer’s (as applicable) right to service the Related Mortgage Loans due to a Servicer Termination Event without payment of any penalty or termination fee. Seller and Guarantor (including Guarantor as Servicer) shall cooperate, or use commercially reasonable efforts to cause the applicable Servicer (other than Guarantor) to cooperate, in transferring the servicing of the Related Mortgage Loans to a successor servicer appointed or accepted, as applicable, by Buyer in accordance with the terms hereof. For the avoidance of doubt, any termination of a Servicer’s rights to service by Buyer as a result of an Event of Default of the type stated in Section 11.1(q) that has not been waived shall be deemed part of an exercise of Buyer’s rights to cause the liquidation, termination or acceleration of this Agreement. |
| (n) | Buyer’s Right to Service. Buyer or its designee, upon the occurrence of an Event of Default or, subject to Guarantor’s appointment right set forth in the first sentence of Section 6.2(m), a Servicer Termination Event, shall be entitled to service some or all of the Related Mortgage Loans, including, without limitation, receiving and collecting all sums payable in respect of same. Upon Buyer’s determination and written notice to Seller or a Servicer, with a copy to Guarantor, as applicable, that Buyer desires to service some or all of the Related Mortgage Loans following the occurrence of an Event of Default, or, subject to Guarantor’s appointment right set forth in the first sentence of Section 6.2(m), a Servicer Termination Event, Seller and Guarantor shall promptly cooperate, and Seller and Guarantor shall cause the Servicer to promptly cooperate, with all instructions of Buyer and do or accomplish all acts or things necessary to effect the transfer of the servicing to Buyer or its designee, at Seller’s or Guarantor’s sole expense. Upon Buyer’s or its designee’s servicing of the Related Mortgage Loans, (i) Buyer may, in its own name, in the name of Guarantor or Seller, or otherwise demand, ▇▇▇ for, collect or receive any money or property at any time payable or receivable on account of or in exchange for such Related Mortgage Loan(s), but shall be under no obligation to do so; (ii) Guarantor or Seller shall, if Buyer so requests, pay to Buyer all amounts received by Guarantor or Seller upon or in respect of such Purchased Mortgage Loan(s) or other Purchased Assets, advising Buyer as to the source of such funds; and (iii) all amounts so received and collected by Buyer shall be held as part of the Purchased Assets or applied against any outstanding Repurchase Price owed Buyer. |
| (o) | All Transactions Include a Participation Interest in Servicing Rights. Notwithstanding anything to the contrary in this Agreement or any other Principal Agreement, upon payment of the Purchase Price by Buyer to Seller, Buyer becomes the owner of a Purchased Asset, which includes a Participation Interest in the Servicing Rights related thereto. Notwithstanding anything to the contrary in this Agreement or any other Principal Agreement, the Servicing Rights related to the Purchased Assets are not severable from or to be separated from the Mortgage Loans related to the Purchased Assets and such Servicing Rights and other servicing provisions of this Agreement and any other Principal Agreement constitute (a) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or other arrangement or other credit enhancement related to the Principal Agreements. Buyer |
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| acknowledges that Guarantor retains legal title to the Mortgage Loans constituting the Purchased Assets and legal title to the Servicing Rights in respect of the Mortgage Loans constituting the Purchased Assets, and that the sale of the Participation Interest in the Servicing Rights does not sever the Servicing Rights from the Related Mortgage Loans. |
| 6.3 | Margin Account Maintenance. |
| (a) | Asset Value. Buyer shall have the right to determine the Asset Value of each Purchased Asset at any time in accordance with the terms hereof. |
| (b) | Margin Deficit and Margin Call. If Buyer or its designee shall determine on or prior to 9:00 a.m. (New York City time) on any Business Day that, as of the Business Day immediately preceding such Business Day, the Minimum Maintenance Amount with respect to the Purchased Assets is less than the Aggregate Outstanding Purchase Price of all Transactions (in any such case, a “Margin Deficit”), then Buyer may at its sole option, and by notice to Seller (as such notice is more particularly set forth below, a “Margin Call”), require Seller to either: |
| (i) | deposit cash into the Margin Call Reserve Account so that the Minimum Maintenance Amount will thereupon equal or exceed the Aggregate Outstanding Purchase Price (for purposes of clarity, after giving effect to any credit to the Purchase Price of the related Transaction(s) pursuant to Section 6.3(d)) of all Transactions; or |
| (ii) | pay one or more Repurchase Prices in accordance with Section 6.4, as applicable, in an amount sufficient to reduce the related Purchase Price so that the Aggregate Outstanding Purchase Price of all Transactions is less than or equal to the Minimum Maintenance Amount. |
If Buyer delivers a Margin Call to Seller on any Business Day, then Seller shall transfer cash to Buyer no later than 5:00 p.m. (New York City time) on the next subsequent Business Day. Notice of a Margin Call may be provided by Buyer to Seller electronically or in writing, such as via electronic mail.
| (c) | Buyer’s Discretion. Buyer’s election not to make a Margin Call at any time there is a Margin Deficit shall not in any way limit or impair its right to make a Margin Call at any time a Margin Deficit exists. |
| (d) | Credit to Repurchase Price. Any cash transferred to the Margin Call Reserve Account pursuant to this Section 6.3 shall be credited to the Purchase Price of the related Transaction(s). |
Upon receipt of the applicable Repurchase Price and, in the event the applicable Repurchase Price is received pursuant to Section 6.3(b)(ii), upon written request from Seller to Buyer, as applicable, as set forth above, Buyer shall (i) with respect to Related Mortgage Loans, deliver or shall cause
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the Custodian to deliver the related Mortgage Loan Documents to Seller or its designee, if such documents have not already been delivered pursuant to a Bailee Agreement and (ii) with respect to related Mortgage-Backed Securities, deliver the Mortgage-Backed Security to Seller, its designee or Approved Investor, as applicable, on a delivery versus payment basis; provided, however, that notwithstanding anything to the contrary in this Agreement, Buyer shall not be obligated to provide more than five (5) such releases to any Approved Investor for purposes of pooling with an Agency (which release may relate to more than a single Related Mortgage Loan) on any day. If any such release gives rise to or perpetuates a Margin Deficit, Buyer shall notify Seller of the amount thereof and Seller shall thereupon satisfy the Margin Deficit in the manner specified in Section 6.3(b). Buyer shall have no obligation to release a repurchased Purchased Asset or terminate its security interest in such Purchased Asset until such Margin Deficit is satisfied and, in the event the applicable amount is received pursuant to Section 6.3(b)(ii), Seller has provided a prior written request for such release.
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| financial condition of Guarantor and its Subsidiaries and the Parent with its officers and employees and Independent accountants and to examine its books of account. The Buyer shall use commercially reasonable efforts to avoid interruption of the normal business operations of Guarantor and Seller. Further, Guarantor will make available to Buyer, at such time and location as Buyer may reasonably request, a knowledgeable financial or accounting officer and will instruct such officer to answer candidly and fully, at no cost to Buyer, any and all reasonable questions that any authorized representative of Buyer may address to them in reference to the Mortgage Loan Files, Purchased Assets and/or the financial condition or affairs of Guarantor and its Subsidiaries and the Parent. Without limiting the generality of the foregoing, each of Guarantor and Seller acknowledges that Buyer shall purchase Assets from Seller based solely upon the information provided by Seller to Buyer in the Transaction Request and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right, at any time to re-underwrite any of the Purchased Assets and/or Related Mortgage Loans itself or engage a third party underwriter to perform such re-underwriting. Each of Guarantor and Seller agrees to cooperate with Buyer and any third party underwriter in connection with such re-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 Purchased Assets and/or Related Mortgage Loans in the possession, or under the control, of Seller or Guarantor. Notwithstanding anything to the contrary in this Section 6.6, neither Guarantor nor Seller will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter that (x) constitutes non-financial trade secrets or nonfinancial proprietary information, (y) in respect of which disclosure to the Buyer (or its representatives or third party underwriters) is prohibited by law or any binding confidentiality agreement or (z) is subject to attorney-client or similar privilege or constitutes attorney work product. Seller and Buyer further agree that all reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with Buyer’s activities pursuant to this Section 6.6 shall be paid by Seller. |
ARTICLE 7
| 7.1 | Initial Transaction. As conditions precedent to Buyer considering whether to enter into the initial Transaction hereunder: |
| (a) | Seller shall have delivered to Buyer, in form and substance satisfactory to Buyer: |
| (i) | each of the Principal Agreements duly executed by each party thereto and in full force and effect, free of any modification, breach or waiver; |
| (ii) | an opinion of (i) Seller’s and Guarantor’s in-house counsel with respect to corporate matters regarding Seller and Guarantor, and an opinion with respect to the inapplicability of the Investment Company Act of 1940 with respect to the Seller and Guaranty and the “▇▇▇▇▇▇▇ Rule” (Section 619 of the ▇▇▇▇ ▇▇▇▇▇ Wall Street Reform and Consumer Protection Act), with respect to Seller, in form and substance reasonably acceptable to Buyer, and (ii) Seller’s and Guarantor’s outside counsel with respect to enforceability matters regarding the Principal Agreements, Buyer’s perfected security interest in the Purchased Assets and Purchased Items, and a Bankruptcy Code opinion with respect to the matters outlined in Section 14.18(a), each in form and substance reasonably acceptable to Buyer; |
| (iii) | a Power of Attorney duly executed by Seller and Guarantor and notarized; |
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| (iv) | a certified copy of (a) Seller’s certificate of formation and Seller Limited Liability Company Agreement and (b) Guarantor’s certificate of incorporation and bylaws and, if required by Buyer, a certificate of good standing issued by the appropriate official in Seller’s and Guarantor’s applicable jurisdiction of organization, in each case, dated no less recently than fourteen (14) days prior to the Effective Date; |
| (v) | one or more certificates of Seller’s and Guarantor’s corporate secretary as to the incumbency and authenticity of the signatures of the officers of Seller and Guarantor executing the Principal Agreements and the resolutions of the board of directors of Seller and Guarantor (or their respective equivalent governing body or Person); |
| (vi) | independently audited financial statements of Guarantor (and its Subsidiaries, on a consolidated basis) for each of the two (2) fiscal years most recently ended (if available), containing a balance sheet and related statements of income, stockholders’ equity and cash flows, all prepared in accordance with GAAP, applied on a basis consistent with prior periods, and otherwise acceptable to Buyer, together with an auditor’s opinion that is unqualified or otherwise is consented to in writing by Buyer; |
| (vii) | interim financial statements of Guarantor (and its Subsidiaries, on a consolidated basis) covering the period from the first day of the current fiscal year to the last day of the most recently ended month; |
| (viii) | copies of Guarantor’s errors and omissions insurance policy or mortgage impairment insurance policy and blanket bond coverage policy or certificates of insurance for such policies, all in form and content satisfactory to Buyer, showing compliance by Guarantor with Section 9.8; |
| (ix) | a copy of Guarantor’s underwriting guidelines for Mortgage Loans, as amended from time to time; |
| (x) | the Upfront Fee and any other fees then due and owing under this Agreement and the Transactions Terms Letter; and |
| (xi) | the Participation Certificate registered in the name of Buyer. |
| (b) | Buyer shall have determined that it has received satisfactory evidence that the appropriate Uniform Commercial Code Financing Statements (UCC-1) and/or such other instruments as may be necessary in order to create in favor of Buyer, a perfected first- priority security interest in the Purchased Assets and related Purchased Items should any of the Transactions be deemed to be loans, and same shall have been duly executed and appropriately filed or recorded in each office of each jurisdiction in which such filings and recordations are required to perfect such first-priority security interest. |
| (c) | Buyer shall have determined that it has satisfactorily completed its due diligence review of Seller’s operations, business, financial condition and underwriting and origination of Mortgage Loans. |
| (d) | Guarantor and Seller shall have provided evidence, satisfactory to Buyer, that each of Seller and Guarantor has all of its Approvals and such Approvals are in good standing. |
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| (a) | Seller shall have delivered to Buyer and Disbursement Agent, as applicable, in form and substance satisfactory to Buyer and not later than 4:00 p.m. (New York City time) on the requested Purchase Date: |
| (i) | a Transaction Request for the Assets subject to the proposed Transaction; |
| (ii) | to the Custodian, a complete Mortgage Loan File for each Mortgage Loan subject to the proposed Transaction, unless such Mortgage Loan is a Wet Mortgage Loan; and |
| (iii) | such other documents pertaining to the Transaction as Buyer may reasonably request, from time to time; |
| (b) | Seller shall have delivered to Buyer, in form and substance satisfactory to Buyer and not later than 5:00.p.m. (New York City time) on the Business Day prior to the Purchase Date an estimate, in each case executed by Seller, of the aggregate Purchase Price for all Transactions with respect to which Seller anticipates that Seller will deliver, or has delivered, Transaction Requests with respect to such Purchase Date. For purposes of clarity, Seller is under no obligation to request to enter into Transactions on the related Purchase Date with an aggregate Purchase Price for all Transactions or the related Purchase Date equal to such funding estimate; |
| (c) | an amount equal to the Haircut for all Mortgage Loans proposed to be sold under such Transaction shall be on deposit in the Wire-out Account; |
| (d) | for all Wet Mortgage Loans proposed to be sold under such Transaction, Seller shall have delivered to (i) the applicable Closing Agent the Irrevocable Closing Instructions and final closing instructions and, if applicable, (ii) Guarantor is in possession of the documents set forth in Section 3.6(a) in accordance with Section 3.6(a) and Section 9.9; |
| (e) | on or prior to the Pooling Date for any Pooled Mortgage Loan, Seller shall deliver or cause to be delivered (A) to Buyer, an executed trust receipt from the Custodian relating to such Mortgage Loan in form and substance satisfactory to Buyer, (B) to the Custodian (or otherwise made available to the Custodian), all documents, schedules and forms required by and in accordance with the Custodial Agreement, and (C) to Buyer or its designee, a copy of each of the applicable Agency Documents; |
| (f) | on or prior to the related Settlement Date for any Mortgage-Backed Security relating to a Purchased Mortgage Loan, Seller shall have provided Buyer or its designee with the CUSIP number for such Mortgage-Backed Security; |
| (g) | Seller shall have paid all fees (including Non-Usage Fees and Minimum Utilization Fees), expenses, indemnity payments and other amounts that are then due and owing under the Principal Agreements; |
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| (h) | no rescission notice and/or notice of right to cancel shall have been improperly delivered to the Mortgagor in respect of any Eligible Mortgage Loan, and the rescission period related to such Eligible Mortgage Loan shall have expired, except in all cases for Mortgage Loans that no longer constitute Related Mortgage Loans; |
| (i) | Seller shall have designated an Approved Payee, if applicable, to whom such funds shall be delivered; |
| (j) | the representations and warranties of Guarantor and Seller set forth in Article 8 hereof shall be true and correct in all material respects as if made on and as of the date of each Transaction, except to the extent that such representations and warranties expressly relate to an earlier specified date or period, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date. |
| (k) | Seller and Guarantor shall have performed all agreements to be performed by them hereunder and under the Guaranty and Security Agreement (including, but not limited to, fulfilling any claim made by Buyer under the Guaranty and Security Agreement) and any other Principal Agreement, respectively; |
| (l) | no Potential Default, Event of Early Termination, Event of Default, Material Adverse Effect with respect to Seller or Guarantor or Cease Funding Event shall have occurred and be continuing or would result from such Transaction; |
| (m) | no Servicer Termination Event shall have occurred and be continuing and, at any time at which Guarantor is not the Servicer, to the extent not already provided, a Servicing Agreement duly executed by the applicable Servicer and Guarantor or a Servicer Notice, if applicable, shall have been delivered to Buyer and the current Servicer has been approved by Buyer; |
| (n) | to the extent any amendments or updates to Guarantor’s underwriting guidelines relate to the Mortgage Loans proposed to be subject to such Transaction, Buyer shall have received a copy of any such amendments or updates certified by Guarantor to be a true and complete copy (to the extent not already delivered to Buyer) that clearly identifies the changes to the underwriting guidelines and Buyer shall not have rejected such amendments or updates in accordance with this Section 7.2(n). Any such amendment shall not apply to Transactions entered into prior to the effective date of the amendment and in no event shall the amendment apply to any Transaction on a retroactive basis. Any such amendment or update may be rejected by Buyer, in its sole and absolute discretion, by delivering notice of such rejection to Seller following receipt thereof; provided, however, that with respect to any such amendment or update to Guarantor’s underwriting guidelines related to Mortgage Loans other than Jumbo Mortgage Loans, Buyer shall be deemed to not have rejected such amendment or update on the date that is ten (10) Business Days after receipt by Buyer of a copy of such amendment or update, unless Buyer rejects, in its sole discretion, such amendment or update prior to the effectiveness of such deemed non- rejection; provided, that such ten (10) Business Day period may be extended by Buyer by successive periods of ten (10) Business Days (by delivery to Seller of written notice of each such extension) so long as Buyer is using reasonable efforts to make a determination in good faith as to whether or not to reject such amendment or update. For purposes of clarity, any such underwriting guidelines shall, for purposes hereunder, exclude any such rejected amendment or updates. |
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| (o) | Guarantor or Seller shall have deposited (or have caused the Servicer to deposit) all amounts required under Section 6.2(h) into the Custodial Account; |
| (p) | if such Transaction is not subject to the Joint Securities Account Control Agreement, Seller agrees to deliver to Buyer, each related Trade Assignment, within one (1) Business Day of the date of the related Purchase Commitment, executed by Guarantor, together with a true and complete copy of the related Purchase Commitment for any Assets subject to the proposed Transaction that are subject to a Purchase Commitment; |
| (q) | the Purchase Price for each proposed Transaction shall not cause (i) the Aggregate Outstanding Purchase Price to exceed the Aggregate Transaction Limit, and (ii) the Aggregate Outstanding Purchase Price for all relevant Purchased Assets to exceed the product of the applicable Type Sublimit (expressed as a decimal and as determined by the Type of Purchased Asset) and the Aggregate Transaction Limit or the Aggregate Outstanding Purchase Price, as applicable pursuant to the Transactions Terms Letter; |
| (r) | without the prior approval of Buyer, (i) the Purchase Date for any Transaction shall only occur on a Business Day, (ii) there shall be no more than [***] Transaction Requests submitted in any calendar month and (iii) there shall be no more than [***] Transaction Requests submitted on any Business Day; and |
| (s) | Buyer shall have determined that it has satisfactorily completed, in the reasonable discretion of Buyer, any due diligence with respect to Seller, the Purchased Assets, the Transaction or any other matters. |
For the avoidance of doubt, notwithstanding that the foregoing conditions may be satisfied with respect to any Transaction, with respect to the Uncommitted Amount request, Buyer shall be under no obligation to enter into any Transaction with respect to the Uncommitted Amount and whether Buyer enters into any Transaction shall be at the discretion of Buyer.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES
| (a) | Due Formation and Good Standing; Equity Interests and Ownership. It (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (ii) has the full legal power and authority and has all governmental licenses, |
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| authorizations, consents and approvals, necessary to own its property and to carry on its business as currently conducted, and (iii) is duly qualified to do business and is in good standing in each jurisdiction in which the transaction of its business makes such qualification necessary, except in jurisdictions where the failure to be so qualified or in good standing has not had, and would not be reasonably expected to have, a Material Adverse Effect. Schedule 2 correctly sets forth the ownership interest of Guarantor and each of its Subsidiaries in their respective Subsidiaries as of the Effective Date. |
| (b) | Authorization. The execution, delivery and performance by it of the Principal Agreements to which it is a party and all other documents and transactions contemplated thereby, are within its limited liability company powers or corporate powers, as applicable, have been duly authorized by all necessary limited liability company or corporate, as applicable, action and do not constitute or will not result in (i) a breach of any of the terms, conditions or provisions of its certificate of formation or operating agreement (or corresponding organizational documents if it is not a limited liability company); (ii) a breach of any indenture, loan agreement, warehouse line of credit, repurchase agreement, mortgage, deed of trust, servicing contract or any other material contractual obligation of it except to the extent such breach would not reasonably be expected to have a Material Adverse Effect; (iii) the violation of any applicable law, rule or regulation, except, in each case, where such violation would reasonably be expected to have a Material Adverse Effect; (iv) the violation of any order, judgment, injunction or decree of any court or other agency of government binding on it, (v) require the creation or imposition of any Lien upon any of the properties or assets of Seller or Guarantor (other than any Liens created under any of the Principal Agreements in favor of Buyer), or (vi) require any approval of stockholders, members or partners or any approval or consent of any Person under any material contractual obligation of it, except for such approvals or consents which have been obtained on or before the Effective Date. |
| (c) | Enforceable Obligation. The Principal Agreements to which it is a party constitute the legal, binding and valid obligations of it, enforceable against it in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditor’s rights. |
| (d) | Approvals. The execution and delivery of the Principal Agreements and the performance of its obligations thereunder do not require any order, license, consent, approval, authorization, validation or other action of any Governmental Authority, or if required, such license, consent, approval, authorization or other action has been obtained prior to the Effective Date. |
| (e) | Compliance with Laws. It is not in violation of any of its certificate of formation or operating agreement (or corresponding organizational documents if it is not a limited liability company), of any provision of any applicable law, or of any judgment, award, rule, regulation, order, decree, writ or injunction of any court or public regulatory body or authority that could reasonably be expected to result in a Material Adverse Effect. |
| (f) | Financial Condition. The financial statements of Guarantor delivered to Buyer on or prior to the Effective Date fairly present in all material respects on a consolidated basis the assets, liabilities and financial position of Guarantor as at the dates of such financial statements, and the results of the operations and changes of financial position for the periods then ended (other than customary year-end adjustments for unaudited financial statements). For the avoidance of doubt, the financial statements described in the preceding sentence (the |
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| receipt of which is hereby acknowledged by Buyer) consist of copies of the audited Guarantor’s balance sheet for the fiscal year of Guarantor ended December 31, 2019, with the opinion thereon of Guarantor’s independent accountants, and the unaudited Guarantor’s balance sheet for the fiscal month of Guarantor ended July 31, 2020 and related statements of income for Guarantor for such periods. All such financial statements are complete and correct and fairly present, in all material respects, the financial condition of Guarantor and the results of its operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis. Since December 31, 2019, there has been no Material Adverse Change in the consolidated business, operations or financial condition of Guarantor from that set forth in such financial statements nor is Guarantor aware of any state of facts which (with notice or the lapse of time) would or could result in any such Material Adverse Change. |
| (g) | Credit Facilities. As of the Effective Date, the only credit facilities, including repurchase agreements for mortgage loans and mortgage-backed securities, of Seller or Guarantor that are presently in effect and are secured by mortgage loans or provide for the purchase, repurchase or early funding of mortgage loan sales, are with Persons disclosed to Buyer at the time of application (and thereafter disclosed to Buyer in accordance with Section 9.1(c)). |
| (h) | Title to Assets. It has good, valid, insurable (in the case of real property) and marketable title to all of its properties and other assets, whether real or personal, tangible or intangible, reflected on the financial statements delivered to Buyer and/or necessary in the ordinary course of its business, including, as applicable, the Related Mortgage Loans, the Purchased Assets and the related Purchased Items, and the Related Mortgage Loans, the Purchased Assets and the related Purchased Items are free and clear of all liens other than Permitted Collateral Liens. |
| (i) | Litigation. There is no action, proceeding or investigation pending with respect to which it has received service of process or, to the knowledge of a Responsible Officer of it, threatened in writing against it before any Governmental Authority or Agency (A) asserting the invalidity of this Agreement, any Principal Agreement or any transaction contemplated hereunder, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any Principal Agreement or any transaction contemplated hereunder, (C) making a claim individually or in the aggregate that would reasonably be expected to result in a Material Adverse Effect if adversely determined, or (D) which requires filing with the SEC in accordance with the Securities Exchange Act of 1934 (and the rules and regulations of the SEC promulgated thereunder) to the extent the Guarantor or Seller is a public filer and such filings are required. |
| (j) | Payment of Taxes. It has duly and timely filed or caused to be duly and timely filed (i) all Federal, state, provincial, territorial, foreign and other income Tax returns, and (ii) all material Tax returns, other than income Tax returns, and has timely paid all Federal, state, provincial, territorial, foreign, and other Taxes, assessments, fees and other governmental charges levied upon it or its property, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate actions diligently conducted and for which adequate reserves have been provided in accordance with GAAP. |
| (k) | No Defaults. It is not in default under any indenture, mortgage, deed of trust, agreement or other instrument or contractual or legal obligation to which it is a party or by which it is bound in any respect that could reasonably be expected to result in a Material Adverse Effect. |
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| (l) | ERISA. None of Guarantor, Seller, Guarantor’s or Seller’s direct parent nor any Subsidiary of Guarantor or Seller maintains, contributes to, has any obligation to contribute to or has any liability (contingent or otherwise) with respect to any Single Employer Plan or Multiemployer Plan. Neither Guarantor nor Seller has any liability with respect to any Single Employer Plan or Multiemployer Plan maintained or contributed to by any of their respective ERISA Affiliates that would reasonably be expected to result in a Material Adverse Effect to Guarantor or Seller. Neither Seller nor Guarantor is (or is acting on behalf of) (i) an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code or a “governmental plan” within the meaning of Section 3(32) of ERISA, (ii) a Person subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans or (iii) a Person holding assets that constitute “plan assets” within the meaning of 29 C.F.R. Section 2510.3- 101, as modified in application by Section 3(42) of ERISA. |
| (m) | True and Complete Disclosure. All information, reports, financial statements, exhibits and schedules furnished or to be furnished, or made available, by or on behalf of Seller, Guarantor or any of their respective Subsidiaries to Buyer in connection with the initial or ongoing due diligence of Seller or Guarantor or the negotiation, preparation or delivery of this Agreement and the other Principal Agreements or in connection with this Agreement and the other Principal Agreements and the transactions contemplated hereby or thereby or included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, (i) are, when furnished, true and correct in all material respects, or, in the case of financial projections, forward looking statements and information of a general economic or industry specific nature, based upon good faith estimates and stated assumptions believed to be reasonable and fair as of the date made in light of conditions and facts then known and (ii) does not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in the light of the circumstances under which such statements are made. |
| (n) | Ownership; Priority of Liens. Seller owns all Assets identified in the Transactions Terms Letter that are to become Purchased Assets on the related Purchase Date, and Guarantor owns all Related Mortgage Loans, and any Transaction shall convey all of Seller’s right, title and interest in and to the related Purchased Assets and other Purchased Items to Buyer, including with respect to each Related Mortgage Loan, the Servicing Rights related thereto. This Agreement creates in favor of Buyer, a valid, enforceable first priority lien and security interest in the Purchased Assets and other Purchased Items, prior to the rights of all third Persons and subject to no other liens (other than Permitted Collateral Liens). |
| (o) | Investment Company Act. None of Seller or Guarantor is required to register as an “investment company” under the Investment Company Act of 1940 (as amended, the “Investment Company Act”), and although there may be additional exclusions or exemptions available to Seller, Seller will rely on Section 3(c)(5)(C) under the Investment Company Act for its exclusion from the definition of “investment company.” No Transaction represents an “ownership interest” in Seller for purposes of the “▇▇▇▇▇▇▇ Rule” (Section 619 of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act). The Seller is structured so as not to constitute a “covered fund” as defined in the final regulations issued December 10, 2013, implementing the “▇▇▇▇▇▇▇ Rule” (Section 619 of the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act). |
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| (p) | Filing Jurisdictions; Relevant States. Schedule 1 hereto sets forth all of the jurisdictions and filing offices in which a financing statement should be filed in order for Buyer to perfect its security interest in the Purchased Assets and other Purchased Items and the Related Mortgage Loans (including the Servicing Rights related to the Related Mortgage Loans); provided that the list of such jurisdictions and filing offices may change upon notice by Seller or Guarantor to Buyer in accordance with Section 9.2(h). Guarantor originates or has originated or anticipates originating Mortgage Loans in its own name or through brokers in all fifty (50) states. |
| (q) | Solvent; Fraudulent Conveyance. As of the date hereof and immediately after giving effect to each Transaction, the fair value of its assets is greater than the fair value of its liabilities (including, without limitation, contingent liabilities if and to the extent required to be recorded as a liability on the financial statements of it in accordance with GAAP) and it is and will be solvent, is and will be able to pay its debts as they mature and does not and will not have an unreasonably small capital to engage in the business in which it is engaged and proposes to engage. It does not intend to incur, or believe that it has incurred, debts beyond its ability to pay such debts as they mature. It 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 it or any of its assets. It is not transferring any Assets with any intent to hinder, delay or defraud any of its creditors. |
| (r) | Custodial Account. All funds required pursuant to this Agreement, any Servicing Agreement or any Servicer Notice, if applicable, to be segregated and deposited into the Custodial Account have been so segregated and deposited as required by, and in accordance with this Agreement. |
| (s) | Chief Executive Office. Except as identified pursuant to a notice delivered in accordance with Section 9.2(h), its chief executive office is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. |
| (t) | No Adverse Selection. Neither Guarantor nor Seller used any selection procedures that identified Assets offered for sale to Buyer hereunder as being less desirable or valuable than other comparable Assets owned by it. |
| (u) | MERS. Guarantor is a member of MERS in good standing. |
| (v) | Agency Approvals. The Guarantor has all requisite Approvals and is in good standing with each Agency, as applicable; and in each case, with no event having occurred (including, without limitation, a change in insurance coverage) which would make it unable to comply in any material respect with the Agency eligibility requirements; provided, that Guarantor may voluntarily choose to surrender its Approvals with one or more Agencies, as long as one or more Approvals is maintained with ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇▇ Mac, and/or ▇▇▇▇▇▇ Mae and, at the time of such surrender, such Approvals to be surrendered are not with respect to any Agency that has been identified to relate to any Purchased Asset. |
