EXHIBIT 10.6
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MASTER REPURCHASE AGREEMENT
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as buyer
("Buyer", which term shall include any "Principal"
as defined and provided for in Annex I) or as agent pursuant hereto ("Agent"),
and
United Financial Mortgage Corp., as seller ("Seller")
Dated August 29, 2001
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TABLE OF CONTENTS
Page
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1. Applicability........................................... 1
2. Definitions............................................. 1
3. Program; Initiation of Transactions..................... 17
4. Repurchase.............................................. 19
5. Price Differential...................................... 20
6. Margin Maintenance...................................... 20
7. Income Payments......................................... 20
8. Security Interest....................................... 21
9. Payment and Transfer.................................... 22
10. Conditions Precedent.................................... 22
11. Program; Costs.......................................... 25
12. Servicing............................................... 25
13. Representations and Warranties.......................... 26
14. Covenants............................................... 31
15. Events of Default....................................... 35
16. Remedies Upon Default................................... 37
17. Reports................................................. 39
18. Repurchase Transactions................................. 41
19. Single Agreement........................................ 41
20. Notices and Other Communications........................ 42
21. Entire Agreement; Severability.......................... 43
22. Non assignability....................................... 43
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23. Set-off................................................. 44
24. Binding Effect; Governing Law; Jurisdiction............. 44
25. No Waivers, Etc......................................... 44
26. Intent.................................................. 45
27. Disclosure Relating to Certain Federal Protections...... 45
28. Power of Attorney....................................... 46
29. Buyer May Act Through Affiliates........................ 46
30. Indemnification; Obligations............................ 46
31. Counterparts............................................ 47
32. Confidentiality......................................... 47
33. Recording of Communications............................. 47
34. Non-Utilization Fee..................................... 47
35. Periodic Due Diligence Review........................... 47
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SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased Mortgage
Loans
ANNEXES
Annex I - Buyer Acting as Agent
Annex II - Non-Utilization Fee Formula
EXHIBITS
Exhibit A - Form of Transaction Request
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Mortgage Loan Schedule and Exception Report
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - [Reserved]
Exhibit F - Form of Opinion of Seller's counsel
Exhibit H - Authorized Signatories of Seller
Exhibit I - Corporate Resolutions of Seller
Exhibit J - Seller's Tax Identification Number
Exhibit K - Existing Indebtedness
Exhibit L - Wet-Ink Procedures
Exhibit M - Escrow Instruction Letter
Exhibit N - Custodial and Bank Fee Schedule
Exhibit O - Form of Security Release
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1. APPLICABILITY
From time to time the parties hereto may enter into
transactions in which Seller agrees to transfer to Buyer Mortgage Loans (as
hereinafter defined) against the transfer of funds by Buyer, with a simultaneous
agreement by Buyer to transfer to Seller such Mortgage Loans at a date certain
or on demand, against the transfer of funds by Seller. Each such transaction
shall be referred to herein as a "Transaction" and, unless otherwise agreed in
writing, shall be governed by this Agreement, including any supplemental terms
or conditions contained in any annexes identified herein, as applicable
hereunder.
2. DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
"Acceptable State" means any state acceptable pursuant to
Seller's Underwriting Guidelines.
"Accepted Servicing Practices" means, with respect to any
Mortgage Loan, those mortgage servicing practices of prudent mortgage lending
institutions which service mortgage loans of the same type as such Mortgage Loan
in the jurisdiction where the related Mortgaged Property is located.
"Act of Insolvency" means, with respect to any Person and its
Affiliates, (i) the filing of a petition, commencing, or authorizing the
commencement of any case or proceeding, or the voluntary joining of any case or
proceeding under any bankruptcy, insolvency, reorganization, liquidation,
dissolution or similar law relating to the protection of creditors, or suffering
any such petition or proceeding to be commenced by another which is consented
to, not timely contested or results in entry of an order for relief; (ii) the
seeking of the appointment of a receiver, trustee, custodian or similar official
for such party or an Affiliate or any substantial part of the property of
either; (iii) the appointment of a receiver, conservator, or manager for such
party or an Affiliate by any governmental agency or authority having the
jurisdiction to do so; (iv) the making or offering by such party or an Affiliate
of a composition with its creditors or a general assignment for the benefit of
creditors; (v) the admission by such party or an Affiliate of such party of its
inability to pay its debts or discharge its obligations as they become due or
mature; or (vi) that any governmental authority or agency or any person, agency
or entity acting or purporting to act under governmental authority shall have
taken any action to condemn, seize or appropriate, or to assume custody or
control of, all or any substantial part of the property of such party or of any
of its Affiliates, or shall have taken any action to displace the management of
such party or of any of its Affiliates or to curtail its authority in the
conduct of the business of such party or of any of its Affiliates.
"Adjusted Tangible Net Worth" means, Net Worth plus 1% of the
outstanding servicing portfolio balance of such Person plus Subordinated Debt,
minus intangible assets such as capitalized servicing rights, goodwill and
trademarks, minus notes receivable from shareholders or affiliates.
"Affiliate" means, with respect to any Person, any "affiliate"
of such Person, as such term is defined in the Bankruptcy Code.
"Aged Loan" means a Ninety Day Aged Loan or a One Hundred
Eighty Day Aged Loan, as applicable.
"Agency" means Xxxxxxx Mac, Xxxxxx Xxx or GNMA, as applicable.
"Agency Security" means a mortgage-backed security issued by
an Agency.
"Agent" means Credit Suisse First Boston Mortgage Capital LLC
or any affiliate or successor thereto.
"Agreement" means this Master Repurchase Agreement, as it may
be amended, supplemented or otherwise modified from time to time.
"Alt A Mortgage Loan" means a Mortgage Loan originated in
accordance with the criteria established in the Underwriting Guidelines
submitted by Seller and approved by Buyer for Alt-A Mortgage Loans.
"Appraised Value" means the value set forth in an appraisal
made in connection with the origination of the related Mortgage Loan as the
value of the Mortgaged Property.
"Asset Tape" means a remittance report on a monthly basis
containing servicing information, including, without limitation, those fields
reasonably requested by Buyer from time to time, on a loan-by-loan basis and in
the aggregate, with respect to the Purchased Mortgage Loans serviced by Seller
or any Servicer for the month (or any portion thereof) prior to the Reporting
Date.
"Assignment of Mortgage" means an assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient under
the laws of the jurisdiction wherein the related Mortgaged Property is located
to reflect the sale of the Mortgage to Buyer.
"Bailee Letter" has the meaning assigned to such term in the
Custodial Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code of
1978, as amended from time to time.
"Bid" has the meaning set forth in Section 4(c) hereof.
"Bid Fee" has the meaning set forth in Section 4(c) hereof.
"Business Day" means any day other than (A) a Saturday or
Sunday and (B) a public or bank holiday in New York City.
"Buyer" means Credit Suisse First Boston Mortgage Capital LLC,
and any successor hereunder.
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"Buyer's Margin Amount" means with respect to any Transaction
as of any date of determination, an amount equal to the product of (A) Buyer's
Margin Percentage and (B) the Purchase Price for such Transaction; provided,
that, with respect to any Mortgage Loan which was not an Exception Mortgage Loan
on the related Purchase Date and which, as of the date of determination, is an
Exception Mortgage Loan, Buyer's Margin Percentage as of such date of
determination shall be equal to the percentage obtained by dividing (A) the
Market Value of such Mortgage Loan on the related Purchase Date by (B) the
amount the Purchase Price would have been on the Purchase Date if such Mortgage
Loan had been categorized as the type of Mortgage Loan (e.g., One Hundred Eighty
Day Aged Loan, Non-Performing Mortgage Loan, Exception Mortgage Loan, etc.) that
it is categorized on the date of determination.
"Buyer's Margin Percentage" means, with respect to any
Transaction as of any date, a percentage equal to the percentage obtained by
dividing the (A) Market Value of the Purchased Mortgage Loans on the Purchase
Date for such Transaction by (B) the Purchase Price on the Purchase Date for
such Transaction.
"Calmco" means Vesta Servicing L.P., or any successor in
interest thereto.
"Capital Lease Obligations" means, for any Person, all
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account" means one or more accounts established by
the Servicer [for the benefit of Buyer], into which all collections and proceeds
on or in respect of the Mortgage Loans shall be deposited by Servicer.
"Committed Mortgage Loan" means a Mortgage Loan which is the
subject of a Take-out Commitment with a Take-out Investor.
"Conforming Mortgage Loan" means a Mortgage Loan originated in
accordance with the criteria of an Agency for purchase of Mortgage Loans,
including, without limitation, conventional Mortgage Loans, FHA Loans and VA
Loans, as determined by Buyer in its sole discretion.
"Custodial Agreement" means the custodial agreement dated
August __, 2001, among Seller, Buyer and Custodian as the same may be amended
from time to time.
"Custodian" means LaSalle Bank, National Association or such
other party specified by Buyer and agreed to by Seller, which approval shall not
be unreasonably withheld.
"Default" means an Event of Default or an event that with
notice or lapse of time or both would become an Event of Default.
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"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Due Date" means the day of the month on which the Monthly
Payment is due on a Mortgage Loan, exclusive of any days of grace.
"Effective Date" means the date upon which the conditions
precedent set forth in Section 10 shall have been satisfied.
"Electronic Tracking Agreement" means an Electronic Tracking
Agreement among Buyer, Seller, MERS and MERSCORP, Inc., to the extent
applicable.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business
that is a member of any group of organizations (i) described in Section 414(b)
or (c) of the Code of which Seller is a member and (ii) solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
"Escrow Instruction Letter" means the Escrow Instruction
Letter from Seller to the Settlement Agent, in the form of Exhibit M hereto, as
the same may be modified, supplemented and in effect from time to time.
"Escrow Payments" means, with respect to any Mortgage Loan,
the amounts constituting ground rents, taxes, assessments, water rates, sewer
rents, municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
"Event of Default" has the meaning specified in Section 15
hereof.
"Event of Termination" means with respect to Seller (i) with
respect to any Plan, a reportable event, as defined in Section 4043 of ERISA, as
to which the PBGC has not by regulation waived the requirement of Section
4043(a) of ERISA that it be notified with 30 days of the occurrence of such
event, or (ii) the withdrawal of Seller or any ERISA Affiliate thereof from a
Plan during a plan year in which it is a substantial employer, as defined in
Section 4001(a)(2) of ERISA, or (iii) the failure by Seller or any ERISA
Affiliate thereof to meet the minimum funding standard of Section 412 of the
Code or Section 302 of ERISA with respect to any Plan, including, without
limitation, the failure to make on or before its due date a required installment
under Section 412(m) of the Code or Section 302(e) of ERISA, or (iv) the
distribution under Section 4041 of ERISA of a notice of intent to terminate any
Plan or any action taken by Seller or any ERISA Affiliate thereof to terminate
any plan, or (v) the adoption of an amendment to any Plan that, pursuant to
Section 401(a)(29) of the Code or Section 307 of ERISA, would result in the loss
of tax-exempt status of the trust of which such Plan is a part if Seller or any
ERISA Affiliate thereof fails to timely provide security to the Plan in
accordance with the provisions of said sections, or (vi) the institution by the
PBGC of proceedings under
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Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or (vii) the receipt by Seller or any ERISA Affiliate
thereof of a notice from a Multiemployer Plan that action of the type described
in the previous clause (vi) has been taken by the PBGC with respect to such
Multiemployer Plan, or (viii) any event or circumstance exists which may
reasonably be expected to constitute grounds for Seller or any ERISA Affiliate
thereof to incur liability under Title IV of ERISA or under Sections 412(c)(11)
or 412(n) of the Code with respect to any Plan.
"Exception Mortgage Loan" means any Mortgage Loan which is
otherwise ineligible for purchase hereunder, or which otherwise becomes
ineligible for purchase hereunder and which is approved by Buyer in its sole
discretion. The Pricing Rate, Market Value, Purchase Price and Buyer's Margin
Percentage with respect to Exception Mortgage Loans shall be set in the sole
discretion of Buyer. Buyer may at any time, and in its sole discretion, no
longer consider a Mortgage Loan an Exception Mortgage Loan, in which case such
Mortgage Loan shall have a Market Value of zero.
"Existing Indebtedness" has the meaning specified in Section
13(a)(23) hereof.
"Xxxxxx Xxx" means Xxxxxx Mae, the government sponsored
enterprise formerly known as the Federal National Mortgage Association.
"FHA" means the Federal Housing Administration, an agency
within the United States Department of Housing and Urban Development, or any
successor thereto, and including the Federal Housing Commissioner and the
Secretary of Housing and Urban Development where appropriate under the FHA
Regulations.
"FHA Approved Mortgagee" means a corporation or institution
approved as a mortgagee by the FHA under the National Housing Act, as amended
from time to time, and applicable FHA Regulations, and eligible to own and
service mortgage loans such as the FHA Loans.
"FHA Loan" means a Mortgage Loan which is the subject of an
FHA Mortgage Insurance Contract.
"FHA Mortgage Insurance" means, mortgage insurance authorized
under the National Housing Act, as amended from time to time, and provided by
the FHA.
"FHA Mortgage Insurance Contract" means the contractual
obligation of the FHA respecting the insurance of a Mortgage Loan.
"FHA Regulations" means the regulations promulgated by the
Department of Housing and Urban Development under the National Housing Act, as
amended from time to time and codified in 24 Code of Federal Regulations, and
other Department of Housing and Urban Development issuances relating to FHA
Loans, including the related handbooks, circulars, notices and mortgagee
letters.
"Foreclosed Loan" means a Mortgage Loan, the property securing
which has been foreclosed upon by Seller.
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"Xxxxxxx Mac" means the Federal Home Loan Mortgage
Corporation.
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States of America and applied on a
consistent basis.
"GNMA" means the Government National Mortgage Association and
any successor thereto.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, or any entity exercising
executive, legislative, judicial, regulatory or administrative functions over
Seller or Buyer, as applicable.
"Gross Margin" means, with respect to each adjustable rate
Mortgage Loan, the fixed percentage amount set forth in the related Mortgage
Note.
"Guarantee" means, as to any Person, any obligation of such
Person directly or indirectly guaranteeing any Indebtedness of any other Person
or in any manner providing for the payment of any Indebtedness of any other
Person or otherwise protecting the holder of such Indebtedness against loss
(whether by virtue of partnership arrangements, by agreement to keep-well, to
purchase assets, goods, securities or services, or to take-or-pay or otherwise);
provided that the term "Guarantee" shall not include (i) endorsements for
collection or deposit in the ordinary course of business, or (ii) obligations to
make servicing advances for delinquent taxes and insurance or other obligations
in respect of a Mortgaged Property, to the extent required by Buyer. The amount
of any Guarantee of a Person shall be deemed to be an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith. The terms "Guarantee" and "Guaranteed" used as verbs shall have
correlative meanings.
