Exhibit 10.29
SEVENTH AMENDMENT TO
FIRST AMENDED AND RESTATED
WAREHOUSING CREDIT AND SECURITY AGREEMENT
SEVENTH AMENDMENT TO FIRST AMENDED AND RESTATED WAREHOUSING CREDIT AND SECURITY
AGREEMENT (this "Amendment") dated as of June 24, 2004, among Oak Street
Mortgage LLC, a Delaware limited liability company ("Oak Street LLC"), OAK
STREET MORTGAGE OF TENNESSEE LLC, a Tennessee limited liability company ("Oak
Street of TN"), OAK STREET MORTGAGE, INC., a Delaware corporation ("Oak Street
Inc.") (Oak Street LLC, Oak Street of TN and Oak Street Inc. are collectively
referred to as the "Borrower") and RESIDENTIAL FUNDING CORPORATION, a Delaware
corporation ("Lender").
A. Borrower and Lender have entered into a revolving mortgage warehousing
facility with a present Warehousing Commitment Amount of $200,000,000,
which is evidenced by a First Amended and Restated Warehousing
Promissory Note and a Sublimit Promissory Note, each dated August 31,
2002 (the "Notes"), and by a First Amended and Restated Warehousing
Credit and Security Agreement dated as of August 31, 2002 (as the same
may have been and may be amended or supplemented, the "Agreement").
B. Borrower has requested that Lender amend certain terms of the
Agreement, and Lender has agreed to the amendments, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, the parties to this Amendment agree as follows:
1. Subject to Borrower's satisfaction of the conditions set forth in
Section 6, the effective date of this Amendment is June 16, 2004
("Effective Date").
2. Unless otherwise defined in this Amendment, all capitalized terms have
the meanings given to those terms in the Agreement. Defined terms may
be used in the singular or the plural, as the context requires. The
words "include," "includes" and "including" are deemed to be followed
by the phrase "without limitation." Unless the context in which it is
used otherwise clearly requires, the word "or" has the inclusive
meaning represented by the phrase "and/or." References to Sections and
Exhibits are to Sections and Exhibits of this Amendment unless
otherwise expressly provided.
3. Article 12 of the Agreement is amended and restated in its entirety as
set forth in Article 12 attached to this Amendment. All references in
the Agreement and other Loan Documents to Article 12 (including each
and every Section in Article 12) are deemed to refer to the new Article
12.
4. Exhibit H to the Agreement is amended and restated in its entirety as
set forth in Exhibit H to this Amendment. All references in the
Agreement and the other Loan Documents to Exhibit H are deemed to refer
to the new Exhibit H.
5. In consideration of Lender's agreement to temporarily increase the
Warehousing Commitment Amount, Borrower must pay Lender an additional
fee in the amount of $2,000 ("Increase Fee").
6. Borrower must deliver to Lender (a) two executed copies of this
Amendment, (b) a $350 document production fee and (c) the Increase Fee.
7. Borrower represents, warrants and agrees that (a) there exists no
Default or Event of Default under the Loan Documents, (b) the Loan
Documents continue to be the legal, valid and binding agreements and
obligations of Borrower, enforceable in accordance with their terms, as
modified by this Amendment, (c) Lender is not in default under any of
the Loan Documents and Borrower has no offset or defense to its
performance or obligations under any of the Loan Documents, (d) except
for changes permitted by the terms of the Agreement, Borrower's
representations and warranties contained in the Loan Documents are
true, accurate and complete in all respects as of the Effective Date
and (e) there has been no material adverse change in Borrower's
financial condition from the date of the Agreement to the Effective
Date.
8. Except as expressly modified, the Agreement is unchanged and remains in
full force and effect, and Borrower ratifies and reaffirms all of its
obligations under the Agreement and the other Loan Documents.
9. This Amendment may be executed in any number of counterparts, each of
which will be deemed an original, but all of which shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to be duly
executed on their behalf by their duly authorized officers as of the day and
year above written.
OAK STREET MORTGAGE LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ Royal
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Its: Chief Financial Officer
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OAK STREET MORTGAGE OF TENNESSEE LLC,
a Tennessee limited liability company
By: /s/ ▇▇▇▇▇ Royal
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Its: Chief Financial Officer
---------------------------------
OAK STREET MORTGAGE, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ Royal
----------------------------------
Its: Chief Financial Officer
---------------------------------
Closing Date: July 12, 2004 RESIDENTIAL FUNDING CORPORATION,
(to be completed by Lender) a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Director
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12. DEFINITIONS
12.1. DEFINED TERMS
Capitalized terms defined below or elsewhere in this Agreement have the
following meanings or, as applicable, the meanings given to those terms in
Exhibits to this Agreement:
"Advance Rate" means, with respect to any Eligible Loan and REO Property, the
Advance Rate set forth in Exhibit H for that type of Eligible Loan or REO
Property.
"Affiliate" means, when used with reference to any Person, (a) each Person that,
directly or indirectly, controls, is controlled by or is under common control
with, the Person referred to, (b) each Person that beneficially owns or holds,
directly or indirectly, 5% or more of any class of voting Equity Interests of
the Person referred to, (c) each Person, 5% or more of the voting Equity
Interests of which is beneficially owned or held, directly or indirectly, by the
Person referred to, and (d) each of such Person's officers, directors, joint
venturers and partners. For these purposes, the term "control" (including the
terms "controlled by" and "under common control with") means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of the Person in question.
"Aged Mortgage Loans" means Mortgage Loans against which a Warehousing Advance
has been outstanding for longer than the Standard Warehouse Period, provided
that Aged Mortgage Loans are permitted for such type of Mortgage Loan.
