Exhibit 10.10
MASTER REPURCHASE AGREEMENT
CDC MORTGAGE CAPITAL, INC., as buyer
("Buyer"),
-----
SIB MORTGAGE CORP., as seller ("Seller"), and
------
SI BANK & TRUST ("Guarantor")
---------
Dated February 12, 2002
TABLE OF CONTENTS
Page
----
1. Applicability....................................................1
2. Definitions......................................................1
3. Program; Initiation of Transactions.............................16
4. Repurchase......................................................18
5. Price Differential..............................................18
6. Margin Maintenance..............................................19
7. Income Payments.................................................20
8. Security Interest...............................................21
9. Payment and Transfer............................................21
10. Conditions Precedent............................................22
11. Program; Costs..................................................24
12. Servicing.......................................................25
13. Representations and Warranties..................................26
14. Covenants.......................................................32
15. Events of Default...............................................36
16. Remedies Upon Default...........................................39
17. Reports.........................................................41
18. Repurchase Transactions.........................................43
19. Single Agreement................................................43
20. Notices and Other Communications................................44
21. Entire Agreement; Severability..................................45
22. Non-assignability...............................................45
i
23. Set-off.........................................................46
24. Binding Effect; Governing Law; Jurisdiction.....................46
25. No Waivers, etc.................................................47
26. Intent..........................................................47
27. Disclosure Relating to Certain Federal Protections..............47
28. Power of Attorney...............................................48
29. Buyer May Act Through Affiliates................................48
30. Indemnification; Obligations....................................48
31. Counterparts....................................................49
32. Confidentiality.................................................49
33. Recording of Communications.....................................49
34. Non-Utilization Fee.............................................50
35. Periodic Due Diligence Review...................................50
ii
SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased Mortgage
Loans
Schedule 13(a)(11) - Litigation
Schedule 13(a)(16) - Seller Trade Names
ANNEXES
Annex I - Non-Utilization Fee Formula
EXHIBITS
Exhibit A - Form of Transaction Request
Exhibit B - RESERVED
Exhibit C - Form of Mortgage Loan Schedule and Exception Report
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Form of Guaranty
Exhibit F - Form of Opinion of Seller's and Guarantor's counsel
Exhibit G - Underwriting Guidelines
Exhibit H - Authorized Signatories of Seller and Guarantor
Exhibit I - Corporate Resolutions of Seller and Guarantor
Exhibit J - Seller's and Guarantor's Tax Identification Number
Exhibit K - Existing Indebtedness
Exhibit L -RESERVED
Exhibit M - Form of Servicer Notice
Exhibit N - UCC Filing Jurisdictions
Exhibit O - Form of Request for Additional Transactions for Excess Margin
iii
1. Applicability
From time to time the parties hereto may enter into
transactions in which Seller agrees to transfer to Buyer Mortgage Loans (as
hereinafter defined) against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Mortgage Loans at a date certain
or on demand, against the transfer of funds by Seller. Each such transaction
shall be referred to herein as a "Transaction" and, unless otherwise agreed in
writing, shall be governed by this Agreement, including any supplemental terms
or conditions contained in any annexes identified herein, as applicable
hereunder.
2. Definitions
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"Acceptable State" means any state acceptable pursuant to Seller's
Underwriting Guidelines.
"Accepted Servicing Practices" means, with respect to any Mortgage
Loan, those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage Loan
in the jurisdiction where the related Mortgaged Property is located.
"Act of Insolvency" means, with respect to any Person or its
Affiliates, (i) the filing of a petition, commencing, or authorizing the
commencement of any case or proceeding, or the voluntary joining of any case or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law relating to the protection of creditors, or suffering
any such petition or proceeding to be commenced by another which is consented
to, not timely contested or results in entry of an order for relief; (ii) the
seeking of the appointment of a receiver, trustee, custodian or similar official
for such party or an Affiliate or any substantial part of the property of
either; (iii) the appointment of a receiver, conservator, or manager for such
party or an Affiliate by any governmental agency or authority having the
jurisdiction to do so; (iv) the making or offering by such party or an Affiliate
of a composition with its creditors or a general assignment for the benefit of
creditors; (v) the admission by such party or an Affiliate of such party of its
inability to pay its debts or discharge its obligations as they become due or
mature; or (vi) that any governmental authority or agency or any person, agency
or entity acting or purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate, or to assume custody or
control of, all or any substantial part of the property of such party or of any
of its Affiliates, or shall have taken any action to displace the management of
such party or of any of its Affiliates or to curtail its authority in the
conduct of the business of such party or of any of its Affiliates.
"Adjusted Tangible Net Worth" means, Net Worth plus 1% of the
outstanding servicing portfolio balance of such Person plus Subordinated Debt,
minus intangible assets such as capitalized servicing rights, goodwill and
trademarks, minus notes receivable from shareholders or Affiliates.
"Affiliate" means, with respect to any Person, any "affiliate" of such
Person, as such term is defined in the United States Bankruptcy Code of 1978, as
amended from time to time.
"Agency" means ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or GNMA, as applicable.
"Agreement" means this Master Repurchase Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Alt A Mortgage Loan" means a Mortgage Loan with a FICO score of at
least 620 originated in accordance with the criteria established by Buyer for
Alt-A Mortgage Loans in accordance with the Underwriting Guidelines.
"Appraised Value" means the value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
"Appropriate Federal Banking Agency" has the meaning ascribed to it by
Section 1813(q) of Title 12 of the United States Code, as amended from time to
time.
"Asset Tape" means a remittance report delivered on a monthly basis or
as otherwise requested by Buyer pursuant to Section 17d hereof containing
servicing information, including, without limitation, those fields reasonably
requested by Buyer from time to time, on a loan-by-loan basis and in the
aggregate, with respect to the Purchased Mortgage Loans serviced by Seller or
any Servicer for the month (or any portion thereof) prior to the Reporting Date.
"Asset Value" means as of any date of determination with respect to
each Purchased Mortgage Loan,
(i) the lesser of (A) the outstanding principal amount thereof as set
forth on the related Mortgage Loan Schedule and Exception Report and (B) (1) the
Market Value of such Purchased Mortgage Loan as of such date multiplied by (2)
the applicable Purchase Price Percentage, or
(ii) during the existence of a Double Leverage Event, (A) the
applicable Purchase Price Percentage multiplied by (B) the lesser of (1) the
outstanding principal amount thereof as set forth on the related Mortgage Loan
Schedule and Exception Report or (2) the Market Value of such Purchased Mortgage
Loan as of such date.
Without limiting the generality of the foregoing, Seller
acknowledges that the Asset Value of a Purchased Mortgage Loan may be
reduced to zero by Buyer if:
(i) if a breach of a representation, warranty or covenant made by
Seller in this Agreement with respect to such Purchased Mortgage Loan
has occurred and is continuing;
(ii) if such Purchased Mortgage Loan is a Non-Performing Mortgage
Loan;
2
(iii) if such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement (other than
to a Take-out Investor pursuant to a Bailee Letter) for a period in
excess of ten (10) calendar days;
(iv) if such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement to a
Take-out Investor pursuant to a Bailee Letter for a period in excess
of 45 calendar days;
(v) if such Purchased Mortgage Loan has been subject to a
Transaction hereunder for a period of greater than 60 days;
(vi) if when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Second Lien Mortgage Loans that are Purchased Mortgage
Loans exceeds $12,500,000;
(vii) if such Purchased Mortgage Loan is a Second Lien Mortgage
Loan which fails to satisfy the Underwriting Guidelines for Prime or
Alt A credit quality Mortgage Loans; or
(viii) if such Purchased Mortgage Loan is an Alt A Mortgage Loan
with a FICO score of less than 620.
"Assignment of Mortgage" means an assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to Buyer.
"Bailee Letter" has the meaning assigned to such term in the Custodial
Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978, as
amended from time to time.
"Business Day" means any day other than (A) a Saturday or Sunday and
(B) a public or bank holiday in New York City.
"Buyer" means CDC Mortgage Capital, Inc., and any successor hereunder.
"Capital Lease Obligations" means, for any Person, all obligations of
such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Change in Control" means:
3
(A) any transaction or event as a result of which the Guarantor
ceases to own, beneficially or of record, 100% of the issued and
outstanding shares of voting stock of Seller;
(B) any transaction or event as a result of which Holdings ceases to
own, beneficially or of record, 100% of thIe issued and outstanding shares of
voting stock of the Guarantor;
(C) the sale, transfer, or other disposition of all or
substantially all of Seller's or Guarantor's assets (excluding any
such action taken in connection with any securitization transaction);
or
(D) the consummation of a merger or consolidation of Seller or
Guarantor with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting power of the
continuing or surviving entity's stock outstanding immediately after
such merger, consolidation or such other reorganization is owned by
persons who were not stockholders of Seller or Guarantor, as the case
may be, immediately prior to such merger, consolidation or other
reorganization.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means one or more accounts established by the
Servicer, into which all collections and proceeds on or in respect of the
Mortgage Loans shall be deposited by Servicer.
"Committed Mortgage Loan" means a Mortgage Loan which is the subject of
a Take-out Commitment with a Take-out Investor.
"Confirmation" has the meaning set forth in Section 3(c).
"Conforming Mortgage Loan" means a Mortgage Loan originated in
accordance with the criteria of an Agency for purchase of Mortgage Loans,
including, without limitation, conventional Mortgage Loans, FHA Loans and VA
Loans, as determined by Buyer in its sole discretion.
"Custodial Agreement" means the custodial agreement dated as of the
date hereof, among Seller, Buyer and Custodian as the same may be amended from
time to time.
"Custodian" means LaSalle Bank, National Association or such other
party specified by Buyer and agreed to by Seller, which approval shall not be
unreasonably withheld.
"Default" means an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"Dollars" and "$" means dollars in lawful currency of the United States
of America.
4
"Double Leverage Event" means, as of any date of determination, when
the sum of Holdings', determined on a non-consolidated basis, (i) aggregate
"equity investments in Subsidiaries" (as determined under GAAP) plus (ii)
goodwill (as determined under GAAP) is in excess of 100% of Holdings' Net Worth.
"Due Date" means the day of the month on which the Monthly Payment is
due on a Mortgage Loan, exclusive of any days of grace.
"Effective Date" means the date upon which the conditions precedent set
forth in Section 10 shall have been satisfied.
"Electronic Tracking Agreement" means an Electronic Tracking Agreement
among Buyer, Seller, MERS and MERSCORP, Inc., to the extent applicable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which Seller is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
"Escrow Payments" means, with respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
"Event of Default" has the meaning specified in Section 15 hereof.
"Event of Termination" means with respect to Seller or
Guarantor (i) with respect to any Plan, a reportable event, as defined in
Section 4043 of ERISA, as to which the PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified with 30 days of the
occurrence of such event, or (ii) the withdrawal of Seller, Guarantor or any
ERISA Affiliate thereof from a Plan during a plan year in which it is a
substantial employer, as defined in Section 4001(a)(2) of ERISA, or (iii) the
failure by Seller, Guarantor or any ERISA Affiliate thereof to meet the minimum
funding standard of Section 412 of the Code or Section 302 of ERISA with respect
to any Plan, including, without limitation, the failure to make on or before its
due date a required installment under Section 412(m) of the Code or Section
302(e) of ERISA, or (iv) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by Seller, Guarantor
or any ERISA Affiliate thereof to terminate any plan, or (v) the adoption of an
amendment to any Plan that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of tax-exempt status of the trust
of which such Plan is a part if Seller, Guarantor or any ERISA Affiliate thereof
fails to timely provide security to the Plan in accordance with the provisions
of said sections, or (vi) the institution by the PBGC of proceedings under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or (vii) the receipt by Seller, Guarantor or any ERISA
5
Affiliate thereof of a notice from a Multiemployer Plan that action of the type
described in the previous clause (vi) has been taken by the PBGC with respect to
such Multiemployer Plan, or (viii) any event or circumstance exists which may
reasonably be expected to constitute grounds for Seller, Guarantor or any ERISA
Affiliate thereof to incur liability under Title IV of ERISA or under Sections
412(c)(11) or 412(n) of the Code with respect to any Plan.
"Exception Mortgage Loan" means any Mortgage Loan which
is otherwise ineligible for purchase hereunder, or which otherwise becomes
ineligible for purchase hereunder and which is approved by Buyer in its sole
discretion. The Pricing Rate, Market Value, Purchase Price and Asset Value with
respect to Exception Mortgage Loans shall be set in the sole discretion of
Buyer. Buyer may at any time, and in its sole discretion, no longer consider a
Mortgage Loan an Exception Mortgage Loan, in which case such Mortgage Loan shall
have a Market Value of zero.
"Excess Margin" has the meaning specified in Section 6(c).
"Existing Indebtedness" has the meaning specified in Section 13(a)(22)
hereof.
"▇▇▇▇▇▇ ▇▇▇" means ▇▇▇▇▇▇ Mae, the government sponsored enterprise
formerly known as the Federal National Mortgage Association.
"FHA" means the Federal Housing Administration, an agency within the
United States Department of Housing and Urban Development, or any successor
thereto, and including the Federal Housing Commissioner and the Secretary of
Housing and Urban Development where appropriate under the FHA Regulations.
"FHA Approved Mortgagee" means a corporation or institution approved as
a mortgagee by the FHA under the National Housing Act, as amended from time to
time, and applicable FHA Regulations, and eligible to own and service mortgage
loans such as the FHA Loans.
"FHA Loan" means a Mortgage Loan which is the subject of an FHA
Mortgage Insurance Contract.
"FHA Mortgage Insurance" means, mortgage insurance authorized under the
National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Mortgage Insurance Contract" means the contractual obligation of
the FHA respecting the insurance of a Mortgage Loan.
"FHA Regulations" means the regulations promulgated by the Department
of Housing and Urban Development under the National Housing Act, as amended from
time to time and codified in 24 Code of Federal Regulations, and other
Department of Housing and Urban Development issuances relating to FHA Loans,
including the related handbooks, circulars, notices and mortgagee letters.
6
"Foreclosed Loan" means a Mortgage Loan, the property securing which
has been foreclosed upon by Seller.
"▇▇▇▇▇▇▇ Mac" means the Federal Home Loan Mortgage Corporation.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America and applied on a consistent basis.
"GNMA" means the Government National Mortgage Association and any
successor thereto.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over Seller,
Guarantor or Buyer, as applicable.