"High Cost Mortgage Loans" means any Mortgage Loans classified
as (a) "high cost" loans under the Home Ownership and Equity Protection Act of
1994, as amended, or (b) "high cost," "threshold," or "predatory" loans under
any other applicable state, federal or local law.
"Income" means with respect to any Purchased Mortgage Loan at
any time until repurchased by the Seller, any principal received thereon or in
respect thereof and all interest, dividends or other distributions thereon.
"Indebtedness" means, for any Person: (a) obligations created,
issued or incurred by such Person for borrowed money (whether by loan, the
issuance and sale of debt securities or the sale of Property to another Person
subject to an understanding or agreement, contingent or otherwise, to repurchase
such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services, other than trade
accounts payable (other than for borrowed money) arising, and accrued expenses
incurred, in the ordinary course of business, so long as such trade accounts
payable are payable within 90 days of the date the respective goods are
delivered or the respective services are rendered; (c) Indebtedness of others
secured by a Lien on the Property of such Person, whether or not the respective
Indebtedness so secured has been assumed by such Person; (d) obligations
(contingent or
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otherwise) of such Person in respect of letters of credit or similar instruments
issued or accepted by banks and other financial institutions for the account of
such Person; (e) Capital Lease Obligations of such Person; (f) obligations of
such Person under repurchase agreements, sale/buy-back agreements or like
arrangements; (g) Indebtedness of others Guaranteed by such Person; (h) all
obligations of such Person incurred in connection with the acquisition or
carrying of fixed assets by such Person; and (i) Indebtedness of general
partnerships of which such Person is a general partner.
"Index" means, with respect to any adjustable rate Mortgage
Loan, the index identified on the Mortgage Loan Schedule and set forth in the
related Mortgage Note for the purpose of calculating the applicable Mortgage
Interest Rate.
"Interest Rate Adjustment Date" means the date on which an
adjustment to the Mortgage Interest Rate with respect to each Mortgage Loan
becomes effective.
"Interest Rate Protection Agreement" means, with respect to
any or all of the Mortgage Loans, any short sale of a US Treasury Security, or
futures contract, or mortgage related security, or Eurodollar futures contract,
or options related contract, or interest rate swap, cap or collar agreement or
Take-out Commitment, or similar arrangement providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies, entered into by Seller and an
Affiliate of Buyer or such other party acceptable to Buyer in its sole
discretion, which agreement is acceptable to Buyer in its sole discretion.
"Jumbo Mortgage Loan" means an A quality Mortgage Loan which
is not eligible for sale to an Agency.
"LIBOR" means for each day, the rate of interest (calculated
on a per annum basis) equal to the overnight British Bankers Association Rate as
reported on the display designated as "BBAM" "Page XX0 0x" on Bloomberg (or such
other display as may replace "BBAM" "Page XX0 0x" on Bloomberg) on such date of
determination, and if such rate shall not be so quoted, the rate per annum at
which Buyer is offered Dollar deposits at or about 11:00 a.m., New York City
time, on such day, by prime banks in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect of its loans are
then being conducted for delivery on such day for an overnight period, and in an
amount comparable to the amount of the Purchase Price of Transactions to be
outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security
interest or similar encumbrance.
"Margin Call" has the meaning specified in Section 6(a)
hereof.
"Margin Deadline" has the meaning specified in Section 6(b)
hereof.
"Margin Deficit" has the meaning specified in Section 6(a)
hereof.
"Market Value" means, with respect to any Purchased Mortgage
Loan as of any date of determination, the whole-loan servicing retained fair
market value of such Purchased
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Mortgage Loan on such date as determined by Buyer (or an Affiliate thereof) in
its sole discretion. Without limiting the generality of the foregoing, Seller
acknowledges that the Market Value of a Purchased Mortgage Loan may be reduced
to zero by Buyer if:
(i) a breach of a representation, warranty or
covenant made by Seller in this Agreement with respect to such
Purchased Mortgage Loan has occurred and is continuing;
(ii) such Purchased Mortgage Loan is more than
(a) twenty nine (29) days past due, other than a
Non-Performing Mortgage Loan or (b) one hundred eighty (180)
days past due or foreclosed upon or otherwise liquidated for
Non-Performing Mortgage Loans;
(iii) such Purchased Mortgage Loan has been
released from the possession of the Custodian under the
Custodial Agreement (other than to a Take-out Investor
pursuant to a Bailee Letter) for a period in excess of ten
(10) calendar days;
(iv) such Purchased Mortgage Loan has been
released from the possession of the Custodian under the
Custodial Agreement to a Take-out Investor pursuant to a
Bailee Letter for a period in excess of 45 calendar days;
(v) such Purchased Mortgage Loan has been held
by the Custodian for the benefit of Buyer (in its capacity as
Buyer hereunder or as a secured lender) for a period of
greater than (a) 60 days for all Mortgage Loans other than
Aged Loans (b) 90 days with respect to each Ninety Day Aged
Loan or (c) 180 days with respect to each One Hundred Eighty
Day Aged Loan;
(vi) such Purchased Mortgage Loan is a Wet-Ink
Mortgage Loan for which the Wet-Ink Documents have not been
delivered to the Custodian on or prior to the seventh Business
Day after the related Purchase Date;
(vii) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
sum of the Purchase Price of all (A) Non-Performing Mortgage
Loans and (B) One Hundred Eighty Day Aged Loans that are, in
either case, Purchased Mortgage Loans exceeds $500,000;
(viii) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
aggregate Purchase Price of all Ninety Day Aged Loans that are
Purchased Mortgage Loans exceeds $5 million;
(ix) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
aggregate Purchase Price of all Second Lien Mortgage Loans
that are Purchased Mortgage Loans exceeds $2.5 million;
(x) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
aggregate Purchase Price of all Alt A Mortgage Loans that are
Purchased Mortgage Loans exceeds $12.5 million;
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(xi) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
aggregate Purchase Price of all Sub-Prime Mortgage Loans that
are Purchased Mortgage Loans exceeds $5 million;
(xii) when the Purchase Price for such Purchased
Mortgage Loan is added to other Purchased Mortgage Loans, the
aggregate Purchase Price of all Wet-Ink Mortgage Loans that
are Purchased Mortgage Loans exceeds $7.5 million.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business, properties,
condition (financial or otherwise) or prospects of Seller or any Affiliate that
is a party to any Program Agreement taken as a whole; (b) a material impairment
of the ability of Seller, or any Affiliate that is a party to any Program
Agreement to perform under any Program Agreement and to avoid any Event of
Default; or (c) a material adverse effect upon the legality, validity, binding
effect or enforceability of any Program Agreement against Seller or any
Affiliate that is a party to any Program Agreement.
"Maximum Aggregate Purchase Price" means TWENTY-FIVE MILLION
DOLLARS ($25,000,000).
"MERS" means Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the State of Delaware, or
any successor thereto.
"MERS System" means the system of recording transfers of
mortgages electronically maintained by MERS.
"Monthly Payment" means the scheduled monthly payment of
principal and interest on a Mortgage Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successors thereto.
"Mortgage" means each mortgage, assignment of rents, security
agreement and fixture filing, or deed of trust, assignment of rents, security
agreement and fixture filing, deed to secure debt, assignment of rents, security
agreement and fixture filing, or similar instrument creating and evidencing a
lien on real property and other property and rights incidental thereto.
"Mortgage File" means, with respect to a Mortgage Loan, the
documents and instruments relating to such Mortgage Loan and set forth in
Exhibit F to the Custodial Agreement.
"Mortgage Interest Rate" means the rate of interest borne on a
Mortgage Loan from time to time in accordance with the terms of the related
Mortgage Note.
"Mortgage Interest Rate Cap" means, with respect to an
adjustable rate Mortgage Loan, the limit on each Mortgage Interest Rate
adjustment as set forth in the related Mortgage Note.
"Mortgage Loan" means any Sub-Prime Mortgage Loan, Exception
Mortgage Loan, Jumbo Mortgage Loan, Alt A Mortgage Loan, Second Lien Mortgage
Loan or
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Conforming Mortgage Loan which is a closed-end, fixed or floating-rate, first or
second lien, one-to-four-family residential mortgage or home equity loan
evidenced by a promissory note and secured by a mortgage, which satisfies the
requirements set forth in the Underwriting Guidelines and Section 13(b) hereof;
provided, however, that, except as expressly approved in writing by Buyer,
Mortgage Loans shall not include any "high-LTV" loans (i.e., a mortgage loan
having a loan-to-value ratio in excess of 100% or in excess of such lower
percentage set forth in the Underwriting Guidelines or with respect to Second
Lien Mortgage Loans, a combined loan-to value ratio, in excess of the lower of
(i) the percentage specified in the Underwriting Guidelines or (ii) 100%) or any
High Cost Mortgage Loans and; provided, further, that the origination date with
respect to such Mortgage Loan is no earlier than thirty (30) days prior to the
related Purchase Date.
"Mortgage Loan Schedule" means with respect to any Transaction
as of any date, a mortgage loan schedule in the form of either (a) Exhibit C
attached hereto or (b) a computer tape or other electronic medium generated by
Seller or Servicer, and delivered to Buyer and Custodian, which provides
information (including, without limitation, the information set forth on Exhibit
C attached hereto) relating to the Purchased Mortgage Loans in a format
acceptable to Buyer.
"Mortgage Loan Schedule and Exception Report" has the meaning
assigned to such term in the Custodial Agreement
"Mortgage Note" means the promissory note or other evidence of
the indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing
repayment of the debt evidenced by a Mortgage Note.
"Mortgagor" means the obligor or obligors on a Mortgage Note,
including any person who has assumed or guaranteed the obligations of the
obligor thereunder.
"Multiemployer Plan" means a multiemployer plan defined as
such in Section 3(37) of ERISA to which contributions have been or are required
to be made by Seller or any ERISA Affiliate and that is covered by Title IV of
ERISA.
"Net Income" means, for any period and any Person, the net
income of such Person for such period as determined in accordance with GAAP.
"Net Worth" means, with respect to any Person, an amount equal
to, on a consolidated basis, such Person's stockholder equity (determined in
accordance with GAAP).
"Ninety Day Aged Loan" means a Mortgage Loan subject to a
Transaction hereunder or which has been held by the Custodian for the benefit of
Buyer (in its capacity as Buyer hereunder or as a secured lender) for a period
of greater than 60 days but no greater than 90 days.
"1934 Act" means the Securities Exchange Act of 1934, as
amended from time to time.
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"Non-Performing Mortgage Loan" means (i) any Mortgage Loan for
which any payment of principal or interest is more than twenty-nine (29) days
past due, (ii) any Mortgage Loan with respect to which the related mortgagor is
in bankruptcy or (iii) any Mortgage Loan with respect to which the related
mortgaged property is in foreclosure.
"Notice Date" has the meaning given to it in Section 3(b)
hereof.
"Obligations" means (a) all of Seller's indebtedness,
obligations to pay the Repurchase Price on the Repurchase Date, the Price
Differential on each Price Differential Payment Date, and other obligations and
liabilities, to Buyer, its Affiliates or Custodian arising under, or in
connection with, the Program Agreements, whether now existing or hereafter
arising; (b) any and all sums paid by Buyer or on behalf of Buyer in order to
preserve any Purchased Mortgage Loan or its interest therein; (c) in the event
of any proceeding for the collection or enforcement of any of Seller's
indebtedness, obligations or liabilities referred to in clause (a), the
reasonable expenses of retaking, holding, collecting, preparing for sale,
selling or otherwise disposing of or realizing on any Purchased Mortgage Loan,
or of any exercise by Buyer of its rights under the Program Agreements,
including, without limitation, attorneys' fees and disbursements and court
costs; and (d) all of Seller's indemnity obligations to Buyer or Custodian or
both pursuant to the Program Agreements.
"One Hundred Eighty Day Aged Loan" means a Mortgage Loan
subject to a Transaction hereunder or which has been held by the Custodian for
the benefit of Buyer (in its capacity as Buyer hereunder or as a secured lender)
for a period of greater than 90 days but less than 180 days.
"PBCG" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, unlimited liability
company, join stock company, trust, unincorporated association, joint venture or
other entity, or a government or any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or
maintained by any Seller or any ERISA Affiliate and covered by Title IV of
ERISA, other than a Multiemployer Plan.
"Post Default Rate" means an annual rate of interest equal to
the Pricing Rate plus 3%.
"Price Differential" means with respect to any Transaction as
of any date of determination, an amount equal to the product of (A) the Pricing
Rate for such Transaction and (B) the Purchase Price for such Transaction,
calculated daily on the basis of a 360-day year for the actual number of days
during the period commencing on (and including) the Purchase Date for such
Transaction and ending on (but excluding) the Repurchase Date.
"Price Differential Payment Date" means, with respect to a
Purchased Mortgage Loan, the 5th day of the month following the related Purchase
Date and each succeeding 5th day
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of the month thereafter; provided, that, with respect to such Purchased Mortgage
Loan, the final Price Differential Payment Date shall be the related Repurchase
Date; and provided, further, that if any such day is not a Business Day, the
Price Differential Payment Date shall be the next succeeding Business Day.
"Pricing Rate" means LIBOR plus:
(a) 1.25% with respect to Transactions the subject of
which are Conforming Mortgage Loans (other than Wet-Ink Mortgage Loans,
Aged Loans, Second Lien Mortgage Loans or Non-Performing Mortgage
Loans);
(b) 1.25% with respect to Transactions the subject of
which are Jumbo Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged
Loans, Second Lien Mortgage Loans or Non-Performing Mortgage Loans);
(c) 1.375% with respect to Transactions the subject of
which are Alt A Mortgage Loans (other than Wet-Ink Mortgage Loans, Aged
Loans, Second Lien Mortgage Loans or Non-Performing Mortgage Loans);
(d) 1.50% with respect to Transactions the subject of
which are Sub-Prime Mortgage Loans (other than Wet-Ink Mortgage Loans,
Aged Loans, Second Lien Mortgage Loans or Non-Performing Mortgage
Loans);
(e) 1.75% with respect to Transactions the subject of
which are Ninety Day Aged Loans;
(f) 1.75% with respect to Transactions the subject of
which are Wet-Ink Mortgage Loans;
(g) 1.75% with respect to Transactions the subject of
which are Second Lien Mortgage Loans (other than One Hundred Eighty Day
Aged Loans or Non-Performing Mortgage Loans);
(h) 2.50% with respect to Transactions the subject of
which are Non-Performing Mortgage Loans; or
(i) 2.50% with respect to Transactions the subject of
which are One Hundred Eighty Day Aged Loans.
The Pricing Rate shall change in accordance with LIBOR, as
provided in Section 5(a).