"Aged Warehouse Period" means the maximum number of days a Warehouse Advance
against Aged Mortgage Loans of a particular type may remaining outstanding.
"Agency Security" means a Mortgage-backed Security issued or guaranteed by
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or ▇▇▇▇▇▇ Mae.
"Agreement" means this First Amended and Restated Warehousing Credit and
Security Agreement, either as originally executed or as it may be amended,
restated, renewed or replaced.
"Appraised Property Value" means with respect to an interest in real property,
the then current fair market value of the real property and any improvements on
it as of recent date determined in accordance with Title XI of FIRREA by a
qualified appraiser who is a member of the American Institute of Real Estate
Appraisers or other group of professional appraisers.
"Approved Custodian" means a pool custodian or other Person that Lender deems
acceptable, in its sole discretion, to hold Mortgage Loans for inclusion in a
Mortgage Pool or to hold Mortgage Loans as agent for an Investor that has issued
a Purchase Commitment for those Mortgage Loans.
"Audited Statement Date" means the date of Borrower's most recent audited
financial statements (and, if applicable, Borrower's Subsidiaries, on a
consolidated basis) delivered to Lender under the Existing Agreement or this
Agreement.
"Bank One" means Bank One, National Association, or any successor bank.
"Bank One Prime Rate" means, as of any date of determination, the highest prime
rate quoted by Bank One and most recently published by Bloomberg L.P. If the
prime rate for Bank One is not quoted or published for any period, then during
that period the term "Bank One Prime Rate"
means the highest prime rate published in the most recent edition of The Wall
Street Journal in its regular column entitled "Money Rates."
"Borrower" has the meaning set forth in the first paragraph of this Agreement.
"BPO Value" means, with respect to the improved real property securing any
Mortgage Loan, the lowest fair market value for such real property or ownership
interest and occupancy rights as set forth in an opinion of a real estate broker
acceptable to Lender, in its sole discretion, as to the value of such improved
real property if sold within a 60-day marketing period. Each such broker price
opinion must be obtained from a real estate broker with substantial experience
in the purchase and sale of similar properties in the geographic area in which
the real property or ownership interest and occupancy rights to be valued is
located and should be as of a date not more than 30 days prior to the date of
the related Advance.
"Business Day" means any day other than Saturday, Sunday or any other day on
which national banking associations are closed for business.
"Buydown" has the meaning set forth in Section 3.4.
"Calendar Quarter" means the 3 month period beginning on each January 1, April
1, July 1 or October 1.
"Cash Collateral Account" means a demand deposit account maintained at the
Funding Bank in Lender's name and designated for receipt of the proceeds of the
sale or other disposition of Collateral.
"Check Disbursement Account" means a demand deposit account maintained at the
Funding Bank in Borrower's name and under the control of Lender for clearing
checks written by Borrower to fund Mortgage Loans funded by Warehousing
Advances.
"Closing Date" has the meaning set forth in the Recitals to this Agreement.
"Collateral" has the meaning set forth in Section 4.1.
"Collateral Documents" means, with respect to each Mortgage Loan, (a) the
Mortgage Note, the Mortgage and all other documents including, if applicable,
any Security Agreement, executed in connection with or relating to the Mortgage
Loan; (b) as applicable, the original lender's ALTA Policy of Title Insurance or
its equivalent, documents evidencing the FHA Commitment to Insure, the VA
Guaranty or private mortgage insurance, the appraisal, the Regulation Z
statement, the environmental assessment, the engineering report, certificates of
casualty or hazard insurance, credit information on the maker of the Mortgage
Note, the HUD-1 or corresponding purchase advice; (c) any other document listed
in Exhibit B; and (d) any other document that is customarily desired for
inspection or transfer incidental to the purchase of any Mortgage Note by an
Investor or that is customarily executed by the seller of a Mortgage Note to an
Investor.
"Committed Purchase Price" means for an Eligible Loan (a) the dollar price as
set forth in the Purchase Commitment or, if the price is not expressed in
dollars, the product of the Mortgage Note Amount multiplied by the price
(expressed as a percentage) as set forth in the Purchase Commitment for the
Eligible Loan, or (b) if the Eligible Loan is to be used to back an Agency
Security, the dollar price as set forth in a Purchase Commitment or, if the
price is not expressed in dollars the product of the Mortgage Note Amount
multiplied by the price (expressed as a percentage) as set forth in the Purchase
Commitment for the Agency Security.
"Compliance Certificate" means a certificate executed on behalf of Borrower by
its manager having principal financial accounting responsibilities,
substantially in the form of Exhibit E.
"Credit Score" means a mortgagor's overall consumer credit rating, represented
by a single numeric credit score using the Fair, ▇▇▇▇▇ consumer credit scoring
system, provided by a credit repository acceptable to Lender and the Investor
that issued the Purchase Commitment covering the related Mortgage Loan (if a
Purchase Commitment is required by Exhibit H).
"Current Assets" means a Person's (and, if applicable, the Person's
Subsidiaries, on a consolidated basis) assets that in the regular course of
business will be readily and quickly realized, or converted into cash, all in
accordance with GAAP, within 1 year, together with those additional assets that
may readily be converted into cash without impairing the business of Borrower.
Current Assets include (a) cash, (b) temporary investments, (c) Mortgage Loans
and Mortgage-backed Securities held for sale (net of any loan loss reserves),
(d) accounts and accrued interest receivable (net of allowance for doubtful
accounts), (e) servicing advances made on behalf of mortgagors and (f) any other
assets that would be Current Assets in accordance with GAAP.
