Exhibit 10.7.1
EXECUTION VERSION
MASTER REPURCHASE AGREEMENT
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, as buyer
("Buyer", which term shall include any "Principal"
as defined and provided for in Annex I) or as agent pursuant hereto ("Agent")
and
CRESLEIGH FINANCIAL SERVICES, LLC, as seller ("Seller")
Dated March 1, 2002
TABLE OF CONTENTS
Page
1. Applicability............................................... 1
2. Definitions................................................. 1
3. Program; Initiation of Transactions ........................ 17
4. Repurchase.................................................. 19
5. Price Differential.......................................... 20
6. Margin Maintenance ......................................... 20
7. Income Payments ............................................ 20
8. Security Interest........................................... 21
9. Payment and Transfer ....................................... 22
10. Conditions Precedent ....................................... 22
11. Program; Costs.............................................. 25
12. Servicing................................................... 26
13. Representations and Warranties.............................. 27
14. Covenants................................................... 32
15. Events of Default........................................... 36
16. Remedies Upon Default....................................... 38
17. Reports..................................................... 40
18. Repurchase Transactions..................................... 42
19. Single Agreement............................................ 43
20. Notices and Other Communications ........................... 43
21. Entire Agreement; Severability.............................. 44
22. Nonassignability............................................ 45
23. Set-off..................................................... 45
24. Binding Effect; Governing Law; Jurisdiction................. 45
25. No Waivers, Etc............................................. 46
26. Intent...................................................... 46
27. Disclosure Relating to Certain Federal Protections.......... 46
28. Power of Attorney........................................... 47
29. Buyer May Act Through Affiliates............................ 47
30. Indemnification; Obligations ............................... 47
31. Counterparts................................................ 48
32. Confidentiality............................................. 48
33. Recording of Communications ................................ 49
34. Structuring Fee............................................. 49
35. Non-Utilization Fee ........................................ 49
36. Periodic Due Diligence Review............................... 49
SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased
Mortgage Loans
ANNEXES
Annex I - Buyer Acting as Agent
Annex II - Structuring Fee Schedule
Annex III - Non-Utilization Fee Formula
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EXHIBITS
Exhibit A - Form of Transaction Request
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Mortgage Loan Schedule and Exception Report
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Reserved
Exhibit F - Form of Opinion of Seller's counsel
Exhibit G - Underwriting Guidelines
Exhibit H - Authorized Signatories of Seller
Exhibit I - Corporate Resolutions of Seller
Exhibit J - Seller's Tax Identification Number
Exhibit K - Existing Indebtedness
Exhibit L - Wet-Ink Procedures
Exhibit M - Escrow Instruction Letter
Exhibit N - Custodial and Bank Fee Schedule
Exhibit O - Form of Servicer Notice
Exhibit P--Computer Correction Fee Schedule
1. Applicability
From time to time the parties hereto may enter into transactions in which
Seller agrees to transfer to Buyer Mortgage Loans (as hereinafter defined)
against the transfer of funds by Buyer, with a simultaneous agreement by Seller
to repurchase such Mortgage Loans at a date certain or on demand if such
Mortgage Loans are not sold by Buyer to a third party as provided herein. Each
such transaction shall be referred to herein as a "Transaction" and, unless
otherwise agreed in writing, shall be governed by this Agreement, including any
supplemental terms or conditions contained in any annexes identified herein, as
applicable hereunder.
2. Definitions
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
"Acceptable State" means any state acceptable pursuant to Seller's
Underwriting Guidelines.
"Accepted Servicing Practices" means, with respect to any Mortgage Loan,
those mortgage servicing practices of prudent mortgage lending institutions
which service mortgage loans of the same type as such Mortgage Loan in the
jurisdiction where the related Mortgaged Property is located.
"Act of Insolvency" means, with respect to any Person or its Affiliates,
(i) the filing of a petition, commencing, or authorizing the commencement of any
case or proceeding, or the voluntary joining of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law
relating to the protection of creditors, or suffering any such petition or
proceeding to be commenced by another which is consented to, not timely
contested or results in entry of an order for relief; (ii) the seeking of the
appointment of a receiver, trustee, custodian or similar official for such party
or an Affiliate or any substantial part of the property of either; (iii) the
appointment of a receiver, conservator, or manager for such party or an
Affiliate by any governmental agency or authority having the jurisdiction to do
so; (iv) the making or offering by such party or an Affiliate of a composition
with its creditors or a general assignment for the benefit of creditors; (v) the
admission by such party or an Affiliate of such party of its inability to pay
its debts or discharge its obligations as they become due or mature; or (vi)
that any governmental authority or agency or any person, agency or entity acting
or purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the property of such party or of any of its Affiliates, or
shall have taken any action to displace the management of such party or of any
of its Affiliates or to curtail its authority in the conduct of the business of
such party or of any of its Affiliates.
"Adjusted Tangible Net Worth" means, Net Worth plus 1% of the outstanding
servicing portfolio balance of such Person plus Subordinated Debt, minus
intangible assets such as capitalized servicing rights, goodwill and trademarks,
minus notes receivable from shareholders or Affiliates.
"Affiliate" means, with respect to any Person, any "affiliate" of such
Person, as such term is defined in the Bankruptcy Code.
"Agency" means Xxxxxxx Mac or Xxxxxx Mae, as applicable.
"Agency Security" means a mortgage-backed security issued by an Agency.
"Agent" means Credit Suisse First Boston Mortgage Capital LLC or any
affiliate or successor thereto.
"Agreement" means this Master Repurchase Agreement, as it may be amended,
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supplemented or otherwise modified from time to time.
"Alt A Mortgage Loan" means a Mortgage Loan originated in accordance with
the criteria established by Buyer for Alt-A Mortgage Loans, as determined by
Buyer in its sole discretion.
"Appraised Value " means the value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of the
Mortgaged Property.
"Asset Tape" means a remittance report on a monthly basis containing
servicing information, including, without limitation, those fields reasonably
requested by Buyer from time to time, on a loan-by-loan basis and in the
aggregate, with respect to the Purchased Mortgage Loans serviced hereunder by
Seller or any Servicer for the month (or any portion thereof) prior to the
Reporting Date.
"Assignment of Mortgage " means an assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the laws
of the jurisdiction wherein the related Mortgaged Property is located to reflect
the sale of the Mortgage to Buyer.
"Bailee Letter" has the meaning assigned to such term in the Custodial
Agreement.
"Bankruptcy Code" means the United States Bankruptcy Code of 1978, as
amended from time to time.
"Bid" has the meaning set forth in Section 4(c) hereof.
"Bid Fee" has the meaning set forth in Section 4(c) hereof.
"Blocked Account Agreement" means a blocked account agreement among the
Buyer, the Seller and a third party financial institution at which the Due
Diligence Holdback Account is maintained, which shall be in form and substance
satisfactory to the Buyer.
"Business Day" means any day other than (A) a Saturday or Sunday and (B) a
day that the Federal Reserve Bank of New York is closed.
"Buyer" means Credit Suisse First Boston Mortgage Capital LLC, and any
successor hereunder.
"Buyer's Margin Amount " means with respect to any Transaction as of any
date of determination, an amount equal to the product of (A) Buyer's Margin
Percentage and (B) the Cash Purchase Price for such Transaction.
"Buyer's Margin Percentage " means, with respect to any Transaction as of
any date, a percentage equal to the percentage obtained by dividing the (A)
Market Value of the Purchased Mortgage Loans on the Purchase Date for such
Transaction by (B) the Cash Purchase Price on the Purchase Date for such
Transaction; provided, that, with respect to any Mortgage Loan which was not an
Exception Mortgage Loan on the related Purchase Date and which, as of the date
of determination, is an Exception Mortgage Loan, Buyer's Margin Percentage as of
such date of determination shall be equal to the percentage obtained by dividing
(A) the Market Value of such Mortgage Loan on the related Purchase Date by (B)
the amount the Cash Purchase Price would have been on the Purchase Date if such
Mortgage Loan had been categorized as the type of Mortgage Loan (e.g., Exception
Mortgage Loan, etc.) that it is categorized on the date of determination.
"Calmco" means Olympus Servicing L.P., or any successor in interest
thereto.
"Capital Lease Obligations " means, for any Person, all obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) Property to the extent such obligations are required
to be classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP, and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
"Cash Purchase Price" means the lesser of (A) the outstanding principal
amount thereof as set forth on the related Mortgage Loan Schedule and Exception
Report and (B) (1) the Market Value of such Purchased Mortgage Loan multiplied
by (2) the applicable Cash Purchase Price Percentage, and (ii) thereafter,
except where Buyer and Seller agree otherwise, the amount determined under the
immediately preceding clause (i) decreased by the amount of any cash transferred
by Seller to Buyer pursuant to Section 4(c) hereof or applied to reduce Seller's
obligations under clause (ii) of Section 4(b) hereof.
"Cash Purchase Price Percentage " means, with respect to each Mortgage
Loan, the following percentage, as applicable:
(a) 97% with respect to Purchased Mortgage Loans that are Sub-Prime
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Mortgage Loans;
(b) 98% with respect to Purchased Mortgage Loans that are Alt A
Mortgage Loans;
(c) 98% with respect to Purchased Mortgage Loans that are Jumbo
Mortgage Loans;
(d) 98% with respect to Purchased Mortgage Loans that are first lien
Conforming Mortgage Loans;
(e) 95% with respect to Purchased Mortgage Loans that are Second Lien
Mortgage Loans; and
with respect to Transactions the subject of which are Exception
Mortgage Loans, a percentage to be determined by Buyer in its sole
discretion.
"Change in Control" means:
(A) any transaction or event as a result of which Xxxx X. Xxxxxx, Xxxxxx
Xxxxxx and Xxxxxx X. Sketsos (collectively, the "Members"), cease to own, in the
aggregate, beneficially or of record, at least 51% of the voting membership or
partnership interest in the Seller; provided that, notwithstanding the
foregoing, the Members may make assignments or transfers of partnership
interests in the Seller to family members of the Members solely for tax and
estate planning purposes (such assignment, a "Family Assignment");
(B) the sale, transfer, or other disposition of all or substantially all of
the Seller's assets (excluding any such action taken in connection with any
securitization transaction); or
(C) the consummation of a merger or consolidation of Seller with or into
another entity or any other corporate reorganization, if more than 50% of the
combined voting power of the continuing or surviving entity's stock or equity
interests outstanding immediately after such merger, consolidation or such other
reorganization is owned by persons who were not members or partners of the
Seller immediately prior to such merger, consolidation or other reorganization;
provided that, notwithstanding the foregoing, the Members may make any Family
Assignment.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collection Account " means one or more accounts established by the
Servicer for the benefit of Buyer, into which all collections and proceeds on or
in respect of the Mortgage Loans shall be deposited by Servicer.
"Committed Mortgage Loan" means a Mortgage Loan which is the subject of a
Take-out Commitment with a Take-out Investor.
"Conforming Mortgage Loan" means a Mortgage Loan originated in accordance
with the criteria of an Agency for purchase of Mortgage Loans, including,
without limitation, conventional Mortgage Loans, FHA Loans and VA Loans
(provided that Seller shall have received HUD approval in accordance with
Section 14(cc) hereof), as determined by Buyer in its sole discretion.
"Custodial Agreement" means the custodial agreement dated as of the date
hereof, among Seller, Buyer and Custodian as the same may be amended from time
to time.
"Custodian" means LaSalle Bank, National Association or such other party
specified by Buyer and agreed to by Seller, which approval shall not be
unreasonably withheld.
"Default" means an Event of Default or an event that with notice or lapse
of time or both would become an Event of Default.
"Dollars" and "$" means dollars in lawful currency of the United States of
America.
"Due Date" means the day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
"Due Diligence Holdback Account" means a cash account, established by the
Seller at a third party financial institution, acceptable to the Buyer in its
sole discretion, and subject to the exclusive dominion and control of the Buyer
with no right of withdrawal by the Seller.
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"Due Diligence Holdback Amount" has the meaning set forth in Section 3(e)
hereof.
"Effective Date" means the date upon which the conditions precedent set
forth in Section 10 shall have been satisfied.
"Electronic Tracking Agreement" means an Electronic Tracking Agreement
among Buyer, Seller, MERS and MERSCORP, Inc., to the extent applicable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which Seller is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
"Escrow Instruction Letter" means the Escrow Instruction Letter from Seller
to the Settlement Agent, in the form of Exhibit M hereto, as the same may be
modified, supplemented and in effect from time to time.
"Escrow Payments" means, with respect to any Mortgage Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, mortgage insurance premiums, fire and hazard insurance
premiums, condominium charges, and any other payments required to be escrowed by
the Mortgagor with the mortgagee pursuant to the Mortgage or any other document.
"Event of Default" has the meaning specified in Section 15 hereof.
"Event of Termination" means with respect to Seller (i) with respect to any
Plan, a reportable event, as defined in Section 4043 of ERISA, as to which the
PBGC has not by regulation waived the requirement of Section 4043(a) of ERISA
that it be notified with 30 days of the occurrence of such event, or (ii) the
withdrawal of Seller or any ERISA Affiliate thereof from a Plan during a plan
year in which it is a substantial employer, as defined in Section 4001(a)(2) of
ERISA, or (iii) the failure by Seller or any ERISA Affiliate thereof to meet the
minimum funding standard of Section 412 of the Code or Section 302 of ERISA with
respect to any Plan, including, without limitation, the failure to make on or
before its due date a required installment under Section 412(m) of the Code or
Section 302(e) of ERISA, or (iv) the distribution under Section 4041 of ERISA of
a notice of intent to terminate any Plan or any action taken by Seller or any
ERISA Affiliate thereof to terminate any plan, or (v) the adoption of an
amendment to any Plan that, pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA, would result in the loss of tax-exempt status of the trust
of which such Plan is a part if Seller or any ERISA Affiliate thereof fails to
timely provide security to the Plan in accordance with the provisions of said
sections, or (vi) the institution by the PBGC of proceedings under Section 4042
of ERISA for the termination of, or the appointment of a trustee to administer,
any Plan, or (vii) the receipt by Seller or any ERISA Affiliate thereof of a
notice from a Multiemployer Plan that action of the type described in the
previous clause (vi) has been taken by the PBGC with respect to such
Multiemployer Plan, or (viii) any event or circumstance exists which may
reasonably be expected to constitute grounds for Seller or any ERISA Affiliate
thereof to incur liability under Title IV of ERISA or under Sections 412(c)(11)
or 412(n) of the Code with respect to any Plan.
"Exception Mortgage Loan" means any Mortgage Loan which is otherwise
ineligible for purchase hereunder, or which otherwise becomes ineligible for
purchase or otherwise assigned a Market Value of zero hereunder and which is
approved by Buyer in its sole discretion; provided that Seller shall pay to
Buyer a fee of $25 with respect to any such approval of an Exception Mortgage
Loan. The Pricing Rate, Market Value, Cash Purchase Price and Buyer's Margin
Percentage with respect to Exception Mortgage Loans shall be set in the sole
discretion of Buyer. Buyer may at any time, and in its sole discretion, no
longer consider a Mortgage Loan an Exception Mortgage Loan, in which case such
Mortgage Loan shall have a Market Value of zero.
"Existing Indebtedness" has the meaning specified in Section 13(a)(24)
hereof.
"Xxxxxx Xxx" means Xxxxxx Mae, the government sponsored enterprise formerly
known as the Federal National Mortgage Association.
"FHA" means the Federal Housing Administration, an agency within the United
States Department of Housing and Urban Development, or any successor thereto,
and including the Federal Housing Commissioner and the Secretary of Housing and
Urban Development where appropriate under the FHA Regulations.
"FHA Approved Mortgagee" means a corporation or institution approved as a
mortgagee by the FHA under the National Housing Act, as amended from time to
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time, and applicable FHA Regulations, and eligible to own and service mortgage
loans such as the FHA Loans.
"FHA Loan" means a Mortgage Loan which is the subject of an FHA Mortgage
Insurance Contract.
"FHA Mortgage Insurance" means, mortgage insurance authorized under the
National Housing Act, as amended from time to time, and provided by the FHA.
"FHA Mortgage Insurance Contract" means the contractual obligation of the
FHA respecting the insurance of a Mortgage Loan.
"FHA Regulations" means the regulations promulgated by the Department of
Housing and Urban Development under the National Housing Act, as amended from
time to time and codified in 24 Code of Federal Regulations, and other
Department of Housing and Urban Development issuances relating to FHA Loans,
including the related handbooks, circulars, notices and mortgagee letters.
"Foreclosed Loan" means a Mortgage Loan, the property securing which has
been foreclosed upon by Seller.
"Xxxxxxx Mac" means the Federal Home Loan Mortgage Corporation.
"GAAP" means generally accepted accounting principles in effect from time
to time in the United States of America and applied on a consistent basis.
"GNMA" means the Government National Mortgage Association and any successor
thereto.
"Governmental Authority" means any nation or government, any state or other
political subdivision thereof, or any entity exercising executive, legislative,
judicial, regulatory or administrative functions over Seller, or Buyer, as
applicable.
"Gross Margin" means, with respect to each adjustable rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note.
"Guarantee" means, as to any Person, any obligation of such Person directly
or indirectly guaranteeing any Indebtedness of any other Person or in any manner
providing for the payment of any Indebtedness of any other Person or otherwise
protecting the holder of such Indebtedness against loss (whether by virtue of
partnership arrangements, by agreement to keepwell, to purchase assets, goods,
securities or services, or to take-or-pay or otherwise); provided that the term
"Guarantee" shall not include (i) endorsements for collection or deposit in the
ordinary course of business, or (ii) obligations to make servicing advances for
delinquent taxes and insurance or other obligations in respect of a Mortgaged
Property, to the extent required by Buyer. The amount of any Guarantee of a
Person shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by such Person in good faith. The terms
"Guarantee" and "Guaranteed" used as verbs shall have correlative meanings.
"High Cost Mortgage Loans " means any Mortgage Loans classified as (a)
"high cost" loans under the Home Ownership and Equity Protection Act of 1994, as
amended or (b) "high cost," "threshold," or "predatory" loans under any other
applicable state, federal or local law.
"Income" means with respect to any Purchased Mortgage Loan at any time
until repurchased by the Seller, any principal received thereon or in respect
thereof and all interest, dividends or other distributions thereon.
"Indebtedness" means, for any Person: (a) obligations created, issued or
incurred by such Person for borrowed money (whether by loan, the issuance and
sale of debt securities or the sale of Property to another Person subject to an
understanding or agreement, contingent or otherwise, to repurchase such Property
from such Person); (b) obligations of such Person to pay the deferred purchase
or acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business, so long as such trade accounts payable are payable
within 90 days of the date the respective goods are delivered or the respective
services are rendered; (c) Indebtedness of others secured by a Lien on the
Property of such Person, whether or not the respective Indebtedness so secured
has been assumed by such Person; (d) obligations (contingent or otherwise) of
such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person; (e) Capital Lease Obligations of such Person; (f) obligations of such
Person under repurchase agreements, sale/buy-back agreements or like
arrangements; (g) Indebtedness of others Guaranteed by such Person; (h) all
obligations of such Person incurred in connection with the acquisition or
carrying of fixed assets by such Person; and (i) Indebtedness of general
partnerships of which such Person is a general partner.
"Index" means, with respect to any adjustable rate Mortgage Loan, the index
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identified on the Mortgage Loan Schedule and set forth in the related Mortgage
Note for the purpose of calculating the applicable Mortgage Interest Rate.
"Interest Rate Adjustment Date" means the date on which an adjustment to
the Mortgage Interest Rate with respect to each Mortgage Loan becomes effective.
"Interest Rate Protection Agreement" means, with respect to any or all of
the Mortgage Loans, any short sale of a US Treasury Security, or futures
contract, or mortgage related security, or Eurodollar futures contract, or
options related contract, or interest rate swap, cap or collar agreement or
Take-out Commitment, or similar arrangement providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations,
either generally or under specific contingencies, entered into by Seller and an
Affiliate of Buyer or such other party acceptable to Buyer in its sole
discretion, which agreement is acceptable to Buyer in its sole discretion.
"Jumbo Mortgage Loan" means an A quality Mortgage Loan which is not
eligible for sale to an Agency because the principal amount of the loan is in
excess of the amount permitted for all typical programs.
"LIBOR" means for each day, the rate of interest (calculated on a per annum
basis) equal to the overnight British Bankers Association Rate as reported on
the display designated as "BBAM" "Page XX0 0x" on Bloomberg (or such other
display as may replace "BBAM" "Page XX0 0x" on Bloomberg) on such date of
determination, and if such rate shall not be so quoted, the rate per annum at
which Buyer is offered Dollar deposits at or about 11:00 a.m., (New York City
time), on such day, by prime banks in the interbank eurodollar market where the
eurodollar and foreign currency exchange operations in respect of its loans are
then being conducted for delivery on such day for an overnight period, and in an
amount comparable to the amount of the Cash Purchase Price of Transactions to be
outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
"Margin Call" has the meaning specified in Section 6(a) hereof.
"Margin Deadline" has the meaning specified in Section 6(b) hereof.