"Gross Margin" means, with respect to each adjustable rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note.
"Ground Lease" means the original executed instrument evidencing a
leasehold estate with respect to a Mortgaged Property.
"Guarantee" means, as to any Person, any obligation of such Person
directly or indirectly guaranteeing any Indebtedness of any other Person or in
any manner providing for the payment of any Indebtedness of any other Person or
otherwise protecting the holder of such Indebtedness against loss (whether by
virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, or to take-or-pay or otherwise); provided
that the term "Guarantee" shall not include (i) endorsements for collection or
deposit in the ordinary course of business, or (ii) obligations to make
servicing advances for delinquent taxes and insurance or other obligations in
respect of a Mortgaged Property, to the extent required by Buyer. The amount of
any Guarantee of a Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by such Person in good faith. The
terms "Guarantee" and "Guaranteed" used as verbs shall have correlative
meanings.
"Guarantor" means SI Bank & Trust, in its capacity as guarantor under
the Guaranty.
"Guaranty" means the guaranty of SI Bank & Trust dated as of the date
hereof, pursuant to which SI Bank & Trust fully and unconditionally guarantees
the obligations of Seller hereunder.
"High Cost Mortgage Loans" means any Mortgage Loans classified as (a)
"high cost" loans under the Home Ownership and Equity Protection Act of 1994, as
amended or (b) "high cost," "threshold," or "predatory" loans under any other
applicable state, federal or local law.
"Holdings" means Staten Island Bancorp, Inc.
7
"Income" means with respect to any Purchased Mortgage Loan at any time
until repurchased by the Seller, any principal received thereon or in respect
thereof and all interest, dividends or other distributions thereon.
"Indebtedness" means, for any Person: (a) obligations created, issued
or incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business, so long as such trade accounts payable are payable
within 90 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective Indebtedness so secured
has been assumed by such Person; (d) obligations (contingent or otherwise) of
such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person; (e) Capital Lease Obligations of such Person; (f) obligations of such
Person under repurchase agreements, sale/buy-back agreements or like
arrangements; (g) Indebtedness of others Guaranteed by such Person; (h) all
obligations of such Person incurred in connection with the acquisition or
carrying of fixed assets by such Person; and (i) Indebtedness of general
partnerships of which such Person is a general partner.
"Index" means, with respect to any adjustable rate Mortgage Loan, the
index identified on the Mortgage Loan Schedule and set forth in the related
Mortgage Note for the purpose of calculating the applicable Mortgage Interest
Rate.
"Insured Depository Institution" has the meaning assigned to such term
by Section 1813(c)(2) of Title 12 of the United States Code, as amended from
time to time.
"Interest Rate Adjustment Date" means the date on which an adjustment
to the Mortgage Interest Rate with respect to each Mortgage Loan becomes
effective.
"Interest Rate Protection Agreement" means, with respect to any or all
of the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
Take-out Commitment, or similar arrangement providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies, entered into by Seller and an
Affiliate of Buyer or such other party acceptable to Buyer in its sole
discretion, which agreement is acceptable to Buyer in its sole discretion.
"Jumbo Mortgage Loans" means an A quality Mortgage Loan, as determined
pursuant to the Underwriting Guidelines, which is not eligible for sale to an
Agency.
"LIBOR" means for each day, the rate of interest (calculated on a per
annum basis) equal to the rate appearing at page 5 of the Telerate Screen as
one-month LIBOR (or such other display as may replace page 5 of the Telerate
Screen) on such date of determination, and if such rate shall not be so quoted,
8
the rate per annum at which Buyer is offered Dollar deposits at or about 11:00
a.m., (New York City time), on such day, by prime banks in the interbank
eurodollar market where the eurodollar and foreign currency exchange operations
in respect of its loans are then being conducted for delivery on such day for a
one-month period, and in an amount comparable to the amount of the Purchase
Price of Transactions to be outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
"Manufactured Home Mortgage Loan" has the meaning set forth in Schedule
1(h).
"Margin Base" means, as of any date of determination, the aggregate
Asset Value of all Purchased Mortgage Loans on such date.
"Margin Call" has the meaning specified in Section 6(a) hereof.
"Margin Deadline" has the meaning specified in Section 6(b) hereof.
"Margin Deficit" has the meaning specified in Section 6(a) hereof.
"Market Value" means, with respect to any Purchased Mortgage Loan as of
any date of determination, the whole-loan servicing released fair market value
of such Purchased Mortgage Loan on such date as determined by Buyer (or an
Affiliate thereof) in its sole discretion. Without limiting the generality of
the foregoing, Seller acknowledges that in the event that a Purchased Mortgage
Loan is not subject to a Take-out Commitment, Buyer may deem the Market Value
for such Mortgage Loan to be no greater than par.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of Seller and Guarantor, taken as a whole,
or Holdings; (b) a material impairment of the ability of Seller or Guarantor to
perform under any Program Agreement and to avoid any Event of Default; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability of any Program Agreement against Seller or Guarantor.
"Maximum Aggregate Purchase Price" means ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000).
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS System" means the system of recording transfers of mortgages
electronically maintained by MERS.
"Monthly Payment" means the scheduled monthly payment of principal and
interest on a Mortgage Loan.
9
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successors
thereto.
"Mortgage" means each mortgage, assignment of rents, security agreement
and fixture filing, or deed of trust, assignment of rents, security agreement
and fixture filing, deed to secure debt, assignment of rents, security agreement
and fixture filing, or similar instrument creating and evidencing a lien on real
property and other property and rights incidental thereto.
"Mortgage File" means, with respect to a Mortgage Loan,
the documents and instruments relating to such Mortgage Loan and set forth
in Exhibit F to the Custodial Agreement.
"Mortgage Interest Rate" means the rate of interest borne on a Mortgage
Loan from time to time in accordance with the terms of the related Mortgage
Note.
"Mortgage Interest Rate Cap" means, with respect to an adjustable rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
"Mortgage Loan" means any Exception Mortgage Loan, Alt A Mortgage Loan,
Second Lien Mortgage Loan, Jumbo Mortgage Loan or Conforming Mortgage Loan which
is a closed-end, fixed or floating-rate, first or second lien,
one-to-four-family residential mortgage or home equity loan evidenced by a
promissory note and secured by a mortgage, which satisfies the requirements set
forth in the Underwriting Guidelines and Section 13(b) hereof; provided,
however, that, except as expressly approved in writing by Buyer, Mortgage Loans
shall not include any "high-LTV" loans (i.e., a mortgage loan having a
loan-to-value ratio in excess of 100% or in excess of such lower percentage set
forth in the Underwriting Guidelines or with respect to Second Lien Mortgage
Loans, a combined loan-to value ratio, in excess of the lower of (i) the
percentage specified in the Underwriting Guidelines or (ii) 100%), any High Cost
Mortgage Loans or any Series 300 Mortgage Loans and; provided, further, that the
origination date with respect to such Mortgage Loan is no earlier than thirty
(30) days prior to the related Purchase Date.
"Mortgage Loan Schedule" means with respect to any Transaction as of
any date, a mortgage loan schedule in the form of either (a) Exhibit C attached
hereto or (b) a computer tape or other electronic medium generated by Seller or
Guarantor, and delivered to Buyer and Custodian, which provides information
(including, without limitation, the information set forth on Exhibit C attached
hereto) relating to the Purchased Mortgage Loans in a format acceptable to
Buyer.
"Mortgage Loan Schedule and Exception Report" has the meaning assigned
to such term in the Custodial Agreement.
"Mortgage Note" means the promissory note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of the
debt evidenced by a Mortgage Note.
10
"Mortgagor" means the obligor or obligors on a Mortgage Note, including
any person who has assumed or guaranteed the obligations of the obligor
thereunder.
"Multiemployer Plan" means a multiemployer plan defined as such in
Section 3(37) of ERISA to which contributions have been or are required to be
made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Losses" means, for any period and any Person, the net loss of such
Person for such period as determined in accordance with GAAP.
"Net Worth" means, with respect to any Person, an amount equal to, on a
consolidated basis, such Person's stockholders' equity (determined in accordance
with GAAP).
"1934 Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Non-Performing Mortgage Loan" means as of any Reporting Date, or any
other date an Asset Tape is delivered pursuant to Section 14(d) hereof, (i) any
Mortgage Loan for which any payment of principal or interest is one payment or
more past due, (ii) any Mortgage Loan with respect to which the related
mortgagor is in bankruptcy or (iii) any Mortgage Loan with respect to which the
related mortgaged property is in foreclosure.
"Notice Date" has the meaning given to it in Section 3(b) hereof.
"Obligations" means (a) all of Seller's indebtedness, obligations to
pay the Repurchase Price on the Repurchase Date, the Price Differential on each
Price Differential Payment Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in connection with, the
Program Agreements, whether now existing or hereafter arising; (b) any and all
sums paid by Buyer or on behalf of Buyer in order to preserve any Purchased
Mortgage Loan or its interest therein; (c) in the event of any proceeding for
the collection or enforcement of any of Seller's indebtedness, obligations or
liabilities referred to in clause (a), the reasonable expenses of retaking,
holding, collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Mortgage Loan, or of any exercise by Buyer of its
rights under the Program Agreements, including, without limitation, attorneys'
fees and disbursements and court costs; and (d) all of Seller's indemnity
obligations to Buyer or Custodian or both pursuant to the Program Agreements.
"PBCG" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, unlimited liability company, joint
stock company, trust, unincorporated association, joint venture or other entity,
or a government or any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
11
"Post Default Rate" means an annual rate of interest equal to the
Pricing Rate plus 3%.
"Price Differential" means with respect to any Transaction as of any
date of determination, an amount equal to the product of (A) the Pricing Rate
for such Transaction and (B) the Purchase Price for such Transaction, calculated
daily on the basis of a 360-day year for the actual number of days during the
period commencing on (and including) the Purchase Date for such Transaction and
ending on (but excluding) the Repurchase Date.
"Price Differential Payment Date" means, with respect to a Purchased
Mortgage Loan, the 5th day of the month following the related Purchase Date and
each succeeding 5th day of the month thereafter; provided, that, with respect to
such Purchased Mortgage Loan, the final Price Differential Payment Date shall be
the related Repurchase Date; and provided, further, that if any such day is not
a Business Day, the Price Differential Payment Date shall be the next succeeding
Business Day.
"Pricing Rate" means LIBOR plus:
(a) 0.625% with respect to Transactions the subject of which are
Conforming Mortgage Loans or Jumbo Mortgage Loans; (b) 0.75% with respect to
Transactions the subject of which are Alt A Mortgage Loans; (c) 0.80% with
respect to Transactions the subject of which are Second Lien Mortgage Loans; or
(d) the rate determined in the sole discretion of Buyer with respect to
Transactions the subject of which are Exception Mortgage Loans.
The Pricing Rate shall change in accordance with LIBOR, as provided in
Section 5(a) hereof.
"Prime Mortgage Loan" means, any Conforming Mortgage Loan or Jumbo
Mortgage Loan.
"Principal" has the meaning given to it in Annex I.
"Program Agreements" means, collectively, the Custodial Agreement, this
Agreement, the Electronic Tracking Agreement, if entered into, the Guaranty and,
with respect to each Exception Mortgage Loan, a Confirmation.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Date" means the date on which Purchased Mortgage Loans are to
be transferred by Seller to Buyer.
12
"Purchase Price" means (1) on the Purchase Date,
(i) the lesser of (A) the outstanding principal amount thereof as set
forth on the related Mortgage Loan Schedule and Exception Report and (B) (1) the
Market Value of such Purchased Mortgage Loan multiplied by (2) the applicable
Purchase Price Percentage, or
(ii) during the existence of a Double Leverage Event, (A) the
applicable Purchase Price Percentage multiplied by (B) the lesser of (1) the
outstanding principal amount thereof as set forth on the related Mortgage Loan
Schedule and Exception Report or (2) the Market Value of such Purchased Mortgage
Loan; and
(2) thereafter, except where Buyer and Seller agree otherwise, the
amount determined under the immediately preceding clauses (i) and (ii) decreased
by the amount of any cash transferred by Seller to Buyer applied to reduce
Seller's obligations under clause (ii) of Section 4(b) hereof.
"Purchase Price Percentage" means:
(x) with respect to each Mortgage Loan at any time in which a Double
Leverage Event does not exist, the following percentage, as applicable:
(a) 98% with respect to Purchased Mortgage Loans that are Alt A
Mortgage Loans (other than Second Lien Mortgage Loans);
(b) 98% with respect to Transactions the subject of which are
Conforming Mortgage Loans or Jumbo Mortgage Loans (other than Second
Lien Mortgage Loans); and
(c) 95% with respect to Transactions the subject of which are
Second Lien Mortgage Loans; and
(y) with respect to each Mortgage Loan at any time in which a Double
Leverage Event exists, 90%; and
(z) with respect to Transactions the subject of which are Exception
Mortgage Loans, a percentage to be determined by Buyer in its sole discretion.
"Purchased Mortgage Loans" means the collective reference to Mortgage
Loans together with the Repurchase Assets related to such Mortgage Loans
transferred by Seller to Buyer in a Transaction hereunder, listed on the related
Mortgage Loan Schedule attached to the related Transaction Request, which such
Mortgage Loans the Custodian has been instructed to hold pursuant to the
Custodial Agreement.
"Qualified Insurer" means a mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇ Mac.
13
"Qualified Originator" means an originator of Mortgage Loans which is
acceptable under the Underwriting Guidelines.
"Records" means all instruments, agreements and other books, records,
and reports and data generated by other media for the storage of information
maintained by Seller or any other person or entity with respect to a Purchased
Mortgage Loan. Records shall include the mortgage notes, any Mortgages, the
Mortgage Files, the credit files related to the Purchased Mortgage Loan and any
other instruments necessary to document or service a Mortgage Loan.
"Reporting Date" means the 5th day of each month or, if such day is not
a Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in Section 8
hereof.
"Repurchase Date" means the earlier of (i) the Termination Date, (ii)
the date set forth in the applicable Confirmation, (iii) the date determined by
application of Section 16 hereof or (iv) the date identified to Buyer by Seller
as the date that the related Mortgage Loan is to be sold pursuant to a Take-out
Commitment; which date shall be specified as "open" unless otherwise requested
by Seller and agreed to by Buyer; provided, that, in no event shall the
Repurchase Date be in excess of 364 days after the Purchase Date; and provided,
further, that Seller shall give the Buyer at least one Business Day's notice
with respect to any intended repurchase where the Repurchase Date is specified
as "open".
