Exhibit 10.2
ANNEX I
ADDITIONAL SUPPLEMENTAL TERMS TO MASTER REPURCHASE AGREEMENT,
DATED AS OF MAY 29, 2001, BETWEEN
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC ("Buyer")
AND
ORIGEN SPECIAL HOLDINGS CORPORATION ("Seller")
1. APPLICABILITY. These are Additional Supplemental Terms (the "Additional
Supplemental Terms") to the Master Repurchase Agreement dated as of May
29, 2001 between Seller and Buyer (the "Repurchase Agreement"). The
provisions of these Additional Supplemental Terms shall supersede the
terms in the Repurchase Agreement to the extent they are in conflict.
This Agreement shall be read, taken, and construed as one and the same
instrument. Capitalized terms used in these Additional Supplemental
Terms and not otherwise defined herein shall have the meanings set
forth in the Repurchase Agreement.
2. Paragraph 1 of the Repurchase Agreement is amended by adding the
following after the word "assets" and before the parenthetical
"("Securities")" in the second line thereof:
"including, without limitation, whole loans secured by
manufactured housing or any interests in any such whole
loans".
3. Paragraph 1 of the Repurchase Agreement is amended by adding the
following sentence after the first sentence thereof:
"In no event shall Seller or Buyer be required to enter into
more than two (2) Transactions in any given calendar week."
4. ADDITIONAL DEFINITIONS.
(a) Paragraph 2(a) of the Repurchase Agreement is hereby amended
by adding the following after the word "any" and before the
word "bankruptcy" in the second line of the definition of "Act
of Insolvency":
"conservatorship or receivership (within the meaning
of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989),".
(b) Notwithstanding the definition set forth in Paragraph 2(d) of
the Repurchase Agreement, "Buyer's Margin Percentage" shall
mean with respect to any Transaction as of any date, the
percentage set forth in Paragraph 4(g) or, in the absence of
any such percentage, the percentage as determined by Buyer in
its sole discretion.
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(c) Notwithstanding the definition set forth in Paragraph 2(j) of
the Repurchase Agreement, "Market Value" shall mean (i) with
respect to Purchased Securities that are Eligible Securities,
the market price, as of any date of determination, as
determined by Buyer in its sole discretion without credit for
any interest accrued and unpaid thereon but taking into
account the coupon rate thereon, and (ii) with respect to
Purchased Securities that are not Eligible Securities, zero
dollars ($0). Buyer shall ▇▇▇▇ the Purchased Securities to
market on a daily basis, in its sole discretion.
(d) Notwithstanding the definition set forth in Paragraph 2(l) of
the Repurchase Agreement, "Pricing Rate" shall mean the per
annum percentage rate for determination of the Price
Differential as set forth in Section 21 hereof.
(e) Notwithstanding the definition set forth in Paragraph 2(g) of
the Repurchase Agreement, the "Repurchase Date" with respect
to each Transaction shall be the earliest of (i) the 10th day
of each calendar month or, if such day is not a Business Day,
the immediately following Business Day, (ii) the Termination
Date, and (iii) the date determined by application of
Paragraph 11 of the Repurchase Agreement or Section 17 hereof.
(f) "Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common
control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified
Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(g) "Business Day" shall mean any day other than (i) a Saturday or
a Sunday or (ii) another day on which banking institutions in
the State of New York are authorized or obligated by law,
executive order, or governmental decree to be closed.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Collateral" shall mean the Purchased Securities and any
proceeds of the sale or securitization of the Purchased
Securities.
(j) "Collection Account" shall have the meaning assigned under
Section 37 herein.
(k) " Commitment Facility Fee" shall have the meaning set forth in
the Side Letter.
(l) "Computer Tape" shall mean a computer tape generated by the
Seller and delivered to Buyer that provides the information
relating to the MH Loans set forth in Section 5(b) hereto.
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(m) "Contracts" means the manufactured housing installment sales
contracts and installment loan agreements, including any
Land-and-Home Contracts and includes, without limitation, all
related security interests and any and all rights to receive
payments thereunder.
(n) "Contract Rate" means, with respect to any particular
Contract, the rate of interest specified in that Contract.
(o) "Custodian" shall refer to LaSalle Bank National Association,
in its capacity as custodian under the Custodial Agreement or
any successor thereto, or any other mutually acceptable
custodian.
(p) "Custody Agreement" shall refer to one or more Custody
Agreements, by and among Seller, Buyer, Servicer and Custodian
providing for the custody of ownership records relating to MH
Loans.
(q) "Eligible MH Loan" shall have the meaning set forth in the
Side Letter.
(r) "Eligible Security" shall have the meaning set forth in the
Side Letter.
(s) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
(t) "Financed Prepaid Finance Charges" means those finance charges
at origination of a MH Loan which were paid by the Obligor
with the proceeds of the MH Loans, which term includes all
financed points and fees including buydown points, origination
points, review fees, and any other form of a fee that is
included in the amount financed.
(u) "GAAP" shall mean generally accepted accounting principles in
the United States of America in effect from time to time.
(v) "Guaranty" shall mean the Guaranty of the Guarantor in favor
of the Buyer, dated as of May 29, 2001.
(w) "Guarantor" shall mean ▇▇▇▇▇▇▇ Financial Services Corporation,
or any successor thereto.
(x) "Land-and-Home Contract" means a Contract that is secured by a
Mortgage on (i) real estate on which the related Manufactured
Home is situated, and which Manufactured Home is considered or
classified as part of the real estate under the laws of the
jurisdiction in which it is located, or (ii) real estate other
than real estate on which the related Manufactured Home is
situated pursuant to a land-in-lieu contract.
(y) "LIBOR" shall have the meaning assigned thereto in Section
21(a) hereof.
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(z) "Loan Documents" shall mean the Note, Mortgage, manufactured
housing installment sales contracts, installment loan
agreements and any other documents and agreements made for the
benefit of the related originator and executed in connection
with an MH Loan.
(aa) "Loan File" shall have the meaning assigned thereto in the
Custody Agreement.
(bb) "Loan Schedule" shall mean the schedule of MH Loans delivered
by Seller to the Buyer and the Custodian pursuant to Section
5(b) hereto.
(cc) "Manufactured Home" means a unit of manufactured housing,
including all accessions thereto, securing the indebtedness of
the Obligor under the related Contract.
(dd) "Maximum Aggregate Purchase Price" shall equal ONE HUNDRED
FIFTY MILLION DOLLARS ($150,000,000).
(ee) "MH Loan" shall mean fixed-rate Contracts originated or
purchased by Origen. Each MH Loan includes, without
limitation, all Servicing Rights and Records relating to such
MH Loan and all related security interests, the Related
Assets, and any and all rights to receive payments thereunder
and all other proceeds thereof (including, without limitation,
any recourse rights against third persons) from and after the
related Purchase Date.
(ff) "Mortgage" shall mean the mortgage or deed of trust that
secures the Note and creates a lien on the fee simple or
leasehold interest of the related Obligor in the related
Mortgaged Property or Mortgaged Properties and on the related
Personalty or Personalties.
(gg) "Mortgaged Property" shall mean the real property or
properties, including any and all buildings, improvements and
leasehold improvements thereon, all rents, issues, profits and
income derived from the operation of the real property or
properties and any other Collateral subject to the lien of the
related Mortgage.
(hh) "Multiemployer Plan" shall mean a multiemployer plan (within
the meaning of Section 4001(a)(3) of ERISA) in respect of
which Seller makes contributions or has liability.
(ii) "Net Worth" means as of any date of determination thereof, the
net worth of the Guarantor and their subsidiaries on a
consolidated basis as determined in accordance with GAAP.
(jj) "Note" shall mean the original executed promissory note
evidencing the indebtedness of an Obligor under an MH Loan,
together with any rider, addendum or amendment thereto, or any
renewal, substitution or replacement of such note.
(kk) "Obligation" shall mean (a) all of Seller's and Guarantor's
indebtedness, obligation to pay the Repurchase Price on the
Repurchase Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in
connection with, the Transaction Documents, whether now
existing or hereafter arising; (b) any and all sums paid by
Buyer
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or on behalf of Buyer in order to preserve or protect any
Purchased Security or its interest therein; (c) in the event
of any proceeding for the collection or enforcement of any of
Seller's and Guarantor'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
Security, or of any exercise by Buyer of its rights under the
related agreements, including without limitation, attorneys"
fees and disbursements and court costs; and (d) all of
Seller's and Guarantor's indemnity obligations to Buyer or
Custodian or both pursuant to the Transaction Documents.
(ll) "Obligor" shall mean the Obligor or Obligors on a Note or
Contract, including, without limitation, any Person that has
acquired the related Collateral and assumed the obligations of
the original obligor under the Note or Contract.
(mm) "Origen" shall mean Origen Financial, Inc., or any successor
thereto.
(nn) "Originator" shall mean the initial payee on a Note.
(oo) "PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any
successor thereto.
(pp) "Person" shall mean any individual, corporation, partnership,
joint venture, association, joint-stock company, trust,
limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
(qq) "Personalty" shall mean the personal property or properties
and profits, rents, issues and income derived from the
operation of the personal property or properties subject to
the lien of the related Mortgage.
(rr) "Plan" shall mean any pension plan (other than a Multiemployer
Plan) covered by Title IV of ERISA, which is maintained by
Seller or in respect of which Seller has liability.
(ss) "Predatory Lending Practices" shall mean any and all
underwriting and lending policies, procedures and practices
defined or enumerated in any local or municipal ordinance or
regulation or any state or federal regulation or statute
prohibiting, limiting or otherwise relating to the protection
of consumers from such policies, procedures and practices.
Such policies, practices and procedures may include, without
limitation, charging excessive loan, broker, and closing fees,
charging excessive rates of loan interest, making loans
without regard to a consumer's ability to re-pay the loan,
refinancing loans with no material benefit to the consumer,
charging fees for services not actually performed,
discriminating against consumers on the basis of race, gender,
or age, failing to make proper disclosures to the consumer of
the consumer's rights under federal and state law, and any
other predatory lending policy, practice or procedure as
defined by ordinance, regulation or statute.
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(tt) "Prepayment Charge" shall mean a payment required to be made
by an Obligor under any MH Loan in connection with a payment
of principal paid prior to the scheduled payment date of such
principal.
(uu) "Pricing Margin" shall have the meaning set forth in the Side
Letter.
(vv) "Prime Rate" shall mean, with respect to any date of
determination, the daily prime loan rate as reported in The
Wall Street Journal as most recently available as of the date
of determination or, if more than one rate is published, the
highest of such rates, or if such rate is not published for
any reason, a daily prime loan rate from a comparable
financial publication.
(ww) "Purchase Price Percentage" shall have the meaning set forth
in the Side Letter.
(xx) "Records" shall mean, with respect to any MH Loan, all
documents, books, records and other information (including,
without limitation, computer programs, tapes, discs, punch
cards and related property and rights) relating to such MH
Loan. Records shall include the Notes, any Mortgages, any
instruments necessary to document or service a MH Loan, and
those documents normally delivered in conjunction with a
securitization and necessary for Buyer to perfect its security
interest in the Purchased Securities and Additional Purchased
Securities.
(yy) "Related Assets" shall mean, in respect of a MH Loan, (i)
Seller's security interest in the Collateral, (ii) Seller's
rights, remedies, powers and privileges under the MH Loans,
including any personal guaranty thereof, (iii) Seller's
rights, remedies, powers and privileges under the Transaction
Documents, (iv) Seller's rights, remedies, powers and
privileges under any insurance policies, and (v) all proceeds
of the foregoing.
(zz) "REMIC Provisions" means the provisions of the federal income
tax law relating to real estate mortgage investment conduits,
which appear at sections 860A through 860G of Subchapter M of
Chapter 1 of the Code, and related provisions, and regulations
promulgated thereunder, as the foregoing may be in effect from
time to time, as well as provisions of applicable state laws.
(aaa) "Reportable Event" shall mean any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder.
(bbb) "Servicer" shall mean Origen, or such other servicer agreeable
to Buyer.
(ccc) "Servicing Rights" shall mean the contractual, possessory or
other rights of Seller or any other Person arising under a
servicing agreement, Custody Agreement, or otherwise, to
administer or service an MH Loan or to possess related
Records.
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(ddd) "Side Letter" shall mean the pricing side letter, dated as of
May 29, 2001, among Seller, Guarantor and Buyer.
(eee) "Subordinated Debt" shall mean debt incurred by the Guarantor
pursuant to that certain Subordinate Loan Agreement, dated
September 30, 1997, between Guarantor and Sun Communities,
Inc.
(fff) "Take-out Agreement" shall mean that certain agreement between
Buyer and the Take-out Purchaser whereby the Take-out
Purchaser agrees to purchase the Purchased Securities from
Buyer, pursuant to the terms set forth therein, upon the
occurrence of an Event of Default.