"Margin Deficit" has the meaning specified in Section 6(a) hereof.
"Market Value" means, with respect to any Purchased Mortgage Loan as of any
date of determination, the whole loan servicing released fair market value of
such Purchased Mortgage Loan on such date as determined by Buyer (or an
Affiliate thereof) in its sole discretion. Without limiting the generality of
the foregoing, Seller acknowledges that the Market Value of a Purchased Mortgage
Loan may be reduced to zero by Buyer (and, to the extent that such reduction
causes a Margin Call pursuant to Section 6(a), such reduction shall be
communicated to Seller) if:
(i) a material breach of a representation, warranty or covenant made by
Seller in this Agreement with respect to such Purchased Mortgage Loan which
adversely affects its collectibility or Market Value has occurred and is
continuing;
(ii) such Purchased Mortgage Loan is a Non-Performing Mortgage Loan;
(iii) such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement (other than to a
Takeout Investor pursuant to a Bailee Letter) for a period in excess of ten
(10) calendar days;
(iv) such Purchased Mortgage Loan has been released from the possession
of the Custodian under the Custodial Agreement to a Take-out Investor
pursuant to a Bailee Letter for a period in excess of 45 calendar days;
(v) such Purchased Mortgage Loan has been held by the Custodian for the
benefit of Buyer (in its capacity as Buyer hereunder or as a secured
lender) for a period of greater than 90 days;
(vi) such Purchased Mortgage Loan is a Wet-Ink Mortgage Loan, for which
the Mortgage File has not been delivered to the Custodian on or prior to
the seventh Business Day after the related Purchase Date;
(vii) when the Mortgage Loan is a Second Lien Mortgage Loan and the
Cash Purchase Price for such Purchased Mortgage Loan is added to other
Purchased Mortgage Loans, the aggregate Cash Purchase Price of all Second
Lien Mortgage Loans that are Purchased Mortgage Loans exceeds $3 million;
(viii) when the Mortgage Loan is a Sub-Prime Mortgage Loan and the Cash
Purchase Price for such Purchased Mortgage Loan is added to other Purchased
Mortgage Loans, the aggregate Cash Purchase Price of all Sub-Prime Mortgage
Loans that are Purchased Mortgage Loans exceeds $9 million; or
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(ix) when the Mortgage Loan is a Wet-Ink Mortgage Loan and the Cash
Purchase Price for such Purchased Mortgage Loan is added to other Purchased
Mortgage Loans, the aggregate Cash Purchase Price of all Wet-Ink Mortgage
Loans that are Purchased Mortgage Loans exceeds $9 million.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, condition
(financial or otherwise) or prospects of Seller or any Affiliate that is a party
to any Program Agreement taken as a whole; (b) a material impairment of the
ability of Seller or any Affiliate that is a party to any Program Agreement to
perform under any Program Agreement and to avoid any Event of Default; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability of any Program Agreement against Seller, or any Affiliate that is
a party to any Program Agreement.
"Maximum Aggregate Cash Purchase Price" means THIRTY MILLION DOLLARS
($30,000,000).
"MERS" means Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
"MERS System" means the system of recording transfers of mortgages
electronically maintained by MERS.
"Monthly Payment" means the scheduled monthly payment of principal and
interest on a Mortgage Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successors thereto.
"Mortgage" means each mortgage, or deed of trust, or similar instrument
creating and evidencing a lien on real property and other property and rights
incidental thereto, and includes when applicable and customary, any assignment
of rents, security agreement and fixture filing.
"Mortgage File" means, with respect to a Mortgage Loan, the documents and
instruments relating to such Mortgage Loan and set forth in Exhibit F to the
Custodial Agreement.
"Mortgage Interest Rate" means the rate of interest borne on a Mortgage
Loan from time to time in accordance with the terms of the related Mortgage
Note.
"Mortgage Interest Rate Cap" means, with respect to an adjustable rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set forth
in the related Mortgage Note.
"Mortgage Loan" means any Sub-Prime Mortgage Loan, Exception Mortgage Loan,
Jumbo Mortgage Loan, Alt A Mortgage Loan, Second Lien Mortgage Loan or
Conforming Mortgage Loan which is a closed-end, fixed or floating-rate, first or
second lien, one-to-four-family residential mortgage or home equity loan
evidenced by a promissory note and secured by a mortgage, which satisfies the
requirements set forth in the Underwriting Guidelines and Section 13(b) hereof;
provided, however, that, except as expressly approved in writing by Buyer,
Mortgage Loans shall not include any "high-LTV" loans (i.e., a mortgage loan
having a loan-to-value ratio in excess of 100% or in excess of such lower
percentage set forth in the Underwriting Guidelines or with respect to Second
Lien Mortgage Loans, a combined loan-to value ratio, in excess of the lower of
(i) the percentage specified in the Underwriting Guidelines or (ii) 100%) or any
High Cost Mortgage Loans and; provided, further, that the origination date with
respect to such Mortgage Loan is no earlier than thirty (30) days prior to the
related Purchase Date.
"Mortgage Loan Schedule" means with respect to any Transaction as of any
date, a mortgage loan schedule in the form of either (a) Exhibit C attached
hereto or (b) a computer tape or other electronic medium generated by Seller and
delivered to Buyer and Custodian, which provides information (including, without
limitation, the information set forth on Exhibit C attached hereto) relating to
the Purchased Mortgage Loans in a format acceptable to Buyer.
"Mortgage Loan Schedule and Exception Report" has the meaning assigned to
such term in the Custodial Agreement
"Mortgage Note" means the promissory note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
"Mortgaged Property" means the real property securing repayment of the debt
evidenced by a Mortgage Note.
"Mortgagor" means the obligor or obligors on a Mortgage Note, including any
person who has assumed or guaranteed the obligations of the obligor thereunder.
"Multiemployer Plan" means a multiemployer plan defined as such in Section
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3(37) of ERISA to which contributions have been or are required to be made by
Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
"Net Income" means, for any period and any Person, the net income of such
Person for such period as determined in accordance with GAAP.
"Net Worth" means, with respect to any Person, an amount equal to, on a
consolidated basis, such Person's stockholder or ownership equity (determined in
accordance with GAAP).
"1934 Act" means the Securities Exchange Act of 1934, as amended from time
to time.
"Non-Performing Mortgage Loan" means (i) any Mortgage Loan for which any
payment of principal or interest is more than twenty-nine (29) days past due,
(ii) any Mortgage Loan with respect to which the related mortgagor is in
bankruptcy or (iii) any Mortgage Loan with respect to which the related
mortgaged property is in foreclosure.
"Notice Date" has the meaning given to it in Section 3(b) hereof.
"Obligations " means (a) all of Seller's indebtedness, obligations to pay
the Repurchase Price on the Repurchase Date, the Price Differential on each
Price Differential Payment Date, and other obligations and liabilities, to
Buyer, its Affiliates or Custodian arising under, or in connection with, the
Program Agreements, whether now existing or hereafter arising; (b) any and all
sums paid by Buyer or on behalf of Buyer in order to preserve any Purchased
Mortgage Loan or its interest therein; (c) in the event of any proceeding for
the collection or enforcement of any of Seller's indebtedness, obligations or
liabilities referred to in clause (a), the reasonable expenses of retaking,
holding, collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Mortgage Loan, or of any exercise by Buyer of its
rights under the Program Agreements, including, without limitation, attorneys'
fees and disbursements and court costs; and (d) all of Seller's indemnity
obligations to Buyer or Custodian or both pursuant to the Program Agreements.
"PBCG" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means an employee benefit or other plan established or maintained by
any Seller or any ERISA Affiliate and covered by Title IV of ERISA, other than a
Multiemployer Plan.
"Post Default Rate" means an annual rate of interest equal to the Pricing
Rate plus 3%.
"Price Differential" means with respect to any Transaction as of any date
of determination, an amount equal to the product of (A) the Pricing Rate for
such Transaction and (B) the Cash Purchase Price for such Transaction,
calculated daily on the basis of a 360-day year for the actual number of days
during the period commencing on (and including) the Purchase Date for such
Transaction and ending on (but excluding) the Repurchase Date.
"Price Differential Payment Date" means, with respect to a Purchased
Mortgage Loan, the 5th day of the month following the related Purchase Date and
each succeeding 5th day of the month thereafter; provided, that, with respect to
such Purchased Mortgage Loan, the final Price Differential Payment Date shall be
the related Repurchase Date; and provided, further, that if any such day is not
a Business Day, the Price Differential Payment Date shall be the next succeeding
Business Day.
"Pricing Rate" means LIBOR plus:
(a) 1.50% with respect to Transactions the subject of which are
Conforming Loans (other than Wet-Ink Mortgage Loans);
(b) 1.50% with respect to Transactions the subject of which are Jumbo
Mortgage Loans (other than Wet-Ink Mortgage Loans);
(c) 1.625% with respect to Transactions the subject of which are Alt A
Mortgage Loans (other than Wet-Ink Mortgage Loans);
(d) 1.75% with respect to Transactions the subject of which are Sub
Prime Mortgage Loans (other than Wet-Ink Mortgage Loans);
(e) 2.00% with respect to Transactions the subject of which are Wet-Ink
Mortgage Loans;
(f) 2.00% with respect to Transactions the subject of which are Second
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Lien Mortgage Loans (other than Wet-Ink Mortgage Loans);
(g) the rate determined in the sole discretion of Buyer with respect to
Transactions the subject of which are Exception Mortgage Loans. The Pricing
Rate shall change in accordance with LIBOR, as provided in Section 5(a).
"Principal" has the meaning given to it in Annex I.
"Program Agreements" means, collectively, the Custodial Agreement, this
Agreement, the Blocked Account Agreement, the Electronic Tracking Agreement, if
entered into, and, with respect to each Exception Mortgage Loan, a Purchase
Confirmation.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Confirmation" means a confirmation of a Transaction, in the form
attached as Exhibit B hereto.
"Purchase Date" means the date on which Purchased Mortgage Loans are to be
transferred by Seller to Buyer.
"Purchased Mortgage Loans " means the collective reference to Mortgage
Loans together with the Repurchase Assets related to such Mortgage Loans
transferred by Seller to Buyer in a Transaction hereunder, listed on the related
Mortgage Loan Schedule attached to the related Transaction Request, which such
Mortgage Loans the Custodian has been instructed to hold pursuant to the
Custodial Agreement.
"Qualified Insurer" means a mortgage guaranty insurance company duly
authorized and licensed where required by law to transact mortgage guaranty
insurance business and approved as an insurer by Xxxxxx Xxx or Xxxxxxx Mac.
"Qualified Originator" means an originator of Mortgage Loans which is
acceptable under the Underwriting Guidelines.
"Records" means all instruments, agreements and other books, records, and
reports and data generated by other media for the storage of information
maintained by Seller or any other person or entity with respect to a Purchased
Mortgage Loan. Records shall include the mortgage notes, any Mortgages, the
Mortgage Files, the credit files related to the Purchased Mortgage Loan and any
other instruments necessary to document or service a Mortgage Loan.
"REO Property" means real property acquired by Seller, including a
Mortgaged Property acquired through foreclosure of a Mortgage Loan or by deed in
lieu of such foreclosure.
"Reporting Date" means the 5th day of each month or, if such day is not a
Business Day, the next succeeding Business Day.
"Repurchase Assets" has the meaning assigned thereto in Section 8 hereof.
"Repurchase Date" means the earlier of (i) the Termination Date, (ii) the
date set forth in the applicable Purchase Confirmation, (iii) the date
determined by application of Section 16 hereof or (iv) the date identified to
Buyer by Seller as the date that the related Mortgage Loan is to be sold
pursuant to a Take-out Commitment.
"Repurchase Price" means the price at which Purchased Mortgage Loans are to
be transferred from Buyer to Seller upon termination of a Transaction, which
will be determined in each case (including Transactions terminable upon demand)
as the sum of the Cash Purchase Price and the accrued but unpaid Price
Differential as of the date of such determination.
"Request for Certification" means a notice sent to the Custodian reflecting
the sale of one or more Purchased Mortgage Loans to Buyer hereunder.
"Requirement of Law" means, with respect to any Person, any law, treaty,
rule or regulation or determination of an arbitrator, a court or other
governmental authority, applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer" means shall mean, as to any Person, the chief
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executive officer or, with respect to financial matters, the chief financial
officer of such Person.
"S&P" means Standard & Poor's Ratings Services, or any successor thereto.
"SEC" means the Securities and Exchange Commission, or any successor
thereto.
"Second Lien Mortgage Loan" means a second lien Mortgage Loan where the
second lien on the related Mortgaged Property is contemplated and incurred
simultaneously with the first lien on the related Mortgaged Property.
"Seller" means Cresleigh Financial Services, LLC or its permitted
successors and assigns.
"Servicer" means Seller or Calmco, or any other servicer approved by Buyer
in its sole discretion, which may be Seller.
"Settlement Agent" means, with respect to any Transaction the subject of
which is a Wet-Ink Mortgage Loan, the entity approved by Buyer, in its sole
good-faith discretion, which may be a title company, escrow company or attorney
in accordance with local law and practice in the jurisdiction where the related
Wet-Ink Mortgage Loan is being originated. A Settlement Agent is deemed approved
unless Buyer notifies Seller otherwise at any time electronically or in writing.
"SIPA" means the Securities Investor Protection Act of 1970, as amended
from time to time.
"Subordinated Debt" means, Indebtedness of Seller which is (i) unsecured,
(ii) no part of the principal of such Indebtedness is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the date which is one year following the
Termination Date and (iii) the payment of the principal of and interest on such
Indebtedness and other obligations of Seller in respect of such Indebtedness are
subordinated to the prior payment in full of the principal of and interest
(including post-petition obligations) on the Transactions and all other
obligations and liabilities of Seller to Buyer hereunder on terms and conditions
approved in writing by Buyer and all other terms and conditions of which are
satisfactory in form and substance to Buyer.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the time securities or other ownership interests of any other
class or classes of such corporation, partnership or other entity shall have or
might have voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.
"Sub-Prime Mortgage Loan" means a Mortgage Loan originated in accordance
with Seller's Underwriting Guidelines for sub-prime mortgage loans, as approved
by Buyer in its sole discretion.
"Take-out Commitment" means a commitment of Seller to either (a) sell one
or more Mortgage Loans to a Take-out Investor or (b) (i) swap one or more
Mortgage Loans with a Take-out Investor that is an Agency for an Agency
Security, and (ii) sell the related Agency Security to a Take-out Investor, and
in each case, the corresponding Take-out Investor's commitment back to Seller to
effectuate any of the foregoing, as applicable. With respect to any Take-out
Commitment with an Agency, the applicable agency documents list Buyer as sole
subscriber.
"Take-out Investor" means (i) an Agency or (ii) other institution which has
made a Take-out Commitment and has been approved by Buyer. Buyer may revoke its
approval of any previously approved Take-Out Investor by delivering written
notice to Seller of any such revocation, which shall be effective on the 30th
day following the date notice is given by the Buyer.
"Termination Date" means the earlier of (a) February 28, 2003, and (b) the
date of the occurrence of an Event of Default.
"Test Period" means any period of three (3) consecutive calendar months.
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from Seller to Buyer, in the form
attached as Exhibit A hereto, to enter into a Transaction.
"Trust Receipt and Certification" means, with respect to any Transaction as
of any date, a receipt and certification in the form attached as an exhibit to
the Custodial Agreement.
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"Underwriting Guidelines" means the standards, procedures and guidelines of
Seller for underwriting and acquiring Mortgage Loans, which are set forth in the
written policies and procedures of Seller, copies of which are attached hereto
as Exhibit G and which may be amended from time to time (provided, that the
Buyer shall be deemed to have approved revised or amended Underwriting
Guidelines if the Buyer has failed to object to such revised or amended
Underwriting Guidelines within ten (10) Business Days of Buyer's receipt of such
revised or amended Underwriting Guidelines), and such other guidelines as are
identified and approved in writing by Buyer.
"Uniform Commercial Code" means the Uniform Commercial Code as in effect on
the date hereof in the State of New York or the Uniform Commercial Code as in
effect in the applicable jurisdiction.
"VA" means the U.S. Department of Veterans Affairs, an agency of the United
States of America, or any successor thereto including the Secretary of Veterans
Affairs.
"VA Approved Lender" means a lender which is approved by the VA to act as a
lender in connection with the origination of VA Loans.
"VA Loan" means a Mortgage Loan which is subject of a VA Loan Guaranty
Agreement as evidenced by a VA Loan Guaranty Agreement, or a Mortgage Loan which
is a vender loan sold by the VA.
"VA Loan Guaranty Agreement" means the obligation of the United States to
pay a specific percentage of a Mortgage Loan (subject to a maximum amount) upon
default of the Mortgagor pursuant to the Servicemen's Readjustment Act, as
amended.
"Violation Deadline" has the meaning assigned thereto in Section 4(c)
hereof.
"Wet-Ink Documents" means, with respect to any Wet-Ink Mortgage Loan, the
documents set forth in Exhibit L hereto.
"Wet-Ink Mortgage Loan" means a Mortgage Loan which Seller is selling to
Buyer simultaneously with the origination thereof. A Wet-Ink Mortgage Loan shall
cease to be a Wet-Ink Mortgage Loan when the related Mortgage File is received
by the Custodian.
3. Program; Initiation of Transactions
a. From time to time, in the sole discretion of Buyer, Buyer will purchase
from Seller certain Mortgage Loans that have been either originated by Seller or
purchased by Seller from other originators. This Agreement is not a commitment
by Buyer to enter into Transactions with Seller but rather sets forth the
procedures to be used in connection with periodic requests for Buyer to enter
into Transactions with Seller. Seller hereby acknowledges that Buyer is under no
obligation to agree to enter into, or to enter into, any Transaction pursuant to
this Agreement. All Purchased Mortgage Loans shall exceed or meet the
Underwriting Guidelines, and shall be serviced by Servicer. The aggregate Cash
Purchase Price of Purchased Mortgage Loans subject to outstanding Transactions
shall not exceed the Maximum Aggregate Cash Purchase Price. With respect to
Transactions involving Mortgage Loans that are not Wet-Ink Mortgage Loans, Buyer
shall only be required to enter into Transactions in which the Cash Purchase
Price with respect thereto is at least $500,000.
b. With respect to each Transaction involving Mortgage Loans which are not
Wet-Ink Mortgage Loans, Seller shall give Buyer and Custodian at least 1
Business Day's prior notice of any proposed Purchase Date (the date on which
such notice is given, the "Notice Date"); provided, that if Seller is delivering
25 or fewer Mortgage Loans, which are not Wet-Ink Mortgage Loans, on a Purchase
Date, the notice shall be delivered on or before 10:30 a.m. (New York City time)
on the Purchase Date. With respect to Wet-Ink Mortgage Loans, Seller shall
deliver notice of any proposed purchase on or before 3:00 p.m. (New York City
time) on the Purchase Date. On the Notice Date, Seller shall (i) request that
Buyer enter into a Transaction by furnishing to Buyer a Transaction Request,
(ii) deliver to Buyer and Custodian a Mortgage Loan Schedule and (iii) deliver
to Custodian a Request for Certification and each Mortgage File or Wet-Ink
Documents for each Wet-Ink Mortgage Loan in accordance with Section 10(b)(3) and
otherwise comply with the procedures set forth in Exhibit L hereto. In the event
the Mortgage Loan Schedule provided by Seller contains erroneous computer data,
is not formatted properly or the computer fields are otherwise improperly
aligned, Buyer shall provide written or electronic notice to Seller describing
such error and Seller may either (a) give Buyer written or electronic authority
to correct the computer data, reformat such Mortgage Loan or properly align the
computer fields or (b) correct the computer data, reformat or properly align the
computer fields itself and resubmit the Mortgage Loan Schedule as required
herein. In the event that Seller gives Buyer authority to correct the computer
data, reformat or properly align the computer fields, Seller shall pay any fees
incurred by Buyer in accordance with Exhibit P hereto and shall hold Buyer
harmless for such correction, reformatting or realigning, as applicable, except
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as otherwise expressly provided herein.
c. With respect to each Exception Mortgage Loan, upon receipt of the
Transaction Request, Buyer shall, consistent with this Agreement, specify the
terms for such proposed Transaction, including the Cash Purchase Price, the
Pricing Rate, the Market Value and the Repurchase Date in respect of such
Transaction. The terms thereof shall be set forth in the Purchase Confirmation
to be delivered to Seller on or prior to the Purchase Date.
d. With respect to each Exception Mortgage Loan, the Purchase Confirmation,
together with this Agreement, shall constitute conclusive evidence of the terms
agreed between Buyer and Seller with respect to the Transaction to which the
Purchase Confirmation relates, and Seller's acceptance of the related proceeds
shall constitute Seller's agreement to the terms of such Purchase Confirmation.