"Repurchase Price" means the price at which Purchased Mortgage Loans
are to be transferred from Buyer to Seller upon termination of a Transaction,
which will be determined in each case (including Transactions terminable upon
demand) as the sum of the Purchase Price and the accrued but unpaid Price
Differential as of the date of such determination.
"Request for Additional Transactions for Excess Margin" has the meaning
specified in Section 6(c)(1) hereof.
"Request for Certification" means a notice sent to the Custodian
reflecting the sale of one or more Purchased Mortgage Loans to Buyer hereunder.
"Requirement of Law" means, with respect to any Person, any law,
treaty, rule or regulation or determination of an arbitrator, a court or other
governmental authority, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means, as to any Person, the chief executive
officer or, with respect to financial matters, the chief financial officer of
such Person.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Second Lien Mortgage Loan" means a second lien Mortgage Loan where the
second lien on the related Mortgaged Property is contemplated and incurred
simultaneously with the first lien on the related Mortgaged Property.
14
"Seller" means SIB Mortgage Corp. or its permitted successors and
assigns.
"Series 300 Mortgage Loan" means any Mortgage Loan originated or
underwritten by an Persons in the Seller's branch office in Brooklyn, New York,
whether in the name of Universal Home, or otherwise.
"Servicer" means Seller, any Affiliate of Seller or any other servicer
approved by Buyer in its sole discretion.
"Servicer Notice" means the notice acknowledged by the Servicer
substantially in the form of Exhibit M hereto.
"Servicing Agreement" means a servicing agreement, if any, among
Servicer, Seller, and Buyer, as the same may be amended from time to time.
"SIPA" means the Securities Investor Protection Act of 1970, as amended
from time to time.
"Subordinated Debt" means, Indebtedness of Seller which is (i)
unsecured, (ii) no part of the principal of such Indebtedness is required to be
paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the date which is one year following the
Termination Date and (iii) the payment of the principal of and interest on such
Indebtedness and other obligations of Seller in respect of such Indebtedness are
subordinated to the prior payment in full of the principal of and interest
(including post-petition obligations) on the Transactions and all other
obligations and liabilities of Seller to Buyer hereunder on terms and conditions
approved in writing by Buyer and all other terms and conditions of which are
satisfactory in form and substance to Buyer.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Take-out Commitment" means a commitment of Seller to sell one or more
Mortgage Loans to a Take-out Investor and the corresponding Take-out Investor's
commitment back to Seller to effectuate any of the foregoing, as applicable.
With respect to any Take-out Commitment with an Agency, the applicable agency
documents list Buyer as sole subscriber.
"Take-out Investor" means (i) an Agency or (ii) other institution which
has made a Take-out Commitment and has been approved by Buyer.
"Termination Date" means the earlier of (a) February 11, 2003, and (b)
the date of the occurrence of an Event of Default.
15
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from Seller to Buyer, in the form
attached as Exhibit A hereto, to enter into a Transaction.
"Trust Receipt and Certification" means, with respect to any
Transaction as of any date, a receipt and certification in the form attached as
an exhibit to the Custodial Agreement.
"Underwriting Guidelines" means the standards, procedures and
guidelines of Seller for underwriting and acquiring Mortgage Loans, which are
set forth in the written policies and procedures of Seller, a copy of which is
attached hereto as Exhibit G and such other guidelines as are identified and
approved in writing by Buyer.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
"Universal Home" means Universal Home Mortgage Company.
"VA" means the U.S. Department of Veterans Affairs, an agency of the
United States of America, or any successor thereto including the Secretary of
Veterans Affairs.
"VA Approved Lender" means a lender which is approved by the VA to act
as a lender in connection with the origination of VA Loans.
"VA Loan" means a Mortgage Loan which is subject of a VA Loan Guaranty
Agreement as evidenced by a VA Loan Guaranty Agreement, or a Mortgage Loan which
is a vender loan sold by the VA.
"VA Loan Guaranty Agreement" means the obligation of the United States
to pay a specific percentage of a Mortgage Loan (subject to a maximum amount)
upon default of the Mortgagor pursuant to the Servicemen's Readjustment Act, as
amended.
"Well Capitalized" means, with respect to any Insured Depository
Institution, the maintenance by such Insured Depository Institution of capital
ratios at or above the required minimum levels for such capital category under
the regulations promulgated pursuant to Section 1831(o) ("Prompt Corrective
Action") of the United States Code, as amended from time to time, by the
Appropriate Federal Banking Agency for such institution, as such regulation may
be amended from time to time.
3. Program; Initiation of Transactions
a. From time to time, in the sole discretion of Buyer, Buyer will
purchase from Seller certain Mortgage Loans that have been either originated by
Seller or purchased by Seller from other originators. This Agreement is not a
commitment by Buyer to enter into Transactions with Seller but rather sets forth
the procedures to be used in connection with periodic requests for Buyer to
enter into Transactions with Seller. Seller hereby acknowledges that Buyer is
16
under no obligation to agree to enter into, or to enter into, any Transaction
pursuant to this Agreement. All Purchased Mortgage Loans shall exceed or meet
the Underwriting Guidelines, and shall be serviced by Servicer. The aggregate
Purchase Price of Purchased Mortgage Loans subject to outstanding Transactions
shall not exceed the Maximum Aggregate Purchase Price. Buyer shall only enter
into Transactions in which the Purchase Price with respect thereto is at least
FIVE MILLION DOLLARS ($5,000,000.00).
b. Seller shall give Buyer and Custodian at least 1 Business Day's
prior notice of any proposed Purchase Date (the date on which such notice is
given, the "Notice Date"); provided, that if Seller is delivering 25 or fewer
Mortgage Loans on a Purchase Date, the notice shall be delivered on or before
10:30 a.m. (New York City time) on the Purchase Date. On the Notice Date, Seller
shall (i) request that Buyer enter into a Transaction by furnishing to Buyer a
Transaction Request, (ii) deliver to Buyer and Custodian a Mortgage Loan
Schedule and (iii) deliver to Custodian a Request for Certification and each
Mortgage File. Following receipt of such request, Buyer may enter into such
requested Transaction or may notify Seller of its intention not to enter into
such Transaction.
c. On each Purchase Date, Buyer shall forward to the Seller a
confirmation (a "Confirmation") by electronic transmission setting forth with
respect to each Transaction funded on such date, (1) the mortgage loan number,
(2) the Purchase Price for such Mortgage Loan, (3) the Market Value of the
related Mortgage Loans as of the date of such Confirmation, (4) the outstanding
principal amount of the related Mortgage Loans, (5) the Repurchase Date, (6) the
Pricing Rate and (7) the type of such Mortgage Loans (i.e., Alt-A Mortgage Loan,
Second Lien Mortgage Loan). Buyer shall forward to the Seller a revised
Confirmation by electronic transmission notifying the Seller as to any changes
made by Buyer in the Purchase Price Percentage or Pricing Rate pursuant to the
terms thereof.
d. In the event Seller disagrees with any terms of the Confirmation,
the Seller shall notify Buyer in writing of such disagreement within one (1)
Business Day after receipt of such Confirmation unless a corrected Confirmation
is sent by Buyer. An objection sent by the Seller must state specifically that
it is an objection, must specify provision(s) in the manner that the Seller
believes they should be stated, and must be received by Buyer no more than one
(1) Business Day after the Confirmation was received by the Seller.
e. Any Confirmation by Buyer shall be deemed to have been received by
the Seller on the date actually received by the Seller.
f. Except as set forth in Section 3(d) hereof, each Confirmation,
together with this Agreement, shall constitute conclusive evidence of the terms
agreed between Buyer and the Seller with respect to the Transaction to which the
Confirmation relates, and the Seller's acceptance of the related proceeds shall
constitute the Seller's agreement to the terms of such Confirmation. It is the
intention of the parties that, with respect to each Exception Mortgage Loan,
each Confirmation shall not be separate from this Agreement but shall be made a
part of this Agreement. In the event of any conflict between this Agreement and
a Confirmation, the terms of the Confirmation shall control with respect to the
related Transaction.
17
g. Upon the satisfaction of the applicable conditions precedent set
forth in Section 10 hereof, all of Seller's interest in the Repurchase Assets
shall pass to Buyer on the Purchase Date, against the transfer of the Purchase
Price to Seller. Upon transfer of the Mortgage Loans to Buyer as set forth in
this Section and until termination of any related Transactions as set forth in
Sections 4 or 16 of this Agreement, ownership of each Mortgage Loan, including
each document in the related Mortgage File and Records, is vested in Buyer;
provided that, prior to the recordation by the Custodian as provided for in the
Custodial Agreement record title in the name of Seller to each Mortgage shall be
retained by Seller in trust, for the benefit of Buyer, for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans.
4. Repurchase
a. Seller shall repurchase the related Purchased Mortgage Loans from
Buyer on each related Repurchase Date. Such obligation to repurchase exists
without regard to any prior or intervening liquidation or foreclosure with
respect to any Purchased Mortgage Loan (but liquidation or foreclosure proceeds
received by Buyer shall be applied to reduce the Repurchase Price for such
Purchased Mortgage Loan on each Price Differential Payment Date except as
otherwise provided herein). Seller is obligated to repurchase and take physical
possession of such Purchased Mortgage Loans from Buyer or its designee
(including the Custodian) at Seller's expense on the related Repurchase Date.
b. Provided that no Default shall have occurred and is continuing, and
Buyer has received the related Repurchase Price upon repurchase of the Purchased
Mortgage Loans, Buyer agrees to release its ownership interest hereunder in the
Purchased Mortgage Loans (including, the Repurchase Assets related thereto) at
the request of Seller. With respect to payments in full by the related Mortgagor
of a Purchased Mortgage Loan, Seller agrees to (i) provide Buyer with a copy of
a report from the related Servicer indicating that such Purchased Mortgage Loan
has been paid in full, (ii) remit to Buyer, within two Business Days, the
Repurchase Price with respect to such Purchased Mortgage Loans and (iii) provide
Buyer a notice specifying each Purchased Mortgage Loan that has been prepaid in
full. Buyer agrees to release its ownership interest in Purchased Mortgage Loans
which have been prepaid in full after receipt of evidence of compliance with
clauses (i) through (iii) of the immediately preceding sentence.
5. Price Differential.
a. On each Business Day that a Transaction is outstanding, the Pricing
Rate shall be reset and, unless otherwise agreed, the accrued and unpaid Price
Differential shall be settled in cash on each related Price Differential Payment
Date. Two Business Days prior to the Price Differential Payment Date, Buyer
shall give Seller written or electronic notice of the amount of the Price
Differential due on such Price Differential Payment Date. On the Price
Differential Payment Date, Seller shall pay to Buyer the Price Differential for
such Price Differential Payment Date (along with any other amounts to be paid
pursuant to Sections 7 and 34 hereof), by wire transfer in immediately available
funds.
18
b. If Seller fails to pay all or part of the Price Differential by 3:00
p.m. (New York City time) on the related Price Differential Payment Date, with
respect to any Purchased Mortgage Loan, Seller shall be obligated to pay to
Buyer (in addition to, and together with, the amount of such Price Differential)
interest on the unpaid Repurchase Price at a rate per annum equal to the Post
Default Rate until the Price Differential is received in full by Buyer.
6. Margin Maintenance
a. If at any time the Margin Base is less than the aggregate Purchase
Price for all outstanding Transactions (such deficiency, a "Margin Deficit"),
then Buyer may by notice to any Seller require Seller to transfer to Buyer cash
in an amount at least equal to the Margin Deficit (such requirement, a "Margin
Call") so that the Margin Base of the Purchased Mortgage Loans will thereupon
equal or exceed the aggregate Purchase Price for all outstanding Transactions.
Any cash transferred by the Seller to Buyer to satisfy a Margin Call shall be
applied to reduce the Repurchase Price.
b. Notice delivered pursuant to Section 6(a) hereof may be given by any
written means. Any notice given before 10:00 a.m. New York time on a Business
Day shall be met, and the related Margin Call satisfied, no later than 5:00 p.m.
New York time on such Business Day; notice given after 10:00 a.m. New York time
on a Business Day shall be met, and the related Margin Call satisfied, no later
than 5:00 p.m. New York time on the following Business Day (the foregoing time
requirements for satisfaction of a Margin Call are referred to as the "Margin
Deadlines"). The failure of Buyer, on any one or more occasions, to exercise its
rights hereunder, shall not change or alter the terms and conditions to which
this Agreement is subject or limit the right of Buyer to do so at a later date.
The Seller and Buyer each agree that a failure or delay by Buyer to exercise its
rights hereunder shall not limit or waive Buyer's rights under this Agreement or
otherwise existing by law or in any way create additional rights for the Seller.
c. On any day on which the Margin Base exceeds the aggregate Purchase
Price of all Transactions, so long as no Default or Event of Default has
occurred and is continuing:
(1) Seller may prepare a Request for Additional Transactions for
Excess Margin in the form of Exhibit O attached hereto ("Request for
Additional Transactions for Excess Margin"), specifying (i) the Margin
Base with respect to such Mortgage Loans sold hereunder before giving
effect to the requested Transaction, (ii) the aggregate outstanding
Purchase Price of the Transactions prior to giving effect to the
requested Transaction, and (iii) a certification that, upon the
consummation of the additional Transactions, the Margin Base will be
equal to or greater than the aggregate outstanding Purchase Price of
all outstanding Transactions, and the excess of the Margin Base over
the aggregate outstanding Purchase Price, after giving effect to the
Transaction, shall be the "Excess Margin".
(2) Seller shall transmit via electronic transmission the Request
for Additional Transactions for Excess Margin to Buyer prior to 12:00
noon, New York City time, on the requested Purchase Date. Upon
confirming that the Request for Additional Transactions for Excess
Margin correctly reflects the information set forth in Section 6(c)(1)
hereof and that, after giving effect to the requested Transaction, the
amount of the Margin Base would be equal to or greater than the
aggregate outstanding Purchase Price of all Transactions, Buyer shall
remit the additional Purchase Price in the amount set forth in such
19
Request for Additional Transactions for Excess Margin and send a
revised Confirmation with respect to such Purchased Mortgage Loans. In
the event that Buyer's assessment of the Margin Base would alter the
information set forth in any Request for Additional Transactions for
Excess Margin, Buyer shall promptly notify Seller in writing of such
assessment.
