SECOND AMENDED AND RESTATED MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT between LOANDEPOT.COM, LLC,Seller and BANK OF AMERICA, N.A., Purchaser Dated as of February 2, 2022
EXECUTION
SECOND AMENDED AND RESTATED MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT between XXXXXXXXX.XXX, LLC, Seller and BANK OF AMERICA, N.A., Purchaser Dated as of February 2, 2022 | ||
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
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TABLE OF CONTENTS
Page
Section 1. Definitions. | |||||
Section 2. Procedures for Purchases of Participation Certificates; Facility Fee. | |||||
Section 3. Takeout Commitments. | |||||
Section 4. Holdback Amount. | |||||
Section 5. Issuance of Securities. | |||||
Section 6. Servicing of the Mortgage Loans; Events of Default. | |||||
Section 7. Transfers of Participation Certificates and Securities by Purchaser | |||||
Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest. | |||||
Section 9. Representations and Warranties. | |||||
Section 10. Covenants of Seller | |||||
Section 11. Over/Under Account. | |||||
Section 12. Term | |||||
Section 13. Set-Off | |||||
Section 14. Indemnification | |||||
Section 15. Exclusive Benefit of Parties; Assignment | |||||
Section 16. Amendments; Waivers; Cumulative Rights | |||||
Section 17. Execution in Counterparts | |||||
Section 18. Effect of Invalidity of Provisions | |||||
Section 19. Governing Law | |||||
Section 20. Notices | |||||
Section 21. Entire Agreement | |||||
Section 22. Costs of Enforcement | |||||
Section 23. Intent. | |||||
Section 24. Full Recourse.. | |||||
Section 25. Examination and Oversight by Regulators | |||||
Section 26. Consent to Service | |||||
Section 27. Construction | |||||
Section 28. Further Assurances | |||||
Section 29. Amendment and Restatement | |||||
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EXHIBITS
Exhibit A Participation Certificate
Exhibit B Trade Assignment
Exhibit C Document List
Exhibit D Warehouse Lender’s Release
Exhibit E Assignment
Exhibit F Form of Confirmation
Exhibit G Seller’s Officer’s Certificate (Initial Purchase Date)
Exhibit H Seller’s Officer’s Certificate (Each Purchase Date)
Exhibit I [Reserved]
Exhibit J Form of Request for Temporary Increase
Exhibit K Form of Servicer Notice and Acknowledgment
Annex A Purchaser and Seller Notices
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SECOND AMENDED AND RESTATED MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT
This SECOND AMENDED AND RESTATED MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT (this “Agreement”), is made and entered into as of February 2, 2022, between Bank of America, N.A. (“Purchaser”) and xxxxXxxxx.xxx, LLC (“Seller”).
PRELIMINARY STATEMENT
Purchaser and Seller entered into that certain Mortgage Loan Participation Purchase and Sale Agreement, dated as of July 18, 2012 (as amended, restated, supplemented or otherwise modified from time to time, the “Original Agreement”).
Purchaser and Seller entered into that certain Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of July 17, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Amended and Restated Agreement”) to amend and restate the Original Agreement.
Purchaser and Seller desire to amend the Amended and Restated Agreement in its entirety by amending and restating it subject to the terms and conditions of this Agreement.
Seller desires to sell to Purchaser from time to time all of Seller’s beneficial right, title and interest in and to designated pools of fully amortizing first lien residential Mortgage Loans eligible in the aggregate to back Securities, and the servicing rights relating thereto, with the terms described in related Takeout Commitments, each in the form of a 100% undivided beneficial ownership interest evidenced by a Participation Certificate.
Purchaser desires and may, in its sole discretion, purchase such Participation Certificates from Seller in accordance with the terms and conditions set forth in this Agreement. Seller, subject to the terms hereof, will cause (a) the Related Mortgage Loans to back a GNMA Security issued by Seller and guaranteed by GNMA, a FNMA Security issued and guaranteed by FNMA, or a FHLMC Security issued and guaranteed by FHLMC and (b) Delivery of such GNMA Security, FNMA Security, or FHLMC Security by GNMA, FNMA, or FHLMC, respectively, to Purchaser or its designee in exchange for the Related Participation Certificate, which GNMA Security, FNMA Security or FHLMC Security, as applicable, will be purchased by the Takeout Investor.
Purchaser’s willingness to purchase any Participation Certificate evidencing a beneficial interest in the Related Mortgage Loans and the servicing rights related thereto is at the sole discretion of Purchaser and based on Purchaser’s expectation, in reliance upon Seller’s representations and warranties herein, that (a) such Mortgage Loans in the aggregate, constitute a pool or pools of mortgage loans that are eligible to back a Security, (b) such Mortgage Loans are sufficient for Seller to issue and GNMA to guarantee the GNMA Security, FNMA to issue and guarantee a FNMA Security, or FHLMC to issue and guarantee a FHLMC Security, as applicable, (c) such Security will be issued in the amount and with the terms described in the
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related Takeout Commitment, and (d) Purchaser will receive Delivery of such Security on the specified Anticipated Delivery Date.
The amount of the Purchase Price to be paid by Purchaser to Seller with respect to each Participation Certificate will be calculated on the expectation of Purchaser, based upon the representations and warranties of Seller herein, that Purchaser will receive Delivery of the Security to be backed by the Related Mortgage Loans on the specified Anticipated Delivery Date, and that failure to receive such Delivery will result in a material decrease in the market value of the Participation Certificate and the Related Mortgage Loans considered as a whole. During the period from the purchase of a Participation Certificate to Delivery of the related Security, Purchaser expects to rely entirely upon Seller to subservice or cause the Servicer to subservice the Related Mortgage Loans for the benefit of Purchaser, it being acknowledged that the continued effectiveness of Seller’s Approvals during such period constitutes an essential factor in the calculation by Purchaser of the Purchase Price paid to Seller for the Related Participation Certificate and that loss of such Approvals by Seller would result in a material decrease in the market value of the Participation Certificate and the Related Mortgage Loans considered as a whole.
In consideration of the mutual promises and agreements herein contained the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the meanings set forth in the Custodial Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Ability to Repay Rule”: 12 CFR 1026.43(c), including all applicable official staff commentary.
“Accepted Servicing Practices”: With respect to any Related Mortgage Loan, those accepted and prudent mortgage servicing practices and procedures (including collection procedures) of prudent mortgage lending institutions which service mortgage loans of the same type as the Mortgage Loans in the jurisdiction where the related Mortgaged Property is located, and which are in accordance with the requirements of each Agency Program, applicable law, FHA regulations, VA regulations and RD Regulations and the requirements of any private mortgage insurer so that the FHA insurance, VA guarantee, RD guarantee or any other applicable insurance or guarantee in respect of any Mortgage Loan is not voided or reduced.
“Accrued Interest”: With respect to each Security related to a Participation Certificate, an amount equal to the product obtained by multiplying (a) the number of days in the period beginning on the related Issuance Date to but not including the Anticipated Delivery Date for the related Security, (b) the rate of interest to be borne by the related Security, and (c) the aggregate principal amount of the Related Mortgage Loans, and dividing such number by three hundred and sixty (360).
“Act of Insolvency”: With respect to Seller or any Affiliate of Seller: (i) becoming insolvent or admitting in writing its inability to pay its debts as they come due, or the
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commencement of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy, insolvency or similar law, or the consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official or of any substantial part of its property or the making of an assignment for the benefit of creditors or the failure generally to pay debts as such debts become due or the taking of action in furtherance of any of the foregoing; (ii) a petition or a proceeding shall have been filed or commenced against the Seller or such Affiliate seeking (a) a decree or order for relief in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or any other present or future federal or state bankruptcy laws or similar law, as now or hereafter in effect, (b) the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Seller or such Affiliate or of any substantial part of its property, or (c) the winding up or liquidation of the affairs of the Seller or such Affiliate and such petition or proceeding shall not have been dismissed, or such petition or proceeding shall not have been released, vacated or fully bonded, within sixty (60) days after commencement or filing, as the case may be, or an order or decree for relief against the Seller or such Affiliate shall be entered in any such proceeding; (iii) the making or offering by Seller or such Affiliate of a concession with its creditors or a general assignment for the benefit of creditors; (iv) the Seller or such Affiliate shall (a) either fail or admit in writing its inability to pay or discharge its debts or obligations generally as they become due or mature, (b) admit in writing its inability to, or intention not to, perform any of its material obligations, or (c) voluntarily suspend payment of any of its debts or obligations as they become due or mature; (v) 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 Seller or of any of its Affiliates, or shall have taken any action to displace the management of Seller or of any of its Affiliates or to curtail its authority in the conduct of the business of Seller or of any of its Affiliates; or (vi) the audited annual financial statements of the Seller or such Affiliate or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of the Seller as a “going concern” or a reference of similar import or shall indicate that the Seller has a negative net worth or is insolvent.
“Affiliate”: With respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “control” means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting equity, by contract or otherwise. For removal of doubt, none of MTH Mortgage, LLC, MSC Mortgage, LLC, TRI Pointe Connect, LLC, Day One Mortgage, LLC, Farm Bureau Mortgage, LLC, LGI Mortgage Solutions LLC, Henlopen Mortgage, LLC, BRP Home Mortgage, LLC, CUSA Affordable Housing, LLC, Commercial Agency USA, LLC, NHC Mortgage, LLC, any joint venture formed by Seller or LD Holdings Group LLC after the date hereof, in which Seller or LD Holdings Group LLC directly or indirectly holds less than a 50% ownership interest, or the Permitted Holders shall be considered an Affiliate for purposes of this Agreement or any other Program Document.
“Agency Guide”: The FHLMC Guide, the FNMA Guide, or the GNMA Guide, as applicable.
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“Agency Program”: The FHLMC Program, the FNMA Program, or the GNMA Program, as applicable.
“Aggregate Purchase Price”: As of any date of determination, an amount equal to the aggregate outstanding Purchase Price for all Participation Certificates then owned by Purchaser and subject to the terms of this Agreement.
“Aggregate Transaction Limit”: The sum of (x) $[***] plus (y) the amount of any Temporary Increase agreed to by Purchaser for so long as such Temporary Increase is in effect.
“Anticipated Delivery Date”: With respect to a Security, the date specified in the related Form HUD 11705 (Schedule of Subscribers), Xxxxxx Xxx Form 2014 (Delivery Schedule) or FHLMC Form 966E (Warehouse Provider Release and Transfer), as applicable, or any successor forms, on which it is anticipated that Delivery of the Security by the Applicable Agency will be made, or such additional documents as may be required, supplemented or modified from time to time by the Applicable Agency.
“Anti-Money Laundering Laws”: As defined in Section 9(a)(xii).
“Applicable Agency”: GNMA, FNMA, or FHLMC, as applicable.
“Applicable Percentage”: [***]% per annum.
“Approvals”: With respect to Seller, the approvals obtained by the Applicable Agency, HUD, the FHA, the VA or the RD in designation of Seller as a GNMA-approved issuer, a GNMA-approved servicer, a FHA-approved mortgagee, a VA-approved lender, a RD-approved lender, a FNMA-approved lender or a FHLMC-approved Seller/Servicer, as applicable, in good standing.
“Approved Investor”: Any of Xxxxxx Mae, Xxxxxxx Mac, Xxxxxx Xxx or a member of MBS Clearing Corporation that is either an approved counterparty of Purchaser or its Affiliates or otherwise reasonably acceptable to Purchaser in its sole discretion, who will purchase Securities pursuant to a Takeout Commitment.
“Assignee”: As defined in Section 7.
“Assignment of Mortgage”: 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 beneficial interest in the Mortgage to the Purchaser.
“Bailee Agreement”: A bailee agreement substantially in the form acceptable to Purchaser.
“Bank of America Related Entities”: As defined in Section 13.
“Bankruptcy Code”: Title 00 Xxxxxx Xxxxxx Code, Section 101 et seq., as amended from time to time.
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“Beneficial Ownership Certification”: A certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.
“Business Day”: Any day, excluding Saturday, Sunday and any day that is a legal holiday under the laws of the State of New York and the State of California or as may otherwise be published on Purchaser’s website(s).
“Capital Stock”: As to any Person, any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent equity ownership interests in a Person which is not a corporation, including any and all member or other equivalent interests in any limited liability company, limited partnership, trust, and any and all warrants or options to purchase any of the foregoing, in each case, designated as “securities” (as defined in Section 8-102 of the Uniform Commercial Code) in such Person, including all rights to participate in the operation or management of such Person and all rights to such Person’s properties, assets, interests and distributions under the related organizational documents in respect of such Person. “Capital Stock” also includes (i) all accounts receivable arising out of the related organizational documents of such Person; (ii) all general intangibles arising out of the related organizational documents of such Person; and (iii) to the extent not otherwise included, all proceeds of any and all of the foregoing (including within proceeds, whether or not otherwise included therein, any and all contractual rights under any revenue sharing or similar agreement to receive all or any portion of the revenues or profits of such Person).
“Cash Equivalents”: Any (a) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and Eurodollar time deposits with maturities of ninety (90) days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital, surplus and retained earnings in excess of $[***], (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or p-1 or the equivalent thereof by Xxxxx’x and in either case maturing within ninety (90) days after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A by Xxxxx’x, (f) securities with maturities of ninety (90) days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition, or (g) shares of money market, mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
“Change of Control”: The occurrence of any of the following:
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(a) any event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 51% or more of the equity securities of loanDepot, Inc. entitled to vote for members of the board of directors or equivalent governing body of Seller on a fully-diluted basis;
(b) the sale or disposition of all or substantially all of Seller’s assets (or consummation of any transaction, or series of related transactions, having similar effect);
(c) the dissolution or liquidation of Seller;
(d) any transaction or series of related transactions that has the substantial effect of any one or more of the foregoing; or
(e) if Seller is a Delaware limited liability company, Seller enters into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated.
“Collateral”: As defined in Section 8(c).
“Communication”: As defined in Section 17.
“Confirmation”: A written confirmation of Purchaser’s intent to purchase a Participation Certificate, which written confirmation shall be substantially in the form attached hereto as Exhibit F.
“Contingent Obligations”: Any obligation of Seller arising from an existing condition or situation that involves uncertainty as to outcome and that will be resolved by the occurrence or nonoccurrence of some future event, including, without limitation, any obligation guaranteeing or intended to guarantee any Indebtedness, leases, dividends or other obligations of any other Person in any manner, whether directly or indirectly; provided; however, that endorsements of instruments for deposit or collection in the ordinary course of business shall not be included. With respect to guarantees, the amount of the Contingent Obligation shall be equal to the stated or determinable amount of the primary obligation in respect of the guarantee or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof, as determined by Purchaser.
“Cooperative Corporation”: With respect to any Cooperative Loan, the cooperative apartment corporation that holds legal title to the related Cooperative Project and grants occupancy rights to units therein to stockholders through Proprietary Leases or similar arrangements.
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“Cooperative Loan”: A mortgage loan that is secured by a first lien on and perfected security interest in Cooperative Shares and the related Proprietary Lease granting exclusive rights to occupy the related Cooperative Unit in the building owned by the related Cooperative Corporation.
“Cooperative Project”: With respect to any Cooperative Loan, all real property and improvements thereto and rights therein and thereto owned by a Cooperative Corporation including without limitation the land, separate dwelling units and all common elements.
“Cooperative Shares”: With respect to any Cooperative Loan, the shares of stock issued by a Cooperative Corporation and allocated to a Cooperative Unit and represented by a Stock Certificate.
“Cooperative Unit”: With respect to a Cooperative Loan, a specific unit in a Cooperative Project.
“Custodial Account”: As defined in Section 6(c).
“Custodial Agreement”: The Amended and Restated Custodial Agreement, dated as of July 18, 2012, among Seller, Purchaser and Custodian as amended, supplemented or otherwise modified from time to time.
“Custodian”: Deutsche Bank National Trust Company (which, under the appropriate circumstances, may include FHLMC as Custodian) and its permitted successors under the Custodial Agreement.
“Daily Holdback Reduction Amount”: With respect to a Participation Certificate, an amount equal to the product of (a) the Purchase Price for such Participation Certificate (less the Holdback Amount), and (b) the result obtained by dividing (i) the Discount Rate plus [***] ([***]%) by (ii) three hundred and sixty (360).
“Default Rate”: As of any date of determination, the Default Rate specified in the Master Repurchase Agreement; provided that if the Master Repurchase Agreement is no longer in effect as of such date, the lesser of (i) the Discount Rate plus [***] ([***]%), or (ii) the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged or received under the laws of the United States and the State of New York, per annum.
“Defective Mortgage Loan”: With respect to a Participation Certificate, a Related Mortgage Loan that is not in Strict Compliance with the GNMA Program, FNMA Program, or FHLMC Program, as applicable.
“Delaware LLC Act”: Chapter 18 of the Delaware Limited Liability Company Act, 6 Del. C. §§ 18-101 et seq., as amended.
“Delivery”: The later to occur of (a) the issuance of the related Security and (b) the transfer of all of the right, title and ownership interest in that Security to Purchaser or its designee.
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“Discount Rate”: With respect to each Participation Certificate, a discount rate determined as of the related Purchase Date equal to (a) the greater of (i) One-Month LIBOR or a Successor Rate, and (ii) [***]%, plus (b) the Applicable Percentage.
“Distribution”: As defined in Section 10(l).