| (w) | No Adverse Actions. To the extent approved by an Agency, HUD, the FHA, the VA or the RD, it has not received from any Agency, HUD, the FHA, the VA or the RD a notice of extinguishment or a notice indicating material breach, default or material non- compliance which could be reasonably likely to cause such Agency or HUD, the FHA, the VA or the RD to terminate, suspend, sanction or levy penalties against it, or a notice from |
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| any Agency, HUD, the FHA, the VA or the RD indicating any adverse fact or circumstance in respect of it which could be reasonably likely to cause such Agency or HUD, the FHA, the VA, or the RD, as the case may be, to revoke any of its Approvals or otherwise terminate, suspend it as an approved issuer, seller or servicer, as applicable, or with respect to which such adverse fact or circumstance has caused any Agency, HUD, the FHA, the VA or the RD to terminate it. |
| (x) | Accuracy of Wire Instructions. With respect to each Purchased Mortgage Loan subject to a Purchase Commitment by an Agency, as applicable, either (1) the wire transfer instructions as set forth on the applicable Agency Documents are identical to Buyer’s (or the Paying Agent under the Joint Account Control Agreement) designated wire instructions or Buyer has approved such wire transfer instructions in writing in its sole discretion, or (2) the payee number set forth on the applicable Agency Documents is identical to the payee number that has been identified by Buyer in writing as Buyer’s (or the Paying Agent under the Joint Account Control Agreement) payee number or Buyer has approved the related payee number in writing in its sole discretion. With respect to each Pooled Mortgage Loan, the applicable Agency Documents are duly executed by it and designate Buyer or its designee (or the Securities Intermediary under the Joint Securities Account Control Agreement) as the party authorized to receive the related Mortgage-Backed Securities. |
| (y) | Anti-Money Laundering Laws. It has complied with all applicable anti-money laundering laws and regulations, including without limitation the Patriot Act (collectively, the “Anti- Money Laundering Laws”); it has established an anti-money laundering compliance program as required by the Anti-Money Laundering Laws, has conducted the requisite due diligence in connection with the acquisition of each Mortgage Loan for purposes of the Anti-Money Laundering Laws, and maintains, and will maintain, sufficient information to identify the applicable Mortgagor for purposes of the Anti-Money Laundering Laws. |
| (z) | Anti-Terrorism; OFAC. |
| (i) | None of Guarantor, Seller, nor any of their respective officers, directors or employees appears on the Specially Designated Nationals and Blocked Persons List published by the OFAC or is otherwise a person with which any U.S. person is prohibited from dealing under the laws of the United States, unless authorized by OFAC. Neither Guarantor nor Seller conducts business or completes transactions with the governments of, or persons within, any country under economic sanctions administered and enforced by OFAC. Neither Guarantor nor Seller will directly or indirectly use the proceeds from this Agreement, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person to fund any activities of or business with any person that, at the time of such funding, is the subject of economic sanctions administered or enforced by OFAC, or is in any country or territory that, at the time of such funding or facilitation, is the subject of economic sanctions administered or enforced by OFAC. Neither Guarantor nor Seller is in violation of Executive Order No. 13224 (the “Executive Order”) or the PATRIOT Act. |
| (ii) | No part of the proceeds of the Purchase Price will be used, directly or indirectly, by any Person for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended. |
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| (iii) | It acknowledges by executing the this Agreement and the other Principal Agreement to which it is a party that Buyer has notified it that, pursuant to the requirements of the Patriot Act, Buyer is required to obtain, verify and record such information as may be necessary to identify Seller, and confirm that the administrator of it (or the administrator of the applicable direct or indirect owner of Equity Interests of it) has obtained, verified and recorded such information as may be necessary to identify any Person owning ten percent (10%) or more of the direct Equity Interests of it (including, without limitation, the name and address of such Person), in each case, in accordance with the Patriot Act. |
| (iv) | None of Guarantor, Seller or any director, officer, agent or employee of Guarantor or Seller, has used any of the proceeds of any Transaction (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any direct or indirect unlawful payment to any government official or employee from corporate funds, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar law of a jurisdiction in which either Guarantor or Seller conducts its business and to which they are lawfully subject or (iv) to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment. |
| (aa) | Servicing Rights. Notwithstanding anything to the contrary in this Agreement or any other Principal Agreement, it has not severed or separated the Servicing Rights and other servicing provisions related to the Related Mortgage Loans from the Related Mortgage Loans and such Servicing Rights and other servicing provisions of this Agreement and any other Principal Agreement constitute (a) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or other arrangement or other credit enhancement related to the Principal Agreements. Buyer acknowledges that Guarantor retains legal title to the Related Mortgage Loans and legal title to the Servicing Rights in respect of the Related Mortgage Loans, and that the sale of the Participation Interest in the Servicing Rights does not sever the Servicing Rights from the Related Mortgage Loans. |
| (bb) | Agreements. It is not a party to any agreement, instrument, or indenture or subject to any restriction that materially and adversely affects its business, operations, assets or financial condition, except, with respect to Guarantor, as disclosed in the financial statements described in Section 8.1(f) or as set forth on Schedule 3 attached hereto. It is not in breach or default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement, instrument, or indenture which default could have a Material Adverse Effect on it. There are no breaches or defaults under the Principal Agreements to which it is a party. No holder of any indebtedness of it has given notice of any asserted default thereunder. |
| (cc) | Risk Management Policy. Guarantor has duly adopted, in accordance with its internal risk policies, a risk management policy, which is in full force and effect. A copy of such risk management policy has been previously delivered to Buyer. |
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ARTICLE 9
Each of Seller and Guarantor hereby covenants and agrees with Buyer that during the term of this Agreement and for so long as there remain any obligations of Seller and/or Guarantor to be paid or performed under the Principal Agreements (other than the Seller Limited Liability Company Agreement):
| 9.1 | Financial Statements and Other Reports. |
| (a) | Interim Statements. As soon as possible but in no event more than ninety (90) calendar days after the end of each fiscal quarter other than the fiscal quarter ending December 31 of each fiscal year, Seller shall cause Guarantor to deliver, and Guarantor shall deliver, to Buyer unaudited consolidated balance sheets and income statements for such fiscal quarter on a year-to-date basis for Guarantor. |
| (b) | Annual Statements. As soon as possible but in no event on or before the last calendar day of Guarantor’s first fiscal quarter, Seller shall cause Guarantor to deliver, and Guarantor shall deliver, to Buyer audited financial statements for the prior fiscal year, the unqualified audited consolidated balance sheet of Guarantor and its consolidated Subsidiaries as of the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for such fiscal year, in each case, setting forth comparative figures for the preceding fiscal year, prepared in accordance with GAAP audited by a Nationally Recognized Accounting Firm. |
| (c) | Officer’s Certificate. Within forty-five (45) days after the end of each calendar month, Seller shall cause Guarantor to deliver, and Guarantor shall deliver, to Buyer an officer’s certificate substantially in a form attached hereto as Exhibit C, which shall include details of uninsured Government Mortgage Loans, information related to repurchases and early payment defaults, a list of all mortgage financing facilities including, without limitation, any warehouse, repurchase, purchase or off-balance sheet facilities, that were entered into by Guarantor or Seller in the preceding month, and evidence of compliance with all financial covenants. |
| (d) | Funding and Production Volume Reports. Upon request of Buyer (which shall be no more often than quarterly), Seller shall cause Guarantor to deliver, and Guarantor shall deliver, to Buyer, a funding and production volume report for the prior calendar quarter. |
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| (e) | Monthly Collateral Tape. Seller shall cause Guarantor to, and Guarantor shall, (i) deliver to Buyer within five (5) Business Days after the end of each month, a collateral tape including the data fields (to be determined, but to include, at a minimum fields for unpaid principal balance and interest paid to date) representing the Related Mortgage Loans related to the Purchased Mortgage Loans subject to Transactions hereunder as of the end of such month, reasonably acceptable to Buyer in its discretion and (ii) promptly deliver to Buyer any additional information as reasonably requested. |
| (f) | Other Reports. As may be reasonably requested by Buyer from time to time and except to the extent not permitted because of confidentiality restrictions, Seller shall cause Guarantor to deliver to, and Guarantor shall deliver to, or make available for viewing by, Buyer within thirty (30) calendar days of filing or receipt of (i) copies of all regular or periodic financial or other reports, if any, that Guarantor files with any governmental, regulatory or other agency and (ii) unless otherwise expressly prohibited from doing so in writing by the applicable Agency or licensing authority, copies of all audits, examinations and reports concerning the operations of Guarantor from any Agency or licensing authority. In addition, Seller shall cause Guarantor to deliver to, and Guarantor shall deliver to, or make available for viewing by, Buyer, with reasonable promptness, such further information reasonably related to the business, operations, properties or financial condition of Seller or Guarantor, in such detail and at such times as Buyer may reasonably request. Each of Seller and Guarantor understands and agrees that all reports and information provided to Buyer by or relating to Seller or Guarantor may be disclosed to Buyer’s Affiliates. |
| (a) | any action, suit or proceeding in any federal, state or foreign court or before any commission or other regulatory body (federal, state or local, foreign or domestic), or any such action, suit or proceeding threatened in writing against Seller or Guarantor, in any case, if such action, suit or proceeding (i) entails a reasonable likelihood of one or more awards against the Seller or Guarantor in a total amount equal to or greater than $[***], (ii) that causes the aggregate outstanding potential liability of actions, suits, and proceedings with respect to which there is a reasonable likelihood of an adverse determination to exceed $[***], (iii) is reasonably likely to result in a Material Adverse Effect with respect to Seller or Guarantor, (iv) questions or challenges the validity or enforceability of any of the Principal Agreements, or (v) questions or challenges compliance of (x) with respect to any Related Mortgage Loans, Purchased Asset or assets similar to the Purchased Assets, with the Ability to Repay Rule or (y) with respect to any Related Mortgage Loans, Purchased Assets, or assets similar to the Purchased Assets, the QM Rule; |
| (b) | the filing, recording or assessment of any federal, state or local Tax lien against Seller or Guarantor, or any of Seller’s or Guarantor’s assets, unless such filing, recording or assessment could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect with respect to Seller or Guarantor; |
| (c) | the occurrence of any Potential Default or Event of Default; |
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| (d) | the actual, or threatened in writing, material suspension, revocation or termination (other than a termination by Guarantor without cause) of Seller’s or Guarantor’s licensing or eligibility, if any, in any respect, as an approved, licensed lender, seller, mortgagee or servicer of assets similar to the Purchased Assets or Related Mortgage Loans; |
| (e) | any Purchased Asset ceases to be an Eligible Asset or is a Defective Asset; |
| (f) | any Approved Investor that threatens in writing to set-off amounts owed by Seller or Guarantor to such Approved Investor against the purchase proceeds owed by the Approved Investor to Seller or Guarantor for the Related Mortgage Loans and/or Mortgage-Backed Securities with respect to the Purchased Assets (excluding amounts owed by Seller or Guarantor to the Approved Investor which are directly related to Purchased Assets and which are expressly allowed to be set-off by the Approved Investor pursuant to the related Bailee Agreement or Purchase Commitment); |
| (g) | any condition or event that constitutes an “event of default” under any Debt with an outstanding principal amount greater than $[***] or that notice has been given to any party thereunder with respect thereto, or the occurrence of any event or change that has, or could reasonably be expected to have, a Material Adverse Effect; |
| (h) | any (i) change to the location of its chief executive office/chief place of business from that specified in Section 8.1(s), (ii) change in the name or corporate structure (or the equivalent) of Seller or Guarantor or change in the location where Seller or Guarantor maintains its records with respect to the Purchased Assets or any Purchased Items, or (iii) reincorporation or reorganization of Seller or Guarantor under the laws of another jurisdiction; |
| (i) | in each case, other than any proceeding that relates solely to a single individual Mortgage Loan or in the ordinary course, (i) any material penalties, sanctions or charges levied against Seller or Guarantor or any adverse change made in writing in its Approval status, or (ii) the commencement of any material non-routine investigation or the institution of any proceeding against Seller or Guarantor by any Agency, HUD, the FHA, the VA, the RD or any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of, Seller or Guarantor; |
| (j) | it or any Servicer will change the identity or location of the Custodial Account; |
| (k) | any termination or termination threatened in writing by any Agency of the Custodian as an eligible custodian; |
| (l) | any change to the date on which Seller’s or Guarantor fiscal year begins from Seller’s or Guarantor’s current fiscal year beginning date; |
| (m) | [Reserved]; |
| (n) | after the Effective Date, any settlement with, or issuance of a consent order by, any Governmental Authority, in which the fines, penalties, settlement amounts or any other amounts owed by Seller or Guarantor thereunder exceed $[***] in the aggregate; |
| (o) | a Servicer fails to maintain two out of three of the following prime servicer ratings: |
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| (i) | a rating with Standard & Poor’s Financial Services LLC of Average, |
| (ii) | a rating with ▇▇▇▇▇’▇ of SQ4+, and |
| (iii) | a rating with Fitch Ratings, Inc. of RPS3-; |
| (p) | any final judgment or decree entered against Seller or Guarantor or any of their respective Subsidiaries by a court, administrative tribunal or other body having jurisdiction involving a liability of $[***] or more; |
| (q) | that the representation and warranty set forth in Section 8.1(aa) shall prove to have been false in any respect as of the time made; |
| (r) | any change in any of the chief executive officer, chief financial officer or chief operating officer of Seller or Guarantor; and |
| (s) | any cancellation or reduction in the terms of any such insurance required to be maintained by Section 9.8. |
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| (a) | any Reportable Event or failure to meet minimum funding standards with respect to a Single Employer Plan; provided that a failure to meet the minimum funding standard of Section 412 of the Code or Sections 302 or 303 of ERISA with respect to a Single Employer Plan, including, without limitation, the failure to make on or before its due date a required installment under Section 430(j) of the Code or Section 303(j) of ERISA, shall be a reportable event regardless of the issuance of any waivers in accordance with Section 412(c) of the Code or any request for a waiver under Section 412(c) of the Code for any Single Employer Plan; |
| (b) | the distribution under Section 4041(c) of ERISA of a notice of intent to terminate any Single Employer Plan or any action taken by Seller, Guarantor or an ERISA Affiliate of Seller or Guarantor to terminate any Single-Employer Plan; |
| (c) | the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Single Employer Plan, or the receipt by Guarantor, Seller, any Subsidiary thereof or their respective ERISA Affiliates of a notice from a Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan; |
| (d) | the complete or partial withdrawal from a Multiemployer Plan by Guarantor, Seller, any Subsidiary thereof or their respective ERISA Affiliates that results in liability under Section 4201 or 4204 of ERISA (including the obligation to satisfy secondary liability as a result of a purchaser default) or the receipt by Guarantor, Seller, any Subsidiary thereof or their respective ERISA Affiliates of notice from a Multiemployer Plan that it is in insolvency pursuant to Section 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of ERISA; |
| (e) | the institution of a proceeding by a fiduciary of any Multiemployer Plan against Guarantor, Seller, any Subsidiary thereof or their respective ERISA Affiliates to enforce Section 515 of ERISA, which proceeding is not dismissed within thirty (30) calendar days; and |
| (f) | the adoption of an amendment to any Single Employer Plan that, pursuant to Section 401(a)(29) and Section 436 of the Code, would result in the loss of tax-exempt status of the trust of which such Single Employer Plan is a part if Guarantor, Seller, any Subsidiary thereof or their respective ERISA Affiliates fails to timely make a contribution or provide security to such Single Employer Plan in accordance with the provisions of said Sections. |
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| amount equal to at least the Aggregate Transaction Limit; (ii) provide funding on a committed basis in an amount equal to at least the Committed Amount; and (iii) accommodate wet mortgage loans in an amount not less than the amount provided hereunder. |
ARTICLE 10
Each of Seller and Guarantor hereby covenants and agrees with Buyer that during the term of this Agreement and for so long as there remain any obligations of Seller and/or Guarantor to be paid or performed under this Agreement, each of Seller and Guarantor shall comply with the following:
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| any other payment or distribution (in cash, property, or obligations) on account of Guarantor’s or Seller’s Equity Interests, or redeem, purchase, retire, or otherwise acquire any of its Equity Interests, or set apart any money for a sinking or other analogous fund for any dividend or other distribution on its Equity Interests or for any redemption, purchase, retirement, or other acquisition of any of its Equity Interests, or undertake any new obligation (contingent or otherwise) to do any of the foregoing if any Potential Default or Event of Default exists or will exist after giving effect thereto. |
| 10.3 | [Reserved]. |
| 10.8 | [Reserved]. |
| 10.9 | Servicing Rights. Notwithstanding anything to the contrary in this Agreement or any other Principal Agreement, each of Seller and Guarantor shall not, directly or indirectly, sever or separate |
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| the Servicing Rights and other servicing provisions related to the Related Mortgage Loans from the Related Mortgage Loans and shall not take any action inconsistent with such Servicing Rights and other servicing provisions of this Agreement and any other Principal Agreement constituting (a) “related terms” under this Agreement within the meaning of Section 101(47)(A)(i) of the Bankruptcy Code and/or (b) a security agreement or other arrangement or other credit enhancement related to the Principal Agreements. Buyer acknowledges that Guarantor retains legal title to the Related Mortgage Loans and legal title to the Servicing Rights in respect of the Related Mortgage Loans, and that the sale of the Participation Interest in the Servicing Rights does not sever the Servicing Rights from the Related Mortgage Loans. |
| 10.12 | Fiscal Year. Each of Seller and Guarantor shall not change its fiscal year-end from December 31 or change its method of determining fiscal quarters. |
ARTICLE 11
| 11.1 | Events of Default. The occurrence of any of the following conditions or events shall be an Event of Default: |
| (a) | failure of Seller to transfer the Purchased Assets to Buyer on the applicable Purchase Date (provided that Buyer has tendered the related Purchase Price); |
| (b) | failure of Guarantor to perform its obligations under Section 6.2(h)(i); |
| (c) | failure of Seller to (i) repurchase the Purchased Assets on the applicable Repurchase Date, (ii) perform its obligations under Section 6.3(b), (iii) make any required payment of Non- Usage Fees or Minimum Utilization Fees when due hereunder and such failure shall continue unremedied for a period of [***] after the day such payment is due, or (iv) pay any other amount due under the Principal Agreements and such failure to such other amount due under the Principal Agreements shall continue unremedied for a period of [***] after the earlier of (A) written notice of such failure shall have been given to Seller by Buyer or (B) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure; |
| (d) | failure of Seller, any Servicer or Guarantor to deliver any report (including financial statements) required to be delivered hereunder or under any Principal Agreement or |
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| Servicing Agreement and such failure continues for a period of [***] after the earlier of (i) a written notice of such failure shall have been given to Seller by Buyer or (ii) the date upon which a Responsible Officer of the Seller or Guarantor obtained knowledge of such failure; |
| (e) | Seller’s or Guarantor’s representation and warranty in Section 8.1(o) shall be false or misleading at any time and shall not have been cured within [***] after the earlier of (i) written notice of such failure shall have been given to Seller by Buyer or (ii) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure; |
| (f) | a Material Adverse Effect with respect to Seller or Guarantor shall occur; |
| (g) | (i) Seller, Guarantor or any of their respective direct or indirect Subsidiaries shall default under, or fail to perform as required under, or shall otherwise breach (after expiration of all applicable grace periods) the terms of any instrument, agreement or contract involving outstanding unpaid obligations of $[***] or more owing by any such Person to Buyer or any of Buyer’s Affiliates (including, for the avoidance of doubt, with respect to the Portfolio ▇▇▇▇▇▇ and any other derivatives contracts to which such Person is a party), (ii) the failure of Seller or Guarantor to make any payment when due (after expiration of all applicable grace periods) on any Debt of Seller or Guarantor having an aggregate principal amount outstanding of $[***] or more (each, a “Material Debt Facility”) or (iii) the occurrence of any other “event of default” (after expiration of all applicable grace periods) under any Material Debt Facility; |
| (h) | any representation, warranty or certification made or deemed made herein or in any other Principal Agreement by Seller or Guarantor or any certificate furnished to Buyer pursuant to the provisions thereof, shall prove to have been false or misleading in any material respect as of the time made or furnished and shall not have been cured within [***] after the earlier of (i) written notice of such failure shall have been given to Seller by Buyer or (ii) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure; provided that the representations and warranties set forth in Section 8.2 and Section 8.3 shall be considered solely for the purpose of determining the Asset Value of the Purchased Assets, unless (i) Seller or Guarantor shall have made any such representations and warranties with knowledge that they were materially false or misleading at the time made or (ii) any such representations and warranties have been determined by Buyer in good faith to be materially false or misleading on a regular basis; |
| (i) | (i) the failure of Seller or Guarantor to perform, comply with or observe any term, covenant or agreement applicable to Seller or Guarantor contained in Section 9.14 or Section 10.9, (ii) the failure of Seller or Guarantor to perform, comply with or observe any term, covenant or agreement applicable to Seller or Guarantor as contained in Section 9.1, Section 9.2, Section 9.3, Section 9.13, Section 10.1, Section 10.2, Section 10.4, Section 10.6, or Section 10.7 and such failure continues for [***] after the earlier of (A) written notice of such failure shall have been given to Seller by Buyer or (B) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure or (iii) the failure of Seller or Guarantor to perform, comply with or observe any term, covenant or agreement applicable to Seller or Guarantor as contained in this Agreement or in any other Principal Agreement and such occurrence or any default shall not have been remedied within the cure period provided therein, and if no cure period is |
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| provided therein, then within [***] after the earlier of (A) written notice of such failure shall have been given to Seller by Buyer or (B) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure; |
| (j) | an Insolvency Event shall have occurred with respect to Seller or Guarantor or any of their respective Subsidiaries; or Seller or Guarantor shall admit in writing its inability to, or intention not to, perform any of its obligations under this Agreement or any of the other Principal Agreements; |
| (k) | one or more final judgments or decrees shall be entered against Seller or Guarantor or any of their respective Subsidiaries by a court, administrative tribunal or other body having jurisdiction involving a liability of $[***] or more (over and above the amount of insurance available from a financially sound insurer that has not denied coverage), and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within [***] after entry thereof; |
| (l) | any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority shall have taken any action to (i) condemn, seize or appropriate, or to assume custody or control of, all or any substantial part of the property or assets of Seller or Guarantor or any of their respective Subsidiaries; (ii) displace the management of Seller or Guarantor or any of their respective Subsidiaries or to curtail its authority in the conduct of their respective business; or (iii) to remove or suspend the approval of Seller or Guarantor or any of their respective Subsidiaries as an issuer, buyer or a seller/servicer of Mortgage Loans or securities backed thereby, and any such action provided for in this Section 11.1(l) shall not have been discontinued or stayed within [***]; |
| (m) | Seller or Guarantor shall disavow or deny its obligations hereunder or shall contest the validity or enforceability of (i) the Principal Agreements or (ii) Buyer’s interest in any Purchased Assets or other Purchased Items; |
| (n) | any Principal Agreement shall for whatever reason (including an event of default thereunder) be terminated or cease to be in full force and effect or shall be declared null and void, without the consent of Buyer (other than, with respect to the Custodial Agreement, due to the resignation of the Custodian for reasons other than a breach by Seller of the Custodial Agreement), or the Lien granted herein to Buyer shall for any reason cease to be a valid, first priority lien upon the Purchased Assets or the Purchased Items or this Agreement shall for any reason cease to create a valid, first priority security interest or ownership interest upon transfer of any of the Purchased Items or there exists any lien upon the Purchased Assets or the Purchased Items other than as granted herein to Buyer; |
| (o) | [Reserved]; |
| (p) | a Change of Control with respect to Seller or Guarantor shall occur without prior written consent of Buyer; |
| (q) | a Servicer Termination Event shall occur and, either (i) such Servicer Termination Event shall not have been cured within [***] or (ii) with respect to a Servicer Termination Event with respect to a Servicer other than Guarantor, Seller or Guarantor has not appointed a successor Servicer acceptable to Buyer and delivered a fully executed Servicing Agreement and Servicer Notice, if applicable, with such successor Servicer, in each case within thirty (30) calendar days following the occurrence of such breach or Servicer Termination Event; |
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| (r) | Guarantor’s membership in MERS is terminated for any reason; |
| (s) | a Servicer fails to make any Servicing Advance required to be made under the related Servicing Agreement, the related Servicer Notice, or this Agreement, as applicable, with respect to the Purchased Assets, only if such failure continues for more than [***] after the earlier of (i) written notice of such failure shall have been given to Seller by Buyer or (ii) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such failure; |
| (t) | any Single Employer Plan shall be terminated within the meaning of Title IV of ERISA or a trustee shall be appointed by an appropriate United States District Court to administer any Single Employer Plan, or the Pension Benefit Guaranty Corporation (or any successor thereto) shall institute proceedings to terminate any Single Employer Plan or to appoint a trustee to administer any Single Employer Plan if as of the date thereof Seller’s or Guarantor’s liability, any such Subsidiary’s liability or any ERISA Affiliate’s liability to the PBGC, the Single Employer Plan or any other entity on termination under the Single Employer Plan exceeds the then-current value of assets accumulated in such Single Employer Plan by more than $[***] (or in the case of a termination involving Seller, any Subsidiary or any ERISA Affiliate, as a “substantial employer” (as defined in Section 4001 (a)(2) of ERISA) the withdrawing employer’s proportionate share of such excess shall exceed such amount); |
| (u) | Seller or Guarantor or any Subsidiary of Seller or Guarantor or any of their respective ERISA Affiliates, in each case, as employer under a Multiemployer Plan shall have made a complete or partial withdrawal from such Multiemployer Plan and the plan sponsor of such Multiemployer Plan shall have notified such withdrawing employer that such employer has incurred a withdrawal liability in (i) an annual amount exceeding $[***], or (ii) an aggregate amount exceeding $[***]; or |
| (v) | (i) Seller or Guarantor or any Subsidiary shall engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Single Employer Plan, (ii) a determination is made that a Single Employer Plan is “at risk” (within the meaning of Section 303 of ERISA) or any Lien in favor of the PBGC or a Single Employer Plan shall arise on the assets of Seller or Guarantor, any Subsidiary thereof or any of their respective ERISA Affiliates, (iii) a Reportable Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which Reportable Event or commencement of proceedings or appointment of a trustee is likely to result in the termination of such Single Employer Plan for purposes of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) Seller or Guarantor or any Subsidiary thereof or any of their respective ERISA Affiliates shall, or in the reasonable opinion of Buyer is likely to, incur any liability in connection with a withdrawal from, or the insolvency of, a Multiemployer Plan, (vi) Seller or Guarantor, any Subsidiary thereof or any of their respective ERISA Affiliates shall file an application for a minimum funding waiver under Section 302 of ERISA or Section 412 of the Code with respect to any Single Employer Plan, (vii) any obligation of Seller or Guarantor, any Subsidiary thereof or any of their respective ERISA Affiliates for post-retirement medical costs (other than as required by the Consolidated Omnibus Budget Reconciliation Act, as |
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| amended, or similar state or local law (collectively, “COBRA”)) exists, or (viii) any other event or condition shall occur or exist with respect to a Single Employer Plan; and in each case in clauses (i) through (viii) above, such event or condition, together with all other such events or conditions, if any, could reasonably be expected to have a Material Adverse Effect, (ix) the assets of Seller or Guarantor or any Subsidiary thereof become “plan assets” within the meaning of 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, or (x) Seller or Guarantor become (or act on behalf of) a “governmental plan” within the meaning of Section 3(32) of ERISA or becomes subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans. |
With respect to any Event of Default which requires a determination to be made as to whether such Event of Default has occurred, such determination shall be made in Buyer’s discretion and Guarantor and Seller hereby agrees to be bound by and comply with any such determination by Buyer. If Buyer expressly waives an Event of Default in writing, then such Event of Default shall be deemed to not be continuing.
| 11.2 | Events of Early Termination. |
| (a) | The occurrence of any of the following conditions or events shall be an Event of Early Termination: |
| (i) | If following the Effective Date, (A) Seller or Guarantor has entered into any settlement with, or consented to the issuance of a consent order by, any Governmental Authority in which the fines, penalties, settlement amounts or any other amounts owed by Seller or Guarantor thereunder exceed $[***] in the aggregate in the calendar year following the Effective Date and (B) Buyer has not, within five (5) Business Days following Seller’s or Guarantor’s entry into such settlement or consent, provided Seller or Guarantor, as applicable, with written notice that such settlement or consent by Seller or Guarantor, as applicable, is acceptable to Buyer; or |
| (ii) | Seller has opted to wind down this facility pursuant to Section 4.5(a) or (b). |
Any determination to be made as to whether such Event of Early Termination has occurred shall be made in Buyer’s discretion and Seller and Guarantor hereby agrees to be bound by and comply with any such determination by Buyer. An Event of Early Termination shall be deemed to be continuing unless expressly waived by Buyer in writing, but shall be deemed to be not continuing upon Buyer’s express written waiver.
| (b) | Upon the occurrence of an Event of Early Termination, Buyer may, by notice to Seller, (i) immediately terminate the obligation of Buyer to enter into Transactions hereunder and (ii) declare all or any portion of the Repurchase Prices related to the outstanding Transactions to be due and payable. The failure by Seller to repay such Repurchase Prices in accordance with the foregoing shall constitute an Event of Default under Section 11.1. Buyer shall be entitled to all rights and remedies in Section 11.3. |
Buyer’s request for repayment of the Repurchase Prices pursuant to Section 11.2(b) shall not affect the outstanding obligations of Seller under this Agreement or any other Principal Agreement and all such outstanding obligations and the rights and remedies afforded Buyer in connection therewith, including, without limitation, those rights and remedies afforded Buyer under this Agreement, shall survive the termination of this Agreement. For the avoidance of doubt, Buyer shall not be liable to Seller for any costs, loss or damages arising from or relating to a termination by Buyer in accordance with any subsection of this Section 11.2.