(ggg) "Take-out Purchaser" shall have the meaning set forth in the
Side Letter.
(hhh) "Take-out Purchaser Parent" shall have the meaning set forth
in the Side Letter.
(iii) "Tangible Net Worth" means Net Worth plus Subordinated Debt,
less the sum of the following (without duplication): (a) any
other assets of the Seller, the Guarantor and their
consolidated subsidiaries which would be treated as
intangibles under GAAP including, without limitation, any
write-up of assets, goodwill, research and development costs,
trade-marks, trade names, copyrights, patents and unamortized
debt discount and expenses and (b) loans or other extensions
of credit to officers of the Guarantor or of any of their
consolidated subsidiaries other than mortgage loans made to
such Persons in the ordinary course of business.
(jjj) "Termination Date" shall have the meaning assigned thereto in
Section 19(b) hereof.
(kkk) "Total Liabilities to Tangible Net Worth Ratio" shall mean
with respect to any Person, as of the last day of the most
recent fiscal quarter of such Person, the ratio of (i) total
liabilities under GAAP less Subordinated Debt, as of such day,
to (ii) the Net Worth plus Subordinated Debt of such Person as
of such day.
(lll) "Transaction" shall, in addition to the definition set forth
in Paragraph 1 of the Repurchase Agreement, refer to
substitutions pursuant to Paragraph 9 of the Repurchase
Agreement.
(mmm) "Transaction Documents" shall mean this Agreement, the Custody
Agreement, the Guaranty, the Side Letter, the Take-out
Agreement and any related agreements.
(nnn) "Transaction Notice" shall have the meaning assigned under
Section 5(b) herein.
(ooo) "Underwriting Guidelines" shall mean the underwriting
guidelines of Origen, a copy of which is attached hereto as
Exhibit C.
(ppp) "Upfront Facility Fee" shall have the meaning set forth in the
Side Letter.
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(qqq) "WAC Sublimit Amount" shall have the meaning set forth in the
Side Letter.
(rrr) "WFICO Sublimit Amount" shall have the meaning set forth in
the Side Letter.
(sss) "WFPFC Sublimit Amount" shall have the meaning set forth in
the Side Letter.
(ttt) "WLTV Sublimit Amount" shall have the meaning set forth in the
Side Letter.
5. CONFIRMATIONS.
(a) An agreement to enter into a Transaction may not be entered into
orally unless otherwise agreed to between Seller and Buyer.
(b) Paragraph 3(b) of the Repurchase Agreement is hereby deleted in its
entirety and replaced with the following:
(b) Unless otherwise agreed, two (2) Business Days prior to
any proposed Purchase Date, Seller shall deliver (1) Loan File
to the Custodian as specified under the Custody Agreement, and
(2) a transaction notice in the form of Exhibit G hereto (the
"Transaction Notice"), Loan Schedule and Computer Tape to
Buyer containing the following information with respect to
each MH Loan:
(i) Loan Number,
(ii) Borrower Name,
(iii) Borrower Address,
(iv) Credit Score (FICO);
(v) Portal Score;
(vi) Coupon;
(vii) Loan-to-Value Ratio;
(viii) Lien Position;
(ix) Principal Balance;
(x) Next Payment Due Date;
(xi) Property Type (single-wide, multi-wide);
(xii) Land-and-Home Contract or other Contract;
(xiii) New or used;
(xiv) Repossession or refinanced;
(xv) If original term extended;
(xvi) Prepaid finance charges;
(xvii) Origination Date;
(xviii) Section 32 Loan Indicator;
(xix) Primary residence, "Buy for" or investment property;
and
(xxx) Any other information as requested by Buyer.
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(c) When Buyer determines that any MH Loans identified in a Transaction
Notice are Eligible Securities and will be purchased pursuant to a Transaction,
Buyer shall confirm the terms of each Transaction by delivering a written
confirmation in the form of Schedule 1 attached hereto (a "Confirmation") to
Seller within three (3) Business Days of receipt of the Transaction Notice.
Buyer agrees to use reasonable efforts to pay the Purchase Price with respect to
any Transaction no later than 4:00 p.m. New York City time on the related
Purchase Date. Seller's acceptance of the Purchase Price paid by Buyer on the
Purchase Date shall be deemed Seller's acknowledgment of and agreement with such
Confirmation, and upon acceptance of such Purchase Price, Seller shall execute
such Confirmation where provided therein and deliver the original executed copy
of such Confirmation to the Buyer within two (2) Business Days of the settlement
of any Transaction. The terms of any Transaction Notice executed by Buyer and
acknowledged by Seller shall be deemed incorporated by reference into the
Confirmation and if the terms of the Transaction Notice conflict with the
Confirmation, the terms of the Confirmation shall prevail.
(d) Each Confirmation and Transaction Notice, together with these
Additional Supplemental Terms and the Repurchase Agreement, shall constitute
conclusive evidence of the terms agreed between Buyer and Seller with respect to
the Transaction to which the Confirmation relates, and Seller's acceptance of
the related proceeds shall constitute Seller's agreement to the terms of such
Confirmation. It is the intention of the parties that each Confirmation and
Transaction Notice shall not be separate from these Additional Supplemental
Terms and the Repurchase Agreement but shall be made a part of these Additional
Supplemental Terms and the Repurchase 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.
6. BUYER MARGIN MAINTENANCE. Paragraph 4(a) of the Repurchase Agreement is
hereby modified to provide that in the event of a Margin Deficit, Buyer by
notice to Seller may require Seller to transfer, in Buyer's sole discretion,
cash or additional Eligible Securities acceptable to Buyer to eliminate the
Margin Deficit. Paragraph 4(a) of the Repurchase Agreement is hereby further
modified to provide that if the notice given by Buyer to Seller under such
Paragraph 4 is given at or prior to 11:00 a.m. New York City time, Seller shall
transfer to Buyer the cash or additional Eligible Securities acceptable to
Buyer, as applicable, prior to 2:00 p.m. New York City time in New York City on
the Business Day following the date of such notice, and if such notice is given
after 11:00 a.m. New York City time, Seller shall transfer to Buyer the cash or
additional Eligible Securities acceptable to Buyer, as applicable, prior to 2:00
p.m. New York City time in New York City on the second Business Day following
the date of such notice. Notice required pursuant to Paragraph 4(a) of the
Repurchase Agreement may be given by any means. 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 these Additional Supplemental Terms and the
Repurchase Agreement are subject or limit the right of Buyer to do so at a later
date.
7. SELLER MARGIN MAINTENANCE. Paragraph 4(b) of the Repurchase Agreement is
hereby deleted in its entirety.
8. Paragraph 4 of the Repurchase Agreement is amended by adding a new
subparagraph (g) as follows:
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"(g) In the case of Transactions involving Securities that are
MH Loans, (i) the provisions of subparagraphs (b), (d) and (e)
of this Paragraph shall not apply, and (ii) the percentage
used in calculating Buyer's Margin Amount for such Transaction
shall equal a fraction (expressed as a percentage) the
numerator of which is 1 and the denominator of which is the
applicable Purchase Price Percentage (expressed as a decimal).
By way of example, if the applicable Purchase Price Percentage
was 90%, the percentage used in calculating Buyer's Margin
Amount for such Transaction would equal the percentage
equivalent of 1/.90 (or 111.111%)"
9. INCOME PAYMENTS. Paragraph 5 of the Repurchase Agreement is hereby
deleted and replaced with following: "Where a particular term of a Transaction
extends over an Income payment date of the Purchased Securities subject to that
Transaction, such Income shall be the property of the Buyer. Notwithstanding
the foregoing, and provided no Default has occurred and is continuing, on each
Repurchase Date following the date such Income is received by Buyer (or a
servicer on its behalf) Buyer shall either (i) transfer (or permit the servicer
to transfer) to Seller such Income with respect to any Purchased Securities
subject to such Transaction or (ii) if a Margin Deficit then exists, apply the
Income payment to reduce the amount, if any, to be transferred to Buyer by
Seller upon termination of such Transaction; provided, however, that any income
received by or on behalf of Seller while the related Transaction is outstanding
shall be deemed held by Seller solely in trust for Buyer pending the repurchase
on the related Repurchase Date. Buyer shall not be obligated to take any action
pursuant to the preceding sentences to the extent that such action would result
in the creation of a Margin Deficit, unless prior thereto or simultaneously
therewith Seller transfers to Buyer cash or Additional Purchased Securities
sufficient to eliminate such Margin Deficit."
10. SECURITY INTEREST.
(a) Paragraph 6 of the Repurchase Agreement is hereby deleted in its
entirety and replaced by the following:
Although the Buyer and Seller intend that all Transactions
hereunder be sales and purchases and not loans, in the event,
for any reason, any Transaction is construed by any court as a
secured loan rather than a purchase and sale, the parties
intend that Seller shall have granted to Buyer a perfected
first priority security interest in all of Seller's right to
and title and interest in (including the right to convey title
thereto)the following property, whether now existing or
hereafter acquired: the Collateral, the Additional Purchased
Securities, Records, any security accounts, including the
Collection Account, and all rights to Income and the rights to
enforce such payments arising from any of the Purchased
Securities and all proceeds thereof.
(b) Seller will execute all filings necessary to give Buyer a first
priority perfected security interest in the Purchased Securities, including but
not limited to a first mortgage, deed of trust or similar security on the
underlying fee simple or leasehold interests in real estate. Seller shall pay
all fees and expenses associated with perfecting and maintaining such security
interest including, without limitation, the cost of filing financing statements
and continuation statements under the Uniform Commercial Code and
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the recording of any assignment of Mortgage or lease in the appropriate
jurisdiction as and when required thereunder. Buyer shall not record any
assignment of Mortgage until there shall have occurred an Event of Default
hereunder.
(c) In the event that Buyer elects to engage in repurchase transactions
with the Purchased Securities or otherwise elects to pledge or hypothecate the
Purchased Securities, Seller shall, at the request of Buyer (i) do and perform
such acts and things necessary to enable the Custodian to do and perform such
further acts and things and to execute and deliver to Buyer and its counterparty
such additional documents, acknowledgments, powers and instruments as are
required by Buyer in connection with such transaction and such counterparty, and
(ii) provide Buyer's counterparty in such repurchase transaction with an opinion
of counsel to the effect that such counterparty has a perfected first priority
security interest in such Purchased Securities. Buyer shall promptly reimburse
Seller for Seller's out-of-pocket expenses incurred in connection with
performance under this Section 10(c).
11. PAYMENT AND TRANSFER. Paragraph 7 of the Repurchase Agreement is hereby
modified by deleting the second sentence in its entirety and adding: "Any
Repurchase Price received by Buyer after 2:00 p.m. New York City time shall be
applied on the next succeeding Business Day."
12. COMMITMENT. On the terms and subject to the conditions set forth in this
Agreement and the Custodial Agreement, Buyer agrees to purchase from the Seller
Eligible Securities and Seller agrees to repurchase such Purchased Securities
from Buyer. Such obligation to repurchase subsists without regard to any prior
or intervening liquidation or foreclosure with respect to each Purchased
Security. Subject to the provisions of Section 22, Seller is obligated to obtain
the Purchased Securities from Buyer or its designee (including the Custodian) at
Seller's expense on (or after) the related Repurchase Date. Notwithstanding
anything herein to the contrary, Buyer's commitment to purchase Eligible
Securities pursuant to this Agreement shall terminate on the Termination Date.
13. SUBSTITUTION.
(a) The first sentence of Paragraph 9(a) of the Repurchase Agreement is
hereby modified by deleting the words "substitute other Securities for any
Purchased Securities" and adding the words "substitute other Securities which
are substantially the same for any Purchased Securities".
(b) Paragraph 9 of the Repurchase Agreement is hereby modified by
adding the following sub-paragraphs:
(c) In the case of any Transaction for which the Repurchase
Date is other than the Business Day immediately following the
Purchase Date and with respect to which Seller does not have
any existing right to substitute substantially the same
Securities for the Purchased Securities, Seller shall have the
right, subject to the proviso to this sentence, upon notice to
Buyer, which notice shall be given at or prior to 10 am (New
York time) on such Business Day, to substitute substantially
the same Securities for any Purchased Securities; provided,
however, that Buyer may elect, by the close of business on the
Business Day notice is received, or by the close of the next
Business Day if notice is given
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after 10 am (New York time) on such day, not to accept such
substitution. In the event such substitution is accepted by
Buyer, such substitution shall be made by Seller's transfer to
Buyer of such other Securities and Buyer's transfer to Seller
of such Purchased Securities, and after substitution, the
substituted Securities shall be deemed to be Purchased
Securities. In the event Buyer elects not to accept such
substitution, Buyer shall offer Seller the right to terminate
the Transaction.