"Principal" has the meaning given to it in Annex I.
"Program Agreements" means, collectively, the Custodial
Agreement, this Agreement, the Electronic Tracking Agreement, if entered into,
and, with respect to each Exception Mortgage Loan, a Purchase Confirmation.
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"Property" means any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible.
"Purchase Confirmation" means a confirmation of a Transaction,
in the form attached as Exhibit B hereto.
"Purchase Date" means the date on which Purchased Mortgage
Loans are to be transferred by Seller to Buyer.
"Purchase Price" means, on the Purchase Date:
(i) in the case of Purchased Mortgage Loans other than
Non-Performing Mortgage Loans or One Hundred Eighty Day Aged Loans, the price at
which each Purchased Mortgage Loan is transferred by Seller to Buyer, which
shall not exceed the lesser of (A) the outstanding principal amount thereof as
set forth on the related Mortgage Loan Schedule and Exception Report and (B) (1)
the Market Value of such Purchased Mortgage Loan multiplied by (2) the
applicable Purchase Price Percentage; or
(ii) in the case of Purchased Mortgage Loans which are
Non-Performing Mortgage Loans or One Hundred Eighty Day Aged Loans, the lesser
of (1) the product of (A)(x) for the first 30 days in which the Purchased
Mortgage Loan is subject to a Transaction or held by the Custodian for the
benefit of the Buyer, 70% of the outstanding principal balance thereof as set
forth in the related Mortgage Loan Schedule; and (y) thereafter, 70% minus an
additional 10% for each 30-day period following the 30th day in which the
Purchased Mortgage Loan is subject to a Transaction or held by the Custodian for
the benefit of the Buyer multiplied by (B) the outstanding principal balance
thereof as set forth in the related Mortgage Loan Schedule and (2) the Market
Value of such Mortgage Loan multiplied by the applicable Purchase Price
Percentage for such Mortgage Loan; or
(iii) thereafter, except where Buyer and Seller agree
otherwise, the amount determined under the preceding clauses (i) or (ii)
decreased by the amount of any cash transferred by Seller to Buyer pursuant to
Section 4(c) hereof or applied to reduce Seller's obligations under clause (ii)
of Section 4(b) hereof.
"Purchase Price Percentage" means, with respect to each
Mortgage Loan, the following percentage, as applicable:
(a) 96% with respect to Purchased Mortgage Loans that are
Sub-Prime Mortgage Loans;
(b) 95% with respect to Purchased Mortgage Loans that are
Non-Performing Mortgage Loans;
(c) 95% with respect to Purchased Mortgage Loans that are
One Hundred Eighty Day Aged Loans;
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(d) 95% with respect to Purchased Mortgage Loans that are
Second Lien Mortgage Loans (other than Non-Performing Mortgage Loans or
One Hundred Eighty Day Aged Loans);
(e) 98% with respect to Purchased Mortgage Loans that are
Alt A Mortgage Loans (other than Non-Performing Mortgage Loans or One
Hundred Eighty Day Aged Loans);
(f) 98% with respect to Purchased Mortgage Loans that are
Jumbo Mortgage Loans (other than Non-Performing Mortgage Loans or One
Hundred Eighty Day Aged Loans); or
(g) 98% with respect to Transactions the subject of which
are first lien Conforming Mortgage Loans (other than Non-Performing
Mortgage Loans or One Hundred Eighty Day Aged Loans).
"Purchased Mortgage Loans" means the collective reference to
Mortgage Loans together with the Repurchase Assets related to such Mortgage
Loans transferred by Seller to Buyer in a Transaction hereunder, listed on the
related Mortgage Loan Schedule attached to the related Transaction Request,
which such Mortgage Loans the Custodian has been instructed to hold pursuant to
the Custodial Agreement.
"Qualified Insurer" means a mortgage guaranty insurance
company duly authorized and licensed where required by law to transact mortgage
guaranty insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx
Mac.
"Qualified Originator" means an originator of Mortgage Loans
which is acceptable under the Underwriting Guidelines.
"Records" means all instruments, agreements and other books,
records, and reports and data generated by other media for the storage of
information maintained by Seller, Servicer or any other person or entity with
respect to a Purchased Mortgage Loan. Records shall include the mortgage notes,
any Mortgages, the Mortgage Files, the credit files related to the Purchased
Mortgage Loan and any other instruments necessary to document or service a
Mortgage Loan.
"REO Property" means real property acquired by Seller,
including a Mortgaged Property acquired through foreclosure of a Mortgage Loan
or by deed in lieu of such foreclosure.
"Reporting Date" means the 5th day of each month or, if such
day is not a Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in
Section 8 hereof.
"Repurchase Date" means the earlier of (i) the Termination
Date, (ii) the date set forth in the applicable Purchase Confirmation, (iii) the
date determined by application of Section 16 hereof or (iv) the date identified
to Buyer by Seller as the date that the related Mortgage Loan is to be sold
pursuant to a Take-out Commitment.
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"Repurchase Price" means the price at which Purchased Mortgage
Loans are to be transferred from Buyer to Seller upon termination of a
Transaction, which will be determined in each case (including Transactions
terminable upon demand) as the sum of the Purchase Price and the accrued but
unpaid Price Differential as of the date of such determination.
"Request for Certification" means a notice sent to the
Custodian reflecting the sale of one or more Purchased Mortgage Loans to Buyer
hereunder.
"Requirement of Law" means, with respect to any Person, any
law, treaty, rule or regulation or determination of an arbitrator, a court or
other governmental authority, applicable to or binding upon such Person or any
of its property or to which such Person or any of its property is subject.
"Responsible Officer" means shall mean, as to any Person, the
chief executive officer or, with respect to financial matters, the chief
financial officer of such Person.
"S&P" means Standard & Poor's Ratings Services, or any
successor thereto.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Second Lien Mortgage Loan" means a second lien Mortgage Loan
where the second lien on the related Mortgaged Property is contemplated and
incurred simultaneously with the first lien on the related Mortgaged Property.
"Seller" means United Financial Mortgage Corp. or its
permitted successors and assigns.
"Servicer" means Seller or Calmco, or any other servicer
approved by Buyer in its sole discretion.
"Settlement Agent" means, with respect to any Transaction the
subject of which is a Wet-Ink Mortgage Loan, the entity approved by Buyer, in
its sole good-faith discretion, which may be a title company, escrow company or
attorney, in accordance with local law and practice in the jurisdiction where
the related Wet-Ink Mortgage Loan is being originated. A Settlement Agent is
deemed approved unless Buyer notifies Seller otherwise at any time
electronically or in writing.
"SIPA" means the Securities Investor Protection Act of 1970,
as amended from time to time.
"Subordinated Debt" means, Indebtedness of Seller which is (i)
unsecured, (ii) no part of the principal of such Indebtedness is required to be
paid (whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the date which is one year following the
Termination Date and (iii) the payment of the principal of and interest on such
Indebtedness and other obligations of Seller in respect of such Indebtedness are
subordinated to the prior payment in full of the principal of and interest
(including post-petition obligations) on the Transactions and all other
obligations and liabilities of Seller to Buyer
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hereunder on terms and conditions approved in writing by Buyer and all other
terms and conditions of which are satisfactory in form and substance to Buyer.
"Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership or other entity
(irrespective of whether or not at the time securities or other ownership
interests of any other class or classes of such corporation, partnership or
other entity shall have or might have voting power by reason of the happening of
any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person.
"Sub-Prime Mortgage Loan" means a Mortgage Loan which
originated in accordance with the criteria established by Buyer for sub-prime
mortgage loans, as determined by Buyer in its sole discretion.
"Take-out Commitment" means a commitment of Seller to either
(a) sell one or more Mortgage Loans to a Take-out Investor or (b) (i) swap one
or more Mortgage Loans with a Take-out Investor that is an Agency for an Agency
Security, and (ii) sell the related Agency Security to a Take-out Investor, and
in each case, the corresponding Take-out Investor's commitment back to Seller to
effectuate any of the foregoing, as applicable. With respect to any Take-out
Commitment with an Agency, the applicable agency documents list Buyer as sole
subscriber.
"Take-out Investor" means (i) an Agency or (ii) other
institution which has made a Take-out Commitment and has been approved by Buyer.
"Termination Date" means the earlier of (a) August __, 2002,
and (b) the date of the occurrence of an Event of Default.
"Test Period" means any period of three (3) consecutive
calendar months.
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from Seller to Buyer, in
the form attached as Exhibit A hereto, to enter into a Transaction.
"Trust Receipt and Certification" means, with respect to any
Transaction as of any date, a receipt and certification in the form attached as
an exhibit to the Custodial Agreement.
"Underwriting Guidelines" means the standards, procedures and
guidelines of Seller for underwriting and acquiring Mortgage Loans, which are
set forth in the written policies and procedures of Seller, a copy of which is
attached hereto as Exhibit G and such other guidelines as are identified and
approved in writing by Buyer.
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"Uniform Commercial Code" means the Uniform Commercial Code as
in effect on the date hereof in the State of New York or the Uniform Commercial
Code as in effect in the applicable jurisdiction.
"VA" means the U.S. Department of Veterans Affairs, an agency
of the United States of America, or any successor thereto including the
Secretary of Veterans Affairs.
"VA Approved Lender" means a lender which is approved by the
VA to act as a lender in connection with the origination of VA Loans.
"VA Loan" means a Mortgage Loan which is subject of a VA Loan
Guaranty Agreement as evidenced by a VA Loan Guaranty Agreement, or a Mortgage
Loan which is a vender loan sold by the VA.
"VA Loan Guaranty Agreement" means the obligation of the
United States to pay a specific percentage of a Mortgage Loan (subject to a
maximum amount) upon default of the Mortgagor pursuant to the Servicemen's
Readjustment Act, as amended.
"Violation Deadline" has the meaning assigned thereto in
Section 4(c) hereof.
"Warehouse Lender" shall mean each of (a) National City Bank
Of Kentucky, a national banking association with principal office and place of
business in Louisville, Kentucky, (b) American National Bank And Trust Company
Of Chicago, a national banking association with principal office and place of
business in Chicago, Illinois, in its capacity as Agent (c) West Suburban Bank,
an Illinois banking corporation with principal office and place of business in
Lombard, Illinois, in their respective capacities as warehouse lenders to Seller
or (d) any other lender joined as a party to that certain Intercreditor
Agreement, dated as of June 18, 2001, among National City Bank of Kentucky,
American National Bank and Trust Company of Chicago, West Suburban Bank and
Seller.
"Wet-Ink Documents" means, with respect to any Wet-Ink
Mortgage Loan, the documents set forth in Exhibit L hereto.
"Wet-Ink Mortgage Loan" means a Mortgage Loan which Seller is
selling to Buyer simultaneously with the origination thereof. A Wet-Ink Mortgage
Loan will continue to be a Wet-Ink Mortgage Loan until the Mortgage File is
received by Custodian.
3. PROGRAM; INITIATION OF TRANSACTIONS
a. From time to time, Buyer will purchase from Seller
certain Mortgage Loans that have been either originated by Seller or purchased
by Seller from other originators. This Agreement is not a commitment by Buyer to
enter into Transactions with Seller but rather sets forth the procedures to be
used in connection with periodic requests for Buyer to enter into Transactions
with Seller. Seller hereby acknowledges that Buyer is under no obligation to
agree to enter into, or to enter into, any Transaction pursuant to this
Agreement. All Purchased Mortgage Loans shall exceed or meet the Underwriting
Guidelines, and shall be serviced by
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Servicer. The aggregate Purchase Price of Purchased Mortgage Loans subject to
outstanding Transactions shall not exceed the Maximum Aggregate Purchase Price.
With respect to Transactions involving Mortgage Loans that are not Wet-Ink
Mortgage Loans, Buyer shall only be required to enter into Transactions in which
the Purchase Price with respect thereto is at least $1,000,000.
b. With respect to each Transaction involving Mortgage
Loans which are not Wet-Ink Mortgage Loans, Seller shall give Buyer and
Custodian at least 1 Business Day's prior notice of any proposed Purchase Date
(the date on which such notice is given, the "Notice Date"); provided, that if
Seller is delivering 25 or fewer Mortgage Loans, which are not Wet-Ink Mortgage
Loans, on a Purchase Date, the notice shall be delivered on or before 10:30 a.m.
(New York City time) on the Purchase Date. With respect to Wet-Ink Mortgage
Loans, Seller shall deliver notice of any proposed purchase on or before 3:00
p.m. (New York City time) on the Purchase Date. On the Notice Date, Seller shall
(i) request that Buyer enter into a Transaction by furnishing to Buyer a
Transaction Request, (ii) deliver to Buyer and Custodian a Mortgage Loan
Schedule and (iii) deliver to Custodian a Request for Certification and each
Mortgage File or Wet-Ink Documents for each Wet-Ink Mortgage Loan in accordance
with Section 10(b)(3) and otherwise comply with the procedures set forth in
Exhibit L hereto.
c. With respect to each Exception Mortgage Loan, upon
receipt of the Transaction Request, Buyer shall, consistent with this Agreement,
specify the terms for such proposed Transaction, including the Purchase Price,
the Pricing Rate, the Market Value and the Repurchase Date in respect of such
Transaction. The terms thereof shall be set forth in the Purchase Confirmation
to be delivered to Seller on or prior to the Purchase Date.
d. With respect to each Exception Mortgage Loan, the
Purchase Confirmation, together with this Agreement, shall constitute conclusive
evidence of the terms agreed between Buyer and Seller with respect to the
Transaction to which the Purchase Confirmation relates, and Seller's acceptance
of the related proceeds shall constitute Seller's agreement to the terms of such
Purchase Confirmation. It is the intention of the parties that, with respect to
each Exception Mortgage Loan, each Purchase Confirmation shall not be separate
from this Agreement but shall be made a part of this Agreement. In the event of
any conflict between this Agreement and, with respect to each Exception Mortgage
Loan, a Purchase Confirmation, the terms of the Purchase Confirmation shall
control with respect to the related Transaction.
e. Upon the satisfaction of the applicable conditions
precedent set forth in Section 10 hereof, all of Seller's interest in the
Repurchase Assets shall pass to Buyer on the Purchase Date, against the transfer
of the Purchase Price to Seller. Upon transfer of the Mortgage Loans to Buyer as
set forth in this Section and until termination of any related Transactions as
set forth in Sections 4 or 16 of this Agreement, ownership of each Mortgage
Loan, including each document in the related Mortgage File and Records, is
vested in Buyer; provided that, prior to the recordation by the Custodian as
provided for in the Custodial Agreement record title in the name of Seller to
each Mortgage shall be retained by Seller in trust, for the benefit of Buyer,
for the sole purpose of facilitating the servicing and the supervision of the
servicing of the Mortgage Loans.