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| (a) | enter the office(s) of Guarantor or Seller and take possession of any of the Purchased Items including any records that pertain to the Purchased Items; |
| (b) | assign legal title to the Purchased Assets and/or the Related Mortgage Loans to Buyer; |
| (c) | after assigning legal title to the Purchased Assets and/or Related Mortgage Loans to Buyer, communicate with and notify Mortgagors of the Related Mortgage Loans and obligors under other Purchased Assets or on any portion thereof, whether such communications and notifications are in oral, written or electronic form, including, without limitation, communications and notifications that the Purchased Assets and/or Related Mortgage Loans have been assigned to Buyer and that all payments thereon are to be made directly to Buyer or its designee (subject to the rights of any Servicer under any Servicing Agreement); |
| (d) | settle compromise, or release, in whole or in part, any amounts owing on the Related Mortgage Loans, Purchased Assets or other Purchased Items or any portion of the Purchased Items, on terms acceptable to Buyer; enforce payment and prosecute any action or proceeding with respect to any and all Related Mortgage Loans, Purchased Assets or other Purchased Items; and where any Related Mortgage Loans, Purchased Asset or other Purchased Item is in default, foreclose upon and enforce security interests in, such Related Mortgage Loans, Purchased Asset or other Item by any available judicial procedure or without judicial process and sell property acquired as a result of any such foreclosure; |
| (e) | exercise any of its rights set forth herein in respect of the applicable Servicing Agreements or the Servicer Notices, if applicable, collect payments from Mortgagors and/or assume servicing of, or contract with a third party to subservice, any or all Related Mortgage Loans requiring servicing and/or perform any obligations required in connection with Purchase Commitments, with all of any such third party’s fees to be paid by Seller or Guarantor. In connection with collecting payments from Mortgagors and/or assuming servicing of any or all Related Mortgage Loans, Buyer may take possession of and open any mail addressed to Seller, remove, collect and apply all payments for Seller, sign Seller’s name to any receipts, checks, notes, agreements or other instruments or letters or appoint an agent to exercise and perform any of these rights. If Buyer so requests, Guarantor and Seller shall promptly forward (to the extent in Guarantor’s or Seller’s possession), or cause to be forwarded to Buyer or its designee, all further mail and all “trailing” documents, such as title insurance policies, deeds of trust, and other documents, and all loan payment histories, in electronic format, in each case, as same relate to the Purchased Assets; |
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| (f) | proceed against Seller under this Agreement or against Guarantor under the Guaranty and Security Agreement, or both; |
| (g) | (i) sell, without notice or demand of any kind, at a public or private sale and at such price or prices as Buyer may deem to be commercially reasonable for cash or for future delivery without assumption of any credit risk, any or all or portions of the Related Mortgage Loans (after obtaining title thereto) or Purchased Assets on a servicing-retained or servicing- released basis; provided that Buyer may purchase any or all of the Related Mortgage Loans or Purchased Assets at any public or private sale or (ii) in its sole and absolute discretion elect, in lieu of selling all or a portion of such Related Mortgage Loans (after obtaining title thereto) or Purchased Assets, to give Seller credit for such Mortgage Loans or Purchased Assets in an amount equal to the Market Value of the Related Mortgage Loans or Purchased Mortgage Loans against the aggregate unpaid Repurchase Price and any other amounts owing by Seller hereunder; provided further that Seller shall remain liable to Buyer for any amounts that remain owing to Buyer following any such sale and/or credit; |
| (h) | enter into one or more hedging arrangements covering all or a portion of the Purchased Assets and/or Related Mortgage Loans; and/or |
| (i) | pursue any rights and/or remedies available at law or in equity against Seller or Guarantor, or both. |
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| Guarantor and Seller hereby agrees that the procedures outlined in Section 11.3(e) and this Section 11.5 for disposition and liquidation of the Mortgage Loans or Purchased Assets are commercially reasonable. Each of Guarantor and Seller further agrees that it would not be commercially unreasonable for Buyer to dispose of the Mortgage Loans or Purchased Assets or any portion thereof by using internet sites that provide for the auction of assets similar to the Mortgage Loans or Purchased Assets, or that have the reasonable capability of doing so, or that match buyers and sellers of assets. |
| 11.9 | Application of Proceeds. The proceeds of any sale or other enforcement of Buyer’s interest in all or any part of the Mortgage Loans or Purchased Assets shall be applied by Buyer: |
| (a) | first, to the payment of the costs and expenses of such sale or enforcement, including reasonable compensation to Buyer’s agents and counsel, and all reasonable and documented expenses, liabilities and advances made or incurred by or on behalf of Buyer in connection therewith; |
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| (b) | second, to the costs of cover and/or related hedging transactions; |
| (c) | third, to the payment of any other amounts due to Buyer under this Agreement other than the aggregate Repurchase Price; |
| (d) | fourth, to the payment of the aggregate Repurchase Price; |
| (e) | fifth, to all other obligations owed by Seller or Guarantor under this Agreement and the other Principal Agreements; |
| (f) | sixth, in accordance with Buyer’s exercise of its rights under Section 11.10 hereof; and |
| (g) | seventh, the remainder to (or at the direction of) Seller. |
ARTICLE 12
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| (ii) the use of the proceeds of the Purchased Assets or the Transactions or Seller’s and Guarantor’s obligations thereunder, or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnified Party is a party thereto (and regardless of whether such matter is initiated by a third party or by Seller or Guarantor or any of their respective Subsidiaries or the Parent, except to the extent that such Losses have been found in a final, non- appealable judgment by a court of competent jurisdiction (or, should the parties mutually agree to binding arbitration, a final determination of the arbitrator) to have resulted directly and solely from the Indemnified Party’s gross negligence, or willful misconduct. Each of Seller and Guarantor also agrees to reimburse an Indemnified Party as and when billed by such Indemnified Party for all such Indemnified Party’s reasonable costs and expenses incurred in connection with the enforcement or the preservation of such Indemnified Party’s rights under this Agreement, any other Principal Agreement (provided that if the terms of any Principal Agreement conflict with the foregoing, the terms of the Principal Agreement shall control) or any transaction contemplated hereby or thereby, including without limitation the reasonable fees and documented, out-of-pocket disbursements of its external counsel. To the fullest extent permitted by any applicable law, each party hereto shall not assert, and hereby waives, any claim, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, the Principal Agreements or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Transaction or the use of the proceeds thereof. The agreements in this Section 12.1 shall survive the repayment, satisfaction or discharge of all the other obligations and liabilities of the parties under the Principal Agreements. All amounts due under this Section 12.1 shall be fully payable within ten (10) calendar days after demand therefor. This Section 12.1 shall not apply to any amounts due and owing pursuant to Section 4.5 or with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. |
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| 12.3 | Payment of Taxes. |
| (a) | All payments made by or on account of any obligation of Seller under this Agreement or any other Principal Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future taxes, levies, imposts, duties, deductions, charges, assessments, fees or withholdings (including backup withholdings), and all liabilities (including penalties, interest and additions to tax) with respect thereto imposed by any Governmental Authority (collectively, “Taxes”), except as required by applicable law. If Seller is required by law or regulation to deduct or withhold any Taxes from or in respect of any amount payable hereunder, it shall: (i) make such deduction or withholding; (ii) pay the amount so deducted or withheld to the appropriate Governmental Authority not later than the date when due; (iii) deliver to Buyer, promptly, original tax receipts and other evidence satisfactory to Buyer of the payment when due of the full amount of such Taxes; and (iv) if such Tax is an Indemnified Tax (as defined below), pay to Buyer such additional amounts as may be necessary so that Buyer receives, free and clear of all such Indemnified Taxes, a net amount equal to the amount it would have received under this Agreement, had no such deduction or withholding been made. In addition, Seller agrees to timely pay to the relevant Governmental Authority in accordance with applicable law any and all current and future stamp, court or documentary taxes, intangible, filing and similar Taxes (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by any Governmental Authority that arise from any payment made hereunder or from the execution, delivery, performance or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement, except for any such Taxes imposed on Buyer with respect to an assignment, other than an assignment made at the request of Seller, by a jurisdiction (or political subdivision thereof) having a present or former connection with Buyer (other than any connection arising from executing, delivering, being party to, engaging in any transaction pursuant to, performing its obligations under or enforcing this Agreement) (“Other Taxes”). Other Taxes and Taxes (other than Excluded Taxes) imposed on or with respect to any payment made by or on account of any obligation of Seller under this Agreement shall be referred to in this Agreement as “Indemnified Taxes.” |
| (b) | Seller shall within seven (7) calendar days after demand therefor, indemnify Buyer for the full amount of any and all Indemnified Taxes (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 12.3), and fully indemnify and hold Buyer harmless from and against any and all liabilities or reasonable expenses with respect to or resulting from any delay or omission to pay such Taxes, whether or not such Indemnified Taxes were correctly or legally imposed or assessed by the relevant Governmental Authority. A certificate as to the amount of any payment or liability of Buyer with respect to such Indemnified Taxes delivered to Seller by Buyer shall be conclusive absent manifest error. As promptly as practicable after any payment of Taxes by Seller to a Governmental Authority pursuant to this Section 12.3, Seller shall deliver to Buyer the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Buyer, and provided further that in no event shall Buyer be required to complete, execute or submit to Seller any of the documentation listed in Section 12.3(d) if there is a change in United States law prohibiting provision of any such documentation which occurs subsequent to the date on which applicable documentation listed under Section 12.3(d) was previously provided by Buyer to Seller in accordance with the requirements of Section 12.3(d). |
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| (c) | If Buyer is entitled to an exemption or reduction of withholding Tax with respect to payments made under this Agreement, Buyer shall deliver to Seller, at the time or times reasonably requested by Seller, such properly completed and executed documentation reasonably requested by Seller as will permit such payments to be made without withholding or at a reduced rate of withholding; provided that the completion, execution and submission of such documentation (other than the documentation listed in Section 12.3(d)) shall not be required if in Buyer’s reasonable judgment such completion, execution or submission would subject Buyer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of Buyer. |
| (d) | Without limiting the generality of Section 12.3(c), if Buyer is (i) not incorporated under the laws of the United States, any State thereof, or the District of Columbia or (ii) not otherwise treated as a “United States person” within the meaning of the Section 7701(a)(30) of the Code (a “Foreign Buyer”), and is entitled to an exemption from or reduction of U.S. federal withholding Taxes with respect to payments made under this Agreement, Buyer shall provide Seller with an original, properly completed and duly executed United States Internal Revenue Service (“IRS”) Form W-8BEN, W-8BEN-E, W- 8IMY or W-8ECI or any successor form prescribed by the IRS, as applicable, (i) certifying that such Foreign Buyer is entitled to benefits under an income tax treaty to which the United States is a party which reduces or eliminates the rate of withholding tax on payments of interest or setting forth a basis to claim the benefits of the exemptions from U.S. withholding taxes for portfolio interest under Section 881(c) of the Code or (ii) certifying that the income receivable pursuant to this Agreement is effectively connected with the conduct of a trade or business in the United States on or prior to the date upon which such Foreign Buyer becomes a Buyer. If an IRS form previously delivered expires or becomes obsolete or inaccurate in any respect, each Foreign Buyer will update such form or promptly notify Seller of its legal inability to do so. Should a Foreign Buyer, which is otherwise exempt from U.S. withholding tax, become subject to such tax because of its failure to deliver an IRS form required hereunder, Seller shall, at no cost or expense to Seller, take such steps as such Foreign Buyer shall reasonably request to assist such Foreign Buyer to recover such Taxes. Upon the execution of this Agreement or otherwise becoming a Buyer, each Buyer that is a “United States person” within the meaning of Section 7701(a)(30) of the Code shall deliver to Seller an original, properly completed and duly executed IRS Form W-9 or such other documentation or information prescribed by applicable laws or reasonably requested by Seller as will enable Seller to determine whether or not such Buyer is subject to U.S. backup withholding or information reporting requirements. |
| (e) | Nothing contained in this Section 12.3 shall require Buyer to make available any of its Tax returns or other information that it deems to be confidential or proprietary or otherwise subject Buyer to any material unreimbursed cost or expense or materially prejudice the legal or commercial position of Buyer, except for such IRS forms Buyer is required to deliver to Seller under Section 12.3(d). |
| (f) | If a payment made to Buyer under this Agreement would be subject to U.S. federal withholding tax imposed under FATCA if such Buyer were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Buyer shall deliver to Seller at the time or times prescribed by law and at such time or times reasonably requested by Seller such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Seller as may be necessary for Seller to comply with its obligations under FATCA or to determine the amount to deduct and withhold from such payment. For purposes of this clause, “FATCA” shall include any amendments made to FATCA after the date of this Agreement. |
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| (g) | If Buyer determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 12.3 (including by the payment of additional amounts pursuant to this section), it shall pay to Seller an amount equal to such refund (but only to the extent of indemnity payments and additional payments made under this section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of Buyer and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Seller, upon the request of Buyer, shall repay to Buyer the amount paid over pursuant to this Section 12.3(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that Buyer is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 12.3(g), in no event will Buyer be required to pay any amount to Seller pursuant to this Section 12.3(g) the payment of which would place Buyer in a less favorable net after-Tax position than Buyer would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. |
ARTICLE 13
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| 13.2 | Termination. |
| (a) | If at any time there are no Transactions outstanding hereunder as a result of Seller terminating all of the Transactions and repurchasing all of the Purchased Assets pursuant to Section 4.5(a) or Section 4.5(b), Seller may elect to terminate this Agreement upon ten (10) Business Days’ prior notice to Buyer; provided, that Seller shall have paid all fees, expenses, indemnity payments and other amounts that are then due and owing under the Principal Agreements. |
| (b) | Upon termination of this Agreement in accordance with this Agreement, all outstanding amounts due to Buyer under the Principal Agreements shall be immediately due and payable without notice (except as expressly set forth in this Agreement) to Guarantor or Seller and without presentment, demand, protest, notice of protest or dishonor, or other notice of default, and without formally placing Guarantor or Seller in default, all of which are hereby expressly waived by Guarantor and Seller. Further, any termination of this Agreement shall not affect the outstanding obligations of Seller under this Agreement or any other Principal Agreement and all such outstanding obligations and the rights and remedies afforded Buyer in connection therewith, including, without limitation, those rights and remedies afforded Buyer under this Agreement, shall survive any termination of this Agreement. Buyer shall not be liable to Seller for any costs, loss or damages arising from or relating to a termination by Buyer in accordance with any subsection of this Section 13.2. |
ARTICLE 14
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| has relied upon such provisions as being integral and non-severable in determining whether to enter into this Agreement and in determining the Purchase Price methodology for such Mortgage Loans. The integration of these servicing provisions is necessary to enable Buyer to obtain the maximum value from the sale of the Purchased Mortgage Loans or Related Mortgage Loans by having the ability to sell the Participation Interest in the Servicing Rights related to the Related Mortgage Loans free from any claims or encumbrances. Further, the fact that Seller, Guarantor or any Servicer may be entitled to a servicing fee for interim servicing of the Related Mortgage Loans or that Buyer may provide a separate notice of default to Guarantor or Seller or any Servicer regarding the servicing of the Related Mortgage Loans shall not affect or otherwise change the intent of Guarantor, Seller and Buyer regarding the integral and non-severable nature of the provisions in the Agreement related to servicing and Servicing Rights nor will such facts affect or otherwise change Buyer’s ownership of a Participation Interest in the Servicing Rights related to the Related Mortgage Loans. |
Buyer shall have free and unrestricted use of all Purchased Assets and nothing shall preclude Buyer from engaging in repurchase transactions with such Purchased Assets or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating such Purchased Assets; provided, that no such transaction shall affect the obligations of Buyer to transfer the Purchased Assets to Seller on the Repurchase Date free and clear of any pledge, Lien, security interest, encumbrance, charge or other adverse claim as set forth in Section 6.5.
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Buyer, acting solely for this purpose as a non-fiduciary agent of Seller, shall maintain a register (the “Register”) on which it shall record the rights of Buyer and any assignee of Buyer under this Agreement, and each assignment. The Register shall include the names and addresses of Buyer (including all assignees or successors) and the percentage or portion of such rights and obligations assigned. The entries in the Register shall be conclusive absent manifest error, and Buyer and Seller shall treat each person whose name is recorded in the Register pursuant to the terms hereof as a Buyer hereunder for all purposes of this agreement; provided, however, that a failure to make any such recordation, or any error in such recordation shall not affect Seller’s obligations in respect of such rights.
Notwithstanding any other provision of this Agreement to the contrary, Buyer may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement and any other Principal Agreement, to (i) a security trustee in connection with the funding by Buyer of Transactions or (ii) a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of Seller; provided that no such pledge or grant shall release Buyer from its obligations under this Agreement.
| 14.6 | Successors and Assigns. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. |
If Buyer sells a participation, Buyer shall, acting solely for this purpose as a non-fiduciary agent of Seller, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Purchased Assets and other Purchased Items under the Principal Agreements (the “Participant Register”); provided that Buyer shall not have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Purchased Asset and other Purchased Item under the Principal Agreements) to any person except to the extent that such disclosure is necessary to establish that such interest is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and Buyer and participant shall treat each person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. Seller agrees that each assignee and each Participant shall be entitled to the benefits of Section 12.3 subject to the requirements and limitations therein, including the requirements under Section 12.3(d) and Section 12.3(f) (it being understood, in the case of a participant, that the documentation required under Section 12.3(d) and Section 12.3(f), if any, shall be delivered to the participating Buyer) to the same extent as if it were a Buyer assignee or original Buyer, as the case may be.
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| 14.11 | Notices. |
| (a) | All notices, demands, consents, requests and other communications required or permitted to be given or made hereunder in writing shall be mailed (first class, return receipt requested and postage prepaid) or delivered in person or by overnight delivery service or by electronic mail, addressed to the respective parties hereto at their respective addresses set forth below or, as to any such party, at such other address as may be designated by it in a notice to the other: |
| If to Seller: | Caliber Mortgage Participant I LLC |
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ |
| Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
| Tel: (▇▇▇) ▇▇▇-▇▇▇▇ |
| Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
| If to Guarantor: |
| ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ |
| Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| Tel: ▇▇▇-▇▇▇-▇▇▇▇ |
| Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
| If to Buyer: | ▇▇▇▇▇▇▇ Sachs Bank USA |
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ |
| ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
| Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
| All written notices shall be conclusively deemed to have been properly given or made when duly delivered, if delivered in person or by overnight delivery service, or on the fifth (5th) Business Day after being deposited in the mail, if mailed in accordance herewith, or upon transmission by the sending party of an electronic mail with respect to which no delivery failure is received by such sending party, if delivered by electronic mail. Notwithstanding the foregoing, any notice of termination shall be deemed effective upon mailing, transmission, or delivery, as the case may be. |
| (b) | All notices, demands, consents, requests and other communications required or permitted to be given or made hereunder which are not required to be in writing may also be provided electronically either (i) as an electronic mail sent and addressed to the respective parties hereto at their respective electronic mail addresses set forth below, or as to any such party, at such other electronic mail address as may be designated by it in a notice to the other or (ii) with respect to Buyer, via a posting of such notice on Buyer’s customer website(s). |
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| If to Seller: | ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
| If to Guarantor: | ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ |
| If to Buyer: | ▇▇-▇▇▇▇▇▇▇▇▇-▇▇@▇▇.▇▇▇ |
| 14.16 | Headings. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning or interpretation of any provisions hereof. |
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| material concerning or pertaining to businesses, methods, plans, finances, accounting statements, and/or projects of any party or their affiliated or related entities; (ii) any of the foregoing related to the parties or their related or affiliated entities and/or their present or future activities and/or (iii) any term or condition of any agreement (including this Agreement) between any party and any individual or entity relating to any of their business operations. With respect to Confidential Information, the parties hereby agree, except as otherwise expressly permitted in this Agreement: |
| (a) | not to use the Confidential Information except in furtherance of this Agreement; |
| (b) | to use reasonable efforts to safeguard the Confidential Information against disclosure to any unauthorized third party with the same degree of care as they exercise with their own information of similar nature; and |
| (c) | subject to the limitations set forth in the following paragraph, not to disclose Confidential Information other than (i) to their respective Affiliates and Subsidiaries, and for all of the foregoing, their respective officers, directors, executive committee members, employees, members, partners, shareholders, investors, advisors, agents or contractors with a need to have access to the Confidential Information and who are bound to the parties by like obligations of confidentiality, (ii) with respect to information regarding the terms and conditions of the Principal Agreements, to any Agency upon the written request of such Agency and only to the extent required to comply with such written request of such Agency, (iii) as required by applicable law or regulation, or a legal proceeding (including a subpoena) by a court or regulatory body, only to the extent required by such law or regulation or legal proceeding, (iv) in response to routine examinations, regulatory sweeps and other routine regulatory inquiries by a regulatory or self-regulatory authority, bank examiner or auditor, or (v) to enforce the terms of this Agreement or any of the other Principal Agreements; provided, that the parties shall not be prevented from using or disclosing any of the Confidential Information which: (1) is already known to the receiving party at the time it is obtained from the disclosing party; (2) is now, or becomes in the future, public knowledge other than through wrongful acts or omissions of the party receiving the Confidential Information; (3) is lawfully obtained by the party from sources independent of the party disclosing the Confidential Information and without confidentiality and/or non-use restrictions; or (4) is independently developed by the receiving party without any use of the Confidential Information of the disclosing party. Notwithstanding anything contained herein to the contrary, Buyer may share any Confidential Information of Guarantor or Seller with an Affiliate of Buyer for any valid business purpose, such as, but not limited to, to assist an Affiliate in evaluating a current or potential business relationship with Guarantor or Seller. |
In addition, the Principal Agreements and their respective terms, provisions, supplements and amendments, and transactions and notices thereunder (other than the tax treatment and tax structure of the transactions), are proprietary to Buyer and shall be held by Guarantor and Seller in strict confidence and shall not be disclosed to any third party without the consent of Buyer (x) except as provided in subsection (c) above and (y) except for (i) disclosure to Seller’s direct and indirect parent companies, directors, attorneys, agents or accountants, provided that such attorneys or accountants likewise agree to be bound by this covenant of confidentiality, or are otherwise subject to confidentiality restrictions; (ii) upon prior written notice to Buyer, disclosure required by law, rule, regulation or order of a court or other regulatory body; (iii) upon prior written notice to Buyer, disclosure to any approved hedge counterparty to the extent necessary to obtain any hedging hereunder; (iv) any disclosures or filing required under Securities and Exchange Commission (“SEC”) or state securities’ laws; or (v) the tax treatment and tax structure of the transactions, which shall not be deemed confidential; provided that in the case of (ii) and (iii) immediately above in this paragraph, Guarantor and Seller shall take reasonable actions to provide Buyer with prior written notice; provided further that in the case of (iv), Guarantor and Seller shall not file the Transactions Terms Letter.
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If any party or any of its successors, Subsidiaries, officers, directors, employees, agents and/or representatives, including, without limitation, its insurers, sureties and/or attorneys, breaches its respective duty of confidentiality under this Agreement, the non-breaching party(ies) shall be entitled to all remedies available at law and/or in equity, including, without limitation, injunctive relief.
Each of Seller and Buyer understands and agrees that the Customer Information (as defined below) is subject to Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, 15 U.S.C. §§ 6801 et seq., the FTC’s Privacy Regulations, 16 C.F.R. Part 313, and Standards for Safeguarding Customer Information, 16 C.F.R. Part 314 and any other applicable federal and state privacy laws and regulations, and other applicable law of any government or agency or instrumentality thereof regarding the privacy or security of Customer Information (the “Privacy Requirements”). Each of Seller and Buyer agrees that it shall comply with the Privacy Requirements and shall cause all of its agents, employees, in case of Buyer, Affiliates, in the case of Seller, Parent, Subsidiaries and any other person or entity that receives the Customer Information from Seller or Buyer, respectively, to comply with the Privacy Requirements and Seller or Buyer, respectively, will promptly notify Seller or Buyer, as applicable, of any breach of the Privacy Requirements. Furthermore, each of Seller and Buyer shall maintain (and shall cause all of its respective agents, employees, in the case of Buyer, Affiliates, in the case of Seller, Parent, Subsidiaries and any other person or entity that receives the Customer Information from Seller or Buyer to maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer Information, including, if applicable, maintaining security measures designed to meet the Privacy Requirements. For purposes of this Section 14.17, “Customer Information” means any non-public personal information (as such term is defined in the FTC’s Privacy Regulations) concerning an obligor under a Related Mortgage Loan or Purchased Asset regardless of whether such information was provided by Seller or Buyer or was prepared by Seller, Buyer or any Affiliate or agent of Seller or Buyer based on or derived from the Customer Information. Any communications by Seller or Buyer with any obligor under a Related Mortgage Loan or Purchased Asset shall comply with all applicable laws, including, without limitation, the Telemarketing Sales Rule, as amended, 16 C.F.R. Part 310. Seller or Buyer shall permit the other and its designees, at Seller’s expense, as applicable, upon prior written notice and as reasonably agreed to by the parties hereto in timing and scope, to examine and verify compliance with the Privacy Requirements with respect to Customer Information which may include, but shall not be limited to, conducting information security assessments of such party and such party’s procedures.
| 14.18 | Intent. Each of Guarantor, Seller and Buyer recognize and intend that: |
| (a) | this Agreement and each Transaction hereunder constitutes a “securities contract” as that term is defined in Section 741(7)(A)(i) of the Bankruptcy Code and a “master netting agreement” as that term is defined in Section 101(38A)(A) of the Bankruptcy Code and that the pledge of the Related Credit Enhancement in Section 6.1 constitutes “a security agreement or other arrangement or other credit enhancement” that is “related to” the Agreement and Transactions hereunder within the meaning of Sections 101(38A)(A), 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code. Each of Guarantor, Seller and Buyer further recognize and intend that this Agreement is an agreement to provide financial accommodations and is not subject to assumption pursuant to Bankruptcy Code Section 365(a); |
| (b) | Buyer’s right to liquidate the Related Mortgage Loans and/or Purchased Assets delivered to it in connection with the Transactions hereunder or to accelerate or terminate this Agreement or otherwise exercise any other remedies herein is a contractual right to |
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| liquidate, accelerate or terminate such Transaction as described in Bankruptcy Code Sections 555, 559 and 561 and any payments or transfers of property made with respect to this Agreement or any Transaction to: (i) satisfy a Margin Deficit, or (ii) comply with a Margin Call, shall in each case be considered a “margin payment” as such term is defined in Bankruptcy Code Section 741(5); and |
| (c) | any payments or transfers of property by Guarantor or Seller (i) on account of a Haircut, (ii) in partial or full satisfaction of a repurchase obligation, or (iii) fees and costs under this Agreement or under any Transaction shall in each case constitute “settlement payments” as such term is defined in Bankruptcy Code Section 741(8). |
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(Signature page to follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| BUYER: | ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA | |||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Authorized Signatory | |||
| SELLER: | CALIBER MORTGAGE PARTICIPANT I LLC | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | President | |||
| GUARANTOR: | CALIBER HOME LOANS, INC. | |||
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: | President | |||
Signature Page to Master Repurchase Agreement
EXHIBIT A
GLOSSARY OF DEFINED TERMS
“Ability to Repay Rule”: 12 C.F.R. Section 1026.43(c), including all applicable official staff commentary.