(d) In the event Seller exercises its right to substitute or
terminate under sub-paragraph (c), Seller shall be obligated
to pay to Buyer, by the close of the Business Day of such
substitution or termination, as the case may be, an amount
equal to (A) Buyer's actual cost (including all fees, expenses
and commissions) of (i) entering into replacement
transactions; (ii) entering into or terminating hedge
transactions; and/or (iii) terminating transactions or
substituting securities in like transactions with third
parties in connection with or as a result of such substitution
or termination, and (B) to the extent Buyer determines not to
enter replacement transactions, the loss incurred by Buyer
directly arising or resulting from such substitution or
termination. The foregoing amounts shall be solely determined
and calculated by Buyer in good faith.
14. Paragraph 11 of the Repurchase Agreement is amended by adding a new
Subparagraph (j) as follows:
"(j) Buyer and Seller hereby acknowledges that they consider
all transactions and agreements between them to constitute a
single business and contractual relationship and to have been
made in consideration of each other and this Agreement.
Therefore, (a) each party hereby agrees to fulfill all of its
obligations to the other party with respect to any transaction
or agreement between them, and agrees that a default in the
performance of any such obligations ("Covenants") shall
constitute an Event of Default hereunder, (b) each party shall
have a right of setoff against the other party for amounts
owing hereunder and any other amounts or obligations owing in
respect of any other agreement or transaction whatsoever, and
(c) payments and deliveries made by either party hereunder
shall be considered to have been made in consideration of
payments and deliveries made by the other party with respect
to any other agreement or transaction between them, and the
Covenants to make any such payments and deliveries may be
applied against each other and netted."
12
15. REPRESENTATIONS; COVENANTS.
(a) Seller and Guarantor, and with respect to Exhibit D, Seller, hereby
make, and on and as of the Purchase Date of any Transaction and on and as of
each date thereafter through the related Repurchase Date shall be deemed to have
made, the representations and warranties to Buyer set forth in Exhibit A and
Exhibit D hereto. The representations and warranties set forth herein shall
survive transfer of the Purchased Securities to the Buyer and shall continue
until the Agreement has terminated and Seller has paid all Obligations owed to
Buyer hereunder.
In the event Buyer engages in a repurchase transaction with any of the
Purchased Securities or otherwise pledges or hypothecates any of the Purchased
Securities, Buyer shall have the right to assign to Buyer's counterparty any or
all of the representations and warranties in Exhibit D as they relate to the
Purchased Securities that are subject to such repurchase transaction; provided,
however, that any such repurchase transaction, pledge or hypothecation shall not
diminish or impair the obligation of the Buyer to reconvey the Securities to the
Seller in accordance herewith. In addition, in connection with a sale or
transfer of the Purchased Securities by Buyer following an Event of Default,
Buyer shall have the right to assign to such assignee or purchaser any or all of
the representations and warranties in Exhibit D as they relate to the Purchased
Securities.
(b) In addition to the indemnification provided to Buyer under this
Agreement, Seller and Guarantor agree to, and shall, indemnify Buyer, such
subsequent purchasers and their respective Affiliates, officers, directors,
partners, employees, representatives and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages, judgments,
penalties, suits, actions, costs, disbursements or expenses (including, but not
limited to, attorneys" fees and expenses) asserted against or incurred by any of
them as a result of, or arising out of, or in any way related to any breach by
Seller of such representations or warranties in Exhibit A and Exhibit D.
16. RELIANCE. With respect to any Transaction, Buyer may conclusively
rely upon, and shall incur no liability to Seller in action upon, any request
or other communication from the president, treasurer or chief financial officer
of Seller or any person listed on Exhibit F. In each case, absent manifest
error on the part of the Buyer, Seller hereby waives the right to dispute
Buyer's record of the terms of the Confirmation, request, or other
communication.
17. EVENTS OF DEFAULT.
(a) Subparagraph (vi) of the first paragraph of Paragraph 11 of the
Repurchase Agreement shall be deleted in its entirety.
(b) The term "Event of Default" shall, in addition to the definition
set forth in the Repurchase Agreement, include the following events:
i) Buyer shall have determined that Seller or Guarantor
is or will be unable to meet its commitments under
the Transaction Documents and shall have notified
Seller
13
of such determination and Seller shall not have
responded with appropriate information to the
contrary to the satisfaction of Buyer within one
Business Day.
ii) The Agreement shall for any reason cease to create a
valid, first priority security interest in any of the
Purchased Securities purported to be covered thereby.
iii) A final judgement by any competent court in the
United States of America for the payment of money in
an amount of at least $100,000 is rendered against
Seller or $500,000 is rendered against the Guarantor
and the same remains undischarged for a period of 30
days during which execution of such judgement is not
effectively stayed.
iv) Seller, Guarantor, or Take-out Purchaser shall fail
to observe or perform any of the covenants or
agreements under any Transaction Document (subject to
any applicable cure periods therein), which failure,
in the judgment of Buyer, materially and adversely
affects the rights of the Buyer.
v) Any event of default shall occur and be continuing
and shall not have been waived by the counterparty
under any repurchase or other financing agreement for
borrowed funds in excess of $1,000,000 or indenture
for borrowed funds by which Seller or Guarantor is
bound or affected.
vi) In the judgment of Buyer (1) a material adverse
change shall have occurred in the business, corporate
structure, operations or financial condition of
Seller, Take-out Purchaser or Guarantor, or (2) any
other condition shall exist which, in Buyer's
reasonable discretion, constitutes a material
impairment of Seller's, Guarantor's or Take-out
Purchaser's ability to perform its obligations under
the Transaction Documents to which it is a party.
vii) Buyer shall not have received (a) a monthly
compliance certificate, substantially in the form set
forth in Exhibit E hereto, on or prior to the
fifteenth calendar day of each month with respect to
the prior month's activity, which failure shall not
have been cured within one Business Day, and (b)
written assurances as to the adequate capitalization
of Guarantor within one Business Day of a request by
Buyer therefor.
viii) Subject to any applicable grace periods and unless
otherwise waived by the applicable counterparty,
Seller or Guarantor shall be in default with respect
to any provision under any debt contract or
agreement, any servicing agreement or any lease to
which it is a party, which exceeds $500,000 in the
aggregate (which defaults include, but are not
limited to, an Act of Insolvency of Seller or
Guarantor or the failure of Seller or Guarantor to
make required payments in excess of $500,000 under
such contract or agreement as they become due).
14
ix) Any representation or warranty made by Seller in
Exhibit A hereto or in the Custodial Agreement shall
have been incorrect or untrue when made or repeated
or when deemed to have been made or repeated.
x) A breach by Seller or Guarantor of any of their
covenants or agreements hereunder.
xi) Bankruptcy or insolvency proceedings shall have been
commenced by or against Seller, Guarantor or Take-out
Purchaser.
xii) Seller 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.
xiii) Either (i) a change in control or ownership of
Seller, Guarantor or Take-out Purchaser shall have
occurred other than in connection with and as a
result of (a) the issuance and sale by Seller or
Guarantor of common stock in an initial public
offering or (b) the transfer of ownership interests
in Seller or Guarantor to any party that was an
Affiliate of Seller or Guarantor prior to such
transfer or (c) a merger or consolidation occurs and
Seller, Take-out Purchaser or Guarantor is the
surviving entity upon consummation of the merger or
consolidation; or (ii) both the chief executive
officer and chief financial officer of Seller or
Guarantor cease to be employed by Seller or Guarantor
and functioning in their respective capacities and
successors acceptable to Buyer shall not have been
employed by Seller and commenced functioning in such
capacities.
xiv) Buyer determines that the Take-out Agreement is
unenforceable.
(xv) Either (i) the Guarantor's Tangible Net Worth is less
than $10,000,000; (ii) on or following December 31,
2001, the Total Liabilities to Tangible Net Worth
Ratio of Guarantor exceeds 12:1; or (iii) the ratio
of Guarantor's current assets to current liabilities
(each as determined on a consolidated basis in
accordance with GAAP) is less than 1:1.
(xvi) Either (i) as of the end of the most recent fiscal
quarter of the Take-out Purchaser Parent, its
consolidated financial statements prepared in
accordance with GAAP and reported in its filings with
the Securities and Exchange Commission indicated its
total shareholder's equity is less than $950,000,000;
or (ii) the rating of Take-out Purchaser Parents's
long-term debt falls below BBB/Stable by Standard and
Poor's Ratings Services, A Division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(c) In addition to the rights of the Buyer pursuant to Paragraph 11 of
the Repurchase Agreement, upon the occurrence of an Event of Default by Seller:
15
i) Buyer's commitment to purchase Eligible Securities
under Section 3 hereof shall immediately terminate;
ii) All rights of Seller to receive payments which it
would otherwise be authorized to receive pursuant to
the Transaction Agreements shall cease, and all such
rights shall thereupon become vested in Buyer, which
shall thereupon have the sole right to receive such
payments and apply them to the aggregate unpaid
Repurchase Prices owed by Seller;
iii) All payments which are received by Seller contrary to
the provisions of the preceding clause (ii) above
shall be deposited in the Collection Account;
provided, however, that Seller shall remain liable to
the Buyer for any amounts that remain owing to Buyer
following such deposit.
iv) Buyer shall be entitled to all remedies set forth in
the Agreement and related transaction documents,
including the right to sell all Purchased Securities
on a servicing released basis; provided, however,
that Seller shall remain liable to the Buyer for any
amounts that remain owing to Buyer following such
sale.
v) The Pricing Rate for each day from and after the date
of such Event of Default shall be a per annum rate
equal to the sum of (i) the Prime Rate and (ii) three
percent (3.0%).
(d) Each event specified in Section 17(b) of these Supplemental Terms
may, at the option of Buyer, cause an acceleration of the Repurchase Date for a
Transaction and shall be in addition to any other rights of Buyer to cause such
an acceleration under the Agreement.
(e) The parties recognize that it may not be possible to purchase or
sell all of the Purchased Securities on a particular Business Day, or in a
transaction with the same purchaser, or in the same manner because the market
for such Purchased Securities may not be liquid. In view of the nature of the
Purchased Securities, the parties agree that liquidation of a Transaction or the
underlying Purchased Securities does not require a public purchase or sale and
that a good faith private purchase or sale shall be deemed to have been made in
a commercially reasonable manner. Accordingly, Buyer may elect the time and
manner of liquidating any Purchased Security and nothing contained herein shall
obligate Buyer to liquidate any Purchased Security upon the occurrence of an
Event of Default or to liquidate all Purchased Securities in the same manner or
on the same Business Day or constitute a waiver of any right or remedy of Buyer.
(f) Buyer may direct all Persons servicing the Purchased Securities to
take such action with respect to the Purchased Securities as Buyer determines
appropriate.
(g) Seller shall cause all sums received by it with respect to the
Purchased Securities to be deposited in the Collection Account after receipt
thereof.
16
(h) Buyer shall without regard to the adequacy of the security for the
Obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect, collect,
manage, liquidate, and sell the Purchased Securities and any other Collateral or
any portion thereof, collect the payments due with respect to the Purchased
Securities and any other Collateral or any portion thereof, and do anything that
Buyer is authorized hereunder to do. Seller shall pay all costs and expenses
incurred by Buyer in connection with the appointment and activities of such
receiver.
(i) Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives, to the extent
permitted by law, any right Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Seller also waives, to the extent
permitted by law, any defense Seller might otherwise have to the Obligations,
arising from use of nonjudicial process, enforcement and sale of all or any
portion of the Purchased Securities and any other Collateral or from any other
election of remedies except defenses related to any breach by Buyer of any
express provision of this Agreement and defenses related to payment and
performance by Seller hereunder. 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.
(j) Buyer shall have all the rights and remedies provided herein,
provided by applicable federal, state, foreign, and local laws in equity, and
under any other agreement between Seller and Buyer.
(k) Upon the occurrence of an Event of Default, Buyer shall have,
except as otherwise expressly provided in this Agreement, the right to exercise
any of its rights and/or remedies without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by Seller.
(l) Upon the occurrence of an Event of Default, the Seller hereby
authorizes the Buyer, at the Seller's expense, to file such financing statement
or statements relating to the Purchased Securities and the Collateral without
the Seller's signature thereon as the Buyer at its option may deem appropriate,
and appoints the Buyer as the Seller's attorney-in-fact to execute any such
financing statement or statements in the Seller's name and to perform all other
acts which the Buyer deems appropriate to perfect and continue the lien and
security interest granted hereby and to protect, preserve and realize upon the
Purchased Securities and the Collateral, including, but not limited to, the
right to endorse notes, complete blanks in documents and execute assignments on
behalf of the Seller as its attorney-in-fact. Without limiting the generality of
the foregoing, Buyer shall have the right and power during the occurrence and
continuation of any Event of Default to receive, endorse and collect all checks
made payable to the order of Seller representing any payment on account of the
principal of or interest of any of the Collateral and to give full discharge for
the same. Buyer may take all necessary and appropriate actions to direct the
receipt of payment on the MH Loans from the servicer and master servicer thereof
to the Buyer or its designee and handle any claim relating to the MH Loans. This
power of attorney is coupled with an interest and is irrevocable without the
Buyer's consent.