“Dividing LLC”: A Delaware limited liability company that is effecting a Division pursuant to and in accordance with Section 18-217 of the Delaware LLC Act.
“Division”: The division of a Dividing LLC into two or more domestic limited liability companies pursuant to and in accordance with Section 18-217 of the Delaware LLC Act.
“Effective Date”: September 28, 2020.
“Electronic Agent”: As defined in Section 2 of the Electronic Tracking Agreement.
“Electronic Tracking Agreement”: The Amended and Restated Electronic Tracking Agreement, dated as of July 18, 2012, among the Purchaser, the Seller, the Electronic Agent and MERS, as the same shall be amended, supplemented or otherwise modified from time to time.
“Events of Default”: As defined in Section 6(e).
“Expiration Date” The earliest of (i) September 26, 2022, (ii) at Purchaser’s option, upon the occurrence of an Event of Default, and (iii) the date on which this Agreement shall terminate in accordance with the provisions hereof or by operation of law.
“Facility Fee”: The greater of (i) $[***] and (ii) the product of [***] basis points ([***]%) and the Aggregate Transaction Limit which shall be due on the Effective Date.
“FDIA: Title 12 United States Code, Section 1811 et seq., as amended from time to time.
“FDIC”: The Federal Deposit Insurance Corporation or any successor thereto.
“FDICIA”: As defined in Section 23(d).
“FHA”: The Federal Housing Administration or any successor thereto.
“FHLMC” or “Xxxxxxx Mac”: The Federal Home Loan Mortgage Corporation or any successor thereto.
“FHLMC as Custodian”: With respect to FHLMC Participation Certificates, the circumstances in which Seller elects to appoint FHLMC (as opposed to some other third party as permitted by the FHLMC Guide) as Custodian for the FHLMC Mortgage Loans subject to the FHLMC Participation Certificates to be purchased by Purchaser hereunder.
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“FHLMC Guide”: The Xxxxxxx Xxx Xxxxxxx' and Servicers' Guide, as such guide may hereafter from time to time be amended.
“FHLMC Mortgage Loan”: With respect to any FHLMC Participation Certificate or any FHLMC Security, a mortgage loan that is in Strict Compliance with the eligibility requirements specified for the applicable FHLMC Program described in the FHLMC Guide.
“FHLMC Participation Certificate”: With respect to the FHLMC Program, a certificate, in the form of Exhibit A, issued by Seller and authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Mortgage Loans that are either (a) set forth on a copy of the FHLMC Form 1034E (Custodial Certification Schedule) attached to such Participation Certificate or (b) identified on a computer tape compatible with Selling System as belonging to the mortgage loan pool described in such Participation Certificate.
“FHLMC Program”: The FHLMC Home Mortgage Guarantor Program or the FHLMC FHA/VA Home Mortgage Guarantor Program, as described in the FHLMC Guide.
“FHLMC Security”: A modified pass-through mortgage-backed participation certificate, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York, issued and guaranteed, with respect to timely payment of interest and ultimate payment of principal, by FHLMC and backed by a pool of FHLMC Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such FHLMC Security in the related Takeout Commitment, if any.
“FNMA” or “Xxxxxx Mae”: The Federal National Mortgage Association or any successor thereto.
“FNMA Guide”: The Xxxxxx Xxx MBS Selling and Servicing Guide, as such guide may hereafter from time to time be amended.
“FNMA Mortgage Loan”: With respect to any FNMA Participation Certificate or any FNMA Security, a mortgage loan that is in Strict Compliance with the eligibility requirements specified for the applicable FNMA Program described in the FNMA Guide.
“FNMA Participation Certificate”: With respect to the FNMA Program, a certificate, in the form of Exhibit A, issued by Seller and authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Mortgage Loans set forth on Xxxxxx Mae Form 2005 (Schedule of Mortgages).
“FNMA Program”: The FNMA Guaranteed Mortgage-Backed Securities Programs, as described in the FNMA Guide.
“FNMA Security”: An ownership interest in a pool of FNMA Mortgage Loans, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York, in substantially the principal amount and with substantially the other terms as specified with respect to such FNMA Security in the related Takeout Commitment, if any.
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“GAAP”: Generally accepted accounting principles as in effect from time to time in the United States of America.
“GNMA” or “Xxxxxx Xxx”: Government National Mortgage Association or any successor thereto.
“GNMA Guide”: The GNMA Mortgage-Backed Securities Guide I or II, as such guide may hereafter from time to time be amended.
“GNMA Mortgage Loan”: With respect to any GNMA Participation Certificate or any GNMA Security, a mortgage loan that is in Strict Compliance with the eligibility requirements specified for the applicable GNMA Program in the applicable GNMA Guide.
“GNMA Participation Certificate”: With respect to the GNMA Program, a certificate, in the form of Exhibit A, issued by Seller and authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Mortgage Loans set forth on the Form HUD 11706 (Schedule of Pooled Mortgages).
“GNMA Program”: The GNMA Mortgage-Backed Securities Programs, as described in the GNMA Guide.
“GNMA Security”: A fully-modified pass-through mortgage-backed certificate guaranteed by GNMA, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York and backed by a pool of Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Security in the related Takeout Commitment.
“Governmental Authority”: With respect to any Person, any nation or government, any state or other political subdivision, agency or instrumentality thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person, any of its Subsidiaries or any of its properties.
“Holdback Amount”: An amount equal to [***]% of the Trade Principal, subject to reduction as provided in Section 4(b) and Section 5(b).
“Xxxxx Investors”: The JLSSAA Trust, established September 4, 2014, JLSA, LLC, Trilogy Mortgage Holdings, Inc., Trilogy Management Investors Six, LLC, Trilogy Management Investors Seven, LLC, Trilogy Management Investors Eight, LLC, and the Affiliates of each of the foregoing.
“HUD”: United States Department of Housing and Urban Development or any successor thereto.
“Indebtedness”: The debt of any Person consisting of, without duplication: (a) indebtedness for borrowed money, including principal, interest, fees and other charges; (b) obligations evidenced by bonds, debentures, notes or other similar instruments; (c) obligations to pay the deferred purchase price of property or services; (d) obligations as lessee under leases that
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shall have been or should be in accordance with GAAP, recorded as capital leases; (e) obligations secured by any lien upon property or assets owned by such Person, even though such Person has not assumed or become liable for payment of such obligations; (f) obligations in connection with any letter of credit issued for the account of such Person; (g) obligations under direct or indirect guarantees in respect of and obligations, contingent or otherwise, to purchase or otherwise acquire, or otherwise assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to above; and (h) all Contingent Obligations.
“IPO”: An initial public offering of shares of Seller and any transactions related thereto.
“Issuance Date”: With respect to a Security, the first day of the month in which the Security is issued.
“Liquidity”: As of any date of determination, the sum of (a) Seller’s unrestricted and unencumbered cash and Cash Equivalents (b) the balance in the Over/Under Account exclusive of funds held due to a Margin Deficit or Margin Call (each as defined in the Master Repurchase Agreement). By way of example but not limitation, cash in escrow and/or impound accounts shall not be included in this calculation.
“Losses”: Any and all losses, claims, judgments, damages, liabilities, costs or expenses (including lost interest and reasonable attorney’s fees) imposed on, incurred by or asserted against any Person specified.
“Master Repurchase Agreement”: That certain Second Amended and Restated Master Repurchase Agreement dated as of August 20, 2021 among loanDepot BA Warehouse LLC, as seller, and Purchaser, as buyer, and acknowledged and agreed by Seller as pledgor and guarantor, together with all amendments, modifications, supplements, restatements and replacements thereof.
“Material Adverse Effect”: Any of the following: (i) a material adverse change in, or a material adverse effect upon, the operations, business, properties, or financial condition of Seller or any Affiliate that is a party to any Program Document taken as a whole, (ii) a material impairment of the ability of Seller or any Affiliate that is a party to any Program Document to perform under any Program Document and to avoid any Event of Default, (iii) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Document against Seller or any Affiliate that is a party to any Program Document, (iv) a material adverse effect on the rights and remedies of Purchaser under any of the Program Documents, (v) a material adverse effect on the marketability, collectability, value or enforceability of a material portion of the Related Mortgage Loans or Securities purchased by Purchaser hereunder, or (vi) a material adverse effect on the Approvals of Seller, in each case as determined by Purchaser in its sole good faith discretion.
“MERS”: Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor in interest thereto.
“MERS Mortgage Loan”: Any Mortgage Loan as to which the related Mortgage or Assignment of Mortgage, has been recorded in the name of MERS, as agent for the holder
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from time to time of the Mortgage Note and which is identified as a MERS Mortgage Loan on the related schedule attached to the Related Participation Certificate.
“MIN”: The mortgage identification number of Mortgage Loans registered with MERS on the MERS System.
“Minimum Over/Under Account Balance”: As of any date of determination, the balance required to be maintained by Seller in the Over/Under Account under the Master Repurchase Agreement; provided that if the Master Repurchase Agreement is no longer in effect as of such date, the Minimum Over/Under Account Balance shall be zero or as otherwise agreed among the parties.
“Moody’s”: Xxxxx’x Investors Service, Inc., and any successor thereto.
“Mortgage”: A first-lien or second-lien mortgage, deed of trust, security deed or similar instrument, on either (i) with respect to a Mortgage Loan other than a Cooperative Loan, improved real property or (ii) with respect to a Cooperative Loan, the Proprietary Lease and related Cooperative Shares.
“Mortgage Loan”: A GNMA Mortgage Loan, a FNMA Mortgage Loan or a FHLMC Mortgage Loan.
“Mortgage Note”: A promissory note or other evidence of indebtedness of the obligor thereunder, evidencing a Mortgage Loan, and secured by the related Mortgage.
“Mortgaged Property”: The real property or other Cooperative Loan collateral securing repayment of the debt evidenced by a Mortgage Note.
“OCC”: Office of the Comptroller of the Currency or any successor thereto.
“One-Month LIBOR”: The daily rate per annum (rounded to four (4) decimal places) for one-month U.S. dollar denominated deposits as offered to prime banks in the London interbank market, as published on the Official ICE LIBOR Fixings page by Bloomberg or in the Wall Street Journal as of the date of determination.
“Over/Under Account”: That account maintained by Purchaser, as described in Section 11 and in the Master Repurchase Agreement, if any.
“Parthenon Investors”: Parthenon Investors III, L.P., PCap Associates, Parthenon Capital Partners Fund, L.P., Parthenon Investors IV, L.P., Parthenon Capital Partners Fund II, L.P. and PCP Managers, L.P., PCAP Partners III LLC, PCAP Partners IV LP and the Affiliates of each of the foregoing.
“Participation Certificate”: A GNMA Participation Certificate, a FNMA Participation Certificate or a FHLMC Participation Certificate, as applicable, that is purchased by Purchaser under this Agreement.
“Permitted Holders”: The Xxxxx Investors and the Parthenon Investors, each a “Permitted Holder”.
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“Permitted Tax Distributions”: As to any taxable period of Seller for which Seller, if a corporation, makes an S corporation election, or if a multi-member limited liability company or a partnership, does not make an election with the Internal Revenue Service to be treated as a corporation, an annual or quarterly distribution necessary to enable each shareholder, partner or member, as applicable, of Seller to pay income taxes attributable to such shareholder, partner or member resulting solely from such shareholder’s, partner’s or member’s allocated share of income of Seller for such period.
“Person”: Any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, unincorporated association or government (or any agency, instrumentality or political subdivision thereof).
“Potential Default”: The occurrence of any event or existence of any condition that, but for the giving of notice, the lapse of time, or both, would constitute an Event of Default.
“Present Value Adjustment Amount”: With respect to each Participation Certificate, an amount equal to the product of (a) the number of days in the period beginning on the related Purchase Date to but not including the Anticipated Delivery Date for the related Security, and (b) the daily application of the applicable Discount Rate, determined as of the related Purchase Date, to the result of (i) the related Trade Principal, less (ii) the Holdback Amount, and dividing such number by 360.
“Program Documents”: This Agreement, the Custodial Agreement, the Electronic Tracking Agreement, the Participation Certificates, any Servicing Agreement together with the related Servicer Notice and all other documents and instruments evidencing the transactions contemplated hereunder, as same may from time to time be supplemented, modified or amended, and any other agreements entered into by Seller and Purchaser in connection herewith or therewith.
“Proprietary Lease”: The lease on a Cooperative Unit evidencing the possessory interest of the owner of the Cooperative Shares in such Cooperative Unit.
“Protocol”: As defined in Section 31 of this Agreement.
“Purchase Date”: With respect to a Participation Certificate, the date on which Purchaser elects to purchase such Participation Certificate.
“Purchase Price”: With respect to each Participation Certificate, a price determined as of the related Purchase Date equal to the sum of (i) the related Trade Principal, plus (ii) the related Accrued Interest, minus (iii) the related Present Value Adjustment Amount, minus (iv) related hedging costs, if any, which are mutually agreed-upon by the Purchaser and Seller.
“Purchase Price Adjustment Amount”: With respect to each Participation Certificate, an amount equal to the product of (a) the number of days in the period beginning on the related Purchase Date to but not including the Settlement Date for the related Security, and (b) the average daily Discount Rate for such period, multiplied by the difference between (i) the related Trade Principal less (ii) the Holdback Amount, and dividing such number by 360.
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“Purchaser”: Bank of America, N.A. and its successors in interest, including, but not limited to, any lender, designee or assignee to whom a Participation Certificate or a Security shall be pledged or assigned.
“QFC Stay Rules”: The regulations codified at 12 C.F.R. 252.2, 252.81-8, 12 C.F.R. 382.1-7 and 12 C.F.R. 47.1-8, which, subject to limited exceptions, require an express recognition of the stay-and-transfer powers of the FDIC under the Federal Deposit Insurance Act and the Orderly Liquidation Authority under Title II of the Xxxx Xxxxx Wall Street Reform and Consumer Protection Act and the override of default rights related directly or indirectly to the entry of an affiliate into certain insolvency proceedings and any restrictions on the transfer of any covered affiliate credit enhancements.
“QM Rule”: 12 CFR 1026.43(e), including all applicable official staff commentary.
“Qualified Mortgage”: A Related Mortgage Loan that satisfies the criteria for a “qualified mortgage” as set forth in the QM Rule.
“RD”: The United States Department of Agriculture Rural Development and any successor thereto.
“RD Regulations”: The regulations promulgated by the RD under the Consolidated Farm and Rural Development Act of 1977; and other RD issuances relating to rural housing loans codified in the Code of Federal Regulations
“Rebuttable Presumption Qualified Mortgage”: A Qualified Mortgage as defined in 12 CFR 1026.43(e) with an annual percentage rate that exceeds the average prime offer rate for a comparable mortgage loan as of the date the interest rate is set by the thresholds set forth in 12 CFR 1026.43(b)(4) or 12 CFR 1026.43(e)(2)(vi), as applicable.
“Related Credit Enhancement”: As defined in Section 8(c).
“Related Mortgage Loan”: A Mortgage Loan in which a Participation Certificate evidences the 100% undivided beneficial ownership interest.
“Related Participation Certificate”: The Participation Certificate relating to a pool of Mortgage Loans.
“Request for Temporary Increase”: As defined in Section 2(f).
“S&P”: S&P Global Ratings, a division of S&P Global Inc., and any successor thereto.
“Safe Harbor Qualified Mortgage”: A Qualified Mortgage with an annual percentage rate that does not exceed the average prime offer rate for a comparable mortgage loan as of the date the interest rate is set by [***] or more percentage points for a first-lien Related Mortgage Loan or by [***] or more percentage points for a subordinate-lien Related Mortgage Loan.
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“Sanctions”: As defined in Section 9(a)(xi).
“Scheduled Unavailability Date”: As defined in Section 30.
“SEC”: The Securities Exchange Commission or any successor thereto.
“Second A&R Effective Date”: February 2, 2022.
“Security”: A GNMA Security, a FNMA Security or a FHLMC Security, as applicable.
“Security Issuance Failure”: The Failure of the Security (a) to be issued for any reason within the reasonable control of the Seller (as determined by Purchaser in its sole good faith discretion), including but not limited to Seller’s failure to perform any of its obligations under this Agreement or any other Program Document or failure to perform in Strict Compliance with the related Agency Program (b) to be issued for any reason outside of the reasonable control of the Seller (as determined by Purchaser in its sole good faith discretion), including, but not limited to, third party systems failures, or (c) to be Delivered to Purchaser or its designee (such designee being properly notified it is holding such Security for Purchaser); provided, that solely with respect to clauses (b) and (c) a Security Issuance Failure shall not have occurred to the extent (i) Seller has performed its obligations under this Agreement and each other Program Document; (ii) Seller has performed in Strict Compliance with the related Agency Program; (iii) such failure to be issued or Delivered arises solely from the acts or omissions of a party other than the Seller (as determined by Purchaser in its sole good faith discretion) and (iv) such failure is cured within one (1) Business Day of Seller’s notice or knowledge of such failure.
“Seller”: The meaning set forth in the preamble, and shall refer to Seller in its capacity as seller of Participation Certificates and Seller in its capacity as subservicer hereunder, as the context shall require.
“Selling System”: The FHLMC automated system by which sellers and servicers of mortgage loans to FHLMC transfer mortgage summary and record data or mortgage accounting and servicing information from their computer system or service bureau to FHLMC, as more fully described in the FHLMC Guide.
