Exhibit 10.1
[THE BOND MARKET ASSOCIATION LOGO]
MASTER REPURCHASE AGREEMENT
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September 1996 Version
Dated as of May 29, 2001
Between: Credit Suisse First Boston Mortgage Capital LLC ("Buyer")
and Origen Special Holdings Corporation ("Seller")
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in
which one party ("Seller") agrees to transfer to the other
("Buyer") securities or other assets ("Securities") against the
transfer of funds by Buyer, with a simultaneous agreement by Buyer
to transfer to Seller such Securities 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 Annex I hereto and in any other annexes identified herein or
therein as applicable hereunder.
2. DEFINITIONS
(a) "Act of Insolvency", with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding
under any bankruptcy, insolvency, reorganization, liquidation,
moratorium, dissolution, delinquency or similar law, or such
party seeking the appointment or election of a receiver,
conservator, trustee, custodian or similar official for such
party or any substantial part of its property, or the
convening of any meeting of creditors for purposes of
commencing any such case or proceeding or seeking such an
appointment or election, (ii) the commencement of any such
case or proceeding against such party, or another seeking such
an appointment or election, or the filing against a party of
an application for a protective decree under the provisions of
the Securities Investor Protection Act of 1970, which (A) is
consented to or not timely contested by such party, (B)
results in the entry of an order for relief, such an
appointment or election, the issuance of such a protective
decree or the entry of an order having a similar effect, or
(C) is not dismissed within 15 days, (iii) the making by such
party of a general assignment for the benefit of creditors, or
(iv) the admission in writing by such party of such party's
inability to pay such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by
Seller to Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of
any date, the amount obtained by application of the Buyer's
Margin Percentage to the Repurchase Price for such Transaction
as of such date;
(d) "Buyer's Margin Percentage", with respect to any Transaction
as of any date, a percentage (which may be equal to the
Seller's Margin Percentage) agreed to by Buyer and Seller or,
in the absence of any such agreement, the percentage obtained
by dividing the Market Value of the Purchased Securities on
the Purchase Date by the Purchase Price on the Purchase Date
for such Transaction;
(e) "Confirmation", the meaning specified in Paragraph 3(b)
hereof;
(f) "Income", with respect to any Security at any time, any
principal thereof and all interest, dividends or other
distributions thereon;
(g) "Margin Deficit", the meaning specified in Paragraph 4(a)
hereof;
(h) "Margin Excess", the meaning specified in Paragraph 4(b)
hereof;
(i) "Margin Notice Deadline", the time agreed to by the parties in
the relevant Confirmation, Annex I hereto or otherwise as the
deadline for giving notice requiring same-day satisfaction of
margin maintenance obligations as provided in Paragraph 4
hereof (or, in the absence of any such agreement, the deadline
for such purposes established in accordance with market
practice);
(j) "Market Value", with respect to any Securities as of any date,
the price for such Securities on such date obtained from a
generally recognized source agreed to by the parties or the
most recent closing bid quotation from such a source, plus
accrued Income to the extent not included therein (other than
any Income credited or transferred to, or applied to the
obligations of, Seller pursuant to Paragraph 5 hereof) as of
such date (unless contrary to market practice for such
Securities);
(k) "Price Differential", with respect to any Transaction as of
any date, the aggregate amount obtained by daily application
of the Pricing Rate for such Transaction to the Purchase Price
for such Transaction on a 360 day per year basis 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 date of determination (reduced by any
amount of such Price Differential previously paid by Seller to
Buyer with respect to such Transaction);
(l) "Pricing Rate", the per annum percentage rate for
determination of the Price Differential;
(m) "Prime Rate", the prime rate of U.S. commercial banks as
published in The Wall Street Journal (or, if more than one
such rate is published, the average of such rates);
(n) "Purchase Date", the date on which Purchased Securities are to
be transferred by Seller to Buyer;
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(o) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and
(ii) thereafter, except where Buyer and Seller agree
otherwise, such price increased by the amount of any cash
transferred by Buyer to Seller pursuant to Paragraph 4(b)
hereof and decreased by the amount of any cash transferred by
Seller to Buyer pursuant to Paragraph 4(a) hereof or applied
to reduce Seller's obligations under clause (ii) of Paragraph
5 hereof;
(p) "Purchased Securities", the Securities transferred by Seller
to Buyer in a Transaction hereunder, and any Securities
substituted therefor in accordance with Paragraph 9 hereof.
