Nature of Transactions. (a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder shall be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the related Mortgage Loan Documents; and (ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest. (b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ intent hereunder that any and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest. (c) If any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and to the Collateral to secure the prompt and complete payment and performance of any and all of Seller’s indebtedness and obligations to Bank under this Agreement and the other Warehouse Documents; and (ii) any and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied in such order and priority as Bank may determine. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security.
Appears in 5 contracts
Samples: Mortgage Warehouse Agreement, Mortgage Warehouse Agreement (Home Point Capital Inc.), Mortgage Warehouse Agreement (Caliber Home Loans, Inc.)
Nature of Transactions. (ai) The relationship established Parties intend and expect that each transaction involving the purchase and sale of Oil contemplated hereunder and under any other Transaction Document constitutes a purchase and sale of Oil between them in all respects. However, in the event that any transaction or series of transactions involving the purchase and sale of any Oil hereunder or under any other Transaction Document is recharacterized by any court, bankruptcy trustee or similar authority having competent jurisdiction over the Parties to constitute a loan, financing or other financial accommodation from JPM CCC to Purchaser, then Purchaser shall be deemed to have granted to JPM CCC a valid, enforceable, perfected first-priority security interest in and lien on all of Purchaser’s right, title and interest in and to all such Oil and all products and proceeds thereof before title to any of the foregoing passes from JPM CCC to Purchaser in accordance with Section 2.4 (such Oil, “Supplier Oil”) as security for the payment and performance of all of Purchaser’s obligations under this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage LoansTransaction Documents, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder which liens shall be treated and construed as a sale by Seller automatically released when title to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest Supplier Oil passes to Purchaser in the related Mortgage Loan and the related Mortgage Loan Documents; and accordance with Section 2.4.
(ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties Notwithstanding anything to the contrary contained in this Agreement or any other PartyTransaction Document, and the Parties hereby disclaims any such representations or warrantiesagree that, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall Oil delivered by JPM CCC to Purchaser from time to time under this Agreement with respect to which title to such Oil has passed from JPM CCC to Purchaser but for which Purchaser has not be binding upon rendered payment to JPM CCC for such Oil on the other Partydate and at the time required under Section 3.1 of this Agreement (each, shall not be used by the other Party in any manner inconsistent witha “Specified Payment Time”), Purchaser hereby pledges, assigns and transfers to JPM CCC, and shall not affecthereby grants to JPM CCC, as security for the Parties’ intent hereunder that any prompt and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale complete payment by Seller to Bank, and Purchaser of the purchase by Bank from Sellerprice for any such Specified Oil (collectively, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If any court of competent jurisdiction shall deem any transaction involving Bank“Specified Obligations”), Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and lien on all right, title and interest of Purchaser in or to any and all of the Collateral following assets and properties now owned or at any time hereafter arising or acquired by Purchaser (collectively, the “Specified Collateral”): (a) all Oil delivered by JPM CCC to secure Purchaser under this Agreement [*]with respect to which title to such Oil has passed from JPM CCC to Purchaser but for which Purchaser has not rendered payment to JPM CCC (collectively, the prompt “Specified Oil”), (b) all liquid and complete payment gaseous hydrocarbons and performance other minerals, substances and products refined, produced, processed, and/or derived from or attributable to any Specified Oil, and (c) all other products of any and all of Seller’s indebtedness the foregoing, and obligations (d) all proceeds (as defined in the Uniform Commercial Code) of any and all of the foregoing. If an Event of Default shall have occurred and be continuing, JPM CCC may exercise, in addition to Bank all other rights and remedies granted or available to it under this Agreement, Applicable Law or otherwise, all rights and remedies of a secured party under the Uniform Commercial Code or any other Applicable Law, in each case as in effect from time to time. Without limiting the foregoing, Purchaser and JPM CCC agree that (i) the security interest granted by Purchaser to JPM CCC in any Specified Collateral is and shall constitute a purchase money security interest, the Specified Obligations are and shall constitute purchase money obligations, and the Specified Collateral is and shall constitute purchase money collateral, in each and any case within the meaning of and under the Uniform Commercial Code, (ii) JPM CCC has and shall have all of the rights, remedies and priorities available to the holder of a purchase money security interest under the Uniform Commercial Code, and (iii) all of the Specified Collateral shall secure the payment of all Specified Obligations that would be owed by Purchaser to JPM CCC but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Purchaser.