(m) Buyer may set-off cash, the proceeds of the liquidation of the
Purchased Securities and Additional Purchased Securities, any collateral or its
proceeds, and all other sums or obligations owed by Buyer to Seller against all
of Seller's obligations to Buyer under this Agreement, whether or not such
17
obligations are then due, without prejudice to Buyer's right to recover any
deficiency. Any cash proceeds, or property in excess of any amounts due, or
which Buyer reasonably believes may become due, to it from Seller shall be
returned to Seller after satisfaction of all obligations of Seller to Buyer.
18. NO WAIVERS, ETC. Paragraph 17 of the Repurchase Agreement is hereby modified
by adding the following to the end thereof:
"All rights and remedies of Buyer provided for herein are
cumulative and in addition to any and all other rights and
remedies provided by law, the Transaction Documents, and the
other instruments and agreements contemplated hereby and
thereby, and are not conditional or contingent on any attempt
by Buyer to exercise any of its rights under any other related
document. Buyer may exercise at any time after the occurrence
of an Event of Default one or more remedies, as it so desires,
and may thereafter at any time and from time to time exercise
any other remedy or remedies."
19. TERM OF AGREEMENT; NON-ASSIGNABILITY.
(a) The first sentence of Paragraph 15(a) of the Repurchase Agreement
is hereby deleted and replaced with the following:
The Transaction Documents are not assignable by Seller. Buyer
may from time to time assign or transfer all or a portion of
its rights and obligations under this Agreement and the
Transaction Documents; provided, however that Buyer shall
maintain, for review by Seller upon written request, a
register of assignees and a copy of an executed assignment and
acceptance by Buyer and assignee ("Assignment and
Acceptance"), specifying the percentage or portion of such
rights and obligations assigned. Upon such assignment, (a)
such assignee shall be a party hereto and to each Transaction
Document 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
Transaction Documents. With respect to any assignment pursuant
to clause (b) above, unless otherwise stated in the Assignment
and Acceptance, Seller shall continue to take directions
solely from Buyer unless otherwise notified by Buyer in
writing.
(b) The last sentence of Paragraph 15(a) of the Repurchase Agreement is
hereby deleted. Subject to earlier termination, the Agreement shall terminate
(the "Termination Date") on the date which is which is the earlier of (i) 364
days from the initial Purchase Date, or (ii) at Buyer's option, the occurrence
of an Event of Default. Not sooner than 90 days prior to the Termination Date
and not later than 45 days prior to the Termination Date, Seller may request an
extension of the Termination Date, subject to approval by Buyer in its sole
discretion, for an additional 364 days following such Termination Date. All
Transactions outstanding hereunder shall terminate automatically without any
requirement for notice on the Termination
18
Date and the Seller shall repurchase all Securities subject to any Transaction
outstanding pursuant to the terms of the Agreement. Notwithstanding the
foregoing, it is further understood and agreed that if any Transaction shall
remain outstanding subsequent to the termination of this Agreement, this
Agreement shall nevertheless survive to govern the termination of such
outstanding Transaction.
(c) No such termination shall affect Seller's or Buyer's outstanding
obligations to the other party at the time of such termination. Seller's
obligations to indemnify Buyer pursuant to the Repurchase Agreement shall
survive the termination hereof.
20. FINANCIAL STATEMENTS. As of the date hereof, the Guarantor has provided the
Buyer with the Guarantor's audited year-end financial statements and the
Guarantor's most recent publicly available interim financial statement. Each
delivery of Purchased Securities to Buyer hereunder will constitute a
representation by Seller that there has been no material adverse change in
Seller, Guarantor, or Seller's or Guarantor's financial condition not disclosed
to Buyer since the date of Guarantor's most recent financial statement.
21. PRICING RATE; PURCHASE PRICE.
(a) The Pricing Rate with respect to each Transaction hereunder shall
be a per annum rate equal to LIBOR, as defined in this Section, plus the Pricing
Margin (rounded up to the nearest 0.0625%), adjusted monthly.
(i) "LIBOR" shall be the offered rate for United States
dollars with a maturity of one month which appears on Telerate as of
11:00 a.m., City of London, England time, on each Business Day that
such Transaction is outstanding; provided, however, that if such rate
does not appear on the Dow ▇▇▇▇▇ Telerate Service page 3750 (or such
other page as may replace that page on that service) or if such service
is no longer offered, the rate for United States dollars with a
maturity of one month quoted by such other service as may be selected
by the Buyer. "LIBOR Business Day" means any day other than a Saturday,
Sunday or any other day on which banking institutions in the City of
London, England are required or authorized by law to be closed.
(ii) The Pricing Rate will change daily upon each change in
LIBOR.
(b) The Purchase Price with respect to each Purchased Security shall
equal the lesser of (i) the applicable Purchase Price Percentage times the
Market Value of such Purchased Security, or (ii) the applicable Purchase Price
Percentage times the unpaid principal balance of such Purchased Security, or
(iii) the unpaid principal balance of such Purchased Security times a percentage
equal to the equivalent haircut percentage required by rating agencies in
connection with securitizations by Origen of loans similar to the MH Loans.
22. REPURCHASE DATE AND REPURCHASE PRICE.
(a) Provided that all applicable conditions in this Agreement have been
satisfied (including the payment of all fees owed to the Buyer), each Purchased
Security repurchased by Seller on a ▇▇▇▇▇▇▇▇▇▇
▇▇
Date shall automatically become subject to a new Transaction. For each new
Transaction, accrued Price Differential shall be settled in cash on such
Repurchase Date.
(b) Seller agrees to indemnify Buyer and to hold Buyer harmless from
any loss or reasonable expense which Buyer may sustain or incur as a consequence
of the repurchase of Securities by Seller on a day that is not a Repurchase
Date. Such indemnification shall be in an amount including, but not limited to,
the excess, if any, of (i) the amount of Price Differential that would have been
payable with respect to the related Transaction on the next succeeding
Repurchase Date but for such repurchase over (ii) the sum of (x) the amount of
Price Differential paid by Seller to Buyer in connection with such repurchase,
if any, and (y) the amount of interest (as determined by Buyer in good faith)
that would have accrued on the amount paid by Seller to Buyer in connection with
such repurchase had such amount been deposited by Buyer with leading banks in
the interbank eurodollar market until the next succeeding Repurchase Date. This
covenant shall survive the termination of this Agreement and the payment of all
other amounts payable hereunder. Notwithstanding the foregoing, Seller shall not
be liable for indemnifying Buyer pursuant to this Section 22(b) if such
repurchase is effected to facilitate a securitization of such Securities and
Seller has engaged Buyer (or its affiliate) to act as placement agent or
underwriter in connection with such securitization. Nothing contained in this
Section 22(b) shall be construed to relieve Seller of its obligation to pay to
Buyer the Repurchase Price in connection with any repurchase of Securities
hereunder.
(c) Upon timely payment in full of the Repurchase Price and all other
Obligations owing with respect to a Purchased Security, if no Default or Event
of Default has occurred and is continuing, Buyer shall, and shall promptly
direct Custodian to, release such Purchased Securities (and not substitutes
thereof) unless such release would give rise to or perpetuate a Margin Deficit.
Except as set forth in Paragraphs 4(a) and 9 of the Repurchase Agreement, Seller
shall give at least two (2) Business Days prior written notice to Buyer if such
repurchase shall occur on other than a Repurchase Date. If such a Margin Deficit
is applicable, Buyer shall notify Seller of the amount thereof and Seller may
thereupon eliminate the Margin Deficit in the manner specified in Paragraph 4 of
the Repurchase Agreement.
(d) If Buyer determines that the introduction of, any change in, or the
interpretation or administration of any requirement of law has made it unlawful
or commercially impracticable to engage in any Transactions with a Pricing Rate
based on LIBOR, then Seller (i) shall, upon its receipt of notice of such fact
and demand from Buyer, repurchase the Purchased Securities subject to the
Transaction within thirty (30) days and concurrently enter into a new
Transaction with Buyer with a Pricing Rate based on the Prime Rate plus a margin
and (ii) may elect, by giving notice to Buyer and Custodian, that all new
Transactions shall have Pricing Rates based on the Prime Rate plus a margin. The
foregoing margins shall be solely determined and calculated by Buyer in good
faith. If any such event shall occur, the Seller may terminate all Transactions
upon payment of all amounts owed to Buyer hereunder.
(e) If after the date hereof, there shall have occurred (i) the
adoption of any applicable law, rule or regulation regarding capital adequacy,
(ii) introduction of, any change in, or the compliance by Buyer with the
Eurocurrency Reserve Requirement or any change therein, or (iii) any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency (whether or not having the force of law), that
the Buyer has reasonably determined has or would have the effect of reducing the
rate of return on the Buyer's capital as a consequence of its obligations
hereunder to a level
20
below that which the Buyer would have achieved but for such adoption, change or
compliance (taking into consideration the Buyer's policies with respect to
capital adequacy) by an amount which the Buyer, in its reasonable judgment,
shall deem material, then from time to time, the Seller shall pay to the Buyer
such additional amount or amounts as will compensate the Buyer for such
reduction. A certificate as to the change and calculation of such amounts
submitted to the Seller by the Buyer shall be conclusive and binding for such
purposes, absent manifest error.
23. ADDITIONAL INFORMATION.
(a) At any reasonable time, Seller, Guarantor and Origen shall permit
Buyer, its agents or attorneys, to inspect and copy any and all documents and
data in their possession pertaining to each Security that is the subject of a
Transaction. Such inspection shall occur upon the request of Buyer at the
offices of Seller, Guarantor and Origen, as applicable, during regular business
hours.
(b) Seller agrees to provide to Buyer and to cause Guarantor to provide
to Buyer such information concerning Seller and Guarantor's financial or
operational condition, as applicable, as Buyer may request from time to time
unless Seller is not legally permitted to provide such information.
(c) Buyer agrees to keep confidential (and to use its best efforts to
cause its respective agents and representatives to keep confidential) the
Information (as defined below) and all copies thereof, extracts therefrom and
analyses or other materials based thereon, except that the Buyer shall be
permitted to disclose the Information (a) to such of its respective officers,
directors, employees, agents, affiliates, representatives and auditors, on a
need to know basis, (b) to the extent requested by any regulatory authority, (c)
to the extent required by applicable laws and regulations or by any subpoena or
similar legal process, upon prior notice thereof (unless prohibited by the terms
of such subpoena or process) to the Seller, (d) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section 23(c) or (ii) becomes lawfully available to the Buyer on a
nonconfidential basis from a source or third party other than the Seller or
(iii) is material to a counterparty of Buyer in the normal course and Buyer
gives notice to such counterparty that such Information is subject to
confidentiality and such counterparty (which shall be disclosed to Seller)
agrees to the maintenance of confidentiality substantially on the terms in this
Section 23(c), or (e) upon an Event of Default, to the extent disclosure of such
Information is necessary as determined by Buyer in order for Buyer to enforce or
defend Buyer's right under the Agreement. For the purposes of this Section
23(c), "Information" shall mean all financial statements, certificates, reports,
or material non public information that was received from the Seller and all
other written or computer-readable information provided by one party to the
other pursuant to the Loan Documents or the Transaction Documents and the
Transactions contemplated thereby. The provisions of this Section 23(c), shall
remain operative and in full force and effect regardless of the expiration and
term of this Agreement.
24. RIGHT OF SET-OFF. In addition to its rights hereunder, Buyer shall have the
right to proceed against any of Seller's or Guarantor's assets which may be in
the possession of Buyer, any of Buyer's affiliates or its designee (including
the Custodian), including the right to liquidate such assets and to set-off the
proceeds against monies owed by Seller to Buyer, whether under this Agreement,
under a Transaction,
21
or under any other agreement between the parties, or otherwise, whether or not
such obligations are then due, without prejudice to Buyer's right to recover any
deficiency.
25. CONFIDENTIALITY. This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and shall be held by
Seller (and Seller shall cause Guarantor and the Take-out Purchaser to hold it)
in strict confidence and shall not be disclosed to any third party without the
consent of Buyer except for (i) disclosure to Seller's direct and indirect
affiliates and Subsidiaries, attorneys or accountants, provided that such
entities and Persons likewise agree to be bound by this covenant of
confidentiality or (ii) upon at least 5 Business Days' prior written notice to
Buyer, disclosure required by law, rule, regulation or order of a court or other
regulatory body, which shall not include the Side Letter unless otherwise agreed
by Buyer in writing.