The term "Purchased Securities" with respect to any
Transaction at any time also shall include Additional
Purchased Securities delivered pursuant to Paragraph 4(a)
hereof and shall exclude Securities returned pursuant to
Paragraph 4(b) hereof;
(q) "Repurchase Date", the date on which Seller is to repurchase
the Purchased Securities from Buyer, including any date
determined by application of the provisions of Paragraph 3(c)
or 11 hereof;
(r) "Repurchase Price", the price at which Purchased Securities
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 Price Differential as of the date
of such determination;
(s) "Seller's Margin Amount", with respect to any Transaction as
of any date, the amount obtained by application of the
Seller's Margin Percentage to the Repurchase Price for such
Transaction as of such date;
(t) "Seller's Margin Percentage", with respect to any Transaction
as of any date, a percentage (which may be equal to the
Buyer's Margin Percentage) agreed to by Buyer and Seller or,
in the absence of any such agreement, the percentage obtained
by dividing the Market Value of the Purchased Securities on
the Purchase Date by the Purchase Price on the Purchase Date
for such Transaction.
3. INITIATION; CONFIRMATION; TERMINATION
(a) An agreement to enter into a Transaction may be made orally or
in writing at the initiation of either Buyer or Seller. On the
Purchase Date for the Transaction, the Purchased Securities
shall be transferred to Buyer or its agent against the
transfer of the Purchase Price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or
Seller (or both), as shall be agreed, shall promptly deliver
to the other party a written confirmation of each Transaction
(a "Confirmation"). The Confirmation shall describe the
Purchased Securities (including CUSIP number, if any),
identify Buyer and Seller and set forth (i) the Purchase Date,
(ii) the Purchase Price, (iii) the Repurchase Date, unless the
Transaction is to be terminable on demand, (iv) the Pricing
Rate or Repurchase Price applicable to the Transaction, and
(v) any additional terms or conditions of the Transaction not
inconsistent with this Agreement. The 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 Confirmation relates, unless with
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respect to the Confirmation specific objection is made
promptly after receipt thereof. In the event of any conflict
between the terms of such Confirmation and this Agreement,
this Agreement shall prevail.
(c) In the case of Transactions terminable upon demand, such
demand shall be made by Buyer or Seller, no later than such
time as is customary in accordance with market practice, by
telephone or otherwise on or prior to the business day on
which such termination will be effective. On the date
specified in such demand, or on the date fixed for termination
in the case of Transactions having a fixed term, termination
of the Transaction will be effected by transfer to Seller or
its agent of the Purchased Securities and any Income in
respect thereof received by Buyer (and not previously credited
or transferred to, or applied to the obligations of, Seller
pursuant to Paragraph 5 hereof) against the transfer of the
Repurchase Price to an account of Buyer.
4. MARGIN MAINTENANCE
(a) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular
party hereto is acting as Buyer is less than the aggregate
Buyer's Margin Amount for all such Transactions (a "Margin
Deficit"), then Buyer may by notice to Seller require Seller
in such Transactions, at Seller's option, to transfer to Buyer
cash or additional Securities reasonably acceptable to Buyer
("Additional Purchased Securities"), so that the cash and
aggregate Market Value of the Purchased Securities, including
any such Additional Purchased Securities, will thereupon equal
or exceed such aggregate Buyer's Margin Amount (decreased by
the amount of any Margin Deficit as of such date arising from
any Transactions in which such Buyer is acting as Seller).
(b) If at any time the aggregate Market Value of all Purchased
Securities subject to all Transactions in which a particular
party hereto is acting as Seller exceeds the aggregate
Seller's Margin Amount for all such Transactions at such time
(a "Margin Excess"), then Seller may by notice to Buyer
require Buyer in such Transactions, at Buyer's option, to
transfer cash or Purchased Securities to Seller, so that the
aggregate Market Value of the Purchased Securities, after
deduction of any such cash or any Purchased Securities so
transferred, will thereupon not exceed such aggregate Seller's
Margin Amount (increased by the amount of any Margin Excess as
of such date arising from any Transactions in which such
Seller is acting as Buyer).