It is the intention of the parties that, with respect to each Exception Mortgage
Loan, each Purchase Confirmation shall not be separate from this Agreement but
shall be made a part of this Agreement. In the event of any conflict between
this Agreement and, with respect to each Exception Mortgage Loan, a Purchase
Confirmation, the terms of the Purchase Confirmation shall control with respect
to the related Transaction.
e. Upon the satisfaction of the applicable conditions precedent set forth
in Section 10 hereof, all of Seller's interest in the Repurchase Assets shall
pass to Buyer on the Purchase Date, against the transfer of the Cash Purchase
Price to Seller. Notwithstanding the foregoing, for each Mortgage Loan not
subject to a Takeout Commitment, Buyer shall be entitled to subtract from the
actual proceeds remitted to Seller, and is hereby instructed and authorized to
deposit into the Due Diligence Holdback Account the excess, if any, of (i) the
Cash Purchase Price for such Mortgage Loan over (ii) the Purchase Price
Percentage for such Mortgage Loan multiplied by the outstanding principal
balance of such Mortgage Loan (such excess, the "Due Diligence Holdback
Amount"). The deposit of the Due Diligence Holdback Amount in the Due Diligence
Holdback Account shall in no way reduce the Cash Purchase Price deemed to be
paid by Buyer to Seller hereunder. Upon delivery to Buyer by Seller of a Takeout
Commitment covering any Purchased Mortgage Loan for which a Due Diligence
Holdback Amount is being held, and upon request by Seller that such Due
Diligence Holdback Amount be released to the Seller, and upon confirmation by
the Buyer that no Margin Deficit would result from a release of the Due
Diligence Holdback Amount to Seller, Buyer shall release the applicable Due
Diligence Holdback Amount to Seller. Upon transfer of each Mortgage Loan to
Buyer as set forth in this Section and until termination of any Transactions
related to such Mortgage Loan, as set forth in Sections 4 or 16 of this
Agreement, ownership of such Mortgage Loan, including each document in the
related Mortgage File and Records, is vested in Buyer; provided that, prior to
the recordation by the Custodian as provided for in the Custodial Agreement
record title in the name of Seller to each Mortgage shall be retained by Seller
in trust, for the benefit of Buyer, for the sole purpose of facilitating the
servicing and the supervision of the servicing of the Mortgage Loans.
f. With respect to each Wet-Ink Mortgage Loan, by no later than 12:00 noon,
(New York City time) on the seventh Business Day following the applicable
Purchase Date, Seller shall cause the related Settlement Agent to deliver to the
Custodian the remaining documents in the Mortgage File.
4. Repurchase
a. Seller shall, at the Buyer's option, upon request, repurchase the
related Purchased Mortgage Loans from Buyer on each related Repurchase Date.
Such obligation to repurchase exists without regard to any prior or intervening
liquidation or foreclosure with respect to any Purchased Mortgage Loan (but
liquidation or foreclosure proceeds received by Buyer shall be applied to reduce
the Repurchase Price for such Purchased Mortgage Loan on each Price Differential
Payment Date except as otherwise provided herein). Seller is obligated to
repurchase and Seller or its designee shall take physical possession of the
Purchased Mortgage Loans from Buyer or its designee (including the Custodian) at
Seller's expense on the related Repurchase Date.
b. Provided that no Default shall have occurred and is continuing, and
Buyer has received the related Repurchase Price upon repurchase of the Purchased
Mortgage Loans, Buyer will release its ownership interest hereunder in the
Purchased Mortgage Loans (including, the Repurchase Assets related thereto).
With respect to payments in full by the related Mortgagor of a Purchased
Mortgage Loan, Seller will (i) provide Buyer with a copy of a report from the
related Servicer indicating that such Purchased Mortgage Loan has been paid in
full, (ii) remit to Buyer, within two Business Days, the Repurchase Price with
respect to such Purchased Mortgage Loans and (iii) provide Buyer a notice
specifying each Purchased Mortgage Loan that has been prepaid in full. Buyer
agrees to release its ownership interest in Purchased Mortgage Loans which have
been prepaid in full after receipt of evidence of compliance with clauses (i)
through (iii) of the immediately preceding sentence.
c. In the event that at any time any Purchased Mortgage Loan violates the
applicable sublimit set forth in the definition of Market Value, Buyer may, in
its sole discretion, redesignate such Mortgage Loan as an Exception Mortgage
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Loan. If Buyer does not redesignate such Mortgage Loan as an Exception Mortgage
Loan, and if Seller fails to notify Buyer within five (5) Business Days
following notice or knowledge of such violation that Seller does not want to
receive a bid for such Mortgage Loan as described below, Buyer or an Affiliate
of Buyer may offer to terminate Seller's right and obligation to repurchase such
Mortgage Loan by paying Seller a price to be set by Buyer in its sole discretion
(a "Bid"). Seller, within five (5) Business Days of receipt of Buyer's bid (the
"Violation Deadline") may, in its sole discretion, either (i) accept Buyer's
bid, terminating Seller's right to repurchase such Mortgage Loan under this
Agreement or (ii) immediately repurchase the Mortgage Loan at the Repurchase
Price in accordance with this Section 4. Seller shall pay Buyer a bid fee equal
to $250 (the "Bid Fee") with respect to each Mortgage Loan on which Buyer or its
Affiliate makes a Bid, regardless of whether the Bid is accepted and such Bid
Fee shall be due and payable to Buyer on or before the Violation Deadline. Any
amount paid by Buyer or its Affiliate to terminate Seller's right to repurchase
a Purchased Mortgage Loan if a Bid is accepted pursuant to this Section shall be
applied by Buyer toward the outstanding Repurchase Price for the applicable
Transaction.
5. Price Differential.
a. On each Business Day that a Transaction is outstanding, the Pricing Rate
shall be reset and, unless otherwise agreed, the accrued and unpaid Price
Differential shall be settled in cash on each related Price Differential Payment
Date. Two Business Days prior to the Price Differential Payment Date, Buyer
shall give Seller written or electronic notice of the amount of the Price
Differential due on such Price Differential Payment Date. On the Price
Differential Payment Date, Seller shall pay to Buyer the Price Differential for
such Price Differential Payment Date (along with any other amounts to be paid
pursuant to Sections 7, 34 and 35 hereof), by wire transfer in immediately
available funds.
b. If Seller fails to pay all or part of the Price Differential by 3:00
p.m. (New York City time) on the related Price Differential Payment Date, with
respect to any Purchased Mortgage Loan, Seller shall be obligated to pay to
Buyer (in addition to, and together with, the amount of such Price Differential)
interest on the unpaid Repurchase Price at a rate per annum equal to the Post
Default Rate until the Price Differential is received in full by Buyer.
6. Margin Maintenance
a. If at any time the Market Value of any Purchased Mortgage Loan subject
to a Transaction is less than Buyer's Margin Amount for such Transaction (a
"Margin Deficit"), then Buyer may by notice to any Seller require Seller to
transfer to Buyer cash in an amount at least equal to the Margin Deficit (such
requirement, a "Margin Call").
b. Notice delivered pursuant to Section 6(a) may be given by any written
means. Any notice given before 10:00 a.m. (New York City time) on a Business Day
shall be met, and the related Margin Call satisfied, no later than 5:00 p.m.
(New York City time) on such Business Day; notice given after 10:00 a.m. (New
York City time) on a Business Day shall be met, and the related Margin Call
satisfied, no later than 5:00 p.m. (New York City time) on the following
Business Day (the foregoing time requirements for satisfaction of a Margin Call
are referred to as the "Margin Deadlines"). The failure of Buyer, on any one or
more occasions, to exercise its rights hereunder, shall not change or alter the
terms and conditions to which this Agreement is subject or limit the right of
Buyer to do so at a later date. Seller and Buyer each agree that a failure or
delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer's
rights under this Agreement or otherwise existing by law or in any way create
additional rights for Seller. Seller will be given a credit on the Repurchase
Price for a Purchased Mortgage Loan equal to the Margin Call paid for such
Purchased Mortgage Loan.
7. Income Payments
a. If Income is paid in respect of any Purchased Mortgage Loan during the
term of a Transaction, such Income shall be the property of Buyer.
Notwithstanding the foregoing, and provided no Event of Default has occurred and
is continuing, Buyer agrees that if a thirdparty Servicer is in place for any
Purchased Mortgage Loans, such Servicer shall deposit such Income to the
Collection Account. Seller shall deposit all Income received in its capacity as
Servicer of any Purchased Mortgage Loans to the Collection Account in accordance
with Section 12(c) hereof.
b. Provided no Event of Default has occurred and is continuing, on each
Price Differential Payment Date, Seller shall remit to Buyer an amount equal to
the Price Differential out of the interest portion of the Income paid in respect
to the Purchased Mortgage Loans for the preceding month in accordance with
Section 5 of this Agreement. Upon termination of any Transaction, provided no
Event of Default has occurred and is continuing, to the extent that there is any
excess Income after repayment of all amounts to be transferred to Buyer by
Seller, Seller, in its sole option, may request Buyer to apply the excess income
to reduce the Repurchase Price due upon termination of any other outstanding
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Transactions, or request Buyer to transfer such excess to Seller.
c. In the event that an Event of Default has occurred and is continuing,
notwithstanding any provision set forth herein, Seller shall remit to Buyer all
Income received with respect to each Purchased Mortgage Loan on the related
Price Differential Payment Date or on such other date or dates as Buyer notifies
Seller in writing. Seller will be given credit on the Repurchase Price for the
Purchased Mortgage Loan in the amount of any such additional Income received.
d. Notwithstanding any provision to the contrary in this Section 7, within
two (2) Business Days of receipt by Seller of any prepayment of principal in
full, with respect to a Purchased Mortgage Loan, Seller shall remit such amount
to Buyer and Buyer shall immediately apply any such amount received by Buyer to
reduce the amount of the Repurchase Price due upon termination of the related
Transaction.
e. Notwithstanding anything to the contrary set forth herein, upon notice
by Buyer to Seller, Seller shall remit to Buyer all collections received by
Servicer or Seller on the Purchased Mortgage Loans in accordance with Buyer's
directions no later than the day on which aggregate collections of principal and
interest (excluding principal prepayments) on the Purchased Mortgaged Loans
reaches an amount to be indicated by Buyer in its sole discretion. In such
event, Buyer will apply any such amounts received from Seller to the reduction
of the Repurchase Price or will remit any such amounts not applied to Seller
together with any interest earned thereon on each Price Differential Payment
Date. Notwithstanding the foregoing, the Buyer shall have no obligation to
maximize any interest earned on any amounts remitted by Seller to Buyer
hereunder.
8. Security Interest
Although the parties intend that all Transactions hereunder be sales and
purchases and not loans, in the event any such Transactions are deemed to be
loans, Seller hereby pledges to Buyer as security for the performance by Seller
of its Obligations and hereby grants, assigns and pledges to Buyer a fully
perfected first priority security interest in the Purchased Mortgage Loans, the
Records, and all related servicing rights, the Program Agreements (to the extent
such Program Agreements and Seller's right thereunder relate to the Purchased
Mortgage Loans), any related Take-out Commitments, Property, all insurance
policies and insurance proceeds relating to any Mortgage Loan or the related
Mortgaged Property, including, but not limited to, any payments or proceeds
under any related primary insurance, hazard insurance and FHA Mortgage Insurance
Contracts and VA Loan Guaranty Agreements (if any), Income, the Collection
Account, the Due Diligence Holdback Account, Interest Rate Protection Agreements
relating to any Purchased Mortgage Loan, accounts (including any interest of
Seller in escrow accounts) and any other contract rights, accounts, payments,
rights to payment (including payments of interest or finance charges) general
intangibles and other assets relating to the Purchased Mortgage Loans
(including, without limitation, any other accounts) or any interest in the
Purchased Mortgage Loans, the servicing of the Purchased Mortgage Loans, and any
proceeds (including the related securitization proceeds) and distributions with
respect to any of the foregoing and any other property, rights, title or
interests as are specified on a Transaction Request and/or Trust Receipt and
Certification, in all instances, whether now owned or hereafter acquired, now
existing or hereafter created (collectively, the "Repurchase Assets"). Seller
agrees to execute, deliver and/or file such documents and perform such acts as
may be reasonably necessary to fully perfect Buyer's security interest created
hereby. Furthermore, the Seller hereby authorizes the Buyer to file financing
statements relating to the Repurchase Assets without the signature of the
Seller, as the Buyer, at its option, may deem appropriate. The Seller shall pay
the filing costs for any financing statement or statements prepared pursuant to
this Section.
9. Payment and Transfer
Unless otherwise mutually agreed in writing, all transfers of funds to be
made by Seller hereunder shall be made in Dollars, in immediately available
funds, without deduction, set-off or counterclaim, to Buyer at the following
account maintained by Buyer: Account No. 00- 000-000 , for the account of CSFB
Buyer/Cresleigh Seller - Inbound Account, Deutsche Bank, ABA No. 021 001 033 or
such other account as Buyer shall specify to Seller in writing. Seller
acknowledges that it has no rights of withdrawal from the foregoing account. All
Purchased Mortgage Loans transferred by one party hereto to the other party
shall be in the case of a purchase by Buyer in suitable form for transfer or
shall be accompanied by duly executed instruments of transfer or assignment in
blank and such other documentation as Buyer may reasonably request. All
Purchased Mortgage Loans shall be evidenced by a Trust Receipt and
Certification. Any Repurchase Price received by Buyer after 2:00 p.m. (New York
City time) shall be deemed received on the next succeeding Business Day.
10. Conditions Precedent
a. Initial Transaction. As conditions precedent to the initial Transaction,
Buyer shall have received on or before the day of such initial Transaction the
Page 15
following, in form and substance satisfactory to Buyer and duly executed by
Seller and each other party thereto:
(1) Program Agreements. The Program Agreements (including a Custodial
Agreement in a form acceptable to Buyer) duly executed and delivered by the
parties thereto and being in full force and effect, free of any
modification, breach or waiver.
(2) Security Interest. Evidence that all other actions necessary or, in
the opinion of Buyer, desirable to perfect and protect Buyer's interest in
the Purchased Mortgage Loans and other Repurchase Assets have been taken,
including, without limitation, filed Uniform Commercial Code financing
statements on Form UCC-1.
(3) Organizational Documents. A certified copy of Seller's
organizational documents, operating agreement, if any, and authorizing
resolutions approving the Program Agreements and transactions thereunder
(either specifically or by general resolution) and all documents evidencing
other necessary corporate action or governmental approvals as may be
required in connection with the Program Agreements.
(4) Good Standing Certificate. A certified copy of a good standing
certificate, or certificate of existence as applicable, of Seller, dated as
of no earlier than the date 10 Business Days prior to the Purchase Date
with respect to the initial Transaction hereunder.
(5) Incumbency Certificate. An incumbency certificate of the corporate
secretary of Seller, certifying the names, true signatures and titles of
the representatives duly authorized to request transactions hereunder and
to execute the Program Agreements.
(6) Opinion of Counsel. An opinion of Seller's counsel, in form and
substance substantially as set forth in Exhibit F attached hereto.
(7) Underwriting Guidelines. A true and correct copy of the
Underwriting Guidelines certified by an officer of Seller.
(8) Fees. Payment of any fees due to Buyer hereunder.
(9) Due Diligence Holdback Account. Evidence of the establishment of a
Due Diligence Holdback Account and the execution and delivery of a Blocked
Account Agreement with respect to the Due Diligence Holdback Account,
accompanied by a legal opinion in form and substance acceptable to the
Buyer with respect to perfection of the Buyer's security interest in the
Due Diligence Holdback Account.
b. All Transactions. The obligation of Buyer to enter into each Transaction
pursuant to this Agreement is subject to the following conditions precedent:
(1) Due Diligence Review. Without limiting the generality of Section 36
hereof, Buyer shall have completed, to its satisfaction, its due diligence
review of the related Mortgage Loans and Seller.
(2) Required Documents.
(a) With respect to each Purchased Mortgage Loan which is not a
Wet-Ink Mortgage Loan, the Mortgage File has been delivered to the
Custodian (i) with respect to any purchase of 25 or fewer Mortgage
Loans on a single Purchase Date, on or prior to 3:00 p.m. (New York
City time) on the Purchase Date, and (ii) with respect to any purchase
of 26 or more Mortgage Loans on a single Purchase Date, at least 24
hours prior to the Purchase Date;
(b) With respect to each Wet-Ink Mortgage Loan, the Wet-Ink
Documents have been delivered to Buyer or Custodian, as the case may
be, by 3:00 p.m. (New York City time) on the Purchase Date.
(3) Transaction Documents. Buyer or its designee shall have received on
or before the day of such Transaction (unless otherwise specified in this
Agreement) the following, in form and substance satisfactory to Buyer and
(if applicable) duly executed:
(a) A Transaction Request delivered pursuant to Section 3(c)
hereof and a Purchase Confirmation.
(b) The Request for Certification and the related Mortgage Loan
Schedule and Exception Report, and the Trust Receipt.
(c) Such certificates, opinions of counsel or other documents as
Buyer may reasonably request.
(4) No Default. No Default or Event of Default shall have occurred and
be continuing;
Page 16
(5) Requirements of Law. Buyer shall not have determined that the
introduction of or a change in any Requirement of Law or in the
interpretation or administration of any Requirement of Law applicable to
Buyer has made it unlawful, and no Governmental Authority shall have
asserted that it is unlawful, for Buyer to enter into Transactions with a
Pricing Rate based on LIBOR.
(6) Representations and Warranties. Both immediately prior to the
related Transaction and also after giving effect thereto and to the
intended use thereof, the representations and warranties made by Seller in
each Program Agreement shall be true, correct and complete on and as of
such Purchase Date in all material respects with the same force and effect
as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of
such specific date).
(7) Electronic Tracking Agreement. To the extent Seller is selling
Mortgage Loans which are registered on the MERS(R) System, an Electronic
Tracking Agreement entered into, duly executed and delivered by the parties
thereto and being in full force and effect, free of any modification,
breach or waiver.
(8) Material Adverse Change. None of the following shall have occurred
and/or be continuing (the occurrence and/or continuance of which events
shall be indicated by delivery of a written notice by Buyer to Seller that
such event has occurred and/or is continuing):
(a) Credit Suisse First Boston, New York Branch's corporate bond
rating as calculated by S&P or Xxxxx'x has been lowered or downgraded
to a rating below investment grade by S&P or Xxxxx'x;
(b) an event or events shall have occurred in the good faith
determination of Buyer resulting in the effective absence of a "repo
market" or comparable "lending market" for financing debt obligations
secured by mortgage loans or securities or an event or events shall
have occurred resulting in Buyer not being able to finance Purchased
Assets through the "repo market" or "lending market" with traditional
counterparties at rates which would have been reasonable prior to the
occurrence of such event or events; or
(c) an event or events shall have occurred resulting in the
effective absence of a "securities market" for securities backed by
mortgage loans or an event or events shall have occurred resulting in
Buyer not being able to sell securities backed by mortgage loans at
prices which would have been reasonable prior to such event or events;
or
(d) there shall have occurred a material adverse change in the
financial condition of Buyer which affects (or can reasonably be
expected to affect) materially and adversely the ability of Buyer to
fund its obligations under this Agreement.
11. Program; Costs
a. Seller shall reimburse Buyer for any of Buyer's reasonable out-of-pocket
costs including due diligence review costs and reasonable attorney's fees,
incurred by Buyer in determining the acceptability to Buyer of any Mortgage
Loans. Seller shall also pay, or reimburse Buyer if Buyer shall pay, any
termination fee, which may be due any servicer in the event of an Event of
Default. Seller shall pay the reasonable fees and expenses of Buyer's counsel in
connection with the Program Agreements. Reasonable legal fees for any subsequent
amendments to this Agreement or related documents shall be borne by Seller.
Seller shall pay ongoing custodial and bank fees and expenses as set forth on
Exhibit N hereto, and any other ongoing fees and expenses under any other
Program Document.
b. If Buyer determines that, due to the introduction of, any change in, or
the compliance by Buyer with (i) any eurocurrency reserve requirement or (ii)
the interpretation of any law, regulation or any guideline or request from any
central bank or other Governmental Authority (whether or not having the force of
law), there shall be an increase in the cost to Buyer in engaging in the present
or any future Transactions, then Seller agrees to pay to Buyer, from time to
time, upon demand by Buyer (with a copy to Custodian) the actual cost of
additional amounts as specified by Buyer to compensate Buyer for such increased
costs.
c. If Buyer becomes entitled to claim any additional amounts pursuant to
this Section, it shall promptly notify Seller of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to this Section submitted by Buyer to Seller shall be conclusive in the
absence of manifest error, provided, however, that the Buyer shall use good
faith efforts to (i) calculate such amounts in a manner which is consistent with
the manner in which it makes calculations for comparable claims with respect to
similarly situated sellers and (ii) not allocate to the Seller a proportionately
Page 17
greater amount of such additional compensation than it allocates to each of its
other similarly situated sellers.
d. With respect to any Transaction, Buyer may conclusively rely upon, and
shall incur no liability to Seller in acting upon, any request or other
communication that Buyer reasonably believes to have been given or made by a
person authorized to enter into a Transaction on Seller's behalf, whether or not
such person is listed on the certificate delivered pursuant to Section 10(a)(5)
hereof. In each such case, Buyer's record of the terms of the Purchase
Confirmation, request or other communication will be deemed true and correct
absent manifest error.
e. Notwithstanding the assignment of the Program Agreements with respect to
each Purchased Mortgage Loan to Buyer, Seller agrees and covenants with Buyer to
enforce diligently Seller's rights and remedies set forth in the Program
Agreements.
f. Any payments made by Seller to Buyer shall be free and clear of, and
without deduction or withholding for, any taxes; provided, however, that if such
payer shall be required by law to deduct or withhold any taxes from any sums
payable to Buyer, then such payer shall (A) make such deductions or withholdings
and pay such amounts to the relevant authority in accordance with applicable
law, (B) pay to Buyer the sum that would have been payable had such deduction or
withholding not been made, and (C) at the time Price Differential is paid, pay
to Buyer all additional amounts as specified by Buyer to preserve the after-tax
yield Buyer would have received if such tax had not been imposed.