26. CONDITIONS PRECEDENT.
(a) Prior to entering into the initial Transaction under this
Agreement, Seller shall cause each of the following conditions to occur:
(i) A Custodial Agreement to cover the MH Loans, in a
form satisfactory to Buyer, shall have been executed
and delivered by the parties thereto.
(ii) The Transaction Documents shall be duly executed and
delivered to the parties thereto and be in full force
and effect, free of modification, breach or waiver.
(iii) The Transaction Documents shall contain provision
that makes the existence of the terms and conditions
of the Agreement confidential and proprietary of
Buyer.
(iv) Seller shall have paid, or caused to be paid, to
Buyer the Upfront Facility Fee.
(v) Buyer shall be satisfied with the results of due
diligence performed on a representative sample of MH
Loans under Section 36 herein.
(vi) Seller shall have disclosed information satisfactory
to Buyer with respect to the scheduled maturities and
termination provisions of all outstanding credit
facilities and debt of Seller.
(vii) Evidence that all other actions necessary or, in the
opinion of Buyer, desirable to perfect and protect
Buyer's interest in the Purchased Securities and
other Collateral have been taken, including, without
limitation, duly executed and filed Uniform
Commercial Code financing statements on Form UCC-1.
(viii) A certified copy of Seller's corporate resolutions
approving the Transaction Documents and Transactions
hereunder (either specifically or by general
resolution), and all documents evidencing other
necessary corporate action or
22
governmental approvals as may be required in
connection with the Transaction Documents have been
received by Buyer.
(ix) An incumbency certificate of Seller's corporate
secretary certifying the names, true signatures and
titles of Seller's representatives duly authorized to
request Transactions hereunder and to execute the
Transaction Documents and the other documents to be
delivered thereunder has been delivered to Buyer.
(x) An opinion of Seller's counsel has been received by
Buyer with respect to the matters set forth in
Exhibit B, in form and substance acceptable to Buyer.
(xi) A true and correct copy of the Underwriting
Guidelines certified by an officer of Seller has been
received by Buyer.
(b) Prior to entering into each Transaction pursuant to this Agreement,
Seller shall cause each of the following to occur:
(i) 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 Notice
delivered pursuant to Section 5(b) hereof and (B)
such certificates, opinions of counsel or other
documents as Buyer may reasonably request.
(ii) No Default or Event of Default shall have occurred
and be continuing.
(iii) 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.
(iv) All representations and warranties in the Transaction
Documents hereof shall be true and correct on the
date of such Transaction.
(v) Prior to the date of any Transaction, Seller shall
deliver to Buyer or its designee in escrow, for
examination with respect to each proposed MH Loan to
be purchased, all Records in Seller's possession
pertaining to each MH Loan. If Buyer makes such
examination prior to the Purchase Date and identifies
any MH Loans which do not satisfy Buyer's
underwriting standards, such MH Loans may, at Buyer's
option, in Buyer's absolute discretion, be rejected
for purchase by Buyer.
23
(vi) The then aggregate outstanding Purchase Price for all
Purchased Securities, when added to the Purchase
Price for the requested Transaction, shall not exceed
the Maximum Aggregate Purchase Price.
(vii) The Purchase Price for the Purchased Securities in
such Transaction shall equal not less than ONE
MILLION DOLLARS ($1,000,000).
(viii) A faxed copy of a duly executed and acknowledged
Confirmation shall be delivered to Buyer in New York,
with the executed and acknowledged original document
to be received by Buyer in New York within two (2)
Business Days of the Purchase Date.
(ix) With respect to any state for which evidence
satisfactory to Buyer has not previously been
provided, evidence which, in the reasonable
discretion of Buyer, may take the form of an opinion
of counsel for Originator to the effect that, with
respect to each state in which a Mortgaged Property
is located, Originator (i) is qualified to transact
business in, and is in good standing under, the laws
of such state or is otherwise exempt from such
qualification requirement under such laws and (ii)
has obtained all licenses required under the laws of
such state to originate, sell and service mortgage
loans of the same type as the related MH Loans, or is
otherwise exempt from such licensing requirements
under such laws.
(x) The Custodian shall have delivered an original Trust
Receipt (as defined in the Custody Agreement) to the
Buyer.
(xi) Seller shall have paid, or caused to be paid, to
Buyer the Upfront Facility Fee and any portion of the
Commitment Facility Fee then due and payable.
27. REPURCHASE TRANSACTIONS. Buyer may in its sole election engage in repurchase
transactions with the Purchased Securities or otherwise pledge, hypothecate,
assign, transfer or otherwise convey the Purchased Securities with a
counterparty of Buyer's choice; provided, however, that no such transaction by
Buyer shall relieve Buyer of its obligations to Seller in connection with the
repurchase by Seller of any Purchased Securities in accordance with the terms of
this Agreement.
28. NEW YORK JURISDICTION; WAIVER OF JURY TRIAL. SELLER AGREES TO SUBMIT TO THE
EXCLUSIVE GENERAL JURISDICTION IN THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS, IN ANY
ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT. BUYER AND SELLER EACH HEREBY
WAIVE THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION ARISING HEREUNDER.
29. FURTHER ASSURANCES. Seller agrees to do such further acts and things and to
execute and deliver to Buyer such additional assignments, acknowledgments,
agreements, powers and instruments as are reasonably required by Buyer to carry
into effect the purposes of the Agreement, to perfect the interests
24
of the Custodian in the MH Loans and the Related Assets or to better assure and
confirm unto Buyer its rights, powers and remedies hereunder.
30. BINDING TERMS. All of the representations, warranties, covenants,
stipulations, promises and agreements in the Agreement shall bind and inure to
the benefit of the successors of the parties hereto, whether expressed or not.
31. NOTICES AND OTHER COMMUNICATIONS. Any provision of Paragraph 13 of the
Repurchase Agreement to the contrary notwithstanding, any notice required or
permitted by the Agreement shall be in writing (including telegraphic, facsimile
or telex communications) and shall be effective and deemed delivered only when
received by the party to which it is sent; provided, however, that a facsimile
transmission shall be deemed to be received when transmitted so long as the
transmitting machine has provided an electronic confirmation of such
transmission. Any such notice shall be sent to a party at the address or
facsimile transmission number set forth in Annex II attached hereto.
32. FEES AND DISBURSEMENTS; INDEMNIFICATION.
(a) The Seller agrees to pay on demand (i) all reasonable out-of-pocket
costs and expenses of the Buyer in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement
(including, without limitation, (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Buyer with respect thereto, with
respect to advising the Buyer as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under this
Agreement, with respect to negotiations with the Seller or with other creditors
of the Seller or any of its Subsidiaries arising out of any Default or any
events or circumstances that may give rise to a Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto, in each case involving the Seller or the
Guarantor), (ii) the commitment fee (including the legal fees and expense) paid
by the Buyer to the Take-out Purchaser pursuant to the Take-out Agreement, and
(iii) all costs and expenses of the Buyer in connection with the enforcement of
this Agreement and the Take-out Agreement, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Buyer) whether or not the transactions
contemplated hereby are consummated.
(b) The Seller agrees to indemnify and hold harmless the Buyer and each
of its respective Affiliates and their officers, directors, employees, agents
and advisors (each, an "Indemnified Party") from and against (and will reimburse
each Indemnified Party as the same is incurred) any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or other proceeding (whether or not such Indemnified Party is a party
thereto) relating to, resulting from or arising out of any of the Transaction
Documents and all other documents related thereto, any breach of a
representation or warranty of Seller or Guarantor or Seller's or
25
Guarantor's officer in this Agreement or any other Transaction Document, and all
actions taken pursuant thereto) (i) the Transactions, the actual or proposed use
of the proceeds of the Transactions, this Agreement or any of the transactions
contemplated thereby, including, without limitation, any acquisition or proposed
acquisition or (ii) the actual or alleged presence of hazardous materials on any
Property or any environmental action relating in any way to any Property, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Seller, its
members, or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Seller also agrees not to assert any claim against
the 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 Transaction Documents, 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.
33. FACILITY FEES.
(a) Seller agrees to pay to Buyer on the date of execution of this
Agreement, the Upfront Facility Fee, such payment to be made in United States
dollars, in immediately available funds, without deduction, set-off or
counterclaim. The Buyer may, in its sole discretion, net such Upfront Facility
Fee from the proceeds of any Purchase Price payable to the Seller.
(b) On each Repurchase Date, Seller agrees to pay to the Buyer, 1/12th
of the Commitment Facility Fee, such payment to be made in United States
dollars, in immediately available funds, without deduction, set-off or
counterclaim. The Buyer may, in its sole discretion, net such Commitment
Facility Fee from the proceeds of any Purchase Price payable to the Seller.
34. NO GUARANTY. Seller acknowledges that the obligations of Buyer hereunder or
otherwise are not subject of any guaranty by, or recourse to, any direct or
indirect parent or other affiliate of Buyer.
35. COUNTERPARTS. This Annex I may be executed in any number of counterparts,
each of which shall be an original but such counterparts shall together
constitute but one and the same instrument.
36. DUE DILIGENCE. Buyer shall, from time to time, at Buyer's sole discretion,
perform credit and Loan File and appraisal due diligence. Guarantor will be
responsible for the expense of such due diligence, pursuant to Section 32
herein. Such due diligence may be conducted in connection with a securitization.
37. SERVICER; BACKUP SERVICER; DELIVERY OF SERVICING RIGHTS.
26
(a) Origen shall contract service, or cause to be contract serviced,
all MH Loans that are part of the Purchased Securities in accordance with
prudent servicing practices, pending the delivery of such servicing to Buyer,
employing at least the same procedures and exercising the same care that Origen
customarily employs in servicing MH Loans for its own account. Origen shall
notify all servicers of MH Loans of Buyer's interest hereunder and Origen shall
notify Buyer of the name and address of all servicers of MH Loans. Buyer shall
have the right to approve each servicer and the form of all servicing
agreements, which approval shall not be unreasonably withheld. Origen shall hold
or cause to be held all escrow funds collected with respect to such MH Loans in
trust accounts and shall apply the same for the purposes for which such funds
were collected. Upon Buyer's request, Origen shall provide reasonably promptly
to Buyer (i) a letter addressed to and agreed to by each servicer of MH Loans,
in form and substance reasonably satisfactory to Buyer, advising such servicer
of such matters as Buyer may reasonably request, and/or (ii) a recognition
agreement executed by each servicer of MH Loans, in form and substance
reasonably satisfactory to Buyer, in which the servicer recognizes the interest
of Buyer and agrees to follow the instructions of Buyer with respect to the MH
Loans and any related Income with respect thereto. If Origen should discover
that, for any reason whatsoever, Origen or any entity responsible to Origen by
contract for managing or servicing any such MH Loan has failed to perform fully
Origen's obligations under the Transaction Documents or any of the obligations
of such entities with respect to the Purchased Securities, Origen shall promptly
notify Buyer.
Origen shall establish and maintain a collection account (the
"Collection Account") with the Custodian (or any other depositor institution
acceptable to the Buyer) in the name and in trust for the Buyer, which account
shall be subject to the sole dominion and control of the Buyer.
Origen shall collect all principal and interest payments, including
partial prepayments and prepayments in full, less servicing fees, and shall hold
such amounts in trust in an account specified by Buyer and in Buyer's name for
the benefit of Buyer unless otherwise directed by Buyer. Origen shall deposit
all such collections into the Collection Account as soon as practicable, but in
no event later than within one (1) Business Day of receipt of such amounts.
Origen shall remit such amounts to Buyer upon Buyer's request. All withdrawals
from the Collection Account shall be at the direction of the Buyer In the event
of an Event of Default, Buyer may appoint another servicer.
(b) In the event that Origen or its Affiliate is the primary servicer
on any of the MH Loans, Buyer shall have the right to require that a backup
servicer be appointed if Buyer determines in good faith that a back up servicer
is necessary. If any Affiliate of Seller, including Origen, acts as servicer,
such servicer shall be subject to review and approval every 30 days by Buyer.
The backup servicer shall receive a Loan Schedule and Computer Tape of the MH
Loans on a monthly basis and shall balance the aggregate information contained
therein. Any fees and expenses of the backup servicer shall be the
responsibility of Origen.