(3) Buyer shall not be obligated to remit the additional Purchase
Price requested pursuant to a Request for Additional Transactions for
Excess Margin which (i) Buyer reasonably determines is based on
erroneous information or would result in a Transaction other than in
accordance with the terms of this Agreement, or (ii) does not reflect
Buyer's current determination of Market Value as provided in the
definition thereof.
7. Income Payments
a. If Income is paid in respect of any Purchased Mortgage Loan during
the term of a Transaction, such Income shall be the property of Buyer.
Notwithstanding the foregoing, and provided no Event of Default has occurred and
is continuing, (i) Buyer agrees that if a third-party Servicer is in place for
any Purchased Mortgage Loans, such Servicer shall deposit such Income to the
Collection Account and, (ii) if Seller is Servicer, Seller shall deposit all
Income received in its capacity as Servicer of any Purchased Mortgage Loans to
the Collection Account in accordance with Section 12(c) hereof.
b. Provided no Event of Default has occurred and is continuing, on each
Price Differential Payment Date, Seller shall remit to Buyer an amount equal to
the Price Differential out of the interest portion of the Income paid in respect
to the Purchased Mortgage Loans for the preceding month in accordance with
Section 5 of this Agreement. Upon termination of any Transaction, to the extent
that there is any excess Income after repayment of all amounts to be transferred
to Buyer by Seller, Buyer, in its sole option, may apply the excess income to
reduce the Repurchase Price due upon termination of any other outstanding
Transactions.
c. In the event that an Event of Default has occurred and is
continuing, notwithstanding any provision set forth herein, Seller shall remit
to Buyer all Income received with respect to each Purchased Mortgage Loan on the
related Price Differential Payment Date or on such other date or dates as Buyer
notifies Seller in writing.
d. Notwithstanding any provision to the contrary in this Section 7,
within two (2) Business Days of receipt by Seller of any prepayment of principal
in full with respect to a Purchased Mortgage Loan, Seller shall remit such
amount to Buyer and Buyer shall immediately apply any such amount received by
Buyer to reduce the amount of the Repurchase Price due upon termination of the
related Transaction.
20
e. Notwithstanding anything to the contrary set forth herein, upon
notice by Buyer to Seller, Seller shall remit to Buyer all collections received
by Servicer or Seller on the Purchased Mortgage Loans in accordance with Buyer's
directions no later than the day on which aggregate collections of principal and
interest (excluding principal prepayments) on the Purchased Mortgaged Loans
reaches an amount to be indicated by Buyer in its sole discretion. Any such
Income remitted to Buyer shall be applied by Buyer to the applicable Repurchase
Price as follows: first, to any accrued and unpaid Price Differential, and
second, to the remainder of the Repurchase Price.
8. Security Interest
Although the parties intend that all Transactions hereunder be sales
and purchases and not loans, in the event any such Transactions are deemed to be
loans, Seller hereby pledges to Buyer as security for the performance by Seller
of its Obligations and hereby grants, assigns and pledges to Buyer a fully
perfected first priority security interest in the Purchased Mortgage Loans, the
Records, and all related servicing rights, the Program Agreements (to the extent
such Program Agreements and Seller's right thereunder relate to the Purchased
Mortgage Loans), any related Take-out Commitments, Property, all insurance
policies and insurance proceeds relating to any Mortgage Loan or the related
Mortgaged Property, including, but not limited to, any payments or proceeds
under any related primary insurance, hazard insurance and FHA Mortgage Insurance
Contracts and VA Loan Guarantee Agreements (if any), Income, the Collection
Account, Interest Rate Protection Agreements, accounts (including any interest
of Seller in escrow accounts) and any other contract rights, accounts, payments,
rights to payment (including payments of interest or finance charges) general
intangibles and other assets relating to the Purchased Mortgage Loans
(including, without limitation, any other accounts) or any interest in the
Purchased Mortgage Loans, the servicing of the Purchased Mortgage Loans, and any
proceeds (including the related securitization proceeds) and distributions with
respect to any of the foregoing and any other property, rights, title or
interests as are specified on a Transaction Request and/or Trust Receipt and
Certification, in all instances, whether now owned or hereafter acquired, now
existing or hereafter created (collectively, the "Repurchase Assets"). Seller
agrees to execute, deliver and/or file such documents and perform such acts as
may be reasonably necessary to fully perfect Buyer's security interest created
hereby. Furthermore, the Seller hereby authorizes the Buyer to file financing
statements relating to the Repurchase Assets without the signature of the
Seller, as the Buyer, at its option, may deem appropriate. The Seller shall pay
the filing costs for any financing statement or statements prepared pursuant to
this Section.
9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds to
be made by Seller hereunder shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Buyer at the following
account maintained by Buyer: Account for the account of Bank of New York,
Account No. 021-000.018, GLA 11569 SER, Attn: ▇▇▇▇-▇▇▇▇-▇▇▇▇ or such other
account as Buyer shall specify to Seller in writing. Seller acknowledges that it
has no rights of withdrawal from the foregoing account. All Purchased Mortgage
Loans transferred by one party hereto to the other party shall be in the case of
a purchase by Buyer in suitable form for transfer or shall be accompanied by
duly executed instruments of transfer or assignment in blank and such other
documentation as Buyer may reasonably request. All Purchased Mortgage Loans
21
shall be evidenced by a Trust Receipt and Certification. Any Repurchase Price
received by Buyer after 2:00 p.m. (New York City time) shall be deemed received
on the next succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial
Transaction, Buyer shall have received on or before the day of such initial
Transaction the following, in form and substance satisfactory to Buyer and duly
executed by Seller, Guarantor and each other party thereto:
(1) Program Agreements. The Program Agreements (including the
Guaranty, and a Custodial Agreement in a form acceptable to Buyer)
duly executed and delivered by the parties thereto and being in full
force and effect, free of any modification, breach or waiver.
(2) Security Interest. Evidence that all other actions necessary
or, in the opinion of Buyer, desirable to perfect and protect Buyer's
interest in the Purchased Mortgage Loans and other Repurchase Assets
have been taken, including, without limitation, duly executed and
filed Uniform Commercial Code financing statements on Form UCC-1.
(3) Organizational Documents. A certified copy of Seller's and
Guarantor's charter, bylaws and corporate resolutions approving the
Program Agreements and transactions thereunder (either specifically or
by general resolution) and all documents evidencing other necessary
corporate action or governmental approvals as may be required in
connection with the Program Agreements.
(4) Good Standing Certificate. A certified copy of a good
standing certificate of Seller, dated as of no earlier than the date
10 Business Days prior to the Purchase Date with respect to the
initial Transaction hereunder.
(5) Incumbency Certificate. An incumbency certificate of the
corporate secretary of each of Seller and Guarantor, certifying the
names, true signatures and titles of the representatives duly
authorized to request transactions hereunder and to execute the
Program Agreements.
(6) Opinion of Counsel. An opinion of Seller's and Guarantor's
counsel, in form and substance substantially as set forth in Exhibit F
attached hereto.
(7) Underwriting Guidelines. A true and correct copy of the
Underwriting Guidelines that are effective as of the date hereof
certified by an officer of Seller.
(8) Fees. Payment of any fees due to Buyer hereunder, including,
without limitation, reimbursement of all legal fees accrued by Buyer
in connection with this Agreement on or prior to the date of this
Agreement.
22
b. All Transactions. The obligation of Buyer to enter into each
Transaction pursuant to this Agreement is subject to the following conditions
precedent:
(1) Due Diligence Review. Without limiting the generality of
Section 35 hereof, Buyer shall have completed, to its satisfaction,
its due diligence review of the related Mortgage Loans and Seller,
Guarantor and the Servicer.
(2) Required Documents.
With respect to each Purchased Mortgage Loan, the Mortgage File
has been delivered to the Custodian (i) with respect to any purchase
of 25 or fewer Mortgage Loans on a single Purchase Date, on or prior
to 3:00 p.m. (New York City time) on the Purchase Date, and (ii) with
respect to any purchase of 26 or more Mortgage Loans on a single
Purchase Date, at least 24 hours prior to the Purchase Date;
(3) Transaction Documents. Buyer or its designee shall have received on
or before the day of such Transaction (unless otherwise specified in this
Agreement) the following, in form and substance satisfactory to Buyer and (if
applicable) duly executed:
(a) A Transaction Request delivered pursuant to Section 3(c)
hereof.
(b) The Request for Certification and the related Mortgage Loan
Schedule and Exception Report (provided, that Buyer shall have no
obligation to purchase any Mortgage Loan for which any exceptions are
listed on the related Mortgage Loan Schedule and Exception Report),
and the Trust Receipt.
(c) Such certificates, opinions of counsel or other documents as
Buyer may reasonably request.
(4) No Default. No Default or Event of Default shall have
occurred and be continuing;
(5) Requirements of Law. Buyer shall not have determined that the
introduction of or a change in any Requirement of Law or in the interpretation
or administration of any Requirement of Law applicable to Buyer has made it
unlawful, and no Governmental Authority shall have asserted that it is unlawful,
for Buyer to enter into Transactions with a Pricing Rate based on LIBOR.
(6) Representations and Warranties. Both immediately prior to the
related Transaction and also after giving effect thereto and to the intended use
thereof, the representations and warranties made by Seller in each Program
Agreement shall be true, correct and complete on and as of such Purchase Date in
all material respects with the same force and effect as if made on and as of
such date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date).
23
(7) Electronic Tracking Agreement. To the extent Seller is selling
Mortgage Loans which are registered on the MERS(R) System, an Electronic
Tracking Agreement entered into, duly executed and delivered by the parties
thereto and being in full force and effect, free of any modification, breach or
waiver.
(8) Material Adverse Change. None of the following shall have occurred
and/or be continuing:
(a) an event or events shall have occurred in the good faith
determination of Buyer resulting in the effective absence of a "repo
market" or comparable "lending market" for financing debt obligations
secured by mortgage loans or securities or an event or events shall
have occurred resulting in Buyer not being able to finance Purchased
Mortgage Loans through the "repo market" or "lending market" with
traditional counterparties at rates which would have been reasonable
prior to the occurrence of such event or events; or
(b) an event or events shall have occurred resulting in the
effective absence of a "securities market" for securities backed by
mortgage loans or an event or events shall have occurred resulting in
Buyer not being able to sell securities backed by mortgage loans at
prices which would have been reasonable prior to such event or events;
or
(c) there shall have occurred a material adverse change in the
financial condition of Buyer which affects (or can reasonably be
expected to affect) materially and adversely the ability of Buyer to
fund its obligations under this Agreement.
11. Program; Costs
a. Seller shall reimburse Buyer for any of Buyer's reasonable
out-of-pocket costs, including due diligence review costs and reasonable
attorney's fees, incurred by Buyer in determining the acceptability to Buyer of
any Mortgage Loans. Seller shall also pay, or reimburse Buyer if Buyer shall
pay, any termination fee, which may be due any servicer. Seller shall pay the
fees and expenses of Buyer's counsel in connection with the Program Agreements.
Legal fees for any subsequent amendments to this Agreement or related documents
shall be borne by Seller. Seller shall pay ongoing custodial and bank fees and
expenses as set forth on Exhibit L hereto, and any other ongoing fees and
expenses under any other Program Document.
b. If Buyer determines that, due to the introduction of, any change in,
or the compliance by Buyer with (i) any eurocurrency reserve requirement or (ii)
the interpretation of any law, regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be an increase in the cost to Buyer in engaging in the present
or any future Transactions, then Seller agrees to pay to Buyer, from time to
time, upon demand by Buyer (with a copy to Custodian) the actual cost of
additional amounts as specified and documented in reasonable detail in writing
by Buyer to compensate Buyer for such increased costs.
24
c. With respect to any Transaction, Buyer may conclusively rely upon,
and shall incur no liability to Seller in acting upon, any request or other
communication that Buyer reasonably believes to have been given or made by a
person authorized to enter into a Transaction on Seller's behalf, whether or not
such person is listed on the certificate delivered pursuant to Section 10(a)(5)
hereof. In each such case, Seller hereby waives the right to dispute Buyer's
record of the terms of the Confirmation, request or other communication.
d. Notwithstanding the assignment of the Program Agreements with
respect to each Purchased Mortgage Loan to Buyer, Seller agrees and covenants
with Buyer to enforce diligently Seller's rights and remedies set forth in the
Program Agreements. e. Any payments made by Seller or Guarantor to Buyer shall
be free and clear of, and without deduction or withholding for, any taxes;
provided, however, that if such payer shall be required by law to deduct or
withhold any taxes from any sums payable to Buyer, then such payer shall (A)
make such deductions or withholdings and pay such amounts to the relevant
authority in accordance with applicable law, (B) pay to Buyer the sum that would
have been payable had such deduction or withholding not been made, and (C) at
the time Price Differential is paid, pay to Buyer all additional amounts as
specified by Buyer to preserve the after-tax yield Buyer would have received if
such tax had not been imposed.
12. Servicing
a. Seller, on Buyer's behalf, shall contract with Servicer to, or if
Seller is the Servicer, Seller shall, service the Mortgage Loans consistent with
the degree of skill and care that Seller customarily requires with respect to
similar Mortgage Loans owned or managed by it and in accordance with Accepted
Servicing Practices. The Servicer shall (i) comply with all applicable Federal,
State and local laws and regulations, (ii) maintain all state and federal
licenses necessary for it to perform its servicing responsibilities hereunder
and (iii) not impair the rights of Buyer in any Mortgage Loans or any payment
thereunder. Buyer may terminate the servicing of any Mortgage Loan with the
then-existing servicer in accordance with Section 12(e) hereof.
b. Seller shall cause the Servicer to hold or cause to be held all
escrow funds collected by Servicer with respect to any Purchased Mortgage Loans
in trust accounts and shall apply the same for the purposes for which such funds
were collected.
c. Seller shall cause the Servicer to deposit all collections received
by Servicer on the Purchased Mortgage Loans in the Collection Account no later
than the 5th Business Day following receipt; provided, however, that any amounts
required to be remitted to Buyer shall be deposited in the Collection Account on
or prior to the day on which such remittance is to occur.
d. Upon Buyer's request, Seller shall provide promptly to Buyer (i) a
Servicer Notice addressed to and agreed to by the Servicer of the related
Purchased Mortgage Loans, advising such Servicer of such matters as Buyer may
reasonably request, including, without limitation, recognition by the Servicer
of Buyer's interest in such Purchased Mortgage Loans and the Servicer's
25
agreement that upon receipt of notice of an Event of Default from Buyer, it will
follow the instructions of Buyer with respect to the Purchased Mortgage Loans
and any related Income with respect thereto.
e. Upon the occurrence of an Event of Default hereunder or a material
default under the Servicing Agreement, Buyer shall have the right to immediately
terminate the Servicer's right to service the Purchased Mortgage Loans under the
Servicing Agreement without payment of any penalty or termination fee. Seller
and the Servicer shall cooperate in transferring the servicing of the Purchased
Mortgage Loans to a successor servicer appointed by Buyer in its sole
discretion.
f. If Seller should discover that, for any reason whatsoever, Seller or
any entity responsible to Seller for managing or servicing any such Purchased
Mortgage Loan has failed to perform fully Seller's obligations under the Program
Agreements or any of the obligations of such entities with respect to the
Purchased Mortgage Loans, Seller shall promptly notify Buyer.