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f. With respect to each Wet-Ink Mortgage Loan, by no
later than 12:00 noon, (New York City time) on the seventh Business Day
following the applicable Purchase Date, Seller shall cause the related
Settlement Agent to deliver to the Custodian the remaining documents in the
Mortgage File.
4. REPURCHASE
a. Seller shall repurchase the related Purchased
Mortgage Loans from Buyer on each related Repurchase Date. Such obligation to
repurchase exists without regard to any prior or intervening liquidation or
foreclosure with respect to any Purchased Mortgage Loan (but liquidation or
foreclosure proceeds received by Buyer shall be applied to reduce the Repurchase
Price for such Purchased Mortgage Loan on each Price Differential Payment Date
except as otherwise provided herein). Seller is obligated to repurchase and take
physical possession of the Purchased Mortgage Loans from Buyer or its designee
(including the Custodian) at Seller's expense on the related Repurchase Date.
b. Provided that no Default shall have occurred and is
continuing, and Buyer has received the related Repurchase Price upon repurchase
of the Purchased Mortgage Loans, Buyer agrees to release its ownership interest
hereunder in the Purchased Mortgage Loans (including, the Repurchase Assets
related thereto) at the request of Seller. With respect to payments in full by
the related Mortgagor of a Purchased Mortgage Loan, Seller agrees to (i) provide
Buyer with a copy of a report from the related Servicer indicating that such
Purchased Mortgage Loan has been paid in full, (ii) remit to Buyer, within two
Business Days, the Repurchase Price with respect to such Purchased Mortgage
Loans and (iii) provide Buyer a notice specifying each Purchased Mortgage Loan
that has been prepaid in full. Buyer agrees to release its ownership interest in
Purchased Mortgage Loans which have been prepaid in full after receipt of
evidence of compliance with clauses (i) through (iii) of the immediately
preceding sentence.
c. In the event that at any time any Purchased Mortgage
Loan violates the applicable sublimit set forth in the definition of Market
Value, Buyer may, in its sole discretion, redesignate such Mortgage Loan as an
Exception Mortgage Loan. If Buyer does not redesignate such Mortgage Loan as an
Exception Mortgage Loan, and if Seller fails to notify Buyer within five (5)
Business Days following notice or knowledge of such violation that Seller does
not want to receive a bid for such Mortgage Loan as described below, Buyer or an
Affiliate of Buyer may offer to terminate Seller's right and obligation to
repurchase such Mortgage Loan by paying Seller a price to be set by Buyer in its
sole discretion (a "Bid"). Seller, within five (5) Business Days of receipt of
Buyer's bid (the "Violation Deadline") may, in its sole discretion, either (i)
accept Buyer's bid, terminating Seller's right to repurchase such Mortgage Loan
under this Agreement or (ii) immediately repurchase the Mortgage Loan at the
Repurchase Price in accordance with this Section 4. Seller shall pay Buyer a bid
fee equal to $250 (the "Bid Fee") with respect to each Mortgage Loan on which
Buyer or its Affiliate makes a Bid, regardless of whether the Bid is accepted
and such Bid Fee shall be due and payable to Buyer on or before the Violation
Deadline. Any amount paid by Buyer or its Affiliate to terminate Seller's right
to repurchase a Purchased Mortgage Loan if a Bid is accepted pursuant to this
Section shall be applied by Buyer toward the outstanding Repurchase Price for
the applicable Transaction.
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5. PRICE DIFFERENTIAL.
a. On each Business Day that a Transaction is
outstanding, the Pricing Rate shall be reset and, unless otherwise agreed, the
accrued and unpaid Price Differential shall be settled in cash on each related
Price Differential Payment Date. Two Business Days prior to the Price
Differential Payment Date, Buyer shall give Seller written or electronic notice
of the amount of the Price Differential due on such Price Differential Payment
Date. On the Price Differential Payment Date, Seller shall pay to Buyer the
Price Differential for such Price Differential Payment Date (along with any
other amounts to be paid pursuant to Sections 7, 34 and 35 hereof), by wire
transfer in immediately available funds.
b. If Seller fails to pay all or part of the Price
Differential by 3:00 p.m. (New York City time) on the related Price Differential
Payment Date, with respect to any Purchased Mortgage Loan, Seller shall be
obligated to pay to Buyer (in addition to, and together with, the amount of such
Price Differential) interest on the unpaid Repurchase Price at a rate per annum
equal to the Post Default Rate until the Price Differential is received in full
by Buyer.
6. MARGIN MAINTENANCE
a. If at any time the Market Value of any Purchased
Mortgage Loan subject to a Transaction is less than Buyer's Margin Amount for
such Transaction (a "Margin Deficit"), then Buyer may by notice to any Seller
require Seller to transfer to Buyer cash in an amount at least equal to the
Margin Deficit (such requirement, a "Margin Call").
b. Notice delivered pursuant to Section 6(a) may be
given by any written means. Any notice given before 10:00 a.m. (New York City
time) on a Business Day shall be met, and the related Margin Call satisfied, no
later than 5:00 p.m. (New York City time) on such Business Day; notice given
after 10:00 a.m. (New York City time) on a Business Day shall be met, and the
related Margin Call satisfied, no later than 5:00 p.m. (New York City time) on
the following Business Day (the foregoing time requirements for satisfaction of
a Margin Call are referred to as the "Margin Deadlines"). The failure of Buyer,
on any one or more occasions, to exercise its rights hereunder, shall not change
or alter the terms and conditions to which this Agreement is subject or limit
the right of Buyer to do so at a later date. Seller and Buyer each agree that a
failure or delay by Buyer to exercise its rights hereunder shall not limit or
waive Buyer's rights under this Agreement or otherwise existing by law or in any
way create additional rights for Seller.
7. INCOME PAYMENTS
a. If Income is paid in respect of any Purchased
Mortgage Loan during the term of a Transaction, such Income shall be the
property of Buyer. Notwithstanding the foregoing, and provided no Event of
Default has occurred and is continuing, Buyer agrees that if a third-party
Servicer is in place for any Purchased Mortgage Loans, such Servicer shall
deposit such Income to the Collection Account. Seller shall deposit all Income
received in its capacity as Servicer of any Purchased Mortgage Loans to the
Collection Account in accordance with Section 12(c) hereof.
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b. Provided no Event of Default has occurred and is
continuing, on each Price Differential Payment Date, Seller shall remit to Buyer
an amount equal to the Price Differential out of the interest portion of the
Income paid in respect to the Purchased Mortgage Loans for the preceding month
in accordance with Section 5 of this Agreement. Upon termination of any
Transaction, to the extent that there is any excess Income after repayment of
all amounts to be transferred to Buyer by Seller, Buyer, in its sole option, may
apply the excess income to reduce the Repurchase Price due upon termination of
any other outstanding Transactions.
c. In the event that an Event of Default has occurred
and is continuing, notwithstanding any provision set forth herein, Seller shall
remit to Buyer all Income received with respect to each Purchased Mortgage Loan
on the related Price Differential Payment Date or on such other date or dates as
Buyer notifies Seller in writing.
d. Notwithstanding any provision to the contrary in this
Section 7, within two (2) Business Days of receipt by Seller of any prepayment
of principal in full, with respect to a Purchased Mortgage Loan, Seller shall
remit such amount to Buyer and Buyer shall immediately apply any such amount
received by Buyer to reduce the amount of the Repurchase Price due upon
termination of the related Transaction.
e. Notwithstanding anything to the contrary set forth
herein, upon notice by Buyer to Seller, Seller shall remit to Buyer all
collections received by Servicer or Seller on the Purchased Mortgage Loans in
accordance with Buyer's directions no later than the day on which aggregate
collections of principal and interest (excluding principal prepayments) on the
Purchased Mortgaged Loans reaches an amount to be indicated by Buyer in its sole
discretion.
8. SECURITY INTEREST
Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such Transactions are deemed
to be loans, Seller hereby pledges to Buyer as security for the performance by
Seller of its Obligations and hereby grants, assigns and pledges to Buyer a
fully perfected first priority security interest in the Purchased Mortgage
Loans, the Records, and all related servicing rights, the Program Agreements (to
the extent such Program Agreements and Seller's right thereunder relate to the
Purchased Mortgage Loans), any related Take-out Commitments, Property, all
insurance policies and insurance proceeds relating to any Mortgage Loan or the
related Mortgaged Property, including, but not limited to, any payments or
proceeds under any related primary insurance, hazard insurance and FHA Mortgage
Insurance Contracts and VA Loan Guarantee Agreements (if any), Income, the
Collection Account, Interest Rate Protection Agreements, accounts (including any
interest of Seller in escrow accounts) and any other contract rights, accounts,
payments, rights to payment (including payments of interest or finance charges)
general intangibles and other assets relating to the Purchased Mortgage Loans
(including, without limitation, any other accounts) or any interest in the
Purchased Mortgage Loans, the servicing of the Purchased Mortgage Loans, and any
proceeds (including the related securitization proceeds) and distributions with
respect to any of the foregoing and any other property, rights, title or
interests as are specified on a Request for Certification and/or Trust Receipt
and Certification, in all instances, whether now owned or hereafter acquired,
now existing or hereafter created (collectively, the "Repurchase Assets").
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Seller agrees to execute, deliver and/or file such documents and perform such
acts as may be reasonably necessary to fully perfect Buyer's security interest
created hereby. Furthermore, the Seller hereby authorizes the Buyer to file
financing statements relating to the Repurchase Assets without the signature of
the Seller, as the Buyer, at its option, may deem appropriate. The Seller shall
pay the filing costs for any financing statement or statements prepared pursuant
to this Section.
9. PAYMENT AND TRANSFER
Unless otherwise mutually agreed in writing, all transfers of
funds to be made by Seller hereunder shall be made in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to Buyer at the
following account maintained by Buyer: Account No. [ ], for the account
of [ ], [BANK], ABA No. [ ], Attn: [ ] or such other account as
Buyer shall specify to Seller in writing. Seller acknowledges that it has no
rights of withdrawal from the foregoing account. All Purchased Mortgage Loans
transferred by one party hereto to the other party shall be in the case of a
purchase by Buyer in suitable form for transfer or shall be accompanied by duly
executed instruments of transfer or assignment in blank and such other
documentation as Buyer may reasonably request. All Purchased Mortgage Loans
shall be evidenced by a Trust Receipt and Certification. Any Repurchase Price
received by Buyer after 2:00 p.m. New York City time shall be deemed received on
the next succeeding Business Day.
10. CONDITIONS PRECEDENT
a. Initial Transaction. As conditions precedent to the
initial Transaction, Buyer shall have received on or before the day of such
initial Transaction the following, in form and substance satisfactory to Buyer
and duly executed by Seller and each other party thereto:
(1) Program Agreements. The Program Agreements (including
a Custodial Agreement in a form acceptable to Buyer) duly executed and
delivered by the parties thereto and being in full force and effect,
free of any modification, breach or waiver.
(2) Security Interest. Evidence that all other actions
necessary or, in the opinion of Buyer, desirable to perfect and protect
Buyer's interest in the Purchased Mortgage Loans and other Repurchase
Assets have been taken, including, without limitation, duly executed
and filed Uniform Commercial Code financing statements on Form UCC-1.
(3) Organizational Documents. A certified copy of
Seller's charter, bylaws and corporate resolutions approving the
Program Agreements and transactions thereunder (either specifically or
by general resolution) and all documents evidencing other necessary
corporate action or governmental approvals as may be required in
connection with the Program Agreements.
(4) Good Standing Certificate. A certified copy of a good
standing certificate of Seller, dated as of no earlier than the date 10
Business Days prior to the Purchase Date with respect to the initial
Transaction hereunder.
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(5) Incumbency Certificate. An incumbency certificate of
the corporate secretary of each of Seller, certifying the names, true
signatures and titles of the representatives duly authorized to request
transactions hereunder and to execute the Program Agreements.
(6) Opinion of Counsel. An opinion of Seller's counsel,
in form and substance substantially as set forth in Exhibit F attached
hereto.
(7) Underwriting Guidelines. A true and correct copy of
the Underwriting Guidelines certified by an officer of Seller.
(8) Fees. Payment of any fees due to Buyer hereunder.
b. All Transactions. The obligation of Buyer to enter
into each Transaction pursuant to this Agreement is subject to the following
conditions precedent:
(1) Due Diligence Review. Without limiting the generality
of Section 36 hereof, Buyer shall have completed, to its satisfaction,
its due diligence review of the related Mortgage Loans and Seller.
(2) Required Documents.
(a) With respect to each Purchased Mortgage Loan
which is not a Wet-Ink Mortgage Loan, the Mortgage File has
been delivered to the Custodian (i) with respect to any
purchase of 25 or fewer Mortgage Loans on a single Purchase
Date, on or prior to 3:00 p.m. (New York City time) on the
Purchase Date, and (ii) with respect to any purchase of 26 or
more Mortgage Loans on a single Purchase Date, at least 24
hours prior to the Purchase Date;
(b) With respect to each Wet-Ink Mortgage Loan,
the Wet-Ink Documents has been delivered to Buyer or
Custodian, as the case may be, by 3:00 p.m. (New York City
time) on the Purchase Date.
(3) Transaction Documents. Buyer or its designee shall
have received on or before the day of such Transaction (unless
otherwise specified in this Agreement) the following, in form and
substance satisfactory to Buyer and (if applicable) duly executed:
(a) A Transaction Request delivered pursuant to
Section 3(c) hereof and a Purchase Confirmation.
(b) The Request for Certification and the
related Mortgage Loan Schedule and Exception Report, and the
Trust Receipt.
(c) Such certificates, opinions of counsel or
other documents as Buyer may reasonably request.
(d) With respect to each Purchased Mortgage Loan
which is financed by a Warehouse Lender immediately prior to
the purchase by the Buyer
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thereunder, an executed Security Release Certification
substantially in the form of Exhibit O hereto.
(4) No Default. No Default or Event of Default shall have
occurred and be continuing;
(5) Requirements of Law. Buyer shall not have determined
that the introduction of or a change in any Requirement of Law or in
the interpretation or administration of any Requirement of Law
applicable to Buyer has made it unlawful, and no Governmental Authority
shall have asserted that it is unlawful, for Buyer to enter into
Transactions with a Pricing Rate based on LIBOR.
(6) Representations and Warranties. Both immediately
prior to the related Transaction and also after giving effect thereto
and to the intended use thereof, the representations and warranties
made by Seller in each Program Agreement shall be true, correct and
complete on and as of such Purchase Date in all material respects with
the same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made
as of a specific date, as of such specific date).
(7) Electronic Tracking Agreement. To the extent Sellers
are selling Mortgage Loans which are registered on the MERS(R) System,
an Electronic Tracking Agreement entered into, duly executed and
delivered by the parties thereto and being in full force and effect,
free of any modification, breach or waiver.