(c) Notwithstanding any provision to the contrary herein, Seller
acknowledges and agrees that the Servicing Rights of the MH Loans subject to
Transactions are the property of the Buyer. With respect to the Servicing Rights
of each MH Loan, Seller shall deliver such Servicing Rights to the designee of
Buyer, within 75 days of a Purchase Date, unless otherwise stated in writing by
Buyer; provided that on each Repurchase Date that is subject to a new
Transaction, such delivery requirement is deemed restated
27
for such new Transaction (and the immediately preceding delivery requirement is
deemed to be rescinded) in the absence of directions to the contrary from Buyer,
and a new 75-day period is deemed to commence as of such Repurchase Date. The
Seller's transfer of the Servicing Rights under this Section shall be in
accordance with customary standards in the industry.
28
IN WITNESS WHEREOF, Buyer and Seller have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the day and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC
as Buyer
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
ORIGEN SPECIAL HOLDINGS CORPORATION
as Seller
By /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
----------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Title: Treasurer
Acknowledged:
▇▇▇▇▇▇▇ FINANCIAL SERVICES CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
ORIGEN FINANCIAL, INC.
By /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Title: Treasurer
EXHIBIT A
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER, ORIGEN AND GUARANTOR
I. Seller and Guarantor each represent, warrant and covenant, as of the date
hereof and as of each day during the term of the Agreement, as follows:
(a) Due Organization and Qualification. Seller, Origen and Guarantor each is
duly organized and validly existing. Seller, Origen and Guarantor each is duly
qualified to do business, is in good standing and has obtained all necessary
licenses, permits, charters, registrations and approvals (together, "Approvals")
necessary for the conduct of its business as currently conducted and the
performance of its obligations under the Transaction Documents, in each
jurisdiction in which the failure to be so qualified or to obtain such Approvals
would render any MH Loan unenforceable in any respect or would otherwise have a
material adverse effect upon the Market Value of the Purchased Securities or the
ability of the Seller, Origen or Guarantor to perform their respective
obligations under the Transaction Documents.
(b) Power and Authority. Seller, Origen and Guarantor each has all necessary
power and authority to conduct its business as currently conducted, to execute,
deliver and perform its obligations under the Transaction Documents and to
consummate the Transactions.
(c) Due Authorization. The execution, delivery and performance of the
Transaction Documents by Seller, Origen or Guarantor has been duly authorized by
all necessary action and do not require any additional approvals or consents or
other action by or any notice to or filing with any Person except for filing and
recordings with respect to the liens created pursuant to the Transaction
Documents.
(d) Noncontravention. None of the execution and delivery of the Transaction
Documents by Seller, Origen or Guarantor, the consummation of the transactions
contemplated thereby or the satisfaction of the terms and conditions of the
Transaction Documents:
(i) conflicts with or results in any breach or violation of any
provision of the charter or bylaws or similar organizational documents of
Seller, Origen or Guarantor or any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award currently in effect having
applicability to Seller, Origen, Guarantor or any of Seller's, Origen's or
Guarantor's properties, including regulations issued by an administrative agency
or other governmental authority having supervisory powers over Seller, Origen or
Guarantor;
(ii) constitutes a default by Seller under or a breach of any provision
of any loan agreement, mortgage, indenture or other agreement or instrument to
which Seller, Origen, Guarantor or any of Seller's, Origen's or Guarantor's
affiliates is a party or by which Seller, Origen or Guarantor or any of
Seller's, Origen's or Guarantor properties is or may be bound or affected; or
(iii) results in or requires the creation of any lien upon or in
respect of any of the assets of Seller, Origen or Guarantor or Seller's,
Origen's or Guarantor's affiliates except as otherwise expressly contemplated by
the Transaction Documents.
(e) Legal Proceedings. There is no action, proceeding or investigation by or
before any court, governmental or administrative agency or arbitrator against or
affecting all or any of the Purchased Securities, Seller, Origen, Guarantor or
any of their affiliates, or any properties or rights of Seller, Origen or
Guarantor or any of their affiliates, pending or threatened, which, in any case,
if decided adversely, would have a material adverse effect with respect to the
Market Value of the Purchased Securities or the ability of the Seller, Origen or
Guarantor to perform their respective obligations under the Transaction
Documents.
(f) Valid and Binding Obligations. Each of the Transaction Documents to which
Seller, Origen or Guarantor is a party when executed and delivered by Seller,
Origen or Guarantor will constitute the legal, valid and binding obligations of
Seller, Origen or Guarantor, enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors" rights
generally or creditors of national banks and subject, as to the enforcement of
remedies, including the remedy of specific performance and injunctive and other
forms of equitable relief which may be subject to certain equitable defenses and
to the discretion of the court before which any proceeding may be brought, to
general principles of equity whether the enforceability is considered in a
proceeding at law or in equity.
(g) Financial Statements. The Financial Statements of Guarantor, copies of which
have been furnished to Buyer, (i) present fairly the financial condition and
results of operations of Guarantor as of the dates and for the periods indicated
and (ii) have been prepared in accordance with generally accepted accounting
principles consistently applied, except as noted therein (subject as to interim
statements to normal year-end adjustments). Since the date of the most recent
Financial Statements, there has been no material adverse change in such
financial condition or results of operations. Except as disclosed in the
Financial Statements, neither Guarantor nor Seller is subject to any contingent
liabilities or commitments that, individually or in the aggregate, would have a
material adverse change in the business or operations of the Guarantor or the
Seller if such contingency were to occur.
(h) ERISA. Seller, Origen and Guarantor each is in compliance with ERISA and has
not incurred and does not reasonably expect to incur any liabilities to the PBGC
under ERISA in connection with any Plan or Multiemployer Plan or to contribute
now or in the future in respect of any Plan or Multiemployer Plan.
(i) Accuracy of Information. None of the documents or information provided by
Seller, Origen or Guarantor to Buyer in connection with the Agreement or the
Transactions thereunder contain any statement of material fact with respect to
Seller, Origen, Guarantor or the Transactions that was untrue or misleading in
any material respect when made. Since the furnishing of such documents or
information, there has been no change, nor any development or event involving a
prospective change known to Seller, Origen or Guarantor that would render any of
such documents or information untrue or misleading in any material respect.
(j) Compliance With Law, Etc. No practice, procedure or policy employed or
proposed to be employed by Seller in the conduct of its businesses violates any
law, regulation, judgment, agreement, order or decree applicable to it which, if
enforced, would result in a material adverse effect upon the Market Value of the
Purchased Securities or the ability of the Seller, Origen or Guarantor to
perform their respective obligations under the Transaction Documents.
(k) Solvency; Fraudulent Conveyance. Each of Seller, Origen and Guarantor is
solvent and will not be rendered insolvent by the Transaction and, after giving
effect to such Transaction, neither Guarantor, Origen nor Seller will be left
with an unreasonably small amount of capital with which to engage in its
business. Seller does not intend to incur, or believe that it, Origen or
Guarantor has incurred, debts beyond its ability to pay such debts as they
mature. Neither Guarantor, Origen nor Seller is 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 Seller, Origen or Guarantor or any of their assets. The amount of
consideration being received by the Seller upon the sale of the Purchased
Securities to Buyer and thereafter upon the sale of any Purchased Securities by
the Seller to the Buyer constitutes reasonably equivalent value and fair
consideration for such Purchased Securities. Seller is not transferring any
Purchased Securities with any intent to hinder, delay or defraud any of its
creditors.
(l) Investment Company Act Compliance. Seller is neither required to be
registered as an "investment company" as defined under the Investment Company
Act nor under the control of an "investment company" as defined under the
Investment Company Act.
(m) Taxes. Seller, Origen and Guarantor have filed all federal and state tax
returns that are required to be filed and paid all taxes, including any
assessments received by Seller, Origen and Guarantor, to the extent that such
taxes have become due (other than those being contested in good faith and for
which adequate reserves have been established). Any taxes, fees and other
governmental charges payable by Seller in connection with the Transaction and
the execution and delivery of the Transaction Documents have been paid.
(n) Chief Executive Office: The chief executive office of the Seller is
located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(o) Perfection of Liens and Security Interest. The lien and security interest in
favor of the Buyer with respect to the Purchased Securities will be perfected by
(i) the delivery of the Purchased Securities to the Custodian, which Purchased
Securities the Custodian will hold on behalf of the Buyer, (ii) the filing of
financing statements on Form UCC-1 and recording of any assignment of mortgage
in the appropriate jurisdiction or jurisdiction where such recording or filing
is necessary for the perfection of the security interest in favor of the Buyer,
and no other filings in any jurisdiction or any other actions (except as
expressly provided herein) are necessary to perfect the Buyer's first priority
lien on and security interest in the Purchased Securities as against any third
parties.
(p) No Broker. Neither the Seller, Origen nor the Guarantor has dealt with any
broker, investment banker, agent, or other person, except for the Buyer, who may
be entitled to any commission or compensation in connection with the sale of
Purchased Securities pursuant to this Agreement; provided,
that if Seller, Origen or Guarantor has dealt with any broker, investment
banker, agent, or other person, except for the Buyer, who may be entitled to any
commission or compensation in connection with the sale of the Purchased
Securities pursuant to this Agreement, such commission or compensation shall
have been paid in full by Seller, Origen or Guarantor, as applicable.
II. Seller, Origen and Guarantor hereby agree that during the term of
the Agreement, unless Buyer shall otherwise expressly consent in writing:
(a) Compliance With Agreements and Applicable Laws. Each of Seller, Origen or
Guarantor shall perform each of its obligations under the Transaction Documents
and shall comply in all material respects with all requirements of any law, rule
or regulation applicable to it or thereto (including any minimum regulatory
capital requirements), or that are required in connection with its performance
under any of the Transaction Documents and cause the Collateral to comply in all
material respects with all applicable rules, regulations and other laws.
(b) Financial Statements: Accountants' Reports: Other Information. Guarantor
shall keep or cause to be kept, in reasonable detail, to the Buyer, and such
others as reasonably determined by the Buyer, books and records of account of
its and Seller's assets and business and shall clearly reflect therein the
transfer of Purchased Securities to the Buyer. During the term of this
Repurchase Agreement, Guarantor shall furnish or cause to be furnished to Buyer:
(i) Annual Financial Statements. As soon as available, and in any
event within 90 days after the close of each fiscal year of
Seller and Guarantor, the consolidated audited financial
statements of Seller and Guarantor as of the end of such
fiscal year, in reasonable detail and stating in comparative
form the respective figures for the corresponding date and
period in the preceding fiscal year, prepared in accordance
with generally accepted accounting principles, consistently
applied, and accompanied by the certificate of Seller's
independent accountants (who shall be, in each case, a
nationally recognized firm or otherwise acceptable to Buyer).
(ii) Quarterly Financial Statements. As soon as available, and in
any event within 45 days after the close of each of the first
three quarters of each fiscal year of Guarantor, the unaudited
quarterly financial statements of Seller and Guarantor as of
the end of such quarter, in reasonable detail and stating in
comparative form the respective figures for the corresponding
date and period in the preceding fiscal year, prepared in
accordance with generally accepted accounting principles,
consistently applied (subject to normal year-end adjustments).
(iii) Loan Performance Data. Monthly reports in form and scope
satisfactory to Buyer, setting forth data regarding the
performance of the Purchased Securities, including, without
limitation, information with respect to delinquencies,
repossessions, charge-offs, Obligor bankruptcies, extensions
and modifications and such other information as Buyer may
request. Daily reports via e-mail to Buyer setting forth data
regarding the performance of the Purchased Securities in form
and substance similar to those prepared by the Servicer
in the ordinary course of its servicing of loans similar to
the Purchased Securities that are subject to securitizations.
(iv) Monthly Servicing Diskettes. A computer tape and a diskette
(or any other electronic transmission acceptable to Buyer) in
a format acceptable to the Buyer containing such information
with respect to the Purchased Securities and the servicing of
the Purchased Securities as Buyer may request.
(v) Monthly Certification. Seller shall cause Guarantor to execute
a monthly certification substantially in the form of Exhibit E
to the Additional Supplemental Terms.
(vi) Material Events and Licensing Issues. Notice of material
events or potential or existing Events of Default and any
licensing renewal problems and revocations.
(vii) Litigation Summary. Reports summarizing pending or future
threatened litigation involving Seller or Guarantor, in excess
of $100,000 or $500,000, respectively, or which has the
potential for judgment in excess of $100,000 or $500,000,
respectively, if no specified damages are set forth therein.