13. Representations and Warranties
a. Each of Seller and Guarantor represents and warrants to Buyer as of
the date hereof and as of each Purchase Date for any Transaction that:
(1) Seller and Guarantor Existence. Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of New Jersey. Guarantor has been duly organized and is validly existing
as a federally chartered, FDIC insured thrift in good standing under the laws of
the United States.
(2) Licenses. Each of Seller and Guarantor is duly licensed or is
otherwise qualified in each jurisdiction in which it transacts business for the
business which it conducts and is not in default of any applicable federal,
state or local laws, rules and regulations unless, in either instance, the
failure to take such action is not reasonably likely (either individually or in
the aggregate) to cause a Material Adverse Effect and is not in default of such
state's applicable laws, rules and regulations. Each of Seller and Guarantor has
the requisite power and authority and legal right to originate and purchase
Mortgage Loans (as applicable) and to own, sell and ▇▇▇▇▇ ▇ ▇▇▇▇ on all of its
right, title and interest in and to the Mortgage Loans, and to execute and
deliver, engage in the transactions contemplated by, and perform and observe the
terms and conditions of, this Agreement, each Program Agreement and any
Transaction Request or, if applicable, Confirmation. Seller is an FHA Approved
Mortgagee and VA Approved Lender.
(3) Power. Each of Seller and Guarantor has all requisite corporate or
other power, and has all governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now being or
as proposed to be conducted, except where the lack of such licenses,
authorizations, consents and approvals would not be reasonably likely to have a
Material Adverse Effect.
(4) Due Authorization. Each of Seller and Guarantor has all necessary
corporate or other power, authority and legal right to execute, deliver and
perform its obligations under each of the Program Agreements, as applicable.
This Agreement, any Transaction Request,
26
Confirmation and the Program Agreements have been (or, in the case of Program
Agreements and any Transaction Request, Confirmation not yet executed, will be)
duly authorized, executed and delivered by Seller and Guarantor, all requisite
corporate action having been taken, and each is valid, binding and enforceable
against Seller or the Guarantor in accordance with its terms except as such
enforcement may be affected by bankruptcy, by other insolvency laws, or by
general principles of equity.
(5) Financial Statements. Guarantor has heretofore furnished to Buyer a
copy of (a) its consolidated and consolidating balance sheet and the
consolidated balance sheets of its consolidated Subsidiaries for the fiscal year
of the Guarantor ended December 31, 2000 and the related consolidated and
consolidating statements of income and retained earnings and of cash flows for
the Guarantor and its consolidated Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the previous year, with
the opinion thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and (b) its consolidated and
consolidating balance sheet and the consolidated balance sheets of its
consolidated Subsidiaries for the quarterly fiscal periods of the Guarantor
ended March 31, 2001, June 30, 2001 and September 30, 2001 and the related
consolidated and consolidating statements of income and retained earnings and of
cash flows for the Guarantor and its consolidated Subsidiaries for such
quarterly fiscal periods, setting forth in each case in comparative form the
figures for the previous year. All such financial statements are complete and
correct and fairly present, in all material respects, the consolidated financial
condition of the Guarantor and its Subsidiaries and the consolidated and
consolidating results of their operations as at such dates and for such fiscal
periods, all in accordance with GAAP applied on a consistent basis. Since
September 30, 2001, there has been no material adverse change in the
consolidated business, operations, financial condition, properties or prospects
of the Guarantor and its consolidated Subsidiaries taken as a whole from that
set forth in said financial statements nor is the Guarantor aware of any state
of facts which (without notice or the lapse of time) would or could result in
any such material adverse change. The Guarantor has, on the date of the
statements delivered pursuant to this Section (the "Statement Date") no
liabilities, direct or indirect, fixed or contingent, matured or unmatured,
known or unknown, or liabilities for taxes, long-term leases or unusual forward
or long-term commitments not disclosed by, or reserved against in, said balance
sheets and related statements, and at the present time there are no material
unrealized or anticipated losses from any loans, advances or other commitments
of the Guarantor except as heretofore disclosed to Buyer in writing.
(6) Event of Default. There exists no Event of Default under Section
15(b) hereof, which default gives rise to a right to accelerate indebtedness as
referenced in Section 15(b) hereof, under any mortgage, borrowing agreement or
other instrument or agreement pertaining to indebtedness for borrowed money or
to the repurchase of mortgage loans or securities.
(7) Solvency. Each of Seller and Guarantor is solvent and will not be
rendered insolvent by any Transaction and, after giving effect to such
Transaction, will not be left with an unreasonably small amount of capital with
which to engage in its business. Neither Seller nor Guarantor intends to incur,
27
nor believes that it has incurred, debts beyond its ability to pay such debts as
they mature and is not contemplating the commencement of insolvency, bankruptcy,
liquidation or consolidation proceedings or the appointment of a receiver,
liquidator, conservator, trustee or similar official in respect of such entity
or any of its assets. Seller is not transferring any Purchased Mortgage Loans
with any intent to hinder, delay or defraud any of its creditors.
(8) No Conflicts. The execution, delivery and performance by each of
Seller and Guarantor of this Agreement, any Transaction Request or Confirmation
hereunder and the Program Agreements do not conflict with any term or provision
of the certificate of incorporation or by-laws of Seller or Guarantor or any
law, rule, regulation, order, judgment, writ, injunction or decree applicable to
Seller or Guarantor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Seller or Guarantor, which conflict
would have a Material Adverse Effect and will not result in any violation of any
such mortgage, instrument, agreement or repurchase agreement.
(9) True and Complete Disclosure. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, Guarantor, any
Affiliate thereof or any of their officers furnished or to be furnished to Buyer
in connection with the initial or any ongoing due diligence of Seller,
Guarantor, or any Affiliate or officer thereof, negotiation, preparation, or
delivery of the Program Agreements are true and complete and do not omit to
disclose any material facts necessary to make the statements herein or therein,
in light of the circumstances in which they are made, not misleading.
(10) Approvals. No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or court is
required under applicable law in connection with the execution, delivery and
performance by Seller or Guarantor of this Agreement, any Transaction Request,
Confirmation and the Program Agreements.
(11) Litigation. Except as disclosed on Schedule 13(a)(11) hereto,
there is no action, proceeding or investigation pending with respect to which
either Seller or Guarantor has received service of process or, to the best of
Seller's or Guarantor's knowledge threatened against it before any court,
administrative agency or other tribunal (A) asserting the invalidity of this
Agreement, any Transaction, Transaction Request, Confirmation or any Program
Agreement, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, any Transaction Request, Confirmation or any
Program Agreement, (C) makes a claim individually in an amount greater than $10
million or in an aggregate amount greater than $20 million (D) which requires
filing with the Securities and Exchange Commission in accordance with the 1934
Act or any rules thereunder or (E) which might materially and adversely affect
the validity of the Mortgage Loans or the performance by it of its obligations
under, or the validity or enforceability of, this Agreement, any Transaction
Request, Confirmation or any Program Agreement.
(12) Ownership. Upon payment of the Purchase Price and the filing of
the financing statement and delivery of the Mortgage Files to the Custodian and
the Custodian's receipt of the related Request for Certification, Buyer shall
28
become the sole owner of the Purchased Mortgage Loans and related Repurchase
Assets, free and clear of all liens and encumbrances.
(13) Underwriting Guidelines. The Underwriting Guidelines provided to
Buyer are the true and correct Underwriting Guidelines of Seller.
(14) Taxes. Seller, Guarantor and its Subsidiaries have filed all
Federal income tax returns and all other material tax returns that are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by any of them, except for any such taxes as
are being appropriately contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves have been
provided. The charges, accruals and reserves on the books of Seller, Guarantor
and its Subsidiaries in respect of taxes and other governmental charges are, in
the opinion of Seller or Guarantor, as applicable, adequate.
(15) Investment Company. Neither Seller, Guarantor nor any of its
Subsidiaries is an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
(16) Chief Executive Office; Jurisdiction of Organization. During the
four months immediately preceding July 1, 2001 and on the Effective Date,
Seller's chief executive office, is, and has been, located at ▇▇▇▇ ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. On the Effective Date, Seller's jurisdiction of
organization is New Jersey. Seller shall provide Buyer with thirty days advance
notice of any change in Seller's principal office or place of business or
jurisdiction. Except as disclosed on Schedule 13(a)(16), Seller has no trade
name. During the preceding five years, Seller has not been known by or done
business under any other name, corporate or fictitious, and has not filed or had
filed against it any bankruptcy receivership or similar petitions nor has it
made any assignments for the benefit of creditors.
(17) Location of Books and Records. The location where Seller keeps its
books and records, including all computer tapes and records relating to the
Purchased Mortgage Loans and the related Repurchase Assets is its chief
executive office.
(18) Adjusted Tangible Net Worth. On the Effective Date, the
Guarantor's Adjusted Tangible Net Worth is greater than $425 million.
(19) ERISA. Each Plan to which Seller or its Subsidiaries make direct
contributions, and, to the knowledge of Seller, each other Plan and each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law.
(20) Adverse Selection. Seller has not intentionally selected the
Purchased Mortgage Loans in a manner so as to adversely affect Buyer's
interests.
29
(21) Agreements. Neither Seller nor any Subsidiary of Seller is a party
to any agreement, instrument, or indenture or subject to any restriction
materially and adversely affecting its business, operations, assets or financial
condition, except as disclosed in the financial statements described in Section
13(a)(5) hereof. Neither Seller nor any Subsidiary of Seller is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement, instrument, or indenture which default
could have a material adverse effect on the business, operations, properties, or
financial condition of Seller as a whole. No holder of any indebtedness of
Seller or of any of its Subsidiaries has given notice of any asserted default
thereunder. (22) Other Indebtedness. All Indebtedness (other than Indebtedness
evidenced by this Agreement) of Seller existing on the date hereof is listed on
Exhibit K hereto (the "Existing Indebtedness").
(23) Agency Approvals. To the extent necessary, Seller, and Guarantor
is an FHA Approved Mortgagee and a VA Approved Lender. Seller and Guarantor is
also approved by ▇▇▇▇▇▇ Mae as an approved lender and ▇▇▇▇▇▇▇ Mac as an approved
seller/servicer, and, to the extent necessary, approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act. In each such case, Seller and Guarantor are in good standing, with
no event having occurred or Seller or Guarantor having any reason whatsoever to
believe or suspect will occur prior to the consummation of the Take-out
Commitment, as the case may be, including, without limitation, a change in
insurance coverage which would either make Seller unable to comply with the
eligibility requirements for maintaining all such applicable approvals or
require notification to the relevant Agency or to the Department of Housing and
Urban Development, FHA or VA. Should Seller or Guarantor for any reason cease to
possess all such applicable approvals, or should notification to the relevant
Agency or to the Department of Housing and Urban Development, FHA or VA be
required, Seller or Guarantor shall so notify Buyer immediately in writing.
Seller has adequate financial standing, servicing facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans of the
same types as may from time to time constitute Mortgage Loans and in accordance
with Accepted Servicing Practices.
(24) Insured Depository Institution Representations. Guarantor is an
Insured Depository Institution and accordingly, Guarantor makes the following
additional representations and warranties:
(a) The Program Agreements do not violate any statutory or regulatory
requirements applicable to Guarantor;
(b) The Program Agreements have been (i) executed contemporaneously
with the definitive agreement reached by Buyer and Guarantor, (ii)
Guarantor's board of directors has authorized Guarantor's officers to
negotiate and enter into the Agreement, which authorization shall be
reflected in the minutes of said board, and (iii) entered into the official
records of Guarantor, a copy of which approvals, certified by a vice
president or higher officer of Guarantor, has been provided to Buyer;
30
(c) The aggregate amount of the Purchase Price of the Transactions,
after giving effect to any Transactions being made on the date hereof,
between Buyer and Seller does not exceed any restrictions or limitations
imposed by the board of directors of Guarantor;
(d) (1) As of the Effective Date and as of the end of each month,
Guarantor is Well Capitalized; and (2) As of any other date of
determination, to the best of Guarantor's knowledge, Guarantor is Well
Capitalized.
(25) No Broker. Seller has 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 Mortgage
Loans pursuant to this Agreement.
(26) Ability to Perform. Neither Seller nor the Guarantor believes nor
has any reason or cause to believe, that it cannot perform each and every
covenant contained in the Program Agreements applicable to it to which it is a
party.
(27) Upon the filing of financing statements on Form UCC-1 naming Buyer
as "Secured Party", the Seller as "Debtor" and describing the Repurchase Assets,
in the jurisdictions and recording offices listed on Exhibit N attached hereto,
the security interests granted hereunder in the Repurchase Assets will
constitute fully perfected first priority security interests under the Uniform
Commercial Code in all right, title and interest of the Seller in, to and under
such Repurchase Assets, which can be perfected by filing under the Uniform
Commercial Code.