(c) If any notice is given by Buyer or Seller under subparagraph
(a) or (b) of this Paragraph at or before the Margin Notice
Deadline on any business day, the party receiving such notice
shall transfer cash or Additional Purchased Securities as
provided in such subparagraph no later than the close of
business in the relevant market on such day. If any such
notice is given after the Margin Notice Deadline, the party
receiving such notice shall transfer such cash or Securities
no later than the close of business in the relevant market on
the next business day following such notice.
(d) Any cash transferred pursuant to this Paragraph shall be
attributed to such Transactions as shall be agreed upon by
Buyer and Seller.
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(e) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer or
Seller (or both) under subparagraphs (a) and (b) of this
Paragraph may be exercised only where a Margin Deficit or
Margin Excess, as the case may be, exceeds a specified dollar
amount or a specified percentage of the Repurchase Prices for
such Transactions (which amount or percentage shall be agreed
to by Buyer and Seller prior to entering into any such
Transactions).
(f) Seller and Buyer may agree, with respect to any or all
Transactions hereunder, that the respective rights of Buyer
and Seller under subparagraphs (a) and (b) of this Paragraph
to require the elimination of a Margin Deficit or a Margin
Excess, as the case may be, may be exercised whenever such a
Margin Deficit or Margin Excess exists with respect to any
single Transaction hereunder (calculated without regard to any
other Transaction outstanding under this Agreement).
5. INCOME PAYMENTS
Seller shall be entitled to receive an amount equal to all Income
paid or distributed on or in respect of the Securities that is not
otherwise received by Seller, to the full extent it would be so
entitled if the Securities had not been sold to Buyer. Buyer
shall, as the parties may agree with respect to any Transaction
(or, in the absence of any such agreement, as Buyer shall
reasonably determine in its discretion), on the date such Income
is paid or distributed either (i) transfer to or credit to the
account of Seller such Income with respect to any Purchased
Securities subject to such Transaction or (ii) with respect to
Income paid in cash, apply the Income payment or payments to
reduce the amount, if any, to be transferred to Buyer by Seller
upon termination of such Transaction. Buyer shall not be obligated
to take any action pursuant to the preceding sentence (A) to the
extent that such action would result in the creation of a Margin
Deficit, unless prior thereto or simultaneously therewith Seller
transfers to Buyer cash or Additional Purchased Securities
sufficient to eliminate such Margin Deficit, or (B) if an Event of
Default with respect to Seller has occurred and is then continuing
at the time such Income is paid or distributed.
6. 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 shall be deemed to
have pledged to Buyer as security for the performance by Seller of
its obligations under each such Transaction, and shall be deemed
to have granted to Buyer a security interest in, all of the
Purchased Securities with respect to all Transactions hereunder
and all Income thereon and other proceeds thereof.
7. PAYMENT AND TRANSFER
Unless otherwise mutually agreed, all transfers of funds hereunder
shall be in immediately available funds. All Securities
transferred by one party hereto to the other party (i) shall be in
suitable form for transfer or shall be accompanied by duly
executed instruments of transfer or assignment in blank and such
other documentation as the party receiving possession may
reasonably request, (ii) shall be transferred on the book-entry
system of a Federal Reserve Bank, or (iii) shall be transferred by
any other method mutually acceptable to Seller and Buyer.
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8. SEGREGATION OF PURCHASED SECURITIES
To the extent required by applicable law, all Purchased Securities
in the possession of Seller shall be segregated from other
securities in its possession and shall be identified as subject to
this Agreement. Segregation may be accomplished by appropriate
identification on the books and records of the holder, including a
financial or securities intermediary or a clearing corporation.
All of Seller's interest in the Purchased Securities shall pass to
Buyer on the Purchase Date and, unless otherwise agreed by Buyer
and Seller, nothing in this Agreement shall preclude Buyer from
engaging in repurchase transactions with the Purchased Securities
or otherwise selling, transferring, pledging or hypothecating the
Purchased Securities, but no such transaction shall relieve Buyer
of its obligations to transfer Purchased Securities to Seller
pursuant to Paragraph 3, 4 or 11 hereof, or of Buyer's obligation
to credit or pay Income to, or apply Income to the obligations of,
Seller pursuant to Paragraph 5 hereof.