“Acceptable Title Insurance Company”: A nationally recognized title insurance company that is acceptable to the Agencies and has not been disapproved by Buyer in a writing provided to Seller.
“Accepted Servicing Practices”: With respect to any Related Mortgage Loan, those mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as such Related Mortgage Loan in the jurisdiction where the related Mortgaged Property is located.
“Account Bank”: (a) ▇▇▇▇▇ Fargo Bank, N.A. , in its capacity as depository bank with respect to the Custodial Account or the Disbursement Account, as applicable, or (b) such other party upon whom Buyer and Seller may mutually agree.
“Adjusted Tangible Net Worth”: With respect to any Person, an amount equal to, on a consolidated basis, such Person’s stockholder or members’ equity, including capital stock or member interests, additional paid- in capital, retained earnings, deferred income, capitalized mortgage loan servicing rights and capitalized excess mortgage loan servicing fees, but excluding treasury stock, if any, and any intangible assets of such Person (determined in accordance with GAAP).
“Administrative Agent”: As defined in the Credit Agreement.
“Affiliate”: With respect to a Person, any other Person that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such first Person. For purposes of this definition, “control” of a Person means the power, directly or indirectly, either to (i) vote 25% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person, or (ii) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise, and the terms “controlling” and “controlled” having meanings correlative to the foregoing.
“Agency”: ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae, as applicable.
“Agency Audit”: Any Agency, HUD, FHA, VA and RD audits, examinations, evaluations, monitoring reviews and reports of its origination and servicing operations (including those prepared on a contract basis for any such Agency, HUD, FHA, VA or RD).
“Agency Documents”: The documents set forth on Exhibit B to the Custodial Agreement and all additional documents as may be required, supplemented or modified from time to time by the applicable Agency.
“Agency Eligible Mortgage Loan”: A Mortgage Loan that is originated in Strict Compliance with the Agency Guides and the eligibility requirements specified for the applicable Agency Program, and is eligible for sale to or securitization by such Agency.
“Agency Guides”: The ▇▇▇▇▇▇ ▇▇▇ Guide, the ▇▇▇▇▇▇ Mae Guide, the ▇▇▇▇▇▇▇ Mac Guide, the FHA Regulations, the VA Regulations or the RD Regulations, as the context may require, in each case as such guidelines have been or may be amended, supplemented or otherwise modified from time to time (i) by ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, the FHA, the VA or the RD, as applicable, in the ordinary course of business and not at the request of Seller, Guarantor or any of their respective Subsidiaries or the Parent or (ii) at the request of Guarantor to ▇▇▇▇▇▇ Mae, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac, the FHA, the VA or the RD,
Exhibit A-1
as applicable, and as to which with respect to this clause (ii), (x) Guarantor has given prior written notice to Buyer of any such amendment, supplement or other modification and (y) Buyer shall not have reasonably objected.
“Agency Program”: The ▇▇▇▇▇▇ Mae Program, the ▇▇▇▇▇▇ ▇▇▇ Program and/or the ▇▇▇▇▇▇▇ Mac Program, as the context may require.
“Aggregate Outstanding Purchase Price”: The aggregate outstanding Purchase Price of all Transactions or specified Purchased Assets, as the case may be, as of any date of determination. For purposes of clarity, the Aggregate Outstanding Purchase Price shall include any Purchase Price funded irrespective of whether a Wet Mortgage Loan subject to the related Transaction actually closed until such Purchase Price is returned pursuant to this Agreement.
“Aggregate Transaction Limit”: The maximum aggregate principal amount of Transactions (measured by the related outstanding Purchase Price) that may be outstanding at any one time, as set forth in the Transactions Terms Letter.
“Aging Event”: With respect to any Purchased Asset and any date of determination, the origination date for the Related Mortgage Loans with respect to such Purchased Asset is greater than sixty (60) calendar days prior to such date of determination.
“Aging Event Asset”: If applicable per the Transactions Terms Letter, as of any date of determination, a Purchased Asset that is not a Defective Asset and was not repurchased prior to the occurrence of an Aging Event with respect to such Purchased Asset.
“Anti-Money Laundering Laws”: As defined in Section 8.1(y) of this Agreement.
“Applicable Pricing Rate”: With respect to any date of determination, the greater of (a) Three-Month LIBOR, and (b) the LIBOR Floor; provided, that if an Applicable Pricing Rate Transition Event or an Early Opt-in Election, as applicable, and its related Applicable Pricing Rate Replacement Date have occurred with respect to Three-Month LIBOR, the LIBOR Floor, or the then-current Applicable Pricing Rate, then “Applicable Pricing Rate” shall mean the Applicable Pricing Rate Replacement to the extent that such Applicable Pricing Rate Replacement has become effective pursuant to Section 4.6 of this Agreement.
“Applicable Pricing Rate Replacement”: For any Collection Period, the first alternative set forth in the order below that can be determined by Buyer as of the Applicable Pricing Rate Replacement Date:
| (a) | the sum of: (i) Term SOFR or, if Buyer determines that Term SOFR for the applicable Corresponding Tenor cannot be determined, Next Available Term SOFR, and (ii) the Applicable Pricing Rate Replacement Adjustment; |
| (b) | the sum of: (i) Compounded SOFR and (ii) the Applicable Pricing Rate Replacement Adjustment; |
| (c) | the sum of: (i) the alternate rate of interest that has been selected by Buyer as the replacement for the then-current Applicable Pricing Rate for the applicable Corresponding Tenor and (ii) the Applicable Pricing Rate Replacement Adjustment; |
provided that, in the case of clauses (a) and (b) above, such rate, or the underlying rates component thereof, is or are displayed on a screen or other information service that publishes such rate or rates from time to time as selected by Buyer in its reasonable discretion. If the Applicable Pricing Rate Replacement as determined pursuant to clause (a), (b) or (c) above would be less than [***], the Applicable Pricing Rate Replacement will be deemed to be [***] for the purposes of this Agreement.
Exhibit A-2
“Applicable Pricing Rate Replacement Adjustment”: For any Collection Period:
| (a) | for purposes of clauses (a) and (b) of the definition of “Applicable Pricing Rate Replacement,” the first alternative set forth in the order below that can be determined by Buyer as of the Applicable Pricing Rate Replacement Date: |
| (i) | the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Applicable Pricing Rate Replacement; |
| (ii) | the spread adjustment (which may be a positive or negative value or zero) that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to USD LIBOR for the Corresponding Tenor; and |
| (b) | for purposes of clause (c) of the definition of “Applicable Pricing Rate Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Buyer and Seller for the applicable Corresponding Tenor; |
provided that, in the case of clause (a) above, such adjustment is displayed on a screen or other information service that publishes such Applicable Pricing Rate Replacement Adjustment from time to time as selected by Buyer in its reasonable discretion.
“Applicable Pricing Rate Replacement Conforming Changes”: With respect to any Applicable Pricing Rate Replacement, any technical, administrative or operational changes (including changes to the definition of “Collection Period,” timing and frequency of determining rates and making payments of interest and other administrative matters) that Buyer decides may be appropriate to reflect the adoption and implementation of such Applicable Pricing Rate Replacement and to permit the administration thereof by Buyer in a manner substantially consistent with market practice (or, if Buyer decides that adoption of any portion of such market practice is not administratively feasible or if Buyer determines that no market practice for the administration of the Applicable Pricing Rate Replacement exists, in such other manner of administration as Buyer decides is reasonably necessary in connection with the administration of this Agreement).
“Applicable Pricing Rate Replacement Date”: The earliest to occur of the following events with respect to the then-current:
| (a) | in the case of clause (a) or (b) of the definition of “Applicable Pricing Rate Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of the Applicable Pricing Rate permanently or indefinitely ceases to provide the Applicable Pricing Rate; |
| (b) | in the case of clause (c) of the definition of “Applicable Pricing Rate Transition Event,” the date of the public statement or publication of information referenced therein; or |
Exhibit A-3
| (c) | in the case of an Early Opt-in Election, the first (1st) Business Day after the Rate Election Notice (as defined in the definition of Early Opt-in Election) is provided to Seller. |
For the avoidance of doubt, if the event giving rise to the Applicable Pricing Rate Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Applicable Pricing Rate Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
“Applicable Pricing Rate Transition Event”: The occurrence of one or more of the following events with respect to the then-current Applicable Pricing Rate:
| (a) | a public statement or publication of information by or on behalf of the administrator of the Applicable Pricing Rate announcing that such administrator has ceased or will cease to provide the Applicable Pricing Rate, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Applicable Pricing Rate; |
| (b) | a public statement or publication of information by the regulatory supervisor for the administrator of the Applicable Pricing Rate, the central bank for the currency of the Applicable Pricing Rate, an insolvency official with jurisdiction over the administrator for the Applicable Pricing Rate, a resolution authority with jurisdiction over the administrator for the Applicable Pricing Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the Applicable Pricing Rate, which states that the administrator of the Applicable Pricing Rate has ceased or will cease to provide the Applicable Pricing Rate permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Applicable Pricing Rate; or |
| (c) | a public statement or publication of information by the regulatory supervisor for the administrator of the Applicable Pricing Rate announcing that the Applicable Pricing Rate is no longer representative. |
“Appraisal”: A written appraisal made for the originator of the Mortgage Loan at the time of origination of the Mortgage Loan by a Qualified Appraiser, which (i) complies with the requirements of FIRREA and the Uniform Standards of Professional Appraisal Practice (as developed by the Appraisal Standards Board of the Appraisal Foundations), (ii) provides an accurate estimate of the bona fide market value of the related Mortgaged Property at the time of origination, (iii) complies in all respects with all applicable appraiser independence requirements, restrictions and guidelines including those contained in the Appraiser Independence Requirements as adopted by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac, and (iv) was delivered prior to the final approval of the Mortgage Loan.
“Approvals”: With respect to Guarantor or any Servicer, the approvals obtained by the applicable Agency, HUD, the VA or the RD in designation of Guarantor or such Servicer, as applicable, as a ▇▇▇▇▇▇ Mae- approved issuer, an FHA-approved mortgagee, a VA-approved lender, a RD-approved lender, a ▇▇▇▇▇▇ ▇▇▇-approved lender or a ▇▇▇▇▇▇▇ Mac-approved Seller/Servicer, as applicable, in good standing.
“Approved Investor”: Any Agency, Governmental Authority, Guarantor, Affiliate of Guarantor, or any other private institution, in each case, as approved by Buyer in its sole discretion, purchasing such Related Mortgage Loans or Mortgage-Backed Securities on a forward basis from Guarantor or Buyer pursuant to a Purchase Commitment.
Exhibit A-4
“Approved Originator”: Guarantor or a correspondent of Seller approved in accordance with Section 3.6(d) of this Agreement.
“Approved Payee”: Any of (a) a Closing Agent approved in accordance with Section 3.6(b) of this Agreement or (b) a Qualified Originator.
“Asset”: A Participation Interest in a Mortgage Loan, or in the case of a Pooled Mortgage Loan, the resulting Mortgage-Backed Security pursuant to Section 3.7.
“Asset Value”: With respect to each Purchased Asset and any date of determination, an amount equal to the following, as applicable, as the same may be reduced in accordance with Section 4.3:
| (a) | if the Purchased Asset is not a Defective Asset, the lesser of (i) the product of the related Type Purchase Price Percentage and the least of (A) the Market Value of such Purchased Asset; (B) the unpaid principal balance of such Purchased Asset; (C) the purchase price paid by Seller for such Purchased Asset in an arms-length transaction with a Person that is not an Affiliate of Seller if it is a Mortgage Loan; and (D) the Takeout Price committed by the related Approved Investor, if applicable, as evidenced by the related Purchase Commitment; and (ii) the excess of (A) the Market Value of such Purchased Assets over (B) the product of (1) the excess of (a) 100% over (b) the related Type Purchase Price Percentage and (2) the unpaid principal balance of such Purchased Asset; or |
| (b) | if the Purchased Asset is a Defective Asset, zero. |
“Assignment”: A duly executed assignment to Buyer in recordable form of a Related Mortgage Loan, of the indebtedness secured thereby and of all documents and rights related to such Related Mortgage Loan.
“Assignment of Closing Protection Letter”: An assignment assigning and subrogating Buyer to all of Seller’s rights in a Closing Protection Letter, substantially in the form of Exhibit D hereto.
“Bailee Agreement”: A bailee agreement or bailee letter that is in a form acceptable to Buyer.
“Bankruptcy Code”: Title 11 of the United States Code, now or hereafter in effect, as amended, or any successor thereto.
“Borrower”: As defined in the Credit Agreement.
“Business Day”: Any day other than (a) a Saturday or a Sunday, (b) a day on which the Federal Reserve or the New York Stock Exchange is closed or (c) a day on which banks in the States of Delaware or New York (or such other states in which the principal office of the Custodian or the Disbursement Agent is subsequently located, as specified in writing by the Custodian or the Disbursement Agent to the parties hereto) are required, or authorized by law, to close.
“Buyer Parties”: As defined in Section 11.10 of this Agreement.
“Cash”: Money, currency or a credit balance on hand or in any demand or deposit account.
“Cash Equivalents”: As at any date of determination, any of the following: (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the full faith and credit of the United States, in each case maturing within [***] after such date and having,
Exhibit A-5
at the time of the acquisition thereof, a rating of at least “A-1” from S&P or at least “P-1” from ▇▇▇▇▇’▇; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof, in each case maturing within [***] after such date and having, at the time of the acquisition thereof, a rating of at least “A-1” from S&P or at least “P-1” from ▇▇▇▇▇’▇; (iii) certificates of deposit or bankers’ acceptances maturing within [***] after such date and issued or accepted by Buyer or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined in the regulations of its primary Federal banking regulator), (b) has Tier 1 capital (as defined in such regulations) of not less than $[***] and (c) has a rating of at least “AA-“ from S&P and “Aa3” from ▇▇▇▇▇’▇; and (iv) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) and (ii) above,(b) has net assets of not less than $[***] and (c) has the highest rating obtainable from either S&P or ▇▇▇▇▇’▇.
“Cease Funding Event”: Any of the following:
| (a) | the aggregate original Asset Value of those Purchased Assets that are deemed to be Defective Assets is greater than or equal to [***] of the outstanding Transactions for more than two (2) consecutive Business Days or longer in Buyer’s discretion; |
| (b) | a breach of any material servicing obligations of any Servicer, including, but not limited to, its failure to deposit any funds required to be deposited under Section 6.2(h) into the Custodial Account; |
| (c) | Guarantor’s membership in MERS is terminated for any reason without the consent of Buyer, which consent shall not be unreasonably withheld; or |
| (d) | Guarantor voluntarily chooses to surrender its Approvals with one or more Agencies at any time. |
“Change of Control”: (a) With respect to Guarantor, any time (i) the Permitted Holders and/or their respective Affiliates fail to collectively own, directly or indirectly, at least 50.01% of the Equity Interests of Guarantor and at least a majority of the aggregate ordinary voting power for the election of directors or other persons performing similar functions of such persons of Guarantor, unless such failure is a result of an initial public offering of the Equity Interests of Guarantor or is a result of one or more marketed follow- on offerings, block trades, or similar transactions involving the Equity Interests of Guarantor subsequent to any initial public offering of the Equity Interests of Guarantor or (ii) more than 50.01% of the Equity Interests of Guarantor or more than a majority of the aggregate ordinary voting power for the election of directors of Guarantor is held or managed, directly or indirectly, by one Person (or any Affiliate of such Person) that is not a Permitted Holder or an Affiliate of a Permitted Holder; and (b) with respect to Seller, any time Guarantor ceases to own, directly, legally and beneficially, 100% of the Equity Interests of Seller or Guarantor ceases to be the sole managing member of Seller.
“Closing Agent”: The Person designated in accordance with Section 3.6, to receive Purchase Prices from Disbursement Agent, for the account of Seller, for the purpose of (i) funding a Related Mortgage Loan or (ii) in the case of a new origination Wet Mortgage Loan or Dry Mortgage Loan as to which the origination funds are being remitted to the closing table, originating such Mortgage Loan in accordance with local law and practice in the jurisdiction where such Mortgage Loan is being originated.
Exhibit A-6
“Closing Protection Letter”: A document issued by a title insurance company to Guarantor and/or Buyer and relied upon by Buyer to provide closing protection for one or more mortgage loan closings and to insure Guarantor and/or Buyer, without limitation, against embezzlement by the Closing Agent and loss or damage resulting from the failure of the Closing Agent to comply with all applicable closing instructions.
“COBRA”: As defined in Section 11.1(v) of this Agreement.
“Code”: The Internal Revenue Code of 1986, as amended.
“Collection Period”: (a) Initially, the period commencing on the Effective Date up to but not including the first day of the following calendar month, and (b) thereafter, the period commencing on the first day of each calendar month up to but not including the first day of the following calendar month.
“Committed Amount”: As of any date of determination, the portion of the Aggregate Transaction Limit that is committed as of such date of determination, as set forth in the Transactions Terms Letter.
“Compounded SOFR”: The compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Collection Period) being established by Buyer in accordance with:
| (a) | the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; provided that: |
| (b) | if, and to the extent that, Buyer determines that Compounded SOFR cannot be determined in accordance with clause (a) above, then the rate, or methodology for this rate, and conventions for this rate that Buyer determines are substantially consistent with at least five currently outstanding U.S. dollar-denominated syndicated or bilateral credit facilities at such time (as a result of amendment or as originally executed) that are publicly available for review; |
provided, further, that if Buyer decides that any such rate, methodology or convention determined in accordance with clause (a) or clause (b) is not administratively feasible for Buyer, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Applicable Pricing Rate Replacement.”
“Connection Income Taxes”: With respect to a Buyer, Taxes imposed as a result of a present or former connection between such Buyer and the jurisdiction imposing such Tax (other than connections arising from such Buyer having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement or sold or assigned an interest in an interest in this Agreement and that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
“Conventional Conforming Mortgage Loan”: Unless defined otherwise in the Transactions Terms Letter, a first lien mortgage loan that fully conforms to all underwriting standards, loan amount limitations and other requirements of that standard Agency mortgage loan purchase program accepting only the highest quality mortgage loans underwritten without dependence on expanded criteria provisions, or that is approved by Desktop Underwriter or Loan Prospector.
Exhibit A-7
“Correspondent Mortgage Loan”: A Mortgage Loan originated by an Approved Originator and acquired by Guarantor in accordance with Guarantor’s correspondent Mortgage Loan program. For the sake of clarity, no Correspondent Mortgage Loan shall be a Wet Mortgage Loan.
“Corresponding Tenor”: With respect to an Applicable Pricing Rate Replacement shall mean a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor (which shall be three months or such other tenor then in effect if a three-month tenor is not available) for the applicable Collection Period with respect to the then-current Applicable Pricing Rate.
“Credit Agreement”: That certain Second Amended and Restated Credit Agreement, dated as of July 10, 2019 (as the same may be amended, modified, supplemented, or restated from time to time), the Borrower, the Administrative Agent and the Lenders.
“Custodial Account”: The account described in Section 6.2(h) of this Agreement.
“Custodial Account Control Agreement”: The agreement among Seller, Guarantor, Buyer and the Account Bank, to perfect Buyer’s security interest in the Custodial Account, in form and substance acceptable to Buyer in its sole discretion, as the same may be amended from time to time.
“Custodial Agreement”: The Custodial Agreement executed among Buyer, Guarantor, Seller and Custodian with respect to this Agreement, as the same shall be modified and supplemented and in effect from time to time.
“Custodial Mortgage Loan Schedule”: As defined in the Custodial Agreement.
“Custodian”: Deutsche Bank National Trust Association, any of its successors or permitted assigns, or any such other party approved by Buyer.
“Customer Information”: As defined in Section 14.17 of this Agreement.
“Debt”: As to any Person at any time, any and all indebtedness, obligations or liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute or contingent, or joint or several) of such Person for or in respect of: (i) borrowed money; (ii) obligations of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) amounts raised under or liabilities in respect of any note purchase or acceptance credit facility; (iv) reimbursement obligations under any letter of credit; (v) obligations of such Person to pay the deferred purchase price of property or services other than (A) deferred purchase price that is contingent upon performance and (B) trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business; (vi) Finance Lease Obligations; (vii) any other transaction (including forward sale or purchase agreements, capitalized leases and conditional sales agreements) having the commercial effect of a borrowing of money entered into by such Person to finance its operations or capital requirements, and whether structured as a borrowing, sale and leaseback or a sale of assets for accounting purposes; (viii) any Specified Guarantee or endorsement of, or responsibility for, any Debt of the types described in this definition; (ix) liabilities secured by any Lien on property owned or acquired, whether or not such a liability shall have been assumed (other than any Permitted Collateral Liens); (x) unvested pension obligations; and (xi) net obligations under any Derivatives Contract not entered into as a hedge against existing indebtedness, in an amount equal to the Derivatives Termination Value thereof.
“Default Rate”: The lesser of (a) the Applicable Pricing Rate plus [***], or (b) the maximum non- usurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged or received under the laws of the United States and the State of New York, per annum.
Exhibit A-8
“Defective Asset”: A Purchased Asset:
| (a) | that is not or at any time ceases to be an Eligible Asset; |
| (b) | that is an interest in a Mortgage Loan and is the subject of fraud by any Person (including any Approved Originator) involved in the origination of such Mortgage Loan; |
| (c) | that is an interest in a Mortgage Loan and the related Mortgaged Property is the subject of damage or waste, which has a material adverse effect on the value of the Mortgage Loan or the interest of Seller, Guarantor and/or Buyer therein, and such damage or waste shall not have been remedied within three (3) Business Days after the earlier of (a) written notice of such material damage or waste shall have been given to Seller by Buyer or (b) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such material damage or waste; |
| (d) | for which any breach of a warranty or representation set forth in Section 8.2 occurs; |
| (e) | that is an interest in a Mortgage Loan where the related Mortgagor fails to make the first payment due under the Mortgage Note on or before the applicable due date, including any applicable grace period; |
| (f) | that was rejected by the Approved Investor set forth in the related Purchase Commitment; or |
| (g) | that is a Related Mortgage Loan and it is determined to be ineligible for sale as a Related Mortgage Loan of the Type originally stipulated. |
“Delinquent Mortgage Loan”: Any mortgage loan with respect to which the related Mortgagor is greater than thirty (30) calendar days delinquent following the first date of delinquency under the MBA method of delinquency.
“Depository”: The Federal Reserve Bank of New York, or as otherwise defined in the glossary of the ▇▇▇▇▇▇ ▇▇▇ Guide, the ▇▇▇▇▇▇ Mae Guide or the ▇▇▇▇▇▇▇ Mac Guide, as applicable.
“Derivatives Contract”: Any rate swap transaction, basis swap, credit derivative transaction, forward rate transaction, commodity swap, commodity option, futures contract, forward commodity contract, mortgage- related forward pools contracts, including derivatives or “TBA’s”, equity or equity index swap or option, bond or bond price or bond index swap or option or forward bond or forward bond price or forward bond index transaction, interest rate option, forward foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot contract, or any other similar transaction or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, including any obligations or liabilities thereunder.
“Derivatives Termination Value”: With respect to any one or more Portfolio ▇▇▇▇▇▇, after taking into account the effect of any legally enforceable netting agreement relating to such Portfolio ▇▇▇▇▇▇, (a) for any date on or after the date such Portfolio ▇▇▇▇▇▇ have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in the preceding clause (a), the amount(s) determined as the ▇▇▇▇-to-market value(s) for such Portfolio ▇▇▇▇▇▇.
Exhibit A-9
“Disbursement Account”: The account described in Section 3.5(e) of this Agreement.
“Disbursement Agent”: ▇▇▇▇▇ Fargo Bank, N.A., or such other party upon whom Buyer and Guarantor may mutually agree.
“Disbursement Agent and Account Bank Agreement”: The Disbursement Agent and Account Bank Agreement executed among Buyer, Guarantor, Seller, Account Bank and Disbursement Agent with respect to this Agreement, as the same shall be modified and supplemented and in effect from time to time.
“Dry Mortgage Loan”: A Mortgage Loan for which Buyer or its Custodian has possession of the related Mortgage Loan Documents, in a form and condition acceptable to Buyer (which for the avoidance of doubt could be a Wet Mortgage Loan on the related Purchase Date and convert to a Dry Mortgage Loan once all Mortgage Loan Documents have been received by Buyer or its Custodian).
“Early Opt-in Election”: The occurrence of:
| (a) | the determination by Buyer that at least five currently outstanding U.S. dollar-denominated syndicated or bilateral credit facilities at such time contain (as a result of amendment or as originally executed) as a benchmark interest rate, in lieu of Three-Month LIBOR, Term SOFR plus an Applicable Pricing Rate Replacement Adjustment, and |
| (b) | the election by Buyer to declare that an Early Opt-in Election has occurred and the provision by Buyer of written notice of such election to Seller (the “Rate Election Notice”). |
“Effective Date”: That effective date set forth in the Transactions Terms Letter.
“Electronic Tracking Agreement”: That certain Electronic Tracking Agreement among Buyer, Seller, MERSCORP Holdings, Inc. and MERS, as the same may be amended from time to time.
“Eligible Asset”: With respect to any Transaction (a) from and after the related Purchase Date, a Participation Interest in an Eligible Mortgage Loan, and (b) from and after the related Pooling Date, a Participation Interest in an Eligible Mortgage Loan that is a Pooled Mortgage Loan, as the context may require.
“Eligible Mortgage Loan”: A Mortgage Loan that meets the eligibility criteria set forth in the Transactions Terms Letter.
“EPD Mortgage Loan”: Any mortgage loan with respect to which the related Mortgagor has not timely made the first monthly payment following the origination date of such mortgage loan, irrespective of any applicable grace period.
“Equity Interests”: Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
Exhibit A-10
“ERISA”: The Employee Retirement Income Security Act of 1974, as amended from time to time and any successor statute.
“ERISA Affiliate”: Any person (as defined in Section 3(9) of ERISA) that together with Guarantor or Seller or any of their respective Subsidiaries would be deemed to be a “single employer” within the meaning of Sections 414(b), (c), (m) or (o) of the Code or ERISA Sections 4001(a)(14) or 4001(b)(1).
“Event of Default”: Any of the conditions or events set forth in Section 11.1 of this Agreement.
“Event of Early Termination”: Any of the conditions or events set forth in Section 11.2 of this Agreement.
“Excluded Taxes”: Any of the following Taxes imposed on or with respect to Buyer or required to be withheld or deducted from a payment to Buyer, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, imposed as a result of (i) Buyer being organized under the laws of, having its principal office or applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) a present or former connection between such Buyer and the jurisdiction imposing such Tax (other than connections arising from such Buyer having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement, becoming the legal owner of the Purchased Assets or sold or assigned an interest in this Agreement, (b) Taxes imposed on amounts payable to or for the account of Buyer under this Agreement pursuant to a law in effect on the date on which (i) such Buyer becomes a party hereto or (ii) such Buyer (other than at the request of Seller) changes its lending office, except, in each case, to the extent that, pursuant to Section 12.3, amounts with respect to such Taxes were payable either to Buyer’s assignor immediately before Buyer became a party hereto or to Buyer immediately before it changed its lending office, (c) Taxes attributable to Buyer’s failure to comply with Sections 12.3 (d) and (f) and (d) any withholding Taxes imposed under FATCA.
“Executive Order”: As defined in Section 8.1(z)(i) of this Agreement.
“Expiration Date”: As set forth in the Transactions Terms Letter.