12. Servicing
a. Seller, on Buyer's behalf, shall contract with Servicer to, or if Seller
is the Servicer, Seller shall, service the Mortgage Loans consistent with the
degree of skill and care that Seller customarily requires with respect to
similar Mortgage Loans owned or managed by it and in accordance with Accepted
Servicing Practices. The Servicer shall (i) comply with all applicable Federal,
State and local laws and regulations, (ii) maintain all state and federal
licenses necessary for it to perform its servicing responsibilities hereunder
and (iii) not impair the rights of Buyer in any Mortgage Loans or any payment
thereunder. Buyer may terminate the servicing of any Mortgage Loan with the
then-existing servicer in accordance with Section 12(e) hereof.
b. Seller shall cause the Servicer to hold or cause to be held all escrow
funds collected by Servicer with respect to any Purchased Mortgage Loans in
trust accounts and shall apply the same for the purposes for which such funds
were collected.
c. Seller shall cause the Servicer to deposit all collections received by
Servicer on the Purchased Mortgage Loans in the Collection Account no later than
the 5th Business Day following receipt; provided, however, that any amounts
required to be remitted to Buyer shall be deposited in the Collection Account on
or prior to the day on which such remittance is to occur.
d. Upon Buyer's request, Seller shall provide promptly to Buyer (i) a
Servicer Notice addressed to and agreed to by the Servicer of the related
Purchased Mortgage Loans, advising such Servicer of such matters as Buyer may
reasonably request, including, without limitation, recognition by the Servicer
of Buyer's interest in such Purchased Mortgage Loans and the Servicer's
agreement that upon receipt of notice of an Event of Default from Buyer, it will
follow the instructions of Buyer with respect to the Purchased Mortgage Loans
and any related Income with respect thereto.
e. Upon the occurrence of an Event of Default hereunder or a material
default under the Servicing Agreement, Buyer shall have the right to immediately
terminate the Servicer's right to service the Purchased Mortgage Loans under the
Servicing Agreement without payment of any penalty or termination fee. Seller
and the Servicer shall cooperate in transferring the servicing of the Purchased
Mortgage Loans to a successor servicer appointed by Buyer in its sole
discretion.
f. If Seller should discover that, for any reason whatsoever, Seller or any
entity responsible to Seller for managing or servicing any such Purchased
Mortgage Loan has failed to perform fully Seller's obligations under the Program
Agreements or any of the obligations of such entities with respect to the
Purchased Mortgage Loans, Seller shall promptly notify Buyer.
13. Representations and Warranties
a. Seller represents and warrants to Buyer as of the date hereof and as of
each Purchase Date for any Transaction that:
(1) Seller Existence. Seller has been duly organized and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware.
(2) Licenses. Seller is duly licensed or is otherwise qualified in
Page 18
each jurisdiction in which it transacts business for the business which it
conducts and is not in default of any applicable federal, state or local
laws, rules and regulations unless, in either instance, the failure to take
such action is not reasonably likely (either individually or in the
aggregate) to cause a Material Adverse Effect (hereinafter defined) and is
not in default of such state's applicable laws, rules and regulations
except where any such failure to be licensed or qualified would not (A)
have a Material Adverse Effect or (B) have a material adverse effect on the
collectibility of any Purchased Mortgage Loan. Seller has the requisite
power and authority and legal right to originate and purchase Mortgage
Loans (as applicable) and to own, sell and xxxxx x xxxx on all of its
right, title and interest in and to the Mortgage Loans, and to execute and
deliver, engage in the transactions contemplated by, and perform and
observe the terms and conditions of, this Agreement, each Program Agreement
and any Transaction Request or, if applicable, Purchase Confirmation.
(3) Power. Seller has all requisite corporate or other power, and has
all governmental licenses, authorizations, consents and approvals necessary
to own its assets and carry on its business as now being or as proposed to
be conducted, except where the lack of such licenses, authorizations,
consents and approvals would not be reasonably likely to have a Material
Adverse Effect.
(4) Due Authorization. Seller has all necessary corporate or other
power, authority and legal right to execute, deliver and perform its
obligations under each of the Program Agreements, as applicable. This
Agreement, any Transaction Request, Purchase Confirmation and the Program
Agreements have been (or, in the case of Program Agreements and any
Transaction Request, Purchase Confirmation not yet executed, will be) duly
authorized, executed and delivered by Seller, all requisite corporate
action having been taken, and each is valid, binding and enforceable
against Seller in accordance with its terms except as such enforcement may
be affected by bankruptcy, by other insolvency laws, or by general
principles of equity.
(5) Financial Statements. The Seller has heretofore furnished to Buyer
a copy of (a) its consolidated balance sheet and the consolidated balance
sheets of its consolidated Subsidiaries for the fiscal year of the Seller
ended December 31, 2000 and the related consolidated statements of income
and retained earnings and of cash flows for the Seller and its consolidated
Subsidiaries for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, with the opinion
thereon of Xxxxx, Xxxxxx and Co., LLP and (b) its consolidated balance
sheet and the consolidated balance sheets of its consolidated Subsidiaries
for the quarterly fiscal periods of the Seller ended March 31, 2001 and
June 30, 2001 and the related consolidated statements of income and
retained earnings and of cash flows for the Seller and its consolidated
Subsidiaries for such quarterly fiscal periods, setting forth in each case
in comparative form the figures for the previous year. All such financial
statements are complete and correct and fairly present, in all material
respects, the consolidated financial condition of the Seller and its
Subsidiaries and the consolidated results of their operations as at such
dates and for such fiscal periods, all in accordance with GAAP applied on a
consistent basis. Since December 31, 2000, there has been no material
adverse change in the consolidated business, operations or financial
condition of the Seller and its consolidated Subsidiaries taken as a whole
from that set forth in said financial statements nor is Seller aware of any
state of facts which (without notice or the lapse of time) would or could
result in any such material adverse change. The Seller has, on the date of
the statements delivered pursuant to this Section (the "Statement Date") no
liabilities, direct or indirect, fixed or contingent, matured or unmatured,
known or unknown, or liabilities for taxes, long-term leases or unusual
forward or long-term commitments not disclosed by, or reserved against in,
said balance sheet and related statements, and at the present time there
are no material unrealized or anticipated losses from any loans, advances
or other commitments of Seller except as heretofore disclosed to Buyer in
writing.
(6) Event of Default. There exists no Event of Default under Section
15(b) hereof, which default gives rise to a right to accelerate
indebtedness as referenced in Section 15(b) hereof, under any mortgage,
borrowing agreement or other instrument or agreement pertaining to
indebtedness for borrowed money or to the repurchase of mortgage loans or
securities.
(7) Solvency. Seller is solvent and will not be rendered insolvent by
any Transaction and, after giving effect to such Transaction, will not be
left with an unreasonably small amount of capital with which to engage in
its business. Seller does not intend to incur, nor does it believe that it
has incurred, debts beyond its ability to pay such debts as they mature and
is not contemplating the commencement of insolvency, bankruptcy,
liquidation or consolidation proceedings or the appointment of a receiver,
liquidator, conservator, trustee or similar official in respect of such
entity or any of its assets. The amount of consideration being received by
Page 19
Seller upon the sale of the Purchased Mortgage Loans to Buyer constitutes
reasonably equivalent value and fair consideration for such Purchased
Mortgage Loans. Seller is not transferring any Purchased Mortgage Loans
with any intent to hinder, delay or defraud any of its creditors.
(8) No Conflicts. The execution, delivery and performance by Seller of
this Agreement, any Transaction Request or Purchase Confirmation hereunder
and the Program Agreements do not conflict with any term or provision of
the organizational documents of Seller or any law, rule, regulation, order,
judgment, writ, injunction or decree applicable to Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over Seller, which conflict would have a Material Adverse
Effect and will not result in any violation of any such mortgage,
instrument, agreement or repurchase agreement.
(9) True and Complete Disclosure. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, any Affiliate
thereof or any of their officers furnished or to be furnished to Buyer in
connection with the initial or any ongoing due diligence of Seller or any
Affiliate or officer thereof, negotiation, preparation, or delivery of the
Program Agreements are true and complete and do not omit to disclose any
material facts necessary to make the statements herein or therein, in light
of the circumstances in which they are made, not misleading. All financial
statements have been prepared in accordance with GAAP.
(10) Approvals. No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or
court is required under applicable law in connection with the execution,
delivery and performance by Seller of this Agreement, any Transaction
Request, Purchase Confirmation and the Program Agreements, or any such
consent, approval, authorization, order, registration, filing, or notice
has been filed or obtained or will be filed or obtained, within the time
required under applicable law.
(11) Litigation. There is no action, proceeding or investigation
pending with respect to which Seller has received service of process or, to
the best of Seller's knowledge threatened against it before any court,
administrative agency or other tribunal (A) asserting the invalidity of
this Agreement, any Transaction, Transaction Request, Purchase Confirmation
or any Program Agreement, (B) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement, any Transaction Request,
Purchase Confirmation or any Program Agreement, (C) which makes a claim or
claims in an aggregate amount greater than $500,000, (D) which requires
filing with the Securities and Exchange Commission in accordance with the
1934 Act or any rules thereunder or (E) which might materially and
adversely affect the validity of the Mortgage Loans or the performance by
it of its obligations under, or the validity or enforceability of, this
Agreement, any Transaction Request, Purchase Confirmation or any Program
Agreement.
(12) Material Adverse Change. There has been no material adverse
change in the business, operations, financial conditions, properties or
prospects of Seller, or its Affiliates since the date set forth in the most
recent financial statements supplied to Buyer.
(13) Ownership. Upon payment of the Cash Purchase Price and the filing
of the financing statement and delivery of the Mortgage Files to the
Custodian and the Custodian's receipt of the related Request for
Certification, Buyer shall become the sole owner of the Purchased Mortgage
Loans and related Repurchase Assets, free and clear of all liens and
encumbrances.
(14) Underwriting Guidelines. The Underwriting Guidelines provided to
Buyer are the true and correct Underwriting Guidelines of Seller.
(15) Taxes. Seller and its Subsidiaries have filed all Federal income
tax returns and all other material tax returns that are required to be
filed by it and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by any of them, except for any such
taxes as are being appropriately contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves have been provided. The charges, accruals and reserves on the
books of Seller and its Subsidiaries in respect of taxes and other
governmental charges are, in the opinion of Seller, adequate.
(16) Investment Company. Neither Seller nor any of its Subsidiaries is
an "investment company", or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
(17) Chief Executive Office; Jurisdiction of Organization. During the
four months immediately preceding July 1, 2001 and on the Effective Date,
Seller's chief executive office, is, and has been, located at 00000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000. On the Effective Date,
Page 20
Seller's jurisdiction of organization is Delaware. Seller shall provide
Buyer with thirty days advance notice of any change in Seller's principal
office or place of business or jurisdiction. Seller has no trade name other
than those listed on Schedule 13(a)(17) hereto. During the preceding five
years, Seller has not been known by or done business under any other name,
corporate or fictitious, and has not filed or had filed against it any
bankruptcy receivership or similar petitions nor has it made any
assignments for the benefit of creditors other than those listed on
Schedule 13(a)(17) hereto.
(18) Location of Books and Records. The location where Seller keeps
its books and records, including all computer tapes and records relating to
the Purchased Mortgage Loans and the related Repurchase Assets is its chief
executive office.
(19) Adjusted Tangible Net Worth. On the Effective Date, Seller's
Adjusted Tangible Net Worth is not less than $5 Million.
(20) ERISA. Each Plan to which Seller or its Subsidiaries make direct
contributions, and, to the knowledge of Seller, each other Plan and each
Multiemployer Plan, is in compliance in all material respects with, and has
been administered in all material respects in compliance with, the
applicable provisions of ERISA, the Code and any other Federal or State
law.
(21) Adverse Selection. Seller has not selected the Purchased Mortgage
Loans in a manner so as to adversely affect Buyer's interests.
(22) Agreements. Neither Seller nor any Subsidiary of Seller is a
party to any agreement, instrument, or indenture or subject to any
restriction materially and adversely affecting its business, operations,
assets or financial condition, except, to the extent disclosure is required
by GAAP, as disclosed in the financial statements described in Section
13(a)(5) hereof. Neither Seller nor any Subsidiary of Seller is in default
in the performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement, instrument, or
indenture which default could have a material adverse effect on the
business, operations, properties, or financial condition of Seller as a
whole. No holder of any indebtedness of Seller or of any of its
Subsidiaries has given notice of any asserted monetary or material default
thereunder.
(23) Other Indebtedness. All Indebtedness (other than Indebtedness
evidenced by this Agreement) of Seller existing on the date hereof is
listed on Exhibit K hereto (the "Existing Indebtedness").
(24) Agency Approvals. With respect to each Agency Security and to the
extent necessary, Seller is an FHA Approved Mortgagee, a VA Approved Lender
and a GNMA Approved Lender. Seller is also, to the extent necessary,
approved by the Secretary of Housing and Urban Development pursuant to
Sections 203 and 211 of the National Housing Act. In each such case, Seller
is in good standing, with no event having occurred or Seller having any
reason whatsoever to believe or suspect will occur prior to the issuance of
the Agency Security or the consummation of the Take-out Commitment, as the
case may be, including, without limitation, a change in insurance coverage
which would either make Seller unable to comply with the eligibility
requirements for maintaining all such applicable approvals or require
notification to the relevant Agency or to the Department of Housing and
Urban Development, FHA or VA. Should Seller for any reason cease to possess
all such applicable approvals, or should notification to the relevant
Agency or to the Department of Housing and Urban Development, FHA or VA be
required, Seller shall so notify Buyer immediately in writing. Seller has
adequate financial standing, servicing facilities, procedures and
experienced personnel necessary for the sound servicing of mortgage loans
of the same types as may from time to time constitute Mortgage Loans and to
be serviced by it in accordance with Accepted Servicing Practices.
b. With respect to every Purchased Mortgage Loan, Seller represents and
warrants to Buyer as of the applicable Purchase Date for any Transaction and
each date thereafter that each representation and warranty set forth on Schedule
1 is true and correct.
c. The representations and warranties set forth in this Agreement shall
survive transfer of the Purchased Mortgage Loans to Buyer and shall continue for
so long as the Purchased Mortgage Loans are subject to this Agreement. Upon
discovery by Seller, Servicer or Buyer of any breach of any of the
representations or warranties set forth in this Agreement, the party discovering
such breach shall promptly give notice of such discovery to the others. Buyer
has the right to require, in its unreviewable discretion, Seller to repurchase
within 1 Business Day after receipt of notice from Buyer any Purchased Mortgage
Loan (i) for which a breach of one or more of the representations and warranties
referenced in Section 13(b) exists and which breach has a material adverse
effect on the value of such Mortgage Loan or the interests of Buyer or (ii)
which is determined by Buyer, in its good faith discretion, to be unacceptable
Page 21
for inclusion in a securitization.
14. Covenants
Seller covenants with Buyer that, during the term of this facility:
a. Adjusted Net Worth. Seller shall maintain an Adjusted Net Worth of at
least the sum of $5 million.
b. Indebtedness to Adjusted Net Worth Ratio. Seller's ratio of Indebtedness
to Adjusted Net Worth shall not exceed 25:1.
c. Litigation. Seller will promptly, and in any event within ten (10) days
after service of process on any of the following, give to Buyer notice of all
litigation, actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are threatened or pending) or other legal
or arbitrable proceedings affecting Seller or any of its Subsidiaries or
affecting any of the Property of any of them before any Governmental Authority
that (i) questions or challenges the validity or enforceability of any of the
Program Agreements or any action to be taken in connection with the transactions
contemplated hereby, (ii) makes a claim or claims in an aggregate amount greater
than $500,000, or (iii) which, individually or in the aggregate, if adversely
determined, could be reasonably likely to have a Material Adverse Effect
d. Prohibition of Fundamental Changes. Seller shall not enter into any
transaction of merger or consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation, winding up or dissolution) or sell
all or substantially all of its assets; provided, that Seller may merge or
consolidate with (a) any wholly owned subsidiary of Seller, or (b) any other
Person if Seller is the surviving entity; and provided further, that if after
giving effect thereto, no Default would exist hereunder.
e. Maintenance of Profitability. Seller shall not permit, for any Test
Period, Net Income for such Test Period determined on a monthly basis, before
income taxes for such Test Period and distributions made during such Test
Period, to be less than $1.00.
f. Servicer; Asset Tape. Upon the occurrence of any of the following (a)
the occurrence and continuation of an Event of Default, (b) upon any Purchased
Mortgage Loan becoming an Aged Loan, (c) the Reporting Date of each month, or
(d) upon the request of Buyer, Seller shall cause Servicer to provide to Buyer,
electronically, in a format mutually acceptable to Buyer and Seller, an Asset
Tape. Seller shall not cause the Mortgage Loans to be serviced by any servicer
other than a servicer expressly approved in writing by Buyer, which approval
shall be deemed granted by Buyer with respect to Seller with the execution of
this Agreement.
g. Insurance. Seller or its Affiliates, will continue to maintain, for
Seller and its Subsidiaries, insurance coverage with respect to employee
dishonesty, forgery or alteration, theft, disappearance and destruction, robbery
and safe burglary, property (other than money and securities) and computer fraud
in an aggregate amount acceptable to Xxxxxx Xxx and Xxxxxxx Mac.
h. No Adverse Claims. Seller warrants and will defend, and shall cause any
Servicer to defend, the right, title and interest of Buyer in and to all
Purchased Mortgage Loans and the related Repurchase Assets against all adverse
claims and demands.
i. Assignment. Except as permitted herein, neither Seller nor any Servicer
shall sell, assign, transfer or otherwise dispose of, or grant any option with
respect to, or pledge, hypothecate or grant a security interest in or lien on or
otherwise encumber (except pursuant to the Program Agreements), any of the
Purchased Mortgage Loans or any interest therein, provided that this Section
shall not prevent any transfer of Purchased Mortgage Loans in accordance with
the Program Agreements.
j. Security Interest. Seller shall do all things necessary to preserve the
Purchased Mortgage Loans and the related Repurchase Assets so that they remain
subject to a first priority perfected security interest hereunder. Without
limiting the foregoing, Seller will comply with all rules, regulations and other
laws of any Governmental Authority and cause the Purchased Mortgage Loans or the
related Repurchase Assets to comply with all applicable rules, regulations and
other laws. Seller will not allow any default for which Seller is responsible to
occur under any Purchased Mortgage Loans or the related Repurchase Assets or any
Program Agreement and Seller shall fully perform or cause to be performed when
due all of its obligations under any Purchased Mortgage Loans or the related
Repurchase Assets and any Program Agreement.
k. Records.
(1) Seller shall collect and maintain or cause to be collected and
maintained all Records relating to the Purchased Mortgage Loans in
accordance with industry custom and practice for assets similar to the
Purchased Mortgage Loans, including those maintained pursuant to the
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preceding subparagraph, and all such Records shall be in Custodian's
possession unless Buyer otherwise approves. Seller will not allow any such
papers, records or files that are an original or an only copy to leave
Custodian's possession, except for individual items removed in connection
with servicing a specific Mortgage Loan, in which event Seller will obtain
or cause to be obtained a receipt from a financially responsible person for
any such paper, record or file. Seller or the Servicer of the Purchased
Mortgage Loans will maintain all such Records not in the possession of
Custodian in good and complete condition in accordance with industry
practices for assets similar to the Purchased Mortgage Loans and preserve
them against loss.
(2) For so long as Buyer has an interest in or lien on any Purchased
Mortgage Loan, Seller will hold or cause to be held all related Records in
trust for Buyer. Seller shall notify, or cause to be notified, every other
party holding any such Records of the interests and liens in favor of Buyer
granted hereby.