REQUIRED DISCLOSURE FOR TRANSACTIONS IN WHICH THE SELLER
RETAINS CUSTODY OF THE PURCHASED SECURITIES
Seller is not permitted to substitute other securities for
those subject to this Agreement and therefore must keep
Buyer's securities segregated at all times, unless in this
Agreement Buyer grants Seller the right to substitute other
securities. If Buyer grants the right to substitute, this
means that Buyer's securities will likely be commingled with
Seller's own securities during the trading day. Buyer is
advised that, during any trading day that Buyer's securities
are commingled with Seller's securities, they [will]* [may]**
be subject to liens granted by Seller to [its clearing bank]*
[third parties]** and may be used by Seller for deliveries on
other securities transactions. Whenever the securities are
commingled, Seller's ability to resegregate substitute
securities for Buyer will be subject to Seller's ability to
satisfy [the clearing]* [any]** lien or to obtain substitute
securities.
* Language to be used under 17 C.F.R.(beta)403.4(e) if
Seller is a government securities broker or dealer other
than a financial institution.
** Language to be used under 17 C.F.R.(beta)403.5(d) if
Seller is a financial institution.
9. SUBSTITUTION
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such
substitution shall be made by transfer to Buyer of such other
Securities and transfer to Seller of such Purchased
Securities. After substitution, the substituted Securities
shall be deemed to be Purchased Securities.
(b) In Transactions in which Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be
deemed, for purposes of subparagraph (a) of this Paragraph, to
have agreed to and accepted in this Agreement substitution by
Seller of other Securities for Purchased Securities; provided,
however, that such other Securities shall have a Market Value
at least equal to the Market Value of the Purchased Securities
for which they are substituted.
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10. REPRESENTATIONS
Each of Buyer and Seller represents and warrants to the other that
(i) it is duly authorized to execute and deliver this Agreement,
to enter into Transactions contemplated hereunder and to perform
its obligations hereunder and has taken all necessary action to
authorize such execution, delivery and performance, (ii) it will
engage in such Transactions as principal (or, if agreed in
writing, in the form of an annex hereto or otherwise, in advance
of any Transaction by the other party hereto, as agent for a
disclosed principal), (iii) the person signing this Agreement on
its behalf is duly authorized to do so on its behalf (or on behalf
of any such disclosed principal), (iv) it has obtained all
authorizations of any governmental body required in connection
with this Agreement and the Transactions hereunder and such
authorizations are in full force and effect and (v) the execution,
delivery and performance of this Agreement and the Transactions
hereunder will not violate any law, ordinance, charter, bylaw or
rule applicable to it or any agreement by which it is bound or by
which any of its assets are affected. On the Purchase Date for any
Transaction Buyer and Seller shall each be deemed to repeat all
the foregoing representations made by it.
11. EVENTS OF DEFAULT
In the event that (i) Seller fails to transfer or Buyer fails to
purchase Purchased Securities upon the applicable Purchase Date,
(ii) Seller fails to repurchase or Buyer fails to transfer
Purchased Securities upon the applicable Repurchase Date, (iii)
Seller or Buyer fails to comply with Paragraph 4 hereof, (iv)
Buyer fails, after one business day's notice, to comply with
Paragraph 5 hereof, (v) an Act of Insolvency occurs with respect
to Seller or Buyer, (vi) any representation made by Seller or
Buyer shall have been incorrect or untrue in any material respect
when made or repeated or deemed to have been made or repeated, or
(vii) Seller or Buyer shall admit to the other its inability to,
or its intention not to, perform any of its obligations hereunder
(each an "Event of Default"):
(a) The nondefaulting party 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). The
nondefaulting party shall (except upon the occurrence of an
Act of Insolvency) give notice to the defaulting party of the
exercise of such option as promptly as practicable.