“Servicer”: Seller, Cenlar FSB, or such other entity responsible for servicing of the Related Mortgage Loans and that has been approved by Purchaser in writing, or, in each case, any successor or permitted assigns thereof.
“Servicer Notice”: The notice acknowledged by the Servicer which is substantially in the form of Exhibit K hereto.
“Servicing Agreement”: If the Related Mortgage Loans become serviced by any servicer that is not Purchaser, an Affiliate of Purchaser, or Seller, in each case, the agreement with the third party servicer, in form and substance acceptable to Purchaser.
“Servicing Records”: With respect to a Related Mortgage Loan, the related servicing records, including but not limited to any and all servicing agreements, files, documents,
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records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of such Related Mortgage Loan.
“Settlement Date”: The date specified in a Takeout Commitment upon which the related Security is scheduled to be delivered, against payment, to the specified Takeout Investor, which date shall be no later than forty-five (45) days following the Purchase Date in respect of the underlying Participation Certificate.
“SIFMA”: As defined in Section 3.
“SOFR”: With respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source) and, in each case, that has been selected or recommended by the relevant Governmental Authority.
“SOFR-Based Rate”: SOFR or Term SOFR.
“Stock Certificate”: With respect to a Cooperative Loan, the certificates evidencing ownership of the Cooperative Shares issued by the Cooperative Corporation.
“Strict Compliance”: Compliance of Seller and the Related Mortgage Loans with the requirements of the GNMA Guide, FNMA Guide, or FHLMC Guide, as applicable and as amended by any agreements between Seller and the Applicable Agency, sufficient to enable Seller to issue and GNMA to guarantee or FNMA or FHLMC to issue and guarantee a Security; provided, that until copies of any such agreements between Seller and FNMA, FHLMC and/or GNMA have been provided to Purchaser by Seller and agreed to by Purchaser, such agreements shall be deemed, as between Seller and Purchaser, not to amend the requirements of the GNMA Guide, FNMA Guide, or FHLMC Guide, as applicable.
“Subsidiary”: 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.
“Successor Rate”: A rate determined by Purchaser in accordance with Section 30 hereof.
“Successor Rate Conforming Changes”: With respect to any proposed Successor Rate, any spread adjustments or other conforming changes to the timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of Purchaser, to reflect the adoption and implementation of such Successor Rate and to permit the administration thereof by
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Purchaser in a manner substantially consistent with market practice (or, if Purchaser determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Successor Rate exists, in such other manner of administration as Purchaser determines to be necessary in its sole discretion).
“Successor Servicer”: An entity with the necessary Approvals, as the circumstances may require, and designated by Purchaser, in conformity with Section 6(f), to replace Seller as issuer and subservicer, mortgagee or seller/servicer of the Related Mortgage Loans or the Securities related thereto.
“Takeout Commitment”: A fully executed trade confirmation from the Takeout Investor to Seller confirming the details of a forward trade between the Takeout Investor and Seller with respect to one or more Securities relating to a Participation Certificate, which trade confirmation shall be enforceable and in full force and effect, and shall be validly and effectively assigned to Purchaser pursuant to a Trade Assignment, and relate to pools of Related Mortgage Loans that satisfy the “good delivery standards” as more particularly set forth in Section 3 hereof.
“Takeout Investor”: Any of (i) Bank of America, N.A., (ii) Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or (iii) any other Approved Investor with which there is a duly executed and enforceable Trade Assignment in favor of Purchaser.
“Tangible Net Worth”: With respect to Seller, as of any date of determination, the result of (i) the net worth of Seller and its consolidated Subsidiaries, on a combined basis, determined in accordance with GAAP, minus (ii) all intangibles determined in accordance with GAAP (including, without limitation, goodwill, capitalized financing costs and capitalized administration costs but excluding originated and purchased mortgage servicing rights) and any and all advances to, investments in and receivables held from Affiliates; and minus (iii) loans held for investment and real estate owned net of acceptable financing (financing must be deemed acceptable by Purchaser).
“Temporary Increase”: As defined in Section 2(f).
“Term SOFR”: The forward-looking term rate for any period that is approximately one (1) month in duration (as determined by Purchaser) and that is based on SOFR and that has been selected or recommended by the relevant Governmental Authority, in each case as published on an information service as selected by Purchaser from time to time in its reasonable discretion.
“TILA-RESPA Integrated Disclosure Rule”: The Truth-in-Lending Act and Real Estate Settlement Procedures Act Integrated Disclosure Rule, adopted by the Consumer Financial Protection Bureau, which is effective for residential mortgage loan applications received on or after October 3, 2015.
“Total Liabilities”: As of any date of determination, the sum of (a) the total liabilities of Seller on any given date of determination, to be determined in accordance with GAAP consistent with those applied in the preparation of Seller’s financial statements, plus (b) to the extent not already included under GAAP, the total aggregate outstanding amount owed by
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Seller under any purchase, repurchase, refinance or other similar credit arrangements, plus (c) to the extent not already included under GAAP, any “off balance sheet” purchase, repurchase, refinance or other similar credit arrangements (excluding any “off balance sheet” arrangements that are treated as true sale for legal and accounting purposes) minus (d) non-recourse debt.
“Trade Assignment”: A letter substantially in the form of Exhibit B that has been duly executed by an authorized representative of Seller (as set forth in the resolutions of the board of directors of Seller (or its equivalent governing body) as delivered to Purchaser) or, any additional signatory designated by such authorized representative of Seller to Purchaser from time to time (it being understood that the addition of a user on Purchaser’s warehouse lending website by an authorized representative of Seller shall be deemed a valid designation of such user as an additional signatory).
“Trade Price”: The price (expressed as a percentage of the initial principal amount of the Security, as specified in the related Takeout Commitment) equal to 100% of the Applicable Agency TBA trade price.
“Trade Principal”: An amount equal to the product of (a) the Trade Price and (b) the initial principal amount of the related Security, as specified in the related Takeout Commitment.
"Transactions Terms Letter": The document executed by Purchaser and Seller, referencing the Master Repurchase Agreement and setting forth certain specific terms, and any additional terms, with respect to the Master Repurchase Agreement.
“VA”: United States Department of Veterans Affairs or any successor thereto.
“Warehouse Lender”: Any lender providing financing to Seller for the purpose of originating or aggregating Mortgage Loans, which prior to the Purchase Date has a security interest in such Mortgage Loans as collateral for the obligations of Seller to such lender.
“Wire Instructions”: The wire instructions set forth opposite the name of the Warehouse Lender in a letter, in the form of Exhibit 17 to the Custodial Agreement, executed by Seller and Custodian, receipt of which has been acknowledged by Purchaser.
Section 2. Procedures for Purchases of Participation Certificates; Facility Fee.
(a) Purchaser may, in its sole discretion from time to time until the Expiration Date, but shall have no obligation to, purchase one or more Participation Certificates from Seller; provided, that the conditions set forth in Sections 10(a)(viii) and (ix) shall have been satisfied and the Aggregate Purchase Price of such Participation Certificates owned by Purchaser at any given time shall not exceed the Aggregate Transaction Limit; provided further, that no Potential Default or Event of Default exists. In connection with Purchaser’s purchase of any such Participation Certificate, Seller, on behalf of Purchaser, shall arrange for the Delivery to Purchaser of a Security backed by the Related Mortgage Loans, which Security shall be subject to a Takeout Commitment. The purchase of any Participation Certificate shall be subject to (i) the receipt by Purchaser of the documents listed in Exhibit C from Seller, in form and substance satisfactory to Purchaser, together with such other information as Purchaser may reasonably
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request, (ii) the execution of the Custodial Agreement relating to the Participation Certificate by Seller and Custodian and the Electronic Tracking Agreement relating to the Related Mortgage Loans by Seller, MERS and Electronic Agent, and delivery thereof to Purchaser and (iii) Purchaser’s determination that it has satisfactorily completed its due diligence review of Seller’s operations, business, financial condition and underwriting and origination of the Related Mortgage Loans, which review may be conducted by Purchaser from time to time. In accordance with the provisions of the Electronic Tracking Agreement, the Seller shall, at its sole cost and expense, (1) cause each Related Mortgage Loan with respect to which a Participation Certificate is to be sold to the Purchaser on a Purchase Date, the Mortgage for which is recorded in the name of MERS, to be designated a MERS Mortgage Loan and (2) cause the Purchaser to be designated an Associated Member (as defined in the MERS Procedure Manual attached as Exhibit B to the Electronic Tracking Agreement) with respect to each such MERS Mortgage Loan. Notwithstanding the satisfaction of the conditions specified in this Section 2(a) or anything else herein or in any other Program Document to the contrary, Purchaser is not obligated to purchase any Participation Certificate offered to it hereunder.
(b) If Purchaser elects to purchase any Participation Certificate, Purchaser shall pay (i) to Seller, or (ii) upon the receipt of a Warehouse Lender’s Release in the form of Exhibit D hereto, to the applicable Warehouse Lender, on the Purchase Date, the amount of the Purchase Price (less the Holdback Amount) for such Participation Certificate upon receipt of a duly executed and properly completed Participation Certificate; provided that, if the Purchase Price (less the Holdback Amount) is insufficient to pay the release amount due to the Warehouse Lender, Seller shall remit to Purchaser the difference between the Purchase Price (less the Holdback Amount) and such release amount and Purchaser shall remit the full release amount to the Warehouse Lender. Effective upon (i) execution of the Participation Certificate by an authorized representative of Seller (as set forth in the resolutions of the board of directors of Seller (or its equivalent governing body) as delivered to Purchaser) or, any additional signatory designated by such authorized representative of Seller to Purchaser from time to time (it being understood that the addition of a user on Purchaser’s warehouse lending website by an authorized representative of Seller shall be deemed a valid designation of such user as an additional signatory) and (ii) delivery of such Participation Certificate to Purchaser, Seller hereby assigns to Purchaser all of Seller’s right, title and interest in and to such Participation Certificate and a 100% undivided beneficial interest in the Related Mortgage Loans. In the event that Purchaser does not transmit such payment, (i) any Participation Certificate delivered by Custodian to Purchaser in anticipation of such purchase shall automatically be null and void, and (ii) Purchaser will not consummate the transactions contemplated in the applicable Trade Assignment.
(c) The terms and conditions of the purchase of each Participation Certificate shall be as set forth in this Agreement. Each Participation Certificate shall be deemed to incorporate, and Seller shall be deemed to make as of the applicable dates specified in Section 9, for the benefit of Purchaser and each Assignee of such Participation Certificate, the representations and warranties set forth in Section 9.
(d) Purchaser shall provide a Confirmation to Seller on or before the Purchase Date or as soon as practicable after the Purchase Date. In the event of any conflict between the terms of a Confirmation and this Agreement, the Confirmation shall prevail.
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(e) For the avoidance of any doubt, it is hereby understood and agreed that Purchaser’s purchase of the beneficial ownership interest in and to Related Mortgage Loans, as evidenced by a Participation Certificate, shall include all of the servicing rights relating to such Mortgage Loans.
(f) Seller may request a temporary increase of the Aggregate Transaction Limit (a “Temporary Increase”) by submitting to Purchaser an executed request for Temporary Increase in the form of Exhibit J hereto (a “Request for Temporary Increase”), setting forth the requested increased Aggregate Transaction Limit, the effective date and time of such Temporary Increase and the date and time on which such Temporary Increase shall terminate. Purchaser may from time to time, in its sole and absolute discretion, consent to such Temporary Increase, which consent shall be in writing as evidenced by Purchaser’s delivery to Seller of a countersigned Request for Temporary Increase. At any time that a Temporary Increase is in effect (and only for such time as such Temporary Increase is in effect), the Aggregate Transaction Limit and, if applicable, the Minimum Over/Under Account Balance, shall be increased by the amount of the Temporary Increase for all purposes of this Agreement and all calculations and provisions relating to the Aggregate Transaction Limit, and, if applicable, the Minimum Over/Under Account Balance, shall refer to such increased amount.
(g) Seller shall pay to Purchaser in immediately available funds, a non-refundable Facility Fee. The Facility Fee shall be deemed due, earned and payable in full on the Effective Date and if this Agreement is renewed, thereafter on or before the anniversary of such date. Upon the early termination of this Agreement, no portion of the Facility Fee shall be refunded. Furthermore, the Facility Fee will be prorated in the event of an increase of the Aggregate Transaction Limit. The Facility Fee shall be withdrawn from the Seller’s Over/Under Account.
Section 3. Takeout Commitments.
Seller hereby assigns to Purchaser, free of any security interest, lien, claim or encumbrance of any kind, Seller’s rights under each Takeout Commitment to deliver the Security specified therein to the related Takeout Investor and to receive the purchase price therefor from such Takeout Investor. Subject to Purchaser’s rights hereunder, Purchaser agrees that it will satisfy the obligation under the Takeout Commitment to deliver the Security to the Takeout Investor on the Settlement Date specified therein. Seller understands that, as a result of this Section 3 and each Trade Assignment, Purchaser will succeed to the rights and obligations of Seller with respect to each Takeout Commitment subject to a Trade Assignment, and that in satisfying each such Takeout Commitment, Purchaser, will stand in the shoes of Seller and, consequently, will be acting as a non-dealer in exercising its rights and fulfilling its obligations assigned pursuant to this Section 3 and each Trade Assignment.
Seller hereby acknowledges that, in order for Purchaser to satisfy the “good delivery standards” of the Securities Industry and Financial Markets Association (“SIFMA”) as set forth in the SIFMA Uniform Practices Manual and SIFMA’s Uniform Practices for the Clearance and Settlement of Mortgage Backed Securities and other Related Securities, in each case, as amended from time to time, Purchaser must deliver each Trade Assignment to the related Takeout Investor no later than seventy-two (72) hours prior to settlement of the related Security.
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Seller hereby acknowledges and agrees to deliver each Trade Assignment to Purchaser no later than 1:00 p.m. (Eastern Time) on the date on which such seventy-two (72) hour period commences.
Section 4. Holdback Amount.
(a) Subject to the terms of this Agreement, Purchaser shall pay to Seller the Holdback Amount for each Participation Certificate that Purchaser elects to purchase hereunder. The Holdback Amount with respect to a Participation Certificate shall be paid by Purchaser to Seller as provided in Section 4(b) below.
(b) Subject to Section 5(b) and the Purchaser’s right of set-off set forth in Section 13, the Holdback Amount relating to each Participation Certificate shall be paid by Purchaser to Seller not later than the Settlement Date of the related Security; provided, that on the date of any such payment to the Seller, the Holdback Amount shall be (i) reduced by the positive difference (if any) between the Purchase Price Adjustment Amount and the Present Value Adjustment Amount with respect to such Participation Certificate or (ii) increased by the positive difference (if any) between the Present Value Adjustment Amount and the Purchase Price Adjustment Amount with respect to such Participation Certificate. Notwithstanding any provision hereof to the contrary, no Holdback Amount shall be owed by Purchaser to Seller upon issuance of any Security in the circumstances contemplated in Section 6(f) or if the related Security shall not be issued as a result of a Security Issuance Failure. No exercise by Purchaser of its rights under this Section 4(b) shall relieve Seller of responsibility or liability for any breach of this Agreement.
(c) Upon exercise by Purchaser of its remedies under Section 6(f), Purchaser’s obligation to pay and Seller’s right to receive any portion of the Holdback Amount relating to such Mortgage Loans shall automatically be canceled and become null and void; provided, that such cancellation shall in no way relieve Seller or otherwise affect the obligation of Seller to indemnify and hold Purchaser harmless as specified in Section 14. At no time shall Seller have any beneficial interest in the servicing rights with respect to Related Mortgage Loans while the related Participation Certificate is outstanding.
Section 5. Issuance of Securities.
(a) (i) In connection with the purchase of a Participation Certificate, Seller shall instruct (and, if Seller fails to instruct, then Purchaser may instruct) Custodian to deliver to the Applicable Agency, the Applicable Agency Documents (as defined in the Custodial Agreement), in respect of the Related Mortgage Loans, in the manner and at the time set forth in the Custodial Agreement. Seller shall thereafter promptly deliver to the Applicable Agency any and all additional documents requested by the Applicable Agency to enable the Applicable Agency to make Delivery to Purchaser of a Security backed by such Mortgage Loans on the related Anticipated Delivery Date. Seller shall not revoke such instructions to Custodian and shall not revoke its instructions to the Applicable Agency to make Delivery to Purchaser or its designee of a Security backed by such Mortgage Loans.
(ii) Seller shall notify Purchaser, not later than 3:00 p.m., Eastern Time, on the second (2nd) Business Day prior to the applicable Settlement Date (a) of the
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amount of any change in the principal amount of the Mortgage Loans backing each such Security related to such Settlement Date and (b) with respect to FHLMC Securities, the FHLMC mortgage loan pool number applicable to each Security to which such Settlement Date relates. Upon Delivery of such Security to Purchaser or its designee, Purchaser shall cease to have any interest under such Participation Certificate and in exchange shall have a 100% ownership interest in the related Security. It is understood and agreed that for so long as Seller is subservicing, or is causing any third party Servicer to subservice, Related Mortgage Loans, Seller shall retain only bare legal title (and not an equitable interest) in all such Mortgage Loans (other than MERS Mortgage Loans) for the sole purpose of subservicing such Mortgage Loans on a servicing-released basis.