"Current Liabilities" means a Person's (and, if applicable, the Person's
Subsidiaries, on a consolidated basis) liabilities, or any portion of a Person's
liabilities, the maturity of which will not extend beyond 1 year from the date
of determination.
"Current Ratio" means the ratio of a Person's Current Assets to Current
Liabilities.
"Daily Outstanding Balances" has the meaning set forth in Section 3.11.
"Debt" means (a) all indebtedness or other obligations of a Person that, in
accordance with GAAP, would be included in determining total liabilities as
shown on the liabilities side of a balance sheet of the Person on the date of
determination, plus (b) all indebtedness or other obligations of the Person for
borrowed money or for the deferred purchase price of property or services, and
minus, (c) for purposes of calculating Borrower's Debt, all indebtedness or
other obligations of a Diversified Business that, in accordance with GAAP, would
be included in determining total liabilities as shown on the liabilities side of
a balance sheet of the Diversified Business on the date of determination. For
purposes of calculating a Person's Debt, Subordinated Debt not due within 1 year
of that date and deferred taxes arising from capitalized excess servicing fees
and capitalized servicing rights may be excluded from a Person's indebtedness.
"Default" means the occurrence of any event or existence of any condition that,
but for the giving of Notice or the lapse of time, would constitute an Event of
Default.
"Default Rate" means, for any Warehousing Advance, the Interest Rate applicable
to that Warehousing Advance plus 4% per annum. If no Interest Rate is applicable
to a Warehousing Advance, "Default Rate" means, for that Warehousing Advance,
the highest Interest Rate then applicable to any outstanding Warehousing Advance
plus 4% per annum.
"Depository Benefit" means the compensation received by Lender, directly or
indirectly, as a result of Borrower's maintenance of Eligible Balances with a
Designated Bank.
"Designated Bank" means any bank designated by Lender as a Designated Bank, but
only for as long as Lender has an agreement under which Lender receives
Depository Benefits from that bank.
"Designated Bank Charges" means any fees, interest or other charges that would
otherwise be payable to a Designated Bank in connection with Eligible Balances
maintained at the Designated Bank, including deposit insurance premiums, service
charges and any other charges that may be imposed by governmental authorities
from time to time.
"Discontinued Loan" has the meaning set forth in the GMAC-RFC Client Guide.
"Diversified Business" means each Subsidiary or Affiliate of Borrower listed on
Exhibit K to this Agreement, including H&K Collections, LLC and Oak Street
Funding LLC, and any other Subsidiary, Affiliate, investment or asset not
engaged in or supporting Borrower's mortgage banking business.
"Earnings Allowance" has the meaning set forth in Section 3.1(b).
"Earnings Credit" has the meaning set forth in Section 3.1(b).
"Electronic Advance Request" means an electronic transmission through RFConnects
Delivery containing the same information as Exhibit A to this Agreement.
"Electronic Tracking Agreement" means an Electronic Tracking Agreement, on the
form prescribed by Lender, among Borrower, Lender, MERS and MERCORP, Inc.,
pursuant to which Lender will have the authority to, among other things,
withdraw a Mortgage from the MERS system, if either the Mortgage Loan has been
registered on the MERS system naming Borrower as servicer or subservicer, or the
Mortgage Loan has not yet been registered on the MERS system.
"Eligible Balances" means all funds of or maintained by Borrower (and, if
applicable, Borrower's Subsidiaries) in demand deposit or time deposit accounts
at a Designated Bank, minus balances to support float, reserve requirements and
any other reductions that may be imposed by governmental authorities from time
to time.
"Eligible Loan" means a Single Family Mortgage Loan that satisfies the
conditions and requirements set forth in Exhibit H.
"Eligible Mortgage Pool" means a Mortgage Pool for which (a) an Approved
Custodian has issued its initial certification, (b) there exists a Purchase
Commitment covering the Agency Security to be issued on the basis of that
certification and (c) the Agency Security will be delivered to Lender.
"Equity Interests" means all shares, interests, participations or other
equivalents, however, designated, of or in a Person (other than a natural
person), whether or not voting, including common stock, membership interests,
warrants, preferred stock, convertible debentures and all agreements,
instruments and documents convertible, in whole or in part, into any one or more
of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974 and all rules
and regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"ERISA Affiliate" means any trade or business (whether or not incorporated) that
is a member of a group of which Borrower is a member and that is treated as a
single employer under Section 414 of the Internal Revenue Code.
"Event of Default" means any of the conditions or events set forth in Section
10.1.
"Excess Buydown" has the meaning set forth in Section 3.4.
"Excess Usage Day" has the meaning set forth in Section 3.11.
"Excess Usage Fee" has the meaning set forth in Section 3.11.
"Exchange Act" means the Securities Exchange Act of 1934 and all rules and
regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"Exhibit B" means Exhibit B-SF or Exhibit B-REP/NP/REO, as applicable to the
type of Eligible Loan or REO Property against which a Warehousing Advance is to
be made.
"Existing Agreement" means the Warehousing Credit and Security Agreement dated
as of June 30, 2000, as amended, between Oak Street Mortgage LLC f/k/a Cresleigh
Financial Services LLC and Lender.
"Fair Market Value" means, at any time for an Eligible Loan or a related Agency
Security (if the Eligible Loan is to be used to back an Agency Security) as of
any date of determination, (a) the Committed Purchase Price if the Eligible Loan
is covered by a Purchase Commitment from ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac or the
Eligible Loan is to be exchanged for an Agency Security and that Agency Security
is covered by a Purchase Commitment from an Investor, or (b) otherwise, the
market price for such Eligible Loan or Agency Security, determined by Lender
based on market data for similar Mortgage Loans or Agency Securities and such
other criteria as Lender deems appropriate in its sole discretion.