“Facility Termination Date”: The earliest of (a) the Expiration Date set forth in the Transactions Terms Letter, (b) at Buyer’s option, upon the occurrence of an Event of Default that has not been waived by Buyer, (c) the date that is twenty four (24) calendar months following the Effective Date or (d) the date on which this Agreement shall terminate in accordance with the provisions hereof or by operation of law.
“▇▇▇▇▇▇ ▇▇▇”: The Federal National Mortgage Association and any successor thereto.
“▇▇▇▇▇▇ Mae Guide”: The ▇▇▇▇▇▇ ▇▇▇ MBS Selling and Servicing Guide, as such guide may hereafter from time to time be amended.
“▇▇▇▇▇▇ Mae Program”: The ▇▇▇▇▇▇ ▇▇▇ Guaranteed Mortgage-Backed Securities Programs, as described in the ▇▇▇▇▇▇ Mae Guide.
“FATCA”: (a) Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any associated regulations; (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) implements any law or regulation referred to in clause (a) above; and (c) any agreement pursuant to the implementation of any treaty, law or regulation referred to in clause (a) or (b) above with any Governmental Authority in any jurisdiction.
Exhibit A-11
“Federal Reserve Bank of New York’s Website”: The website of the Federal Reserve Bank of New York at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source.
“FHA”: The Federal Housing Administration of the United States Department of Housing and Urban Development and any successor thereto.
“FHA Mortgage Insurance”: Mortgage insurance authorized under Sections 203(b), 203(h), 203(k), 213, 221(d)(2), 222, and 235 of the Federal Housing Administration Act and provided by the FHA.
“FHA Mortgage Insurance Contract”: A contractual obligation of the FHA respecting the insurance of a Mortgage Loan.
“FHA Regulations”: The regulations promulgated by HUD under the FHA Act, codified in 24 Code of Federal Regulations, and other HUD issuances relating to Government Mortgage Loans, including the related handbooks, circulars, notices and mortgagee letters.
“FICO Score”: The credit score of the Mortgagor provided by Fair, ▇▇▇▇▇ & Company, Inc. or such other organization providing credit scores on the origination date of a Mortgage Loan; provided, that if (a) two separate credit scores are obtained on such origination date, the FICO Score shall be the lower credit score; and (b) three separate credit scores are obtained on such origination date, the FICO Score shall be the middle credit score.
“Finance Lease Obligation”: For any Person, the amount of Debt under a lease of property by such Person that would be shown as a liability on a balance sheet of such Person prepared for financial reporting purposes in accordance with GAAP.
“FIRREA”: The Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended from time to time.
“Foreign Buyer”: As defined in Section 12.3(d) of this Agreement.
“▇▇▇▇▇▇▇ Mac”: The Federal Home Loan Mortgage Corporation and any successor thereto.
“▇▇▇▇▇▇▇ Mac Guide”: The ▇▇▇▇▇▇▇ Mac Seller’s and Servicers’ Guide, as such guide may hereafter from time to time be amended.
“▇▇▇▇▇▇▇ Mac Program”: The ▇▇▇▇▇▇▇ Mac Home Mortgage Guarantor Program or the ▇▇▇▇▇▇▇ Mac FHA/VA Home Mortgage Guarantor Program, as described in the ▇▇▇▇▇▇▇ Mac Guide.
“Funding Deposit Account”: The non-interest bearing funding deposit account established and maintained by ▇▇▇▇▇ Fargo Bank, N.A., which includes any distinct subaccounts thereof, if applicable, bearing ABA Number: [***]; Acct. Name: MPS Disbursement Agent; Account Number: [***]; FFC: [***] Funding Deposit Account.
“Funding Deposit Account Bank”: ▇▇▇▇▇ Fargo Bank, N.A., or such other party upon whom Buyer and Guarantor may mutually agree.
Exhibit A-12
“Futures Account”: An account, if any, opened in the name of Seller under an agreement governing futures and options on futures transactions between Seller and GS&Co. for which an account control agreement shall be entered into by and among Seller, GS&Co. and Buyer, pursuant to which Buyer shall be granted control (as defined in Section 9-106(b) of the UCC) and the ability to direct GS&Co. with respect to permitted withdrawals from the Futures Account following an Event of Default hereunder.
“GAAP”: Generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession and that are applicable to the circumstances as of the date of determination.
“▇▇▇▇▇▇ ▇▇▇”: Government National Mortgage Association and any successor thereto.
“▇▇▇▇▇▇ Mae Guide”: The ▇▇▇▇▇▇ ▇▇▇ Mortgage-Backed Securities Guide I or II, as such guide may hereafter from time to time be amended.
“▇▇▇▇▇▇ Mae Program”: The ▇▇▇▇▇▇ ▇▇▇ Mortgage-Backed Securities Programs, as described in the ▇▇▇▇▇▇ Mae Guide.
“Governing Documents”: With respect to any Person, its articles or certificate of incorporation or formation, by-laws, partnership agreement, limited liability company agreement, memorandum and articles of association, operating agreement or trust agreement and/or other organizational, charter or governing documents.
“Government Mortgage Loan”: Unless defined otherwise in the Transactions Terms Letter, a first lien mortgage loan that is:
| (a) | subject to FHA Mortgage Insurance under a FHA Mortgage Insurance Contract and is so insured, or is subject to a current binding and enforceable commitment for such insurance pursuant to the provisions of the National Housing Act, as amended, was originated in Strict Compliance, is eligible for inclusion in the ▇▇▇▇▇▇ ▇▇▇ Program, and unless otherwise agreed to by Buyer in its sole discretion, does not exceed the applicable maximum mortgage limits as set forth in the FHA Regulations; |
| (b) | subject to a guarantee by the VA under a VA Loan Guaranty Agreement, or is subject to a current binding and enforceable commitment for such guarantee pursuant to the provisions of the Servicemen’s Readjustment Act, as amended, was originated in Strict Compliance, is eligible for inclusion in the ▇▇▇▇▇▇ Mae Program, and unless otherwise agreed to by Buyer in its sole discretion, does not exceed the applicable maximum mortgage limits as set forth in the VA Regulations; or |
| (c) | eligible to be guaranteed by the RD under a RD Loan Guaranty Agreement, and is so guaranteed pursuant to the provisions of the RD Regulations, and was originated in Strict Compliance, is eligible for inclusion in the ▇▇▇▇▇▇ ▇▇▇ Program, and unless otherwise agreed to by Buyer in its sole discretion, does not exceed the applicable maximum mortgage limits as set forth in the RD Regulations. |
“Governmental Authority”: With respect to any Person, any nation or government, any state or other political subdivision, agency or instrumentality thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person, any of its Subsidiaries or any of its properties.
Exhibit A-13
“GS&Co.”: ▇▇▇▇▇▇▇ Sachs & Co. LLC.
“GS Bank”: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA.
“Guaranty and Security Agreement”: That certain Guaranty and Security Agreement, dated as of the date hereof, by Guarantor in favor of Buyer, as amended, restated, supplemented or otherwise modified from time to time.
“Haircut”: With respect to a Mortgage Loan and as shall be detailed in the related Transaction Request, the excess of (a) the amount required to be paid to the Approved Payee over (b) the related Purchase Price.
“Hedge Agreement”: Any and all master securities forward transaction agreement(s) between Guarantor and GS&Co. or GS Bank, or any ISDA agreement entered into by Guarantor and GS&Co. or GS Bank that Guarantor and Buyer agree in writing constitutes a replacement thereto.
“HUD”: The United States Department of Housing and Urban Development or any successor thereto.
“Income”: With respect to any Purchased Asset at any time until repurchased by Seller, any principal and/or interest thereon and all dividends, Proceeds and other collections and distributions thereon, but excluding, for the avoidance of doubt, any amounts a third-party Servicer is entitled to retain pursuant to a Servicing Agreement and any escrow amounts.
“Indemnified Party” or “Indemnified Parties”: As defined in Section 12.1 of this Agreement.
“Indemnified Taxes”: As defined in Section 12.3(a) of this Agreement.
“Initial Transaction Date”: The date on which Seller and Buyer enter into the initial Transaction hereunder.
“Insolvency Event”: The occurrence of any of the following events:
| (a) | such Person shall become insolvent or generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar law, which proceeding or petition seeks dissolution, liquidation or reorganization or the appointment of a receiver, trustee, custodian, conservator or liquidator for itself or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or such Person, or a substantial part of its property, assets or business, shall be subject to, consent to or acquiesce in the appointment of a receiver, trustee, custodian, conservator or liquidator for itself or a substantial property, assets or business; |
| (b) | corporate action shall be taken by such Person for the purpose of effectuating any of the foregoing; |
Exhibit A-14
| (c) | an order for relief shall be entered in a case under the Bankruptcy Code in which such Person is a debtor; or |
| (d) | involuntary proceedings or an involuntary petition shall be commenced or filed against such Person under any bankruptcy, insolvency or similar law, which proceeding or petition seeks dissolution, liquidation or reorganization of such Person or the appointment of a receiver, trustee, custodian, conservator or liquidator for such Person or of a substantial part of the property, assets or business of such Person, or any writ, order, judgment, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of the property, assets or business of such Person. |
“Intercreditor Agreement”: That certain Amended and Restated Intercreditor Agreement, dated as of January 30, 2014, by and among Guarantor, Buyer and the other parties thereto, as the same has been, and may be, amended from time to time.
“Investment Company Act”: As defined in Section 8.1(o) of this Agreement.
“Insurer”: A private mortgage insurer, which is acceptable to Buyer.
“Irrevocable Closing Instructions”: Closing instructions, including wire instructions, issued in connection with funds disbursed for the funding, from time to time, of new origination Wet Mortgage Loans or Dry Mortgage Loans as to which the origination funds are being remitted to the closing table, which such closing instructions shall include (a) a notice to the Closing Agent that the Guarantor and Seller have granted a security interest in the funds and the Mortgage Loan Documents, (b) that the Closing Agent is required to return the funds immediately to the respective bank account from which funds were sent if the Mortgage Loan does not close within one (1) Business Day of receipt of the funds and (c) that the Closing Agent is not to send funds to any account other than from which they were sent under any circumstances.
“ISDA Definitions”: The 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“Joint Account Control Agreement”: That certain Amended and Restated Joint Account Control Agreement, dated as of January 30, 2014, by and among Guarantor, Buyer, the Paying Agent and the other parties thereto, as the same has been, and may be, amended from time to time.
“Joint Securities Account Control Agreement”: That certain Amended and Restated Joint Securities Account Control Agreement, dated as of January 30, 2014, among Buyer, Guarantor, the Securities Intermediary and the other parties thereto, as the same has been, and may be, amended from time to time.
“Jumbo Mortgage Loan”: Unless defined otherwise in the Transactions Terms Letter, a first lien Mortgage Loan (i) for which the original loan amount is greater than the applicable conventional conforming loan limits set by the Federal Housing Finance Authority in the jurisdiction where the related Mortgaged Property is located and (ii) which meets the transaction requirements set forth on Schedule 1 of the Transactions Terms Letter.
“Lenders”: As defined in the Credit Agreement.
“LIBOR Floor”: As defined in the Transactions Terms Letter.
“Lien”: Any mortgage, lien, pledge, charge, security interest or similar encumbrance.
Exhibit A-15
“Losses”: As defined in Section 12.1 of this Agreement.
“LTV”: With respect to any Mortgage Loan, the ratio of the original unpaid principal balance of the Mortgage Loan to the lesser of (i) the appraised value of the Mortgaged Property set forth in such appraisal and (ii) the sales price of the Mortgaged Property.
“Margin Call”: A margin call, as defined and described in Section 6.3(b) of this Agreement.
“Margin Call Reserve Account”: The non-interest bearing margin call reserve account established and maintained by ▇▇▇▇▇ Fargo Bank, N.A., which includes any distinct subaccounts thereof, if applicable, bearing ABA Number: [***]; Acct. Name: MPS Disbursement Agent; Account Number: [***]; FFC: [***] Margin Call Reserve Account.
“Margin Deficit”: A margin deficit, as defined and described in Section 6.3(b) of this Agreement.
“Market Value”: With respect to an Asset, the fair market value of the Asset as determined by Buyer in its sole discretion without regard to any market value assigned to such Asset by Seller. Buyer’s determination of Market Value shall be conclusive upon the parties, absent manifest error on the part of Buyer. At no time and in no event will the Market Value of a Purchased Mortgage Loan be greater than the Market Value of such Purchased Mortgage Loan on the initial Purchase Date. Any Mortgage Loan that is not an Eligible Mortgage Loan shall have a Market Value of zero.
“Material Adverse Effect”: Any of the following: (a) with respect to Seller or Guarantor, the occurrence of a material adverse effect with respect to the business, property, assets, operations or financial condition of Seller or Guarantor, (b) any material adverse effect on the ability of Seller or Guarantor to perform its material obligations under any of the Principal Agreements to which it is a party (including the obligation to pay Price Differential due and payable), (c) a material adverse effect on the validity, enforceability, or collectability of any of the Principal Agreements, (d) a material adverse effect on the rights and remedies of Buyer under any of the Principal Agreements, (e) a material adverse effect on the existence, perfection, priority, value, marketability, collectability or enforceability of a material portion of the Related Mortgage Loans or the Purchased Assets or of Buyer’s security interest in a material portion of the Related Mortgage Loans, the Purchased Items or the Purchased Assets.
“Material Adverse Change”: The occurrence of an event or a change in circumstances that had or is reasonably likely to have a Material Adverse Effect.
“Material Debt Facility”: As defined in Section 11.1(g) of this Agreement.
“Maximum Dwell Time”: For any Purchased Asset that is not a Defective Asset, the maximum number of days such Purchased Asset may remain subject to a Transaction and not be required to be repurchased by Seller. Upon reaching the Maximum Dwell Time, such Purchased Asset may be deemed to be a Defective Asset, in Buyer’s sole discretion and as set forth in the Transactions Terms Letter.
“MERS”: Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor in interest thereto.
“Minimum Maintenance Amount”: With respect to the Purchased Assets as of the close of business on any date of determination, the aggregate Asset Value of all Purchased Assets as of such date of determination.
Exhibit A-16
“Minimum Utilization Fee”: The fee set forth in the Transactions Terms Letter payable by Seller in arrears on the Price Differential Dates set forth in the Transactions Terms Letter.
“Moody’s”: ▇▇▇▇▇’▇ Investors Service, Inc. or any successor thereto.
“More Favorable Agreement”: As defined in Section 9.15 of this Agreement.
“Mortgage”: A first-lien mortgage, deed of trust, security deed or similar instrument on improved real property (including for the avoidance of doubt any proprietary lease or cooperative shares in connection with cooperative loans).
“Mortgage-Backed Security”: Any fully-modified pass-through mortgage-backed security that is (a) either issued by a Guarantor and fully guaranteed by ▇▇▇▇▇▇ Mae or issued and fully guaranteed with respect to timely payment of interest and ultimate payment of principal by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac; (b) evidenced by a book-entry account in a depository institution having book-entry accounts at the applicable Depository; and (c) backed by a Pool, in substantially the principal amount and with substantially the other terms as specified with respect to such Mortgage-Backed Security in the related Purchase Commitment.
“Mortgage Loan”: Any mortgage loan of a Type identified on any schedule attached to the Transactions Terms Letter, which Mortgage Loan may be either a Dry Mortgage Loan or a Wet Mortgage Loan.
“Mortgage Loan Documents”: With respect to each Related Mortgage Loan, each document listed on Exhibit A to the Custodial Agreement.
“Mortgage Loan File”: With respect to each Mortgage Loan, that file that contains the Mortgage Loan Documents and is delivered to Custodian pursuant to the Custodial Agreement.
“Mortgage Note”: A promissory note secured by a Mortgage and evidencing a Mortgage Loan.
“Mortgaged Property”: The real property (or other collateral relating to cooperative loans) securing repayment of the debt evidenced by a Mortgage Note.
“Mortgagor”: The obligor of a Mortgage Loan.
“Multiemployer Plan”: A multiemployer plan within the meaning of Section 4001(a)(3) of ERISA to which Guarantor, Seller, any Subsidiary thereof, or any ERISA Affiliate thereof is making or accruing an obligation to make contributions or has made or accrued an obligation to make contributions within any of the preceding five (5) plan years of the date of this Agreement.
“Multiple Employer Plan”: A Single Employer Plan, to which the Guarantor, Seller, any Subsidiary thereof, or any of their respective ERISA Affiliates, and one or more employers other than the Guarantor, Seller, any Subsidiary thereof, or an ERISA Affiliate thereof, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the Guarantor, Seller, any Subsidiary thereof, or an ERISA Affiliate thereof made or accrued an obligation to make contributions during any of the five (5) plan years preceding the date of this Agreement.
“Nationally Recognized Accounting Firm”: (a) Any of PricewaterhouseCoopers LLP, Ernst & Young LLP, KPMG LLC, Deloitte LLP and any successors to any such firm and (b) any other public accounting firm designated by Guarantor and approved by Buyer, such approval not to be unreasonably withheld or delayed.
Exhibit A-17
“Next Available Term SOFR”: At any time, for any Collection Period, Term SOFR for the longest tenor that can be determined by Buyer that is shorter than the applicable Corresponding Tenor.
“Non-Usage Fee”: The fee set forth in the Transactions Terms Letter payable by Seller monthly in arrears on the Price Differential Dates set forth in the Transactions Terms Letter, based upon the unused portion of the Committed Amount.
“OFAC”: The U.S. Department of Treasury’s Office of Foreign Asset Control.
“Other Mortgage Loan Documents”: In addition to the Mortgage Loan Documents, with respect to any Mortgage Loan, and as applicable, the following: (a) the original recorded Mortgage, if not included in the Mortgage Loan Documents; (b) a copy of the preliminary title commitment showing the policy number or preliminary attorney’s opinion of title and the original policy of mortgagee’s title insurance or unexpired commitment for a policy of mortgagee’s title insurance, if not included in the Mortgage Loan Documents; (c) the original Closing Protection Letter and a copy of the Irrevocable Closing Instructions; (d) the original Purchase Commitment, if any; (e) the original FHA certificate of insurance or commitment to insure, the VA certificate of guaranty or commitment to guaranty, the RD Loan Guaranty Agreement and the Insurer’s certificate or commitment to insure, as applicable; (f) the survey, flood certificate, hazard insurance policy and flood insurance policy, as applicable; (g) the original of any assumption, modification, consolidation or extension agreements, with evidence of recording thereon or copies stamp certified by an authorized officer of Guarantor to have been sent for recording, if any; (h) copies of each instrument necessary to complete identification of any exception set forth in the exception schedule in the title policy; (i) the loan application; (j) verification of the Mortgagor’s employment and income, if applicable; (k) verification of the source and amount of the down payment; (l) credit report on Mortgagor; (m) appraisal of the Mortgaged Property, or a waiver thereof, and/or a point value estimate, as permitted by the applicable Agency Guides; (n) the original executed disclosure statement; (o) tax receipts, insurance premium receipts, ledger sheets, payment records, insurance claim files and correspondence, current and historical computerized data files, underwriting standards used for origination and all other related papers and records; (p) the original of any guarantee executed in connection with the Mortgage Note (if any); (q) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; (r) all copies of powers of attorney or similar instruments, if applicable; (s) copies of all documentation in connection with the underwriting and origination of any Related Mortgage Loan that evidences compliance with the Ability to Repay Rule and the QM Rule, as applicable; and (t) all other documents relating to the Related Mortgage Loan.
“Other Taxes”: As defined in Section 12.3(a) of this Agreement.
“Parent”: With respect to Guarantor, [***].
“Participant Register”: As defined in Section 14.7 of this Agreement.
“Participation Agreement”: That certain Master Participation Agreement, dated as of the date hereof, by and between Caliber Home Loans, Inc. and Caliber Mortgage Participant I LLC, as the initial participant, as amended, restated, supplemented or otherwise modified from time to time.
“Participation Certificate”: The certificates evidencing 100% of the Participation Interests.
“Participation Interest”: With respect to any Related Mortgage Loan (including the Servicing Rights related to any Related Mortgage Loans) or any Purchased Item, the one hundred percent (100%) beneficial interest therein created under the Participation Agreement, but excluding, for the avoidance of doubt, legal title. For the avoidance of doubt, the Participation Interest includes one hundred percent (100%) beneficial interest in the Servicing Rights with respect to any such Related Mortgage Loan.
Exhibit A-18
“Patriot Act”: The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56 (signed into law October 26, 2001), as amended.
“Paying Agent”: Deutsche Bank National Trust Association, or any successor thereto under the Joint Account Control Agreement.
“PBGC”: The Pension Benefit Guaranty Corporation and any successor thereto.
“Permitted Collateral Liens”: (i) The security interest granted hereunder in favor of Buyer; (ii) banker’s Liens in the nature of rights of setoff arising in the ordinary course of business of Guarantor; (iii) Liens for Taxes not yet due and payable; (iv) Liens securing judgments not constituting an Event of Default under Section 11.1(k) that are, expressly or by operation of law, subordinate to Buyer’s Lien; and (v) the security interest granted to the Administrative Agent (on behalf of an for the ratable benefit of each Secured Party (as defined in the Credit Agreement)) pursuant to Section 4 of the Guaranty and Security Agreement.
“Permitted Holders”: Lone Star Fund VI (U.S.), L.P., LSF VI International 2, L.P., Lone Star Fund V (U.S.), L.P., and LSF V International Finance, L.P.
“Person”: Includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions thereof.
“Pool”: A pool of fully amortizing first lien residential Mortgage Loans eligible in the aggregate to back a Mortgage-Backed Security.
“Pooled Mortgage Loan”: Any Mortgage Loan that is part of a Pool of Mortgage Loans certified by the Custodian to an Agency that will be exchanged on the related Settlement Date for a Mortgage-Backed Security backed by such Pool in accordance with the terms of the applicable Agency Guide.
“Pooling Date”: With respect to Pooled Mortgage Loans, the date on which an Agency pool number is assigned to the related Pool.
“Portfolio ▇▇▇▇▇▇”: (a) Transactions entered into pursuant to a Hedge Agreement, if any; (b)transactions entered into in the Futures Account, if any; and (c) such other transactions as Buyer and Guarantor may agree constitute Portfolio ▇▇▇▇▇▇; provided, however, that the term “Portfolio ▇▇▇▇▇▇” shall not include any of the foregoing to the extent such is subject to netting or set-off provisions.
“Potential Default”: The occurrence of any event or existence of any condition that, but for the giving of notice, the lapse of time, or both, could constitute an Event of Default.
“Power of Attorney”: A power of attorney, substantially in the form attached hereto as Exhibit E.
“Price Differential”: For each Purchased Asset or Transaction as of any date of determination, an amount equal to the product of (a) (i) prior to the occurrence of an Event of Default, the sum of the Applicable Pricing Rate plus the applicable Type Margin, or (ii) following the occurrence and during the continuance of an Event of Default, the Default Rate, and (b) the Purchase Price for such Purchased Asset or Transaction. Price Differential will be calculated in accordance with Section 2.6
Exhibit A-19
“Price Differential Date”: The tenth (10th) Business Day of each month (or such later date that is five (5) Business Days following Seller’s receipt of an invoice provided by Buyer pursuant to Section 2.6(b).
“Principal Agreements”: This Agreement, the Transactions Terms Letter, the Guaranty and Security Agreement, the Participation Agreement, the Custodial Agreement, the Disbursement Agent and Account Bank Agreement, any Servicing Agreement together with the related Servicer Notice, the Joint Account Control Agreement, the Joint Securities Account Control Agreement, the Intercreditor Agreement, any other Guarantee(s) (if required by the Transactions Terms Letter), the Custodial Account Control Agreement, the Electronic Tracking Agreement, the Seller Limited Liability Company Agreement, each Power of Attorney, all Trade Assignments and related Purchase Commitments, any Transaction Request and all other documents and instruments evidencing the Transactions, as same may from time to time be supplemented, modified or amended, and any other agreement entered into between Buyer and Seller or Guarantor in connection herewith or therewith.
“Privacy Requirements”: As defined in Section 14.17 of this Agreement.
“Proceeds”: The total amount receivable or received when a Mortgage Loan and the related Purchased Asset or other Purchased Item is sold, collected, exchanged or otherwise disposed of, whether such disposition is voluntary or involuntary, including, without limitation, all rights to payment, including return premiums, with respect to any insurance relating thereto and all escrow withholds and escrow payments for Property Charges, as applicable.
“Property Charges”: All taxes, fees, assessments, water, sewer and municipal charges (general or special) and all insurance premiums, leasehold payments or ground rents.
“Purchase Advice”: In connection with each wire transfer to be made to Buyer by or on behalf of Seller or an Approved Investor, a written or electronic notification setting forth (a)(i) the loan number assigned by or on behalf of Seller or last name of the Mortgagor for each Mortgage Loan that is related to the Transaction in connection with which a payment is being made, or (ii) the CUSIP of any related Mortgage- Backed Security; (b) the amount of the wire transfer to be applied in the Transaction; and (c) the total amount of the wire.
“Purchase Commitment”: A trade ticket or other written commitment issued in favor of Guarantor by an Approved Investor pursuant to which that Approved Investor commits to purchase one or more Related Mortgage Loans or Mortgage-Backed Securities with respect to the Purchased Assets, and as to which the Takeout Price for such Related Mortgage Loans or Mortgage-Backed Securities with respect to the Purchased Assets is for an amount that is not less than the outstanding Repurchase Price for such Purchased Assets, together with the related correspondent, whole loan or forward purchase agreement by and between Guarantor and the Approved Investor governing the terms and conditions of any such purchases, all in form and substance satisfactory to Buyer.
“Purchase Date”: The date on which Buyer purchases a Purchased Asset from Seller. If the Purchase Price is paid by wire transfer, the Purchase Date shall be the date such funds are wired. If the Purchase Price is paid by a funding draft, the Purchase Date shall be the date that the draft is posted by the bank on which the draft is drawn.
“Purchase Price”: The price at which each Asset is transferred by Seller to Buyer which, except as otherwise may be set forth in the Transactions Terms Letter, shall be equal to the product of the applicable Type Purchase Price Percentage and the least of (a) the unpaid principal balance of such Asset, (b) the Market Value of such Asset, (c) the Takeout Price committed by the related Approved Investor, if applicable, as evidenced by the related Purchase Commitment, or (d) the purchase price paid by Seller for
Exhibit A-20
such Asset in an arms-length transaction with a Person that is not an Affiliate of Seller. For the sake of clarity, the Purchase Price for each Mortgage-Backed Security subject to a Transaction pursuant to Section 3.7 shall be the same Purchase Price that was paid for the Related Mortgage Loans backing such Mortgage-Backed Security.
“Purchased Assets”: Purchased Mortgage Loans. The term “Purchased Assets” with respect to any Transaction at any time shall also include Mortgage-Backed Securities that replace the related Related Mortgage Loans pursuant to Section 3.7.