(b) If Delivery of a Security backed by the Mortgage Loans evidenced by a Participation Certificate purchased hereunder has not occurred by 12:00 noon (Eastern Time), on the related Settlement Date as a result of a Security Issuance Failure, then subject to the exercise by Purchaser of its rights set forth in Section 4(c), the Holdback Amount relating to such Participation Certificate shall be reduced on each day during the period from the Settlement Date to (but not including) the earlier of (x) the date of Delivery of such Security, and (y) the date of satisfaction of the obligations of Seller pursuant to the exercise by Purchaser of any remedial election authorized by this Section 5, by an amount equal to the Daily Holdback Reduction Amount. The Holdback Amount (as reduced by the applicable Daily Holdback Reduction Amounts) relating to such Participation Certificate, if any, shall not be payable until the end of the period specified in the preceding sentence.
(c) If a breach by Seller of this Agreement results in any Related Mortgage Loan being a Defective Mortgage Loan on the Purchase Date of the related Participation Certificate to Purchaser, Purchaser in its sole discretion may require Seller to, upon receipt of notice from Purchaser of its exercise of such right, either (x) immediately repurchase Purchaser’s beneficial ownership interest in such Defective Mortgage Loan by remitting to Purchaser the allocable amount paid by Purchaser for such beneficial interest plus accrued interest at the rate specified in the related Mortgage Note on the principal amount thereof from the date of Purchaser’s purchase of such Participation Certificate to the date of such repurchase together with any Losses suffered by Purchaser relating to such repurchase (including, without limitation, any Losses incurred by Purchaser resulting from adjustments to the trade required by the Takeout Investor), or (y) deliver to Custodian a Mortgage Loan eligible to back such Security in exchange for such Defective Mortgage Loan, which newly delivered Mortgage Loan shall be in all respects acceptable to Purchaser in Purchaser’s sole discretion, and such newly delivered Mortgage Loan will thereupon become one of the Related Mortgage Loans relating to the Participation Certificate. If the aggregate principal balance of any Mortgage Loans that are accepted by Purchaser pursuant to clause (y) of the immediately preceding sentence is less than the aggregate principal balance of any Defective Mortgage Loan that is being replaced by such Mortgage Loan, Seller shall remit with such Mortgage Loan to Purchaser an amount equal to the difference between the aggregate principal balance of the new Mortgage Loan accepted by Purchaser and the aggregate principal balance of the Defective Mortgage Loan being replaced thereby plus accrued interest on such Defective Mortgage Loan at the rate specified in the related Mortgage Note on the principal amount thereof from the Purchase Date of Purchaser’s purchase of such Participation Certificate to the date of substitution. If any Related Mortgage Loan becomes thirty (30) or more days past due with respect to the first scheduled monthly payment due Purchaser
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after the date on which such Related Mortgage Loan was originated and prior to the Anticipated Delivery Date, Seller shall repurchase the beneficial interest in such Related Mortgage Loan as if it were a Defective Mortgage Loan upon direction by Purchaser given no later than one hundred twenty (120) days after the Purchase Date.
(d) No exercise by Purchaser of its rights under this Section 5 shall relieve Seller of responsibility or liability for any breach of this Agreement.
Section 6. Servicing of the Mortgage Loans; Events of Default.
(a) Upon payment of the Purchase Price (subject to Section 4), Purchaser shall own a 100% undivided beneficial interest in the servicing rights related to the Related Mortgage Loans and all source files, documents, agreements and papers related to servicing the Related Mortgage Loans and shall own all derivative information created by Seller or other third party used or useful in servicing such Mortgage Loans. Seller and Purchaser each agrees and acknowledges that a 100% undivided beneficial interest in Related Mortgage Loans shall be sold to Purchaser on a servicing released basis, subject to the termination rights provided in this Agreement, including, without limitation, Section 6(f) of this Agreement, and that Purchaser is engaging, and Purchaser does hereby engage, Seller to provide, or cause a third party Servicer to provide, subservicing of each Related Mortgage Loan for the benefit of Purchaser (and any other registered holder of the related Participation Certificate) on the Purchase Date for each transaction. Seller shall have no further servicing obligations or duties to Purchaser under the terms of this Agreement with respect to the Related Mortgage Loans upon issuance of the Security.
For so long as a Participation Certificate is outstanding, Seller shall neither assign, encumber or pledge its obligation to subservice the Related Mortgage Loans in whole or in part, nor delegate its rights or duties under this Agreement to any Person other than the Servicer, without the prior written consent of Purchaser, the granting of which consent shall be in the sole discretion of Purchaser. Seller hereby acknowledges and agrees that (i) Purchaser is entering into this Agreement in reliance upon Seller’s representations as to the adequacy of its financial standing, servicing facilities, personnel, records, procedures, reputation and integrity, and the continuance thereof; and (ii) Seller’s engagement hereunder to provide mortgage servicing for the benefit of Purchaser (and any other registered holder of the Participation Certificate) is intended by the parties to be a “personal service contract” and Seller is hereunder intended by the parties to be an “independent contractor”.
(b) Seller shall, and shall cause any third party Servicer to, subservice and administer the Related Mortgage Loans relating to a Participation Certificate on behalf of Purchaser in accordance with Accepted Servicing Practices. Neither Seller nor any Servicer shall have the right to modify or alter the terms of any Related Mortgage Loan or consent to the modification or alteration of the terms of any Related Mortgage Loan except in Strict Compliance with the related Agency Program. Seller shall, and shall cause any third party Servicer to, at all times maintain accurate and complete records of its servicing of the Related Mortgage Loans, and Purchaser may, at any time during Seller’s business hours on reasonable notice, examine and make copies of such Servicing Records. Seller agrees that Purchaser is the 100% beneficial owner of all Servicing Records relating to the Related Mortgage Loans. Seller
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covenants to hold such Servicing Records for the benefit of Purchaser and to safeguard such Servicing Records and to deliver them promptly to Purchaser or its designee (including the Custodian) at Purchaser’s request or otherwise as required by operation of this Section 6. In addition, if Delivery of a Security is not made to Purchaser on or before the Anticipated Delivery Date, Seller shall deliver to Purchaser monthly reports regarding the status of those Related Mortgage Loans for which a Security has not yet been issued, which reports shall include, but shall not be limited to, a description of those Related Mortgage Loans in default for more than thirty (30) days, and such other circumstances with respect to any Related Mortgage Loans (whether or not such Related Mortgage Loans are included in the foregoing list) that could materially adversely affect any of such Related Mortgage Loans, Purchaser’s beneficial interest in such Related Mortgage Loans or the collateral securing any of such Related Mortgage Loans. Seller shall deliver such a report to Purchaser every thirty (30) days until (i) Delivery of the related Security to Purchaser or (ii) the exercise by Purchaser of any remedial election pursuant to Section 5. In no event shall Seller delegate any of its subservicing duties hereunder to any other Person without first obtaining the prior written consent of Purchaser.
(c) Seller, as servicer, shall establish and maintain with Purchaser a separate custodial account (the “Custodial Account”) entitled “xxxxXxxxx.xxx, LLC Custodial Account, for the benefit of Bank of America, N.A. and its assignees under the Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement dated as of February 2, 2022” and shall promptly deposit into such account in the form received, with any necessary endorsements, all collections received in respect of the Related Mortgage Loans relating to Participation Certificates purchased by Purchaser hereunder.
(d) Amounts deposited in the Custodial Account with respect to any Related Mortgage Loan relating to Participation Certificates purchased by Purchaser hereunder shall be held for the benefit of Purchaser and shall be released only as follows:
(i) Except as otherwise provided in Section 6(d)(ii), upon either (x) the Settlement Date (unless there is a Security Issuance Failure) or (y) if earlier, on the date required by the Applicable Agency Guide, amounts deposited in the Custodial Account shall be released to Seller. Notwithstanding the foregoing, all amounts relating to Participation Certificates purchased by Purchaser hereunder and deposited in the Custodial Account shall be released to Seller upon the Settlement Date of the related Security (unless there is a Security Issuance Failure) only if, and to the extent that, the amounts due and payable to Purchaser hereunder have been set-off against the Purchase Price for the Related Participation Certificate or the Holdback Amount. The amounts paid to Seller (if any) pursuant to this Section 6(d)(i) shall constitute the sole compensation of the Seller or the related third party Servicer, as applicable, for subservicing the Related Mortgage Loans as provided in this Section 6.
(ii) If Successor Servicer takes delivery of such Mortgage Loans either under the circumstances set forth in Section 6(f) or otherwise, all amounts deposited in the Custodial Account shall be paid to Purchaser promptly upon such delivery.
(iii) If a Security is not issued solely as a result of a Security Issuance Failure during the month in which the related Settlement Date occurs, in any period
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thereafter during which Seller or a third party Servicer remains as subservicer, all amounts deposited in the Custodial Account shall be released only in accordance with Purchaser’s written instructions.
(e) Purchaser (or any other registered holder of the Related Participation Certificate) shall be entitled to (i) retain all Holdback Amounts in accordance with Section 4, and all amounts on deposit in the Over/Under Account in accordance with Section 11, (ii) declare all amounts payable by Seller to Purchaser hereunder to be immediately due and payable, (iii) effect termination of Seller’s subservicing rights and obligations respecting the affected Related Mortgage Loans as provided in Section 6(f), (iv) take possession of the Related Mortgage Loans, including any records that pertain thereto, (v) proceed against Seller for any deficiencies, (vi) liquidate, terminate and accelerate this Agreement and all transactions hereunder, and (vii) pursue any other rights and/or remedies available at law or in equity against Seller, upon the occurrence of any of the following circumstances or events (“Events of Default”):
(i) any failure by Seller to remit to Purchaser (or other registered holder of the Participation Certificate) when due any payment required to be made under the terms of this Agreement or such Participation Certificate; or
(ii) failure by Seller duly to observe or perform in any material respect (a) Seller’s covenants in Section 10(j), or (b) any of Seller’s other covenants or agreements set forth in this Agreement or in any other Program Document which, in the case of this clause (b), continues unremedied for a period of three (3) Business Days (or such longer period provided in the relevant notice to Seller) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Seller by Purchaser; or
(iii) any representation, warranty or certification made or deemed made herein or in any other Program Document by Seller or any statement or certificate furnished by Seller in writing to Purchaser pursuant to the provisions thereof, shall prove to have been false or misleading in any material respect on the date as of which made and such occurrence shall not have been remedied within three (3) Business Days after receipt of notice from Purchaser of such occurrence; or
(iv) an Act of Insolvency shall have occurred with respect to Seller, any of its Affiliates; or
(v) Seller ceases to meet the qualifications for maintaining all Approvals, such Approvals are revoked or such Approvals are materially modified; or
(vi) Seller attempts to assign its right to servicing compensation hereunder or to resell an ownership interest in a Related Mortgage Loan in a manner inconsistent with the terms hereof, or Seller attempts without the consent of Purchaser to sell or otherwise dispose of all or substantially all of its property or assets or to assign this Agreement or the servicing responsibilities hereunder or to delegate its duties hereunder or any portion thereof (to other than a subservicer); or
(vii) a Material Adverse Effect shall have occurred; or
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(viii) Seller’s membership in MERS is terminated for any reason or Seller shall fail to enter into the Electronic Tracking Agreement with the Purchaser;
(ix) Seller shall default under, or fail to perform as requested under, or shall otherwise materially breach the terms of any Program Document and such default, failure or breach continues beyond the expiration of any applicable grace period under any other Program Document; or Seller shall otherwise purport to disavow its obligations under any Program Document or shall contest the validity or enforceability of any Program Document or Purchaser’s interests in any Related Mortgage Loan or Security purchased hereunder;
(x) Seller or any of its Affiliates shall default under, or fail to perform as required under, or shall otherwise breach the terms of any instrument, agreement or contract between Seller or such other entity, on the one hand, and Purchaser or any of Purchaser’s Affiliates on the other; or Seller or any Affiliate of Seller shall default under, or fail to perform as requested under, the terms of any repurchase agreement, loan and security agreement or similar credit facility or agreement for borrowed funds entered into by Seller or such other entity and any third party, which default or failure entitles any party to require acceleration or prepayment of any indebtedness thereunder;
(xi) Seller fails to maintain all state and federal licenses necessary to do business in any jurisdiction where Mortgaged Property is located if such license is required, or to be in compliance with any licensing laws of any jurisdiction where Mortgaged Property is located;
(xii) in the event of a Security Issuance Failure;
(xiii) Seller’s audited financial statements or 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 reference of similar import;
(xiv) Seller has entered into any settlement with, or consented to the issuance of a consent order by, any Governmental Authority in which the fines, penalties, settlement amounts or any other amounts owed by Seller thereunder exceeds $[***] in the aggregate; provided, that an Event of Default shall be deemed not to occur if Purchaser, in its sole discretion, within five (5) Business Days following receipt of notice from Seller pursuant to Section 10(a)(iv)(14), of Seller’s entry into any such settlement or consent order, provides written approval to Seller (which may be via electronic mail), that such settlement or consent order by Seller is acceptable to Purchaser. With respect to any Event of Default which requires a determination to be made as to whether such Event of Default has occurred, such determination shall be made in Purchaser’s discretion and Seller hereby agrees to be bound by and comply with any such determination by Purchaser. An Event of Default shall be deemed to be continuing unless expressly waived by Purchaser in writing; or
(xv) a Change of Control shall have occurred with respect to Seller without obtaining the prior written consent of Purchaser.
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(f) Purchaser, in its sole discretion, may terminate Seller’s rights and obligations as subservicer of the affected Related Mortgage Loans and require Seller to deliver the related Servicing Records to Purchaser or its designee upon the occurrence of (i) an Event of Default, (ii) Seller’s failure to comply with any of its obligations set forth in Section 5(c), or (iii) Seller’s breach of Sections 9(a)(viii) or 9(b)(ix), by delivering written notice to Seller requiring such termination. For the avoidance of doubt, any termination of the Seller’s rights as subservicer of the affected Related Mortgage Loans by the Purchaser as a result of clauses (i), (ii) or (iii) of the foregoing sentence shall be deemed part of an exercise of the Purchaser’s rights to cause the liquidation, termination or acceleration of this Agreement. Such termination shall be effective upon Seller’s receipt of such written notice; provided, that Seller’s subservicing rights shall be terminated immediately upon the occurrence of any event described in Section 6(e)(iv), regardless of whether notice of such event shall have been given to or by Purchaser or Seller. Upon any such termination, all authority and power of Seller respecting its rights to subservice and duties under this Agreement relating thereto, shall pass to and be vested in the Successor Servicer appointed by Purchaser and Purchaser is hereby authorized and empowered to transfer such rights to subservice the Related Mortgage Loans for such price and on such terms and conditions as Purchaser shall reasonably determine; provided, that to the extent the Applicable Agency proceeds to issue a Security with respect to the Related Mortgage Loans, Purchaser shall convey the servicing rights and the rights to subservice such Mortgage Loans in accordance with such Applicable Agency’s instructions. Seller shall promptly take such actions and furnish to Purchaser such documents that Purchaser deems necessary or appropriate to enable Purchaser to obtain a Security backed by such Mortgage Loans or to enforce such Mortgage Loans, as appropriate, and shall perform all acts and take all actions so that the Related Mortgage Loans and all files and documents relating to such Mortgage Loans held by Seller, together with all escrow amounts relating to such Mortgage Loans, are delivered to Successor Servicer, including but not limited to preparing, executing and delivering to the Successor Servicer any and all documents and other instruments, placing in the Successor Servicer’s possession all Servicing Records pertaining to such Mortgage Loans and doing or causing to be done, all at Seller’s sole expense. To the extent that the approval of the Applicable Agency is required for any such sale or transfer, Seller shall fully cooperate with Purchaser to obtain such approval. All amounts paid by any purchaser of such rights to service or subservice the Related Mortgage Loans shall be the property of Purchaser. The subservicing rights required to be delivered to Successor Servicer in accordance with this Section 6(f) shall be delivered free of any servicing rights in favor of Seller or any third party (other than Purchaser) and free of any title, interest, lien, encumbrance or claim of any kind of Seller other than bare legal title to the Mortgage Loans. No exercise by Purchaser of its rights under this Section 6(f) shall relieve Seller of responsibility or liability for any breach of this Agreement.
Section 7. Transfers of Participation Certificates and Securities by Purchaser. Purchaser may, with the prior written consent of Seller not to be unreasonably withheld, delayed or conditioned, assign all of its right, title and interest or grant a security interest in any Participation Certificate and the related servicing rights, each Security in respect thereof of which Delivery is made to Purchaser and all rights of Purchaser under this Agreement (including, but not limited to, the Custodial Account) in respect of such Participation Certificate and such Security, to any person (an “Assignee”), subject only to an obligation on the part of the Assignee to deliver each such Security to the Takeout Investor or to Purchaser to permit Purchaser or its designee to make delivery thereof to the Takeout Investor; provided, that no such consent shall
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be required (i) if such transfer or assignment is to any of Purchaser’s Affiliates or (ii) upon the occurrence of an Event of Default, and upon Purchaser providing notice to Seller such Assignee thereof may enforce the Program Documents and any security interest directly against Seller. Assignment by Purchaser of a Participation Certificate and the related servicing rights as provided in this Section 7 will not release Purchaser from its obligations otherwise under this Agreement.
Without limitation of the foregoing, an assignment of a Participation Certificate and the related servicing rights to an Assignee, as described in this Section 7, shall be effective upon delivery of the Participation Certificate to the Assignee or its designee, together with a duly executed Assignment substantially in the form of Exhibit E (with a copy to Seller).
Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest.
(a) From and after the issuance and delivery of the Related Participation Certificate, and subject to the remedies of Purchaser in Section 5, Seller or Servicer shall remain the last named payee or endorsee of each Mortgage Note and the mortgagee or assignee of record of each Mortgage (except with respect to any MERS Mortgage Loan) and shall retain only bare legal title (and not an equitable interest) in the Related Mortgage Loan, all for the benefit of Purchaser for the sole purpose of facilitating the subservicing of such Mortgage Loan and the issuance of a Security backed by such Mortgage Loan. Where Seller has appointed FHLMC as Custodian, the parties hereto acknowledge that the Mortgage Notes acquired hereunder have been deposited with FHLMC to facilitate the issuance of FHLMC Securities with respect thereto and that prior to such issuance FHLMC is holding such Mortgage Notes as Custodian for Purchaser.
(b) Seller shall maintain a complete set of books and records for each Related Mortgage Loan which shall be clearly marked to reflect the beneficial ownership interest in each Related Mortgage Loan of the holder of the Related Participation Certificate. Seller shall notify MERS of the beneficial ownership interest of Purchaser in each MERS Mortgage Loan through the MORNET system or any other comparable system acceptable to MERS.
(c) Purchaser and Seller confirm that the transactions contemplated herein are intended to be sales of the Participation Certificates by Seller to Purchaser rather than borrowings secured by the Participation Certificates. In the event, for any reason, any transaction is construed by any court or regulatory authority as a borrowing rather than as a sale, Seller and Purchaser intend that Purchaser or its Assignee, as the case may be, shall have, and Seller hereby pledges, assigns and grants to Purchaser or such Assignee, as the case may be, a first priority security interest in Seller’s interest in the Participation Certificates, all of the servicing rights with respect to the Related Mortgage Loans and all documentation and rights to receive documentation related to such servicing rights and the servicing of the Related Mortgage Loans, the Custodial Account and all amounts on deposit therein, the Related Mortgage Loans subject to each Participation Certificate, all documents, records (including, without limitation, Servicing Records and copies of all documentation in connection with the underwriting and origination for any Related Mortgage Loan that evidences compliance with the Ability to Repay Rule and the QM Rule), instruments and data evidencing the Related Mortgage Loans and the servicing thereof, the Securities to be issued as contemplated hereunder and all proceeds thereof,
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the Takeout Commitments, any funds of the Seller at any time deposited or held in the Over/Under Account and the proceeds of any and all of the foregoing (collectively, the “Collateral”), free and clear of adverse claims. This Agreement shall constitute a security agreement, the Custodian shall be deemed to be an independent custodian for purposes of perfection of the security interest herein granted to Purchaser, and Purchaser or each such Assignee shall have all of the rights of a secured party under applicable law. Without limiting the generality of the foregoing and for the avoidance of doubt, if any determination is made that the servicing rights with respect to the Related Mortgage Loans were not sold by Seller to Purchaser or that that such servicing rights are not an interest in the Related Mortgage Loans and are severable from the Related Mortgage Loans despite Purchaser’s and Seller’s express intent herein to treat them as included in the purchase and sale transaction, Seller hereby expressly pledges, assigns and grants to Purchaser a continuing first priority security interest in and lien upon the servicing rights and all documentation and rights to receive documentation related to such servicing rights and the servicing of each of the Related Mortgage Loans (the “Related Credit Enhancement”). The Collateral and Related Credit Enhancement is hereby pledged as further security for Seller’s obligations to Purchaser hereunder.
(d) Upon request of Purchaser, Seller shall prepare and deliver to MERS an Assignment of Mortgage from MERS to Purchaser or its designee. Upon due execution by MERS, Seller shall cause such Assignment of Mortgage to be recorded in the public land records upon request of Purchaser.
Section 9. Representations and Warranties.
(a) Seller hereby represents and warrants to Purchaser as of the date hereof and with the respect to the Related Mortgage Loans as of the date of each issuance and delivery of a Participation Certificate that:
(i) The consideration received by Seller upon the sale of each Participation Certificate will constitute reasonably equivalent value and fair consideration for the beneficial ownership interest in the Mortgage Loans evidenced by that Participation Certificate;
(ii) Seller is duly organized and validly existing under the laws of the jurisdiction of its organization, has the full legal power and authority and has all governmental licenses, authorizations, consents and approvals, necessary to own its property and to carry on its business (including servicing) as currently conducted, and is duly qualified to do business and is in good standing in each jurisdiction in which the transaction of its business (including servicing) makes such qualification necessary. Seller has the authority under its certificate of formation, operating agreement and applicable law to enter into this Agreement and each of the other Program Documents and to perform all acts contemplated hereby and thereby or in connection herewith and therewith. This Agreement and each other Program Document and the transactions contemplated hereby and thereby have been approved by the board of directors of Seller. Seller has taken all action necessary to make this Agreement and each other Program Document its valid and binding obligation enforceable in accordance with the terms hereof;
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(iii) The execution, delivery and performance by Seller of this Agreement, each other Program Document, and the transactions contemplated hereby and thereby, are within Seller’s corporate powers, have been duly authorized by all necessary corporate action and will not result in the breach of any provision of the charter or by-laws of Seller or result in the breach of any provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement, indenture, loan or credit agreement or other instrument to which Seller, the Related Mortgage Loans or any of Seller’s property is subject, or result in the violation of any law, rule, regulation, order, judgment or decree to which Seller, the Related Mortgage Loans or Seller’s property is subject. Without limiting the generality of the foregoing, the consummation of the transactions contemplated herein or therein will not violate any policy, regulation or guideline of the FHA, VA or RD or result in the voiding or reduction of the FHA insurance, VA guarantee, RD guarantee or any other insurance or guarantee in respect of any Related Mortgage Loan, or otherwise render such Mortgage Loans, individually or in the aggregate, ineligible (pursuant to the applicable Agency Guide or otherwise) for inclusion in a pool of mortgages supporting a Security, and such FHA insurance, VA guarantee or RD guarantee is in full force and effect or shall be in full force and effect as required by the applicable Agency Guide;
(iv) This Agreement, each other Program Document and every document to be executed by Seller pursuant to this Agreement is and will be valid, binding and subsisting obligations of Seller, enforceable in accordance with their respective terms, except that the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally. No consents or approvals are required to be obtained by Seller, for the execution, delivery and performance of this Agreement or the Custodial Agreement by Seller;
(v) Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Participation Certificate or Related Mortgage Loan (except to any Warehouse Lender which provides a Warehouse Lender’s Release in the form of Exhibit D hereto) to any person other than Purchaser, and upon delivery of a Participation Certificate to Purchaser, Purchaser will be the sole owner thereof, free and clear of any lien, claim or encumbrance;
(vi) Neither this Agreement nor any representations and warranties or information relating to Seller that Seller has delivered or caused to be delivered to Purchaser, including, but not limited to, all documents related to this Agreement, each other Program Document or Seller’s financial statements, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein or herein in light of the circumstances under which they were made, not misleading. Since the furnishing of such documents or information, there has been no change, nor any development or event involving a prospective change that would render any of such documents or information untrue or misleading in any material respect;
(vii) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, or before or by any court, public board or body pending or, to Seller’s
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knowledge, threatened against or affecting Seller (or, to Seller’s knowledge, any basis therefor) wherein an unfavorable decision, ruling or finding (i) would adversely affect the validity or enforceability of this Agreement, each other Program Document or any agreement or instrument to which Seller is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby, or (ii) would or, in Seller’s reasonable view, could materially and adversely affect Seller’s ability to carry out its obligations hereunder;
(viii) Seller has all requisite Approvals. Seller has not received from any Applicable Agency, HUD, FHA, VA or RD a notice of extinguishment or a notice indicating material breach, material default or material non-compliance which Purchaser could reasonably determine is reasonably likely to entitle such Applicable Agency or HUD, FHA, VA or RD to terminate or suspend Seller or to have a Material Adverse Effect, or a notice from any Applicable Agency, HUD, FHA, VA or RD indicating any adverse fact or circumstance in respect of Seller which Purchaser could reasonably determine is reasonably likely to entitle such Applicable Agency or HUD, FHA, VA or RD, as the case may be, to revoke any Approval or otherwise terminate, suspend Seller as an approved issuer, seller or servicer, as applicable, or with respect to which such adverse fact or circumstance has caused any Applicable Agency, HUD, FHA, VA or RD to terminate Seller. Seller has not received from any Applicable Agency, HUD, FHA, VA or RD a notice of a sanction or a levy of penalties against the Seller which Purchaser could reasonably determine is reasonably likely to have a Material Adverse Effect;
(ix) The Custodian is an eligible custodian under each Agency Guide and each Agency Program, and is not an Affiliate of Seller;
(x) This Agreement, each other Program Document, any other document contemplated hereby or thereby and each transaction have not been entered into fraudulently by Seller hereunder or the Custodian, or with the intent to hinder, delay or defraud any creditor or Purchaser; and
(xi) Neither Seller nor any of its Affiliates, officers, directors, partners or members, (i) is an entity or person (or to the Seller’s knowledge, owned or controlled by an entity or person) that (A) is currently the subject of any economic sanctions administered or imposed by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury or any other relevant authority (collectively, “Sanctions”) or (B) resides, is organized or chartered, or has a place of business in a country or territory that is currently the subject of Sanctions or (ii) is engaging or will engage in any dealings or transactions prohibited by Sanctions or will directly or indirectly use the proceeds of any transactions contemplated hereunder, or lend, contribute or otherwise make available such proceeds to or for the benefit of any person or entity, for the purpose of financing or supporting, directly or indirectly, the activities of any person or entity that is currently the subject of Sanctions;
(xii) Seller has complied with all applicable anti-money laundering laws and regulations, including, without limitation, the USA Patriot Act of 2001, as amended,
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and the Bank Secrecy Act of 1970, as amended (collectively, the “Anti-Money Laundering Laws”); Seller has established an anti-money laundering compliance program as required by the Anti-Money Laundering Laws, has conducted the requisite due diligence in connection with the origination of each Related Mortgage Loan for purposes of the Anti-Money Laundering Laws, including with respect to the bona fide identity of the applicable Mortgagor and the origin of the assets used by said Mortgagor to purchase the property in question, and maintains, and will maintain, sufficient information to identify the applicable Mortgagor for purposes of the Anti-Money Laundering Laws; and
(xiii) The information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects as of each date Seller delivers a Beneficial Ownership Certification to Purchaser pursuant to Section 10(o) hereof.
(b) Seller hereby represents and warrants to Purchaser with respect to each Related Mortgage Loan as of the date of the Purchase Date in respect of the Related Participation Certificate that:
(i) Such Mortgage Loan was, immediately prior to the sale to Purchaser of the Related Participation Certificate, owned solely by Seller, is not subject to any lien, claim or encumbrance (other than the lien of a Warehouse Lender), including, without limitation, any such interest pursuant to a loan or credit agreement for warehousing mortgage loans, and was originated and serviced in accordance with all applicable law and regulations, including without limitation the Federal Truth-in-Lending Act, the Real Estate Settlement Procedures Act, regulations issued pursuant to any of the aforesaid, and any and all rules, requirements, guidelines and announcements of the Applicable Agency, and, as applicable, the FHA, VA and RD, as the same may be amended from time to time;
(ii) The improvements on the land securing such Mortgage Loan are and will be kept insured at all times by responsible insurance companies reasonably acceptable to Purchaser against fire and extended coverage hazards under policies, binders or certificates of insurance with a standard mortgagee clause in favor of Seller and its assigns, providing that such policy may not be canceled without prior notice to Seller. Any proceeds of such insurance collected and retained by Seller (and not required by law or any loan document to be remitted to the borrower) shall be held in trust for the benefit of Purchaser. The scope and amount of such insurance shall satisfy the rules, requirements, guidelines and announcements of the Applicable Agency, and shall in all cases be at least equal to the lesser of (A) the principal amount of such Mortgage Loan or (B) the maximum amount permitted by applicable law, and shall not be subject to reduction below such amount through the operation of a coinsurance, reduced rate contribution or similar clause;
(iii) Each Mortgage is a valid first Mortgage lien on the Mortgaged Property and is covered by an attorney’s opinion of title acceptable to the Applicable Agency or by a policy of title insurance on a standard ALTA or similar lender’s form in favor of Seller and its assigns, subject only to exceptions permitted by the applicable
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Agency Program. Seller shall hold for the benefit of Purchaser such policy of title insurance, and, upon request of Purchaser, shall immediately deliver such policy to Purchaser or to the Custodian on behalf of Purchaser;
(iv) To the extent applicable, such Mortgage Loan is either insured by the FHA under the National Housing Act, guaranteed by the VA under the Servicemen’s Readjustment Act of 1944, guaranteed by the RD under the Housing Act of 1949 or is otherwise insured or guaranteed in accordance with the requirements of the applicable Agency Program and is not subject to any defect that would prevent recovery in full or in part against the FHA, VA, RD or other insurer or guarantor, as the case may be;
(v) Such Mortgage Loan is in Strict Compliance with the requirements and specifications (including, without limitation, all representations and warranties required in respect thereof) set forth in the applicable Agency Guide;
(vi) Such Mortgage Loan conforms in all respects with all requirements of the Takeout Commitment applicable to the Security to be backed by such Mortgage Loan. Each Takeout Commitment is valid and enforceable and Seller has no knowledge that Takeout Investor will not be able to perform under the terms of such Takeout Commitment;
(vii) With respect to each MERS Mortgage Loan, a MIN has been assigned by MERS and such MIN is accurately provided on the schedule of Mortgage Loans attached to the Related Participation Certificate;
(viii) With respect to each MERS Mortgage Loan, Seller has not received any notice of liens or legal actions with respect to such Mortgage Loan and no such notices have been electronically posted by MERS;
(ix) To the extent applicable, each Mortgage Loan is being serviced by a mortgage sub-servicer having all Approvals necessary to make such Mortgage Loan eligible to back a GNMA Security, FNMA Security, or FHLMC Security, as applicable;
(x) Each Mortgage Loan is eligible for sale to the Applicable Agency, and fully complies with all of the terms and conditions, including any covenants, representations and warranties, in the applicable Agency Guide;
(xi) No servicing agreement (other than any Servicing Agreement) has been entered into with respect to the Mortgage Loan, or any such servicing agreement has been terminated and there are no restrictions, contractual or governmental, which would impair the ability of Purchaser or Purchaser’s designees from servicing the Mortgage Loans;
(xii) The Purchase Price of the Participation Certificate to which such Mortgage Loan relates, when added to the Aggregate Purchase Price, does not exceed, the Aggregate Transaction Limit;
(xiii) Each Mortgage Loan satisfies the following criteria:
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(1) Such Mortgage Loan is a Qualified Mortgage;
(2) Such Mortgage Loan is accurately identified in writing to Purchaser as either a Safe Harbor Qualified Mortgage or a Rebuttable Presumption Qualified Mortgage;
(3) Prior to the origination of such Mortgage Loan, the related originator made a reasonable and good faith determination that the related Mortgagor would have a reasonable ability to repay such Mortgage Loan according to its terms, in accordance with, at a minimum, the eight underwriting factors set forth in 12 CFR 1026.43(c)(2); and
(4) Such Mortgage Loan is supported by documentation that evidences compliance with the Ability to Repay Rule and the QM Rule;
(xiv) There is no action, suit or proceeding instituted by or against or threatened against Seller in any federal or state court or before any commission or other regulatory body (federal, state or local, foreign or domestic) that questions or challenges the compliance of any Mortgage Loan (or the related underwriting) with the Ability to Repay Rule or the QM Rule; and
(xv) TRID Compliance. To the extent applicable, effective with respect to applications taken on or after October 3, 2015, such Mortgage Loan was originated in compliance with the TILA-RESPA Integrated Disclosure Rule.
The representations and warranties of Seller in this Section 9 are unaffected by and supersede any provision in any endorsement of any Related Mortgage Loan or in any assignment with respect to such Mortgage Loan to the effect that such endorsement or assignment is without recourse or without representation or warranty.