"▇▇▇▇▇▇ Mae" means ▇▇▇▇▇▇ ▇▇▇, a corporation created under the laws of the
United States, and any successor corporation or other entity.
"FHA" means the Federal Housing Administration and any successor agency or other
entity.
"FICA" means the Federal Insurance Contributions Act and all rules and
regulations promulgated under that statute, as amended, and any successor
statute, rules and regulations.
"FIRREA" means the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 and all rules and regulations promulgated under that statute, as
amended, and any successor statute, rules, and regulations.
"First Mortgage" means a Mortgage that constitutes a first Lien on the real
property covered by the Mortgage.
"First Mortgage Loan" means a Mortgage Loan secured by a First Mortgage.
"▇▇▇▇▇▇▇ Mac" means ▇▇▇▇▇▇▇ Mac, a corporation created under the laws of the
United States, and any successor corporation or other entity.
"Funding Bank" means Bank One or any other bank designated by Lender as a
Funding Bank.
"Funding Bank Agreement" means a letter agreement on the form prescribed by
Lender between the Funding Bank and Borrower authorizing Lender's access to the
Operating Account and the Check Disbursement Account.
"GAAP" means generally accepted accounting principles set forth in opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and in statements and pronouncements of the
Financial Accounting Standards Board, or in opinions, statements or
pronouncements of any other entity approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date
of determination.
"Gestation Agreement" means an agreement under which Borrower agrees to sell or
finance (a) a Mortgage Loan prior to the date of purchase by an Investor or (b)
a Mortgage Pool prior to the date a Mortgage-backed Security backed by the
Mortgage Pool is issued.
"▇▇▇▇▇▇ Mae" means the Government National Mortgage Association, an agency of
the United States government, and any successor agency or other entity.
"GMAC-RFC Client Guide" means the applicable loan purchase guide issued by
Lender, as the same may be amended or replaced.
"Government Mortgage Loan" means a closed-end First Mortgage Loan that is either
HUD/FHA insured (other than a HUD 203(K) Mortgage Loan or a Title I Mortgage
Loan) or VA guaranteed.
"Hedging Arrangements" means, with respect to any Person, any agreements or
other arrangements (including interest rate swap agreements, interest rate cap
agreements and forward sale agreements) entered into to protect that Person
against changes in interest rates or the market value of assets.
"High LTV Mortgage Loan" has the meaning set forth in Exhibit H.
"HUD" means the Department of Housing and Urban Development, and any successor
agency or other entity.
"Indemnified Liabilities" has the meaning set forth in Section 11.2.
"Indemnitees" has the meaning set forth in Section 11.2.
"Interest Rate" means, for any Warehousing Advance, the floating rate of
interest specified for that Warehousing Advance in Exhibit H.
"Interim Statement Date" means the date of the most recent unaudited financial
statements of Borrower (and, if applicable, Borrower's Subsidiaries, on a
consolidated basis) delivered to Lender under the Existing Agreement or this
Agreement.
"Internal Revenue Code" means the Internal Revenue Code of 1986, Title 26 of the
United States Code, and all rules, regulations and interpretations issued under
those statutory provisions, as amended, and any subsequent or successor federal
income tax law or laws, rules, regulations and interpretations.
"Investment Company Act" means the Investment Company Act of 1940 and all rules
and regulations promulgated under that statute, as amended, and any successor
statute, rules, and regulations.
"Investor" means ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ Mac or a financially responsible private
institution that Lender deems acceptable, in its sole discretion, to issue
Purchase Commitments with respect to a particular category of Eligible Loans.
"Lender" has the meaning set forth in the first paragraph of this Agreement.
"Leverage Ratio" means the ratio of a Person's (and, if applicable, the Person's
Subsidiaries, on a consolidated basis) Debt to Tangible Net Worth. For purposes
of calculating a Person's Leverage Ratio, Debt arising under Hedging
Arrangements, to the extent of assets arising under those Hedging Arrangements,
may be excluded from a Person's Debt.
"LIBOR" means, for each week, the rate of interest per annum that is equal to
the arithmetic mean of the U.S. Dollar London Interbank Offered Rates for 1
month periods of certain U.S. banks as of 11:00 a.m. (London time) on the first
Business Day of each week on which the London Interbank market is open, as
published by Bloomberg L.P. If those interest rates are not offered or published
for any period, then during that period LIBOR means the London Interbank
Offered Rate for 1 month periods as published in The Wall Street Journal in its
regular column entitled "Money Rates" on the first Business Day of each week on
which the London Interbank market is open.
"Lien" means any lien, mortgage, deed of trust, pledge, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature of such an agreement and any
agreement to give any security interest).
"Liquid Assets" means the following assets owned by a Person (and, if
applicable, that Person's Subsidiaries, on a consolidated basis) as of any date
of determination: (a) unrestricted and unencumbered cash, (b) funds on deposit
in accounts with any bank located in the United States (net of the aggregate
amount payable under all outstanding and unpaid checks, drafts and similar items
drawn by a Person against those accounts), (c) investment grade commercial
paper, (d) money market funds and (e) marketable securities, plus, in the case
of Borrower and in the absence of a Default or Event of Default, (f) the amount
of any Buydowns and Excess Buydowns.
"Loan Documents" means this Agreement, the Warehousing Note, the Sublimit Note,
any agreement of Borrower relating to Subordinated Debt, any Security Agreement,
if applicable, and each other document, instrument or agreement executed by
Borrower in connection with any of those documents, instruments and agreements,
as originally executed or as any of the same may be amended, restated, renewed
or replaced.
"Loan Package Fee" has the meaning set forth in Section 3.5.
