JOINT AMENDMENT NO. 2 TO THE SERIES 2017-VF1 REPURCHASE AGREEMENT AND AMENDMENT NO. 1 TO THE PRICING SIDE LETTER
EXHIBIT 10.4
JOINT AMENDMENT NO. 2 TO THE SERIES 2017-VF1 REPURCHASE AGREEMENT AND AMENDMENT NO. 1 TO THE PRICING SIDE LETTER
This Joint Amendment No. 2 to the Series 2017-VF1 Repurchase Agreement (as defined below) and Amendment No. 1 to the Pricing Side Letter (as defined below) is entered into as of June 28, 2024 (this “Amendment”), among ATLAS SECURITIZED PRODUCTS, L.P., as administrative agent (the “Administrative Agent”), NEXERA HOLDING LLC, as a buyer (“Nexera” or a “Buyer”), CITIBANK, N.A., as a buyer (“Citibank” and together with Xxxxxx, the “Buyers”), PENNYMAC CORP. (“PMC”), as a seller (a “Seller”), PENNYMAC HOLDINGS, LLC (“PMH”), as a seller (a “Seller” and together with PMC, the “Sellers”), and PENNYMAC MORTGAGE INVESTMENT TRUST, as guarantor (the “VFN Guarantor”). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Indenture (as defined below).
W I T N E S S E T H:
WHEREAS, the Administrative Agent, the Buyers and the Sellers are parties to that certain Second Amended and Restated Master Repurchase Agreement, dated as of October 10, 2023 (as amended by Amendment No. 1, dated as of March 15, 2024, and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Series 2017-VF1 Repurchase Agreement”) and the related Fifth Amended and Restated Pricing Side Letter, dated as of October 10, 2023 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Pricing Side Letter”);
WHEREAS, the Administrative Agent, the Buyers, the Sellers and the VFN Guarantor have agreed, subject to the terms and conditions of this Amendment, that the Series 2017-VF1 Repurchase Agreement and the Pricing Side Letter be amended to reflect the certain agreed upon revisions to the terms of the Series 2017-VF1 Repurchase Agreement and the Pricing Side Letter;
WHEREAS, the VFN Guarantor is party to that certain Second Amended and Restated Guaranty, dated as of October 10, 2023 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “VFN Repo Guaranty”), by the VFN Guarantor in favor of Buyer;
WHEREAS, as a condition precedent to amending the Series 2017-VF1 Repurchase Agreement and the Pricing Side Letter, Buyers have required the VFN Guarantor to ratify and affirm the VFN Repo Guaranty on the date hereof;
WHEREAS, PMT Issuer Trust – FMSR, as issuer (the “Issuer”), PMT Co-Issuer Trust I – FMSR, as co-issuer (the “Co-Issuer”), Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, PMC, as administrator (in such capacity, the “Administrator”) and as servicer (in such capacity, the “Servicer”), PMH, as co-issuer administrator (in such capacity, the “Co-Issuer Administrator”), and the Administrative Agent are parties to that certain Amended and Restated Base Indenture, dated as of October 10, 2023 (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Base Indenture”), the provisions of which are incorporated, as modified by that certain Xxxxxxx and
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Restated Series 2017-VF1 Indenture Supplement, dated as of October 10, 2023 (as amended by Amendment No. 1, dated as of June 28, 2024, and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Series 2017-VF1 Indenture Supplement,” and together with the Base Indenture, the “Indenture”), among the Issuer, the Co-Issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, the Servicer, the Administrator, the Co-Issuer Administrator and the Administrative Agent;
WHEREAS, pursuant to Section 10.3(e)(iii) of the Base Indenture, so long as any Note is Outstanding and until all obligations have been paid in full, the Sellers shall not consent to any amendment, modification or waiver of any term or condition of any Transaction Document, without the prior written consent of the Administrative Agent; and
WHEREAS, the Series 2017-VF1 Repurchase Agreement and the Pricing Side Letter are Transaction Documents.
NOW THEREFORE, the Administrative Agent, the Buyer, the Sellers and the Guarantor hereby agree, in consideration of the mutual promises and mutual obligations set forth herein, that the Series 2017-VF1 Repurchase Agreement and the Pricing Side Letter are hereby amended as follows:
“Pro Rata Share” means, (A) with respect to each Buyer, 50%, or (B) with respect to the “Required Buyers” definition, the percentage obtained from the fraction: (i) the numerator of which is the outstanding Purchase Price attributable to such Buyer and (ii) the denominator of which is the aggregate outstanding Purchase Price.
(a) Procedure for Entering into Transactions. (a) Each Seller may enter into Transactions with Buyers under this Agreement on any Purchase Date; provided, that the applicable Seller shall have given Administrative Agent and Buyers irrevocable notice (each, a “Transaction Notice”), which notice (i) shall be substantially in the form of Exhibit A, (ii) shall be signed by a Responsible Officer of the applicable Seller and be received by Administrative Agent and Buyers prior to 1:00 p.m. (New York time) (a) twenty (20) calendar days with respect to any Committed Amount or (b) two (2) Business Days with respect to any amounts other than a Committed Amount, in each case, prior to the related Purchase Date, and (iii) shall specify: (A) the Maximum VFN Principal Balance of the Note; (B) the Initial Note Balance of the Note; (C) the Dollar amount of the requested Purchase Price; (D) the requested Purchase Date; (E) the Repurchase Date; (F) the Pricing Rate or Repurchase Price applicable to the Transaction; and (G) any additional terms or conditions of the Transaction not inconsistent with this Agreement. Each Transaction Notice on any Purchase Date shall be in an amount equal to at least $500,000.