(3) Upon reasonable advance notice from Custodian or Buyer, Seller
shall (x) make any and all such Records available to Custodian or Buyer to
examine any such Records, either by its own officers or employees, or by
agents or contractors, or both, and make copies of all or any portion
thereof, and (y) permit Buyer or its authorized agents to discuss the
affairs, finances and accounts of Seller with its chief operating officer
and chief financial officer and to discuss the affairs, finances and
accounts of Seller with its independent certified public accountants.
l. Books. Seller shall keep or cause to be kept in reasonable detail books
and records of account of its assets and business and shall clearly reflect
therein the transfer of Purchased Mortgage Loans to Buyer. Unless Seller has
caused an Intercreditor Agreement conforming to the requirements of Section
14(x) to be executed and delivered to Buyer, Seller shall clearly reflect on its
books and records that any Interest Rate Protection Agreements or Takeout
Commitments which relate to Mortgage Loans subject to a Transaction under this
Agreement relate solely to such Mortgage Loans and are subject to the exclusive
security interest of the Buyer.
m. Approvals. Seller shall maintain all licenses, permits or other
approvals necessary for Seller to conduct its business and to perform its
obligations under the Program Agreements, and Seller shall conduct its business
strictly in accordance with applicable law, except where any such failure would
have a Material Adverse Effect or would have a material adverse effect on any
Purchased Mortgage Loan.
n. Material Change in Business. Seller shall not make any material change
in the nature of its business as carried on at the date hereof, except as may be
communicated in writing to Buyer and approved in the good faith discretion of
Buyer. Any failure by Buyer to object within 30 days of receipt of written
notice to Seller's change in its business as described in Seller's written
notice to Buyer shall be deemed approval of such change.
o. Underwriting Guidelines. In the event that Seller makes any amendment or
modification to the Underwriting Guidelines, Seller shall promptly deliver to
Buyer a complete copy of the amended or modified Underwriting Guidelines.
p. Distributions. If an Event of Default arising from the failure to make a
payment required hereunder, including without limitation, the failure to satisfy
a Margin Call hereunder, has occurred and is continuing, Seller shall not pay
any dividends with respect to any capital stock or other equity interests in
such entity, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of Seller.
q. Applicable Law. Seller shall comply with the requirements of all
applicable laws, rules, regulations and orders of any Governmental Authority.
r. Existence. Seller shall preserve and maintain its legal existence and
all of its material rights, privileges, licenses and franchises.
s. Chief Executive Office; Jurisdiction of Organization. Seller shall not
move its chief executive office from the address referred to in Section
13(a)(17) or change its jurisdiction of organization from the jurisdiction
referred to in Section 13(a)(17) unless it shall have provided Buyer 30 days'
prior written notice of such change.
t. Taxes. Seller shall pay and discharge all taxes, assessments and
governmental charges or levies imposed on it or on its income or profits or on
any of its property prior to the date on which penalties attach thereto, except
for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate
reserves are being maintained.
u. Transactions with Affiliates. Seller will not enter into any
transaction, including, without limitation, any purchase, sale, lease or
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exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under the Program Agreements, (b) in
the ordinary course of Seller's business and (c) upon fair and reasonable terms
no less favorable to Seller than it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate, or make a payment that is
not otherwise permitted by this Section to any Affiliate.
v. Guarantees. Seller shall not create, incur, assume or suffer to exist
any Guarantees, except (i) to the extent reflected in Seller's financial
statements or notes thereto and (ii) to the extent the aggregate Guarantees of
Seller do not exceed $5,000,000.
w. Other Indebtedness. Seller shall not incur any additional material
Indebtedness (other than (i) the Existing Indebtedness in amounts not to exceed
the amounts specified on Exhibit K hereto and (ii) usual and customary accounts
payable for a mortgage company) without the prior written consent of Buyer to be
determined by Buyer by no later than 30 days from the date consent is requested;
provided that such consent shall not be unreasonably withheld so long as (A) no
Default shall have occurred and is continuing and (B) the additional
Indebtedness will not result in a Default.
x. Hedging. Seller shall enter into Interest Rate Protection Agreements
with respect to the Alt A Mortgage Loans, Jumbo Mortgage Loans and Conforming
Mortgage Loans subject to Transactions hereunder, having terms with respect to
protection against fluctuations in interest rates acceptable to Buyer in its
sole discretion. Such Interest Rate Protection Agreements, including any Takeout
Commitments, shall cover only Mortgage Loans subject to Transactions hereunder
unless Seller has entered into an agreement in form and substance acceptable to
Buyer with any third party who has an interest in or has acquired an interest in
any mortgage loan not subject to a Transaction hereunder but also covered by
such Interest Rate Protection Agreement (such agreement, an "Intercreditor
Agreement").
y. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of Seller, any Affiliate thereof
or any of its officers furnished to Buyer hereunder and during Buyer's diligence
of Seller are and will be true and complete in all material respects and do not
omit to disclose any material facts necessary to make the statements herein or
therein, in light of the circumstances in which they are made, not misleading.
All required financial statements, information and reports delivered by Seller
to Buyer pursuant to this Agreement shall be prepared in accordance with U.S.
GAAP, or, if applicable, to SEC filings, the appropriate SEC accounting
regulations.
z. Agency Approvals; Servicing. If Seller is approved by Xxxxxx Xxx as an
approved lender and Xxxxxxx Mac as an approved seller/servicer, Seller shall
maintain its status, in each case, in good standing. Seller shall service all
Purchased Mortgage Loans which are Committed Mortgage Loans in accordance with
the applicable agency guide. From and after the time that Seller obtains any
Agency Approval, should Seller, for any reason, cease to possess such applicable
Agency Approvals, or should notification to the relevant Agency be required,
Seller shall so notify Buyer immediately in writing. Notwithstanding the
preceding sentence, Seller shall take all necessary action to maintain all of
their applicable Agency Approvals from and after the time such Agency Approval
is obtained. Seller has adequate financial standing, servicing facilities,
procedures and experienced personnel necessary for the sound servicing of
mortgage loans of the same types as may from time to time constitute Mortgage
Loans and in accordance with Accepted Servicing Practices.
aa. Take-out Payments. With respect to each Committed Mortgage Loan, Seller
shall arrange that all payments under the related Take-out Commitment shall be
paid directly to Buyer at the account set forth in Section 9 hereof, or to an
account approved by Buyer in writing prior to such payment. With respect to any
Agency Take-out Commitment, if applicable, (1) with respect to the wire transfer
instructions as set forth in Xxxxxxx Mac Form 987 (Wire Transfer Authorization
for a Cash Warehouse Delivery) such wire transfer instructions are identical to
Buyer's wire instructions or Buyer has approved such wire transfer instructions
in writing in its sole discretion, or (2) the Payee Number set forth on Xxxxxx
Mae Form 1068 (Fixed-Rate, Graduated-Payment, or Growing-Equity Mortgage Loan
Schedule) or Xxxxxx Xxx Form 1069 (Adjustable-Rate Mortgage Loan Schedule), as
applicable, is identical to the Payee Number that has been identified by Buyer
in writing as Buyer's Payee Number or Buyer has previously approved the related
Payee Number in writing in its sole discretion; with respect to any Take-out
Commitment with an Agency, the applicable agency documents list Buyer as sole
subscriber, unless otherwise agreed to in writing by Buyer, in Buyer's sole
discretion.
bb. No Pledge. Seller shall not pledge, transfer or convey any security
interest in the Collection Account to any Person without the express written
consent of Buyer.
cc. HUD Approval. Within six (6) months following the date of this
Agreement, Seller shall become a mortgagee approved by the Secretary of Housing
and Urban Development pursuant to Sections 203 and 211 of the National Housing
Page 24
Act and shall thereafter remain a HUD-approved mortgagee thereunder.
dd. Due Diligence Holdback Account. Seller shall maintain the Due Diligence
Holdback Account and shall ensure that it remains at all times subject to the
Blocked Account Agreement.
15. Events of Default
Each of the following shall constitute an "Event of Default" hereunder:
a. Payment Failure. Failure of Seller to (i) make any payment of Price
Differential or Repurchase Price or any other sum which has become due, on a
Price Differential Payment Date or a Repurchase Date or other scheduled payment,
whether by acceleration or otherwise, under the terms of this Agreement, any
other warehouse and security agreement or any other document evidencing or
securing Indebtedness of Seller to Buyer or to any Affiliate of Buyer, or (ii)
cure any Margin Deficit when due pursuant to Section 6 hereof.
b. Unscheduled Payment Failure. Failure of Seller to make any payment not
identified in Section 15(a) above within five (5) Business Days of receipt of
written notice from Buyer that such payment is due.
c. Cross Default. Seller or any of Seller's Affiliates shall be in default
under (i) any Indebtedness of Seller or of such Affiliate which has, in any one
instance, or in the aggregate, an outstanding principal balance (or equivalent)
in excess of $5,000,000, which default or defaults (1) involves the failure to
pay a matured obligation, or (2) permits the acceleration of the maturity of
obligations by any other party to or beneficiary with respect to such
Indebtedness, or (ii) any other contract to which Seller or such Affiliate is a
party which has, in any one instance, or in the aggregate, an outstanding
principal balance (or equivalent) in excess of $5,000,000, which default (1)
involves the failure to pay a matured obligation, or (2) permits the
acceleration of the maturity of obligations by any other party to or beneficiary
of such contract.
d. Assignment. Assignment or attempted assignment by Seller of this
Agreement or any rights hereunder without first obtaining the specific written
consent of Buyer, or the granting by Seller of any security interest, lien or
other encumbrances on any Purchased Mortgage Loans to any person other than
Buyer.
e. Insolvency. An Act of Insolvency shall have occurred with respect to
Seller or any of its Affiliates.
f. Material Adverse Change. Any material adverse change in the Property,
business, financial condition or operations of Seller or any of its Affiliates
shall occur, in each case as determined by Buyer in its sole good faith
discretion, or any other condition shall exist which, in Buyer's sole good faith
discretion, constitutes a material impairment of Seller's ability to perform its
obligations under this Agreement or any other Program Agreement.
g. Breach of Financial Representation or Covenant or Obligation. A breach
by Seller of any of the representations, warranties or covenants or obligations
set forth in Sections 13(a)(1), 13(a)(7), 13(a)(12), 13(a)(19), 13(a)(24), 14a,
00x, 00x, 00x, 00x, 00x, 00x, 00xx or 14cc of this Agreement.
h. Breach of Non-Financial Representation or Covenant. A breach by Seller
of any other material representation, warranty or covenant set forth in this
Agreement (and not otherwise specified in Section 15(g) above) breach is not
cured within five (5) Business Days (other than the representations and
warranties set forth in Schedule 1, which shall be considered solely for the
purpose of determining the Market Value and the obligation to repurchase such
Mortgage Loan unless (i) Seller shall have made any such representations and
warranties with knowledge that they were materially false or misleading at the
time made, (ii) any such representations and warranties have been determined by
Buyer in its sole discretion to be materially false or misleading on a regular
basis, or (iii) Buyer, in its sole discretion, determines that such breach of a
material representation, warranty or covenant materially and adversely affects
(A) the condition (financial or otherwise) of Seller, its Subsidiaries or
Affiliates; or (B) Buyer's determination to enter into this Agreement or
Transactions with Seller, then such breach shall constitute an immediate Event
of Default and Seller shall have no cure right hereunder.
i. Change of Control. The occurrence of a Change in Control.
j. Failure to Transfer. Seller fails to transfer the Purchased Mortgage
Loans to Buyer on the applicable Purchase Date (provided Buyer has tendered the
related Cash Purchase Price).
k. Judgment. A final judgment or judgments for the payment of money in
excess of $1,000,000 in the aggregate shall be rendered against the Seller or
any of its Affiliates by one or more courts, administrative tribunals or other
bodies having jurisdiction and the same shall not be satisfied, discharged (or
provision shall not be made for such discharge) or bonded, or a stay of
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execution thereof shall not be procured, within 30 days from the date of entry
thereof.
l. Government Action. Any Governmental Authority or any person, agency or
entity acting or purporting to act under governmental authority shall have taken
any action to condemn, seize or appropriate, or to assume custody or control of,
all or any substantial part of the Property of Seller or any Affiliate, or shall
have taken any action to displace the management of Seller or any Affiliate or
to curtail its authority in the conduct of the business of Seller or any
Affiliate, or takes any action in the nature of enforcement to remove, limit or
restrict the approval of Seller or Affiliate as an issuer, buyer or a
seller/servicer of Mortgage Loans or securities backed thereby, and such action
provided for in this subparagraph (l) shall not have been discontinued or stayed
within 30 days.
m. Inability to Perform. An officer of Seller shall admit its inability to,
or its intention not to, perform any of Seller's Obligations hereunder.
n. Security Interest. This Agreement shall for any reason cease to create a
valid, first priority security interest in any material portion of the Purchased
Mortgage Loans or other Repurchase Assets purported to be covered hereby.
o. Financial Statements. Seller's audited annual financial statements or
the notes thereto or other opinions or conclusions stated therein shall be
qualified or limited by reference to the status of Seller as a "going concern"
or a reference of similar import.
An Event of Default shall be deemed to be continuing unless expressly
waived by Buyer in writing.
16. Remedies Upon Default
In the event that an Event of Default shall have occurred:
a. Buyer may, at its option (which option shall be deemed to have been
exercised immediately upon the occurrence of an Act of Insolvency), declare an
Event of Default to have occurred hereunder and, upon the exercise or deemed
exercise of such option, the Repurchase Date for each Transaction hereunder
shall, if it has not already occurred, be deemed immediately to occur (except
that, in the event that the Purchase Date for any Transaction has not yet
occurred as of the date of such exercise or deemed exercise, such Transaction
shall be deemed immediately canceled). Buyer shall (except upon the occurrence
of an Act of Insolvency) give notice to Seller of the exercise of such option as
promptly as practicable.
b. If Buyer exercises or is deemed to have exercised the option referred to
in subparagraph (a) of this Section, (i) Seller's obligations in such
Transactions to repurchase all Purchased Mortgage Loans, at the Repurchase Price
therefor on the Repurchase Date determined in accordance with subparagraph (a)
of this Section, shall thereupon become immediately due and payable, (ii) all
Income paid after such exercise or deemed exercise shall be retained by Buyer
and applied, in Buyer's sole discretion, to the aggregate unpaid Repurchase
Prices for all outstanding Transactions and any other amounts owing by Seller
hereunder, and (iii) Seller shall immediately deliver to Buyer the Mortgage
Files relating to any Purchased Mortgage Loans subject to such Transactions then
in Seller's possession or control.
c. Buyer also shall have the right to obtain physical possession, and to
commence an action to obtain physical possession, of all Records and files of
Seller relating to the Purchased Mortgage Loans and all documents relating to
the Purchased Mortgage Loans (including, without limitation, any legal, credit
or servicing files with respect to the Purchased Mortgage Loans) which are then
or may thereafter come in to the possession of Seller or any third party acting
for the Seller. To obtain physical possession of any Purchased Mortgage Loans
held by Custodian, Buyer shall present to Custodian a Trust Receipt and
Certification. Buyer shall be entitled to specific performance of all agreements
of Seller contained in this Agreement.
d. Buyer shall have the right to direct all servicers then servicing any
Purchased Mortgage Loans to remit all collections thereon to Buyer, and if any
such payments are received by Seller, Seller shall not commingle the amounts
received with other funds of Seller and shall promptly pay them over to Buyer.
Buyer shall also have the right to terminate any one or all of the servicers
then servicing any Purchased Mortgage Loans with or without cause. In addition,
Buyer shall have the right to immediately sell the Purchased Mortgage Loans and
liquidate all Repurchase Assets. Such disposition of Purchased Mortgage Loans
may be, at Buyer's option, on either a servicing-released or a
servicing-retained basis. Buyer shall be entitled to place the Purchased
Mortgage Loans in a pool for issuance of mortgage-backed securities at the
then-prevailing price for such securities and to sell such securities for such
prevailing price in the open market. Buyer shall also be entitled to sell any or
all of such Mortgage Loans individually for the prevailing price. Any expenses
incurred in connection with the foregoing shall be allocated by Buyer in its
good faith determination pro rata among the related Mortgage Loans subject to
Page 26
this Agreement and other mortgage loans included in any such transaction not
subject to this Agreement.
e. Upon the happening of one or more Events of Default, Buyer may apply any
proceeds from the liquidation of the Purchased Mortgage Loans and Repurchase
Assets to the Repurchase Prices hereunder and all other Obligations in the
manner Buyer deems appropriate in its sole discretion.
f. Seller shall be liable to Buyer for (i) the amount of all reasonable
legal or other expenses (including, without limitation, all costs and expenses
of Buyer in connection with the enforcement of this Agreement or any other
agreement evidencing a Transaction, whether in action, suit or litigation or
bankruptcy, insolvency or other similar proceeding affecting creditors' rights
generally, further including, without limitation, the reasonable fees and
expenses of counsel (including the costs of internal counsel of Buyer) incurred
in connection with or as a result of an Event of Default, (ii) damages in an
amount equal to the cost (including all fees, expenses and commissions) of
entering into replacement transactions and entering into or terminating hedge
transactions in connection with or as a result of an Event of Default, and (iii)
any other loss, damage, cost or expense directly arising or resulting from the
occurrence of an Event of Default in respect of a Transaction.
g. To the extent permitted by applicable law, Seller shall be liable to
Buyer for interest on any amounts owing by Seller hereunder, from the date
Seller becomes liable for such amounts hereunder until such amounts are (i) paid
in full by Seller or (ii) satisfied in full by the exercise of Buyer's rights
hereunder. Interest on any sum payable by Seller under this Section 16(g) shall
be at a rate equal to the Post-Default Rate.
h. Buyer shall have, in addition to its rights hereunder, any rights
otherwise available to it under any other agreement or applicable law.
i. Buyer may exercise one or more of the remedies available to Buyer
immediately upon the occurrence of an Event of Default and, except to the extent
provided in subsections (a) and (d) of this Section, at any time thereafter
without notice to Seller. All rights and remedies arising under this Agreement
as amended from time to time hereunder are cumulative and not exclusive of any
other rights or remedies which Buyer may have.
j. To the extent permitted under applicable law, Buyer may enforce its
rights and remedies hereunder without prior judicial process or hearing, and
Seller hereby expressly waives any defenses Seller might otherwise have to
require Buyer to enforce its rights by judicial process. Seller also waives any
defense (other than a defense of payment or performance) Seller might otherwise
have arising from the use of nonjudicial process, enforcement and sale of all or
any portion of the Purchased Mortgage Loans, or from any other election of
remedies. Seller recognizes that nonjudicial remedies are consistent with the
usages of the trade, are responsive to commercial necessity and are the result
of a bargain at arm's length.
k. Buyer shall have the right to perform reasonable due diligence with
respect to Seller and the Mortgage Loans, which review shall be at the expense
of Seller in accordance with the terms of Section 36.
17. Reports
a. Notices. Seller shall furnish to Buyer (x) promptly, copies of any
material and adverse notices (including, without limitation, notices of
defaults, breaches, potential defaults or potential breaches) and any material
financial information that is not otherwise required to be provided by Seller
hereunder which is given to Seller's lenders, (y) immediately, notice of the
occurrence of any Event of Default hereunder or default or breach by Seller or
Servicer of any obligation under any Program Agreement or any material contract
or agreement of Seller or Servicer or the occurrence of any event or
circumstance that such party reasonably expects has resulted in, or will, with
the passage of time, result in, a Material Adverse Effect or an Event of Default
or such a default or breach by such party and (z) the following:
(1) as soon as available and in any event within twenty (20) calendar
days after the end of each calendar month, the unaudited consolidated
balance sheets of Seller and its consolidated Subsidiaries as at the end of
such period and the related unaudited consolidated statements of income and
retained earnings and of cash flows for the Seller and its consolidated
Subsidiaries for such period and the portion of the fiscal year through the
end of such period, accompanied by a certificate of a Responsible Officer
of Seller, which certificate shall state that said consolidated, financial
statements fairly present in all material respects the consolidated
financial condition and results of operations of Seller and its
consolidated Subsidiaries in accordance with GAAP, consistently applied, as
at the end of, and for, such period (subject to normal year-end
adjustments);
(2) as soon as available and in any event within ninety (90) days
after the end of each fiscal year of Seller, the consolidated balance
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sheets of Seller and its consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income and retained
earnings and of cash flows for the Seller and its consolidated Subsidiaries
for such year, setting forth in each case in comparative form the figures
for the previous year, accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which opinion
and the scope of audit shall be acceptable to Buyer in its sole discretion,
shall have no "going concern" qualification and shall state that said
consolidated financial statements fairly present the consolidated financial
condition and results of operations of Seller and its respective
consolidated Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP;
(3) such other prepared statements that Buyer may reasonably request;
(4) if applicable, copies of any 10-Ks, 10-Qs, registration statements
and other "corporate finance" SEC filings (other than 8-Ks) by Seller,
within 5 Business Days of their filing with the SEC; provided, that, Seller
or any Affiliate will provide Buyer and Credit Suisse First Boston
Corporation with a copy of the annual 10-K filed with the SEC by Seller or
its Affiliates, no later than 90 days after the end of the year;
(5) from time to time such other information regarding the financial
condition, operations, or business of the Seller as Buyer may reasonably
request;
(6) as soon as reasonably possible, and in any event within thirty
(30) days after a Responsible Officer of the Seller has knowledge of the
occurrence of any Event of Termination, stating the particulars of such
Event of Termination in reasonable detail;
(7) As soon as reasonably possible, notice of any of the following
events:
(a) change in the insurance coverage required of Seller, Servicer
or any other Person pursuant to any Program Agreement, with a copy of
evidence of same attached;
(b) any material dispute, litigation, investigation, proceeding
or suspension between Seller or Servicer, on the one hand, and any
Governmental Authority or any Person;
(c) any material change in accounting policies or financial
reporting practices of Seller or Servicer;
(d) with respect to any Purchased Mortgage Loan, immediately upon
receipt of notice or knowledge thereof, that the underlying Mortgaged
Property has been damaged by waste, fire, earthquake or earth
movement, windstorm, flood, tornado or other casualty, or otherwise
damaged so as to affect adversely the value of such Mortgaged Loan;
(e) to the extent permitted by applicable law and regulations,
any issues raised upon examination of Seller or Seller's facilities by
any Governmental Authority that could have a Material Adverse Effect;
(f) promptly upon receipt of notice or knowledge of (i) any
default related to any Repurchase Asset, (ii) any lien or security
interest (other than security interests created hereby or by the other
Program Agreements) on, or claim asserted against, any of the
Purchased Mortgage Loans; and
(g) any other event, circumstance or condition that has resulted,
or has a possibility of resulting, in a Material Adverse Effect with
respect to Seller or Servicer.
b. Officer's Certificates.