(iii) This Agreement shall be deemed to constitute a security agreement under the Uniform Commercial Code for the purposes described in clauses (b)(i) and (b)(ii) above. Purchaser hereby authorizes JPM CCC to file a Uniform Commercial Code financing statement with respect to all Supplier Oil and Specified Collateral, whether now owned or hereafter acquired. Notwithstanding the foregoing, neither this Section nor the filing of any Uniform Commercial Code financing statement made pursuant to this Agreement shall in any way be construed as being contrary to the intent of the Parties that the transactions contemplated by this Agreement and the other Warehouse Documents; Transaction Documents be treated as purchases and sales of Oil.
(iiiv) Without limiting the foregoing portions of this Section 8.13(b), and notwithstanding any other term or provision to the contrary in this Agreement, Purchaser hereby agrees that JPM CCC shall be entitled to take all actions reasonably determined by JPM CCC to be necessary to ensure that JPM CCC’s right, title and all amounts received by Bank with respect interest in and to any Participated Mortgage Loan may Oil purportedly owned by JPM CCC and to be applied delivered to Purchaser hereunder or under any other Transaction Document, at all times during which and at all locations at which JPM CCC has any such right, title and interest in and to such order and priority as Bank may determine. For this purposeOil, is secure at all times.
(v) The Parties further intend that (A) this Agreement shall constitute a security “forward contract” under Section 101(25) and a swap agreement in accordance with under Section 101(53b) of Title 11 of the UCCUnited States Code, 11 U.S.C. § 101 et seq., as amended from time to time (the “Bankruptcy Code”), that this Agreement constitutes a “master netting agreement” under Section 101(38a) of the Bankruptcy Code, and Bank shall have all that the rights of the Performing Party in Article VII include the rights referred to in Section 561(a) of the Bankruptcy Code, (B) each Party shall be a secured creditor with respect “forward contract merchant” under Section 101(26) and a “master netting agreement participant” under Section 101(38B), for purposes of the Bankruptcy Code, (C) each of JPM CCC and Purchaser are “forward contract merchants” within the meaning of Section 556 of the Bankruptcy Code and (D) that this Agreement and each Specified Transaction shall constitute an “eligible financial contract” under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and the Winding up and Restructuring Act (Canada), as any of the foregoing legislation may be amended, restated, replaced or re enacted from time to such securitytime and will be similarly treated under and in all proceedings related to bankruptcy or insolvency of a Party subject to Canadian law.
Appears in 2 contracts
Samples: Crude Oil Supply Agreement, Crude Oil Supply Agreement (Northern Tier Retail LLC)
Nature of Transactions. (a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder shall be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the related Mortgage Loan Documents; and (ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s 's characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “"sale” " treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ ' intent hereunder that any and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and to the Collateral to secure the prompt and complete payment and performance of any and all of Seller’s 's indebtedness and obligations to Bank under this Agreement and the other Warehouse Documents; and (ii) any and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied in such order and priority as Bank may determine. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security.
Appears in 1 contract
Samples: Mortgage Warehouse Agreement (Home Point Capital Inc.)
Nature of Transactions. (a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder shall be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the related Mortgage Loan Documents; and (ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ intent hereunder that any and all transaction transactions pursuant to which Bank pays a Purchase Price to Seller is (other than for accounting purposes) a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and to the Collateral to secure the prompt and complete payment and performance of any and all of Seller’s indebtedness and obligations to Bank under this Agreement and the other Warehouse Documents; and (ii) any and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied in such order and priority as Bank may determine. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security.
Appears in 1 contract
Nature of Transactions.
(a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder shall be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the related Mortgage Loan Documents; and (ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s 's characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “"sale” " treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ ' intent hereunder that any and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest..
(c) If any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and to the Collateral to secure the prompt and complete payment and performance of any and all of Seller’s 's indebtedness and obligations to Bank under this Agreement and the other Warehouse Documents; and (ii) any and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied in such order and priority as Bank may determine. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security..