(8) Material Adverse Change. None of the following shall
have occurred and/or be continuing:
(a) Credit Suisse First Boston, New York
Branch's corporate bond rating as calculated by S&P or Xxxxx'x
has been lowered or downgraded to a rating below investment
grade by S&P or Xxxxx'x;
(b) an event or events shall have occurred in
the good faith determination of Buyer resulting in the
effective absence of a "repo market" or comparable "lending
market" for financing debt obligations secured by mortgage
loans or securities or an event or events shall have occurred
resulting in Buyer not being able to finance Purchased Assets
through the "repo market" or "lending market" with traditional
counterparties at rates which would have been reasonable prior
to the occurrence of such event or events; or
(c) an event or events shall have occurred
resulting in the effective absence of a "securities market"
for securities backed by mortgage loans or an event or events
shall have occurred resulting in Buyer not being able to sell
securities backed by mortgage loans at prices which would have
been reasonable prior to such event or events; or
(d) there shall have occurred a material adverse
change in the financial condition of Buyer which affects (or
can reasonably be expected to affect)
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materially and adversely the ability of Buyer to fund its
obligations under this Agreement.
11. PROGRAM; COSTS
a. Seller shall reimburse Buyer for any of Buyer's
reasonable out-of-pocket costs, including due diligence review costs and
reasonable attorney's fees, incurred by Buyer in determining the acceptability
to Buyer of any Mortgage Loans. Seller shall also pay, or reimburse Buyer if
Buyer shall pay, any termination fee, which may be due any servicer. Seller
shall pay the fees and expenses of Buyer's counsel in connection with the
Program Agreements. Legal fees for any subsequent amendments to this Agreement
or related documents shall be borne by Seller. Seller shall pay ongoing
custodial and bank fees and expenses as set forth on Exhibit N hereto, and any
other ongoing fees and expenses under any other Program Document.
b. If Buyer determines that, due to the introduction of,
any change in, or the compliance by Buyer with (i) any eurocurrency reserve
requirement or (ii) the interpretation of any law, regulation or any guideline
or request from any central bank or other Governmental Authority (whether or not
having the force of law), there shall be an increase in the cost to Buyer in
engaging in the present or any future Transactions, then Seller agrees to pay to
Buyer, from time to time, upon demand by Buyer (with a copy to Custodian) the
actual cost of additional amounts as specified by Buyer to compensate Buyer for
such increased costs.
c. With respect to any Transaction, Buyer may
conclusively rely upon, and shall incur no liability to Seller in acting upon,
any request or other communication that Buyer reasonably believes to have been
given or made by a person authorized to enter into a Transaction on Seller's
behalf, whether or not such person is listed on the certificate delivered
pursuant to Section 10(a)(5) hereof. In each such case, Seller hereby waives the
right to dispute Buyer's record of the terms of the Purchase Confirmation,
request or other communication.
d. Notwithstanding the assignment of the Program
Agreements with respect to each Purchased Mortgage Loan to Buyer, Seller agrees
and covenants with Buyer to enforce diligently Seller's rights and remedies set
forth in the Program Agreements.
e. Any payments made by Seller to Buyer shall be free
and clear of, and without deduction or withholding for, any taxes; provided,
however, that if such payer shall be required by law to deduct or withhold any
taxes from any sums payable to Buyer, then such payer shall (A) make such
deductions or withholdings and pay such amounts to the relevant authority in
accordance with applicable law, (B) pay to Buyer the sum that would have been
payable had such deduction or withholding not been made, and (C) at the time
Price Differential is paid, pay to Buyer all additional amounts as specified by
Buyer to preserve the after-tax yield Buyer would have received if such tax had
not been imposed.
12. SERVICING
a. Seller, on Buyer's behalf, shall contract with
Servicer to, or if Seller is the Servicer, Seller shall, service the Mortgage
Loans consistent with the degree of skill and care that Seller customarily
requires with respect to similar Mortgage Loans owned or managed by it and in
accordance with Accepted Servicing Practices. The Servicer shall (i) comply with
all
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applicable Federal, State and local laws and regulations, (ii) maintain all
state and federal licenses necessary for it to perform its servicing
responsibilities hereunder and (iii) not impair the rights of Buyer in any
Mortgage Loans or any payment thereunder. Buyer may terminate the servicing of
any Mortgage Loan with the then-existing servicer in accordance with Section
12(e) hereof.
b. Seller shall cause the Servicer to hold or cause to
be held all escrow funds collected by Servicer with respect to any Purchased
Mortgage Loans in trust accounts and shall apply the same for the purposes for
which such funds were collected.
c. Seller shall cause the Servicer to deposit all
collections received by Servicer on the Purchased Mortgage Loans in the
Collection Account no later than the 5th Business Day following receipt;
provided, however, that any amounts required to be remitted to Buyer shall be
deposited in the Collection Account on or prior to the day on which such
remittance is to occur.
d. Upon Buyer's request, Seller shall provide promptly
to Buyer (i) Servicer Notice addressed to and agreed to by the Servicer of the
related Purchased Mortgage Loans, advising such Servicer of such matters as
Buyer may reasonably request, including, without limitation, recognition by the
Servicer of Buyer's interest in such Purchased Mortgage Loans and the Servicer's
agreement that upon receipt of notice of an Event of Default from Buyer, it will
follow the instructions of Buyer with respect to the Purchased Mortgage Loans
and any related Income with respect thereto.
e. Upon the occurrence of an Event of Default hereunder
or a material default under the Servicing Agreement, Buyer shall have the right
to immediately terminate the Servicer's right to service the Purchased Mortgage
Loans [under the Servicing Agreement] without payment of any penalty or
termination fee. Seller and the Servicer shall cooperate in transferring the
servicing of the Purchased Mortgage Loans to a successor servicer appointed by
Buyer in its sole discretion.
f. If Seller should discover that, for any reason
whatsoever, Seller or any entity responsible to Seller for managing or servicing
any such Purchased Mortgage Loan has failed to perform fully Seller's
obligations under the Program Agreements or any of the obligations of such
entities with respect to the Purchased Mortgage Loans, Seller shall promptly
notify Buyer.
13. REPRESENTATIONS AND WARRANTIES
a. Seller represents and warrants to Buyer as of the
date hereof and as of each Purchase Date for any Transaction that:
(1) Seller Existence. Seller has been duly organized and
is validly existing as a corporation in good standing under the laws of
the State of Illinois.
(2) Licenses. Seller is duly licensed or is otherwise
qualified in each jurisdiction in which it transacts business for the
business which it conducts and is not in default of any applicable
federal, state or local laws, rules and regulations unless, in either
instance,
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the failure to take such action is not reasonably likely (either
individually or in the aggregate) to cause a Material Adverse Effect
(hereinafter defined) and is not in default of such state's applicable
laws, rules and regulations. Seller has the requisite power and
authority and legal right to originate and purchase Mortgage Loans (as
applicable) and to own, sell and xxxxx x xxxx on all of its right,
title and interest in and to the Mortgage Loans, and to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement, each Program
Agreement and any Transaction Request or, if applicable, Purchase
Confirmation. Seller is an FHA Approved Mortgagee and VA Approved
Lender.
(3) Power. Seller has all requisite corporate or other
power, and has all governmental licenses, authorizations, consents and
approvals necessary to own its assets and carry on its business as now
being or as proposed to be conducted, except where the lack of such
licenses, authorizations, consents and approvals would not be
reasonably likely to have a Material Adverse Effect.
(4) Due Authorization. Seller has all necessary corporate
or other power, authority and legal right to execute, deliver and
perform its obligations under each of the Program Agreements, as
applicable. This Agreement, any Transaction Request, Purchase
Confirmation and the Program Agreements have been (or, in the case of
Program Agreements and any Transaction Request, Purchase Confirmation
not yet executed, will be) duly authorized, executed and delivered by
Seller, all requisite corporate action having been taken, and each is
valid, binding and enforceable against Seller in accordance with its
terms except as such enforcement may be affected by bankruptcy, by
other insolvency laws, or by general principles of equity.
(5) Financial Statements. The Seller has heretofore
furnished to Buyer a copy of (a) its consolidated and consolidating
balance sheet for the fiscal year of the Seller ended April 30, 2001
and the related consolidated statements of income and retained earnings
and of cash flows for the Seller for such fiscal year, setting forth in
each case in comparative form the figures for the previous year, with
the opinion thereon of Xxxxx Xxxxxxx & Associates LTD. and (b) its
consolidated and consolidating balance sheet for the quarterly fiscal
period of the Seller ended July 31, 2001 and the related consolidated
statements of income and retained earnings and of cash flows for the
Seller for such quarterly fiscal period, setting forth in each case in
comparative form the figures for the previous year. All such financial
statements are complete and correct and fairly present, in all material
respects, the consolidated financial condition of the Seller and the
consolidated results of its operations as at such dates and for such
fiscal periods, all in accordance with GAAP applied on a consistent
basis. Since April 30, 2001, there has been no material adverse change
in the consolidated business, operations or financial condition of the
Seller from that set forth in said financial statements nor is Seller
aware of any state of facts which (without notice or the lapse of time)
would or could result in any such material adverse change. The Seller
has, on the date of the statements delivered pursuant to this Section
(the "Statement Date") no liabilities, direct or indirect, fixed or
contingent, matured or unmatured, known or unknown, or liabilities for
taxes, long-term leases or unusual forward or long-term commitments not
disclosed by, or reserved against in, said balance sheet and related
statements, and at the present time there are no
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material unrealized or anticipated losses from any loans, advances or
other commitments of Seller except as heretofore disclosed to Buyer in
writing.
(6) Event of Default. There exists no Event of Default
under Section 15(b) hereof, which default gives rise to a right to
accelerate indebtedness as referenced in Section 15(b) hereof, under
any mortgage, borrowing agreement or other instrument or agreement
pertaining to indebtedness for borrowed money or to the repurchase of
mortgage loans or securities.
(7) Solvency. Seller is solvent and will not be rendered
insolvent by any Transaction and, after giving effect to such
Transaction, will not be left with an unreasonably small amount of
capital with which to engage in its business. Seller does not intend to
incur, or believes that it has incurred, debts beyond its ability to
pay such debts as they mature and is not contemplating the commencement
of insolvency, bankruptcy, liquidation or consolidation proceedings or
the appointment of a receiver, liquidator, conservator, trustee or
similar official in respect of such entity or any of its assets. The
amount of consideration being received by Seller upon the sale of the
Purchased Mortgage Loans to Buyer constitutes reasonably equivalent
value and fair consideration for such Purchased Mortgage Loans. Seller
is not transferring any Purchased Mortgage Loans with any intent to
hinder, delay or defraud any of its creditors.
(8) No Conflicts. The execution, delivery and performance
by Seller of this Agreement, any Transaction Request or Purchase
Confirmation hereunder and the Program Agreements do not conflict with
any term or provision of the certificate of incorporation or by-laws of
Seller or any law, rule, regulation, order, judgment, writ, injunction
or decree applicable to Seller of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
Seller, which conflict would have a Material Adverse Effect and will
not result in any violation of any such mortgage, instrument, agreement
or repurchase agreement.
(9) True and Complete Disclosure. All information,
reports, exhibits, schedules, financial statements or certificates of
Seller, any Affiliate thereof or any of their officers furnished or to
be furnished to Buyer in connection with the initial or any ongoing due
diligence of Seller, or any Affiliate or officer thereof, negotiation,
preparation, or delivery of the Program Agreements are true and
complete and do not omit to disclose any material facts necessary to
make the statements herein or therein, in light of the circumstances in
which they are made, not misleading. All financial statements have been
prepared in accordance with GAAP.
(10) Approvals. No consent, approval, authorization or
order of, registration or filing with, or notice to any governmental
authority or court is required under applicable law in connection with
the execution, delivery and performance by Seller of this Agreement,
any Transaction Request, Purchase Request and the Program Agreements.
(11) Litigation. There is no action, proceeding or
investigation pending with respect to which Seller has received service
of process or, to the best of Seller's
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knowledge threatened against it before any court, administrative agency
or other tribunal (A) asserting the invalidity of this Agreement, any
Transaction, Transaction Request, Purchase Confirmation or any Program
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, any Transaction Request,
Purchase Confirmation or any Program Agreement, (C) makes a claim or
claims in an aggregate amount greater than $750,000, (D) which requires
filing with the Securities and Exchange Commission in accordance with
the 1934 Act or any rules thereunder or (E) which might materially and
adversely affect the validity of the Mortgage Loans or the performance
by it of its obligations under, or the validity or enforceability of,
this Agreement, any Transaction Request, Purchase Confirmation or any
Program Agreement.
(12) Material Adverse Change. There has been no material
adverse change in the business, operations, financial conditions,
properties or prospects of Seller or its Affiliates since the date set
forth in the most recent financial statements supplied to Buyer.
(13) Ownership. Upon payment of the Purchase Price and the
filing of the financing statement and delivery of the Mortgage Files to
the Custodian and the Custodian's receipt of the related Request for
Certification, Buyer shall become the sole owner of the Purchased
Mortgage Loans and related Repurchase Assets, free and clear of all
liens and encumbrances.
(14) Underwriting Guidelines. The Underwriting Guidelines
provided to Buyer are the true and correct Underwriting Guidelines of
Seller.
(15) Taxes. Seller has filed all Federal income tax
returns and all other material tax returns that are required to be
filed by it and has paid all taxes due pursuant to such returns or
pursuant to any assessment received by it, except for any such taxes as
are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves have been provided. The charges, accruals and reserves on the
books of Seller in respect of taxes and other governmental charges are,
in the opinion of Seller, adequate.
(16) Investment Company. Neither Seller, nor any of its
Subsidiaries is an "investment company", or a company "controlled" by
an "investment company," within the meaning of the Investment Company
Act of 1940, as amended.
(17) Chief Executive Office; Jurisdiction of Organization.
On the Effective Date, and during the four months immediately preceding
the Effective Date, Seller's chief executive office, is, and has been,
located at 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxx, 00000.
On the Effective Date, Seller's jurisdiction of organization is
Illinois. Seller shall provide Buyer with thirty days advance notice of
any change in Seller's principal office or place of business or
jurisdiction. Seller has no trade name. During the preceding five
years, Seller has not been known by or done business under any other
name, corporate or fictitious, and has not filed or had filed against
it any
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bankruptcy receivership or similar petitions nor has it made any
assignments for the benefit of creditors.
(18) Location of Books and Records. The location where
Seller keeps its books and records, including all computer tapes and
records relating to the Purchased Mortgage Loans and the related
Repurchase Assets is its chief executive office.
(19) Adjusted Tangible Net Worth. On the Effective Date,
Seller's Adjusted Tangible Net Worth is not less than SIX MILLION
DOLLARS ($6,000,000).