"Loan-to-Value Ratio" means, for any Mortgage Loan, the ratio of (a) the maximum
amount that may be borrowed under the Mortgage Loan (whether or not borrowed) at
the time of origination, plus the Mortgage Note Amounts of all other Mortgage
Loans secured by the related Property, to (b) the Appraised Property Value of
the related Property.
"Manufactured Home" means a structure that is built on a permanent chassis
(steel frame) with the wheel assembly necessary for transportation in one or
more sections to a permanent site or semi-permanent site.
"Margin Stock" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System, as amended.
"MERS" means Mortgage Electronic Registrations Systems, Inc. and any successor
entity.
"Miscellaneous Fees and Charges" means the miscellaneous fees set forth on
Lender's collateral operations fees schedule (either as originally delivered to
Borrower or as it may be amended, restated, renewed or replaced after the date
of this Agreement) and all miscellaneous disbursements, charges and expenses
incurred by or on behalf of Lender for the handling and administration of
Warehousing Advances and Collateral, including costs for Uniform Commercial
Code, tax lien and judgment searches conducted by Lender, filing fees, charges
for wire transfers and check processing charges, charges for security delivery
fees, charges for overnight delivery of Collateral to Investors, recording fees
for REO Mortgages, Funding Bank service fees and overdraft charges and
Designated Bank Charges.
"Mortgage" means a mortgage or deed of trust on real property that is improved
and substantially completed (including real property to which a Manufactured
Home has been affixed in a manner such that the Lien of a mortgage or deed of
trust would attach to the Manufactured Home under applicable real property law).
"Mortgage-backed Securities" means securities that are secured or otherwise
backed by Mortgage Loans.
"Mortgage Loan" means any loan evidenced by a Mortgage Note and secured by a
Mortgage and, if applicable, a Security Agreement.
"Mortgage Note" means a promissory note secured by one or more Mortgages and, if
applicable, one or more Security Agreements.
"Mortgage Note Amount" means, as of any date of determination, the then
outstanding and unpaid principal amount of a Mortgage Note (whether or not an
additional amount is available to be drawn under that Mortgage Note).
"Mortgage Pool" means a pool of one or more Pledged Loans on the basis of which
a Mortgage-backed Security is to be issued.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA, to which either Borrower or any ERISA Affiliate of Borrower
has any obligation with respect to its employees.
"Non-Usage Fee" has the meaning set forth in Section 3.6.
"Notices" has the meaning set forth in Section 11.1.
"Obligations" means all indebtedness, obligations and liabilities of Borrower to
Lender and Lender's Subsidiaries (whether now existing or arising after the date
of this Agreement, voluntary or involuntary, joint or several, direct or
indirect, absolute or contingent, liquidated or unliquidated, or decreased or
extinguished and later increased and however created or incurred), including
Borrower's obligations and liabilities to Lender under the Loan Documents and
disbursements made by Lender for Borrower's account.
"Operating Account" means a demand deposit account maintained at the Funding
Bank in Borrower's name and designated for funding that portion of each Eligible
Loan or REO Property not funded by a Warehousing Advance made against that
Eligible Loan or REO Property and for returning any excess payment from an
Investor for a Pledged Loan or Pledged Security.
"Overdraft Advance" has the meaning set forth in Section 3.9.
"Participant" has the meaning set forth in Section 11.8.
"Person" means and includes natural persons, corporations, limited liability
companies, limited liability partnerships, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions of those governments.
"Plan" means each employee benefit plan (whether in existence on the date of
this Agreement or established after that date), as that term is defined in
Section 3 of ERISA, maintained for the benefit of directors, officers or
employees of Borrower or any ERISA Affiliate.
"Pledged Assets" means, collectively, Pledged Loans, Pledged Securities and REO
Properties.
"Pledged Hedging Accounts" has the meaning set forth in Section 4.1 (i).
"Pledged Hedging Arrangements" has the meaning set forth in Section 4.1 (i).
"Pledged Loans" has the meaning set forth in Section 4.1 (b).
"Pledged Securities" has the meaning set forth in Section 4.1 (c).
"Prime Mortgage Loan" has the meaning set forth in Exhibit H.
"Prohibited Transaction" has the meanings set forth for such term in Section
4975 of the Internal Revenue Code and Section 406 of ERISA.
"Purchase Commitment" means a written commitment, in form and substance
satisfactory to Lender, issued in favor of Borrower by an Investor under which
that Investor commits to purchase Mortgage Loans or Mortgage-backed Securities.
"Receivables" has the meaning set forth in Section 4.1(e).
"Release Amount" has the meaning set forth in Section 4.3 (f).
"REO Mortgage" means a First Mortgage in form and substance approved by Lender
covering an REO Property which has been executed and delivered by Borrower for
the benefit of Lender.
"REO Property" has the meaning set forth in Exhibit H.
"Repurchased Mortgage Loan" has the meaning set forth in Exhibit H.
"RFC Mortgage Loan" means a Mortgage Loan covered by a Purchase Commitment
issued by Lender.
"RFConnects Delivery" means Lender's proprietary service to support the
electronic exchange of information between Lender and Borrower, including
Advance Requests, shipping requests, payoff requests, activity reports and
exception reports.
"RFConnects Pledge Agreement" means an agreement (on the then current form
prescribed by Lender) granting Lender a security interest in Mortgage Loans for
which Borrower has requested Warehousing Advances using RFConnects Delivery.
"Second Mortgage" means a Mortgage that constitutes a second Lien on the
property covered by the Mortgage.
"Second Mortgage Loan" means a Mortgage Loan secured by a Second Mortgage.