“Purchased Items”: All now existing and hereafter arising right, title and interest of Seller or Guarantor in, under and to the following:
| (a) | all Purchased Mortgage Loans, now owned or hereafter acquired for which a Transaction has been entered into between Buyer and Seller hereunder and for which the Repurchase Price has not been received by Buyer, including all Mortgage Notes and Mortgages evidencing the Related Mortgage Loans and the related Mortgage Loan Documents, which, from time to time, are delivered, or caused to be delivered, to Buyer (including delivery to a custodian or other third party on behalf of Buyer) as additional security for the performance of Seller’s obligations hereunder; |
| (b) | subject to the Joint Securities Account Control Agreement, all Mortgage-Backed Securities issued in exchange for Related Mortgage Loans for which the Repurchase Price has not been received by Buyer; |
| (c) | subject to the Joint Account Control Agreement, all Income related to the Purchased Assets and all rights to receive such Income; |
| (d) | (i) all amounts on deposit in the Custodial Account relating directly to the Related Mortgage Loans and (ii) the Disbursement Account and all amounts on deposit therein; |
| (e) | all rights of Seller or Guarantor under all related Purchase Commitments (including the right to receive the related Takeout Price), purchase agreements or other hedging arrangements, agreements, contracts or take-out commitments relating to or constituting any or all of the foregoing, now existing and hereafter arising, covering any part of the Purchased Assets and/or Related Mortgage Loans, and all rights to receive documentation relating thereto, and all rights to deliver Related Mortgage Loans and related Mortgage- Backed Securities to permanent investors and other purchasers pursuant thereto and all Proceeds resulting from the disposition of such Purchased Assets; |
| (f) | except to the extent subject to the Joint Securities Account Control Agreement and the Joint Account Control Agreement, all now existing and hereafter established accounts maintained with broker dealers by Guarantor for the purpose of carrying out transactions under Purchase Commitments relating to any part of the Purchased Assets and/or Related Mortgage Loans; |
| (g) | all now existing and hereafter arising rights of Seller and Guarantor to service, administer and/or collect on the Purchased Assets or Related Mortgage Loans hereunder and any and all rights to the payment of monies on account thereof; |
| (h) | the Participation Interests in the Servicing Rights related to the Related Mortgage Loans, all related Servicing Records, and all rights of Seller and Guarantor to receive from any |
Exhibit A-21
| third party or to take delivery of any Servicing Records or other documents which constitute a part of the Mortgage Loan Files, including without limitation, the Other Mortgage Loan Documents; |
| (i) | except to the extent subject to the Joint Securities Account Control Agreement and the Joint Account Control Agreement, all now existing and hereafter arising accounts, contract rights and general intangibles constituting or relating to any of the Purchased Assets; |
| (j) | all mortgage and other insurance and all commitments issued by Insurers, the FHA, the VA or the RD, as applicable, to insure or guaranty any Purchased Asset and/or Related Mortgage Loan, including, without limitation, all FHA Mortgage Insurance Contracts, VA Loan Guaranty Agreements and RD Loan Guaranty Agreements relating to such Purchased Assets or Related Mortgage Loans and the right to receive all insurance proceeds and condemnation awards that may be payable in respect of the premises encumbered by any Mortgage; and all other documents or instruments delivered to Buyer in respect of the Purchased Assets and/or Related Mortgage Loans; |
| (k) | all documents, files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other information and data of Seller and Guarantor relating to Purchased Assets; |
| (l) | subject to the Joint Securities Account Control Agreement and the Joint Account Control Agreement, all rights, but not any obligations or liabilities, of Seller and Guarantor with respect to the Approved Investors; |
| (m) | all property of Seller and Guarantor, in any form or capacity now or at any time hereafter in the possession or control of Buyer, including, without limitation, all deposit accounts and any funds at any time held therein, into which Proceeds of the Purchased Assets and/or Related Mortgage Loans are at any time deposited; |
| (n) | all Proceeds of the Purchased Assets and/or Related Mortgage Loans; |
| (o) | any funds of Seller and Guarantor at any time deposited or held in the Margin Call Reserve Account and the Funding Deposit Account; and |
| (p) | the Participation Certificate. |
“Purchased Mortgage Loan”: An Asset that has been purchased by Buyer from Seller in connection with a Transaction and which has not been repurchased by Seller hereunder.
“QM Rule”: As applicable, (i) 12 C.F.R. Section 1026.43(e), (ii) in the case of a Mortgage Loan insured, guaranteed, or administered by the FHA, 24 C.F.R. § 203.19, or (iii) in the case of a Mortgage Loan insured, guaranteed, or administered by the VA, 38 C.F.R. § 36.4300, and for each section referenced herein, all applicable official staff commentary.
“Qualified Appraiser”: With respect to each Mortgage Loan, an appraiser duly appointed by the originator of the Mortgage Loan who (i) complies with the requirements of FIRREA, (ii) does not have any direct or indirect interest in the Mortgaged Property or the transaction, and (iii) complies in all respects with all applicable appraiser independence requirements, restrictions and guidelines including those contained in the Appraiser Independence Requirements as adopted by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
Exhibit A-22
“Qualified Mortgage”: A Mortgage Loan that satisfies the criteria for a “qualified mortgage” as set forth in the QM Rule.
“Qualified Originator”: Guarantor or an Approved Originator.
“RD”: The United States Department of Agriculture Rural Development and any successor thereto.
“RD Loan Guaranty Agreement”: 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.
“RD Regulations”: The regulations promulgated by the RD under the Consolidated Farm and Rural Development Act of 1977; and other RD issuances relating to rural housing loans codified in the Code of Federal Regulations.
“Rebuttable Presumption Qualified Mortgage”: A Qualified Mortgage with an annual percentage rate that exceeds the average prime offer rate for a comparable mortgage loan as of the date the interest rate is set by 1.5 or more percentage points for a first-lien Mortgage Loan or by 3.5 or more percentage points for a subordinate-lien Mortgage Loan.
“Reduction Date”: As defined in Section 2.2 of this Agreement.
“Reference Time: With respect to any determination of the Applicable Pricing Rate shall mean (a) if the Applicable Pricing Rate is the greater of (a) Three-Month LIBOR, and (b) the LIBOR Floor, daily, and (b) if the Applicable Pricing Rate is not the greater of (a) Three-Month LIBOR, and (b) the LIBOR Floor, the time determined by Buyer in accordance with the Applicable Pricing Rate Replacement Conforming Changes.
“Register”: As defined in Section 14.5 of this Agreement.
“Related Credit Enhancement”: As defined in Section 6.1 of this Agreement.
“Related Mortgage Loan”: With respect to any Purchased Mortgage Loan, the Mortgage Loan with respect to, and/or related to, such Purchased Mortgage Loan.
“Relevant Governmental Body”: The Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“Reportable Event”: An event described in Section 4043(b) of ERISA with respect to a Single- Employer Plan as to which the thirty (30) days’ notice requirement has not been waived by the PBGC.
“Repurchase Acceleration Event”: Any of the conditions or events set forth in Section 4.2 of this Agreement.
“Repurchase Date”: The date on which Seller is to repurchase a Purchased Asset subject to a Transaction from Buyer, which is either (a) the date specified in the related Transactions Terms Letter and/or Transaction Request or (b) the date identified to Buyer by Seller as the date that the related Purchased Asset is to be sold pursuant to a Purchase Commitment. The Repurchase Date for each Purchased Asset shall in no event occur later than one (1) year after the Purchase Date of such Purchased Asset.
Exhibit A-23
“Repurchase Mortgage Loans”: Any mortgage loan that a Guarantor has been required to repurchase from an Agency, any Approved Investor or any Person related in any way to a securitization, due to breaches of representations or warranties.
“Repurchase Price”: The price at which a Purchased Asset is to be transferred from Buyer or its designee to Seller or Approved Investor, as applicable, upon termination of a Transaction, which shall equal the sum of (a) the Purchase Price, (b) any applicable fees and indemnities owed by Seller in connection with the Purchased Asset and (c) the Price Differential due on such Purchase Price pursuant to Section 2.6 as of the date of such determination.
“Repurchase Transaction”: As defined in Section 6.5 of this Agreement.
“Resolved Asset”: Any Purchased Asset which is repaid in full, sold, repurchased, liquidated, charged-off, or otherwise disposed of.
“Responsible Officer”: With respect to any corporation, limited liability company or partnership, the chief executive officer, president, chief financial officer, any executive vice president or any senior vice president (the duties of which senior vice president include the administration of this Agreement, the Principal Agreements or the transactions contemplated hereby or thereby), and the treasurer.
“S&P”: Standard and Poor’s Ratings Services, a division of Standard & Poor’s Financial Services LLC, or any successor thereto.
“Safe Harbor Qualified Mortgage”: A Qualified Mortgage with an annual percentage rate that does not exceed the average prime offer rate for a comparable mortgage loan as of the date the interest rate is set by 1.5 or more percentage points for a first-lien Mortgage Loan or by 3.5 or more percentage points for a subordinate-lien Mortgage Loan.
“SEC”: The U.S. Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
“Securities Intermediary”: Deutsche Bank National Trust Association, or any successor thereto under the Joint Securities Account Control Agreement.
“Seller Limited Liability Company Agreement”: The Limited Liability Company Agreement of Caliber Mortgage Participant I LLC entered into by Caliber Home Loans, Inc., as the sole equity member, and, as and when applicable, the Independent Manager (as defined therein), as the same shall be modified and supplemented and in effect from time to time.
“Servicer”: (i) Guarantor or (ii) such other entity responsible for servicing of the Related Mortgage Loans and that has been approved by Buyer in writing, or, in each case, any successor or permitted assigns thereof.
“Servicer Notice”: The notice acknowledged by a Servicer which is substantially in the form of Exhibit G hereto.
“Servicer Termination Event”: The occurrence of any of the following conditions or events shall be a Servicer Termination Event:
| (a) | a Servicer ceases to meet the qualifications for maintaining any of its Approvals, such Approvals are revoked or such Approvals are materially modified; |
Exhibit A-24
| (b) | a Servicer becomes subject to any material penalties and/or sanctions by any Agency, HUD, FHA, VA or RD; |
| (c) | a Servicer fails to service the Related Mortgage Loans in accordance with applicable Agency Guides; |
| (d) | a Servicer fails to service the Eligible Assets subject to Transactions materially in accordance with the related Servicing Agreement, the related Servicer Notice, or this Agreement, as applicable; |
| (e) | a Servicer fails to maintain all state and federal licenses necessary to do business in any jurisdiction where Mortgaged Property is located if such license is required, or to be in compliance with any licensing laws of any jurisdiction where Mortgage Property is located with respect to the Purchased Assets; |
| (f) | a Servicer or any of its Subsidiaries or Affiliates, except in the case of Seller or Guarantor, any of its Subsidiaries or Parent, shall default in any material respect under, or fail to perform in any material respect as required under, or shall otherwise breach in any material respect the terms of any instrument, agreement or contract between Servicer or such other entity on the one hand, and Buyer or any of Buyer’s Affiliates on the other; |
| (g) | (i) an Insolvency Event shall have occurred with respect to (A) Servicer, (B) with respect to a Servicer other than Guarantor, or any of its Affiliates or Subsidiaries or (C) with respect to Guarantor as Servicer, any of its Subsidiaries or Parent; or (ii) Servicer shall admit in writing its inability to, or intention not to, perform any of its obligations under this Agreement or any of the other Principal Agreements to which it is a party; or (iii) Buyer shall have determined in good faith that Servicer is unable to meet its financial commitments as they come due; |
| (h) | a Material Adverse Effect with respect to a Servicer shall occur and continue for more than two (2) Business Days after the earlier of (a) written notice of such Material Adverse Effect shall have been given to Seller by Buyer or (b) the date upon which a Responsible Officer of Seller or Guarantor obtained knowledge of such Material Adverse Effect; |
| (i) | a Servicer fails to maintain two out of three of the following prime servicer ratings: |
| (i) | a rating with Standard & Poor’s Financial Services LLC of Average, |
| (ii) | a rating with Moody’s of SQ4+, and |
| (iii) | a rating with Fitch Ratings, Inc. of RPS3-; |
| (j) | a Servicer fails to make any Servicing Advance required to be made under the related Servicing Agreement, the related Servicer Notice, or this Agreement, as applicable, with respect to the Purchased Assets; |
| (k) | Seller fails, or fails to cause any Servicer, to deposit all amounts required to be deposited into the Custodial Account by Seller with respect to the Related Mortgage Loans when due under this Agreement; |
Exhibit A-25
| (l) | a Servicer fails to deposit all amounts required to be deposited into any account by such Servicer with respect to the Purchased Mortgage Loans when due under the related Servicing Agreement or the related Servicer Notice; |
| (m) | termination of a substantial portion of existing servicing contracts or any material dispute, licensing issue, litigation, audit, revocation, sanctions, penalties, investigation, proceeding or suspension between a Servicer or subservicer and any governmental authority or any Agency as to which individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; |
| (n) | the occurrence of an Event of Default; |
| (o) | the occurrence of any conditions or events that permit a Servicer to be terminated under a Servicing Agreement or a Servicer initiates termination under a Servicing Agreement; |
| (p) | any representation, warranty or certification made or deemed made in a Servicing Agreement by a Servicer or any certificate furnished by a Servicer pursuant to the provisions thereof, shall prove to have been false or misleading in any material respect as of the time made or furnished; or |
| (q) | the failure of a Servicer to perform, comply with or observe any term, covenant or agreement applicable to a Servicer and related to its financial condition as contained in a Servicing Agreement and such occurrence or any default shall not have been remedied within the cure period provided therein. |
“Servicing Agreement”: If the Related Mortgage Loans are serviced by any servicer that is not Guarantor, Buyer or an Affiliate of Buyer, in each case, the agreement with the third party servicer, in form and substance acceptable to Buyer.
“Servicing Records”: All servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of a Mortgage Loan.
“Servicing Rights”: The contractual, possessory or other rights of Guarantor, Servicer or any other Person, whether arising under a Servicing Agreement, the Custodial Agreement or otherwise, to administer or service a Mortgage Loan or to possess related Servicing Records.
“Settlement Date”: With respect to a Mortgage-Backed Security, the date on which the applicable Agency delivers such Mortgage-Backed Security to the Depository and it is registered as a book-entry security in the name of the Depository.
“Single Employer Plan”: Any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, but including a Multiple Employer Plan, that is subject to Title IV of ERISA or Section 412 of the Code and is sponsored, maintained, or contributed to by Guarantor, Seller, or any ERISA Affiliate or for which Guarantor, Seller, any Subsidiary thereof, or any ERISA Affiliate thereof may have or have had liability within five (5) plan years preceding the date of this Agreement liability by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA.
Exhibit A-26
“SOFR”: With respect to any day shall mean the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the Federal Reserve Bank of New York’s Website.
“Specified Guarantee”: As to any Person, any obligation of such Person directly or indirectly guaranteeing any Debt of any other Person or in any manner providing for the payment of any Debt of any other Person or otherwise protecting the holder of such Debt 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 “Specified 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. The amount of any Specified 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 Specified Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith.
“Strict Compliance”: The compliance of Guarantor and Mortgage Loans that are intended to be Agency Eligible Mortgage Loans with the requirements of the applicable Agency Guide, as applicable and as amended by any agreements between Guarantor and the applicable Agency, sufficient to enable Guarantor to issue and ▇▇▇▇▇▇ ▇▇▇ to guarantee or ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac to issue and guarantee a Mortgage- Backed Security; provided, that until copies of any such agreements between Guarantor and the applicable Agency have been provided to Buyer by Guarantor and agreed to by Buyer, such agreements shall be deemed, as between Guarantor and Buyer, not to amend the requirements of the applicable Agency Guide.
“Subsidiary”: 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.
“Successor Servicer”: Any successor servicer of the Related Mortgage Loans appointed by Buyer as described in Section 6.2(b) of this Agreement.
“S&P”: S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.
“Takeout Price”: The purchase price to be paid for a Related Mortgage Loan or related Mortgage-Backed Security by the related Approved Investor pursuant to the related Purchase Commitment.
“Taxes”: As defined in Section 12.3(a) of this Agreement.
“Term SOFR”: The forward-looking term rate for the applicable Corresponding Tenor based on SOFR that has been selected or recommended by the Relevant Governmental Body.
“Three-Month LIBOR”: The daily rate per annum (rounded to three (3) decimal places) for three-month U.S. dollar denominated deposits as offered to prime banks in the London interbank market, as published on the Official ICE LIBOR Fixings page by Bloomberg or in the Wall Street Journal as of the date of determination; provided, that if Buyer determines that any law, regulation, treaty or directive or any change therein or in the interpretation or application thereof, or any circumstance materially and adversely affecting the London interbank market, shall make it unlawful, impractical or commercially unreasonable for Buyer
Exhibit A-27
to enter into or maintain Transactions as contemplated by this Agreement using Three-Month LIBOR, then Buyer may, in addition to its rights under Section 4.4 and Section 4.6, select an alternative rate of interest or index in its discretion.
“TILA-RESPA Integrated Disclosure Rule”: The Truth-in-Lending Act and Real Estate Settlement Procedures Act Integrated Disclosure Rule, adopted by the Consumer Financial Protection Bureau, which is effective for residential mortgage loan applications received on or after October 3, 2015.
“Trade Assignment”: An assignment to Buyer of a forward trade between an Approved Investor and Guarantor with respect to one or more Related Mortgage Loans or related Mortgage-Backed Security, in each case in substantially the form of Exhibit I, together with the related Purchase Commitment that has been fully executed, is enforceable and is in full force and effect and confirms the details of such forward trade.
“Transaction”: As set forth in the Recitals of this Agreement.
“Transaction Request”: An electronic funding file sent via email or via such other method as may be approved by Buyer, in its sole discretion, in the format mutually agreed by Buyer, Seller and Guarantor prior to the Effective Date, with such revisions or supplements incorporated pursuant to Section 3.1(c), from Seller to Disbursement Agent and Buyer notifying Disbursement Agent and Buyer that Seller wishes to enter into a Transaction hereunder; provided, that if a Purchased Asset has an Asset Value of zero by operation of clause (b) of the definition of “Asset Value” as a result of the Related Mortgage Loan with respect to such Purchased Asset that was a Wet Mortgage Loan exceeding its Maximum Dwell Time, and subsequently the Custodian provides an email notification to Buyer and Seller that the Related Mortgage Loan with respect to such Purchased Asset has become a Dry Mortgage Loan, such email notification shall be deemed to be, and Seller hereby acknowledges and agrees that such email notification shall constitute, (i) notification to Buyer by Seller that Seller wishes to enter into a Transaction hereunder, (ii) a Transaction Request (and the submission of a Transaction Request hereunder in accordance with Section 3.1(a)) with respect to such Purchased Asset with a Repurchase Date and an Aggregate Outstanding Purchase Price with respect to such Purchased Asset the same as the Repurchase Date and Aggregate Outstanding Purchase Price with respect to such Purchased Asset, as applicable, with respect to the previous Transaction Request with respect to the applicable Mortgage Loan related to such Repurchased Asset.
“Transactions Terms Letter”: The document executed by Buyer, Guarantor and Seller, referencing this Agreement and setting forth certain specific terms, and any additional terms, with respect to this Agreement.
“Type”: A specific type of Purchased Asset, as set forth in the Transactions Terms Letter.
“Type Margin”: With respect to each Type of Purchased Asset, the corresponding annual rate of interest for such Type as set forth in the Transactions Terms Letter that shall be added to the Applicable Pricing Rate to determine the annual rate of interest for the related Purchase Price.
“Type Purchase Price Percentage”: With respect to each Type of Purchased Asset, the corresponding purchase price percentage for such Type, as set forth in the Transactions Terms Letter.
“Type Sublimit”: Any of the applicable Type Sublimits, as set forth in the Transactions Terms Letter.
“Unadjusted Applicable Pricing Rate Replacement”: The Applicable Pricing Rate Replacement excluding the Applicable Pricing Rate Adjustment.
Exhibit A-28
“Uncommitted Amount”: As of any date of determination, the amount of the Aggregate Transaction Limit in excess of the Committed Amount that is uncommitted as of such date of determination, as set forth in the Transactions Terms Letter, or such other greater amount as may be determined by Buyer in its sole discretion.
“Uniform Commercial Code”: 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.
“Upfront Fee”: The upfront fee set forth in the Transactions Terms Letter. The Upfront Fee shall be non-refundable.
“VA”: The Department of Veterans Affairs and any successor thereto.
“VA Loan Guaranty Agreement”: 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, together with all amendments, modifications, supplements and restatements thereto.
“VA Regulations”: Regulations promulgated by the U.S. Department of Veterans Affairs pursuant to the Servicemen’s Readjustment Act, as amended, codified in 38 Code of Federal Regulations, and other VA issuances relating to Government Mortgage Loans, including related handbooks, circulars and notices.
“Wet Mortgage Loan”: A closed and fully funded Mortgage Loan with respect to which Buyer purchases a Purchased Asset from Seller on the closing date of such Mortgage Loan prior to receipt by Buyer or its Custodian of the related Mortgage Loan Documents, subject to Seller’s obligation to deliver the related Mortgage Loan Documents to Buyer or its Custodian within the applicable Maximum Dwell Time with respect to Seller’s obligation to deliver the related Mortgage Loan Documents to Buyer or its Custodian. For the sake of clarity, no Correspondent Mortgage Loan shall be a Wet Mortgage Loan.
“Wire-out Account”: The account defined and provided for as the “Haircut Account” in the Disbursement Agent and Account Bank Agreement.
Exhibit A-29
EXHIBIT B
[RESERVED]
Exhibit B-1
EXHIBIT C
FORM OF OFFICER’S CERTIFICATE
I, , do hereby certify that I am the duly elected authorized [Chief Financial Officer][Treasurer][Controller] of Caliber Home Loans, Inc. (“Guarantor”). This certificate is delivered in connection with Section 9.1(c) of the Master Repurchase Agreement dated as of October 15, 2020 among Caliber Mortgage Participant I LLC (“Seller”), Guarantor and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA (“Buyer”) (as amended, supplemented or otherwise modified from time to time, the “Agreement”). I do hereby certify that, as of the date of the financial statements attached hereto and as of month end for [QUARTER/YEAR], Seller is and has been in compliance with all the terms of the Agreement and, without limiting the generality of the foregoing, I certify, in my capacity as an officer of Guarantor and not in an individual capacity, that as of month end for [QUARTER/YEAR]:
| (a) | Adjusted Tangible Net Worth. The Adjusted Tangible Net Worth of Guarantor on a consolidated basis as of month end for [MONTH/YEAR], is not less than $[AMOUNT SET FORTH IN TRANSACTIONS TERMS LETTER]. |
This calculation is set forth as Item I in Schedule 1 attached hereto.
| (b) | Liquidity. Guarantor’s Cash and Cash Equivalents on a consolidated basis, as of month end for [MONTH/YEAR] was equal to or greater than $[AMOUNT SET FORTH IN TRANSACTIONS TERMS LETTER]. |
This calculation is set forth as Item II in Schedule 1 attached hereto.
| (c) | Leverage Ratio. As of month end for [MONTH/YEAR], the ratio of Guarantor’s Debt (excluding clause (xi) of the definition thereof) to Adjusted Tangible Net Worth, does not exceed [RATIO SET FORTH IN TRANSACTIONS TERMS LETTER]. |
This calculation is set forth as Item III in Schedule 1 attached hereto.
| (d) | Minimum Profitability. Guarantor has complied with the minimum profitability covenant pursuant to Section 9.14 of the Agreement and the Transaction Terms Letter as of the fiscal quarter, commencing with the fiscal quarter ending September 30, 2020, demonstrating pre-tax income in each of the reports required to be delivered pursuant to Section 9.1 of the Agreement, excluding (x) any fair market value adjustments to Servicing Rights of Guarantor and (y) the gains or losses on Derivatives Contracts related to such Servicing Rights of the Borrower, in excess of $1.00 for the [***] in the aggregate; provided, that pre-tax income of the fiscal quarter then ending, excluding (x) any fair market value adjustments to Servicing Rights of Guarantor and (y) the gains or losses on Derivatives Contracts related to Servicing Rights of Guarantor, shall be no less than the product of (i) [***] and (ii) the Adjusted Tangible Net Worth for such quarter. |
This calculation is set forth as Item IV in Schedule 1 attached hereto.
| (e) | Financing Facilities and Debt. Except as set forth in Schedule 3 attached hereto, each of Seller and Guarantor has not entered into any mortgage financing facilities, including, without limitation, any warehouse, repurchase, purchase or off-balance sheet facilities. All Debt (other than the Debt evidenced by the Agreement) of Seller and Guarantor existing as of month end for [MONTH/YEAR] is listed on Schedule 2 hereto. |
Exhibit C-1
| (f) | Financial Statements. The financial statements attached hereto fairly and accurately present in all material respects the consolidated financial condition, results of operations and cash flows of Guarantor (and its Subsidiaries, on a consolidated basis), in accordance with GAAP, consistently applied, as of quarter end for [QUARTER/YEAR] (subject to normal year-end adjustments). |
| (g) | Government Insuring. Attached hereto as Schedule 5 is a true and correct summary, on a mortgage loan by mortgage loan basis, of any Related Mortgage Loan that is a Government Mortgage Loan for which the applicable FHA Mortgage Insurance, a VA loan guaranty or an RD loan guaranty has not been issued within forty-five (45) calendar days of the related Purchase Date. |
| (h) | Litigation. As of month end for [QUARTER/YEAR], the aggregate amounts accrued in accordance with GAAP with respect to actions, suits or proceedings against Seller or Guarantor, with respect to which there is a reasonable likelihood of an adverse determination is less than $[***] with respect to Seller or Guarantor. |
| (i) | Documentation. Each of Seller and Guarantor has performed the documentation procedures required by its operational guidelines with respect to endorsements and assignments, including the recordation of assignments, or has verified that such documentation procedures have been performed by a prior holder of such Mortgage Loan. |
| (j) | Regulatory Action. There are no actions, claims, suits, investigations or proceedings pending, or to the knowledge of a Responsible Officer of Seller or Guarantor, threatened in writing, or affecting Seller or Guarantor or any of their respective Subsidiaries or the Parent or any of the property thereof in any court or before or by any arbitrator, government commission, board, bureau or other administrative agency that, if adversely determined, could reasonably be expected to result in a Material Adverse Effect with respect to Seller or Guarantor or any of their respective Subsidiaries or the Parent. |
| (k) | No Event of Default or Other Matters. No Event of Default, Event of Early Termination, Potential Default, Material Adverse Effect with respect to Seller or Guarantor or Cease Funding Event has occurred or is continuing. |
| (l) | Originations. Attached hereto as Schedule 4 is a true and correct summary of all Mortgage Loans originated by Guarantor during the calendar month listed on Schedule 4. |
| (m) | Hedging. Guarantor’s hedging policy as of the Effective Date has remained unchanged, other than as attached hereto as Schedule 6. |
| (n) | Repurchases and Indemnification/Make-Whole. Attached hereto as Schedule 7 is a true and correct summary of the (a) pending repurchase demands and indemnification/Make-Whole, (b) satisfied repurchase demands and indemnification/Make-Whole, and (c) total repurchase demands and indemnification/Make-Whole. |
| (o) | Repurchases and Early Payment Default Requests. Attached hereto as Schedule 8 is a true and correct summary of the portfolio performance including representation breaches, missing document breaches, repurchase due to fraud, early payment default requests, summarized on the basis of (a) pending repurchase demands (including weighted average duration of outstanding request), (b) satisfied repurchase demands and (c) total repurchase demands. |
| (p) | Most Favored Status. Except as set forth on a schedule attached hereto, Guarantor or Seller has not entered into a repurchase agreement or credit facility that is substantially similar to the Transactions |
Exhibit C-2
| contemplated under the Agreement in respect of asset type and term with any Person other than Buyer or an Affiliate of Buyer which by its terms provides more favorable terms to buyer, lender or other party with respect to such repurchase agreement or credit facility, as applicable, with respect to any financial covenants set forth in Section 9.14 of the Agreement or any substantially similar covenant. |
IN WITNESS WHEREOF, I have set my hand this day of , 20 .
| CALIBER HOME LOANS, INC. | ||
| By: |
| |
| Name: Title: | ||
Exhibit C-3
SCHEDULE 1 TO OFFICER’S COMPLIANCE CERTIFICATE
CALCULATIONS OF FINANCIAL COVENANTS
As of the calendar month ended [DATE]
| I. | Adjusted Tangible Net Worth |
| II. | Liquidity |
| III. | Leverage Ratio |
| IV. | Minimum Profitability |
Exhibit C-4
SCHEDULE 2 TO OFFICER’S COMPLIANCE CERTIFICATE
DEBT AS OF
| LENDER |
TOTAL FACILITY SIZE |
OUTSTANDING DEBT |
EXPIRATION DATE |
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Exhibit C-5
SCHEDULE 3 TO OFFICER’S COMPLIANCE CERTIFICATE
FINANCING FACILITIES
Exhibit C-6
SCHEDULE 4 TO OFFICER’S COMPLIANCE CERTIFICATE
OVERALL MORTGAGE LOAN ORIGINATIONS
TOTAL LOAN PRODUCTION FOR THE MONTH ENDED
[ ] [ ], 20[ ]
| $ Volume | # Loans | % of $ | ||||||||||
| Conventional |
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| Jumbo |
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| Government |
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| HELOC |
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| Refinance |
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| Total |
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| Retail Originations |
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| Wholesale Originations |
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| Consumer Direct Originations |
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| Correspondent Originations |
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| Total |
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| Credit Score Range |
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| <= 639 |
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| 640 - 659 |
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| 660 - 699 |
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| 700 - 719 |
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| 720 - 739 |
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| 740 - 759 |
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| 760 - 779 |
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| >= 780 |
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| Total |
$ | — | — | 0 | % | |||||||
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Exhibit C-7
TOTAL LOAN PRODUCTION YTD
[ ] [ ], 20[ ]
| $ Volume | # Loans | % of $ | ||||||||||
| Conventional |
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| Jumbos |
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| Government |
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| HELOC |
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| Alt A |
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| Non-Agency |
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| Broker |
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| Total |
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| Purchases |
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| Refinances |
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| Total |
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| Balloon |
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| Retail Originations |
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| Wholesale Originations |
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| Consumer Direct Originations |
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| Correspondent Originations |
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| Total |
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| First Lien Mortgage |
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| Second Lien Mortgage |
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| Total |
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| Credit Score Range |
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| <= 639 |
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| 640 - 659 |
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| 660 - 699 |
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| 700 - 719 |
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| 720 - 739 |
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| 740 - 759 |
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| 760 - 779 |
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| >= 780 |
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Exhibit C-8
SCHEDULE 5 TO OFFICER’S COMPLIANCE CERTIFICATE
GOVERNMENT INSURING
Exhibit C-9
SCHEDULE 6 TO OFFICER’S COMPLIANCE CERTIFICATE
HEDGING POLICY
Exhibit C-10
SCHEDULE 7 TO OFFICER’S COMPLIANCE CERTIFICATE
REPURCHASES AND INDEMNIFICATION
As of [ ][ ], 20[ ]
| YTD Satisfied Repurchase Claims |
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| Investor Name |
Loan Count | Original Loan Amount ($) | Cumulative Repurchase Price ($) | |||||||||
| Bond |
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| Total |
— | — | — | |||||||||
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| Pending Outstanding Repurchase Exposure |
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| Investor Name |
Loan Count | Original Loan Amount ($) | Estimated Repurchase Price ($) | |||||||||
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| Total |
— | — | — | |||||||||
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| Satisfied/Agreed Make Whole Summary (YTD 2019) |
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| Investor Name |
Loan Count | Original Loan Amount ($) | Make Whole Amount ($) | |||||||||
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| Total |
— | — | — | |||||||||
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Exhibit C-11
EXHIBIT D
ASSIGNMENT OF CLOSING PROTECTION LETTER
CALIBER HOME LOANS, INC. (“Assignor”) declares that for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it does hereby convey, transfer, assign, deliver and give to Assignee, and hereby expressly subrogates ▇▇▇▇▇▇▇ SACHS BANK USA (“Assignee”) unto, all of Assignor’s claims, demands, rights and causes of action, past, present or future, that Assignor has for loss or damage covered by the closing protection letter issued by [Title Company] attached hereto (“Closing Protection Letter”). Such rights being assigned by Assignor hereunder include, without limitation, the right to demand, ▇▇▇, collect, receive, protect, preserve and enforce performance under the Closing Protection Letter. Assignee shall succeed to all rights of recovery of Assignor under the Closing Protection Letter and Assignor shall execute such instruments and documents necessary and proper to further secure such rights to Assignee and shall not act in any manner hereafter to prejudice or impair the rights of Assignee. Assignor hereby grants Assignee an irrevocable mandate and power of attorney coupled with an interest with full power of substitution to transact this act of assignment and subrogation. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Master Repurchase Agreement (as amended, restated, supplemented or modified from time to time) between Assignor and Assignee.