Section 10. Covenants of Seller. Seller hereby covenants and agrees with Purchaser for so long as any Participation Certificate remains outstanding as follows:
(a) Seller shall deliver to Purchaser:
(i) Within ninety (90) days following the end of Seller’s fiscal year, Seller shall deliver to Purchaser audited financial statements of Seller, including statements of income and changes in shareholders’ equity (or its equivalent) for such fiscal year and the related balance sheet as at the end of such fiscal year, all in reasonable detail and accompanied by an unqualified opinion of a certified public accounting firm reasonably satisfactory to Purchaser including a management representation letter signed by the chief financial officer of Seller stating that the financial statements fairly present
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the financial condition and results of operations of Seller as of the end of, and for, such year;
(ii) Within thirty (30) days after the end of each calendar month, Seller shall deliver to Purchaser financial statements of Seller, including statements of income and changes in shareholders’ equity (or its equivalent) for such month and the related balance sheet as at the end of such month, all in reasonable detail acceptable to Purchaser and certified by the chief financial officer of Seller, subject, however, to year-end audit adjustments. Together with such financial statements, Seller shall deliver an officer’s certificate substantially in a form to be provided by Purchaser, which shall include funding and production volume reports for the previous month and evidence of compliance with all financial covenants;
(iii) Promptly upon receipt thereof, a copy of each other report submitted to Seller by its independent public accountants in connection with any annual, interim or special audit of Seller;
(iv) Promptly (except for clause (14), with respect to which notice shall be provided no later than three (3) Business Days after receipt of such notice of settlement, or consent order by Seller), written notice, in reasonable detail of:
(1) any action, suit or proceeding instituted by or against Seller in any federal or state court or before any commission or other regulatory body (federal, state or local, foreign or domestic), or any such action, suit or proceeding threatened against Seller, in any case, if such action, suit or proceeding, or any such action, suit or proceeding threatened against Seller, (i) involves a potential liability, on an individual or aggregate basis, equal to or greater than [***] ([***]%) of Seller’s Tangible Net Worth, (ii) questions or challenges the validity or enforceability of any of the Program Documents, or (iii) questions or challenges compliance of any Related Mortgage Loan with the Ability to Repay Rule or the QM Rule;
(2) the filing, recording or assessment of any federal, state or local tax lien against it, or any of its assets that would have a material adverse effect on the rights and remedies of Purchaser under any of the Program Documents;
(3) the occurrence of any Potential Default or any Event of Default;
(4) the actual or threatened suspension, revocation or termination of any of Seller’s Approvals or upon Seller becoming aware of any penalties, sanctions or charges levied, or threatened to be levied, against Seller or any change or threatened change in Approval status, or the commencement of any investigation, or the institution of any adverse action or the written threat of institution of any adverse action against Seller by any
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Applicable Agency, HUD, FHA, VA or RD or any other agency, or any supervisory or regulatory governmental entity supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of, Seller;
(5) the suspension, revocation or termination of any existing and material credit or investor relationship to facilitate the sale and/or origination of residential mortgage loans; provided that notice and the required report information shall be delivered to Purchaser in the first monthly report issued after such suspension, revocation or termination;
(6) [reserved];
(7) any Related Mortgage Loan is or becomes a Defective Mortgage Loan;
(8) any Takeout Investor that threatens in writing to set-off amounts owed by Seller to such Takeout Investor against the purchase proceeds owed by the Takeout Investor to such Seller for the Related Mortgage Loans (excluding amounts owed by Seller to the Takeout Investor which are directly related to the Related Mortgage Loans and which are allowed to be set-off by the Takeout Investor pursuant to the Bailee Agreement);
(9) any other action, event or condition of any nature that may lead to or result in a Material Adverse Effect with respect to Seller or that, without notice or lapse of time or both, would constitute a default under any agreement, instrument or indenture to which Seller is a party or to which Seller, its properties or assets may be subject;
(10) any (i) change to the location of its chief executive office/chief place of business from that which exists on the date of this Agreement, (ii) change in the name, identity or existence as a limited liability company or change in the location where Seller maintains its records with respect to the Related Mortgage Loans, or (iii) reincorporation or reorganization of Seller under the laws of another jurisdiction;
(11) upon Seller becoming aware of any termination or threatened termination by any Applicable Agency of the Custodian as an eligible custodian;
(12) any change to the date on which Seller’s fiscal year begins from Seller’s current fiscal year beginning date; and
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(13) any material change in respect of any underwriting, third party origination and interest rate risk management practices of Seller. By way of example, but not limitation, any material change to add a new line of mortgage loan products shall be considered material change; and;
(14) any settlement with, or issuance of a consent order by, any Governmental Authority, in which the fines, penalties, settlement amounts or any other amounts owed by Seller thereunder exceeds $[***] in the aggregate.
(v) [Reserved];
(vi) [Reserved];
(vii) Such supplements to the aforementioned documents and such other information regarding the operations, business, affairs and financial condition of Seller or any of Seller’s consolidated Subsidiaries as Purchaser may reasonably request;
(viii) Prior to the first Purchase Date hereunder and at the request of Purchaser at any time thereafter:
(1) A copy of an Officer’s Certificate in the form attached hereto as Exhibit G together with (1) the certificate of formation of Seller and any amendments thereto, certified by the Secretary of State of Seller’s state of formation, (2) a copy of Seller’s operating agreement, together with any amendments thereto, and (3) a copy of the resolutions adopted by Seller’s board of directors authorizing Seller to enter into this Agreement and the Custodial Agreement and authorizing one or more of Seller’s officers to execute the documents related to this Agreement and the Custodial Agreement.
(2) An opinion of Seller’s counsel as to such matters as Purchaser may reasonably request (including, without limitation, with respect to Purchaser’s first priority lien on and perfected security interest in the Related Mortgage Loans, a no material litigation, non-contravention, enforceability and corporate opinion with respect to Seller, an opinion with respect to the inapplicability of the Investment Company Act to Seller and its Subsidiaries, an opinion that this Agreement constitutes a “securities contract” within the meaning of the Bankruptcy Code and an opinion that no transaction constitutes an avoidable transfer under Section 546(e) of the Bankruptcy Code), in form and substance reasonably acceptable to Purchaser and from nationally recognized counsel reasonably acceptable to Purchaser.
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(3) Evidence that all other actions necessary or, in the opinion of Purchaser, desirable to perfect and protect Purchaser’s interest in the Related Mortgage Loans and other Collateral have been taken, including, without limitation, duly executed and filed Uniform Commercial Code financing statements on Form UCC-1.
(ix) On each Purchase Date hereunder, Seller shall provide to Purchaser an Officer’s Certificate in the form attached hereto as Exhibit H.
(x) On each Purchase Date hereunder, Seller shall provide to Purchaser a schedule identifying each Related Mortgage Loan as either a Safe Harbor Qualified Mortgage or a Rebuttable Presumption Qualified Mortgage, as applicable.
(xi) Together with the financial statements required to be delivered pursuant to Section 10(a)(i) and Section 10(a)(ii), Seller shall deliver to Purchaser an Officer’s Certificate in a form acceptable to Purchaser. Seller’s obligation to provide such Officer’s Certificate shall be waived for such periods during which Seller shall be a party to a Master Repurchase Agreement with Purchaser and shall be in compliance with Seller’s obligations under Section 9.1(c) of the Master Repurchase Agreement.
(b) Neither Seller nor any Affiliate thereof will acquire at any time any Participation Certificate or any other economic interest in or obligation with respect to any Related Mortgage Loan except for the subservicing rights relating thereto and bare legal title to the Related Mortgage Loans.
(c) Seller shall provide Purchaser with written notice after entering into any mortgage financing facilities (including warehouse, repurchase, purchase, off-balance sheet or other similar credit facilities) with any Person (other than Purchaser); which shall be provided with the next monthly Officer’s Certificate issued pursuant to the reporting requirements set out in the Master Repurchase Agreement that immediately follows the date on which Purchaser enters into any such mortgage financing facility.
(d) Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, any sale of a Participation Certificate to Purchaser.
(e) Seller will not sell any Participation Certificate to Purchaser with any intent to hinder, delay or defraud any of Seller’s creditors.
(f) Seller shall take all necessary actions to maintain its Approvals at all times during the term of this Agreement. If, for any reason, Seller ceases to maintain such Approvals, Seller shall so notify Purchaser immediately.
(g) Seller will comply in all material respects with all laws and any judgment, award, rule, regulation, order, decree, writ or injunction of any court or public regulatory body or authority, either (i) applicable to the Mortgage Loans (including, without limitation, usury, truth-in-lending, real estate settlement procedures, consumer credit protection, equal credit opportunity
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or disclosure laws) or (ii) a violation of which might have a material adverse effect on the business, operations, assets or financial condition of Seller, in each case of (i) and (ii), to which Seller is or may become subject.
(h) Seller shall, upon reasonable request of Purchaser, promptly execute and deliver to Purchaser all such other and further documents and instruments of transfer, conveyance and assignment, and shall take such other action as Purchaser may require more effectively to transfer, convey, assign to and vest in Purchaser and to put Purchaser in possession of the property to be transferred, conveyed, assigned and delivered hereunder and otherwise to carry out more effectively the intent of the provisions under this Agreement.
(i) The Seller is a member of MERS in good standing and current in the payment of all fees and assessments imposed by MERS, and has complied with all rules and procedures of MERS. In connection with the assignment of any Related Mortgage Loan registered on the MERS System, the Seller agrees that at the request of the Purchaser it will, at the Seller’s own cost and expense, cause the MERS System to indicate that a beneficial interest in such Mortgage Loan has been transferred to the Purchaser in accordance with the terms of this Agreement by including in MERS’ computer files (a) the code in the field which identifies the specific owner of the Related Mortgage Loans and (b) the code in the field “Pool Field” which identifies the series in which such Mortgage Loans were sold. The Seller further agrees that it will not alter codes referenced in this paragraph with respect to any Related Mortgage Loan at any time that such Mortgage Loan is subject to this Agreement, and the Seller shall retain its membership in MERS at all times during the term of this Agreement.
(j) Seller is in compliance with the financial covenants set forth in Section 10.4 of the Master Repurchase Agreement.
(k) Seller shall not permit or consummate any IPO without the prior written consent of Purchaser.
(l) Following written notice to Purchaser (such notice to be delivered to Purchaser in the officer’s certificate delivered pursuant to Section 10), Seller shall have the right, without the prior written consent of Purchaser, to declare or pay any dividends upon its shares of stock now or hereafter outstanding, except dividends payable in the Capital Stock of Seller, or make any distribution of assets to its shareholders, whether in cash, property or securities and acquire, purchase, redeem or retire shares of its Capital Stock now or hereafter outstanding for value (collectively, a “Distribution”). Notwithstanding the foregoing, if a Potential Default or an Event of Default has occurred and is continuing or will occur as a result of such Distribution, Seller shall not make any Distribution other than Permitted Tax Distributions, without the prior written consent of Purchaser.
(m) Seller shall provide prior written notice of material changes in underwriting, third party origination and interest rate risk management practices of Seller. By way of example but not limitation, any change to add a new line of Mortgage Loan products shall be considered material changes.
(n) Seller shall deliver to Purchaser, with reasonable promptness upon Purchaser’s request: (i) copies of any reports related to the Participation Certificates and the
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Related Mortgage Loans, (ii) copies of all documentation in connection with the underwriting and origination of any Related Mortgage Loan that evidences compliance with the Ability to Repay Rule and the QM Rule, as applicable, and (iii) any other information in Seller’s possession related to the Participation Certificates and the Related Mortgage Loans.
(o) On the Effective Date and on each one-year anniversary thereafter, Seller shall either (i) ensure that Seller has delivered to Purchaser a Beneficial Ownership Certification, if applicable, and that the information contained therein is true and correct in all respects, or (ii) deliver to Purchaser an updated Beneficial Ownership Certification, if the information contained in any previously delivered Beneficial Ownership Certification ceases to be true and correct in any respect. At all times, Seller shall use its reasonable best efforts to provide Purchaser with prompt notice upon becoming aware that the information provided in the most recent Beneficial Ownership Certification is no longer true and correct and shall deliver an updated Beneficial Ownership Certification to Purchaser promptly thereafter.
Section 11. Over/Under Account.
(a) Seller shall at all times maintain a balance in the Over/Under Account of not less than the Minimum Over/Under Account Balance. The Over/Under Account shall be used to assist in settling Seller’s payment obligations to Purchaser under this Agreement. Purchaser shall not be required to segregate and hold funds deposited by or on behalf of Seller in the Over/Under Account separate and apart from Purchaser’s own funds or funds deposited by or held for others. Upon the occurrence of a Potential Default or an Event of Default, Purchaser shall have the right to increase the Minimum Over/Under Account Balance Seller is required to maintain in the Over/Under Account by giving notice to Seller thereof. If Seller fails to deposit funds in the Over/Under Account to comply with any such required increase within the time frame required by Purchaser, Purchaser shall have the right to retain in the Over/Under Account any amounts received by Purchaser on behalf of Seller or otherwise credited to the Over/Under Account to comply with any such required increase, including, without limitation, any purchase proceeds received by Purchaser from any Takeout Investor pursuant to Section 3. Purchaser shall not be liable to Seller for any costs, losses or damages arising from or relating to the increase of the Minimum Over/Under Account Balance that Seller is required to maintain in the Over/Under Account or retention of excess funds by Purchaser to comply with any such increase. For the sake of clarity, only one Over/Under Account shall be maintained by Purchaser for Seller in connection with this Agreement and the Master Repurchase Agreement, if any, and such Over/Under Account shall be subject to the terms of this Agreement as well as the Master Repurchase Agreement, if any.
(b) Within one (1) Business Day of Purchaser’s receipt of a payment from Seller or a Takeout Investor, Purchaser shall credit to the Over/Under Account all amounts received by it that exceed those amounts then due to Purchaser in accordance with this Agreement. Purchaser shall make available to Seller by posting on its warehouse lending website within one (1) Business Day following any such credit to the Over/Under Account, or as soon thereafter as is reasonably possible, a statement that details the amounts so credited by Purchaser to the Over/Under Account.
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(c) If any amount credited to the Over/Under Account creates a balance in excess of the Minimum Over/Under Account Balance required pursuant to Section 11(a) above, provided that no Potential Default or Event of Default has occurred and is continuing, Seller may submit a written request to Purchaser for return or payment of such excess funds. If any such request is received by Purchaser prior to 1:00 p.m. (New York City time) on a Business Day, Purchaser shall use commercially reasonable efforts to wire such requested excess funds to Seller by the end of such Business Day and in no event no later than two (2) Business Days after Purchaser’s receipt of such request. Notwithstanding anything contained in this Section 11(c) to the contrary, Purchaser reserves the right to reject any request for excess funds from the Over/Under Account if Purchaser determines that such excess funds shall be used to satisfy Seller’s outstanding obligations under this Agreement or are subject to other rights as provided in this Agreement.
(d) Purchaser may, from time to time and without separate authorization by Seller or notice to Seller, withdraw funds from the Over/Under Account to settle amounts owed in accordance with the terms of this Agreement or to otherwise satisfy Seller’s obligations under this Agreement, including, without limitation (i) to reimburse itself for any reasonable costs and expenses incurred by Purchaser in connection with this Agreement, as permitted herein, and (ii) in the exercise of Purchaser’s or its Affiliates’ rights under Section 13.
(e) If, at any time, Seller fails to maintain in the Over/Under Account the Minimum Over/Under Account Balance as required hereunder, in addition to any other rights and remedies that Purchaser may have against Seller, Purchaser shall have the right to immediately stop purchasing Participation Certificates from Seller and/or to charge Seller accrued interest on that portion of the Minimum Over/Under Account Balance that Seller has failed to maintain, at the Default Rate, from the time that such balance failed to be maintained until the time that funds are deposited into or held in the Over/Under Account to comply with such Minimum Over/Under Account Balance requirements hereunder. Without limiting the generality of the foregoing, it is understood and agreed that should the balance in the Over/Under Account become negative, Seller will continue to owe Purchaser accrued interest as provided herein.
(f) Any funds of Seller at any time deposited or held in the Over/Under Account, whether such funds are required to be deposited and held in the Over/Under Account pursuant to this Section 11 or otherwise, are hereby pledged by Seller as security for its obligations under this Agreement, and Seller hereby grants a security interest in such funds to Purchaser, and such pledge and security interest shall be considered “a security agreement or other arrangement or other credit enhancement” that is “related to” this Agreement and transactions hereunder within the meaning of Bankruptcy Code Sections 101(38A)(A) and 741(7)(A)(xi).
Section 12. Term. This Agreement shall continue in effect until terminated as to future transactions by written instruction signed by either Seller or Purchaser and delivered to the other; provided, that no termination will affect the obligations hereunder as to any of the Participation Certificates then outstanding hereunder or any Security not yet delivered to the related Takeout Investor.
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Section 13. Set-Off. In addition to any rights and remedies of Purchaser provided by this Agreement and by law, Purchaser shall have the right, 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, to set-off and appropriate and apply against such amount any and all property and 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 Purchaser or any Affiliate thereof to or for the credit or the account of Seller (including, without limitation, the amount of any accrued and unpaid Holdback Amounts), irrespective of whether or not Purchaser shall have made any demand hereunder and whether or not said obligations and liabilities shall have become due. Without limiting the generality of the foregoing, Purchaser may also set-off cash and all other sums or obligations owed by Purchaser or its Affiliates to Seller (whether under this Agreement or under any other agreement between the parties or between Seller and any Affiliate of Purchaser) against all of Seller’s obligations to Purchaser or its Affiliates (whether under this Agreement or under any other agreement between the parties or between Seller and any Affiliate of Purchaser), whether or not such obligations are then due. The exercise of any such right of set-off shall be without prejudice to Purchaser’s or its Affiliate’s right to recover any deficiency.
Purchaser and its Affiliates (collectively, “Bank of America Related Entities”), shall also have the right to set-off and to appropriate or apply any and all deposits of money or property or any other indebtedness at any time held or owing by the Bank of America Related Entity to or for the credit of the account of Seller and its Affiliates against and on account of the obligations of Seller under any agreement(s) between Seller and/or its Affiliates, on the one hand, and the Bank of America Related Entity, on the other hand, irrespective of whether or not the Bank of America Related Entity shall have made any demand hereunder and whether or not said obligations shall have matured. In exercising the foregoing right to set-off, any Bank of America Related Entity shall be entitled to withdraw funds in the Over/Under Account which are being held for or owing to Seller to set-off against any amounts due and owing by Seller to the Bank of America Related Entity. If a Bank of America Related Entity other than Purchaser intends to exercise its right to set-off in this paragraph, such Bank of America Related Entity shall provide Seller prior notice thereof, and upon Seller’s receipt of such notice, if the basis for such right to set-off is Seller’s breach or default of its obligations to the Bank of America Related Entity, Seller shall have three (3) Business Days to cure any such breach or default in order to avoid such set-off.