Appears in 1 contract
Samples: Mortgage Warehouse Agreement (EXP World Holdings, Inc.)
Nature of Transactions. (a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it It is the intention of Bank and Seller that: that (i) the purchase and sale of each Participation Interest hereunder shall for all purposes be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the purchase by Bank of a certain undivided percentage ownership interest in the related Mortgage Loan Documents; Loan, and (ii) each purchase of a Participation Interest by Bank and each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of TexasUCC, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest. Notwithstanding any term, condition or other provision of this Agreement or the other Warehouse Documents, it is the intention of Seller and of Bank that nothing contained herein or in the other Warehouse Documents shall be construed in such a way as to constitute any transaction contemplated hereby as a loan or extension of credit from Bank to Seller.
(b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ intent hereunder that any and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If Should any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, loan or extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bankcredit, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document collateral security for Seller’s obligations to the contrary: (i) as of the Effective DateBank under this Agreement, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in the following with respect to each Mortgage Loan in which Bank purchased Participation Interest, wherever the following is located and whether the following is now owned or existing or is owned, acquired, or arises hereafter, including acquisition by contract or by operation of Law (all terms used in this Section which are defined in the UCC shall have the meanings given to such terms in the UCC): (i) all right, title and interest of Seller in and to the Collateral each Mortgage Note and Security Instrument; (ii) all right, title and interest of Seller in and to secure the prompt each Mortgage Loan, guaranty, loan document, Title Policy, insurance policy, take-out commitment, and complete payment any other right ancillary to or securing or relating to any Mortgage Note; (iii) all accounts and performance receivables of Seller arising out of or relating to any and all Mortgage Loans; (iv) all general intangibles of Seller relating to or arising out of any and all Mortgage Loans; (v) all of Seller’s indebtedness the rights of Seller to the payment of money, including tax refund and obligations insurance proceeds, relating to Bank under this Agreement any and all Mortgage Loans or the real properties securing the same; (vi) all files, records, books, ledger cards (including computer programs, tapes and related electronic data processing software) and writings of Seller or in which it has an interest in any way relating to any and all Mortgage Loans; (vii) all other Warehouse Documentspersonal property of Seller of any kind or type whatsoever relating to any and all Mortgage Loans; and (iivii) any all additions, substitutions, replacements, proceeds, interest, and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied products of each of the foregoing described in such order and priority as Bank may determinethis Section. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security.
Appears in 1 contract
Samples: Mortgage Warehouse Agreement (Walter Investment Management Corp)
Nature of Transactions. (a) The relationship established by this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage Loans, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder shall be treated and construed as a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and the related Mortgage Loan Documents; and (ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties to the other Party, and hereby disclaims any such representations or warranties, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall not be binding upon the other Party, shall not be used by the other Party in any manner inconsistent with, and shall not affect, the Parties’ intent hereunder that any and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale by Seller to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If any court of competent jurisdiction shall deem any transaction involving Bank, Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and to the Collateral to secure the prompt and complete payment and performance of any and all of Seller’s indebtedness and obligations to Bank under this Agreement and the other Warehouse Documents; and (ii) any and all amounts received by Bank with respect to any Participated Mortgage Loan may be applied as set forth in such order and priority as Bank may determinethis Agreement. For this purpose, this Agreement shall constitute a security agreement in accordance with the UCC, and Bank shall have all the rights of a secured creditor with respect to such security.