IN WITNESS WHEREOF, the Assignor has caused this assignment to be duly executed as of [ ], 20 .
| CALIBER HOME LOANS, INC. | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
Exhibit D-1
EXHIBIT E
FORM OF POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, ▇▇▇▇▇▇▇ Sachs Bank USA (“Buyer”), Caliber Mortgage Participant I LLC (“Seller”) and Caliber Home Loans, Inc. (“Guarantor”) have entered into the Master Repurchase Agreement, dated as of October 15, 2020 (the “Agreement”), pursuant to which Buyer has agreed to purchase from Seller certain mortgage loans from time to time, subject to the terms and conditions set forth therein; and
WHEREAS, each of Seller and Guarantor has agreed to give to Buyer a power of attorney on the terms and conditions contained herein in order for Buyer to take any action set forth below that Buyer may deem necessary or advisable to accomplish the purposes of the Agreement.
NOW, THEREFORE, each of Seller and Guarantor hereby irrevocably constitutes and appoints Buyer as its true and lawful Attorney-in-Fact, with full power and authority hereby conferred in its name, place and stead and for its use and benefit, to do and perform any of the following actions in connection with assets purchased by Buyer from Seller under the Agreement (the “Purchased Assets”) or as otherwise provided below:
| (1) | to receive, endorse and collect all checks made payable to the order of Seller representing any payment on account of the Purchased Assets; |
| (2) | to assign or endorse any mortgage, deed of trust, promissory note or other instrument relating to the Purchased Assets; |
| (3) | to correct any assignment, mortgage, deed of trust or promissory note or other instrument relating to the Purchased Assets, including, without limitation, unendorsing and re-endorsing a promissory note to another investor; |
| (4) | to complete and execute lost note affidavits or other lost document affidavits relating to the Purchased Assets; |
| (5) | to issue title requests and instructions relating to the Purchased Assets; and |
| (6) | to give notice to any individual or entity of its interest in the Purchased Assets under the Agreement. |
Each of Seller and Guarantor hereby ratifies and confirms all that said Attorney-in-Fact shall lawfully do or cause to be done by authority hereof.
Third parties without actual notice may rely upon the power granted under this Power of Attorney upon the exercise of such power by the Attorney-in-Fact.
Exhibit E-1
| CALIBER HOME LOANS, INC. | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
WITNESS my hand this day of , 20 .
STATE OF
County of
This instrument was acknowledged, subscribed and sworn to before me this day of , by
Notary Public
My Commission Expires:
Notary Seal:
| CALIBER MORTGAGE LOAN PARTICIPANT I LLC | ||
| By: |
| |
| Name: |
| |
| Title: |
| |
WITNESS my hand this day of , 20 .
STATE OF
County of
This instrument was acknowledged, subscribed and sworn to before me this day of , by
Notary Public
My Commission Expires:
Notary Seal:
Exhibit E-2
EXHIBIT F
WIRING INSTRUCTIONS
Buyer’s Wire Instructions:
| Bank Name | ▇▇▇▇▇ Fargo Bank, N.A. | |
| ABA # | [***] | |
| Acct. Name | MPS Disbursement Agent | |
| Account # | [***] | |
| FFC: | [***] Funding Deposit Account |
These wiring instructions may not be changed except by an authorized representative of Buyer.
Exhibit F-1
EXHIBIT G
FORM OF SERVICER NOTICE
[ ], 20
[ ], as Servicer
[ADDRESS]
Attention:
| Re: | Master Repurchase Agreement dated as of October 15, 2020 (the “Agreement”) among Caliber Home Loans, Inc. (“Guarantor”), Caliber Mortgage Participant I LLC (“Seller”) and ▇▇▇▇▇▇▇ Sachs Bank USA (“Buyer”) |
Ladies and Gentlemen:
[ ] (“Servicer”) is servicing certain mortgage loans for Guarantor pursuant to that certain Servicing Agreement dated as of [ ] (the “Servicing Agreement”) between Servicer and Guarantor. Pursuant to the Agreement between Buyer, Guarantor and Seller, Servicer is hereby notified that Seller may from time to time sell to Buyer a one hundred percent (100%) beneficial interest (the “Participation Interests”) certain mortgage loans which are then currently being serviced by Servicer pursuant to the terms of the Servicing Agreement (such mortgage loans that are serviced by Servicer, the “Mortgage Loans”).
Section 1. Direction Notice.
| (a) | Upon receipt of notice from Buyer (a “Direction Notice”) in which Buyer shall identify the Mortgage Loans, Servicer shall segregate all amounts collected on account of such Mortgage Loans, hold them in trust for the sole and exclusive benefit of Buyer, and remit such collections in accordance with Buyer’s written instructions. Further, Servicer shall follow the instructions of Buyer with respect to the Mortgage Loans, and shall deliver to Buyer any information with respect to the Mortgage Loans as reasonably requested by Buyer. |
| (b) | Notwithstanding any contrary information which may be delivered to the Servicer by Guarantor or Seller, Servicer may conclusively rely on any information delivered by Buyer, and Guarantor and Seller, jointly and severally, shall indemnify and hold the Servicer harmless for any and all claims asserted against it for any actions taken in good faith by the Servicer in connection with the delivery of such information. |
Section 2. No Modification of the Servicing Agreement. Without the prior written consent of Buyer exercised in Buyer’s sole discretion, Servicer shall not agree to (a) any modification, amendment or waiver of the Servicing Agreement; (b) any termination of the Servicing Agreement or (c) the assignment, transfer, or material delegation of any of its rights or obligations under the Servicing Agreement.
Section 3. Right of Termination. Upon receipt of a Direction Notice, Buyer shall have the right to terminate the Servicer’s rights and obligations to service the Mortgage Loans under the Servicing Agreement in accordance with the terms thereof. Any fees due to the Servicer (a) in connection with any termination shall be paid by Guarantor and Seller, jointly and severally, and (b) incurred following receipt of a Direction Notice shall be paid by Buyer to the extent that such fees relate to the Mortgage Loans that are subject to the Servicing Agreement. Guarantor, Seller and Servicer shall cooperate in transferring the servicing with respect to such Mortgage Loans to a successor servicer appointed by Buyer in its sole
Exhibit G-1
discretion, subject with respect to a servicer termination event under the Agreement (but not, for purposes of clarity, with respect to an event of default under the Agreement) Guarantor’s appointment right set forth in the first sentence of Section 6.2(m) of the Agreement.
Section 4. Notices. All notices, demands, consents, requests and other communications required or permitted to be given or made hereunder in writing shall be mailed (first class, return receipt requested and postage prepaid) or delivered in person or by overnight delivery service or by facsimile, addressed to the respective parties hereto at their respective addresses set forth below or, as to any such party, at such other address as may be designated by it in a notice to the other:
Any notices to Buyer should be delivered to the following addresses:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Any notices to Servicer should be delivered to the following addresses:
[ ]
Any notices to Seller should be delivered to the following addresses:
Caliber Home Loans, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With copies to:
Caliber Home Loans, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
E-mail: ▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Section 5. 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.
Section 6. Entire Agreement; Severability. This agreement shall supersede any existing agreements between the parties containing general terms and conditions for the servicing of the Mortgage Loans. 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.
Exhibit G-2
Section 7. Governing Law; Jurisdiction; Waiver of Jury Trial.
| (a) | This agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of laws (other than Section 5-1401 of the New York General Obligations Law). |
| (b) | All legal actions between or among the parties regarding this agreement, including, without limitation, legal actions to enforce this agreement or because of a dispute, breach or default of this agreement, shall be brought in the federal or state courts located in New York County, New York, which courts shall have sole and exclusive in personam, subject matter and other jurisdiction in connection with such legal actions. The parties hereto irrevocably consent and agree that venue in such courts shall be convenient and appropriate for all purposes and, to the extent permitted by law, waive any objection that they may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. The parties hereto further irrevocably consent and agree that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address set forth in Section 4, and that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to ▇▇▇ in any other jurisdiction. |
| (c) | The parties hereto hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this agreement or the transactions contemplated hereby or thereby. |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Exhibit G-3
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.
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ BANK USA, as Buyer | ||
| By: | ||
| Name: | ||
| Title: | ||
| CALIBER HOME LOANS, INC., as Guarantor | ||
| By: | ||
| Name: | ||
| Title: | ||
| CALIBER MORTGAGE PARTICIPANT I LLC, as Seller | ||
| By: | ||
| Name: | ||
| Title: | ||
| [ ], as Servicer | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit G-4
EXHIBIT H
REPRESENTATIONS AND WARRANTIES
Representations and Warranties Concerning Purchased Assets. Seller represents and warrants to and covenants with Buyer that the following are true and correct with respect to each Purchased Asset as of the related Purchase Date through and until the date on which such Purchased Asset is repurchased by Seller. With respect to those representations and warranties which are made to Seller’s knowledge, if it is discovered by Seller or Buyer that the substance of such representation and warranty is inaccurate, notwithstanding Seller’s lack of knowledge with respect to the substance of such representation and warranty, such inaccuracy shall be deemed a breach of the applicable representation and warranty. References in the following representations and warranties to a “Mortgage Loan” refer to the Mortgage Loan in which the Seller has acquired a Participation Interest represented by the related Purchased Asset:
| (a) | Eligible Asset. The Mortgage Loan is an Eligible Mortgage Loan. The Mortgage Loan is a legal, valid and binding obligation of the Mortgagor thereunder, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principals of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and subject to no offset, defense or counterclaim, obligating Mortgagor to make the payments specified therein. |
| (b) | Purchase Commitment; Trade Assignment. Unless otherwise stated in the Transactions Terms Letter, the Mortgage Loan related to the Asset is covered by a Purchase Commitment that (i) does not exceed the availability under such Purchase Commitment (taking into consideration mortgage loans or securities, as applicable, which have been purchased by the respective Approved Investor under the Purchase Commitment), (ii) conforms to the requirements and the specifications set forth in such Purchase Commitment and the related regulations, rules, requirements and/or handbooks of the applicable Approved Investor, and (iii) is eligible for sale to and insurance or guaranty by, respectively, the applicable Approved Investor and any applicable insurer. Each such Purchase Commitment is enforceable, in full force and effect, and if such Mortgage Loan related to the Asset is a Pooled Mortgage Loan other than with respect to Pooled Mortgage Loans under the Joint Securities Account Control Agreement, such Purchase Commitment is validly and effectively assigned to Buyer pursuant to a Trade Assignment. If applicable, each such Trade Assignment is enforceable and in full force and effect, and was delivered by or on behalf of Seller to Buyer in accordance with the requirements set forth in Section 7.2(p). Each Purchase Commitment and Trade Assignment, as applicable, is a legal, valid and binding obligation of Guarantor enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
| (c) | Transaction Request. The information contained in the Transaction Request is true, correct and complete and the Mortgage Loan conforms to the description thereof on the related Transaction Request. |
| (d) | Origination and Servicing. The Mortgage Loan was originated by or in conjunction with a mortgagee approved by the Secretary of Housing and Urban Development pursuant to Sections 184, 203 and 211 of the National Housing Act, a savings and loan association, a savings bank, a commercial bank, credit union, insurance company or similar banking institution which is supervised and examined by a federal or state authority. The Mortgage Loan has been originated and serviced in compliance with Accepted Servicing Practices, applicable Agency Guides, Guarantor’s underwriting guidelines and Insurer requirements and all applicable federal, state and local statutes, regulations and rules, including, without limitation, the Federal Truth-in-Lending |
Exhibit H-1
| Act of 1968, as amended, and Regulation Z thereunder, the Federal Fair Credit Reporting Act, the Federal Equal Credit Opportunity Act, the Federal Real Estate Settlement Procedures Act of 1974, as amended, and Regulation X thereunder, and all applicable usury, licensing, real property, consumer protection and other laws. With respect to escrow deposits and escrow payments to the extent the Mortgage Loan requires such escrow payments, all such payments are in the possession of, or under the control of, Seller and any interest required to be paid pursuant to state, federal and local law has been properly paid and credited. All escrow payments have been collected in full compliance with state and federal law. No escrow deposits or escrow payments or other charges or payments due to Seller have been capitalized under the Mortgage, the Mortgage Note or any related Mortgage Loan Document. The Mortgage Loan has not been serviced by any Person other than Guarantor or a Servicer. |
| (e) | Compliance with Applicable Laws. Any and all requirements of any federal, state or local law including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity or disclosure laws applicable to the Mortgage Loan have been complied with, the consummation of the transactions contemplated hereby will not involve the violation of any such laws or regulations, and Seller shall cause Guarantor to maintain or shall cause its agent to maintain in its possession, available for the inspection of Buyer, and shall deliver to Buyer, upon demand, any evidence of compliance with all such requirements that Guarantor is required to maintain or cause to be maintained pursuant to such laws or the requirements of any Governmental Authority. |
| (f) | Validity of Mortgage Documents. The Mortgage Loan is evidenced by instruments acceptable to FHA, VA, RD, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or the Approved Investor, as applicable, given the type of Mortgage Loan. The Mortgage Loan Documents, Other Mortgage Loan Documents and any other agreement executed and delivered by a Mortgagor or guarantor, if applicable, in connection with a Mortgage Loan, and all signatures thereon, are complete, authentic and genuine, and each such document is the legal, valid and binding obligation of the maker thereof enforceable in accordance with its terms, except as may be limited by bankruptcy or other laws affecting the enforcement of creditor’s rights generally, and there are no rights of rescission, set-offs, counterclaims or other defenses with respect thereto. All parties to the Mortgage Loan Documents, Other Mortgage Loan Documents and any other agreement executed and delivered by a Mortgagor or guarantor, if applicable, had legal capacity to enter into the Mortgage Loan and to execute and deliver any such instrument or agreement and such instrument or agreement has been duly and properly executed by such related parties. Seller has reviewed all of the documents constituting the Mortgage Loan File and has made such inquiries as it deems necessary to make and confirm the accuracy of the representations set forth herein. To the best of Seller’s knowledge, except as disclosed to Buyer in writing, all tax identifications and property descriptions are legally sufficient; and tax segregation, where required, has been completed. |
| (g) | No Outstanding Charges. All taxes, governmental assessments, insurance premiums, water, sewer and municipal charges, leasehold payments or ground rents which previously became due and owing have been paid, or an escrow of funds has been established in an amount sufficient to pay for every such item which remains unpaid and which has been assessed but is not yet due and payable. Neither Seller nor any of its Affiliates has advanced funds, or induced, solicited or knowingly received any advance of funds by a party other than the Mortgagor, directly or indirectly, for the payment of any amount required under the Mortgage Loan, except for interest accruing from the date of the Mortgage Note or date of disbursement of the proceeds of the Mortgage Loan, whichever is earlier, to the day which precedes by one month the due date of the first installment of principal and interest thereunder. All homeowners or condominium dues, fees, assessments, impositions or other charges levied, assessed or imposed by a homeowners or condominium association, board, corporation or similar entity which previously became due and owing have been paid. |
Exhibit H-2
| (h) | Private Mortgage Insurance. If required by the applicable Agency Guide, each Conventional Conforming Mortgage Loan is insured by a policy of private mortgage insurance in the amount required by the applicable Agency, and by an Insurer and all provisions of such private mortgage insurance policy have been and are being complied with, such policy is in full force and effect and all premiums due thereunder have been paid. There are no defenses, counterclaims or rights of setoff affecting the Conventional Conforming Mortgage Loan or affecting the validity or enforceability of any private mortgage insurance applicable to such Mortgage Loan. |
| (i) | Original Terms Unmodified. The terms of the Mortgage Note, the Mortgage and each other related Mortgage Loan Document have not been impaired, waived, altered or modified in any respect, from the date of origination; except (x) to the extent such amendment or modification has been disclosed to Buyer in writing and does not affect the salability of the Mortgage Loan pursuant to the applicable Purchase Commitment, or (y) by a written instrument which has been recorded, if necessary to protect the interests of Buyer, and which has been delivered to the Custodian and the terms of which are reflected in the Custodial Mortgage Loan Schedule; provided, that, none of the payment terms, interest rate, maturity date or other material terms have been impaired, waived, altered or modified in any respect. No Mortgage Loan is subject to a COVID-19 forbearance plan. The substance of any such waiver, alteration or modification has been approved by the title insurer, to the extent required, and its terms are reflected in the Custodial Mortgage Loan Schedule. No Mortgagor in respect of the Mortgage Loan has been released, in whole or in part, except in connection with an assumption agreement approved by the title insurer, to the extent required by such policy, and which assumption agreement is part of the Mortgage Loan File delivered to Custodian. The related Mortgage Note, Mortgage and each other related Mortgage Loan Document contain the entire agreement of the parties and all of the obligations of Guarantor under the related Mortgage Loan. |
| (j) | No Defenses. The Mortgage Loan is not subject to any right of rescission, set-off, counterclaim or defense, including, without limitation, the defense of usury, nor will the operation of any of the terms of the Mortgage Note, the Mortgage or any other related Mortgage Loan Document, or the exercise of any right thereunder, render any of the Mortgage Note, the Mortgage or any other related Mortgage Loan Document unenforceable, in whole or in part and no such right of rescission, set- off, counterclaim or defense has been asserted with respect thereto, and no Mortgagor in respect of the Mortgage Loan was a debtor in any state or federal bankruptcy or insolvency proceeding at the time the Mortgage Loan was originated. Seller has no knowledge nor has it received any notice that any Mortgagor in respect of the Mortgage Loan is a debtor in any state or federal bankruptcy or insolvency proceeding. No rescission notice and/or notice of right to cancel was improperly delivered to the Mortgagor in respect of the Mortgage Loan, and the rescission period related to the Mortgage Loan has expired. |
| (k) | No Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled, subordinated or rescinded, in whole or in part, and the Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would affect any such release, cancellation, subordination or rescission. Neither Seller nor any of its Affiliates has waived the performance by the Mortgagor of any action, if the Mortgagor’s failure to perform such action would cause the Mortgage Loan to be in default, nor has Seller waived any default resulting from any action or inaction by the Mortgagor. |
Exhibit H-3
| (l) | No Defaults. There is no default, breach, violation or event of acceleration existing under the Mortgage or the related Mortgage Note, and no event has occurred that, with the passage of time or with notice and the expiration of any grace or cure period, would constitute a default, breach, violation or event of acceleration, and neither Seller nor any of its Affiliates, have waived any default, breach, violation or event of acceleration and the Mortgage Loan has not been deemed uncollectible or “charged off” by Guarantor, Seller, any of its Affiliates or any Servicer. |
| (m) | Customary Provisions. The Mortgage Note has a stated maturity. The Mortgage contains customary and enforceable provisions such as to render the rights and remedies of the holder thereof adequate for the realization against the Mortgaged Property of the benefits of the security provided thereby including, (i) in the case of a Mortgage designated as a deed of trust, by trustee’s sale, and (ii) otherwise by judicial or non-judicial foreclosure, in each case subject to applicable law. Upon default by a Mortgagor on a Mortgage Loan and foreclosure on, or trustee’s sale of, each Mortgaged Property pursuant to the proper procedures and subject to applicable law, the holder of the Mortgage Loan will be able to deliver good and merchantable title to each Mortgaged Property. There is no homestead or other exemption or other right available to the Mortgagor or any other person, or restriction on Seller or any other person, including without limitation, any federal, state or local, law, ordinance, decree, regulation, guidance, attorney general action, or other pronouncement, whether temporary or permanent in nature, that would interfere with, restrict or delay, either (1) the ability of Guarantor, Seller, Buyer or any servicer, subservicer or any successor servicer or successor subservicer to sell the related Mortgaged Property at a trustee’s sale or otherwise, or (2) the ability of Guarantor, Seller, Buyer or any servicer or any successor servicer to foreclose on the related Mortgage. The Mortgage Note and Mortgage are on forms acceptable to FHA, VA, RD, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae. |
| (n) | Location and Type of Mortgaged Property. The Mortgaged Property consists of a single or adjacent parcels of real property with a detached single family residence erected thereon, or a two- to four- family dwelling, or such other dwelling(s) conforming with the applicable ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ Mac requirements regarding such dwellings or conforming to Guarantor’s underwriting guidelines acceptable to Buyer in its sole and absolute discretion; provided that no residence or dwelling is a condominium unit (unless the related Mortgage Loan was originated in compliance with the applicable Agency Guides in effect as of the applicable date of determination), a cooperative apartment (unless the related Mortgage Loan was originated in compliance with the applicable Agency Guides in effect as of the applicable date of determination), a mobile home or a manufactured home (unless the related Mortgage Loan was originated in compliance with the applicable Agency Guides in effect as of the applicable date of determination). Unless otherwise permitted pursuant to the applicable Agency Guides in effect as of the applicable date of determination, no Mortgage Loan is secured by a multi-family, mixed-use or commercial property, nor is any portion of the Mortgaged Property used for commercial purposes. |
| (o) | Location of Improvements; No Encroachments. (i) If required pursuant to the applicable Agency Guide in effect as of the applicable date of determination, an appraisal was obtained on each Mortgaged Property. (ii) Unless otherwise permitted pursuant to the applicable Agency Guides in effect as of the applicable date of determination, all improvements which were considered in determining the appraised value of the Mortgaged Property, assuming that an appraisal was obtained, lie wholly within the boundaries and building restriction lines of the Mortgaged Property, no improvements on adjoining properties encroached upon the Mortgaged Property and no improvements encroach upon any easements. No improvement located on or being part of the Mortgaged Property is in violation of any applicable zoning and building law, ordinance or regulation or each such improvement constitutes legal non-conforming use of structure. |
Exhibit H-4
| (p) | Occupancy of the Mortgaged Property. As of the Purchase Date the Mortgaged Property is or will be lawfully occupied under applicable law. All inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Property and, with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriting certificates, have been made or obtained from the appropriate authorities. Neither Seller nor any of its Affiliates has received notification from any Governmental Authority that the Mortgaged Property is in material non-compliance with such laws or regulations, is being used, operated or occupied unlawfully or has failed to have or obtain such inspection, licenses or certificates, as the case may be. Neither Seller nor any of its Affiliates has received notice of any violation or failure to conform with any such law, ordinance, regulation, standard, license or certificate. The Mortgaged Property is “owner-occupied” and the related Mortgagor occupies the Mortgaged Property as such Mortgagor’s primary residence. |
| (q) | Lien Position. The Mortgage Loan is secured by a valid, subsisting and enforceable first priority lien on the Mortgaged Property, including all buildings on the Mortgaged Property and all installations and mechanical, electrical, plumbing, heating and air conditioning systems located in or annexed to such buildings, and all additions, alterations and replacements made at any time with respect to the foregoing, under the laws of the state where the related Mortgaged Property is located, subject only to: |
| (i) | the lien of current real property taxes and assessments not yet due and payable; |
| (ii) | covenants, conditions and restrictions, rights of way, easements and other matters of the public record as of the date of recording acceptable to prudent mortgage lending institutions generally and specifically referred to in the lender’s title insurance policy delivered to the originator of the Mortgage Loan and (1) referred to or otherwise considered in the appraisal made for the originator of the Mortgage Loan or (2) which do not adversely affect the appraised value of the Mortgaged Property set forth in such appraisal; and |
| (iii) | other matters to which like properties are commonly subject which do not materially interfere with the benefits of the security intended to be provided by the Mortgage or the use, enjoyment, value or marketability of the related Mortgaged Property. |
Any security agreement, chattel mortgage or equivalent document related to and delivered in connection with the Mortgage Loan establishes and creates a valid, subsisting and enforceable first lien and first priority security interest on the property described therein and Seller has full right to pledge and assign its interest in the same to Buyer. Unless otherwise permitted pursuant to the applicable Agency Guides in effect as of the applicable date of determination, the Mortgaged Property was not, as of the date of origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt or other security instrument creating a lien subordinate to the lien of the Mortgage.