"Security Agreement" means a security agreement or other agreement that creates
a Lien on personal property, including furniture, fixtures and equipment, to
secure repayment of a Mortgage Loan.
"Servicing Contract" means, with respect to any Person, the arrangement, whether
or not in writing, under which that Person has the right to service Mortgage
Loans.
"Servicing Portfolio" means, as to any Person, the unpaid principal balance of
Mortgage Loans serviced by that Person under Servicing Contracts, minus the
principal balance of all Mortgage Loans that are serviced by that Person for
others under subservicing arrangements.
"Single Family Mortgage Loan" means a Mortgage Loan secured by a Mortgage on
improved real property on which is located a 1-to-4 family residence.
"Standard Warehouse Period" means, for any Mortgage Loan or REO Property, the
maximum number of days a Warehousing Advance against that type of Mortgage Loan
or REO Property, other than against an Aged Mortgage Loan, may remain
outstanding, as set forth in Exhibit H.
"Statement Date" means the Audited Statement Date or the Interim Statement Date,
as applicable.
"Sublimit" means the aggregate amount of Warehousing Advances (expressed as a
dollar amount or as a percentage of the Warehousing Commitment Amount) that is
permitted to be outstanding at any one time against a specific type of Eligible
Loan or REO Property.
"Sublimit Note" has the meaning set forth in Section 1.3.
"Subordinated Debt" means (a) all indebtedness of Borrower for borrowed money
that is effectively subordinated in right of payment to all present and future
Obligations either (1) under a Subordination of Debt Agreement on the form
prescribed by Lender or (2) otherwise on terms acceptable to Lender, and (b)
solely for purposes of Section 8.5, all indebtedness of Borrower that is
required to be subordinated by Sections 5.1 (b) and 7.11.
"Subprime Mortgage Loan" has the meaning set forth in Exhibit H.
"Subsidiary" means any corporation, partnership, association or other business
entity in which more than 50% of the shares of stock or other ownership
interests having voting power for the election of directors, managers, trustees
or other Persons performing similar functions is at the time owned or controlled
by any Person either directly or indirectly through one or more Subsidiaries of
that Person.
"Tangible Net Worth" means the excess of a Person's (and, if applicable, the
Person's Subsidiaries, on a consolidated basis) total assets over total
liabilities as of the date of determination, each determined in accordance with
GAAP, applied in a manner consistent with the most recent audited financial
statements delivered to Lender under the Existing Agreement, plus that portion
of Subordinated Debt not due within 1 year of that date. For purposes of
calculating a Person's Tangible Net Worth, advances or loans to managers,
members, employees or Affiliates, investments in Affiliates, assets pledged to
secure any liabilities not included in the Debt of the Person, intangible
assets, those other assets that would be deemed by HUD to be non-acceptable in
calculating adjusted net worth in accordance with its requirements in effect as
of that date, as those requirements appear "Consolidated Audit Guide for Audits
of HUD Programs," other assets Lender deems unacceptable, in its sole
discretion, and, for purposes of calculating Borrower's Tangible Net Worth, an
amount equal to the book net worth of each Diversified Business, must be
excluded from a Person's total assets.
"Third Party Originated Loan" means a Mortgage Loan originated and funded by a
third party (other than with funds provided by Borrower at closing to purchase
the Mortgage Loan) and subsequently purchased by Borrower.
"Trust Receipt" means a trust receipt in a form approved by and under which
Lender may deliver any document relating to the Collateral to Borrower for
correction or completion.
"Usage Target" has the meaning set forth in Section 3.11.
"Unused Portion" has the meaning set forth in Section 3.6.
"Used Portion" has the meaning set forth in Section 3.6.
"Warehousing Advance" means a disbursement by Lender to fund the origination or
acquisition of a Mortgage Loan.
"Warehousing Advance Request" has the meaning set forth in Section 2.1.
"Warehousing Collateral Value" means, as of any date of determination, (a) with
respect to any Eligible Loan or REO Property, the lesser of (1) the amount of
any Warehousing Advance made, or that could be made, against such Eligible Loan
or REO Property under Exhibit H or (2) an amount equal to the Advance Rate for
the applicable type of Eligible Loan or REO Property multiplied by the Fair
Market Value of such Eligible Loan or REO Property; (b) if Eligible Loans or REO
Properties have been exchanged for Agency Securities, the lesser of (1) the
amount of any Warehousing Advances outstanding against the Eligible Loans or REO
Properties backing the Agency Securities or (2) an amount equal to the Advance
Rates for the applicable types of Eligible Loans backing the Agency Securities
multiplied by the Fair Market Value of the Agency Securities; and (c) with
respect to cash, the amount of the cash.
"Warehousing Commitment" means the obligation of Lender to make Warehousing
Advances to Borrower under Section 1.1.
"Warehousing Commitment Amount" means $200,000,000. Notwithstanding the
foregoing, (a) during the period from June 16, 2004, through June 24, 2004, the
Warehousing Commitment Amount will be temporarily increased to $205,000,000 and
(b) during the period from June 25, 2004, through July 25, 2004, the Warehousing
Commitment Amount will be temporarily increased to $250,000,000. On the first
Business Day following the expiration of the temporary increase of the
Warehousing Commitment Amount, Borrower will repay to Lender the amount by which
the outstanding Warehousing Advances exceed the Warehousing Commitment Amount.
"Warehousing Commitment Fee" has the meaning set forth in Section 3.5.
"Warehousing Fee" has the meaning set forth in Section 3.7.
"Warehousing Maturity Date" has the meaning set forth in Section 1.2.
"Warehousing Note" has the meaning set forth in Section 1.3.