(28) ERISA. Each Plan to which Seller or any of its Subsidiaries make
direct contributions, and, to the knowledge of Seller, each other Plan and each
Multiemployer Plan, is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other Federal or State law. No event or
condition has occurred and is continuing as to which Seller would be under an
obligation to furnish a report to Buyer under Section 16(a)(7)(a) hereof.
b. With respect to every Purchased Mortgage Loan, each of Seller and
Guarantor represents and warrants to Buyer as of the applicable Purchase Date
for any Transaction and each date thereafter that each representation and
warranty set forth on Schedule 1 is true and correct.
c. The representations and warranties set forth in this Agreement shall
survive transfer of the Purchased Mortgage Loans to Buyer and shall continue for
so long as the Purchased Mortgage Loans are subject to this Agreement. Upon
discovery by Seller, Servicer or Buyer of any breach of any of the
representations or warranties set forth in this Agreement, the party discovering
such breach shall promptly give notice of such discovery to the others. Buyer
has the right to require, in its unreviewable discretion, Seller to repurchase
31
within 1 Business Day after receipt of notice from Buyer any Purchased Mortgage
Loan (i) for which a breach of one or more of the representations and warranties
referenced in Section 13(b) exists and which breach has a material adverse
effect on the value of such Mortgage Loan or the interests of Buyer or (ii)
which is determined by Buyer, in its good faith discretion, to be unacceptable
for inclusion in a securitization.
14. Covenants
Each of Seller and Guarantor covenants with Buyer that, during the term
of this facility:
a. Adjusted Tangible Net Worth. For each quarter commencing after
September 30, 2001, Guarantor shall maintain an Adjusted Tangible Net Worth of
greater than $425 million.
b. Litigation. Except with respect to any class action litigation, with
respect to which the Seller shall update the Buyer monthly as to any material
changes in the status or proceedings in connection therewith, the Seller will
promptly, and in any event within ten (10) days after service of process on any
of the following, give to Buyer notice of all litigation, actions, suits,
arbitrations, investigations (including, without limitation, any of the
foregoing which are threatened or pending) or other legal or arbitrable
proceedings affecting Seller or any of its Subsidiaries or affecting any of
their Properties of any of them before any Governmental Authority that (i)
questions or challenges the validity or enforceability of any of the Program
Agreements or any action to be taken in connection with the transactions
contemplated hereby, (ii) makes a claim individually in an amount greater than
$2 million or in an aggregate amount greater than $5 million, or (iii) which,
individually or in the aggregate, if adversely determined, could be reasonably
likely to have a Material Adverse Effect.
c. Prohibition of Fundamental Changes. Seller shall not enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation, winding up or dissolution) or sell
all or substantially all of its assets; provided, that Seller may merge or
consolidate with (a) any wholly owned subsidiary of Seller, or (b) any other
Person if Seller is the surviving corporation; and provided further, that if
after giving effect thereto, no Default would exist hereunder.
d. Servicer; Asset Tape. Upon the occurrence of any of the following
(a) the occurrence and continuation of an Event of Default, (b) the fifth
Business Day of each month, or (c) upon the request of Buyer, Seller shall cause
Servicer to provide to Buyer, electronically, in a format mutually acceptable to
Buyer and Seller, an Asset Tape by no later than the Reporting Date. Seller
shall not cause the Mortgage Loans to be serviced by any servicer other than
Seller or a servicer expressly approved in writing by Buyer, which approval
shall be deemed granted by Buyer with respect to Seller with the execution of
this Agreement; provided, however, that Buyer shall have the right, in the Event
of Default, to cause Seller to transfer servicing to such other servicer
selected by Buyer in its sole discretion.
e. Insurance. Seller, Guarantor or their Affiliates, will continue to
maintain, for Seller and its Subsidiaries, insurance coverage with respect to
employee dishonesty, forgery or alteration, theft, disappearance and
32
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to ▇▇▇▇▇▇ ▇▇▇
and ▇▇▇▇▇▇▇ Mac.
f. No Adverse Claims. Seller warrants and will defend, and shall cause
any Servicer to defend, the right, title and interest of Buyer in and to all
Purchased Mortgage Loans and the related Repurchase Assets against all adverse
claims and demands.
g. Assignment. Except as permitted herein, neither Seller nor any
Servicer shall sell, assign, transfer or otherwise dispose of, or grant any
option with respect to, or pledge, hypothecate or grant a security interest in
or lien on or otherwise encumber (except pursuant to the Program Agreements),
any of the Purchased Mortgage Loans or any interest therein, provided that this
Section shall not prevent any transfer of Purchased Mortgage Loans in accordance
with the Program Agreements. h. Security Interest. Seller shall use its best
efforts to preserve the Purchased Mortgage Loans and the related Repurchase
Assets so that they remain subject to a first priority perfected security
interest hereunder. Without limiting the foregoing, Seller will comply with all
rules, regulations and other laws of any Governmental Authority and cause the
Purchased Mortgage Loans or the related Repurchase Assets to comply with all
applicable rules, regulations and other laws. Seller will not allow any default
for which Seller is responsible to occur under any Purchased Mortgage Loans or
the related Repurchase Assets or any Program Agreement and Seller shall fully
perform or cause to be performed when due all of its obligations under any
Purchased Mortgage Loans or the related Repurchase Assets and any Program
Agreement.
i. Records.
(1) Seller shall collect and maintain or cause to be collected and
maintained all Records relating to the Purchased Mortgage Loans in accordance
with industry custom and practice for assets similar to the Purchased Mortgage
Loans, and all such Records shall be in Custodian's possession unless Buyer
otherwise approves. Seller will use its best efforts to prevent any such papers,
records or files that are an original or an only copy to leave Custodian's
possession, except for individual items removed in connection with servicing a
specific Mortgage Loan, in which event Seller will obtain or cause to be
obtained a receipt from a financially responsible person for any such paper,
record or file. Seller will, and use its best efforts to cause the Servicer of
the Purchased Mortgage Loans to maintain all such Records not in the possession
of Custodian in good and complete condition in accordance with industry
practices for assets similar to the Purchased Mortgage Loans and preserve them
against loss.
(2) For so long as Buyer has an interest in or lien on any Purchased
Mortgage Loan, Seller will hold or cause to be held all related Records in trust
for Buyer. Seller shall notify, or cause to be notified, every other party
holding any such Records of the interests and liens in favor of Buyer granted
hereby.
(3) Upon reasonable advance notice from Custodian or Buyer, Seller
shall (x) make any and all such Records available to Custodian or Buyer to
examine any such Records, either by its own officers or employees, or by agents
or contractors, or both, and make copies of all or any portion thereof, and (y)
33
permit Buyer or its authorized agents to discuss the affairs, finances and
accounts of Seller with its chief operating officer and chief financial officer
and to discuss the affairs, finances and accounts of Seller with its independent
certified public accountants.
j. Books. Seller shall keep or cause to be kept in reasonable detail
books and records of account of its assets and business and shall clearly
reflect therein the transfer of Purchased Mortgage Loans to Buyer.
k. Approvals. Seller shall maintain all licenses, permits or other
approvals necessary for Seller to conduct its business and to perform its
obligations under the Program Agreements, and Seller shall conduct its business
strictly in accordance with applicable law.
l. Material Change in Business. Neither Seller nor Guarantor shall make
any material change in the nature of its business as carried on at the date
hereof.
m. Underwriting Guidelines. Seller shall provide Buyer with 10 Business
Days' prior written notice of any amendment or other modification of the
Underwriting Guidelines. Without limiting the foregoing, in the event that
Seller makes any amendment or modification to the Underwriting Guidelines,
Seller shall promptly deliver to Buyer a complete copy of the amended or
modified Underwriting Guidelines.
n. Distributions. If an Event of Default arising from the failure to
make a payment required hereunder, including, without limitation, the failure to
satisfy a Margin Call hereunder, has occurred and is occurring, Seller shall not
pay any dividends with respect to any capital stock or other equity interests in
such entity, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of Seller.
o. Applicable Law. Seller and Guarantor shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority.
p. Existence. Seller and the Guarantor shall preserve and maintain
their legal existence and all of their material rights, privileges, licenses and
franchises.
q. Chief Executive Office; Jurisdiction of Organization. Seller shall
not move its chief executive office from the address referred to in Section
13(a)(17) hereof or change its jurisdiction of organization from the
jurisdiction referred to in Section 13(a)(17) hereof unless it shall have
provided Buyer 30 days' prior written notice of such change.
r. Taxes. Seller shall pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained.
s. Transactions with Affiliates. Seller will not enter into
any transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
34
such transaction is (a) otherwise not prohibited under the Program Agreements,
(b) in the ordinary course of Seller's business and (c) upon fair and reasonable
terms no less favorable to Seller than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate, or make a payment
that is not otherwise permitted by this Section to any Affiliate.
t. Hedging. Seller shall maintain Interest Rate Protection Agreements
with respect to the Alt A Mortgage Loans, Jumbo Mortgage Loans and Conforming
Mortgage Loans, having terms with respect to protection against fluctuations in
interest rates acceptable to Buyer in its sole discretion.
u. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, Guarantor, any
Affiliate thereof or any of their officers furnished to Buyer hereunder and
during Buyer's diligence of Seller and Guarantor are and will be true and
complete and do not omit to disclose any material facts necessary to make the
statements herein or therein, in light of the circumstances in which they are
made, not misleading. All required financial statements, information and reports
delivered by Seller to Buyer pursuant to this Agreement shall be prepared in
accordance with U.S. GAAP, or, if applicable, to SEC filings, the appropriate
SEC accounting regulations.
v. Agency Approvals; Servicing. Seller shall maintain its status with
▇▇▇▇▇▇ ▇▇▇ as an approved lender and ▇▇▇▇▇▇▇ Mac as an approved seller/servicer,
in each case in good standing. Seller shall service all Purchased Mortgage Loans
which are Committed Mortgage Loans in accordance with the applicable agency
guide. Should Seller, for any reason, cease to possess all such applicable
Agency Approvals, or should notification to the relevant Agency or to the
Department of Housing and Urban Development, FHA or VA be required, such Seller
shall so notify Buyer immediately in writing. Notwithstanding the preceding
sentence, Seller shall take all necessary action to maintain all of their
applicable Agency Approvals at all times during the term of this Agreement and
each outstanding Transaction. Seller has adequate financial standing, servicing
facilities, procedures and experienced personnel necessary for the sound
servicing of mortgage loans of the same types as may from time to time
constitute Mortgage Loans and in accordance with Accepted Servicing Practices.
w. Take-out Payments. With respect to each Committed Mortgage Loan,
Seller shall arrange that all payments under the related Take-out Commitment
shall be paid directly to Buyer at the account set forth in Section 9 hereof, or
to an account approved by Buyer in writing prior to such payment; provided that,
any funds received by Buyer with respect to a Take-out Commitment shall be
applied to the outstanding Repurchase Price of such Purchased Mortgage Loan.
With respect to any Agency Take-out Commitment, if applicable, (1) with respect
to the wire transfer instructions as set forth in ▇▇▇▇▇▇▇ Mac Form 987 (Wire
Transfer Authorization for a Cash Warehouse Delivery) such wire transfer
instructions are identical to Buyer's wire instructions or Buyer has approved
such wire transfer instructions in writing in its sole discretion, or (2) the
Payee Number set forth on ▇▇▇▇▇▇ Mae Form 1068 (Fixed-Rate, Graduated-Payment,
or Growing-Equity Mortgage Loan Schedule) or ▇▇▇▇▇▇ ▇▇▇ Form 1069
(Adjustable-Rate Mortgage Loan Schedule), as applicable, is identical to the
Payee Number that has been identified by Buyer in writing as Buyer's Payee
Number or Buyer has previously approved the related Payee Number in writing in
its sole discretion; with respect to any Take-out Commitment with an Agency, the
35
applicable agency documents list Buyer as sole subscriber, unless otherwise
agreed to in writing by Buyer, in Buyer's sole discretion.
x. No Pledge. Seller shall not pledge, transfer or convey any security
interest in the Collection Account to any Person without the express written
consent of Buyer.
y. Sub-Limits. The Seller shall not sell to Buyer any Mortgage Loans
if, after giving effect to such Transaction, the aggregate principal balance of
all Purchased Mortgage Loans are in excess of any sub-limit specified in the
definition of Market Value.
z. Inconsistent Agreements. The Seller will not, nor will it permit any
of its Subsidiaries to, directly or indirectly, enter into any agreement
containing any provision which would be violated or breached by any Transaction
hereunder or by the performance by such Seller of its obligations under any
Program Agreement.
aa. Escrow Imbalance. The Seller will, no later than five (5) Business
Days after learning (from any source) of any material imbalance in any escrow
account, fully and completely correct and eliminate such imbalance including,
without limitation, depositing its own funds into such account to eliminate any
overdrawal or deficit.
bb. Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of an Event of Default or Default if such action is taken or
condition exists.