Appears in 1 contract
Nature of Transactions. (ai) The relationship established Parties intend and expect that each transaction involving the purchase and sale of Oil contemplated hereunder and under any other Transaction Document constitutes a purchase and sale of Oil between them in all respects. However, in the event that any transaction or series of transactions involving the purchase and sale of any Oil hereunder or under any other Transaction Document is recharacterized by any court, bankruptcy trustee or similar authority having competent jurisdiction over the Parties to constitute a loan, financing or other financial accommodation from JPM CCC to Purchaser, then Purchaser shall be deemed to have granted to JPM CCC a valid, enforceable, perfected first-priority security interest in and lien on all of Purchaser’s right, title and interest in and to all such Oil and all products and proceeds thereof before title to any of the foregoing passes from JPM CCC to Purchaser in accordance with Section 2.4 (such Oil, “Supplier Oil”) as security for the payment and performance of all of Purchaser’s obligations under this Agreement and the other Warehouse Documents between Bank and Seller is that of a seller and purchaser of Participation Interests in Mortgage LoansTransaction Documents, and not that of a lender and borrower. Subject to Section 10.17(b), it is the intention of Bank and Seller that: (i) the purchase and sale of each Participation Interest hereunder which liens shall be treated and construed as a sale by Seller automatically released when title to Bank, and the purchase by Bank from Seller, of a certain undivided percentage ownership interest Supplier Oil passes to Purchaser in the related Mortgage Loan and the related Mortgage Loan Documents; and accordance with Section 2.4.
(ii) each sale of a Participation Interest by Seller to Bank, and each purchase of a Participation Interest by Bank from Seller, is a sale of an undivided interest in a promissory note to Bank, and that pursuant to Section 9.109 of the UCC of the State of Texas, Bank and Seller’s characterization of each such sale and purchase of a Participation Interest as a purchase and sale of such Participation Interest shall be conclusive that (A) the transaction is a sale and is not a secured transaction and (B) legal and equitable title has passed to Bank in the Mortgage Loan and Mortgage Loan Documents in which Bank acquired such Participation Interest.
(b) Neither Party has made or hereby makes any representations or warranties Notwithstanding anything to the contrary contained in this Agreement or any other PartyTransaction Document, and the Parties hereby disclaims any such representations or warrantiesagree that, regarding the accounting or tax treatment to be applied to any Participation Interest (including whether any such Participation Interest qualifies for “sale” treatment under any applicable accounting rules, regulations or standards). Each Party hereby agrees that it has and will make its own independent determination regarding the accounting and tax treatment to be applied to each Participation Interest, and has not relied upon the other Party in any manner in making such determination. The accounting or tax treatment applied by any Party with respect to any Participation Interest shall Oil delivered by JPM CCC to Purchaser from time to time under this Agreement with respect to which title to such Oil has passed from JPM CCC to Purchaser but for which Purchaser has not be binding upon rendered payment to JPM CCC for such Oil on the other Partydate and at the time required under Section 3.1 of this Agreement (each, shall not be used by the other Party in any manner inconsistent witha “Specified Payment Time”), Purchaser hereby pledges, assigns and transfers to JPM CCC, and shall not affecthereby grants to JPM CCC, as security for the Parties’ intent hereunder that any prompt and all transaction pursuant to which Bank pays a Purchase Price to Seller is for a sale complete payment by Seller to Bank, and Purchaser of the purchase by Bank from Sellerprice for any such Specified Oil (collectively, of a certain undivided percentage ownership interest in the related Mortgage Loan and Mortgage Loan Documents and that legal and equitable title has passed to Bank in the Mortgage Loan in which Bank acquired such Participation Interest.