(1) Seller will furnish to Buyer, at the time the Seller furnishes
each set of financial statements pursuant to Section 17(a)(1) or (2) above,
a certificate of a Responsible Officer of Seller in the form of Exhibit D
hereto.
c. Mortgage Loan Reports. Seller will furnish to Buyer monthly electronic
Mortgage Loan performance data, including, without limitation, delinquency
reports (i.e., delinquency, foreclosure and net charge-off reports).
d. Asset Tape. Seller shall provide to Buyer, electronically, in a format
mutually acceptable to Buyer and Seller, an Asset Tape by no later than the
Reporting Date.
e. Other. Seller shall deliver to Buyer any other reports or information
reasonably requested by Buyer or as otherwise required pursuant to this
Agreement.
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18. Repurchase Transactions
Buyer may, in its sole election, engage in repurchase transactions with the
Purchased Mortgage Loans or otherwise pledge, hypothecate, assign, transfer or
otherwise convey the Purchased Mortgage Loans with a counterparty of Buyer's
choice (each such transaction, a "Third Party Transfer"). On each Repurchase
Date, and unless an Event of Default has occurred and is continuing, in the
event that Buyer (a) has sold the Purchased Mortgage Loans to a third party and
cannot or will not repurchase the Purchased Mortgage Loans from such third
party, (b) desires to retain the Purchased Mortgage Loans, or (c) is unable to
reclaim such Purchased Mortgage Loans subject to a Third Party Transfer and
return the Purchased Mortgage Loans to Seller, Buyer shall (x) purchase at such
price or prices as the Buyer may reasonably deem satisfactory, Mortgage Loans
("Replacement Mortgage Loans") of the same type and amount as any Purchased
Mortgage Loans that are not delivered by Buyer to the Seller as required
hereunder or (y) in its sole discretion elect, in lieu of purchasing Replacement
Mortgage Loans, to be deemed to have elected to retain such Purchased Mortgage
Loans at the Market Value and shall remit to Seller the excess, if any of (a)
the Market Value of such Purchased Mortgage Loans over (b) the Repurchase Price
for such Purchased Mortgage Loans. Unless an Event of Default shall have
occurred, no such transaction shall relieve Buyer of its obligations to transfer
Purchased Mortgage Loans to Seller pursuant to Section 4(c) hereof, or of
Buyer's obligation to credit or pay Income to, or apply Income to the
obligations of, Seller pursuant to Section 7 hereof. In the event Buyer engages
in a repurchase transaction with any of the Purchased Mortgage Loans or
otherwise pledges or hypothecates any of the Purchased Mortgage Loans, Buyer
shall have the right to assign to Buyer's counterparty any of the applicable
representations or warranties herein and the remedies for breach thereof, as
they relate to the Purchased Mortgage Loans that are subject to such repurchase
transaction.
19. Single Agreement
Buyer and Seller acknowledge that, and have entered hereunto, and will
enter into each Transaction hereunder, in consideration of and in reliance upon
the fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
of all Transactions hereunder, (ii) that each of them shall be entitled to
set-off claims and apply property held by them in respect of any Transaction
against obligations owing to them in respect of any other Transactions hereunder
and (iii) that payments, deliveries and other transfers made by either of them
in respect of any Transaction shall be deemed to have been made in consideration
of payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
20. Notices and Other Communications
Any and all notices (with the exception of Transaction Requests or Purchase
Confirmations, which shall be delivered via facsimile only), statements, demands
or other communications hereunder may be given by a party to the other by mail,
facsimile, messenger or otherwise to the address specified below, or so sent to
such party at any other place specified in a notice of change of address
hereafter received by the other. All notices, demands and requests hereunder may
be made orally, to be confirmed promptly in writing, or by other communication
as specified in the preceding sentence.
If to Seller:
Cresleigh Financial Services, LLC
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxx Royal, CFO
Phone Number: (000) 000-0000
Fax Number:
Email: Xxxxxx@xxxxxxxxx.xxx
If to Buyer:
For Transaction Requests and Purchase Confirmations:
Credit Suisse First Boston Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Phone Number: 000-000-0000
Fax Number: 000-000-0000
For all other Notices:
Page 29
Credit Suisse First Boston Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Xxxxx Xxxxxx
with a copy to:
Credit Suisse First Boston Mortgage Capital LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
21. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions. Each
provision and agreement herein shall be treated as separate and independent from
any other provision or agreement herein and shall be enforceable notwithstanding
the unenforceability of any such other provision or agreement.
22. Non assignability
The Program Agreements are not assignable by Seller. Buyer may from time to
time assign all or a portion of its rights and obligations under this Agreement
and the Program Agreements; provided, however that Buyer shall maintain, for
review by Seller upon written request, a register of assignees and a copy of an
executed assignment and acceptance by Buyer and assignee ("Assignment and
Acceptance"), specifying the percentage or portion of such rights and
obligations assigned. Upon such assignment, (a) such assignee shall be a party
hereto and to each Program Agreement to the extent of the percentage or portion
set forth in the Assignment and Acceptance, and shall succeed to the applicable
rights and obligations of Buyer hereunder, and (b) Buyer shall, to the extent
that such rights and obligations have been so assigned by it to either (i) an
Affiliate of Buyer which assumes the obligations of Buyer or (ii) to another
Person approved by Seller (such approval not to be unreasonably withheld) which
assumes the obligations of Buyer, be released from its obligations hereunder and
under the Program Agreements. Unless otherwise stated in the Assignment and
Acceptance, Seller shall continue to take directions solely from Buyer unless
otherwise notified by Buyer in writing. Buyer may distribute to any prospective
assignee any document or other information delivered to Buyer by Seller.
23. Set-off
In addition to any rights and remedies of Buyer provided by law, Buyer
shall have the right, without prior notice to Seller, any such notice being
expressly waived by Seller to the extent permitted by applicable law, upon any
amount becoming due and payable by Seller hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by Buyer or any
branch or agency thereof to or for the credit or the account of Seller. Buyer
agrees promptly to notify Seller after any such set-off and application made by
Buyer; provided, that the failure to give such notice shall not affect the
validity of such set-off and application.
24. Binding Effect; Governing Law; Jurisdiction
a. This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Seller acknowledge
that the obligations of Buyer hereunder or otherwise are not the subject of any
guaranty by, or recourse to, any direct or indirect parent or other Affiliate of
Buyer. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY,
THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF.
b. SELLER HEREBY WAIVES TRIAL BY JURY. SELLER HEREBY IRREVOCABLY CONSENTS
TO THE EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ARISING OUT
OF OR RELATING TO THE PROGRAM AGREEMENTS IN ANY ACTION OR PROCEEDING. SELLER
HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO, EXCLUSIVE PERSONAL
JURISDICTION AND VENUE IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX AND THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY
DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS.
25. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder by any party shall constitute a waiver of its right to exercise any
other remedy hereunder. No modification or waiver of any provision of this
Agreement and no consent by any party to a departure herefrom shall be effective
Page 30
unless and until such shall be in writing and duly executed by both of the
parties hereto. Without limitation on any of the foregoing, the failure to give
a notice pursuant to Section 6(a), 16(a) or otherwise, will not constitute a
waiver of any right to do so at a later date.
26. Intent
a. The parties recognize that each Transaction is a "repurchase agreement"
as that term is defined in Section 101 of Title 11 of the United States Code, as
amended (except insofar as the type of Purchased Mortgage Loans subject to such
Transaction or the term of such Transaction would render such definition
inapplicable), and a "securities contract" as that term is defined in Section
741 of Title 11 of the United States Code, as amended (except insofar as the
type of assets subject to such Transaction would render such definition
inapplicable).
b. It is understood that either party's right to liquidate Purchased
Mortgage Loans delivered to it in connection with Transactions hereunder or to
exercise any other remedies pursuant to Section 16 hereof is a contractual right
to liquidate such Transaction as described in Sections 555 and 559 of Title 11
of the United States Code, as amended.
c. The parties agree and acknowledge that if a party hereto is an "insured
depository institution," as such term is defined in the Federal Deposit
Insurance Act, as amended ("FDIA"), then each Transaction hereunder is a
"qualified financial contract," as that term is defined in FDIA and any rules,
orders or policy statements thereunder (except insofar as the type of assets
subject to such Transaction would render such definition inapplicable).
d. It is understood that this Agreement constitutes a "netting contract" as
defined in and subject to Title IV of the Federal Deposit Insurance Corporation
Improvement Act of 1991 ("FDICIA") and each payment entitlement and payment
obligation under any Transaction hereunder shall constitute a "covered
contractual payment entitlement" or "covered contractual payment obligation",
respectively, as defined in and subject to FDICIA (except insofar as one or both
of the parties is not a "financial institution" as that term is defined in
FDICIA).
27. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
a. in the case of Transactions in which one of the parties is a broker or
dealer registered with the SEC under Section 15 of the 1934 Act, the Securities
Investor Protection Corporation has taken the position that the provisions of
the SIPA do not protect the other party with respect to any Transaction
hereunder;
b. in the case of Transactions in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC
under Section 15C of the 1934 Act, SIPA will not provide protection to the other
party with respect to any Transaction hereunder; and
c. in the case of Transactions in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a Transaction
hereunder are not a deposit and therefore are not insured by the Federal Deposit
Insurance Corporation or the National Credit Union Share Insurance Fund, as
applicable.
28. Power of Attorney
Seller hereby authorizes Buyer to file such financing statement or
statements relating to the Purchased Mortgage Loans without Seller's signature
thereon as Buyer, at its option, may deem appropriate. Seller hereby appoints
Buyer as Seller's agent and attorney-in-fact to execute any such financing
statement or statements in Seller's name and to perform all other acts which
Buyer deems appropriate to perfect and continue its ownership interest in and/or
the security interest granted hereby, if applicable, and to protect, preserve
and realize upon the Purchased Mortgage Loans, including, but not limited to,
the right to endorse notes, complete blanks in documents, transfer servicing,
and sign assignments on behalf of Seller as its agent and attorney-in-fact. This
agency and power of attorney is coupled with an interest and is irrevocable
without Buyer's consent. Notwithstanding the foregoing, the power of attorney
hereby granted may be exercised only during the occurrence and continuance of
any Event of Default hereunder. Seller shall pay the filing costs for any
financing statement or statements prepared pursuant to this Section 28.
29. Buyer May Act Through Affiliates
Buyer may, from time to time, designate one or more affiliates for the
purpose of performing any action hereunder.
30. Indemnification; Obligations
Page 31
a. Seller agrees to hold Buyer and each of its respective Affiliates and
their officers, directors, employees, agents and advisors (each, an "Indemnified
Party") harmless from and indemnify each Indemnified Party (and will reimburse
each Indemnified Party as the same is incurred) against all liabilities, losses,
damages, judgments, costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) of any kind which may be imposed on,
incurred by, or asserted against any Indemnified Party relating to or arising
out of this Agreement, any Transaction Request, Purchase Confirmation, any
Program Agreement or any transaction contemplated hereby or thereby resulting
from anything other than the Indemnified Party's gross negligence or willful
misconduct. Seller also agrees to reimburse each Indemnified Party for all
reasonable expenses in connection with the enforcement of this Agreement and the
exercise of any right or remedy provided for herein, any Transaction Request,
Purchase Confirmation and any Program Agreement, including, without limitation,
the reasonable fees and disbursements of counsel. Seller's agreements in this
Section 30 shall survive the payment in full of the Repurchase Price and the
expiration or termination of this Agreement. Seller hereby acknowledges that its
obligations hereunder are recourse obligations of Seller and are not limited to
recoveries each Indemnified Party may have with respect to the Purchased
Mortgage Loans. Seller also agrees not to assert any claim against Buyer or any
of its Affiliates, or any of their respective officers, directors, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to the
facility established hereunder, the actual or proposed use of the proceeds of
the Transactions, this Agreement or any of the transactions contemplated
thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY
APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
b. Without limitation to the provisions of Section 4, if any payment of the
Repurchase Price of any Transaction is made by Seller other than on the then
scheduled Repurchase Date thereto as a result of an acceleration of the
Repurchase Date pursuant to Section 16 or for any other reason, Seller shall,
upon demand by Buyer, pay to Buyer an amount sufficient to compensate Buyer for
any losses, costs or expenses that it may reasonably incur as of a result of
such payment.
c. Without limiting the provisions of Section 30(a) hereof, if Seller fails
to pay when due any costs, expenses or other amounts payable by it under this
Agreement, including, without limitation, fees and expenses of counsel and
indemnities, such amount may be paid on behalf of Seller by Buyer, in its sole
discretion.
31. Counterparts
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument.
32. Confidentiality
a. This Agreement and its terms, provisions, supplements and amendments,
and notices hereunder, are proprietary to Buyer and Agent and shall be held by
Seller in strict confidence and shall not be disclosed to any third party
without the written consent of Buyer except for (i) disclosure to Seller's
direct and indirect Affiliates and Subsidiaries, attorneys or accountants, but
only to the extent such disclosure is necessary and such parties agree to hold
all information in strict confidence, or (ii) disclosure required by law, rule,
regulation or order of a court or other regulatory body.
b. Buyer agrees that it will not take any action or permit or cause any
action to be taken by Buyer, any of its agents or affiliates, or by any
independent contractors on Buyer's behalf, to personally, by telephone or mail,
solicit the borrower or obligor under any Mortgage Loan to refinance the
Mortgage Loan, in whole or in part, without the prior written consent of Seller,
unless Seller does not repurchase the Mortgage Loan hereunder. It is understood
and agreed that all rights and benefits relating to the solicitation of any
borrower to refinance any such Mortgage Loans and the attendant rights, title
and interest in and to the list of such borrowers and data relating to their
Mortgages (including insurance renewal dates) shall be transferred to the
related Seller pursuant hereto unless the Mortgage Loan is not repurchased
hereunder.
c. In the event Buyer fails to purchase any Mortgage Loan which it has
reviewed, Buyer shall promptly return all copies of such documents to Seller,
agrees that it will not retain any information regarding such documents, and
will not compile any information therefrom or thereafter solicit any borrower,
unless such solicitation is wholly unrelated to having learned of the identity
of such borrower from Seller. Further, Buyer shall keep all information relating
to such Mortgage Loans confidential, and shall not disclose such information to
any other person.
33. Recording of Communications
Page 32
Buyer and Seller shall have the right (but not the obligation) from time to
time to make or cause to be made tape recordings of communications between its
employees and those of the other party with respect to Transactions. Buyer and
Seller consent to the admissibility of such tape recordings in any court,
arbitration, or other proceedings. The parties agree that a duly authenticated
transcript of such a tape recording shall be deemed to be a writing conclusively
evidencing the parties' agreement.
34. Structuring Fee
Seller shall pay to Buyer in immediately available funds a non-refundable
structuring fee due and owing upon closing and payable from time to time in
arrears no later than the 10th day of the month following the end of each
calendar quarter, in the amount set forth in the fee schedule attached hereto as
Annex II. Such payment shall be made in Dollars, in immediately available funds,
without deduction, set-off or counterclaim, to Buyer at such account designated
by Buyer
35. Non-Utilization Fee
No later than the 10th day following the end of each calendar month, Seller
shall pay in immediately available funds to Buyer a non-refundable monthly fee
for the preceding month, calculated in accordance with the formula set forth in
the schedule attached hereto as Annex III. Such payment shall be made in
Dollars, in immediately available funds, without deduction, set-off or
counterclaim, to Buyer at such account designated by Buyer.
36. Periodic Due Diligence Review
Seller acknowledges that Buyer has the right to perform continuing due
diligence reviews with respect to the Seller and the Mortgage Loans, for
purposes of verifying compliance with the representations, warranties and
specifications made hereunder, or otherwise, and Seller agrees that upon
reasonable (but no less than one (1) Business Day's) prior notice unless an
Event of Default shall have occurred, in which case no notice is required, to
Seller, Buyer or its authorized representatives will be permitted during normal
business hours to examine, inspect, and make copies and extracts of, the
Mortgage Files and any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession or under the
control of Seller and/or the Custodian. Seller also shall make available to
Buyer a knowledgeable financial or accounting officer for the purpose of
answering questions respecting the Mortgage Files and the Mortgage Loans.
Without limiting the generality of the foregoing, Seller acknowledges that Buyer
may purchase Mortgage Loans from Seller based solely upon the information
provided by Seller to Buyer in the Purchased Assets Schedule and the
representations, warranties and covenants contained herein, and that Buyer, at
its option, has the right at any time to conduct a partial or complete due
diligence review on some or all of the Mortgage Loans purchased in a
Transaction, including, without limitation, ordering Broker's price opinions,
new credit reports and new appraisals on the related Mortgaged Properties and
otherwise re-generating the information used to originate such Mortgage Loan.
Buyer may underwrite such Mortgage Loans itself or engage a mutually agreed upon
third party underwriter to perform such underwriting. Seller agrees to cooperate
with Buyer and any third party underwriter in connection with such underwriting,
including, but not limited to, providing Buyer and any third party underwriter
with access to any and all documents, records, agreements, instruments or
information relating to such Mortgage Loans in the possession, or under the
control, of Seller. Seller further agrees that the Seller shall pay all
out-of-pocket costs and expenses incurred by Buyer in connection with Buyer's
activities pursuant to this Section 36 ("Due Diligence Costs")
[Signature Page Follows]
Page 33
Credit Suisse First Boston Mortgage Capital LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Title: Managing Director
Date: November 6, 2001
Cresleigh Financial Services, LLC
By: /s/ Xxxxx X. Royal
-------------------------------------
Title: Chief Financial Officer
Date: November 2001
Page 34
SCHEDULE 1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PURCHASED
MORTGAGE LOANS
(a) Payments Current. All payments required to be made up to the Purchase
Date for the Mortgage Loan under the terms of the Mortgage Note have been made
and credited. No payment required under the Mortgage Loan is delinquent by more
than 29 days nor has any payment under the Mortgage Loan been delinquent at any
time since the origination of the Mortgage Loan by more than 29 days. The first
Monthly Payment shall be made, or shall have been made, with respect to the
Mortgage Loan on its Due Date or within the grace period, all in accordance with
the terms of the related Mortgage Note.
(b) No Outstanding Charges. All taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
Neither Seller nor the Qualified Originator from which Seller acquired the
Mortgage Loan has advanced funds, or induced, solicited or knowingly received
any advance of funds by a party other than the Mortgagor, directly or
indirectly, for the payment of any amount required under the Mortgage Loan,
except for interest accruing from the date of the Mortgage Note or date of
disbursement of the proceeds of the Mortgage Loan, whichever is earlier, to the
day which precedes by one month the Due Date of the first installment of
principal and interest thereunder.
(c) Original Terms Unmodified. The terms of the Mortgage Note and Mortgage
have not been impaired, waived, altered or modified in any respect, from the
date of origination; except by a written instrument which has been recorded, if
necessary to protect the interests of Buyer, and which has been delivered to the
Custodian and the terms of which are reflected in the Mortgage Loan Schedule and
Exception Report. The substance of any such waiver, alteration or modification
has been approved by the title insurer, to the extent required, and its terms
are reflected on the Mortgage Loan Schedule and Exception Report. No Mortgagor
in respect of the Mortgage Loan has been released, in whole or in part, except
in connection with an assumption agreement approved by the title insurer, to the
extent required by such policy, and which assumption agreement is part of the
Mortgage File delivered to the Custodian and the terms of which are reflected in
the Mortgage Loan Schedule and Exception Report.
(d) No Defenses. The Mortgage Loan is not subject to any exercisable right
of rescission, set-off, counterclaim or defense, including, without limitation,
the defense of usury, nor will the operation of any of the terms of the Mortgage
Note or the Mortgage, or the exercise of any right thereunder, render either the
Mortgage Note or the Mortgage unenforceable, in whole or in part and no such
right of rescission, set-off, counterclaim or defense has been asserted with
respect thereto, and no Mortgagor in respect of the Mortgage Loan was a debtor
in any state or Federal bankruptcy or insolvency proceeding at the time the
Mortgage Loan was originated. Seller has no knowledge nor has it received any
notice that any Mortgagor in respect of the Mortgage Loan is a debtor in any
state or federal bankruptcy or insolvency proceeding.