15. Events of Default
Each of the following shall constitute an "Event of Default" hereunder:
a. Payment Failure. Failure of Seller to (i) make any payment of Price
Differential or Repurchase Price or any other sum which has become due, on a
Price Differential Payment Date or a Repurchase Date or otherwise, whether by
acceleration or otherwise, under the terms of this Agreement, any other
warehouse and security agreement or any other document evidencing or securing
indebtedness of Seller to Buyer or to any affiliate of Buyer, or (ii) cure any
Margin Deficit when due pursuant to Section 6 hereof.
b. Cross Default. (i) Seller or any of Seller's Affiliates shall be in
default under (i) any Indebtedness of Seller or of such Affiliate which default
(1) involves the failure to pay a matured obligation, or (2) permits the
acceleration of the maturity of obligations by any other party to or beneficiary
with respect to such Indebtedness, or (ii) any other contract to which Seller or
such Affiliate is a party which default (1) involves the failure to pay a
matured obligation, or (2) permits the acceleration of the maturity of
obligations by any other party to or beneficiary of such contract.
c. Assignment. Assignment or attempted assignment by Seller or
Guarantor of this Agreement or any rights hereunder without first obtaining the
specific written consent of Buyer, or the granting by Seller of any security
36
interest, lien or other encumbrances on any Purchased Mortgage Loans to any
person other than Buyer.
d. Enforceability. The Custodial Agreement, the Guaranty or any other
Program Agreement shall for whatever reason be terminated or cease to be in full
force (except following satisfaction of al of Seller's Obligations hereunder)
and effect, or the enforceability thereof shall be contested by either the
Seller or the Guarantor.
e. Insolvency. An Act of Insolvency shall have occurred with respect to
Seller, Guarantor or any Affiliate.
f. Material Adverse Change. Any material adverse change in the
Property, business, financial condition or operations of Seller or Guarantor or
any of its Affiliates shall occur, in each case as determined by Buyer in its
sole good faith discretion, or any other condition shall exist which, in Buyer's
sole good faith discretion, constitutes a material impairment of Seller's
ability to perform its obligations under this Agreement or any other Program
Agreement.
g. Breach of Financial Representation or Covenant or Obligation. A
breach by Seller of any of the representations, warranties or covenants or
obligations set forth in Sections 13(a)(1), 13(a)(7), 13(a)(18), 13(a)(22),
13(a)(27), ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, ▇▇▇, 14q, 14v and 14x of this Agreement.
h. Breach of Non-Financial Representation or Covenant. A breach by
Seller or Guarantor of any other material representation, warranty or covenant
set forth in this Agreement (and not otherwise specified in Section 15(g) above)
is not cured within five (5) Business Days (other than the representations and
warranties set forth in Schedule 1, which shall be considered solely for the
purpose of determining the Market Value and the obligation to repurchase such
Mortgage Loan) unless (i) Seller shall have made any such representations and
warranties with knowledge that they were materially false or misleading at the
time made, (ii) any such representations and warranties have been determined by
Buyer in its sole discretion to be materially false or misleading on a regular
basis, or (iii) Buyer, in its sole discretion, determines that such breach of a
material representation, warranty or covenant materially and adversely affects
(A) the condition (financial or otherwise) of Seller, its Subsidiaries or
Affiliates; or (B) Buyer's determination to enter into this Agreement or
Transactions with Seller, then such breach shall constitute an immediate Event
of Default and Seller shall have no cure right hereunder.
i. Guarantor Breach. A breach by Guarantor of any material
representation, warranty or covenant set forth in the Guaranty or any other
Program Agreement, any "event of default" by Guarantor under the Guaranty, any
repudiation of the Guaranty by the Guarantor, or if the Guaranty is not
enforceable against the Guarantor.
j. Regulatory Action. Guarantor shall become the subject of a cease and
desist order of the Appropriate Federal Banking Agency or enter into a
memorandum of understanding or consent agreement with the Appropriate Federal
37
Banking Agency, any of which, would have, or is purportedly the result of any
condition which would be reasonably likely to have, a Material Adverse Effect.
k. Change of Control. The occurrence of a Change in Control.
l. Failure to Transfer. Seller fails to transfer the Purchased Mortgage
Loans to Buyer on the applicable Purchase Date (provided Buyer has tendered the
related Purchase Price).
m. Judgment. A final judgment or judgments for the payment of money in
excess of $10 million in the aggregate shall be rendered against the Seller or
the Guarantor by one or more courts, administrative tribunals or other bodies
having jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay of
execution thereof shall not be procured, within 30 days from the date of entry
thereof.
n. Government Action. Any Governmental Authority or any person, agency or entity
acting or purporting to act under governmental authority shall have taken any
action to condemn, seize or appropriate, or to assume custody or control of, all
or any substantial part of the Property of Seller, Guarantor or any Affiliate,
or shall have taken any action to displace the management of Seller, Guarantor
or any Affiliate or to curtail its authority in the conduct of the business of
Seller, Guarantor or any Affiliate, or takes any action in the nature of
enforcement to remove, limit or restrict the approval of Seller, Guarantor or
Affiliate as an issuer, buyer or a seller/servicer of Loans or securities backed
thereby, and such action provided for in this subparagraph
(m) shall not have been discontinued or stayed within 30 days.
o. Inability to Perform. An officer of Seller or Guarantor shall admit
its inability to, or its intention not to, perform any of Seller's Obligations
or Guarantor's obligations hereunder.
p. Security Interest. This Agreement shall for any reason cease to
create a valid, first priority security interest in any material portion of the
Purchased Mortgage Loans purported to be covered hereby.
q. Financial Statements. Seller's or Guarantor's audited annual
financial statements or the notes thereto or other opinions or conclusions
stated therein shall be qualified or limited by reference to the status of
Seller or Guarantor as a "going concern" or a reference of similar import.
r. FDIC Proceeding. The occurrence of any proceeding seeking to revoke,
terminate or suspend the insurance by the Federal Deposit Insurance Corporation
of the Guarantor's deposit accounts is instituted by any regulatory official or
authority with jurisdiction.
s. Well Capitalized. Guarantor ceases to be Well Capitalized.
An Event of Default shall be deemed to be continuing unless expressly
waived by Buyer in writing.
38
16. Remedies Upon Default
In the event that an Event of Default shall have occurred:
a. Buyer may, at its option (which option shall be deemed to have been
exercised immediately upon the occurrence of an Act of Insolvency), declare an
Event of Default to have occurred hereunder and, upon the exercise or deemed
exercise of such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to occur (except
that, in the event that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise, such Transaction
shall be deemed immediately canceled). Buyer shall (except upon the occurrence
of an Act of Insolvency) give notice to Seller and Guarantor of the exercise of
such option as promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the option
referred to in subparagraph (a) of this Section, (i) Seller's obligations in
such Transactions to repurchase all Purchased Mortgage Loans, at the Repurchase
Price therefor on the Repurchase Date determined in accordance with subparagraph
(a) of this Section, shall thereupon become immediately due and payable, (ii)
all Income paid after such exercise or deemed exercise shall be retained by
Buyer and applied, in Buyer's sole discretion, to the aggregate unpaid
Repurchase Prices for all outstanding Transactions and any other amounts owing
by Seller hereunder, and (iii) Seller shall immediately deliver to Buyer the
Mortgage Files relating to any Purchased Mortgage Loans subject to such
Transactions then in Seller's possession or control.
c. Buyer also shall have the right to obtain physical possession, and
to commence an action to obtain physical possession, of all Records and files of
Seller relating to the Purchased Mortgage Loans and all documents relating to
the Purchased Mortgage Loans (including, without limitation, any legal, credit
or servicing files with respect to the Purchased Mortgage Loans) which are then
or may thereafter come in to the possession of Seller or any third party acting
for Seller. To obtain physical possession of any Purchased Mortgage Loans held
by Custodian, Buyer shall present to Custodian a Trust Receipt and
Certification. Buyer shall be entitled to specific performance of all agreements
of Seller contained in this Agreement.
d. Buyer shall have the right to direct all servicers then servicing
any Purchased Mortgage Loans to remit all collections thereon to Buyer, and if
any such payments are received by Seller, Seller shall not commingle the amounts
received with other funds of Seller and shall promptly pay them over to Buyer.
Buyer shall also have the right to terminate any one or all of the servicers
then servicing any Purchased Mortgage Loans with or without cause. In addition,
Buyer shall have the right to immediately sell the Purchased Mortgage Loans.
Such disposition of Purchased Mortgage Loans may be, at Buyer's option, on
either a servicing-released or a servicing-retained basis. Buyer shall be
entitled to place the Purchased Mortgage Loans in a pool for issuance of
mortgage-backed securities at the then-prevailing price for such securities and
to sell such securities for such prevailing price in the open market. Buyer
shall also be entitled to sell any or all of such Mortgage Loans individually
for the prevailing price.
39
e. Seller agrees that Buyer may obtain an injunction or an order of
specific performance to compel Seller to fulfill its obligations as set forth in
Section 12, if Seller fails or refuses to perform its obligations as set forth
therein. f. Upon the happening of one or more Events of Default, Buyer shall
apply any proceeds from the liquidation of the Purchased Mortgage Loans to the
Repurchase Prices hereunder and all other Obligations in the manner Buyer deems
appropriate in its sole discretion.
g. Seller shall be liable to Buyer for (i) the amount of all reasonable
legal or other expenses (including, without limitation, all costs and expenses
of Buyer in connection with the enforcement of this Agreement or any other
agreement evidencing a Transaction, whether in action, suit or litigation or
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally, further including, without limitation, the reasonable fees and
expenses of counsel (including the costs of internal counsel of Buyer) incurred
in connection with or as a result of an Event of Default, (ii) damages, in an
amount equal to the non-utilization fee which would have otherwise accrued from
and after such Event of Default for the remaining term of this Agreement
notwithstanding the occurrence of such Event of Default, calculated in
accordance with Annex II hereof, and entering into or terminating hedge
transactions in connection with or as a result of an Event of Default, and (iii)
any other loss, damage, cost or expense directly arising or resulting from the
occurrence of an Event of Default in respect of a Transaction.
h. To the extent permitted by applicable law, Seller shall be liable to
Buyer for interest on any amounts owing by Seller hereunder, from the date
Seller becomes liable for such amounts hereunder until such amounts are (i) paid
in full by Seller or (ii) satisfied in full by the exercise of Buyer's rights
hereunder. Interest on any sum payable by Seller under this Section 16(g) shall
be at a rate equal to the Post-Default Rate.
i. Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable law.
j. Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except to the extent
provided in subsections (a) and (d) of this Section, at any time thereafter
without notice to Seller. All rights and remedies arising under this Agreement
as amended from time to time hereunder are cumulative and not exclusive of any
other rights or remedies which Buyer may have.
k. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives any defenses
Seller might otherwise have to require Buyer to enforce its rights by judicial
process. Seller also waives any defense (other than a defense of payment or
performance) Seller might otherwise have arising from the use of nonjudicial
process, enforcement and sale of all or any portion of the Purchased Mortgage
Loans, or from any other election of remedies. Seller recognizes that
nonjudicial remedies are consistent with the usages of the trade, are responsive
to commercial necessity and are the result of a bargain at arm's length.
40
l. Buyer shall have the right to perform reasonable due diligence with
respect to Seller and the Mortgage Loans, which review shall be at the expense
of Seller.
17. Reports
a. Notices. Seller or Guarantor shall furnish to Buyer (x) promptly,
copies of any material and adverse notices (including, without limitation,
notices of defaults, breaches, potential defaults or potential breaches) and any
material financial information that is not otherwise required to be provided by
Seller hereunder which is given to Seller's lenders, (y) immediately, notice of
the occurrence of any Event of Default hereunder or default or breach by Seller
or Guarantor, or, to the extent known by Seller, Servicer of any obligation
under any Program Agreement or any material contract or agreement of Seller or
Servicer or Guarantor or the occurrence of any event or circumstance that such
party reasonably expects has resulted in, or will, with the passage of time,
result in, a Material Adverse Effect or an Event of Default or such a default or
breach by such party and (z) the following:
(1) as soon as available and in any event within forty-five (45)
calendar days after the end of each calendar quarter, the unaudited
consolidated balance sheets of Guarantor and its consolidated Subsidiaries
as at the end of such period and the related unaudited consolidated
statements of income and retained earnings and of cash flows for the
Guarantor and its consolidated Subsidiaries for such period and the portion
of the fiscal year through the end of such period, accompanied by a
certificate of a Responsible Officer of Guarantor and Seller, which
certificate shall state that said consolidated financial statements fairly
present in all material respects the consolidated financial condition and
results of operations of Guarantor and its consolidated Subsidiaries in
accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end adjustments);
(2) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of Guarantor, the consolidated balance
sheets of Guarantor and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained
earnings and of cash flows for the Guarantor and its consolidated
Subsidiaries for such year, setting forth in each case in comparative form
the figures for the previous year, accompanied by an opinion thereon of
independent certified public accountants of recognized national standing,
which opinion and the scope of audit shall be acceptable to Buyer in its
sole discretion, shall have no "going concern" qualification and shall
state that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of Guarantor and
its consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance with GAAP;
(3) such other prepared statements that Buyer may reasonably request;
(4) if applicable, copies of any 10-Ks, 10-Qs, registration statements
and other "corporate finance" SEC filings (other than 8-Ks) by Seller,
within 5 Business Days of their filing with the SEC; provided, that,
Seller, or any Affiliate will provide Buyer with a copy of the annual 10-K
41
filed with the SEC by Seller or its affiliates, no later than 90 days after
the end of the year;
(5) promptly after filing its regulatory call report (or equivalent
report) with the Appropriate Federal Banking Agency or with any applicable state
bank regulatory agency, a copy of such report including an analysis of the
Guarantor's capital ratios demonstrating that the Guarantor is Well Capitalized;
(6) from time to time such other information regarding the financial
condition, operations, or business of the Guarantor and Seller as Buyer may
reasonably request;
(7) as soon as reasonably possible, and in any event within thirty (30)
days after a Responsible Officer of the Guarantor and Seller has knowledge of
the occurrence of any Event of Termination, stating the particulars of such
Event of Termination in reasonable detail;
(8) as soon as reasonably possible, notice of any of the following
events:
(a) change in the insurance coverage required of Seller, Servicer or
any other Person pursuant to any Program Agreement, with a copy of evidence
of same attached;
(b) any material dispute, litigation, investigation, proceeding or
suspension between Seller or, to the extent known by Seller, Servicer, on
the one hand, and any Governmental Authority or any Person;
(c) any material change in accounting policies or financial reporting
practices of Seller;
(d) with respect to any Purchased Mortgage Loan, immediately upon
receipt of notice or knowledge thereof, that the underlying Secured
Property has been damaged by waste, fire, earthquake or earth movement,
windstorm, flood, tornado or other casualty, or otherwise damaged so as to
affect adversely the value of such Mortgaged Loan;
(e) any material issues raised upon examination of Seller or Seller's
facilities by any Governmental Authority;
(f) promptly upon receipt of notice or knowledge of (i) any default
related to any Repurchase Asset, (ii) any lien or security interest (other
than security interests created hereby or by the other Program Agreements)
on, or claim asserted against, any of the Purchased Mortgage Loans; and
(g) any other event, circumstance or condition that has resulted, or
has a reasonable likelihood of resulting, in a Material Adverse Effect with
respect to Seller.
42
b. Officer's Certificates. Seller will furnish to Buyer, at the time
the Seller furnishes each set of financial statements pursuant to Section
17(a)(1) or (2) above, a certificate of a Responsible Officer of Seller in
the form of Exhibit D hereto.
c. Mortgage Loan Reports. Seller will furnish to Buyer monthly
electronic Mortgage Loan performance data, including, without limitation,
delinquency reports (i.e., delinquency, foreclosure and net charge-off
reports).
d. Asset Tape. Seller shall provide to Buyer, electronically, in a
format mutually acceptable to Buyer and Seller, an Asset Tape by no later
than the Reporting Date.
e. Series 300 Mortgage Loans. Seller shall furnish to Buyer by no
later than the Reporting Date monthly reports as to the status of any
Series 300 Mortgage Loans, including, without limitation, copies of any
volume reports, quality control reports and an update as to any material
change in the litigation with respect to Universal Home.
f. Additional Reports. Seller shall deliver to Buyer copies of the
"financial and statistical data" from its monthly Board of Directors
package of the Seller and any updates to the ▇▇▇▇▇▇▇▇ Group operational
report prepared with respect to the Seller.
g. Other. Seller shall deliver to Buyer any other reports or
information reasonably requested by Buyer or as otherwise required pursuant
to this Agreement.