Section 14. Indemnification. Seller shall indemnify and hold Purchaser harmless against any and all Losses (including, without limitation, Losses incurred by Purchaser on account of fees paid by Purchaser to the Applicable Agency to cause the Securities to be issued or any Losses in connection with any indemnification by Purchaser of the Applicable Agency) resulting from, relating to or otherwise arising in connection with the Seller’s negligence, willful misconduct or breach or failure of Seller to perform any representation, warranty, covenant, term or condition made or obligation to be performed by Seller under this Agreement (including, without limitation, any failure to perform servicing obligations) in strict compliance with the terms of this Agreement. Without prejudice to the survival of any other agreement of Seller hereunder, the covenants and obligations of Seller contained in this Section 14 shall survive the termination of this Agreement.
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Section 15. Exclusive Benefit of Parties; Assignment. This Agreement is for the exclusive benefit of the parties hereto and their respective successors and assigns and shall not be deemed to give any legal or equitable right to any other person, including the Takeout Investor and Custodian. Except as provided in Section 7 and the following paragraph of this Section 15, no rights or obligations created by this Agreement may be assigned by either party hereto without the prior written consent of the other party.
The Program Documents may not be assigned by Seller to any Person without the prior written consent of Purchaser, which consent may be withheld by Purchaser in Purchaser’s sole discretion.
Any Person into which Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which Seller shall be a party, or any Person succeeding to the business of Seller, shall be the successor of Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding
Section 16. Amendments; Waivers; Cumulative Rights. This Agreement may be amended from time to time only by written agreement of Seller and Purchaser. Any forbearance, failure or delay by either party in exercising any right, power or remedy hereunder shall not be deemed to be a waiver thereof, and any single or partial exercise by either party of any right, power or remedy hereunder shall not preclude the further exercise thereof. Every right, power and remedy of either party shall continue in full force and effect until specifically waived by such party in writing. No right, power or remedy shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to any other right, power or remedy, whether conferred hereby or hereafter available at law or in equity or by statute or otherwise.
Section 17. Execution in Counterparts. This Agreement, the other Program Documents, and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Agreement and the other Program Documents (each a “Communication”) may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Agreement may be executed simultaneously in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but each counterpart shall be deemed to be an original and all such counterparts shall constitute one and the same agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by Purchaser of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Electronic Signatures and facsimile signatures shall be deemed valid and binding to the same extent as the original. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
Section 18. Effect of Invalidity of Provisions. In case any one or more of the provisions contained in this Agreement should be or become invalid, illegal or unenforceable in
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any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 19. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISIONS (EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN ANNEX A; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION.
Section 20. Notices. Any notices, consents, elections, directions and other communications given under this Agreement shall be in writing and shall be deemed to have been duly given when telecopied or delivered by overnight courier to, personally delivered to, or on the third day following the placing thereof in the mail, first class postage prepaid to, the parties hereto at the related address provided pursuant to Annex A or to such other address as either party shall give notice to the other party pursuant to this Section. Notices to any Assignee shall be given to such address as the Assignee shall provide to Seller in writing.
Section 21. Entire Agreement. This Agreement and the other Program Documents contain the entire agreement between the parties hereto with respect to the subject matter hereof,
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and supersede all prior and contemporaneous agreements between them, oral or written, of any nature whatsoever with respect to the subject matter hereof.
Section 22. Costs of Enforcement(a) .
(a) In addition to any other indemnity specified in this Agreement, Seller agrees to pay as and when billed by Purchaser all of the documented out-of pocket costs and expenses incurred by Purchaser in connection with (i) the development, preparation, and execution of this Agreement, any other related document or any other documents prepared in connection herewith or therewith including without limitation, (A) all the reasonable and documented fees, disbursements and expenses of counsel to Purchaser and (B) all the due diligence, inspection, testing and review costs and expenses incurred by Purchaser in connection herewith or therewith, and (ii) the development, preparation, and execution of any amendment, supplement or modification to, and enforcement of this Agreement, any other related document or any other documents prepared in connection herewith or therewith, the consummation, monitoring and administration of the transactions contemplated hereby and thereby including, without limitation, (A) all the reasonable fees, disbursements and expenses of counsel to Purchaser and (B) all the due diligence, inspection, testing and review costs and expenses incurred by Purchaser with respect to the Related Mortgage Loans under this Agreement.
(b) If Seller fails to pay when due any such costs, expenses or other amounts payable by it under this Agreement (including, without limitation, reasonable fees and expenses of counsel and indemnities), such amount may be paid on behalf of Seller by Purchaser, in its sole discretion and/or Purchaser shall be entitled to withdraw from the Over/Under Account or retain from payments made by Seller or a Takeout Investor, or set off against any amounts to be paid to Purchaser. Seller shall remain liable for any such payments made by Purchaser on behalf of Seller and any deficiency remaining after any such withdrawal, retention or set-off. No such payment by Purchaser shall be deemed a waiver of any of Purchaser’s rights under this Agreement.
(c) In addition to any other indemnity specified in this Agreement, in the event of a breach by Seller of this Agreement, the Custodial Agreement, a Participation Certificate or a Takeout Commitment, Seller agrees to pay the reasonable attorneys’ fees and expenses of Purchaser and/or any Assignee incurred as a consequence of such breach.
Section 23. Intent.
(a) Seller and Purchaser recognize that each sale of a Participation Certificate under this Agreement is a “securities contract” and a “master netting agreement” as those terms are defined in Section 741 and Section 101(38A)(A) of the Bankruptcy Code, respectively, and a “qualified financial contract” as that term is defined in the FDIA, and that the pledge of the Related Credit Enhancement in Section 8(c) hereof constitutes “a security agreement or other arrangement or other credit enhancement” that is “related to” this Agreement and transactions hereunder within the meaning of Sections 101(38A)(A) and 741(7)(A)(xi) of the Bankruptcy Code. Seller and Purchaser further recognize that the beneficial interest in the Related Mortgage Loans evidenced by a Participation Certificate shall constitute an “interest in a mortgage loan” as that term is used in Section and 741(7)(A)(i) of Bankruptcy Code.
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(b) It is understood that the Purchaser shall have the right to liquidate, terminate and accelerate, or exercise any other remedies permitted upon the occurrence of any Event of Default, and that such liquidation, termination and acceleration rights constitute contractual rights to liquidate, terminate and accelerate the transactions under a “securities contract” and a “master netting agreement” as described in Section 555 and Section 561 of the Bankruptcy Code, respectively, and a “qualified financial contract” as described Section 1821(e)(8)(A)(i) of the FDIA.
(c) The parties hereto agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the FDIA, then each transaction hereunder is a “qualified financial contract,” as that term is defined in the 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 hereunder shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation,” respectively, as defined in and subject to FDICIA.
Section 24. Full Recourse. The obligations of Seller from time to time to pay all amounts due under this Agreement shall be full recourse obligations of Seller.
Section 25. Examination and Oversight by Regulators. Seller agrees that the transactions with Purchaser under this Agreement may be subject to regulatory examination and oversight by one or more Governmental Authorities. Seller shall comply with all requests made by Purchaser to assist Purchaser in complying with regulatory requirements imposed on Purchaser.
Section 26. Consent to Service. Each party irrevocably consents to the service of process by registered or certified mail, postage prepaid, to it at its address provided pursuant to Section 20.
Section 27. Construction. The headings in this Agreement are for convenience only and are not intended to influence its construction. References to Sections, Exhibits and Annexes in this Agreement are to the Sections of and Exhibits and Annexes to this Agreement. The Exhibits and Annexes are part of this Agreement. In this Agreement, the singular includes the plural, the plural the singular, and the words “and” and “or” are used in the conjunctive or disjunctive as the sense and circumstances may require.
Section 28. Further Assurances. Seller and Purchaser each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of this Agreement.
Section 29. Amendment and Restatement. Purchaser and Seller entered into the Original Agreement and subsequently entered into the Amended and Restated Agreement to amend and restate the Original Agreement. Purchaser and Seller desire to enter into this Agreement in order to amend and restate the Amended and Restated Agreement in its entirety.
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The amendment and restatement of the Amended and Restated Agreement shall become effective on the Second A&R Effective Date, and each of Purchaser and Seller shall hereafter be bound by the terms and conditions of this Agreement and the other Program Documents. This Agreement amends and restates the terms and conditions of the Amended and Restated Agreement, and is not a novation of any of the agreements or obligations incurred pursuant to the terms of the Amended and Restated Agreement. Accordingly, all of the agreements and obligations incurred pursuant to the terms of the Amended and Restated Agreement are hereby ratified and affirmed by the parties hereto and remain in full force and effect. For the avoidance of doubt, it is the intent of Purchaser and Seller that the security interests and liens granted in the Collateral pursuant to Section 8(c) of each of the Original Agreement and Amended and Restated Agreement shall continue in full force and effect. All references to the Original Agreement and/or Amended and Restated Agreement in any Program Document or other document or instrument delivered in connection therewith shall be deemed to refer to this Agreement and the provisions hereof.
Section 30. Alternative Rate. If prior to the related Purchase Date, Purchaser determines in its sole discretion that: (i) adequate and reasonable means do not exist for ascertaining One-Month LIBOR, including, without limitation, because One-Month LIBOR is not available or published on a current basis, and such circumstances are unlikely to be temporary; (ii) the administrator of One-Month LIBOR or a Governmental Authority having jurisdiction over Purchaser has made a public statement identifying a specific date after which One-Month LIBOR shall no longer be made available, or used for determining the interest rate of loans, provided, that, at the time of such statement, there is no successor administrator that is satisfactory to Purchaser, that will continue to provide One-Month LIBOR after such specific date (such specific date, the “Scheduled Unavailability Date”); or (iii) mortgage loan financing facilities similar to this facility, currently being executed, or that include language similar to that contained in this Section 30, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace One-Month LIBOR, Purchaser shall give prompt notice thereof to Seller, whereupon the Discount Pricing Rate from the date specified in such notice, which may be the Scheduled Unavailability Date, for such period, and for all subsequent periods until such notice has been withdrawn by Purchaser, shall be based on (x) one or more SOFR-Based Rates or (y) another alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such alternative benchmark rates and, in each case, including any mathematical or other adjustments to such benchmark rates giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such benchmark rates, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Purchaser from time to time in its sole discretion and may be periodically updated) (any such rate, a “Successor Rate”). Such Successor Rate shall be applied in a manner consistent with market practice; provided that to the extent such market practice is not administratively feasible for Purchaser, such Successor Rate shall be applied in a manner as otherwise determined by Purchaser in its sole discretion. In connection with the implementation of a Successor Rate, Purchaser shall have the right to make Successor Rate Conforming Changes, as determined by Purchaser in its sole discretion from time to time and, notwithstanding anything to the contrary herein or in any other Principal Agreement, any amendments implementing such Successor Rate Conforming Changes shall become effective without any further action or consent of any other party to this Agreement.
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Section 31. ISDA Stay Protocol. Purchaser and Seller each (i) confirms that prior to the date hereof it has adhered to the 2018 ISDA U.S. Resolution Stay Protocol (the “Protocol”), and (ii) agrees that the terms of the Protocol are incorporated into and form a part of this Agreement, and for such purposes this Agreement shall be deemed a “Protocol Covered Agreement” and each party shall be deemed to have the same status as a “Regulated Entity” and/or an “Adhering Party” as applicable to it under the Protocol. Terms used in this paragraph without definition shall have the meanings assigned to them under the QFC Stay Rules. For purposes of this paragraph, references to “this Agreement” include any related credit enhancements entered into between the parties or provided by one to the other. In addition, Purchaser and Seller agree that the terms of this paragraph shall be incorporated into any related covered affiliate credit enhancements, with all references to Purchaser replaced by references to the covered affiliate support provider.
[signature page follows]
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IN WITNESS WHEREOF, Purchaser and Seller have duly executed this Agreement as of the date and year set forth on the cover page hereof.
BANK OF AMERICA, N.A., Purchaser
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Director
XXXXXXXXX.XXX, LLC, Seller
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: CFO
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: CFO
Signature Page to Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement
LEGAL02/41198418v10
Exhibit A
PARTICIPATION CERTIFICATE
PURCHASER ACCOUNT NO.: 521320
POOL NO. (or FHLMC CONTRACT NO.):
This Participation Certificate evidences a one hundred percent (100%) undivided beneficial ownership interest in (including the right to receive the payments of principal of and interest on) the Mortgage Loans (the “Participation”) identified:
(Check Box)
| (a) | Form HUD 11706 (Schedule of Pooled Mortgages); | |||||||
| (b) | Xxxxxx Mae Form 2005 (Schedule of Mortgages); or | |||||||
| (c) | FHLMC Form 1034E (Custodial Certification Schedule) or Selling System computer tape. | |||||||
The Participation has been sold to Purchaser pursuant to the terms of that certain Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (the “Agreement”) between xxxxXxxxx.xxx, LLC, as Seller, and Bank of America, N.A., as Purchaser. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement, the terms of which are hereby incorporated by reference and made a part of this Participation Certificate.
Upon Delivery of the related Security to Purchaser or its Assignee, Purchaser’s beneficial ownership interest in the Mortgage Loans evidenced in this Participation Certificate shall terminate in exchange for such Security, and this Participation Certificate shall be void and of no further effect.
This Participation Certificate may be amended only by a written agreement between Seller and Purchaser.
XXXXXXXXX.XXX, LLC
By: _________________
Its:
Date:
By: _________________
Its:
Date:
AGGREGATE PRINCIPAL BALANCES OF THE MORTGAGE LOANS (GIVING EFFECT TO PAYMENTS MADE AS OF _______, ____): $_____________________
Exhibit A-1
LEGAL02/41198418v10
| Hereby authenticated by Deutsche Bank National Trust Company pursuant to the Custodial Agreement (May not be applicable for FHLMC) | ||
By: ______________________
Its:
Date:
Its:
Date:
Exhibit A-2
LEGAL02/41198418v10
Exhibit B
TRADE ASSIGNMENT
__________ (“Takeout Investor”)
(Address)
Attention:
Fax No.:
(Address)
Attention:
Fax No.:
Dear Sirs:
Attached hereto is a correct and complete copy of your confirmation of commitment (the “Commitment”), trade-dated _________ __, ____, to purchase $______ of __% ___ year,
(Check Box)
| Government National Mortgage Association; | |||||
| Federal National Mortgage Association; or | |||||
| Federal Home Loan Mortgage Corporation. | |||||
mortgage-backed pass-through securities (“Securities”) at a purchase price of ___________ from _________ on (insert Settlement Date). Our intention is to assign $_____ of this Commitment’s full amount, which assignment shall be effective and shall be fully enforceable by the assignee on the Settlement Date. This is to confirm that (i) the form of this assignment conforms to the SIFMA guidelines, (ii) the Commitment is in full force and effect, (iii) effective as of the Settlement Date, the Commitment is hereby assigned to [Bank of America, N.A. (“BANA”)][ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“MLPF&S”)], whose acceptance of such assignment is indicated below, (iv) you will accept delivery of such Securities directly from [BANA][MLPF&S], (v) you will pay [BANA][MLPF&S] for such Securities, (vi) effective as of the Settlement Date and provided the Securities have been issued, [BANA][MLPF&S] is obligated to make delivery of such Securities to you in accordance with the attached Commitment and (vii) effective as of the Settlement Date and provided the Securities have been issued, you have released Seller from its obligation to deliver the Securities to you under the Commitment. Payment will be made “delivery versus payment (DVP)” to [BANA][MLPF&S] in immediately available funds.
If you have any questions, please call [SELLER CONTACT] at (___) ___-____ immediately or contact him by fax at (___) ___-____.
Very truly yours,
Exhibit B-1
LEGAL02/41198418v10
XXXXXXXXX.XXX, LLC
By: ____________________________________
Title:
Date:
Agreed to:
[BANK OF AMERICA, N.A.][ XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED]
By:________________________
Title:______________________
Date:______________________
Provided the Securities have been issued, notice of delivery and confirmation of receipt will be the obligations of [BANA][MLPF&S]. Prompt notification of incorrect information or rejection of the trade assignment should be made to [_____].
Exhibit B-2
LEGAL02/41198418v10
Exhibit C
DOCUMENT LIST
Seller shall deliver or cause to be delivered the following documents to Purchaser:
(i) the fully completed, executed and authenticated Participation Certificate together with the certifications of the Custodian provided by Section 3(b) of the Custodial Agreement;
(ii) a Trade Assignment (unless Purchaser is the Takeout Investor) together with either (a) a copy of a Takeout Commitment with respect to the Security to be backed by the Mortgage Loans evidenced by such Participation Certificate or (b) a letter from Seller confirming the details of such Takeout Commitment;
(iii) a letter from any warehouse lender having a security interest in the Related Mortgage Loans, substantially in the form of Exhibit D, addressed to Purchaser, releasing any and all right, title and interest in such Mortgage Loans; and
(iv) a transaction request, together with a schedule listing the Related Mortgage Loans, which schedule contains such information as Purchaser may reasonably request.