"Wet Settlement Advance" means with respect to any Warehousing Advance, the time
from the date the Warehousing Advance is made until the date of Lender's receipt
of the Collateral Documents required by Article 2 and the Exhibits and documents
referenced in that Article.
"Wire Disbursement Account" means a demand deposit account maintained at the
Funding Bank in Lender's name for clearing wire transfers requested by Borrower
to fund Warehousing Advances.
"Wire Fee" has the meaning set forth in Section 3.7.
12.2. OTHER DEFINITIONAL PROVISIONS; TERMS OF CONSTRUCTION
12.2 (a) Accounting terms not otherwise defined in this Agreement have the
meanings given to those terms under GAAP.
12.2 (b) Defined terms may be used in the singular or the plural, as the context
requires.
12.2 (c) All references to time of day mean the then applicable time in Chicago,
Illinois, unless otherwise expressly provided.
12.2 (d) References to Sections, Exhibits, Schedules and like references are to
Sections, Exhibits, Schedules and the like of this Agreement unless
otherwise expressly provided.
12.2 (e) The words "include," "includes" and "including" are deemed to be
followed by the phrase "without limitation."
12.2 (f) Unless the context in which it is used otherwise clearly requires, the
word "or" has the inclusive meaning represented by the phrase "and/or."
12.2 (g) All incorporations by reference of provisions from other agreements are
incorporated as if such provisions were fully set forth into this
Agreement, and include all necessary definitions and related provisions
from those other agreements. All provisions from other agreements
incorporated into this Agreement by reference survive any termination
of those other agreements until the Obligations of Borrower under this
Agreement, the Warehousing Note and the Sublimit Note are irrevocably
paid in full and the Warehousing Commitment is terminated.
12.2 (h) All references to the Uniform Commercial Code shall be deemed to be
references to the Uniform Commercial Code in effect on the date of this
Agreement in the applicable jurisdiction.
12.2 (i) Unless the context in which it is used otherwise clearly requires, all
references to days, weeks and months mean calendar days, weeks and
months.
END OF ARTICLE 12
EXHIBIT H
ELIGIBLE LOANS AND OTHER ASSETS
Oak Street Mortgage LLC
Oak Street Mortgage, Inc.
Oak Street Mortgage of Tennessee LLC
LIMITATIONS ON WAREHOUSING ADVANCES AGAINST MORTGAGE LOANS
Lender's obligation to make Warehousing Advances under the Agreement is subject
to the following limitations:
1. No Warehousing Advance will be made against any Mortgage Loan
that has been previously sold or pledged to obtain financing
(whether or not such financing constitutes Debt) under another
warehousing financing arrangement or a gestation agreement.
2. No Warehousing Advance will be made against any Mortgage Loan
that Lender believes may be based on untrue, incomplete or
inaccurate or fraudulent information or may otherwise be
subject to fraud.
3. No Warehousing Advance will be made against a Mortgage Loan if
any of the limitations set forth in this Exhibit H would be
exceeded after giving effect to the Warehousing Advance.
4. No Warehousing Advance will be made against a Mortgage Loan
with an original principal balance in excess of $2,000,000.
5. No Warehousing Advance will be made against a Third Party
Originated Loan that was closed more than 45 days prior to the
date on which the requested Warehousing Advance is to be made.
SUBLIMITS
These general limitations apply to all Warehousing Advances against Eligible
Loans:
1. Wet Settlement Advances: 40% of the Warehousing
Commitment Amount.
2. Third Party Originated Loans: $25,000,000 (Wet
Settlement Advances not
permitted)
ELIGIBLE LOANS AND TERMS OF WAREHOUSING ADVANCES
Subject to compliance with the terms and limitations set forth below and the
terms, representations and warranties and the covenants in the Agreement, each
of the following Mortgage Loans is an Eligible Loan for purposes of the
Agreement:
1. PRIME MORTGAGE LOAN
(a) Definition: A First Mortgage Loan or a Second Mortgage Loan with the
following characteristics:
(i) For a First Mortgage Loan:
A. Underwritten substantially in accordance with ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇▇
Mac underwriting standards (except as to maximum amount); and
B. Loan-to-Value Ratio not to exceed 80% or, if the Loan-to-Value Ratio
exceeds 80%, the Prime Mortgage Loan is insured by or subject to a
commitment for mortgage insurance in an amount and on terms and
conditions that satisfy the underwriting standards of ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac; or
C. A Government Mortgage Loan.
(ii) For a Second Mortgage Loan:
A. The credit of the obligor has been underwritten substantially in
accordance with ▇▇▇▇▇▇ Mae or ▇▇▇▇▇▇▇ Mac underwriting standards; and
B. Loan-to-Value Ratio not more than 100%.
(b) Interest Rate:
(i) Other Mortgage Loans: [***] over LIBOR
(ii) Aged Mortgage Loans: [***] over LIBOR
(c) Prime Sublimit: $24,000,000
(i) First Mortgage Loan: $24,000,000
(ii) Second Mortgage Loan: $12,000,000
(iii) Aged Mortgage Loans: $ 600,000
(d) Committed/Uncommitted:
(i) First Mortgage Loans: Purchase Commitment required
(ii) Second Mortgage Loans: Purchase Commitment NOT required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Permitted for First Mortgage Loans only
(g) Committed Advance Rate:
(i) First Mortgage Loan: [***] of the lesser of (i) the Mortgage
Note Amount or (ii) the Committed
Purchase Price
(ii) RFC Mortgage Loan: [***] of the lesser of (i) of the
Mortgage Note Amount or (ii) the
Committed Purchase Price
(h) Uncommitted Advance Rate: [***] of the Mortgage Note Amount
(i) Standard Warehouse Period: 90 days
(j) Aged Warehouse Period: 120 days
(k) Required Prepayments: All Mortgage Loans in warehouse 45 days will
be reduced by [***] of the Mortgage Note
Amount.