18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions with
the Purchased Mortgage Loans or otherwise pledge, hypothecate, assign, transfer
or otherwise convey the Purchased Mortgage Loans with a counterparty of Buyer's
choice. Unless an Event of Default shall have occurred, no such transaction
shall relieve Buyer of its obligations to transfer Purchased Mortgage Loans to
Seller pursuant to Section 4 or 6 hereof, or of Buyer's obligation to credit or
pay Income to, or apply Income to the obligations of, Seller pursuant to Section
7 hereof. In the event Buyer engages in a repurchase transaction with any of the
Purchased Mortgage Loans or otherwise pledges or hypothecates any of the
Purchased Mortgage Loans, Buyer shall have the right to assign to Buyer's
counterparty any of the applicable representations or warranties herein and the
remedies for breach thereof, as they relate to the Purchased Mortgage Loans that
are subject to such repurchase transaction.
19. Single Agreement
Buyer and Seller acknowledge that, and have entered hereunto, and will
enter into each Transaction hereunder, in consideration of and in reliance upon
the fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
of all Transactions hereunder, (ii) that each of them shall be entitled to
set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of them
43
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or
Confirmations, which shall be delivered via facsimile only), statements, demands
or other communications hereunder may be given by a party to the other by mail,
facsimile, messenger or otherwise to the address specified below, or so sent to
such party at any other place specified in a notice of change of address
hereafter received by the other. All notices, demands and requests hereunder may
be made orally, to be confirmed promptly in writing, or by other communication
as specified in the preceding sentence.
If to Seller:
SIB Mortgage Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone Number:
Fax Number:
with a copy to:
Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
12th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Guarantor:
SI Bank & Trust
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Phone Number:
Fax Number:
44
If to Buyer:
For Transaction Requests:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
For all other Notices:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇ ▇▇▇▇▇, Esq., General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Phone No.: (▇▇▇ ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇-▇▇▇▇.▇▇▇
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the
parties containing general terms and conditions for repurchase transactions.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
22. Non-assignability
The Program Agreements are not assignable by Seller or Guarantor. Buyer
may from time to time assign all or a portion of its rights and obligations
under this Agreement and the Program Agreements; provided, however that Buyer
shall maintain, for review by Seller upon written request, a register of
assignees and a copy of an executed assignment and acceptance by Buyer and
assignee ("Assignment and Acceptance"), specifying the percentage or portion of
such rights and obligations assigned. Such Assignment and Acceptance shall
specifically provide that (i) the assignee shall become a party to this
Agreement and each of the Program Agreements to the extent of the percentage or
portion set forth in such Assignment and Acceptance, (ii) the assignee shall
45
succeed to the applicable rights and obligations of Buyer hereunder and (iii)
the assignee shall agree to perform all of its obligations under this Agreement
and the Program Agreements as set forth therein. Upon such assignment, (a) such
assignee shall be a party hereto and to each Program Agreement to the extent of
the percentage or portion set forth in the Assignment and Acceptance, and shall
succeed to the applicable rights and obligations of Buyer hereunder, and (b)
Buyer shall, to the extent that such rights and obligations have been so
assigned by it to either (i) an Affiliate of Buyer which assumes the obligations
of Buyer or (ii) to another Person approved by Seller (such approval not to be
unreasonably withheld) which assumes the obligations of Buyer, be released from
its obligations hereunder and under the Program Agreements. Unless otherwise
stated in the Assignment and Acceptance, Seller shall continue to take
directions solely from Buyer unless otherwise notified by Buyer in writing.
Buyer may distribute to any prospective assignee any document or other
information delivered to Buyer by Seller.
23. Set-off
In addition to any rights and remedies of Buyer provided by law, Buyer
shall have the right, without prior notice to Seller, any such notice being
expressly waived by Seller to the extent permitted by applicable law, upon any
amount becoming due and payable by Seller hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by Buyer or any
branch or agency thereof to or for the credit or the account of Seller. Buyer
agrees promptly to notify Seller after any such set-off and application made by
Buyer; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Seller
acknowledges that the obligations of Buyer hereunder or otherwise are not the
subject of any guaranty by, or recourse to, any direct or indirect parent or
other Affiliate of Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
b. SELLER AND GUARANTOR HEREBY WAIVE TRIAL BY JURY. SELLER AND
GUARANTOR HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY COURT
OF THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM
AGREEMENTS IN ANY ACTION OR PROCEEDING. SELLER AND GUARANTOR HEREBY SUBMIT TO,
AND WAIVE ANY OBJECTION THEY MAY HAVE TO, EXCLUSIVE PERSONAL JURISDICTION AND
VENUE IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ AND THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES
46
ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party
shall constitute a waiver of any other Event of Default and no exercise of any
remedy hereunder by any party shall constitute a waiver of its right to exercise
any other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
unless and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the failure to give
a notice pursuant to Section 6(a), 16(a) or otherwise, will not constitute a
waiver of any right to do so at a later date.
26. Intent
a. The parties recognize that each Transaction is a "repurchase
agreement" as that term is defined in Section 101 of Title 11 of the United
States Code, as amended (except insofar as the type of Purchased Mortgage Loans
subject to such Transaction or the term of such Transaction would render such
definition inapplicable), and a "securities contract" as that term is defined in
Section 741 of Title 11 of the United States Code, as amended (except insofar as
the type of assets subject to such Transaction would render such definition
inapplicable).
b. It is understood that either party's right to liquidate Purchased
Mortgage Loans delivered to it in connection with Transactions hereunder or to
exercise any other remedies pursuant to Section 16 hereof is a contractual right
to liquidate such Transaction as described in Sections 555 and 559 of Title 11
of the United States Code, as amended.
c. The parties agree and acknowledge that if a party hereto is an
"insured depository institution," as such term is defined in the Federal Deposit
Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a
"qualified financial contract," as that term is defined in FDIA and any rules,
orders or policy statements thereunder (except insofar as the type of assets
subject to such Transaction would render such definition inapplicable). d. It is
understood that this Agreement constitutes a "netting contract" as defined in
and subject to Title IV of the Federal Deposit Insurance Corporation Improvement
Act of 1991 ("FDICIA") and each payment entitlement and payment obligation under
any Transaction hereunder shall constitute a "covered contractual payment
entitlement" or "covered contractual payment obligation", respectively, as
defined in and subject to FDICIA (except insofar as one or both of the parties
is not a "financial institution" as that term is defined in FDICIA).
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a broker
or dealer registered with the SEC under Section 15 of the 1934 Act, the
Securities Investor Protection Corporation has taken the position that the
47
provisions of the SIPA do not protect the other party with respect to any
Transaction hereunder;
b. in the case of Transactions in which one of the parties is a
government securities broker or a government securities dealer registered with
the SEC under Section 15C of the 1934 Act, SIPA will not provide protection to
the other party with respect to any Transaction hereunder; and
c. in the case of Transactions in which one of the parties is a
financial institution, funds held by the financial institution pursuant to a
Transaction hereunder are not a deposit and therefore are not insured by the
Federal Deposit Insurance Corporation or the National Credit Union Share
Insurance Fund, as applicable.
28. Power of Attorney
Seller hereby authorizes Buyer to file such financing statement or
statements relating to the Purchased Mortgage Loans without Seller's signature
thereon as Buyer, at its option, may deem appropriate. Seller hereby appoints
Buyer as Seller's agent and attorney-in-fact to execute any such financing
statement or statements in Seller's name and to perform all other acts which
Buyer deems appropriate to perfect and continue its ownership interest in and/or
the security interest granted hereby, if applicable, and to protect, preserve
and realize upon the Purchased Mortgage Loans, including, but not limited to,
the right to endorse notes, complete blanks in documents, transfer servicing,
and sign assignments on behalf of Seller as its agent and attorney-in-fact. This
agency and power of attorney is coupled with an interest and is irrevocable
without Buyer's consent. Notwithstanding the foregoing, the power of attorney
hereby granted may be exercised only during the occurrence and continuance of
any Event of Default hereunder. Seller shall pay the filing costs for any
financing statement or statements prepared pursuant to this Section 28.
29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more affiliates for the
purpose of performing any action hereunder.
30. Indemnification; Obligations
a. Each of Seller and Guarantor agrees to hold Buyer and each of its respective
Affiliates and their officers, directors, employees, agents and advisors (each,
an "Indemnified Party") harmless from and indemnify each Indemnified Party (and
will reimburse each Indemnified Party as the same is incurred) against all
liabilities, losses, damages, judgments, costs and expenses (including, without
limitation, reasonable fees and expenses of counsel) of any kind which may be
imposed on, incurred by, or asserted against any Indemnified Party relating to
or arising out of this Agreement, any Transaction Request, Confirmation, any
Program Agreement or any transaction contemplated hereby or thereby resulting
from anything other than the Indemnified Party's gross negligence or willful
misconduct. Each of Seller and Guarantor also agrees to reimburse each
Indemnified Party for all reasonable expenses in connection with the enforcement
of this Agreement and the exercise of any right or remedy provided for herein,
48
any Transaction Request, Confirmation and any Program Agreement, including,
without limitation, the reasonable fees and disbursements of counsel. Seller's
and Guarantor's agreements in this Section 30 shall survive the payment in full
of the Repurchase Price and the expiration or termination of this Agreement.
Each of Seller and Guarantor hereby acknowledges that its obligations hereunder
are recourse obligations of Seller and the Guarantor and are not limited to
recoveries each Indemnified Party may have with respect to the Purchased
Mortgage Loans. Each of Seller and the Guarantor also agrees not to assert any
claim against Buyer or any of its Affiliates, or any of their respective
officers, directors, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the facility established hereunder, the actual or
proposed use of the proceeds of the Transactions, this Agreement or any of the
transactions contemplated thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO
ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES. b. Without
limitation to the provisions of Section 4, if any payment of the Repurchase
Price of any Transaction is made by Seller other than on the then scheduled
Repurchase Date thereto as a result of an acceleration of the Repurchase Date
pursuant to Section 16 or for any other reason, Seller shall, upon demand by
Buyer, pay to Buyer an amount sufficient to compensate Buyer for any losses,
costs or expenses that it may reasonably incur as of a result of such payment.
c. Without limiting the provisions of Section 30(a) hereof, if Seller fails to
pay when due any costs, expenses or other amounts payable by it under this
Agreement, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of Seller by Buyer, in its sole
discretion.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
32. Confidentiality
This Agreement and its terms, provisions, supplements and amendments,
and notices hereunder, are proprietary to Buyer and Agent and shall be held by
Seller and Guarantor in strict confidence and shall not be disclosed to any
third party without the written consent of Buyer except for (i) disclosure to
Seller's or Guarantor's direct and indirect affiliates and Subsidiaries,
attorneys or accountants, but only to the extent such disclosure is necessary
and such parties agree to hold all information in strict confidence, or (ii)
disclosure required by law, rule, regulation or order of a court or other
regulatory body.
33. Recording of Communications
Buyer and Seller and Guarantor shall have the right (but not the
obligation) from time to time to make or cause to be made tape recordings of
communications between its employees and those of the other party with respect
to Transactions. Buyer and Seller and Guarantor consent to the admissibility of
such tape recordings in any court, arbitration, or other proceedings. The
49
parties agree that a duly authenticated transcript of such a tape recording
shall be deemed to be a writing conclusively evidencing the parties' agreement.
34. Non-Utilization Fee
No later than the 5th day following the end of each calendar month, the
Seller shall pay in immediately available funds to Buyer a non-refundable
monthly fee for the preceding month, calculated in accordance with the formula
set forth in the schedule attached hereto as Annex I. Such payment shall be made
in Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to Buyer at such account designated by Buyer.
35. Periodic Due Diligence Review
Seller acknowledges that Buyer has the right to perform continuing due
diligence reviews with respect to the Mortgage Loans, including, without
limitation a review of any title insurance policy related to the Mortgage Loans,
for purposes of verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and Seller agrees that upon
reasonable (but no less than one (1) Business Day's) prior notice unless an
Event of Default shall have occurred, in which case no notice is required, to
Seller, Buyer or its authorized representatives will be permitted during normal
business hours to examine, inspect, and make copies and extracts of, the
Mortgage Files and any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession or under the
control of Seller and/or the Custodian. Seller also shall make available to
Buyer a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Mortgage Files and the Mortgage Loans.
Without limiting the generality of the foregoing, Seller acknowledges that Buyer
may purchase Mortgage Loans from Seller based solely upon the information
provided by Seller to Buyer in the Mortgage Loan Schedule and the
representations, warranties and covenants contained herein, and that Buyer, at
its option, has the right at any time to conduct a partial or complete due
diligence review on some or all of the Mortgage Loans purchased in a
Transaction, including, without limitation, ordering Broker's price opinions,
new credit reports and new appraisals on the related Mortgaged Properties and
otherwise re-generating the information used to originate such Mortgage Loan.
Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon
third party underwriter to perform such underwriting. Seller agrees to cooperate
with Buyer and any third party underwriter in connection with such underwriting,
including, but not limited to, providing Buyer and any third party underwriter
with access to any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession, or under the
control, of Seller. From and after the occurrence of a Default, Seller agrees
that Seller shall pay all out-of-pocket costs and expenses incurred by Buyer in
connection with Buyer's activities pursuant to this Section 35 ("Due Diligence
Costs").
[Signature Page Follows]
50
CDC MORTGAGE CAPITAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------
Title: Managing Director
---------------------------------------------
Date:
---------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Title: Director
----------------------------------------------
Date:
---------------------------------------------
SIB MORTGAGE CORP.
as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Title: President and Chief Executive Officer
---------------------------------------------
Date:
---------------------------------------------
SI BANK & TRUST
as Guarantor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Title: President and Chief Operating Officer
---------------------------------------------
Date:
---------------------------------------------
51