Exhibit C-1
LEGAL02/41198418v10
Exhibit D
FORM OF WAREHOUSE LENDER’S RELEASE
Bank of America, N.A.
Warehouse Lending
000 X. Xxxxxxx Xx.
Mail Code: NC1-004-04-21
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Warehouse Lending Collateral Team
Attention: Warehouse Lending Collateral Team
Ladies and Gentlemen:
Reference is made to the Amended and Restated Custodial Agreement dated as of July 18, 2012 (as amended, supplemented or otherwise modified and in effect from time to time, the “Custodial Agreement”) among Bank of America, N.A. (“Buyer”), xxxxXxxxx.xxx LLC (“Seller”) and Deutsche Bank National Trust Company as custodian (“Custodian”). Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Custodial Agreement.
We hereby release all right, interest or claim of any kind (including, without limitation, any security interest or lien) with respect to the mortgage loans referenced in the attached schedule [for inclusion only with respect to purchases of Participation Certificates under the Purchase and Sale Agreement: (GNMA/FNMA/FHLMC Pool/Contract #__________)], such release to be effective automatically without any further action by any party, upon payment, in one or more installments in accordance with the wire instructions below, in immediately available funds, of an aggregate amount equal to or greater than $__________________.
Wire Instructions:
Bank:
ABA#:
Account Number:
Account Name:
Attention:
ABA#:
Account Number:
Account Name:
Attention:
Very truly yours,
[WAREHOUSE LENDER]
By:____________________________________
Name:
Title:
Exhibit D-1
LEGAL02/41198418v10
Exhibit E
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and transfer(s) unto
(Please print or typewrite name and address, including postal zip code of assignee)
an undivided Participation Interest Equal to % of the beneficial interest in the Mortgage Loans relating to the within Participation Certificate, Pool No. (FHLMC Contract No.) , Pass-Through Rate , Discount and hereby authorize(s) the transfer of registration of such interest to assignee.
[Assignor]
By:
Name:
Title:
By:
Name:
Title:
Dated:________________
Exhibit E-1
LEGAL02/41198418v10
Exhibit F
FORM OF CONFIRMATION
TO: xxxxXxxxx.xxx, LLC
00000 Xxxxx Xxxxxx Xxxxx
00000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: [***], Chief Financial Officer
Email: [***]
Cc: Xxxxxx Xxxxx – [***]
DATE:
RE: Confirmation of Purchase of a beneficial interest in
Mortgage Loans relating to a Participation Certificate
Mortgage Loans relating to a Participation Certificate
Bank of America, N.A. (“Purchaser”) is pleased to confirm its agreement to purchase and your agreement to sell a 100% undivided, beneficial interest in the Mortgage Loans relating to a Participation Certificate relating to the contract/pool number [(GN/FN/FH Contract/Pool Number)] referred to herein (the “Pool”), pursuant to the Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (the “Agreement”), between Purchaser and Seller, under the following terms and conditions.
| Pool No. (or FHLMC Contract No.) | ||
| Applicable Agency | ||
| Purchase Date | ||
| Anticipated Delivery Date | ||
| Settlement Date | ||
| Applicable Agency TBA trade price | ||
| Trade Price | ||
| Purchase Price: | ||
| Holdback Amount | ||
| Face Amount of the Security_________________________ | ||
Capitalized terms used and not otherwise defined herein shall have the meanings ascribed in the Agreement.
Very truly yours,
BANK OF AMERICA, N.A.
By:
Name:
Title:
BANK OF AMERICA, N.A.
By:
Name:
Title:
Exhibit F-1
LEGAL02/41198418v10
Exhibit G
SELLER’S OFFICER’S CERTIFICATE
I, ___________, hereby certify that I am the duly elected ______________ of xxxxXxxxx.xxx, LLC, a Delaware limited liability company (“Seller”), and further certify, on behalf of Seller as follows:
(1) Attached hereto as Attachment I is a true and correct copy of the certificate of formation and operating agreement of Seller as are in full force and effect on the date hereof.
(2) Attached hereto as Attachment II is a Certificate of Good Standing of Seller, issued by the Secretary of the State of Delaware dated _______, ____. No event has occurred since _______, ____ which has affected the good standing of Seller under the laws of the State of Delaware.
(3) Each person who, as an officer or attorney-in-fact of Seller, signed (a) the Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between Seller and Bank of America, N.A. (the “Purchaser”); (b) the Amended and Restated Custodial Agreement, dated as of July 18, 2012 (as amended, supplemented or otherwise modified from time to time, the “Custodial Agreement”), by and among Seller, the Purchaser and Deutsche Bank National Trust Company; and (c) any other document delivered prior hereto or on the date hereof in connection with transactions contemplated in the Agreement was, at the respective times of such signing and delivery, and is as of the date hereof, duly elected or appointed, qualified and acting as such officer or attorney-in-fact, and the signatures of such persons appearing on such documents are their genuine signatures.
(4) Attached hereto as Attachment III is a true and correct copy of the corporate resolutions duly and validly adopted on July 17, 2012 at a special meeting that apply to the Purchase Agreement, and such resolutions have not been amended, modified or rescinded in any respect and remain in full force and effect without modification or amendment as of the date hereof. Further, such resolutions authorize any one of the officers listed therein to execute and deliver the Purchase Agreement, enter into transaction thereunder, and to do any and all things which he or she may deem necessary or desirable in connection with such transactions, including approving, executing and delivering any amendments or modifications to the Purchase Agreement.
(5) All of the representations and warranties of Seller contained in the Agreement were true and correct in all material respects as of the date of the Agreement and are true and correct in all material respects as of the date hereof.
Exhibit G-1
LEGAL02/41198418v10
(6) Seller has performed all of its duties and has satisfied all the material conditions on its part to be performed or satisfied pursuant to the Agreement on or prior to the date hereof.
(7) There are no actions, suits or proceedings pending or, to my knowledge, threatened, against or affecting Seller which, if adversely determined either individually or in the aggregate, would adversely affect Seller’s obligations under the Agreement or the Custodial Agreement.
(8) No proceedings that could result in the liquidation or dissolution of Seller are pending or contemplated.
(9) Incumbency of Officers. The below named persons have been duly elected or appointed, and have been duly qualified as officers of Seller holding the respective office below set opposite his or her name, and the signature below set opposite his or her name is his or her genuine signature.
| Name | Office | Signature | ||||||||||||
All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of Seller.
Dated: _________ __, ____
[Seal]
XXXXXXXXX.XXX, LLC
By:
Name:
Title:
Exhibit G-2
LEGAL02/41198418v10
I, ___________________, _________ of ______________, hereby certify that ________________ is the duly elected, qualified and acting _______________ of __________ and that the signature appearing above is the genuine signature of such person.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: ____________ __, ____
[Seal]
XXXXXXXXX.XXX, LLC
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Exhibit G-3
LEGAL02/41198418v10
Exhibit H
SELLER’S OFFICER’S CERTIFICATE
I, ___________, hereby certify that I am the duly elected ______________ of xxxxXxxxx.xxx, LLC, a Delaware limited liability company (“Seller”), and further certify, on behalf of Seller as follows:
(1) There has been no change in the certificate of formation and operating agreement of Seller since the date such documents were provided to the Purchaser and such documents are in full force and effect on the date hereof.
(2) No event has occurred since the date of the last good standing certificate of Seller provided to the Purchaser which has affected the good standing of Seller under the laws of the State of Delaware.
(3) All of the representations and warranties of Seller contained in Section 9(a) of the Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (as amended, supplemented or otherwise modified from time to time, the “Agreement”), by and between Seller and Bank of America, N.A. (“Purchaser”), are true and correct in all material respects as of the date hereof and all of the representations and warranties of Seller contained in Section 9(b) of the Agreement are true and correct in all material respects as to the Related Mortgage Loans subject to the Participation Certificate being sold to Purchaser on the date hereof.
(4) Seller has performed all of its duties and has satisfied all the material conditions on its part to be performed or satisfied pursuant to the Agreement on or prior to the date hereof.
(5) There are no actions, suits or proceedings pending or, to my knowledge, threatened, against or affecting Seller which, if adversely determined either individually or in the aggregate, would adversely affect Seller’s obligations under the Agreement or the Custodial Agreement.
(6) No proceedings that could result in the liquidation or dissolution of Seller are pending or contemplated.
(7) Each Mortgage Loan that is subject to a Participation Certificate to be sold to the Purchaser on the date hereof was originated by Seller or purchased from an approved originator previously approved by the Purchaser not more than sixty (60) days prior to the date hereof. No Related Mortgage Loan was rejected for purchase or financing by any third party.
All capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Agreement.
IN WITNESS WHEREOF, I have hereunto signed my name and affixed the seal of Seller.
Exhibit H-1
LEGAL02/41198418v10
Dated: _________ __, ____
[Seal]
XXXXXXXXX.XXX, LLC
By:
Name
Title:
By:
Name
Title:
Exhibit H-2
LEGAL02/41198418v10
I, ___________________, _________ of ______________, hereby certify that ________________ is the duly elected, qualified and acting _______________ of __________ and that the signature appearing above is the genuine signature of such person.
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated: _________ __, ____
[Seal]
XXXXXXXXX.XXX, LLC
By: __________________
Name
Title:
By: __________________
Name
Title:
Exhibit H-3
LEGAL02/41198418v10
Exhibit I
RESERVED
Exhibit I-1
LEGAL02/41198418v10
Exhibit J
FORM OF REQUEST FOR TEMPORARY INCREASE
[Date]
Bank of America, N.A.
Xxx Xxxxxx Xxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
NY1-100-11-01
Attention: [***]
Xxx Xxxxxx Xxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
NY1-100-11-01
Attention: [***]
Re: The Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (the “Agreement”), between Bank of America, N.A. (“Purchaser”) and xxxxXxxxx.xxx, LLC (“Seller”)
Ladies and Gentlemen:
In accordance with Section 2(f) of the Agreement, Purchaser hereby consents to a Temporary Increase of the Aggregate Transaction Limit as further set forth below:
Amount of Temporary Increase: $ .
Effective date: [dd/mm/yyyy]
Termination date: [dd/mm/yyyy]
On and after the effective date indicated above and until the termination date indicated above, the Aggregate Transaction Limit shall be increased by the amount of the Temporary Increase indicated above for all purposes of the Agreement and all calculations and provisions relating to the Aggregate Transaction Limit shall refer to the Aggregate Transaction Limit as so increased. Unless otherwise terminated pursuant to the Agreement, this Temporary Increase shall terminate on the termination date indicated above. Upon the termination of this Temporary Increase, the Aggregate Transaction Limit shall be reduced by the amount of the Temporary Increase.
All terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Agreement.
[signature page follows]
Exhibit J-1
LEGAL02/41198418v10
XXXXXXXXX.XXX, LLC, Seller
By:
Name:
Title:
Name:
Title:
Agreed and Consented by:
BANK OF AMERICA, N.A., Purchaser
By: _______________________________________
Name:
Title:
Name:
Title:
Exhibit J-2
LEGAL02/41198418v10
Exhibit K
FORM OF SERVICER NOTICE AND ACKNOWLEDGEMENT
[Date]
[_______________], as Servicer
[ADDRESS]
Attention: __________________
[ADDRESS]
Attention: __________________
Re: Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), by and between xxxxXxxxx.xxx, LLC (the “Seller”) and Bank of America, N.A. (the “Purchaser”).
Ladies and Gentlemen:
[_______________________] (“Servicer”) is servicing certain mortgage loans for Seller pursuant to that certain [Servicing Agreement], dated as of [ ] (the “Servicing Agreement”) between Servicer and Seller. Pursuant to the Agreement between Purchaser and Seller, Servicer is hereby notified that Seller may from time to time sell to Purchaser certain mortgage loans which are currently being serviced by Servicer pursuant to the terms of the Servicing Agreement.
Section 1. Direction Notice. (a) Upon receipt of notice from Purchaser (a “Direction Notice”) in which Purchaser shall identify the mortgage loans which back a participation certificate that is sold to Purchaser under the Agreement (the “Mortgage Loans”), Servicer shall segregate all amounts collected on account of such Mortgage Loans, hold them in trust for the sole and exclusive benefit of Purchaser, and remit such collections in accordance with Purchaser’s written instructions. Further, Servicer shall follow the instructions of Purchaser with respect to the Mortgage Loans, and shall deliver to Purchaser any information with respect to the Mortgage Loans as reasonably requested by Purchaser.
(b) Notwithstanding any contrary information which may be delivered to the Servicer by Seller, Servicer may conclusively rely on any information delivered by Purchaser, and Seller shall indemnify and hold the Servicer harmless for any and all claims asserted against it for any actions taken in good faith by the Servicer in connection with the delivery of such information.
Section 2. No Modification of the Servicing Agreement. Without the prior written consent of Purchaser exercised in Purchaser’s sole discretion, Servicer shall not agree to (a) any material modification, amendment or waiver of the Servicing Agreement; (b) any termination of the Servicing Agreement or (c) the assignment, transfer, or material delegation of any of its rights or obligations under the Servicing Agreement.
Section 3. Right of Termination. Purchaser shall have the right to terminate the Servicer’s rights and obligations to service the Mortgage Loans under the Servicing Agreement in accordance with the terms thereof. Any fees due the Servicer (a) in connection with any termination shall be paid by Seller and (b) incurred following receipt of a Direction Notice shall be paid by Purchaser to the extent that such fees relate to the Mortgage Loans that are subject to the Servicing Agreement. Seller and the Servicer shall cooperate in transferring the servicing with respect to such Mortgage Loans to a successor servicer appointed by Purchaser in its sole discretion.
Exhibit K-1
LEGAL02/41198418v10
Section 4. Notices. All notices, demands, consents, requests and other communications required or permitted to be given or made hereunder in writing shall be mailed (first class, return receipt requested and postage prepaid) or delivered in person or by overnight delivery service or by facsimile, addressed to the respective parties hereto at their respective addresses set forth below or, as to any such party, at such other address as may be designated by it in a notice to the other:
Any notices to Purchaser should be delivered to the following addresses:
Bank of America, N.A.
One Bryant Park – 11th floor
Mail Code: NY1-100-11-01
Xxx Xxxx, Xxx Xxxx 00000
Attention: [***]
Telephone: [***]
Facsimile: [***]
Email: [***]
and
Bank of America, N.A.
00000 Xxxxxx Xxxx
00000 Xxxxxx Xxxx
Mail Code: CA6-917-02-63
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: [***]
Telephone: [***]
Facsimile: [***]
Email: [***]
Any notices to Servicer should be delivered to the following addresses:
[ ]
Any notices to Seller should be delivered to the following addresses:
[ ]
Section 5. 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.
Section 6. Entire Agreement; Severability. This agreement shall supersede any existing agreements between the parties containing general terms and conditions for the servicing of the Mortgage Loans. 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.
Section 7. Governing Law; Jurisdiction; Waiver of Jury Trial. (a) This agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of laws (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
(b) All legal actions between or among the parties regarding this agreement, including, without limitation, legal actions to enforce this agreement or because of a dispute,
Exhibit K-2
LEGAL02/41198418v10
breach or default of this agreement, shall be brought in the federal or state courts located in New York County, New York, which courts shall have sole and exclusive in personam, subject matter and other jurisdiction in connection with such legal actions. The parties hereto irrevocably consent and agree that venue in such courts shall be convenient and appropriate for all purposes and, to the extent permitted by law, waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same. The parties hereto further irrevocably consent and agree that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address set forth in Section 4, and that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to xxx in any other jurisdiction.
(c) The parties hereto hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this agreement or the transactions contemplated hereby or thereby.
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Exhibit K-3
LEGAL02/41198418v10
IN WITNESS WHEREOF, the parties have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the day and year first above written.
BANK OF AMERICA N.A., as Purchaser
By: ____________________________
Name:
Title:
Name:
Title:
XXXXXXXXX.XXX, LLC, as Seller
By: ____________________________
Name:
Title:
Name:
Title:
[ ], as Servicer
By: ____________________________
Name:
Title:
Name:
Title:
Exhibit K-4
LEGAL02/41198418v10
Annex A
PURCHASER NOTICES
| Name: | Bank of America, N.A. | ||||
| Address: | 00000 Xxxxxx Xxxx Mail Code: CA6-917-02-63 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: [***] | ||||
| Telephone: | [***] | ||||
| Telecopy: | [***] | ||||
| Email: | [***] | ||||
| with copies to: | |||||
| Name: | Bank of America, N.A. | ||||
| Address: | One Bryant Park, 11th Floor [***] Xxx Xxxx, Xxx Xxxx 00000 Attention: [***] | ||||
| Telephone: | [***] | ||||
| Telecopy: | [***] | ||||
| Email: | [***] | ||||
| Name: | Bank of America, N.A. | ||||
| Address: | One Bank of America Center 000 Xxxxx Xxxxxxx Xxxxxx [***] Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: [***] | ||||
| Telephone: | [***] | ||||
| Telecopy: | [***] | ||||
| Email: | [***] | ||||
SELLER NOTICES
| Name: | xxxxXxxxx.xxx, LLC | ||||
| Address: | 00000 Xxxxx Xxxxxx Xxxxx Xxxxxxxx Xxxxx, XX 00000 Attention: [***] | ||||
| Telephone: | [***] | ||||
| Telecopy: | [***] | ||||
| Email: | [***] | ||||
| With copies to: | [***] | ||||
Annex A-1
LEGAL02/41198418v10