Schedule 1-1
Page 35
(e) Hazard Insurance. The Mortgaged Property is insured by a fire and
extended perils insurance policy, issued by a Qualified Insurer, and such other
hazards as are customary in the area where the Mortgaged Property is located,
and to the extent required by Seller as of the date of origination consistent
with the Underwriting Guidelines, against earthquake and other risks insured
against by Persons operating like properties in the locality of the Mortgaged
Property, in an amount not less than the greatest of (i) 100% of the replacement
cost of all improvements to the Mortgaged Property, (ii) the outstanding
principal balance of Mortgage Loan, or (iii) the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged Property,
and consistent with the amount that would have been required as of the date of
origination in accordance with the Underwriting Guidelines. If any portion of
the Mortgaged Property is in an area identified by any federal Governmental
Authority as having special flood hazards, and flood insurance is available, a
flood insurance policy meeting the current guidelines of the Federal Emergency
Management Agency is in effect with a generally acceptable insurance carrier, in
an amount representing coverage not less than the least of (1) the outstanding
principal balance of the Mortgage Loan and, with respect to any Second Lien
Mortgage Loan, the outstanding principal balance of the prior mortgage loan, (2)
the full insurable value of the Mortgaged Property, and (3) the maximum amount
of insurance available under the National Flood Insurance Act of 1968, as
amended by the Flood Disaster Protection Act of 1974. All such insurance
policies (collectively, the "hazard insurance policy") contain a standard
mortgagee clause naming Seller, its successors and assigns (including, without
limitation, subsequent owners of the Mortgage Loan), as mortgagee, and may not
be reduced, terminated or canceled without 30 days' prior written notice to the
mortgagee. No such notice has been received by Seller. All premiums on such
insurance policy have been paid. The related Mortgage obligates the Mortgagor to
maintain all such insurance and, at such Mortgagor's failure to do so,
authorizes the mortgagee to maintain such insurance at the Mortgagor's cost and
expense and to seek reimbursement therefor from such Mortgagor. Where required
by state law or regulation, the Mortgagor has been given an opportunity to
choose the carrier of the required hazard insurance, provided the policy is not
a "master" or "blanket" hazard insurance policy covering a condominium, or any
hazard insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding obligation of
the insurer and is in full force and effect. Seller has engaged in, and has no
knowledge of the Mortgagor's having engaged in, any act or omission which would
impair the coverage of any such policy, the benefits of the endorsement provided
for herein, or the validity and binding effect of either including, without
limitation, no unlawful fee, commission, kickback or other unlawful compensation
or value of any kind has been or will be received, retained or realized by any
attorney, firm or other Person, and no such unlawful items have been received,
retained or realized by Seller.
(f) Compliance with Applicable Laws. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer credit protection,
equal credit opportunity or disclosure laws applicable to the Mortgage Loan have
been complied with, the consummation of the transactions contemplated hereby
will not involve the violation of any such laws or regulations, and Seller shall
maintain or shall cause its agent to maintain in its possession, available for
the inspection of Buyer, and shall deliver to Buyer, upon demand, evidence of
compliance with all such requirements.
Schedule 1-2
Page 36
(g) No Satisfaction of Mortgage. The Mortgage has not been satisfied,
canceled, subordinated or rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in whole or in
part, nor has any instrument been executed that would effect any such release,
cancellation, subordination or rescission. Seller has not waived the performance
by the Mortgagor of any action, if the Mortgagor's failure to perform such
action would cause the Mortgage Loan to be in default, nor has either Seller
waived any default resulting from any action or inaction by the Mortgagor.
(h) Location and Type of Mortgaged Property. The Mortgaged Property is
located in an Acceptable State as identified in the Mortgage Loan Schedule and
Exception Report and consists of a single parcel of real property with a
detached single family residence erected thereon, or a two- to four-family
dwelling, or an individual condominium unit in a lowrise condominium project, or
an individual unit in a planned unit development or a de minimis planned unit
development; provided, however, that any condominium unit or planned unit
development shall conform with the applicable Xxxxxx Xxx and Xxxxxxx Mac
requirements regarding such dwellings or shall conform to underwriting
guidelines acceptable to Buyer in its sole discretion and that no residence or
dwelling is a mobile home. No portion of the Mortgaged Property is used for
commercial purposes; provided, that, the Mortgaged Property may be a mixed use
property if such Mortgaged Property conforms to underwriting guidelines
acceptable to Buyer in its sole discretion.
(i) Valid First or Second Lien. The Mortgage is a valid, subsisting,
enforceable and perfected (a) with respect to each first lien Mortgage Loan,
first priority lien and first priority security interest, or (b) with respect to
each Second Lien Mortgage Loan, second priority lien and second priority
security interest, in each case, on the real property included in the Mortgaged
Property, including all buildings on the Mortgaged Property and all
installations and mechanical, electrical, plumbing, heating and air conditioning
systems located in or annexed to such buildings, and all additions, alterations
and replacements made at any time with respect to the foregoing. The lien of the
Mortgage is subject only to:
a. the lien of current real property taxes and assessments not yet due
and payable;
b. covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
acceptable to prudent mortgage lending institutions generally and
specifically referred to in Buyer's title insurance policy delivered to the
originator of the Mortgage Loan and (a) referred to or otherwise considered
in the appraisal made for the originator of the Mortgage Loan or (b) which
do not adversely affect the Appraised Value of the Mortgaged Property set
forth in such appraisal; and
c. other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security intended to
be provided by the Mortgage or the use, enjoyment, value or marketability
of the related Mortgaged Property; and
Schedule 1-3
Page 37
d. With respect to each Mortgage Loan which is a Second Lien Mortgage
Loan a first lien on the Mortgaged Property.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and Seller has full right to pledge and assign
the same to Buyer. The Mortgaged Property was not, as of the date of origination
of the Mortgage Loan, subject to a mortgage, deed of trust, deed to secure debt
or other security instrument creating a lien subordinate to the lien of the
Mortgage.
(j) Validity of Mortgage Documents. The Mortgage Note and the Mortgage and
any other agreement executed and delivered by a Mortgagor or guarantor, if
applicable, in connection with a Mortgage Loan are genuine, and each is the
legal, valid and binding obligation of the maker thereof enforceable in
accordance with its terms. All parties to the Mortgage Note, the Mortgage and
any other such related agreement had legal capacity to enter into the Mortgage
Loan and to execute and deliver the Mortgage Note, the Mortgage and any such
agreement, and the Mortgage Note, the Mortgage and any other such related
agreement have been duly and properly executed by such related parties. No
fraud, error, omission, misrepresentation, negligence or similar occurrence with
respect to a Mortgage Loan has taken place on the part of any Person, including,
without limitation, the Mortgagor, any appraiser, any builder or developer, or
any other party involved in the origination of the Mortgage Loan. Seller has
reviewed all of the documents constituting the Mortgage File and has made such
inquiries as it deems necessary to make and confirm the accuracy of the
representations set forth herein. To the best of Seller's knowledge, except as
disclosed to Buyer in writing, all tax identifications and property descriptions
are legally sufficient; and tax segregation, where required, has been completed.
(k) Full Disbursement of Proceeds. There is no further requirement for
future advances under the Mortgage Loan, and any and all requirements as to
completion of any on-site or off-site improvement and as to disbursements of any
escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage were paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due under the Mortgage Note or Mortgage.
(l) Ownership. Seller has full right to sell the Mortgage Loan to Buyer
free and clear of any encumbrance, equity, participation interest, lien, pledge,
charge, claim or security interest, and has full right and authority subject to
no interest or participation of, or agreement with, any other party, to sell
each Mortgage Loan pursuant to this Agreement and following the sale of each
Mortgage Loan, Buyer will own such Mortgage Loan free and clear of any
encumbrance, equity, participation interest, lien, pledge, charge, claim or
security interest except any such security interest created pursuant to the
terms of this Agreement.
(m) Doing Business. All parties which have had any interest in the Mortgage
Loan, whether as mortgagee, assignee, pledgee or otherwise, are (or, during the
period in which they held and disposed of such interest, were) (i) in compliance
with any and all applicable licensing requirements of the laws of the state
wherein the Mortgaged Property is located, and (ii) either (A) organized under
the laws of such state, (B) qualified to do business in such state,
Schedule 1-4
Page 38
(C) a federal savings and loan association, a savings bank or a national bank
having a principal office in such state, or (D) not doing business in such
state.
(n) Title Insurance. The Mortgage Loan is covered by either (i) an
attorney's opinion of title and abstract of title, the form and substance of
which is acceptable to prudent mortgage lending institutions making mortgage
loans in the area wherein the Mortgaged Property is located or (ii) an ALTA
lender's title insurance policy or other generally acceptable form of policy or
insurance acceptable to Xxxxxx Xxx or Xxxxxxx Mac and each such title insurance
policy is issued by a title insurer acceptable to Xxxxxx Mae or Xxxxxxx Mac and
qualified to do business in the jurisdiction where the Mortgaged Property is
located, insuring Seller, its successors and assigns, as to the first or second
priority lien of the Mortgage, as applicable in the original principal amount of
the Mortgage Loan (or to the extent a Mortgage Note provides for negative
amortization, the maximum amount of negative amortization in accordance with the
Mortgage), subject only to the exceptions contained in clauses (1), (2) and (3)
and, with respect to Second Lien Mortgage Loans, clause (d) of paragraph (i) of
this Part I of Schedule 1, and in the case of adjustable rate Mortgage Loans,
against any loss by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for adjustment to the
Mortgage Interest Rate and Monthly Payment. Where required by state law or
regulation, the Mortgagor has been given the opportunity to choose the carrier
of the required mortgage title insurance. The title policy does not contain any
special exceptions (other than the standard exclusions) for zoning and uses and
has been marked to delete the standard survey exception or to replace the
standard survey exception with a specific survey reading. Seller, its successors
and assigns, are the sole insureds of such lender's title insurance policy, and
such lender's title insurance policy is valid and remains in full force and
effect and will be in force and effect upon the consummation of the transactions
contemplated by this Agreement. No claims have been made under such lender's
title insurance policy, and no prior holder or servicer of the related Mortgage,
including Seller, has done, by act or omission, anything which would impair the
coverage of such Buyer's title insurance policy, including, without limitation,
no unlawful fee, commission, kickback or other unlawful compensation or value of
any kind has been or will be received, retained or realized by any attorney,
firm or other Person, and no such unlawful items have been received, retained or
realized by Seller.
(o) No Defaults. There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event has
occurred which, with the passage of time or with notice and the expiration of
any grace or cure period, would constitute a default, breach, violation or event
of acceleration, and neither Seller nor their predecessors have waived any
default, breach, violation or event of acceleration.
(p) No Mechanics' Liens. There are no mechanics' or similar liens or claims
which have been filed for work, labor or material (and no rights are outstanding
that under the law could give rise to such liens) affecting the Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the Mortgage.
(q) Location of Improvements; No Encroachments. All improvements which were
considered in determining the Appraised Value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of the Mortgaged
Property, and no improvements on adjoining properties encroach upon the
Mortgaged Property. No improvement
Schedule 1-5
Page 39
located on or being part of the Mortgaged Property is in violation of any
applicable zoning and building law, ordinance or regulation.
(r) Origination; Payment Terms. Principal payments on the Mortgage Loan
commenced no more than 60 days after funds were disbursed in connection with the
Mortgage Loan. The Mortgage Interest Rate is adjusted, with respect to
adjustable rate Mortgage Loans, on each Interest Rate Adjustment Date to equal
the Index plus the Gross Margin (rounded up or down to the nearest .125%),
subject to the Mortgage Interest Rate Cap. The Mortgage Note is payable on the
first day of each month in equal monthly installments of principal and interest,
which installments of interest, with respect to adjustable rate Mortgage Loans,
are subject to change due to the adjustments to the Mortgage Interest Rate on
each Interest Rate Adjustment Date, with interest calculated and payable in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than 30 years from commencement of
amortization. The Due Date of the first payment under the Mortgage Note is no
more than 60 days from the date of the Mortgage Note.
(s) Customary Provisions. The Mortgage Note has a stated maturity. The
Mortgage contains customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the realization against
the Mortgaged Property of the benefits of the security provided thereby,
including, (i) in the case of a Mortgage designated as a deed of trust, by
trustee's sale, and (ii) otherwise by judicial foreclosure. Upon default by a
Mortgagor on a Mortgage Loan and foreclosure on, or trustee's sale of, the
Mortgaged Property pursuant to the proper procedures, the holder of the Mortgage
Loan will be able to deliver good and merchantable title to the Mortgaged
Property. Except to the extent same may not be waived under applicable state
law, there is no homestead or other exemption available to a Mortgagor which
would interfere with the right to sell the Mortgaged Property at a trustee's
sale or the right to foreclose the Mortgage. The Mortgage Note and Mortgage are
on forms acceptable to Xxxxxxx Mac or Xxxxxx Mae.
(t) Occupancy of the Mortgaged Property. As of the Purchase Date the
Mortgaged Property is lawfully occupied under applicable law. All inspections,
licenses and certificates required to be made or issued with respect to all
occupied portions of the Mortgaged Property and, with respect to the use and
occupancy of the same, including but not limited to certificates of occupancy
and fire underwriting certificates, have been made or obtained from the
appropriate authorities. Seller has not received notification from any
Governmental Authority that the Mortgaged Property is in material non-compliance
with such laws or regulations, is being used, operated or occupied unlawfully or
has failed to have or obtain such inspection, licenses or certificates, as the
case may be. Seller has not received notice of any violation or failure to
conform with any such law, ordinance, regulation, standard, license or
certificate. With respect to any Mortgage Loan originated with an
"owner-occupied" Mortgaged Property, the Mortgagor represented at the time of
origination of the Mortgage Loan that the Mortgagor would occupy the Mortgaged
Property as the Mortgagor's primary residence.
(u) No Additional Collateral. The Mortgage Note is not and has not been
secured by any collateral except the lien of the corresponding Mortgage and the
security interest of any applicable security agreement or chattel mortgage
referred to in clause (i) above.
Schedule 1-6
Page 40
(v) Deeds of Trust. In the event the Mortgage constitutes a deed of trust,
a trustee, authorized and duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in the
Mortgage, and no fees or expenses are or will become payable by the Custodian or
Buyer to the trustee under the deed of trust, except in connection with a
trustee's sale after default by the Mortgagor.
(w) Transfer of Mortgage Loans. Except with respect to Mortgage Loans
registered with MERS, the Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located.
(x) Due-On-Sale. Except as limited by applicable law, the Mortgage contains
an enforceable provision for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan in the event that the Mortgaged Property
is sold or transferred without the prior written consent of the mortgagee
thereunder.
(y) No Buydown Provisions; No Graduated Payments or Contingent Interests.
Except with respect to Agency Mortgage Loans, the Mortgage Loan does not contain
provisions pursuant to which Monthly Payments are paid or partially paid with
funds deposited in any separate account established by Seller, the Mortgagor, or
anyone on behalf of the Mortgagor, or paid by any source other than the
Mortgagor nor does it contain any other similar provisions which may constitute
a "buydown" provision. The Mortgage Loan is not a graduated payment mortgage
loan and the Mortgage Loan does not have a shared appreciation or other
contingent interest feature.
(z) Consolidation of Future Advances. Any future advances made to the
Mortgagor prior to the Purchase Date have been consolidated with the outstanding
principal amount secured by the Mortgage, and the secured principal amount, as
consolidated, bears a single interest rate and single repayment term. The lien
of the Mortgage securing the consolidated principal amount is expressly insured
as having first lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title evidence
acceptable to Xxxxxx Xxx and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan.
(aa) No Condemnation Proceeding. There have not been any condemnation
proceedings with respect to the Mortgaged Property and Seller has no knowledge
of any such proceedings.
(bb) Collection Practices; Escrow Deposits; Interest Rate Adjustments. The
origination and collection practices used by the originator, each servicer of
the Mortgage Loan and Seller with respect to the Mortgage Loan have been in all
respects in compliance with Accepted Servicing Practices, applicable laws and
regulations, and have been in all respects legal and proper. With respect to
escrow deposits and Escrow Payments, (other than with respect to each Second
Lien Mortgage Loan and for which the mortgagee under the first lien is
collecting Escrow Payments) all such payments are in the possession of, or under
the control of, Seller and there exist no deficiencies in connection therewith
for which customary arrangements for repayment thereof have not been made. All
Escrow Payments have been collected in full compliance with state and federal
law. An escrow of funds is not prohibited by applicable law
Schedule 1-7
Page 41
and has been established in an amount sufficient to pay for every item that
remains unpaid and has been assessed but is not yet due and payable. No escrow
deposits or Escrow Payments or other charges or payments due Seller have been
capitalized under the Mortgage or the Mortgage Note. All Mortgage Interest Rate
adjustments have been made in strict compliance with state and federal law and
the terms of the related Mortgage Note. Any interest required to be paid
pursuant to state, federal and local law has been properly paid and credited.
(cc) Conversion to Fixed Interest Rate. Except as allowed by Xxxxxx Mae or
Xxxxxxx Mac or otherwise as expressly approved in writing by Buyer, with respect
to adjustable rate Mortgage Loans, the Mortgage Loan is not convertible to a
fixed interest rate Mortgage Loan.
(dd) Other Insurance Policies. No action, inaction or event has occurred
and no state of facts exists or has existed that has resulted or will result in
the exclusion from, denial of, or defense to coverage under any applicable
special hazard insurance policy, PMI Policy or bankruptcy bond, irrespective of
the cause of such failure of coverage. In connection with the placement of any
such insurance, no commission, fee, or other compensation has been or will be
received by either Seller or by any officer, director, or employee of Seller or
any designee of Seller or any corporation in which Seller or any officer,
director, or employee had a financial interest at the time of placement of such
insurance.
(ee) Soldiers' and Sailors' Civil Relief Act. The Mortgagor has not
notified Seller, and Seller has no knowledge, of any relief requested or allowed
to the Mortgagor under the Soldiers' and Sailors' Civil Relief Act of 1940.
(ff) Appraisal. The Mortgage File contains an appraisal of the related
Mortgaged Property signed prior to the approval of the Mortgage Loan application
by a qualified appraiser, duly appointed by Seller, who had no interest, direct
or indirect in the Mortgaged Property or in any loan made on the security
thereof, and whose compensation is not affected by the approval or disapproval
of the Mortgage Loan, and the appraisal and appraiser both satisfy the
requirements of Xxxxxx Mae or Xxxxxxx Mac and Title XI of the Federal
Institutions Reform, Recovery, and Enforcement Act of 1989 as amended and the
regulations promulgated thereunder, all as in effect on the date the Mortgage
Loan was originated.
(gg) Disclosure Materials. The Mortgagor has executed a statement to the
effect that the Mortgagor has received all disclosure materials required by
applicable law with respect to the making of adjustable rate mortgage loans, and
Seller maintains such statement in the Mortgage File.
(hh) Construction or Rehabilitation of Mortgaged Property. No Mortgage Loan
was made in connection with the construction or rehabilitation of a Mortgaged
Property or facilitating the trade-in or exchange of a Mortgaged Property that
was held or originated by Seller or the originator.
(ii) No Defense to Insurance Coverage. No action has been taken or failed
to be taken, no event has occurred and no state of facts exists or has existed
on or prior to the Purchase Date (whether or not known to Seller on or prior to
such date) which has resulted or will result in
Schedule 1-8
Page 42
an exclusion from, denial of, or defense to coverage under any private mortgage
insurance (including, without limitation, any exclusions, denials or defenses
which would limit or reduce the availability of the timely payment of the full
amount of the loss otherwise due thereunder to the insured) whether arising out
of actions, representations, errors, omissions, negligence, or fraud of Seller,
the related Mortgagor or any party involved in the application for such
coverage, including the appraisal, plans and specifications and other exhibits
or documents submitted therewith to the insurer under such insurance policy, or
for any other reason under such coverage, but not including the failure of such
insurer to pay by reason of such insurer's breach of such insurance policy or
such insurer's financial inability to pay.
(jj) Capitalization of Interest. The Mortgage Note does not by its terms
provide for the capitalization or forbearance of interest.
(kk) No Equity Participation. No document relating to the Mortgage Loan
provides for any contingent or additional interest in the form of participation
in the cash flow of the Mortgaged Property or a sharing in the appreciation of
the value of the Mortgaged Property. The indebtedness evidenced by the Mortgage
Note is not convertible to an ownership interest in the Mortgaged Property or
the Mortgagor and Seller has not financed nor does it own directly or
indirectly, any equity of any form in the Mortgaged Property or the Mortgagor.
(ll) Proceeds of Mortgage Loan. The proceeds of the Mortgage Loan have not
been and shall not be used to satisfy, in whole or in part, any debt owed or
owing by the Mortgagor to Seller or any Affiliate or correspondent of Seller,
except in connection with a refinanced Mortgage Loan; provided, however, that no
such refinanced Mortgage Loan shall have been originated pursuant to a
streamlined mortgage loan refinancing program.
(mm) Origination Date. The origination date is no earlier than thirty (30)
days prior to the related Purchase Date.