(b) In all Transactions in which the defaulting party is acting as
Seller, if the nondefaulting party exercises or is deemed to
have exercised the option referred to in subparagraph (a) of
this Paragraph, (i) the defaulting party's obligations in such
Transactions to repurchase all Purchased Securities, at the
Repurchase Price therefor on the Repurchase Date determined in
accordance with subparagraph (a) of this Paragraph, shall
thereupon become immediately due and payable, (ii) all Income
paid after such exercise or deemed exercise shall be retained
by the nondefaulting party and applied to the aggregate unpaid
Repurchase Prices and any other amounts owing by the
defaulting party hereunder, and (iii) the defaulting party
shall immediately deliver to the nondefaulting party any
Purchased Securities subject to such Transactions then in the
defaulting party's possession or control.
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(c) In all Transactions in which the defaulting party is acting as
Buyer, upon tender by the nondefaulting party of payment of
the aggregate Repurchase Prices for all such Transactions, all
right, title and interest in and entitlement to all Purchased
Securities subject to such Transactions shall be deemed
transferred to the nondefaulting party, and the defaulting
party shall deliver all such Purchased Securities to the
nondefaulting party.
(d) If the nondefaulting party exercises or is deemed to have
exercised the option referred to in subparagraph (a) of this
Paragraph, the nondefaulting party, without prior notice to
the defaulting party, may:
(i) as to Transactions in which the defaulting party is
acting as Seller, (A) immediately sell, in a recognized
market (or otherwise in a commercially reasonable
manner) at such price or prices as the nondefaulting
party may reasonably deem satisfactory, any or all
Purchased Securities subject to such Transactions and
apply the proceeds thereof to the aggregate unpaid
Repurchase Prices and any other amounts owing by the
defaulting party hereunder or (B) in its sole discretion
elect, in lieu of selling all or a portion of such
Purchased Securities, to give the defaulting party
credit for such Purchased Securities in an amount equal
to the price therefor on such date, obtained from a
generally recognized source or the most recent closing
bid quotation from such a source, against the aggregate
unpaid Repurchase Prices and any other amounts owing by
the defaulting party hereunder; and
(ii) as to Transactions in which the defaulting party is
acting as Buyer, (A) immediately purchase, in a
recognized market (or otherwise in a commercially
reasonable manner) at such price or prices as the
nondefaulting party may reasonably deem satisfactory,
securities ("Replacement Securities") of the same class
and amount as any Purchased Securities that are not
delivered by the defaulting party to the nondefaulting
party as required hereunder or (B) in its sole
discretion elect, in lieu of purchasing Replacement
Securities, to be deemed to have purchased Replacement
Securities at the price therefor on such date, obtained
from a generally recognized source or the most recent
closing offer quotation from such a source.
Unless otherwise provided in Annex I, the parties acknowledge
and agree that (1) the Securities subject to any Transaction
hereunder are instruments traded in a recognized market, (2)
in the absence of a generally recognized source for prices or
bid or offer quotations for any Security, the nondefaulting
party may establish the source therefor in its sole discretion
and (3) all prices, bids and offers shall be determined
together with accrued Income (except to the extent contrary to
market practice with respect to the relevant Securities).
(e) As to Transactions in which the defaulting party is acting as
Buyer, the defaulting party shall be liable to the
nondefaulting party for any excess of the price paid (or
deemed paid) by the nondefaulting party for Replacement
Securities over the Repurchase Price for the Purchased
Securities replaced thereby and for any amounts payable by the
defaulting party under Paragraph 5 hereof or otherwise
hereunder.
(f) For purposes of this Paragraph 11, the Repurchase Price for
each Transaction hereunder in respect of which the defaulting
party is acting as Buyer shall not increase above the
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amount of such Repurchase Price for such Transaction
determined as of the date of the exercise or deemed exercise
by the nondefaulting party of the option referred to in
subparagraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting
party for (i) the amount of all reasonable legal or other
expenses incurred by the nondefaulting party 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.
(h) To the extent permitted by applicable law, the defaulting
party shall be liable to the nondefaulting party for interest
on any amounts owing by the defaulting party hereunder, from
the date the defaulting party becomes liable for such amounts
hereunder until such amounts are (i) paid in full by the
defaulting party or (ii) satisfied in full by the exercise of
the nondefaulting party's rights hereunder. Interest on any
sum payable by the defaulting party to the nondefaulting party
under this Paragraph 11(h) shall be at a rate equal to the
greater of the Pricing Rate for the relevant Transaction or
the Prime Rate.