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Section 2.14 Commitment Fee and Other Fees. Sellers shall pay the Commitment Fee and any other fees, if any, as specified in any side letter related to this Agreement. Such payment shall be made in Dollars in immediately available funds, without deduction, set off or counterclaim, to Administrative Agent at such account designated in writing by Administrative Agent.
(f) Fees. Administrative Agent and Buyers shall have received payment in full of all fees and Expenses (including the Commitment Fee and any other fees set forth in any side letter related to this Agreement, if any) which are payable hereunder to Administrative Agent and Buyers on or before such date.
(i) Fees. Administrative Agent and Buyers shall have received payment in full of all fees and Expenses (including the Commitment Fee and any other fees set forth in any side letter related to this Agreement, if any) which are payable hereunder to Administrative Agent and Buyers on or before such date.
(8) promptly upon the creation, incurrence, assumption or existence of any of the following, notice thereof:
a. any Guarantees, except (x) to the extent reflected in any Seller’s financial statements or notes thereto and (y) to the extent the aggregate Guarantees of such Seller do not exceed $250,000; and
b. additional material Indebtedness other than (w) the Existing Indebtedness specified on Exhibit B hereto; (x) Indebtedness incurred with Buyers or their Affiliates; (y) Indebtedness incurred in connection with new or existing secured lending facilities; and (z) usual and customary accounts payable for a mortgage company.
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(j) Judgment. A final judgment or judgments for the payment of money in excess of 5% of either Seller’s Adjusted Tangible Net Worth shall be rendered against either Seller or any of their Affiliates by one or more courts, administrative tribunals or other bodies having jurisdiction and the same shall not be satisfied, discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof.
Section 11.11 Non-Confidentiality of Tax Treatment. (a) This Agreement and its terms, provisions, supplements and amendments, and notices hereunder, are proprietary to Buyers or Sellers, as applicable and shall be held by each party hereto, as applicable in strict confidence and shall not be disclosed to any third party without the written consent of the Required Buyers or Sellers, except for (i) disclosure to Buyers’ or Sellers’ direct and indirect Affiliates and Subsidiaries, attorneys or accountants, but only to the extent such disclosure is necessary and such parties agree to hold all information in strict confidence, or (ii) disclosure required by law, rule, regulation or order of a court or other regulatory body. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Program Agreements, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Sellers may not disclose the name of or identifying information with respect to Buyers or any pricing terms (including the Pricing Rate, Purchase Price Percentage, Purchase Price and Commitment Fee and any other fees set forth in any side letter related to this Agreement (if any)) or other nonpublic business or financial information (including any sublimits) that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of Administrative Agent and Xxxxxx.
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“Benchmark” means, with respect to any date of determination, the Daily Simple SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, Benchmark for the three (3) Business Days prior to the related Price Differential Payment Date shall be fixed at Benchmark for the third (3rd) Business Day prior to the related Price Differential Payment Date.
“Committed Amount” means, with respect to each Buyer, the lesser of (a) Nexera’s “Committed Amount,” (b) Citibank’s “Citi Committed Amount,” or (c) such other Buyer’s “Committed Amount” (as such term is defined in the related Side Letter Agreement), in each case, as may be modified from time to time in accordance with the terms set forth in the applicable Side Letter Agreement. If a Buyer’s Committed Amount is modified (a “Commitment Modification”), each other Buyer’s Committed Amount shall be adjusted by a corresponding amount to maintain equal Pro Rata Shares between the Buyers at all times, and each Buyer’s Committed Amount shall subsequently adjust in equal Pro Rata Shares to the extent permitted under the terms of the applicable Side Letter Agreement; provided, however, that the aggregate Committed Amount for all Buyers shall not exceed $400,000,000 nor shall the individual Committed Amount for any Buyer exceed its Pro Rata Share of such amount at any time. For the avoidance of doubt, the provisions of Section 2.02(b) shall govern in the event that there is a Defaulting Buyer, subject to the terms provided under the Non-Defaulting Buyer’s Side Letter Agreement.
“Side Letter Agreement” means, (i) with respect to Nexera, the Amended and Restated Side Letter Agreement, dated as of October 10, 2023, among Sellers, Nexera, the Administrative Agent and the VFN Guarantor, (ii) with respect to Citibank, the Amended and Restated Side Letter Agreement, dated as of October 10, 2023 between Sellers, Citibank and the VFN Guarantor, and (iii) with respect to any other Buyer who becomes a party to the Repurchase Agreement and this Pricing Side Letter after the date hereof, the Side Letter Agreement between Sellers and such Buyer, in each case, as may be amended, restated, supplemented or otherwise modified from time to time.
“Termination Date” means the earliest of (a) June 26, 2026; (b) the Obligations having become immediately due and payable pursuant to Section 7.03 of the Repurchase Agreement; (c) upon termination of the Indenture; and (d) at each Buyer’s or each Seller’s option pursuant to Section 2.15 of the Repurchase Agreement. The parties hereto will use their best efforts to agree to renewal terms to the Agreement and extend clause (a) of this definition no later than March 2025.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURES FOLLOW.]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first above written.
ATLAS SECURITIZED PRODUCTS, L.P., as Administrative Agent
By: Atlas Securitized Products GP, LLC, its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Authorized Signatory
NEXERA HOLDING LLC, as a Buyer
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxx Xxxxx
Title: CEO
CITIBANK, N.A., as a Buyer
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney in Fact
PENNYMAC CORP., as a Seller
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Managing Director and Treasurer
PENNYMAC HOLDINGS, LLC., as a Seller
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Managing Director and Treasurer
PENNYMAC MORTGAGE INVESTMENT TRUST, as VFN Guarantor
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Senior Managing Director and Treasurer