(20) ERISA. Each Plan to which Seller or its Subsidiaries
make direct contributions, and, to the knowledge of Seller, each other
Plan and each Multiemployer Plan, is in compliance in all material
respects with, and has been administered in all material respects in
compliance with, the applicable provisions of ERISA, the Code and any
other Federal or State law.
(21) Adverse Selection. Seller has not selected the
Purchased Mortgage Loans in a manner so as to adversely affect Buyer's
interests.
(22) Agreements. Neither Seller nor any Subsidiary of
Seller is a party to any agreement, instrument, or indenture or subject
to any restriction materially and adversely affecting its business,
operations, assets or financial condition, except as disclosed in the
financial statements described in Section 13(a)(5) hereof. Neither
Seller nor any Subsidiary of Seller is in default in the performance,
observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement, instrument, or indenture which
default could have a material adverse effect on the business,
operations, properties, or financial condition of Seller as a whole. No
holder of any indebtedness of Seller or of any of its Subsidiaries has
given notice of any asserted default thereunder.
(23) Other Indebtedness. All Indebtedness (other than
Indebtedness evidenced by this Agreement) of Seller existing on the
date hereof is listed on Exhibit K hereto (the "Existing
Indebtedness").
(24) Agency Approvals. With respect to each Agency
Security and to the extent necessary, Seller is an FHA Approved
Mortgagee, a VA Approved Lender and a GNMA Approved Lender. Seller is
also approved by Xxxxxx Xxx as an approved lender and Xxxxxxx Mac as an
approved seller/servicer, and, to the extent necessary, approved by the
Secretary of Housing and Urban Development pursuant to Sections 203 and
211 of the National Housing Act. In each such case, Seller is in good
standing, with no event having occurred or Seller having any reason
whatsoever to believe or suspect will occur prior to the issuance of
the Agency Security or the consummation of the Take-out Commitment, as
the case may be, including, without limitation, a change in insurance
coverage which would either make Seller unable to comply with the
eligibility requirements for maintaining all such applicable approvals
or require notification to the relevant Agency or to the Department of
Housing and Urban Development, FHA or VA. Should Seller for any reason
cease to possess all such applicable approvals, or should notification
to the relevant Agency or to the Department of Housing and Xxxxx
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Xxxxxxxxxxx, XXX or VA be required, Seller shall so notify Buyer
immediately in writing. Seller has adequate financial standing,
servicing facilities, procedures and experienced personnel necessary
for the sound servicing of mortgage loans of the same types as may from
time to time constitute Mortgage Loans and in accordance with Accepted
Servicing Practices.
b. With respect to every Purchased Mortgage Loan, Seller
represents and warrants to Buyer as of the applicable Purchase Date for any
Transaction and each date thereafter that each representation and warranty set
forth on Schedule 1 is true and correct.
c. The representations and warranties set forth in this
Agreement shall survive transfer of the Purchased Mortgage Loans to Buyer and
shall continue for so long as the Purchased Mortgage Loans are subject to this
Agreement. Upon discovery by Seller, Servicer or Buyer of any breach of any of
the representations or warranties set forth in this Agreement, the party
discovering such breach shall promptly give notice of such discovery to the
others. Buyer has the right to require, in its unreviewable discretion, Seller
to repurchase within 1 Business Day after receipt of notice from Buyer any
Purchased Mortgage Loan (i) for which a breach of one or more of the
representations and warranties referenced in Section 13(b) exists and which
breach has a material adverse effect on the value of such Mortgage Loan or the
interests of the Buyer or (ii) which is determined by Buyer, in its good faith
discretion, to be unacceptable for inclusion in a securitization.
14. COVENANTS
Seller covenants with Buyer that, during the term of this
facility:
a. Adjusted Tangible Net Worth. For each quarter
commencing after April 30, 2001, Seller shall maintain an Adjusted Tangible Net
Worth of at least $6 million.
b. Indebtedness to Adjusted Tangible Net Worth Ratio.
For each quarter commencing after April 30, 2001, Seller's ratio of Indebtedness
to Adjusted Tangible Net Worth shall not exceed 15:1.
c. Litigation. Seller will promptly, and in any event
within ten (10) days after service of process on any of the following, give to
Buyer notice of all litigation, actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are threatened or
pending) or other legal or arbitrable proceedings affecting Seller or any of its
Subsidiaries or affecting any of the Property of any of them before any
Governmental Authority that (i) questions or challenges the validity or
enforceability of any of the Program Agreements or any action to be taken in
connection with the transactions contemplated hereby, (ii) makes a claim or
claims in an aggregate amount greater than $750,000, (iii) which, individually
or in the aggregate, if adversely determined, could be reasonably likely to have
a Material Adverse Effect, or (iv) requires filing with the SEC in accordance
its regulations.
d. Prohibition of Fundamental Changes. Seller shall not
enter into any transaction of merger or consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or
dissolution) or sell all or substantially all of its assets; provided, that
Seller may merge or consolidate with (a) any wholly owned subsidiary of Seller,
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or (b) any other Person if Seller is the surviving corporation; and provided
further, that if after giving effect thereto, no Default would exist hereunder.
e. Maintenance of Profitability. Seller shall not
permit, for any Test Period, Net Income for such Test Period determined on a
monthly basis, before income taxes for such Test Period and distributions made
during such Test Period, to be less than $1.00.
f. Servicer; Asset Tape. Seller shall cause Servicer to
provide to Buyer, electronically, in a format mutually acceptable to Buyer and
Seller, an Asset Tape by no later than the Reporting Date. Seller shall not
cause the Mortgage Loans to be serviced by any servicer other than a servicer
expressly approved in writing by Buyer, which approval shall be deemed granted
by Buyer with respect to Seller with the execution of this Agreement.
g. Insurance. Seller, or its Affiliates, will continue
to maintain, for Seller and its subsidiaries and [Name], insurance coverage with
respect to employee dishonesty, forgery or alteration, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to Xxxxxx Xxx
and Xxxxxxx Mac.
h. Trust Receipt. To cause the Custodian to deliver to
Buyer a Mortgage Loan Schedule and Exception Report, and a Trust Receipt, no
later than the date set forth in the Custodial Agreement. If upon examination of
the documents included in any Mortgage File, the Custodian determines that such
documents do not satisfy the requirements set forth in the Custodial Agreement,
the Custodian shall xxxx such Mortgage Loan as an exception on its Mortgage Loan
Schedule and Exception Report.
i. No Adverse Claims. Seller warrants and will defend,
and shall cause any Servicer to defend, the right, title and interest of Buyer
in and to all Purchased Mortgage Loans and the related Repurchase Assets against
all adverse claims and demands.
j. Assignment. Except as permitted herein, neither
Seller nor any Servicer shall sell, assign, transfer or otherwise dispose of, or
grant any option with respect to, or pledge, hypothecate or grant a security
interest in or lien on or otherwise encumber (except pursuant to the Program
Agreements), any of the Purchased Mortgage Loans or any interest therein,
provided that this Section shall not prevent any transfer of Purchased Mortgage
Loans in accordance with the Program Agreements.
k. Security Interest. Seller shall do all things
necessary to preserve the Purchased Mortgage Loans and the related Repurchase
Assets so that they remain subject to a first priority perfected security
interest hereunder. Without limiting the foregoing, Seller will comply with all
rules, regulations and other laws of any Governmental Authority and cause the
Purchased Mortgage Loans or the related Repurchase Assets to comply with all
applicable rules, regulations and other laws. Seller will not allow any default
for which Seller is responsible to occur under any Purchased Mortgage Loans or
the related Repurchase Assets or any Program Agreement and Seller shall fully
perform or cause to be performed when due all of its obligations under any
Purchased Mortgage Loans or the related Repurchase Assets and any Program
Agreement.
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l. Records.
(1) Seller shall collect and maintain or cause to be
collected and maintained all Records relating to the Purchased Mortgage
Loans in accordance with industry custom and practice for assets
similar to the Purchased Mortgage Loans, including those maintained
pursuant to the preceding subparagraph, and all such Records shall be
in Custodian's possession unless Buyer otherwise approves. Seller will
not allow any such papers, records or files that are an original or an
only copy to leave Custodian's possession, except for individual items
removed in connection with servicing a specific Mortgage Loan, in which
event Seller will obtain or cause to be obtained a receipt from a
financially responsible person for any such paper, record or file.
Seller or the Servicer of the Purchased Mortgage Loans will maintain
all such Records not in the possession of Custodian in good and
complete condition in accordance with industry practices for assets
similar to the Purchased Mortgage Loans and preserve them against loss.
(2) For so long as Buyer has an interest in or lien on
any Purchased Mortgage Loan, Seller will hold or cause to be held all
related Records in trust for Buyer. Seller shall notify, or cause to be
notified, every other party holding any such Records of the interests
and liens in favor of Buyer granted hereby.
(3) Upon reasonable advance notice from Custodian or
Buyer, Seller shall (x) make any and all such Records available to
Custodian or Buyer to examine any such Records, either by its own
officers or employees, or by agents or contractors, or both, and make
copies of all or any portion thereof, and (y) permit Buyer or its
authorized agents to discuss the affairs, finances and accounts of
Seller with its chief operating officer and chief financial officer and
to discuss the affairs, finances and accounts of Seller with its
independent certified public accountants.
m. Books. Seller shall keep or cause to be kept in
reasonable detail books and records of account of its assets and business and
shall clearly reflect therein the transfer of Purchased Mortgage Loans to Buyer.
n. Approvals. Seller shall maintain all licenses,
permits or other approvals necessary for Seller to conduct its business and to
perform its obligations under the Program Agreements, and Seller shall conduct
its business strictly in accordance with applicable law.
o. Material Change in Business. Seller shall not make
any material change in the nature of its business as carried on at the date
hereof.
p. Underwriting Guidelines. Without the prior written
consent of Buyer, Seller shall not amend or otherwise modify the Underwriting
Guidelines. Without limiting the foregoing, in the event that Seller makes any
amendment or modification to the Underwriting Guidelines, Seller shall promptly
deliver to Buyer a complete copy of the amended or modified Underwriting
Guidelines.
q. Distributions. If an Event of Default has occurred
and is occurring, Seller shall not pay any dividends with respect to any capital
stock or other equity interests in such
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entity, whether now or hereafter outstanding, or make any other distribution in
respect thereof, either directly or indirectly, whether in cash or property or
in obligations of Seller.
r. Applicable Law. Seller shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
Governmental Authority.
s. Existence. Seller shall preserve and maintain their
legal existence and all of their material rights, privileges, licenses and
franchises.
t. Chief Executive Office; Jurisdiction of Organization.
Seller shall not move its chief executive office from the address referred to in
Section 13(a)(17) or change its jurisdiction of organization from the
jurisdiction referred to in Section 13(a)(17) unless it shall have provided
Buyer 30 days' prior written notice of such change.
u. Taxes. Seller shall pay and discharge all taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or on any of its property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge or levy the payment of
which is being contested in good faith and by proper proceedings and against
which adequate reserves are being maintained.
v. Transactions with Affiliates. Seller will not enter
into any transaction, including, without limitation, any purchase, sale, lease
or exchange of property or the rendering of any service, with any Affiliate
unless such transaction is (a) otherwise permitted under the Program Agreements,
(b) in the ordinary course of Seller's business and (c) upon fair and reasonable
terms no less favorable to Seller than it would obtain in a comparable arm's
length transaction with a Person which is not an Affiliate, or make a payment
that is not otherwise permitted by this Section to any Affiliate.
w. Guarantees. Seller shall not create, incur, assume or
suffer to exist any Guarantees, except (i) to the extent reflected in Seller's
financial statements or notes thereto and (ii) to the extent the aggregate
Guarantees of Seller do not exceed $750,000.
x. Indebtedness. Seller shall not incur any additional
material Indebtedness (other than (i) the Existing Indebtedness in amounts not
to exceed the amounts specified on Exhibit K hereto and (ii) usual and customary
accounts payable for a mortgage company) without the prior written consent of
Buyer.
y. Hedging. Seller has entered into Interest Rate
Protection Agreements with respect to the Alt A Mortgage Loans, Jumbo Mortgage
Loans and Conforming Mortgage Loans, having terms with respect to protection
against fluctuations in interest rates acceptable to Buyer in its sole
discretion.
z. True and Correct Information. All information,
reports, exhibits, schedules, financial statements or certificates of Seller,
any Affiliate thereof or any of their officers furnished to Buyer hereunder and
during Buyer's diligence of Seller are and will be true and complete and do not
omit to disclose any material facts necessary to make the statements herein or
therein, in light of the circumstances in which they are made, not misleading.
All required financial statements, information and reports delivered by Seller
to Buyer pursuant to
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this Agreement shall be prepared in accordance with U.S. GAAP, or, if
applicable, to SEC filings, the appropriate SEC accounting regulations.
aa. Agency Approvals; Servicing. Seller shall maintain
its status with Xxxxxx Xxx as an approved lender and Xxxxxxx Mac as an approved
seller/servicer, in each case in good standing. Seller shall service all
Purchased Mortgage Loans which are Committed Mortgage Loans in accordance with
the applicable agency guide. Should Seller, for any reason, cease to possess all
such applicable Agency Approvals, or should notification to the relevant Agency
or to The Department of Housing and Urban Development, FHA or VA be required,
such Seller shall so notify Buyer immediately in writing. Notwithstanding the
preceding sentence, Seller shall take all necessary action to maintain all of
their applicable Agency Approvals at all times during the term of this Agreement
and each outstanding Transaction. Seller has adequate financial standing,
servicing facilities, procedures and experienced personnel necessary for the
sound servicing of mortgage loans of the same types as may from time to time
constitute Mortgage Loans and in accordance with Accepted Servicing Practices.
bb. Take-out Payments. With respect to each Committed
Mortgage Loan, Seller shall arrange that all payments under the related Take-out
Commitment shall be paid directly to Buyer at the account set forth in Section 9
hereof, or to an account approved by Buyer in writing prior to such payment.
With respect to any Agency Take-out Commitment, if applicable, (1) with respect
to the wire transfer instructions as set forth in Xxxxxxx Mac Form 987 (Wire
Transfer Authorization for a Cash Warehouse Delivery) such wire transfer
instructions are identical to Buyer's wire instructions or Buyer has approved
such wire transfer instructions in writing in its sole discretion, or (2) the
Payee Number set forth on Xxxxxx Mae Form 1068 (Fixed-Rate, Graduated-Payment,
or Growing-Equity Mortgage Loan Schedule) or Xxxxxx Xxx Form 1069
(Adjustable-Rate Mortgage Loan Schedule), as applicable, is identical to the
Payee Number that has been identified by Buyer in writing as Buyer's Payee
Number or Buyer has previously approved the related Payee Number in writing in
its sole discretion; with respect to any Take-out Commitment with an Agency, the
applicable agency documents list Buyer as sole subscriber, unless otherwise
agreed to in writing by Buyer, in Buyer's sole discretion.
cc. No Pledge. Seller shall not pledge, transfer or
convey any security interest in the Collection Account to any Person without the
express written consent of Buyer.
15. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default"
hereunder:
a. Payment Failure. Failure of Seller to (i) make any
payment of Price Differential or Repurchase Price or any other sum which has
become due, on a Price Differential Payment Date or a Repurchase Date or
otherwise, whether by acceleration or otherwise, under the terms of this
Agreement, any other warehouse and security agreement or any other document
evidencing or securing indebtedness of Seller to Buyer or to any affiliate of
Buyer, or (ii) cure any Margin Deficit when due pursuant to Section 6 hereof.
b. Cross Default. (i) Seller or any of Seller's
Affiliates shall be in default under (i) any Indebtedness of Seller or of such
Affiliate which default (1) involves the failure to
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pay a matured obligation, or (2) permits the acceleration of the maturity of
obligations by any other party to or beneficiary with respect to such
Indebtedness, or (ii) any other contract to which Seller or such Affiliate is a
party which default (1) involves the failure to pay a matured obligation, or (2)
permits the acceleration of the maturity of obligations by any other party to or
beneficiary of such contract.
c. Assignment. Assignment or attempted assignment by
Seller of this Agreement or any rights hereunder without first obtaining the
specific written consent of Buyer, or the granting by Seller of any security
interest, lien or other encumbrances on any Purchased Mortgage Loans to any
person other than Buyer.
d. Insolvency. An Act of Insolvency shall have occurred
with respect to Seller, or any Affiliate.
e. Material Adverse Change. Any material adverse change
in the Property, business, financial condition or operations of Seller or any of
its Affiliates shall occur, in each case as determined by Buyer in its sole good
faith discretion, or any other condition shall exist which, in Buyer's sole good
faith discretion, constitutes a material impairment of Seller's ability to
perform its obligations under this Agreement or any other Program Agreement.
f. Breach of Financial Representation or Covenant or
Obligation. A breach by Seller of any of the representations, warranties or
covenants or obligations set forth in Sections 13(a)(1), 13(a)(7), 13(a)(12),
13(a)(19), 13(a)(24), 14(a), 14(b), 14(d), 14(e), 14(s), 14(w), 14(x) or 14(cc)
of this Agreement.
g. Breach of Non-Financial Representation or Covenant. A
breach by Seller of any other material representation, warranty or covenant set
forth in this Agreement (and not otherwise specified in Section 15(f) above))
breach is not cured within five (5) Business Days (other than the
representations and warranties set forth in Schedule 1, which shall be
considered solely for the purpose of determining the Market Value and the
obligation to repurchase such Mortgage Loan unless (i) Seller shall have made
any such representations and warranties with knowledge that they were materially
false or misleading at the time made, (ii) any such representations and
warranties have been determined by Buyer in its sole discretion to be materially
false or misleading on a regular basis, or (iii) Buyer, in its sole discretion,
determines that such breach of a material representation, warranty or covenant
materially and adversely affects (A) the condition (financial or otherwise) of
Seller, its Subsidiaries or Affiliates; or (B) Buyer's determination to enter
into this Agreement or Transactions with Seller, then such breach shall
constitute an immediate Event of Default and Seller shall have no cure right
hereunder.
h. Failure to Transfer. Seller fails to transfer the
Purchased Mortgage Loans to Buyer on the applicable Purchase Date (provided
Buyer has tendered the related Purchase Price).
i. Judgment. A final judgment or judgments for the
payment of money in excess of $750,000 in the aggregate shall be rendered
against the Seller or any of its Affiliates by one or more courts,
administrative tribunals or other bodies having jurisdiction and the same
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shall not be satisfied, discharged (or provision shall not be made for such
discharge) or bonded, or a stay of execution thereof shall not be procured,
within 30 days from the date of entry thereof.
j. Government Action. Any Governmental Authority or any
person, agency or entity acting or purporting to act under governmental
authority shall have taken any action to condemn, seize or appropriate, or to
assume custody or control of, all or any substantial part of the Property of
Seller or any Affiliate, or shall have taken any action to displace the
management of Seller or any Affiliate or to curtail its authority in the conduct
of the business of Seller or any Affiliate, or takes any action in the nature of
enforcement to remove, limit or restrict the approval of Seller or Affiliate as
an issuer, buyer or a seller/servicer of Loans or securities backed thereby, and
such action provided for in this subparagraph (l) shall not have been
discontinued or stayed within 30 days.
k. Inability to Perform. An officer of Seller shall
admit its inability to, or its intention not to, perform any of Seller's
Obligations hereunder.
l. Security Interest. This Agreement shall for any
reason cease to create a valid, first priority security interest in any material
portion of the Purchased Mortgage Loans purported to be covered hereby.
m. Financial Statements. Seller's audited annual
financial statements or the notes thereto or other opinions or conclusions
stated therein shall be qualified or limited by reference to the status of
Seller as a "going concern" or a reference of similar import.
An Event of Default shall be deemed to be continuing unless
expressly waived by Buyer in writing.
16. REMEDIES UPON DEFAULT
In the event that an Event of Default shall have occurred:
a. Buyer may, at its option (which option shall be
deemed to have been exercised immediately upon the occurrence of an Act of
Insolvency), declare an Event of Default to have occurred hereunder and, upon
the exercise or deemed exercise of such option, the Repurchase Date for each
Transaction hereunder shall, if it has not already occurred, be deemed
immediately to occur (except that, in the event that the Purchase Date for any
Transaction has not yet occurred as of the date of such exercise or deemed
exercise, such Transaction shall be deemed immediately canceled). Buyer shall
(except upon the occurrence of an Act of Insolvency) give notice to Seller of
the exercise of such option as promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the
option referred to in subparagraph (a) of this Section, (i) Seller's obligations
in such Transactions to repurchase all Purchased Mortgage Loans, at the
Repurchase Price therefor on the Repurchase Date determined in accordance with
subparagraph (a) of this Section, shall thereupon become immediately due and
payable, (ii) all Income paid after such exercise or deemed exercise shall be
retained by Buyer and applied, in Buyer's sole discretion, to the aggregate
unpaid Repurchase Prices for all outstanding Transactions and any other amounts
owing by Seller hereunder, and (iii) Seller shall
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immediately deliver to Buyer the Mortgage Files relating to any Purchased
Mortgage Loans subject to such Transactions then in Seller's possession or
control.
c. Buyer also shall have the right to obtain physical
possession, and to commence an action to obtain physical possession, of all
Records and files of Seller relating to the Purchased Mortgage Loans and all
documents relating to the Purchased Mortgage Loans (including, without
limitation, any legal, credit or servicing files with respect to the Purchased
Mortgage Loans) which are then or may thereafter come in to the possession of
Seller or any third party acting for Seller. To obtain physical possession of
any Purchased Mortgage Loans held by Custodian, Buyer shall present to Custodian
a Trust Receipt and Certification. Buyer shall be entitled to specific
performance of all agreements of Seller contained in this Agreement.
d. Buyer shall have the right to direct all servicers
then servicing any Purchased Mortgage Loans to remit all collections thereon to
Buyer, and if any such payments are received by Seller, Seller shall not
commingle the amounts received with other funds of Seller and shall promptly pay
them over to Buyer. Buyer shall also have the right to terminate any one or all
of the servicers then servicing any Purchased Mortgage Loans with or without
cause. In addition, Buyer shall have the right to immediately sell the Purchased
Mortgage Loans. Such disposition of Purchased Mortgage Loans may be, at Buyer's
option, on either a servicing-released or a servicing-retained basis. Buyer
shall be entitled to place the Purchased Mortgage Loans in a pool for issuance
of mortgage-backed securities at the then-prevailing price for such securities
and to sell such securities for such prevailing price in the open market. Buyer
shall also be entitled to sell any or all of such Mortgage Loans individually
for the prevailing price.
e. Upon the happening of one or more Events of Default,
Buyer may apply any proceeds from the liquidation of the Purchased Mortgage
Loans to the Repurchase Prices hereunder and all other Obligations in the manner
Buyer deems appropriate in its sole discretion.
f. Seller shall be liable to Buyer for (i) the amount of
all reasonable legal or other expenses (including, without limitation, all costs
and expenses of Buyer in connection with the enforcement of this Agreement or
any other agreement evidencing a Transaction, whether in action, suit or
litigation or bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally, further including, without limitation, the
reasonable fees and expenses of counsel (including the costs of internal counsel
of Buyer) incurred in connection with or as a result of an Event of Default,
(ii) damages in an amount equal to the cost (including all fees, expenses and
commissions) of entering into replacement transactions and entering into or
terminating hedge transactions in connection with or as a result of an Event of
Default, and (iii) any other loss, damage, cost or expense directly arising or
resulting from the occurrence of an Event of Default in respect of a
Transaction.
g. To the extent permitted by applicable law, Seller
shall be liable to Buyer for interest on any amounts owing by Seller hereunder,
from the date Seller becomes liable for such amounts hereunder until such
amounts are (i) paid in full by Seller or (ii) satisfied in full by the exercise
of Buyer's rights hereunder. Interest on any sum payable by Seller under this
Section 16(g) shall be at a rate equal to the Post-Default Rate.
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h. Buyer shall have, in addition to its rights
hereunder, any rights otherwise available to it under any other agreement or
applicable law.
i. Buyer may exercise one or more of the remedies
available to Buyer immediately upon the occurrence of an Event of Default and,
except to the extent provided in subsections (a) and (d) of this Section, at any
time thereafter without notice to Seller. All rights and remedies arising under
this Agreement as amended from time to time hereunder are cumulative and not
exclusive of any other rights or remedies which Buyer may have.
j. Buyer may enforce its rights and remedies hereunder
without prior judicial process or hearing, and Seller hereby expressly waives
any defenses Seller might otherwise have to require Buyer to enforce its rights
by judicial process. Seller also waives any defense (other than a defense of
payment or performance) Seller might otherwise have arising from the use of
nonjudicial process, enforcement and sale of all or any portion of the Purchased
Mortgage Loans, or from any other election of remedies. Seller recognizes that
nonjudicial remedies are consistent with the usages of the trade, are responsive
to commercial necessity and are the result of a bargain at arm's length.
k. Buyer shall have the right to perform reasonable due
diligence with respect to Seller and the Mortgage Loans, which review shall be
at the expense of Seller.
17. REPORTS
a. Notices. Seller shall furnish to Buyer (x) promptly,
copies of any material and adverse notices (including, without limitation,
notices of defaults, breaches, potential defaults or potential breaches) and any
material financial information that is not otherwise required to be provided by
Seller hereunder which is given to Seller's lenders, (y) immediately, notice of
the occurrence of any Event of Default hereunder or default or breach by Seller
or Servicer of any obligation under any Program Agreement or any material
contract or agreement of Seller or Servicer or the occurrence of any event or
circumstance that such party reasonably expects has resulted in, or will, with
the passage of time, result in a Material Adverse Effect or an Event of Default
or such a default or breach by such party and (z) the following:
(1) as soon as available and in any event within forty
five (45) calendar days after the end of each quarter, the unaudited
consolidated balance sheets of Seller as at the end of such period and
the related unaudited consolidated statements of income and retained
earnings and of cash flows for the Seller for such period and the
portion of the fiscal year through the end of such period, accompanied
by a certificate of a Responsible Officer of Seller, which certificate
shall state that said consolidated financial statements fairly present
in all material respects the consolidated financial condition and
results of operations of Seller in accordance with GAAP, consistently
applied, as at the end of, and for, such period (subject to normal
year-end adjustments);
(2) as soon as available and in any event within ninety
(90) days after the end of each fiscal year of Seller, the consolidated
and consolidating balance sheets of Seller as at the end of such fiscal
year and the related consolidated statements of income and retained
earnings and of cash flows for the Seller for such year, setting forth
in each case
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in comparative form the figures for the previous year, accompanied by
an opinion thereon of independent certified public accountants, of
recognized national standing and a member of AICPA, which opinion and
the scope of audit shall be acceptable to Buyer in its sole discretion,
shall have no "going concern" qualification, which opinion shall state
that said consolidated financial statements fairly present the
consolidated financial condition and results of operations of Seller as
at the end of, and for, such fiscal year in accordance with GAAP;
(3) such other prepared statements that Buyer may
reasonably request;
(4) if applicable, copies of any 10-Ks, 10-Qs,
registration statements and other "corporate finance" SEC filings
(other than 8-Ks) by Seller, within 5 Business Days of their filing
with the SEC; provided, that, Seller, [or any Affiliate] will provide
Buyer and Credit Suisse First Boston Corporation with a copy of the
annual 10-K filed with the SEC by Seller or its affiliates, no later
than 90 days after the end of the year;
(5) from time to time such other information regarding
the financial condition, operations, or business of the Seller as Buyer
may reasonably request;
(6) as soon as reasonably possible, and in any event
within thirty (30) days after a Responsible Officer of the Seller has
knowledge of the occurrence of any Event of Termination, stating the
particulars of such Event of Termination in reasonable detail;
(7) As soon as reasonably possible, notice of any of the
following events:
(a) change in the insurance coverage required of
Seller, Servicer or any other Person pursuant to any Program
Agreement, with a copy of evidence of same attached;
(b) any material dispute, litigation,
investigation, proceeding or suspension between Seller or
Servicer, on the one hand, and any Governmental Authority or
any Person;
(c) any material change in accounting policies
or financial reporting practices of Seller or Servicer;
(d) with respect to any Purchased Mortgage Loan,
immediately upon receipt of notice or knowledge thereof, that
the underlying Secured Property has been damaged by waste,
fire, earthquake or earth movement, windstorm, flood, tornado
or other casualty, or otherwise damaged so as to affect
adversely the value of such Mortgaged Loan;
(e) any material issues raised upon examination
of Seller or Seller's facilities by any Governmental
Authority;
(f) promptly upon receipt of notice or knowledge
of (i) any default related to any Repurchase Asset, (ii) any
lien or security interest (other than
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security interests created hereby or by the other Program
Agreements) on, or claim asserted against, any of the
Purchased Mortgage Loans; and
(g) any other event, circumstance or condition
that has resulted, or has a possibility of resulting, in a
Material Adverse Effect with respect to Seller or Servicer.
b. Officer's Certificates.