(viii) Other Information. On a quarterly or more frequent basis,
unless otherwise required pursuant to the terms of the
Transaction Documents or reasonably requested otherwise by
Buyer, copies of all reports, statements, certifications, or
other similar items required to be delivered to or by Seller
pursuant to the terms of the Transaction Documents, and
promptly upon request, such other data as Buyer may reasonably
request. Upon the request of Buyer, Seller and Guarantor shall
permit the Take-out Purchaser to inspect the books and records
of Seller and Guarantor as they may relate to the Purchased
Securities and provide access to any documents related
thereto. Upon the request of Buyer, Seller and Guarantor shall
permit Buyer or its authorized agents (A) to inspect the books
and records of Seller and Guarantor as they may relate to the
Purchased Securities, the obligations of Seller and Guarantor
under the Transaction Documents, the Transactions and Seller's
or Guarantor's business; (B) to discuss the affairs, finances
and accounts of Seller with its respective chief operating
officer and chief financial officer, in each case on an
annually or more frequent basis, unless an Event of Default
has occurred; and (C) to discuss the affairs, finances and
accounts of Seller or Guarantor with its independent
accountants, provided that an officer of Seller or Guarantor
shall have the right to be present during such discussions.
Such inspections and discussions shall be conducted during
normal business hours upon reasonable prior notice and shall
not unreasonably disrupt the business of Seller or Guarantor.
In addition, Seller or Guarantor shall on a quarterly or more
frequent basis, unless reasonably requested otherwise by
Buyer, provide to Buyer a copy of all correspondence between
Seller or Guarantor and the PBGC, Internal Revenue Service,
Department of Labor or the administrators of a Multiemployer
Plan relating to any Reportable Event or the underfunded
status, termination or possible termination of a Plan or a
Multiemployer Plan. The books and records of Seller and
Guarantor will be maintained at the respective addresses
designated herein for receipt of notices, unless Seller or
Guarantor shall otherwise advise Buyer in writing.
(viii) Government Information. On a quarterly or more frequent basis,
unless reasonably requested otherwise by Buyer, Seller shall
deliver to Buyer copies of all proxy statements, financial
statements, reports and registration statements which Seller
files, or delivers to the Securities and Exchange Commission,
or any other federal, state or foreign government agency,
authority or body which supervises the issuance of securities
by Seller or any national securities exchange.
(c) Compliance Certificate. (1) Seller shall deliver to Buyer concurrently with
the delivery of the annual and quarterly financial statements required by
paragraphs II.(b)(i) and II.(b)(ii) of this Exhibit A a certificate signed by
the chief financial officer, president or treasurer of Seller stating that:
(i) a review of Seller's performance under the Transaction
Documents during such period has been made under such officer's
supervision; and
(ii) the attached financial reports are complete and correct
in all material respects and present fairly the financial condition and
results of operations of Seller as of the dates and for the periods
indicated, in accordance with generally accepted accounting principles
consistently applied (subject as to interim statements to normal
year-end adjustments).
(2) Seller shall deliver to Buyer monthly a certificate signed by the
chief financial officer of Seller stating that no Default or Event of Default
has occurred, or if a Default or Event of Default has occurred, specifying the
nature thereof and, if Seller has a right to cure any such Default or Event of
Default, stating in reasonable detail the steps, if any, being taken by Seller
to cure such Default or Event of Default or to otherwise comply with the terms
of the agreement to which such Default or Event of Default relates.
(d) Notice of Material Events. Seller shall, and shall cause Guarantor or Origen
to, promptly inform (unless, in the case of clause (i) only, prohibited by
applicable law) Buyer in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal process,
litigation or administrative or judicial investigation (A) against Seller,
Origen or Guarantor pertaining to the Purchased Securities in general, (B) with
respect to a portion of the Purchased Securities or (C) in which a request has
been made for certification as a class action (or equivalent relief) that would
involve a portion of the Purchased Securities;
(ii) any change in the location of Seller's principal office or any
change in the location of Seller's books and records;
(iii) the occurrence of any Default, Event of Default or breach by the
Seller, Origen or Guarantor of any obligation under any Transaction Document, or
the occurrence or existence of any event
or circumstance that Seller reasonably expects will with the passage of time
become a Default, Event of Default or such a default or breach by Seller, Origen
or Guarantor;
(iv) any other event, circumstance or condition that has resulted, or
is reasonably likely of resulting, in a material adverse effect upon the
financial or operational condition of Seller, Origen or Guarantor;
(v) any material change in the insurance coverage required of the
Seller, Origen or Guarantor pursuant to any Transaction Document, with copy of
evidence of same attached;
(vi) any material change in accounting policies or financial reporting
practices of the Seller, Origen or Guarantor;
(vii) any material amendment to the Underwriting Guidelines or buying
practices pursuant to which any of the Purchased Securities are originated or
acquired; or
(viii) any material dispute, litigation, investigation, proceeding or
suspension between Seller, Origen or Guarantor on the one hand, and any other
Person on the other.
(e) Further Assurances. Seller will file or cause to be filed all necessary
financing statements, assignments or other instruments, and any amendments or
continuation statements relating thereto, necessary to be kept and filed in such
manner and in such places as may be required by law to preserve and protect
fully the lien on and first priority security interest in the MH Loans.
(f) Independent Entity. Each of Seller, Origen and Guarantor is a separate and
independent entity from the Custodian named in the Custodial Agreement, does not
own a controlling interest in such Custodian either directly or through
affiliates, and no director or officer of Seller, Origen or Guarantor is also a
director or officer of Custodian.
(g) Existence. Each of Seller, Origen and Guarantor shall preserve and maintain
its existence, rights, franchises and privileges and shall at all times continue
to be duly organized under the laws of the jurisdiction of its organization, and
qualify and remain qualified in good standing in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises, privileges
and qualifications would have a reasonable likelihood of having a material
adverse effect on the business or properties of Seller, Origen or Guarantor.
(h) Maintenance of Licenses. Seller, Origen and Guarantor shall maintain all
licenses, permits, charters and registrations as are material to the performance
by Seller, Origen or Guarantor of Seller, Origen or Guarantor's business or its
obligations under the Transaction Documents.
(i) Regulation T. None of the Purchase Price for any Purchased Securities will
be used either directly or indirectly to acquire any security, as that term is
defined in Regulation T of the Regulations of the Board of Governors of the
Federal Reserve System, and the Seller has not taken any action that might cause
any Transaction to violate any regulation of the Federal Reserve Board.
(j) Keeping of Records and Books of Account. Seller shall maintain and implement
administrative and operating procedures (including, an ability to recreate
records evidencing the Purchased Securities in the event of the destruction of
the originals thereof), and shall keep and maintain, or cause to be kept or
maintained, all documents, books, records and other information which are
necessary or advisable in accordance with prudent industry practice and custom
for transactions of this type for the collection of all Purchased Securities.
Seller shall maintain or cause to be maintained at all times accurate and
complete books, records and accounts relating to the Purchased Securities, which
books and records shall be marked to indicate the transfer of the Purchased
Securities under the Agreement. Each Confirmation, the Repurchase Agreement, the
Custodial Agreement, and the Servicing Agreement have been and shall be,
continuously, from the time of their execution, an official record of Seller.
(k) Defense of Title. Seller warrants and will defend, and shall cause
Guarantor, Origen and any servicer to defend, the right, title and interest of
Buyer in and to all Collateral against all adverse claims and demands, except
any adverse claims and demands arising from actions of the Buyer.
(l) Preservation of Collateral; Collateral Value. Seller shall, and shall cause
the Guarantor and Origen to, do all things necessary to preserve the Collateral
so that it remains subject to a first priority perfected security interest
hereunder. Seller will not allow (and will cause the Guarantor and Origen to not
allow) any default for which Seller, Origen or Guarantor are responsible to
occur under any Collateral or any Transaction Documents and Seller shall, and
shall cause the Guarantor and Origen to, fully perform or cause to be performed
when due all of its obligations under any Collateral or the Transaction
Documents.
(m) Maintenance of Tangible Net Worth. The Guarantor shall not permit its
Tangible Net Worth at any time to be less than the sum of (a) $10,000,000 plus
(2) for each fiscal quarter ending after March 31, 2001, 50% of its positive
consolidated net income as adjusted to step-up on a quarterly basis; provided,
however, the Tangible Net Worth requirement hereunder may not be reduced from
the amount required at the previous fiscal quarter end.
(n) Total Liabilities to Tangible Net Worth. On or following December 31, 2001,
the Guarantor shall not permit the Total Liabilities to Tangible Net Worth Ratio
of Guarantor to exceed 12:1.
(o) Current Ratio. The Guarantor shall not permit the ratio of Guarantor's
current assets to current liabilities (each as determined on a consolidated
basis in accordance with GAAP) to be less than 1:1.
(p) Underwriting Guidelines. Origen shall not modify, amend, supplement or
replace the Underwriting Guidelines in a manner that could reasonably be
expected to have a material adverse effect on the Market Value of the related
Purchased Securities without the prior written consent of Buyer.
(q) Retention of Equity or Debt Proceeds. Unless the proceeds are used by
Guarantor to fund its operational expenses or pay down its debt, Guarantor or
any of its subsidiaries shall retain 100% of the aggregate net proceeds received
from the issuance of any equity or debt offerings by the Guarantor or any of its
subsidiaries.
(r) No Debt by Seller. Seller shall not incur any debt (including entering into
any other repurchase arrangement) or permit any Person other than the Buyer to
have a lien on any of the Seller's assets.
EXHIBIT B
OPINION OF COUNSEL TO SELLER
EXHIBIT C
UNDERWRITING GUIDELINES
EXHIBIT D
REPRESENTATIONS AND WARRANTIES OF SELLER REGARDING MH LOANS
Seller makes the following representations and warranties with respect to each
MH Loan as of each Purchase Date with respect to such MH Loan, which
representations and warranties shall survive the transfer of each such MH Loan
to Buyer pursuant to the Repurchase Agreement:
(a) Transaction Notices as Described. The information set forth in the
applicable Transaction Notice is complete, true and correct.
(b) Payments. As of the initial Purchase Date with respect to any MH Loan, such
MH Loan is not delinquent in excess of 30 days.
(c) No Waivers. The terms of the MH Loan have not been waived, altered or
modified in any respect, except by instruments or documents identified in the
Transaction Notice.
(d) Binding Obligation. The MH Loan is the legal, valid and binding obligation
of the Obligor thereunder and is enforceable in accordance with its terms,
except as such enforceability may be limited by laws affecting the enforcement
of creditors' rights generally. All parties to each MH Loan had legal capacity
to enter into such MH Loan and to execute and deliver such MH Loan, and the MH
Loans have been duly and properly executed by such parties.
(e) No Outstanding Charges. There are no material defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the mortgagor, directly or indirectly,
for the payment of any amount required under the MH Loan, except for interest
accruing from the date of the Note or date of disbursement of the MH Loan
proceeds, whichever is greater, to the day which precedes by one month the due
date of the first installment of principal and interest.
(f) Original Terms Unmodified. The terms of the MH Loans have not been impaired,
waived, altered or modified in any respect, except by a written instrument which
has been recorded, if necessary to protect the interests of Buyer and which has
been delivered to Buyer or its designee (including the Custodian) and such terms
have not been impaired or waived except as otherwise disclosed to the Buyer. The
substance of any such waiver, alteration or modification has been approved by
the issuer of any related PMI policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the Loan Schedule
attached to the Repurchase Agreement. No mortgagor has been released, in whole
or in part, except in connection with an assumption agreement approved by the
issuer of any related PMI policy and the title insurer, to the extent required
by the policy, and which assumption agreement is included in the Loan
Documents delivered to Buyer or its designee (including the Custodian) and the
terms of which are reflected in the Loan Schedule attached to the related
Transaction Notice.
(g) No Defenses. The MH Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury, nor
will the operation of any of the terms of the MH Loan, or the exercise of any
right thereunder, render the MH Loan unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
(h) Insurance Policies in Effect. The fire and casualty insurance policy
covering the Manufactured Home and, with respect to Land-and Home Contract, the
Mortgaged Property (1) affords (and will afford) sufficient insurance against
fire and such other risks as are usually insured against in the broad form of
extended coverage insurance from time to time available, as well as insurance
against flood hazards if the Mortgaged Property is located in an area identified
by the Federal Emergency Management Agency as having special flood hazards; (2)
is a standard policy of insurance for the locale where the Mortgaged Property is
located, is in full force and effect, and the amount of the insurance is in the
amount of the full insurable value of the Mortgaged Property on a replacement
cost basis or the unpaid balance of the MH Loans, whichever is less; (3) names
(and will name) the present owner of the Mortgaged Property as the insured; and
(4) contains a standard mortgagee loss payable clause in favor of Seller or the
servicer. The Mortgage obligates the mortgagor thereunder to maintain the hazard
insurance policy at the mortgagor's cost and expense, and to seek reimbursement
therefor from the mortgagor. Seller has not engaged in, and has no knowledge of
the mortgagor's or any other party's having engaged in, any act or omission
which would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect of either.
(i) Origination. The MH Loan was originated by a manufactured housing dealer,
broker or correspondent and purchased by Origen or originated or acquired by
Origen directly, in the regular course of its business.