On the day a Pledged Loan becomes an Aged
Mortgage Loan, the Warehousing Advance
against such Pledged Loan must be (a) repaid
in full, to the extent the Aged Mortgage
Loan Sublimit would be exceeded, or (b)
otherwise, reduced by [***] of the Mortgage
Note Amount.
2. SUBPRIME MORTGAGE LOAN
(a) Definition: A First Mortgage Loan or Second Mortgage Loan that has a risk
rating of "A-," "B" or "C" (determined using underwriting standards that comply
with industry standards in the sole judgment of Lender), and that is acceptable
for purchase by at least two Investors.
(b) Interest Rate:
(i) Other Mortgage Loans: [***]over LIBOR
(ii)Aged Mortgage Loans: [***]over LIBOR
(c) Subprime Sublimit: (A) from June 16, 2004, to and including
June 24, 2004, $205,000,000, (B) from June
25, 2004, to and including July 2, 2004,
$250,000,000, and (C) thereafter,
$200,000,000
(i) First Mortgage Loan: (A) from June 16, 2004, to and including
June 24, 2004, $205,000,000, (B) from June
25, 2004, to and including July 2, 2004,
$250,000,000, and (C) thereafter,
$200,000,000
(ii) Second Mortgage Loan: $40,000,000
(iii) Aged Mortgage Loans: $10,000,000
(d) Committed/Uncommitted: Purchase Commitment NOT required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Permitted for First Mortgage Loans only
(g) Committed Advance Rate:
(i) RFC Mortgage Loan: [***] of the lesser of (i) of the Mortgage
Note Amount or (ii) the Committed Purchase
Price
(h) Uncommitted Advance Rate:
(i) First Mortgage Loan: [***] of the Mortgage Note Amount
(ii) Second Mortgage Loan: [***] of the Mortgage Note Amount
(i) Standard Warehouse Period: 90 days
(j) Aged Warehouse Period: 180 days
(k) Required Prepayments: All Mortgage Loans in warehouse 45 days
will be reduced [***] by of the Mortgage
Note Amount.
On the day a Pledged Loan becomes an Aged
Mortgage Loan, the Warehousing Advance
against such Pledged Loan must be (a)
repaid in full, to the extent the Aged
Mortgage Loan Sublimit would be exceeded,
or (b) otherwise, reduced by [***] of the
Mortgage Note Amount. Thereafter, the
Warehousing Advance must be reduced by
[***] of the Mortgage Note Amount.
3. HIGH LTV MORTGAGE LOAN
(a) Definition: A Second Mortgage Loan that meets the 125 Loan Program
eligibility criteria set forth in the GMAC-RFC Client Guide and for which an
AssetWise Certificate has been issued, and a First Mortgage Loan that meets the
Home Solution Program eligibility criteria set forth in the GMAC-RFC Client
Guide and for which an AssetWise Certificate has been issued.
(b) Interest Rate: [***]
(c) High LTV Sublimit: $1,000,000
(d) Committed/Uncommitted: Purchase Commitment from Lender required
(e) Wet Settlement Advances: Permitted
(f) Aged Mortgage Loans: Not Permitted
(g) Committed Advance Rate:
(i) First Mortgage Loan: [***] of the lesser of (i) of the Mortgage
Note Amount or (ii) the Committed Purchase
Price
(ii)Second Mortgage Loan: [***] of the lesser of (i) of the Mortgage
Note Amount or (ii) the Committed Purchase
Price
(h) Standard Warehouse Period: 45 days
4. REPURCHASED MORTGAGE LOAN/NONPERFORMING MORTGAGE LOAN/REO PROPERTY
(a) Definitions:
Repurchased Mortgage Loan: A Mortgage Loan that has been
repurchased from an Investor or a Mortgage Pool pursuant to a
Servicing Contract.
Nonperforming Mortgage Loan: A First Mortgage Loan or a Second
Mortgage Loan that is not a High LTV Mortgage Loan and (i) is
in the process of foreclosure, (ii) is 60 days or more
delinquent or (iii) with respect to which the Warehousing
Period has expired.
REO Property: An improved real property containing a 1- to
4-family residence, which property is owned by Borrower as the
result of a foreclosure proceeding or the acceptance of a deed
in lieu of foreclosure, or has been purchased from an Investor
to satisfy a repurchase obligation of Borrower to the
Investor.
(b) Interest Rate: [***] over LIBOR
(c) Sublimit: $2,400,000
(d) Committed/Uncommitted: Purchase Commitment
NOT required
(e) Wet Settlement Advances: Not Permitted
(f) Aged Mortgage Loans: Not Permitted
(g) Advance Rate for Repurchased and [***] of the lesser of
Nonperforming Mortgage Loans: (i) Lender's initial
Warehousing Advance, (ii)
the unpaid principal
balance, (iii) the
repurchase price, or (iv)
the Appraised Property
Value or BPO Value
(h) Advance Rate for REO Property: The lesser of (i)[***]
Lender's initial
Warehousing Advance or
(ii) [***] of the
Appraised Property Value
or BPO Value
(i) Standard Warehouse Period: 365 days
(j) Required Prepayments for Repurchased [***] of the Mortgage
and Nonperforming Mortgage Loans: Note Amount, paid each
month occurring more than
90 days after the date of
the Warehousing Advance
(k) Required Prepayments for REO [***] of the initial
Property: Warehousing Advance
against an REO Property
paid each month occurring
more than 90 days after
the date of the
Warehousing Advance