| (r) | No Future Advances. The full original principal amount of each Mortgage Loan, net of any discounts, has been fully advanced or disbursed to the Mortgagor named therein, except with respect to specific mortgage products agreed upon by Buyer in writing in its sole and absolute discretion. All costs, fees and expenses incurred in making or closing the Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is not entitled to any refund of any amounts paid or due under the Mortgage Note or Mortgage. With respect to any Mortgage Loan, the terms of which require Guarantor to make additional advances or disbursements to or on behalf of the Mortgagor named therein after the date of origination, Guarantor has made all such advances and disbursements in accordance with the terms of the Mortgage and/or the terms and conditions of the |
Exhibit H-5
| related mortgage loan program, and such additional amounts have been advanced or disbursed from such Guarantor’s own funds, and not from funds representing any Purchase Price paid by Buyer to such Seller hereunder. For all Mortgage Loans other than specific mortgage products agreed upon by Buyer in writing in its sole and absolute discretion, there is no requirement for future advances and any and all requirements as to completion of any on-site or off-site improvements and as to disbursements of any escrow funds therefor have been satisfied. |
| (s) | Ownership. Seller owns and has full right to sell the Asset to Buyer free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest, and has full right and authority subject to no interest or participation of, or agreement with, any Person other than Guarantor, to sell each Asset pursuant to this Agreement and following the sale of each Asset, Buyer will own such Asset free and clear of any encumbrance, equity, participation interest, lien, pledge, charge, claim or security interest except any such security interest created pursuant to the terms of this Agreement. Seller has not previously pledged, sold or otherwise transferred such Asset to any other Person other than the sale of any Correspondent Mortgage Loan by an Approved Originator to Guarantor and such Asset has not been presented by Guarantor, submitted by Guarantor or proposed by Guarantor to be pledged, sold or transferred to, and rejected by, any other Person. No Asset has been repurchased by Guarantor or any of its Affiliates after previously being sold to any Person (including transfers in connection with securitizations). |
| (t) | Doing Business. All parties which have had any interest in the Mortgage Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period in which they held and disposed of such interest, were) (i) in compliance with any and all applicable licensing requirements of the laws of the state wherein the Mortgaged Property is located, and (ii) either (1) organized under the laws of such state, (2) qualified to do business in such state, (3) a federal savings and loan association, a savings bank or a national bank having a principal office in such state, or (4) not doing business in such state. |
| (u) | Hazard Insurance. The Mortgage Loan is covered by a policy of hazard insurance and insurance against other insurable risks and hazards as are customary in the area where the Mortgaged Property is located as required by the applicable Agency Guides and in accordance with Guarantor’s underwriting guidelines and the Agency Guides, as applicable, in an amount not less than the greatest of (i) 100% of the replacement cost of all improvements to the Mortgaged Property, (ii) the outstanding principal balance of the Mortgage Loan, and (iii) the amount necessary to avoid the operation of any co-insurance provisions with respect to the Mortgaged Property or such maximum lesser amount as permitted by the applicable Agency Guides and applicable law, all in a form usual and customary in the industry and that is in full force and effect, and all amounts required to have been paid under any such policy have been paid. If any portion of the Mortgaged Property is in an area identified by any federal Governmental Authority as having special flood hazards, and flood insurance is available, a flood insurance policy meeting the current guidelines of the Federal Emergency Management Agency is in effect with a generally acceptable insurance carrier, in an amount representing coverage not less than the least of (1) the outstanding principal balance of the Mortgage Loan (2) the full insurable value of the Mortgaged Property, and (3) the maximum amount of insurance available under the National Flood Insurance Act of 1968, as amended by the Flood Disaster Protection Act of 1974. All such insurance policies (collectively, the “hazard insurance policy”) contain a standard mortgagee clause naming Guarantor, its successors and assigns (including, without limitation, subsequent owners of the Mortgage Loan), as mortgagee, and may not be reduced, terminated or canceled without thirty (30) days’ prior written notice to the mortgagee. No such notice has been received by the Guarantor. All premiums on such insurance policy have been paid. The related Mortgage obligates the Mortgagor to maintain all such insurance and, at such Mortgagor’s failure to do so, authorizes the mortgagee to maintain such insurance at |
Exhibit H-6
| the Mortgagor’s cost and expense and to seek reimbursement therefor from such Mortgagor. Where required by state law or regulation, the Mortgagor has been given an opportunity to choose the carrier of the required hazard insurance; provided that the policy is not a “master” or “blanket” hazard insurance policy covering a condominium, or any hazard insurance policy covering the common facilities of a planned unit development. The hazard insurance policy is the valid and binding obligation of the insurer and is in full force and effect. Neither Seller nor any of its Affiliates has engaged in, and has no knowledge of the Mortgagor’s having engaged in, any act or omission which would impair the coverage of any such policy, the benefits of the endorsement provided for herein, or the validity and binding effect of either including, without limitation, no unlawful fee, commission, kickback or other unlawful compensation or value of any kind has been or will be received, retained or realized by any attorney, firm or other Person, and no such unlawful items have been received, retained or realized by such Seller. |
| (v) | Title Insurance. A valid and enforceable title insurance policy has been issued or a commitment to issue such title insurance policy has been obtained for the Mortgage Loan in an amount not less than the original principal amount of such Mortgage Loan, which title insurance policy insures that the Mortgage relating thereto is a valid first lien on the property therein described and that the mortgaged property is free and clear of all encumbrances and liens having priority over the first lien of the Mortgage and otherwise in compliance with the requirements of the applicable Approved Investor. The title insurance company that issued the applicable Closing Protection Letter has also issued or has committed to issue the title insurance policy. Guarantor, its successors and assigns, are the sole insureds of such title insurance policy, and such title insurance policy is valid and remains in full force and effect and will be in force and effect upon the consummation of the transactions contemplated by this Agreement. All premiums on such title insurance have been paid and no claims have been made under such title insurance policy, and no prior holder, servicer or subservicer of the related Mortgage, including Guarantor, has done, by act or omission, anything which would impair the coverage of such title insurance policy, including without limitation, no unlawful fee, commission, kickback or other unlawful compensation or value of any kind has been or will be received, retained or realized by any attorney, firm or other Person, and no such unlawful items have been received, retained or realized by Guarantor. Guarantor is in possession of the documents set forth in Section 3.6(a) in accordance with Section 3.6(a) and Section 9.9. |
| (w) | Assignment. The Assignment (i) has been duly authorized by all necessary limited liability company or corporate action by Guarantor, duly executed and delivered by Guarantor and is the legal, valid and binding obligation of Guarantor enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principals of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and (ii) complies with all applicable laws, including all applicable recording, filing and registration laws and regulations and is adequate and legally sufficient for the purpose intended to be accomplished thereby, including, without limitation, the assignment of all of the rights, powers and benefits of Guarantor as mortgagee. |
| (x) | No Fraud. No error, omission, misrepresentation, negligence, fraud or similar occurrence has taken place with respect to the Mortgage Loan on the part of any Person, including, without limitation, the Mortgagor, any appraiser, any builder or developer or any other party involved in the origination of the Mortgage Loan or in the application of any insurance in relation to such Mortgage Loan. |
| (y) | Compliance with Guidelines. The Mortgage Loan was originated in compliance with, and remains in compliance with, Guarantor’s underwriting guidelines, which shall have been approved by Buyer in its sole discretion. Each Agency Eligible Mortgage Loan was originated in Strict Compliance with and remains in compliance, with the applicable Agency Guide. |
Exhibit H-7
| (z) | Transfer of Mortgage Loans. Except with respect to Mortgage Loans registered with MERS, the Assignment is in recordable form and is acceptable for recording under the laws of the jurisdiction in which the Mortgaged Property is located. |
| (aa) | Due-On-Sale. The Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the mortgagee thereunder. |
| (bb) | No Buydown Provisions; No Graduated Payments or Contingent Interests. Except with respect to Agency Eligible Mortgage Loans, the Mortgage Loan does not contain provisions pursuant to which monthly payments are paid or partially paid with funds deposited in any separate account established by Guarantor, the Mortgagor, or anyone on behalf of the Mortgagor, nor does it contain any other similar provisions which may constitute a “buydown” provision. The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan does not have a shared appreciation or other contingent interest feature. |
| (cc) | No Condemnation Proceeding. There have not been any condemnation proceedings with respect to the Mortgaged Property and Seller has no knowledge of any such proceedings and the Mortgaged Property has not been deemed unfit for use by any Governmental Authority. |
| (dd) | Servicemembers Civil Relief Act. The Mortgagor has not notified Seller or any of its Affiliates, and neither Seller nor any of its Affiliates has knowledge, of any relief requested or allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003. |
| (ee) | Disclosure Materials. The Mortgagor has executed a statement to the effect that the Mortgagor has received all disclosure materials required by applicable law, and Seller maintains such statement in the Mortgage File. |
| (ff) | Construction or Rehabilitation of Mortgaged Property. No Mortgage Loan was made in connection with the construction or rehabilitation of a Mortgaged Property or facilitating the trade-in or exchange of a Mortgaged Property. |
| (gg) | Capitalization of Interest. The Mortgage Note does not by its terms provide for the capitalization or forbearance of interest. |
| (hh) | No Equity Participation. Except as specifically provided in this Agreement with respect to the Participation Interest specifically provided in this Agreement, no document relating to the Mortgage Loan provides for any contingent or additional interest in the form of participation in the cash flow of the Mortgaged Property or a sharing in the appreciation of the value of the Mortgaged Property. The indebtedness evidenced by the Mortgage Note is not convertible to an ownership interest in the Mortgaged Property or the Mortgagor and neither Seller nor any of its Affiliates has financed and neither it nor its respective employees or owners owns, directly or indirectly, any equity of any form in the Mortgaged Property or the Mortgagor. |
| (ii) | Proceeds of Mortgage Loan. The proceeds of the Mortgage Loan have not been and shall not be used to satisfy, in whole or in part, any debt owed or owing by the Mortgagor to Seller or any Affiliate or correspondent of Seller, except in connection with a refinanced Mortgage Loan. |
| (jj) | Mortgage Submitted for Recordation. The Mortgage either has been or will promptly be submitted for recordation in the appropriate governmental recording office of the jurisdiction where the Mortgaged Property is located. |
Exhibit H-8
| (kk) | Other Encumbrances. To the best of Seller’s knowledge, any property subject to any security interest given in connection with a Mortgage Loan is not subject to any other encumbrances other than a first position mortgage and encumbrances which may be allowed under the applicable Agency Guides. |
| (ll) | Located in U.S. No collateral (including, without limitation, the related Mortgaged Property and the dwellings thereon and otherwise) relating to a Mortgage Loan is located in any jurisdiction other than in one of the fifty (50) states of the United States of America, the District of Columbia or the U.S. territories. |
| (mm) | HOEPA. No Mortgage Loan is (i) subject to the provisions of 12 CFR 1026.32 of Regulation Z implementing the Homeownership and Equity Protection Act of 1994 as amended (“HOEPA”), (ii) a “high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage loan, or “predatory” mortgage loan or any other comparable term, no matter how defined under any federal, state or local law, (iii) subject to any comparable federal, state or local statutes or regulations, or any other statute or regulation providing for heightened regulatory scrutiny or assignee liability to holders of such mortgage loans, (iv) ineligible for sale to ▇▇▇▇▇▇ ▇▇▇ as a “state higher priced loan” under Section B2-1.5-02 of the ▇▇▇▇▇▇ Mae Guide (as amended from time to time), or (v) ineligible for sale to ▇▇▇▇▇▇▇ Mac under Section 4202.2 of the ▇▇▇▇▇▇▇ Mac Guide. |
| (nn) | No Predatory Lending. No predatory, abusive or deceptive lending practices, including but not limited to, the extension of credit to a Mortgagor without regard for the Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to a Mortgagor which has no tangible net benefit to the Mortgagor, were employed in connection with the origination of the Mortgage Loan. |
| (oo) | Payment Defaults; Payments Current. No payment default has occurred with respect to the Mortgage Loan. All payments required to be made up to the Purchase Date for the Mortgage Loan under the terms of the Mortgage Note and each other related Mortgage Loan Document have been made and credited. No Mortgage Loan is a Delinquent Mortgage Loan nor has any Mortgage Loan been a Delinquent Mortgage Loan at any time since the origination of the Mortgage Loan. The first monthly payment shall be made, or shall have been made, with respect to the Mortgage Loan on its due date or within thirty (30) calendar days thereof, all in accordance with the terms of the related Mortgage Note. |
| (pp) | Mortgaged Property Undamaged. The Mortgaged Property is in good repair and undamaged by waste, fire, earthquake or earth movement, windstorm, flood, tornado or other casualty so as to adversely affect the value of the Mortgaged Property as security for the Mortgage Loan or the use for which the premises were intended and each Mortgaged Property is in good repair. The Mortgaged Property is free from material structural damage. |
| (qq) | No Exception. No document deficiency exists with respect to the Mortgage Loan which would materially adversely affect the Mortgage Loan or Buyer’s ownership and/or security interest granted by Seller or an Affiliate in the Mortgage Loan as determined by Buyer in its sole and absolute discretion. |
| (rr) | Acceptable Investment. No specific circumstances or conditions exist with respect to the Mortgage, the Mortgaged Property, Mortgagor or Mortgagor’s credit standing that should reasonably be expected to (i) cause private institutional investors which invest in Mortgage Loans similar to the Mortgage Loan to regard the Mortgage Loan as an unacceptable investment, (ii) cause the Mortgage Loan to be more likely to become past due in comparison to similar Mortgage Loans, or (iii) adversely affect the value or marketability of the Mortgage Loan in comparison to similar Mortgage Loans. |
Exhibit H-9
| (ss) | MERS Mortgage Loans. With respect to each Mortgage Loan registered with MERS, a mortgage identification number has been assigned by MERS and such mortgage identification number is accurately provided on the Transaction Request. The related Assignment to MERS, if any, has been duly and properly recorded. With respect to each Mortgage Loan registered with MERS, no Mortgagor has received any notice of liens or legal actions with respect to such Mortgage Loan and no such notices have been electronically posted by MERS. |
| (tt) | Prepayment Fees. The Mortgage Loan does not contain a provision permitting imposition of a premium upon a prepayment prior to maturity. |
| (uu) | Points and Fees. All points and fees related to the Mortgage Loan were disclosed in writing to the Mortgagor in accordance with applicable state and federal law and regulation. Except for those Mortgage Loans exempt under 12 C.F.R. Section 1026.43(a)(3) or 12 C.F.R. Section 1026.3, the points and fees related to such Mortgage Loan did not exceed [***] of the total loan amount (or such other applicable limits for lower balance Mortgages) as specified under 12 C.F.R. Section 1026.43(e)(3), and the points and fees were calculated using the calculation required for qualified mortgages under 12 C.F.R. Section 1026.32(b) to determine compliance with applicable requirements. |
| (vv) | Mandatory Arbitration. No Mortgage Loan that was originated on or after October 31, 2004, is subject to mandatory arbitration except when the terms of the arbitration also contain a waiver provision that provides that in the event of a sale or transfer of the Mortgage Loan or interest in the Mortgage Loan to ▇▇▇▇▇▇ ▇▇▇, the terms of the arbitration are null and void and cannot be reinstated. Seller hereby covenants that such Seller or Servicer or its agent subservicer of the Mortgage Loan, as applicable, will notify the Mortgagor in writing within sixty (60) calendar days of the sale or transfer of the Mortgage Loan to ▇▇▇▇▇▇ Mae that the terms of the arbitration are null and void. |
| (ww) | Mortgage Loan Products. No Mortgagor was encouraged or required to select a Mortgage Loan product offered by the originator of the Mortgage Loan which is a higher cost product designed for less creditworthy Mortgagors, unless at the time of the origination of such Mortgage Loan, such Mortgagor did not qualify taking into account credit history and debt to income ratios for a lower cost credit product then offered by the originator of the Mortgage Loan or any affiliate of the originator of such Mortgage Loan. If, at the time of Mortgage Loan application, the Mortgagor may have qualified for a lower cost credit product than offered by any mortgage lending affiliate of the originator of the Mortgage Loan, such originator referred the Mortgagor’s application to such affiliate for underwriting consideration. |
| (xx) | Environmental Matters. To the best of Seller’s knowledge, the Mortgaged Property is free from any and all toxic or hazardous substances and there exists no violation of any local, state or federal environmental law, rule or regulation. To the best of Seller’s knowledge, no Mortgaged Property was, as of the related Purchase Date, located within a one-mile radius of any site listed in the National Priorities List as defined under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, or on any similar state list of hazardous waste sites which are known to contain any hazardous substance or hazardous waste. To the best of Seller’s knowledge, there is no pending action or proceeding directly involving any Mortgaged Property in which compliance with any environmental law, rule or regulation is alleged to have been violated. |
Exhibit H-10
| (yy) | Government Mortgage Loans. With respect to each Government Mortgage Loan, (i) the FHA Mortgage Insurance Contract is in full force and effect, there exists no impairment to full recovery, and HUD is not entitled to be indemnified by the related mortgagee under FHA Mortgage Insurance and the VA Loan Guaranty Agreement or the RD Loan Guaranty Agreement, as applicable, is in full force and effect to the maximum extent stated therein and there exists no impairment to full recovery thereunder, (ii) all necessary steps have been taken to keep such guaranty or insurance valid, binding and enforceable and each of such is the binding, valid and enforceable obligation of the FHA, the VA or the RD, respectively, to the full extent thereof, without surcharge, set-off or defense, (iii) such Government Mortgage Loan is insured, or eligible to be insured, pursuant to the National Housing Act or is guaranteed, or eligible to be guaranteed, under the provisions of Chapter 37 of Title 38 of the United States Code, as applicable, (iv) with respect to each FHA insurance certificate, VA guaranty certificate or RD loan guaranty, Seller has complied with applicable provisions of the insurance for guaranty contract and federal statutes and regulations, all premiums or other charges due in connection with such insurance or guarantee have been paid, there has been no act or omission which would or may invalidate any such insurance or guaranty, and the insurance or guaranty is, or when issued, will be, in full force and effect with respect to such Government Mortgage Loan, (v) Seller has no knowledge of any defenses, counterclaims, or rights of setoff affecting such Govesrnment Mortgage Loan or affecting the validity or enforceability of any private mortgage insurance or FHA Mortgage Insurance, VA loan guaranty or RD loan guaranty with respect to such Government Mortgage Loan, and (vi) Seller has no knowledge of any circumstance which would cause such Government Mortgage Loan to be ineligible for FHA Mortgage Insurance, a VA loan guaranty or an RD loan guaranty, as applicable, or cause the FHA, the VA or the RD, as applicable, to deny or reject the related Mortgagor’s application for FHA Mortgage Insurance, a VA loan guaranty or an RD loan guaranty, respectively. Each Government Mortgage Loan was originated in accordance with the criteria of an Agency for purchase of such Government Mortgage Loans. |
| (zz) | Pooled Mortgage Loans. Each Related Mortgage Loan that will be pooled to support a Mortgage- Backed Security is being serviced by a subservicer having all Approvals necessary to make such Related Mortgage Loan eligible to back the related Mortgage-Backed Security. |
| (aaa) | Mortgage-Backed Securities. Each Mortgage-Backed Security subject to a Transaction, unless otherwise provided for in the Joint Securities Account Control Agreement, (i) is backed by Agency Eligible Mortgage Loans that satisfy the “Good Delivery Guidelines” promulgated by SIFMA, (ii) is subject to a valid and binding Purchase Commitment that is enforceable in accordance with its terms, (iii) with respect to which, the applicable Agency Documents list Buyer as sole subscriber, (iv) has been validly issued, and is fully paid and non-assessable, and has been issued in compliance with all applicable laws, including, without limitation, the applicable Agency Guides, (v) is in book-entry form and held through the facilities of the applicable Depository, and (vi) is unencumbered (other than liens created in favor of Buyer pursuant to the Principal Agreements and liens created by or through Buyer). Unless otherwise provided for in the Joint Securities Account Control Agreement and the Joint Account Control Agreement, there are (1) no outstanding rights, options, warrants or agreements (other than as created by Buyer) for a purchase, sale or issuance, in connection with any Mortgage-Backed Security, (2) no agreements on the part of Seller or its Affiliates to issue, sell or distribute the Mortgage-Backed Securities, and (3) no obligations on the part of Seller or its Affiliates (contingent or otherwise) to purchase, redeem or otherwise acquire any securities or any interest therein or to pay any dividend or make any distribution in respect of the Mortgage-Backed Securities. |
| (bbb) | Qualified Mortgage. Each Mortgage Loan, except for those Mortgage Loans exempt under 12 C.F.R. Section 1026.43(a)(3) or 12 C.F.R. Section 1026.3 satisfies the following criteria: |
Exhibit H-11
| (i) | Such Mortgage Loan is a Qualified Mortgage and was originated in compliance with the Ability to Repay Rule; |
| (ii) | Such Mortgage Loan is accurately identified in writing to Buyer as either a Safe Harbor Qualified Mortgage or a Rebuttable Presumption Qualified Mortgage; |
| (iii) | Prior to the origination of such Mortgage Loan, the related originator made a reasonable and good faith determination that the related Mortgagor would have a reasonable ability to repay such Mortgage Loan according to its terms, in accordance with, at a minimum, the eight underwriting factors set forth in 12 C.F.R. Section 1026.43(c)(2); and |
| (iv) | Such Mortgage Loan is supported by documentation that evidences compliance with the Ability to Repay Rule and the QM Rule, as applicable. |
| (ccc) | Ability to Repay Determination. There is no action, suit or proceeding instituted by or against or threatened in writing against Seller or its Affiliates in any federal or state court or before any commission or other regulatory body (federal, state or local, foreign or domestic) that questions or challenges the compliance of any Mortgage Loan (or the related underwriting) with, the Ability to Repay Rule or the QM Rule. |
| (ddd) | TRID Compliance. To the extent applicable, effective with respect to applications taken on or after October 3, 2015, each Mortgage Loan was originated in compliance with the Consumer Financial Protection Bureau’s TILA-RESPA Integrated Disclosure Rule, except for any immaterial noncompliance that Guarantor is using commercially reasonable efforts to remedy such immaterial noncompliance following Guarantor or Seller obtaining knowledge of such immaterial noncompliance. |
| (eee) | Disbursement of Proceeds. Any and all requirements as to disbursements of any escrow funds which have been disbursed as of the Purchase Date have been complied with. All costs, fees and expenses incurred in making or closing the Mortgage Loan and the recording of the Mortgage were paid, and the Mortgagor is not entitled to any refund of any amounts paid or due under the Mortgage Note, Mortgage or any other related Mortgage Loan Document. |
| (fff) | No Mechanics’ Liens. There are no mechanics’ or similar liens or claims which have been filed for work, labor or material affecting the Mortgaged Property which are or may be liens prior to, or equal or coordinate with, the lien of the Mortgage. |
| (ggg) | Payment Terms. Principal and interest payments on the Mortgage Loan commenced no more than sixty (60) calendar days after funds were disbursed in connection with the Mortgage Loan. Interest on the Mortgage Note is payable on the first day of each month, with interest calculated and payable in arrears. Principal on the Mortgage Note is payable on the earlier of the maturity date of such Mortgage Note and the date on which the indebtedness thereunder becomes immediately due and payable thereunder. The Mortgage Note does not permit negative amortization or contain any negative amortization features. Interest on each Mortgage Loan is calculated on the basis of either (i) a 360-day year and the actual days elapsed in each calendar month or (ii) a 360-day year consisting of twelve 30-day months. |
| (hhh) | No Additional Collateral. The Mortgage Note is not and has not been secured by any collateral except the lien of the corresponding Mortgage and the security interest of any applicable security agreement and chattel mortgage referred to in clause (r) above or other collateral specified in the related Mortgage Loan Documents. The Mortgage Loan is not cross collateralized with any Mortgage Loan and/or any loan outside of this Agreement. |
Exhibit H-12
| (iii) | Deeds of Trust. In the event the Mortgage constitutes a deed of trust, a trustee, authorized and duly qualified under applicable law to serve as such, has been properly designated and currently so serves and is named in the Mortgage, and no fees or expenses are or will become payable by the Custodian or Buyer to the trustee under the deed of trust, except in connection with a trustee’s sale after default by the Mortgagor. |
| (jjj) | Bona Fide Loan. The Mortgage Loan arose from a bona fide loan, complying with all applicable State and Federal laws and regulations, to persons having legal capacity to contract and is not subject to any defense, set-off or counterclaim. |
| (kkk) | LTV. The LTV of the Mortgage Loan at origination was not more than the percentage set forth in the applicable Agency Guides in effect as of such date of origination with respect to such Mortgage Loan or Guarantor’s underwriting guidelines. |
| (lll) | No Adverse Selection. The Mortgage Loan was not selected by Seller or its Affiliates in a manner intended to adversely affect the interest of Buyer. Other than the applicable eligibility criteria expressly contained herein and/or in the Transactions Terms Letter, Seller and its Affiliates used no selection procedures that identified the Mortgage Loan as being less desirable or valuable than other comparable Mortgage Loans owned and/or originated by Guarantor. Each Mortgage Loan, collectively with the other Mortgage Loans included on such Mortgage Loan Schedule, is representative of Guarantor’s portfolio of Mortgage Loans. |
| (mmm) | Single Original Mortgage Note. There is only one originally executed Mortgage Note, which is not stamped as a duplicate with respect to each Mortgage Loan. |
| (nnn) | Insurance. Seller has caused or will cause to be performed any and all acts required to preserve the rights and remedies of Buyer in any insurance policies applicable to the Mortgage Loan including, without limitation, any necessary notifications of insurers, assignments of policies or interests therein, and establishments of coinsured, joint loss payee and mortgagee rights in favor of Buyer. |
| (ooo) | Endorsements. The Mortgage Note has been (or will be as of the related Purchase Date) endorsed by a duly authorized officer of Guarantor for its own account and not as a fiduciary, trustee, trustor or beneficiary under a trust agreement. |
| (ppp) | Accuracy of Information. All information provided to Buyer by Seller or Guarantor and prepared by Seller or Guarantor, as applicable, with respect to the Mortgage Loan is accurate in all material respects. |
| (qqq) | Single Premium Credit Insurance. The Mortgagor has not been offered or required to purchase single premium credit insurance in connection with the origination of the related Mortgage Loan. |
| (rrr) | Patriot Act. Seller and its Affiliates have complied in all material respects with all applicable anti- money laundering laws and regulations, including without limitation the Patriot Act with respect to the origination of the Mortgage Loan. The Mortgage Loan is not subject to nullification pursuant to the Executive Order or the regulations promulgated by the Office of Foreign Assets Control of the United States Department of the Treasury (the “OFAC Regulations”) or in violation of the Executive Order or the OFAC Regulations, and the Mortgagor is not subject to the provisions of such Executive Order or the OFAC Regulations nor listed as a “blocked person” for purposes of the OFAC Regulations. |
Exhibit H-13
| (sss) | Mortgage Releases. The terms of the Mortgage or related Mortgage Loan Documents do not provide for the release of any related Mortgaged Property from the lien of the Mortgage except (i) upon payment in full of the Mortgage Loan or (ii) as required pursuant to an order of condemnation or a material casualty. |
| (ttt) | Activity. There are no illegal activities or activities relating to any controlled substances at the Mortgaged Property. |
| (uuu) | No Broker. Seller and its Affiliates have not dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Purchased Assets pursuant to this Agreement; provided, that if it has dealt with any broker, investment banker, agent, or other person, except for Buyer, who may be entitled to any commission or compensation in connection with the sale of Purchased Assets pursuant to this Agreement, such commission or compensation shall have been paid in full by it. |
| (vvv) | Appraisal. Unless waived by an Agency, the FHA, the VA or the USDA and permitted by the applicable Agency Guides in effect as of the applicable date of determination, a full Appraisal of the related Mortgaged Property was conducted and executed prior to the funding of the Mortgage Loan by a Qualified Appraiser, duly appointed by the Seller or originator of the Mortgage Loan, who had no interest, direct or indirect in the Mortgaged Property or the Mortgagor or in any loan made on the security thereof, and whose compensation is not affected by the approval or disapproval of the Mortgage Loan. |
| (www) | Notice of Insurance Ineligibility. There are no circumstances that could reasonably be expected to cause the FHA, the VA or the RD to deny or reject any claim under any FHA Mortgage Insurance Contract, a VA Loan Guaranty Agreement or an RD Loan Guaranty Agreement, respectively. |
| (xxx) | Reverse Mortgage Loans. No Mortgage Loan is a reverse mortgage loan. |
Exhibit H-14
EXHIBIT I
FORM OF TRADE ASSIGNMENT1
(“Approved Investor”)
(Address)
Attention:
Fax No.:
Dear Sirs:
Attached hereto is a correct and complete copy of your confirmation of commitment (the “Commitment”), trade-dated , , to purchase
[$ of % year,
(Check Box)
| (a) | ▇▇▇▇▇▇ ▇▇▇; |
| (b) | ▇▇▇▇▇▇ Mae; or |
| (c) | ▇▇▇▇▇▇▇ Mac |
mortgage-backed pass-through securities (“Securities”) at a purchase price of $ from on [insert Settlement Date].
Our intention is to assign $ of this Commitment’s full amount, which assignment shall be effective and shall be fully enforceable by the assignee on the Settlement Date. This is to confirm that (i) the form of this assignment conforms to the SIFMA guidelines, (ii) the Commitment is in full force and effect, (iii) the Commitment has been assigned to ▇▇▇▇▇▇▇ Sachs Bank USA (“Goldman”) as security for the obligations of [GUARANTOR], the “Guarantor” under that certain Master Repurchase Agreement dated as of October 15, 2020 (the “Agreement”) among Caliber Mortgage Participant I LLC (“Seller”), Caliber Home Loans, Inc. (“Guarantor”) and Goldman, whose acceptance of such assignment is indicated below, [and] (iv) upon delivery of this trade assignment to you by Goldman you will accept [GUARANTOR]’s direction set forth herein to pay Goldman for such Securities, [(v) you will accept delivery of such Securities directly from Goldman, (vi) Goldman is obligated to make delivery of such Securities to you in accordance with the attached Commitment and (vii) you have released [GUARANTOR] from its obligation to deliver the Securities to you under the Commitment.] Payment will be made “delivery versus payment (DVP)” to Goldman in immediately available funds.
| 1 | This Trade Assignment is only required to the extent such transaction is not subject to the Joint Securities Account Control Agreement. |
Exhibit I-1
If you have any questions, please call at ( ) - immediately or contact him by fax at ( ) - .
| Very truly yours, | ||
| [ ] | ||
| By: |
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| Title: |
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| Date: |
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Agreed to:
| ▇▇▇▇▇▇▇ SACHS BANK USA | ||
| By: |
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| Title: |
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| Date: |
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Notice of delivery and confirmation of receipt are the obligations of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA. Prompt notification of incorrect information or rejection of the trade assignment should be made to [ ].
Exhibit I-2