(j) Lawful Assignment. The MH Loan was not originated in and is not subject to
the laws of any jurisdiction whose laws would make the transfer of the MH Loan
pursuant to this Agreement unlawful or render the Contract unenforceable.
(k) Compliance with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the MH Loan have been complied with
including, without limitation, the Home Ownership and Equity Protection Act of
1994, and Seller shall maintain in its possession, available for Buyer's
inspection, and shall deliver to Buyer upon demand, evidence of compliance with
all such requirements.
(l) Contract in Force. The MH Loan has not been satisfied or subordinated in
whole or in part or rescinded, and the Manufactured Home securing the MH Loan
has not been released from the lien of the MH Loan in whole or in part.
(m) No Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of the Mortgage, in whole or in part, nor has
any instrument been executed that would effect any such release, cancellation,
subordination or rescission.
(n) Reserved.
(o) Valid First Lien. Each Land-and-Home Contract is a valid, subsisting and
enforceable first lien on the Mortgaged Property and Manufactured Home,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Land-and-Home
Contract is subject only to:
(1) the lien of current real property taxes and
assessments not yet due and payable;
(2) covenants, conditions and restrictions, rights of
way, easements and other matters of the public record
as of the date of recording acceptable to mortgage
lending institutions generally and specifically
referred to in the lender's title insurance policy
delivered to the originator of the MH Loan and (i)
referred to or to otherwise considered in the
appraisal made for the originator of the MH Loan or
(ii) which do not adversely affect the appraised
value of the Mortgaged Property or Manufactured Home
set forth in such appraisal; and
(3) other matters to which like properties are commonly
subject which do not materially interfere with the
benefits of the security intended to be provided by
the MH Loan or the use, enjoyment, value or
marketability of the related Mortgaged Property or
Manufactured Home.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the MH Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and Seller has full right to pledge, sell,
transfer, and assign the same to Buyer or its designee (including the
Custodian).
(p) Good Title. In the case of a MH Loan purchased from a manufactured housing
dealer, the Seller purchased the MH Loan for fair value and took possession
thereof in the ordinary course of its business, without knowledge that the MH
Loan was subject to a security interest. Immediately prior to the transfer of
the MH Loan by the Seller to the Buyer under the terms of this Agreement, the
Seller had good and marketable title thereto free and clear of any encumbrance,
equity, loan, pledge, charge, claim or security interest and was the sole owner
thereof with full right to transfer the MH Loan to the Seller. With respect to
any MH Loan bearing a stamp indicating that such MH Loan has been sold to
another party, such other party's interest in such MH Loan has been released.
(q) No Defaults. There is no default, breach, violation or event permitting
acceleration existing under the MH Loan and no event which, with notice and the
expiration of any grace or cure period, would
constitute such a default, breach, violation or event permitting acceleration
under such MH Loan. The Seller has not waived any such default, breach,
violation or event permitting acceleration. The related Manufactured Home is
free of damage and is in good repair. No Manufactured Home has suffered damage
that is not covered by a hazard insurance policy, including, but not limited to,
hurricanes, earthquakes, floods, tornadoes, straight-line winds, sinkholes,
mudslides, volcanic eruptions and other natural disasters.
(r) Equal Installments. Each MH Loan has a fixed-rate Contract Rate which
provides for level monthly payments which fully amortize the loan over its term.
(s) WAC. The weighted average coupon of all MH Loans subject to Transactions is
not less than the WAC Sublimit Amount.
(t) Qualified Mortgage. The MH Loan represents a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. The Seller represents and warrants
that, either as of the date of origination or the Purchase Date, the fair market
value of the property securing each MH Loan was not less than 80% of the
"adjusted issue price" (within the meaning of the REMIC Provisions) of such MH
Loan.
(u) Land-and-Home Contracts: No MH Loan other than a Land-and-Home Contract is
secured, or intended to be secured, in whole or in part by the lien of a
mortgage or deed of trust creating a first lien on an estate in fee simple in
the real property.
(v) Financing of Real Property: No MH Loan other than a Land-and-Home Contract
has financed any amount in respect of real property.
(w) LTV. No MH Loan had a loan-to-value ratio at origination in excess of 100%.
The weighted average loan-to-value ratio at origination of all MH Loans subject
to Transactions is no greater than the WLTV Sublimit Amount.
(x) Customary Provisions. The Mortgage or Contract contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the collateral of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to a mortgagor
which would interfere with the right to sell the collateral at a trustee's sale
or the right to foreclose the Mortgage or Contract.
(y) Environmental Matters. With respect to each Land-and-Home Contract, the
mortgaged property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law, rule
or regulation.
(z) Soldiers and Sailors Civil Relief Act of 1940. The mortgagor has not
notified the Seller and the Seller has no knowledge of any relief requested or
allowed to the mortgagor under the Soldiers and Sailors Civil Relief Act of
1940.
(aa) No Predatory Lending. The originator of each MH Loan did not engage in
Predatory Lending Practices in connection with the origination of any MH Loan.
(bb) Homeownership and Equity Protection Act of 1994. No MH Loan is subject to
the Homeownership and Equity Protection Act of 1994.
(cc) No Fraud. No misrepresentation of a material fact or fraud with respect to
any MH Loan has taken place on the part of the applicable mortgagee or
mortgagor, and there was no fraud by the appraiser, any builder or developer, or
any other party involved in the origination of any such MH Loan.
(dd) Prepaid Finance Charge. When measured by the outstanding principal balance
of the MH Loans, the weighted average amount (expressed as a percentage of the
unpaid principal balance of the MH Loans at origination) of Financed Prepaid
Finance Charges does not exceed the WFPFC Sublimit Amount.
(ee) Remaining Term. No MH Loan has a remaining term to maturity in excess of
360 months.
(ff) Credit Score. The weighted average Fair ▇▇▇▇▇▇ credit score of the related
Obligors of all MH Loans subject to Transactions is not less than the WFICO
Sublimit Amount.
(gg) No Bulk Purchases. The acquisition by Origen of any MH Loan was not subject
to bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
(hh) SMMEA. The related Manufactured Home is a "manufactured home" within the
meaning of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, Section 5402(6). Each manufactured housing
dealer from whom the Servicer purchased such Contract, if any, was then approved
by the Servicer in accordance with the requirements of the Secretary of Housing
and Urban Development set forth in 24 CFR Section 201.27. At the origination of
each Contract, the Servicer was approved for insurance by the Secretary of
Housing and Urban Development pursuant to Section 2 of the National Housing Act.
EXHIBIT E
MONTHLY COMPLIANCE CERTIFICATION
I, ________________, ______________ of Origen Financial, inc. (the "Company"), a
____________________corporation, do hereby certify that:
(i) the Company is in compliance with all provisions and terms of the
Master Repurchase Agreement, dated______, 2001 (the "Repurchase Agreement"), by
and between Credit Suisse First Boston Mortgage Capital LLC ("Buyer") and Origen
Special Holdings Corporation ("Seller") and the Additional Supplemental Terms to
the Repurchase Agreement, dated as of______, 2001 (the "Additional Terms"), by
and between Seller and Buyer;
(ii) the Company's Tangible Net Worth is not less than $10,000,000
pursuant to Section 17(b)(xv) of the Additional Terms;
(iii) [ONLY IF ON OR FOLLOWING 12/31/01] the Total Liabilities to
Tangible Net Worth Ratio of the Company does not exceed 12:1. pursuant to
Section 17(b)(xv) of the Additional Terms;
(iv) The ratio of Company's current assets to current liabilities (each
as determined on a consolidated basis in accordance with GAAP) is not less than
1:1 pursuant to Section 17(b)(xv) of the Additional Terms;
[(v) [FOR EACH STATE IN WHICH A MH LOAN IS ORIGINATED] The Originator
of the MH Loans is qualified to do business in [STATE] or is exempt from
qualifying to do business in [STATE] based on advice dated_________;]
(vi) the Company has not modified, amended, supplemented or replaced
its underwriting guidelines in a manner that could reasonably be expected to
have a material adverse effect on the Market Value of the related Purchased
Securities, except with respect to any such modification, amendment, supplement
or replacement approved by Buyer in writing;
(vi) if the Company has modified, amended, supplemented or replaced its
underwriting guidelines, the Company has delivered an updated or revised copy of
its underwriting guidelines to the Buyer.
IN WITNESS WHEREOF, I have signed this certificate and affixed the seal
of the Company
Date:________,____
By:_________________________
Name:_______________________
[SEAL] Title:________________________
I, __________________, _________________ of the Company do hereby
certify that ____________________is the duly elected or appointed, qualified and
acting__________________ of the Company, and the signature set forth above is
the genuine signature of such officer in the date hereof.
By:_________________________
Name:_______________________
Title:________________________
EXHIBIT F
AUTHORIZED REPRESENTATIVES OF SELLER
Name Title
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Assistant Treasurer
▇▇▇▇▇▇ ▇▇▇▇▇ President
EXHIBIT G
FORM OF TRANSACTION NOTICE
Credit Suisse First Boston Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:____________________________
Transaction No._____
Ladies and Gentlemen:
The undersigned executes and delivers this notice ("Notice") pursuant
to the requirements of the Master Repurchase Agreement, dated as of May __,
2001, between Credit Suisse First Boston Mortgage Capital LLC ("Buyer") and
Origen Special Holdings Corporation ("Seller"), as amended by Annex I (the
"Repurchase Agreement"), in connection with the submission for sale thereunder
on__________, 200_ (the "Purchase Date") of the Purchased Securities identified
on the Loan Schedule each delivered herewith and the delivery of the related
Loan Files to Custodian pursuant to the Custody Agreement. All capitalized terms
used in this Notice without definition shall have the same meanings herein as
they have in the Repurchase Agreement or the Custody Agreement.
The Seller hereby represents and certifies to Buyer as follows:
1. As of this date, each of Seller, Origen or Guarantor is in
compliance with all of the terms and conditions of the Transaction
Documents. The Loan File as defined in the Custody Agreement is
complete and has been delivered to the Custodian.
2. Except as otherwise previously disclosed in writing to
Buyer, Seller's, Origen's and Guarantor's representations and
warranties set forth in the Repurchase Agreements and any other related
document are true and accurate as of the date of this Notice.
3. The Purchased Securities, which are identified on such
Computer Tape, satisfy the requirements of the eligibility set forth in
the Repurchase Agreement and Appendix A of the Custody Agreement..
4. Upon payment by Buyer of the Purchase Price in respect of
the Transaction involving the Purchased Securities, all of the right
(including the power to convey title thereto), title and interest in
and to each document constituting the Loan Files delivered to Custodian
or held by or on behalf of Seller with respect to each Purchased
Security, shall be transferred, assigned, set over and otherwise
conveyed to Buyer.
5. The general terms of the sale are:
A. Number of Purchased Securities:
B. Aggregate Outstanding Principal Balance of the Purchased Securities as
of the Purchase Date: ____________________
C. Purchase Date: ____________________
[D. IF DIFFERENT FROM REPURCHASE AGREEMENT][Pricing Rate
[LIBOR + ]]
[E. If servicing retained by third party servicer:
i) SERVICING AGREEMENT
ii) NAME OF SERVICER
iii) ADDRESS OF SERVICER
iv) CONTACT AND PHONE NUMBER OF SERVICER]
ORIGEN SPECIAL HOLDINGS
CORPORATION,
Seller
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ANNEX II
NAMES AND ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any and all legal notices and the Certificate of Compliance required to be
delivered pursuant to Paragraph II.(c) of Exhibit A must be sent to:
▇▇▇▇▇▇ ▇▇▇▇▇
Credit Suisse First Boston Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Credit Suisse First Boston Mortgage Capital LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ FINANCIAL SERVICES CORPORATION
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ORIGEN SPECIAL HOLDINGS CORPORATION
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ORIGEN FINANCIAL, INC.
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SCHEDULE 1
FORM OF CONFIRMATION
Origen Special Holdings Corporation
[Sellers Address]
Confirmation No.:
Gentlemen:
We have received your Transaction Notice attached hereto with respect to the MH
Loans listed in Appendix I hereto. This letter confirms our agreement to
purchase from you such MH Loans pursuant to the Master Repurchase Agreement
dated as of May 29, 2001. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Agreement.
Confirmation Date:
Purchased Securities:
Number of MH Loans:
Outstanding Principal Amount of MH Loans as of____________:
Purchase Date:
Purchase Price:
Pricing Rate:
Repurchase Date:
Percentage used to
determine Buyer's
Margin Amount:
Appraised Value of MH Loans (aggregate):
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
as Buyer
By:
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Name:
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Title:
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Acknowledged and Agreed to by:
ORIGEN SPECIAL HOLDINGS CORPORATION
By:
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Name:
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Title:
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