(c) If any court of competent jurisdiction shall deem any transaction involving Bank“Specified Obligations”), Seller or any Participation Interest governed by this Agreement to be a loan, extension of credit or a secured financing, or if any court of competent jurisdiction shall determine that any purported Participation Interest in any purported Participated Mortgage Loan (or any portion thereof) is the property of Seller or shall otherwise not have been sold by Seller to, and purchased by, Bank, as contemplated herein, then notwithstanding anything herein or in any other Warehouse Document to the contrary: (i) as of the Effective Date, Bank shall have (and Seller shall have been deemed to have pledged, assigned and granted to Bank) a first priority security interest in and lien on all right, title and interest of Purchaser in or to any and all of the Collateral following assets and properties now owned or at any time hereafter arising or acquired by Purchaser (collectively, the “Specified Collateral”): (a) all Oil delivered by JPM CCC to secure Purchaser under this Agreement [*] with respect to which title to such Oil has passed from JPM CCC to Purchaser but for which Purchaser has not rendered payment to JPM CCC (collectively, the prompt “Specified Oil”), (b) all liquid and complete payment gaseous hydrocarbons and performance other minerals, substances and products refined, produced, processed, and/or derived from or attributable to any Specified Oil, and (c) all other products of any and all of Seller’s indebtedness the foregoing, and obligations (d) all proceeds (as defined in the Uniform Commercial Code) of any and all of the foregoing. If [*] The asterisk denotes that confidential portions of this exhibit have been omitted pursuant to Bank Rule 406 of the Securities Act of 1933. The confidential portions have been submitted separately to the Securities and Exchange Commission. an Event of Default shall have occurred and be continuing, JPM CCC may exercise, in addition to all other rights and remedies granted or available to it under this Agreement, Applicable Law or otherwise, all rights and remedies of a secured party under the Uniform Commercial Code or any other Applicable Law, in each case as in effect from time to time. Without limiting the foregoing, Purchaser and JPM CCC agree that (i) the security interest granted by Purchaser to JPM CCC in any Specified Collateral is and shall constitute a purchase money security interest, the Specified Obligations are and shall constitute purchase money obligations, and the Specified Collateral is and shall constitute purchase money collateral, in each and any case within the meaning of and under the Uniform Commercial Code, (ii) JPM CCC has and shall have all of the rights, remedies and priorities available to the holder of a purchase money security interest under the Uniform Commercial Code, and (iii) all of the Specified Collateral shall secure the payment of all Specified Obligations that would be owed by Purchaser to JPM CCC but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving Purchaser.
(iii) This Agreement shall be deemed to constitute a security agreement under the Uniform Commercial Code for the purposes described in clauses (b)(i) and (b)(ii) above. Purchaser hereby authorizes JPM CCC to file a Uniform Commercial Code financing statement with respect to all Supplier Oil and Specified Collateral, whether now owned or hereafter acquired. Notwithstanding the foregoing, neither this Section nor the filing of any Uniform Commercial Code financing statement made pursuant to this Agreement shall in any way be construed as being contrary to the intent of the Parties that the transactions contemplated by this Agreement and the other Warehouse Documents; Transaction Documents be treated as purchases and sales of Oil.
(iiiv) Without limiting the foregoing portions of this Section 8.13(b), and notwithstanding any other term or provision to the contrary in this Agreement, Purchaser hereby agrees that JPM CCC shall be entitled to take all actions reasonably determined by JPM CCC to be necessary to ensure that JPM CCC’s right, title and all amounts received by Bank with respect interest in and to any Participated Mortgage Loan may Oil purportedly owned by JPM CCC and to be applied delivered to Purchaser hereunder or under any other Transaction Document, at all times during which and at all locations at which JPM CCC has any such right, title and interest in and to such order and priority as Bank may determine. For this purposeOil, is secure at all times.
(v) The Parties further intend that (A) this Agreement shall constitute a security “forward contract” under Section 101(25) and a swap agreement in accordance with under Section 101(53b) of Title 11 of the UCCUnited States Code, 11 U.S.C. § 101 et seq., as amended from time to time (the “Bankruptcy Code”), that this Agreement constitutes a “master netting agreement” under Section 101(38a) of the Bankruptcy Code, and Bank shall have all that the rights of the Performing Party in Article VII include the rights referred to in Section 561(a) of the Bankruptcy Code, (B) each Party shall be a secured creditor with respect “forward contract merchant” under Section 101(26) and a “master netting agreement participant” under Section 101(38B), for purposes of the Bankruptcy Code, (C) each of JPM CCC and Purchaser are “forward contract merchants” within the meaning of Section 556 of the Bankruptcy Code and (D) that this Agreement and each Specified Transaction shall constitute an “eligible financial contract” under the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada) and the Winding up and Restructuring Act (Canada), as any of the foregoing legislation may be amended, restated, replaced or re enacted from time to such securitytime and will be similarly treated under and in all proceedings related to bankruptcy or insolvency of a Party subject to Canadian law. [*] The asterisk denotes that confidential portions of this exhibit have been omitted pursuant to Rule 406 of the Securities Act of 1933. The confidential portions have been submitted separately to the Securities and Exchange Commission.
Appears in 1 contract
Samples: Crude Oil Supply Agreement (Northern Tier Retail LLC)