(1) Seller will furnish to Buyer, at the time the Servicer
furnishes each set of financial statements pursuant to Section 17(a)(1)
or (2) above, a certificate of a Responsible Officer of Seller in the
form of Exhibit D hereto.
c. Mortgage Loan Reports. Seller will furnish to Buyer
monthly electronic Mortgage Loan performance data, including, without
limitation, delinquency reports (i.e., delinquency, foreclosure and net
charge-off reports).
d. Asset Tape. Seller shall provide to Buyer,
electronically, in a format mutually acceptable to Buyer and Seller, an Asset
Tape by no later than the Reporting Date.
e. Other. Seller shall deliver to Buyer any other
reports or information reasonably requested by Buyer or as otherwise required
pursuant to this Agreement.
18. REPURCHASE TRANSACTIONS
Buyer may, in its sole election, engage in repurchase
transactions with the Purchased Mortgage Loans or otherwise pledge, hypothecate,
assign, transfer or otherwise convey the Purchased Mortgage Loans with a
counterparty of Buyer's choice. Unless an Event of Default shall have occurred,
no such transaction shall relieve Buyer of its obligations to transfer Purchased
Mortgage Loans to Seller pursuant to Section 4 or 6 hereof, or of Buyer's
obligation to credit or pay Income to, or apply Income to the obligations of,
Seller pursuant to Section 7 hereof. In the event Buyer engages in a repurchase
transaction with any of the Purchased Mortgage Loans or otherwise pledges or
hypothecates any of the Purchased Mortgage Loans, Buyer shall have the right to
assign to Buyer's counterparty any of the applicable representations or
warranties herein and the remedies for breach thereof, as they relate to the
Purchased Mortgage Loans that are subject to such repurchase transaction.
19. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereunto,
and will enter into each Transaction hereunder, in consideration of and in
reliance upon the fact that, all Transactions hereunder constitute a single
business and contractual relationship and have been made in consideration of
each other. Accordingly, each of Buyer and Seller agrees (i) to perform all of
its obligations in respect of each Transaction hereunder, and that a default in
the performance of any such obligations shall constitute a default by it in
respect of all Transactions hereunder, (ii) that each of them shall be entitled
to set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of
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them in respect of any Transaction shall be deemed to have been made in
consideration of payments, deliveries and other transfers in respect of any
other Transactions hereunder, and the obligations to make any such payments,
deliveries and other transfers may be applied against each other and netted.
20. NOTICES AND OTHER COMMUNICATIONS
Any and all notices (with the exception of Transaction
Requests or Purchase Confirmations, which shall be delivered via facsimile
only), statements, demands or other communications hereunder may be given by a
party to the other by mail, facsimile, telegraph, messenger or otherwise to the
address specified below, or so sent to such party at any other place specified
in a notice of change of address hereafter received by the other. All notices,
demands and requests hereunder may be made orally, to be confirmed promptly in
writing, or by other communication as specified in the preceding sentence.
If to Seller:
United Financial Mortgage Corp.
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Phone Number: 630.571.7222 ext. 122
with a copy to:
Xxxxxx X. Xxxx, Attorney at Law
000x Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
If to Buyer:
For Transaction Requests and Purchase Confirmations:
Credit Suisse First Boston Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone Number: 000-000-0000
Fax Number: 000-000-0000
For all other Notices:
Credit Suisse First Boston Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Xxxxx Xxxxxx
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with a copy to:
Credit Suisse First Boston Mortgage Capital LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
21. ENTIRE AGREEMENT; SEVERABILITY
This Agreement shall supersede any existing agreements between
the parties containing general terms and conditions for repurchase transactions.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
Each provision and agreement herein shall be treated as separate and independent
from any other provision or agreement herein and shall be enforceable
notwithstanding the unenforceability of any such other provision or agreement.
22. NON ASSIGNABILITY
The Program Agreements are not assignable by Seller. Buyer may from time to time
assign all or a portion of its rights and obligations under this Agreement and
the Program Agreements; provided, however that Buyer shall maintain, for review
by Seller upon written request, a register of assignees and a copy of an
executed assignment and acceptance by Buyer and assignee ("Assignment and
Acceptance"), specifying the percentage or portion of such rights and
obligations assigned. Upon such assignment, (a) such assignee shall be a party
hereto and to each Program Agreement to the extent of the percentage or portion
set forth in the Assignment and Acceptance, and shall succeed to the applicable
rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent
that such rights and obligations have been so assigned by it to either (i) an
Affiliate of Buyer which assumes the obligations of Buyer or (ii) to another
Person approved by Seller (such approval not to be unreasonably withheld) which
assumes the obligations of Buyer, be released from its obligations hereunder and
under the Program Agreements. Unless otherwise stated in the Assignment and
Acceptance, Seller shall continue to take directions solely from Buyer unless
otherwise notified by Buyer in writing. Buyer may distribute to any prospective
assignee any document or other information delivered to Buyer by Seller.
23. SET-OFF
In addition to any rights and remedies of Buyer provided by
law, Buyer shall have the right, with five (5) Business Days' prior notice to
Seller, unless an Event of Default shall have occurred and be continuing, then
without prior notice to Seller, any such notice being expressly waived by Seller
to the extent permitted by applicable law, upon any amount becoming due and
payable by Seller hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by Buyer or any branch or agency
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thereof to or for the credit or the account of Seller. Buyer agrees promptly to
notify Seller after any such set-off and application made by Buyer; provided,
that the failure to give such notice shall not affect the validity of such
set-off and application.
24. BINDING EFFECT; GOVERNING LAW; JURISDICTION
a. This Agreement shall be binding and inure to the
benefit of the parties hereto and their respective successors and assigns.
Seller acknowledges that the obligations of Buyer hereunder or otherwise are not
the subject of any guaranty by, or recourse to, any direct or indirect parent or
other Affiliate of Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH,
AND GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS PRINCIPLES THEREOF.
b. SELLER HEREBY WAIVES TRIAL BY JURY. SELLER HEREBY
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF
NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION OR
PROCEEDING. SELLER HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO,
EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH
RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS.
25. NO WAIVERS, ETC.
No express or implied waiver of any Event of Default by either
party shall constitute a waiver of any other Event of Default and no exercise of
any remedy hereunder by any party shall constitute a waiver of its right to
exercise any other remedy hereunder. No modification or waiver of any provision
of this Agreement and no consent by any party to a departure herefrom shall be
effective unless and until such shall be in writing and duly executed by both of
the parties hereto. Without limitation on any of the foregoing, the failure to
give a notice pursuant to Section 6(a), 16(a) or otherwise, will not constitute
a waiver of any right to do so at a later date.
26. INTENT
a. The parties recognize that each Transaction is a
"repurchase agreement" as that term is defined in Section 101 of Title 11 of the
United States Code, as amended (except insofar as the type of Purchased Mortgage
Loans subject to such Transaction or the term of such Transaction would render
such definition inapplicable), and a "securities contract" as that term is
defined in Section 741 of Title 11 of the United States Code, as amended (except
insofar as the type of assets subject to such Transaction would render such
definition inapplicable).
b. It is understood that either party's right to
liquidate Purchased Mortgage Loans delivered to it in connection with
Transactions hereunder or to exercise any other
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remedies pursuant to Section 16 hereof is a contractual right to liquidate such
Transaction as described in Sections 555 and 559 of Title 11 of the United
States Code, as amended.
c. The parties agree and acknowledge that if a party
hereto is an "insured depository institution," as such term is defined in the
Federal Deposit Insurance Act, as amended ("FDIA"), then each Transaction
hereunder is a "qualified financial contract," as that term is defined in FDIA
and any rules, orders or policy statements thereunder (except insofar as the
type of assets subject to such Transaction would render such definition
inapplicable).
d. It is understood that this Agreement constitutes a
"netting contract" as defined in and subject to Title IV of the Federal Deposit
Insurance Corporation Improvement Act of 1991 ("FDICIA") and each payment
entitlement and payment obligation under any Transaction hereunder shall
constitute a "covered contractual payment entitlement" or "covered contractual
payment obligation", respectively, as defined in and subject to FDICIA (except
insofar as one or both of the parties is not a "financial institution" as that
term is defined in FDICIA).
27. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the
parties is a broker or dealer registered with the SEC under Section 15 of the
1934 Act, the Securities Investor Protection Corporation has taken the position
that the provisions of the SIPA do not protect the other party with respect to
any Transaction hereunder;
b. in the case of Transactions in which one of the
parties is a government securities broker or a government securities dealer
registered with the SEC under Section 15C of the 1934 Act, SIPA will not provide
protection to the other party with respect to any Transaction hereunder; and
c. in the case of Transactions in which one of the
parties is a financial institution, funds held by the financial institution
pursuant to a Transaction hereunder are not a deposit and therefore are not
insured by the Federal Deposit Insurance Corporation or the National Credit
Union Share Insurance Fund, as applicable.
28. POWER OF ATTORNEY
Seller hereby authorizes Buyer to file such financing
statement or statements relating to the Purchased Mortgage Loans without
Seller's signature thereon as Buyer, at its option, may deem appropriate, and
appoints Buyer as Seller's agent and attorney-in-fact to execute any such
financing statement or statements in Seller's name and to perform all other acts
which Buyer deems appropriate to perfect and continue its ownership interest in
and/or the security interest granted hereby, if applicable, and to protect,
preserve and realize upon the Purchased Mortgage Loans, including, but not
limited to, the right to endorse notes, complete blanks in documents, transfer
servicing, and sign assignments on behalf of Seller as its agent and
attorney-in-fact. This agency and power of attorney is coupled with an interest
and is irrevocable without Buyer's consent. Notwithstanding the foregoing, the
power of attorney hereby granted
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may be exercised only during the occurrence and continuance of any Event of
Default hereunder. Seller shall pay the filing costs for any financing statement
or statements prepared pursuant to this Section 28.
29. BUYER MAY ACT THROUGH AFFILIATES
Buyer may, from time to time, designate one or more affiliates for the
purpose of performing any action hereunder.
30. INDEMNIFICATION; OBLIGATIONS
a. Seller agrees to hold Buyer and each of its
respective Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") harmless from and indemnify each
Indemnified Party (and will reimburse each Indemnified Party as the same is
incurred) against all liabilities, losses, damages, judgments, costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) of any kind which may be imposed on, incurred by, or asserted against
any Indemnified Party relating to or arising out of this Agreement, any
Transaction Request, Purchase Confirmation, any Program Agreement or any
transaction contemplated hereby or thereby resulting from anything other than
the Indemnified Party's gross negligence or willful misconduct. Seller also
agrees to reimburse each Indemnified Party for all reasonable expenses in
connection with the enforcement of this Agreement and the exercise of any right
or remedy provided for herein, any Transaction Request, Purchase Confirmation
and any Program Agreement, including, without limitation, the reasonable fees
and disbursements of counsel. Seller's agreements in this Section 30 shall
survive the payment in full of the Repurchase Price and the expiration or
termination of this Agreement. Seller hereby acknowledges that its obligations
hereunder are recourse obligations of Seller and are not limited to recoveries
each Indemnified Party may have with respect to the Purchased Mortgage Loans.
Seller also agrees not to assert any claim against Buyer or any of its
Affiliates, or any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the facility
established hereunder, the actual or proposed use of the proceeds of the
Transactions, this Agreement or any of the transactions contemplated thereby.
THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES,
WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT) OF THE INDEMNIFIED PARTIES.
b. Without limitation to the provisions of Section 4, if
any payment of the Repurchase Price of any Transaction is made by Seller other
than on the then scheduled Repurchase Date thereto as a result of an
acceleration of the Repurchase Date pursuant to Section 16 or for any other
reason, Seller shall, upon demand by Buyer, pay to Buyer an amount sufficient to
compensate Buyer for any losses, costs or expenses that it may reasonably incur
as of a result of such payment.
c. Without limiting the provisions of Section 30(a)
hereof, if Seller fails to pay when due any costs, expenses or other amounts
payable by it under this Agreement, including, without limitation, fees and
expenses of counsel and indemnities, such amount may be paid on behalf of Seller
by Buyer, in its sole discretion.
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31. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
32. CONFIDENTIALITY
This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and Agent and shall
be held by Seller in strict confidence and shall not be disclosed to any third
party without the written consent of Buyer except for (i) disclosure to Seller's
direct and indirect affiliates and Subsidiaries, attorneys or accountants, but
only to the extent such disclosure is necessary and such parties agree to hold
all information in strict confidence, or (ii) disclosure required by law, rule,
regulation or order of a court or other regulatory body.
33. RECORDING OF COMMUNICATIONS
Buyer and Seller shall have the right (but not the obligation)
from time to time to make or cause to be made tape recordings of communications
between its employees and those of the other party with respect to Transactions.
Buyer and Seller consent to the admissibility of such tape recordings in any
court, arbitration, or other proceedings. The parties agree that a duly
authenticated transcript of such a tape recording shall be deemed to be a
writing conclusively evidencing the parties' agreement.
34. NON-UTILIZATION FEE
Commencing on the third calendar month following the Closing
Date, no later than the 10th day of each calendar month, Seller shall pay in
immediately available funds to Buyer a non-refundable fee calculated in
accordance with the formula set forth in the schedule attached hereto as Annex
II. Such payment shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to Buyer at such account designated
by Buyer.
35. PERIODIC DUE DILIGENCE REVIEW
Seller acknowledges that Buyer has the right to perform
continuing due diligence reviews with respect to the Mortgage Loans, for
purposes of verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and Seller agrees that upon
reasonable (but no less than one (1) Business Day's) prior notice unless an
Event of Default shall have occurred, in which case no notice is required, to
Seller, Buyer or its authorized representatives will be permitted during normal
business hours to examine, inspect, and make copies and extracts of, the
Mortgage Files and any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession or under the
control of Seller and/or the Custodian. Seller also shall make available to
Buyer a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Mortgage Files and the Mortgage Loans.
Without limiting the generality of the foregoing, Seller acknowledges that Buyer
may purchase Mortgage Loans from Seller based solely upon the information
provided by Seller to Buyer in the Purchased Assets Schedule and the
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representations, warranties and covenants contained herein, and that Buyer, at
its option, has the right at any time to conduct a partial or complete due
diligence review on some or all of the Mortgage Loans purchased in a
Transaction, including, without limitation, ordering Broker's price opinions,
new credit reports and new appraisals on the related Mortgaged Properties and
otherwise re-generating the information used to originate such Mortgage Loan.
Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon
third party underwriter to perform such underwriting. Seller agrees to cooperate
with Buyer and any third party underwriter in connection with such underwriting,
including, but not limited to, providing Buyer and any third party underwriter
with access to any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession, or under the
control, of Seller. Seller further agrees that Seller shall pay all
out-of-pocket costs and expenses incurred by Buyer in connection with Buyer's
activities pursuant to this Section 35 ("Due Diligence Costs").
[Signature Page Follows]
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Credit Suisse First Boston Mortgage Capital LLC
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
----------------------------------------------------
Date:
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United Financial Mortgage Corp.
By: /s/ Xxxxx Xxxxxxxx
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Title: Chief Financial Officer
Date: August 29, 2001