(i) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under any
other agreement or applicable law.
12. SINGLE AGREEMENT
Buyer and Seller acknowledge that, and have entered hereinto and
will enter into each Transaction hereunder in consideration of and
in reliance upon the fact that, all Transactions hereunder
constitute a single business and contractual relationship and have
been made in consideration of each other. Accordingly, each of
Buyer and Seller agrees (i) to perform all of its obligations in
respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by
it in respect of all Transactions hereunder, (ii) that each of
them shall be entitled to set off claims and apply property held
by them in respect of any Transaction against obligations owing to
them in respect of any other Transactions hereunder and (iii) that
payments, deliveries and other transfers made by either of them 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.
13. NOTICES AND OTHER COMMUNICATIONS
Any and all notices, 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 in
Annex II hereto, 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.
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14. 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.
15. NON-ASSIGNABILITY; TERMINATION
(a) The rights and obligations of the parties under this Agreement
and under any Transaction shall not be assigned by either
party without the prior written consent of the other party,
and any such assignment without the prior written consent of
the other party shall be null and void. Subject to the
foregoing, this Agreement and any Transactions shall be
binding upon and shall inure to the benefit of the parties and
their respective successors and assigns. This Agreement may be
terminated by either party upon giving written notice to the
other, except that this Agreement shall, notwithstanding such
notice, remain applicable to any Transactions then
outstanding.
(b) Subparagraph (a) of this Paragraph 15 shall not preclude a
party from assigning, charging or otherwise dealing with all
or any part of its interest in any sum payable to it under
Paragraph 11 hereof.
16. GOVERNING LAW
This Agreement shall be governed by the laws of the State of New
York without giving effect to the conflict of law principles
thereof.
17. 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 Paragraph 4(a) or 4(b)
hereof will not constitute a waiver of any right to do so at a
later date.
18. USE OF EMPLOYEE PLAN ASSETS
(a) If assets of an employee benefit plan subject to any provision
of the Employee Retirement Income Security Act of 1974
("ERISA") are intended to be used by either party hereto (the
"Plan Party") in a Transaction, the Plan Party shall so notify
the other party prior to the Transaction. The Plan Party shall
represent in writing to the other party that the Transaction
does not constitute a prohibited transaction under ERISA or is
otherwise exempt therefrom, and the other party may proceed in
reliance thereon but shall not be required so to proceed.
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(b) Subject to the last sentence of subparagraph (a) of this
Paragraph, any such Transaction shall proceed only if Seller
furnishes or has furnished to Buyer its most recent available
audited statement of its financial condition and its most
recent subsequent unaudited statement of its financial
condition.
(c) By entering into a Transaction pursuant to this Paragraph,
Seller shall be deemed (i) to represent to Buyer that since
the date of Seller's latest such financial statements, there
has been no material adverse change in Seller's financial
condition which Seller has not disclosed to Buyer, and (ii) to
agree to provide Buyer with future audited and unaudited
statements of its financial condition as they are issued, so
long as it is a Seller in any outstanding Transaction
involving a Plan Party.
19. 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 Securities 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
Securities delivered to it in connection with Transactions
hereunder or to exercise any other remedies pursuant to
Paragraph 11 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).
20. 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 Securities and Exchange
Commission ("SEC") under Section 15 of the Securities Exchange
Act of 1934 ("1934 Act"), the Securities Investor Protection
Corporation has
September 1996 - Master Repurchase Agreement - 11
taken the position that the provisions of the Securities
Investor Protection Act of 1970 ("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.
Origen Special Holdings Corporation Credit Suisse First Boston Mortgage
Capital LLC
By: /s/ X. Xxxxxxxx Xxxxxx, Jr. By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- --------------------------------
Title: Treasurer Title: Vice President
----------------------------- -----------------------------
Date: May 29, 2001 Date: May 29, 2001
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12 - September 1996 - Master Repurchase Agreement