(nn) No Exception. The Custodian has not noted any material exceptions on a
Mortgage Loan Schedule and Exception Report with respect to the Mortgage Loan
which would materially adversely affect the Mortgage Loan or Buyer's interest in
the Mortgage Loan.
(oo) Mortgage Submitted for Recordation. The Mortgage either has been or
will promptly be submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is located.
(pp) Documents Genuine. Such Purchased Mortgage Loan and all accompanying
collateral documents are complete and authentic and all signatures thereon are
genuine. Such Purchased Mortgage Loan is a "closed" loan fully funded by Seller
and held in Seller's name.
(qq) Bona Fide Loan. Such Purchased Mortgage Loan arose from a bona fide
loan, complying in all material aspects with all applicable State and Federal
laws and regulations, to persons having legal capacity to contract and is not
subject to any defense, set-off or counterclaim.
Schedule 1-9
Page 43
(rr) Other Encumbrances. To the best of Seller's knowledge, any property
subject to any security interest given in connection with such Purchased
Mortgage Loan is not subject to any other encumbrances other than a stated first
mortgage, if applicable, and encumbrances which may be allowed under the
Underwriting Guidelines.
(ss) Description. Each Purchased Mortgage Loan conforms to the description
thereof as set forth on the related Mortgage Loan Schedule and Exception Report
delivered to the Custodian and Buyer and title exceptions permitted in subclause
(n) hereof.
(tt) Located in U.S. No collateral (including, without limitation, the
related real property and the dwellings thereon and otherwise) relating to a
Purchased Mortgage Loan is located in any jurisdiction other than in one of the
fifty (50) states of the United States of America or the District of Columbia.
(uu) Underwriting Guidelines. Each Purchased Mortgage Loan has been
originated in accordance with the Underwriting Guidelines (including all
supplements or amendments thereto) previously provided to Buyer.
(vv) Committed Mortgage Loans. Each Committed Mortgage Loan is covered by a
Take-out Commitment, does not exceed the availability under such Take-out
Commitment (taking into consideration mortgage loans which have been purchased
by the respective Take-out Investor under the Take-out Commitment and mortgage
loan which Seller has identified to Buyer as covered by such Take-out
Commitment) and conforms to the requirements and the specifications set forth in
such Take-out Commitment and the related regulations, rules, requirements and/or
handbooks of the applicable Take-out Investor and is eligible for sale to and
insurance or guaranty by, respectively the applicable Take-out Investor and
applicable insurer. Each Take-out Commitment is a legal, valid and binding
obligation of each Seller enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(ww) Primary Mortgage Guaranty Insurance. Each Mortgage Loan is insured as
to payment defaults by a policy of primary mortgage guaranty insurance in the
amount required where applicable, and by an insurer approved, by the applicable
Take-out Investor, if applicable, and all provisions of such primary mortgage
guaranty insurance have been and are being complied with, such policy is in full
force and effect, and all premiums due thereunder have been paid. Each Mortgage
Loan which is represented to Buyer to have, or to be eligible for, FHA insurance
is insured, or is eligible to be insured, pursuant to the National Housing Act.
Each Mortgage Loan which is represented by Seller to be guaranteed, or to be
eligible for guaranty, by the VA is guaranteed, or eligible to be guaranteed,
under the provisions for Chapter 37 of Title 38 of the United States Code. As to
each FHA insurance certificate or each VA guaranty certificate, Seller has
complied with applicable provisions of the insurance for guaranty contract and
federal statutes and regulations, all premiums or other charges due in
connection with such insurance or guarantee have been paid, there has been no
act omission which would or may invalidate any such insurance or guaranty, and
the insurance or guaranty is, or when issued, will be, in full force and effect
with respect to each Mortgage Loan. There are no defenses, counterclaims, or
rights of setoff affecting the Mortgage Loans or affecting the validity or
Schedule 1-10
Page 44
enforceability of any private mortgage insurance or FHA insurance applicable to
the Mortgage Loans or any VA guaranty with respect to the Mortgage Loans.
(xx) Predatory Lending Regulations; High Cost Loans. None of the Mortgage
Loans are classified as (a) "high cost" loans under the Home Ownership and
Equity Protection Act of 1994 or (b) "high cost," "threshold," or "predatory"
loans under any other applicable state, federal or local law.
(yy) Wet-Ink Mortgage Loans. With respect to each Mortgage Loan that is a
Wet-Ink Mortgage Loan, the Settlement Agent has been instructed in writing by
Seller to hold the related Mortgage Loan Documents as agent and bailee for Buyer
or Buyer agent and to promptly forward such Mortgage Loan Documents in
accordance with the provisions of the Custodial Agreement and the Escrow
Instruction Letter.
(zz) FHA Mortgage Insurance; VA Loan Guaranty. With respect to the FHA
Loans, the FHA Mortgage Insurance Contract is in full force and effect and there
exists no impairment to full recovery without indemnity to the Department of
Housing and Urban Development or the FHA under FHA Mortgage Insurance. With
respect to the VA Loans, the VA Loan Guaranty Agreement is in full force and
effect to the maximum extent stated therein. All necessary steps have been taken
to keep such guaranty or insurance valid, binding and enforceable and each of
such is the binding, valid and enforceable obligation of the FHA and the VA,
respectively, to the full extent thereof, without surcharge, set-off or defense.
Each FHA Loan and VA Loan was originated in accordance with the criteria of an
Agency for the purchase of such Mortgage Loans.
Schedule 1-11
Page 45
Annex I
Buyer Acting as Agent
This Annex I forms a part of the Master Repurchase Agreement dated as of
March 1, 2002 (the "Agreement") among Credit Suisse First Boston Mortgage
Capital LLC, and Cresleigh Financial Services, LLC. This Annex I sets forth the
terms and conditions governing all transactions in which a party selling assets
or buying assets, as the case may be ("Agent"), in a Transaction is acting as
agent for one or more third parties (each, a "Principal"). Capitalized terms
used but not defined in this Annex I shall have the meanings ascribed to them in
the Agreement.
1. Additional Representations. Agent hereby makes the following
representations, which shall continue during the term of any Transaction:
Principal has duly authorized Agent to execute and deliver the Agreement on its
behalf, has the power to so authorize Agent and to enter into the Transactions
contemplated by the Agreement and to perform the obligations of each Seller or
Buyer, as the case may be, under such Transactions, and has taken all necessary
action to authorize such execution and delivery by Agent and such performance by
it.
2. Identification of Principals. Agent agrees (a) to provide the other
party, prior to the date on which the parties agree to enter into any
Transaction under the Agreement, with a written list of Principals for which it
intends to act as Agent (which list may be amended in writing from time to time
with the consent of the other party), and (b) to provide the other party, before
the close of business on the next business day after orally agreeing to enter
into a Transaction, with notice of the specific Principal or Principals for whom
it is acting in connection with such Transaction. If (i) Agent fails to identify
such Principal or Principals prior to the close of business on such next
business day or (ii) the other party shall determine in its sole discretion that
any Principal or Principals identified by Agent are not acceptable to it, the
other party may reject and rescind any Transaction with such Principal or
Principals, return to Agent any Purchased Assets or portion of the Cash Purchase
Price, as the case may be, previously transferred to the other party and refuse
any further performance under such Transaction, and Agent shall immediately
return to the other party any portion of the Cash Purchase Price or Purchased
Assets, as the case may be, previously transferred to Agent in connection with
such Transaction; provided, however, that (A) the other party shall promptly
(and in any event within one business day) notify Agent of its determination to
reject and rescind such Transaction and (B) to the extent that any performance
was rendered by any party under any Transaction rejected by the other party,
such party shall remain entitled to any Price Differential or other amounts that
would have been payable to it with respect to such performance if such
Transaction had not been rejected. The other party acknowledges that Agent shall
not have any obligation to provide it with confidential information regarding
the financial status of its Principals; Agent agrees, however, that it will
assist the other party in obtaining from Agent's Principals such information
regarding the financial status of such Principals as the other party may
reasonably request.
3. Limitation of Agent's Liability. The parties expressly acknowledge
that if the representations of Agent under the Agreement, including this Annex
I, are true and correct in all material respects during the term of any
Transaction and Agent otherwise complies with the provisions of this Annex I,
then (a) Agent's obligations under the Agreement shall not include a guarantee
of performance by its Principal or Principals and (b) the other party's remedies
shall not include a right of setoff in respect of rights or obligations, if any,
of Agent arising in other transactions in which Agent is acting as principal.
4. Multiple Principals.
(a) In the event that Agent proposes to act for more than one Principal
hereunder, Agent and the other party shall elect whether (i) to treat
Transactions under the Agreement as transactions entered into on
behalf of separate Principals or (ii) to aggregate such Transactions
as if they were transactions by a single Principal. Failure to make
such an election in writing shall be deemed an election to treat
Transactions under the Agreement as transactions on behalf of separate
Principals.
(b) In the event that Agent and the other party elect (or are deemed to
elect) to treat Transactions under the Agreement as transactions on
behalf of separate Principals, the parties agree that (i) Agent will
provide the other party, together with the notice described in Section
2(b) of this Annex I, notice specifying the portion of each
Transaction allocable to the account of each of the Principals for
which it is acting (to the extent that any such Transaction is
allocable to the account of more than one Principal); (ii) the portion
of any individual Transaction allocable to each Principal shall be
deemed a separate Transaction under the Agreement; (iii) the margin
maintenance obligations of Seller under Section 6(a) of the Agreement
shall be determined on a Transaction-by-Transaction basis (unless the
parties agree to determine such obligations on a
Principal-by-Principal basis); and (iv) Buyer's and Seller's remedies
under the Agreement upon the occurrence of an Event of Default shall
be determined as if Agent had entered into a separate Agreement with
the other party on behalf of each of its Principals.
(c) In the event that Agent and the other party elect to treat
Transactions under the Agreement as if they were transactions by a
single Principal, the parties agree that (i) Agent's notice under
Section 2(b) of this Annex I need only identify the names of its
Principals but not the portion of each Transaction allocable to each
Principal's account; (ii) the margin maintenance obligations of
Page 45
Seller's under Section 6(a) of the Agreement shall, subject to any
greater requirement imposed by applicable law, be determined on an
aggregate basis for all Transactions entered into by Agent on behalf
of any Principal; and (iii) Buyer's and Seller's remedies upon the
occurrence of an Event of Default shall be determined as if all
Principals were a single Seller or Buyer, as the case may be.
(d) Notwithstanding any other provision of the Agreement (including,
without limitation, this Annex I), the parties agree that any
Transactions by Agent on behalf of an employee benefit plan under
ERISA shall be treated as Transactions on behalf of separate
Principals in accordance with Section 4(b) of this Annex I (and all
margin maintenance obligations of the parties shall be determined on a
Transaction-by-Transaction basis).
5. Interpretation of Terms. All references to "Seller" or "Buyer", as the
case may be, in the Agreement shall, subject to the provisions of this Annex I
(including, among other provisions, the limitations on Agent's liability in
Section 3 of this Annex I), be construed to reflect that (i) each Principal
shall have, in connection with any Transaction or Transactions entered into by
Agent on its behalf, the rights, responsibilities, privileges and obligations of
a "Seller" or "Buyer", as the case may be, directly entering into such
Transaction or Transactions with the other party under the Agreement, and (ii)
Agent's Principal or Principals have designated Agent as their sole agent for
performance of Seller's obligations to Buyer or Buyer's obligations to Seller,
as the case may be, and for receipt of performance by Buyer of its obligations
to Seller or Seller of its obligations to Buyer, as the case may be, in
connection with any Transaction or Transactions under the Agreement (including,
among other things, as Agent for each Principal in connection with transfers of
Securities, cash or other property and as agent for giving and receiving all
notices under the Agreement). Both Agent and its Principal or Principals shall
be deemed "parties" to the Agreement and all references to a "party" or "either
party" in the Agreement shall be deemed revised accordingly.
Page 46
Annex II
Structuring Fee Schedule
The Periodic Fee for each calendar month shall be an amount equal to the
product of (x) 0.05% per annum and (y) the Maximum Aggregate Cash Purchase
Price.
Page 47
Annex III
Non-Utilization Fee Formula
The Non-Utilization Fee for each calendar month shall be an amount equal to
the product of (x) 0.125% per annum and (y) the excess, if any, of (I) 50% of
the Maximum Aggregate Cash Purchase Price over (II) the average daily balance of
the Purchased Mortgage Loans during such calendar month.
In the event that the Buyer fails to enter into one or more Transactions
for any reason other than the failure of the Seller to satisfy the conditions
precedent listed in Section 10 hereof (such Transaction, a "Declined
Transaction"), the non-utilization fee will be recalculated, for the period of
time from and after the date of the request for such Declined Transaction up to
but not including the date, if any, on which Buyer enters into a Transaction
with the Seller, based upon an amount equal to the product of (x) 0.125% per
annum and (y) the excess, if any, of (I) the difference between (A) 50% of the
Maximum Aggregate Cash Purchase Price minus (B) the amount of the Cash Purchase
Price requested for each such Declined Transaction over (II) the average daily
Cash Purchase Price of the Purchased Mortgage Loans during such calendar month.
At such time that Buyer enters into a subsequent Transaction with the Seller,
the nonutilization fee will be calculated using the formula set forth in the
preceding paragraph.
Page 48
EXHIBIT A
FORM OF TRANSACTION REQUEST
[Date]
Credit Suisse First Boston Mortgage Capital LLC
[Address]
Attention: ________________
Re: Master Repurchase Agreement dated as of Xxxxx 0, 0000 (xxx "Xxxxxx
Xxxxxxxxxx Agreement") by and among Cresleigh Financial Services, LLC, and
Credit Suisse First Boston Mortgage Capital LLC
Cresleigh Financial Services, LLC, hereby requests that Credit Suisse First
Boston Mortgage Capital LLC ("CSFBMCL") enter into a Transaction with respect to
the Mortgage Loans listed on the Mortgage Loan Schedule and Exception Report
attached hereto on Attachment 1 and as set forth below, pursuant to the Master
Repurchase Agreement.
TOTAL NUMBER OF MORTGAGE ___ Mortgage Loans - (See Mortgage Loan
LOANS Schedule and Exception Report)
ORIGINAL PRINCIPAL AMOUNT OF
MORTGAGE LOANS: $
CURRENT PRINCIPAL AMOUNT OF
MORTGAGE LOANS: $
PROPOSED CASH PURCHASE PRICE: $
CASH PURCHASE PRICE INCREASE: $
AGGREGATE CASH PURCHASE
PRICE: $
PROPOSED PURCHASE DATE:
The Master Repurchase Agreement is incorporated by reference into this
Transaction Request and is made a part hereof as if it were fully set forth
herein. (All capitalized terms used herein but not defined herein shall have the
meanings specified in the Master Repurchase Agreement.)
[Name]
By:_______________________________________
Name:
Title:
[wire instructions]
Page 49
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[Date]
Cresleigh Financial Services, LLC
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx XX 00000
Attention: Xxxxx Royal, CFO
Credit Suisse First Boston Mortgage Capital LLC ("CSFBMCL") is pleased to
confirm your sale and our purchase of the Mortgage Loans described below and on
the attached Mortgage Loan Schedule and Exception Report pursuant to the Master
Repurchase Agreement dated as of Xxxxx 0, 0000 (xxx "Xxxxxx Xxxxxxxxxx
Agreement") by and among Cresleigh Financial Services, LLC, and Credit Suisse
First Boston Mortgage Capital LLC under the following terms and conditions:
--------------------------------------------------------------------------------
Market Value: $
--------------------------------------------------------------------------------
Current Principal Amount of Mortgage Loans: $
--------------------------------------------------------------------------------
Aggregate Cash Purchase Price: $
--------------------------------------------------------------------------------
Purchase Date:
--------------------------------------------------------------------------------
Repurchase Date:
--------------------------------------------------------------------------------
Pricing Rate:
--------------------------------------------------------------------------------
ADDITIONAL INFORMATION:
--------------------------------------------------------------------------------
Aggregate Cash Purchase Price (date): $
--------------------------------------------------------------------------------
Less Previous Aggregate Cash Purchase Price: $
-------------------------------------------------------------------------------
Less Price Differential due on (date): $
--------------------------------------------------------------------------------
Net funds due [CSFB]/[Name] on (date): $
--------------------------------------------------------------------------------
The Master Repurchase Agreement is incorporated by reference into this
Transaction Confirmation, is made a part hereof as if it were fully set forth
herein and is extended hereby until all amounts due in connection with this
Transaction are paid in full.
All capitalized terms used herein but not defined herein shall have the meanings
specified in the Master Repurchase Agreement.
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:____________________________________
Name:
Title:
CRESLEIGH FINANCIAL SERVICES, LLC
By:____________________________________
Name:
Title:
Page 50
EXHIBIT C
MORTGAGE LOAN SCHEDULE AND EXCEPTION REPORT
MORTGAGE LOAN CHARACTERISTICS
1. Seller's Mortgage Loan identifying numbers;
2. the Mortgagor's and Co-Mortgagor's name;
3. the street address of the Mortgaged Property including the city, state,
county, and the zip code;
4. a code indicating whether the Mortgaged Property is a single family
residence, a 2-4 family dwelling, a PUD, a townhouse or a unit in a
high-rise or low-rise condominium project;
5. a code indicating the type of Mortgage Loan (e.g. Alt-A Mortgage Loan,
Wet-Ink Mortgage Loan, etc.)
6. the number of units for all Mortgaged Properties;
7. a code indicating whether the loan is an adjustable rate, fixed rate or
balloon Mortgage Loan;
8. a code indicating whether the loan is a conventional Mortgage Loan;
9. a code indicating the lien status of the Mortgage Loan;
10. the loan-to-value ratio at origination;
11. the combined loan-to-value ratio at origination, if applicable;
12. the Mortgage Interest Rate at the time of origination;
13. the loan approval/commitment date;
14. the original principal amount of the Mortgage Loan;
15. the Mortgage Loan purpose type;
16. the Mortgagor's and Co-Mortgagor's FICO score;
17. Mortgagor Social Security Number; and
18. co-Mortgagor Social Security Number.
Page 51
EXHIBIT D
OFFICER'S COMPLIANCE CERTIFICATE
I, ___________________, do hereby certify that I am duly elected, qualified
and authorized officer of Cresleigh Financial Services, LLC ("Seller"). This
Certificate is delivered to you in connection with Section 17b(2) of the Master
Repurchase Agreement dated as of March 1, 2002, among Seller and Credit Suisse
First Boston Mortgage Capital LLC (the "Agreement"). I hereby certify that, as
of the date of the financial statements attached hereto and as of the date
hereof, Seller is and has been in compliance with all the terms of the Agreement
and, without limiting the generality of the foregoing, I certify that:
(i) Adjusted Net Worth. Seller has maintained an Adjusted Net Worth of
at least the sum of $5,000,000.
(ii) Indebtedness to Adjusted Net Worth Ratio. Seller's ratio of
Indebtedness to Adjusted Net Worth has not exceeded 25:1.
(iii) Seller or its Affiliate has maintained, for Seller and its
Subsidiaries, insurance coverage with respect to employee dishonesty,
forgery or alteration, theft, disappearance and destruction, robbery and
safe burglary, property (other than money and securities) and computer
fraud or an aggregate amount of at least $_____________. The actual amount
of such coverage is $_____________.
(vi) Seller has performed the documentation procedures required by its
operational guidelines with respect to endorsements and assignments,
including the recordation of assignments, or has verified that such
documentation procedures have been performed by a prior holder of such
Mortgage Loan.
(vii) Seller has observed or performed in all material respects all of
its covenants and other agreements, and satisfied every condition,
contained in the Agreement and the other Repurchase Documents to be
observed, performed and satisfied by it.
(viii) No Default or Event of Default has occurred or is continuing.
[If any Default or Event of Default has occurred and is continuing, the
Seller shall describe the same in reasonable detail and describe the action
the Seller has taken or proposes to take with respect thereto.]
(ix) Attached hereto as Schedule 1 is a true and correct list of all
Mortgage Loans purchased by Buyer and held by Custodian pending repurchase.
IN WITNESS WHEREOF, I have set my hand this _____ day of ________, ________.
By:____________________________________
Name: _________________________________
Title: ________________________________
Page 52
[Schedule 1]
[to Officer's Certificate]
Page 53
EXHIBIT E
[RESERVED]
Page 54
EXHIBIT F
FORM OF OPINION OF SELLER'S COUNSEL
_________, ____
Credit Suisse First Boston Mortgage Capital LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Cresleigh Financial Services LLC (the "Seller") in
connection with the sale and repurchase by Seller of certain loans (the
"Mortgage Loans") purchased from time to time (each such date, a "Purchase
Date") by Credit Suisse First Boston Mortgage Capital LLC (the "Buyer") pursuant
to a Master Repurchase Agreement, dated as of March 1, 2002, among Seller, and
Buyer (the "Master Repurchase Agreement"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Master Repurchase
Agreement.
Page 55
We have acted as counsel to Seller in connection with the preparation, execution
and delivery of, and the initial purchase of Mortgage Loans made under, the
Master Repurchase Agreement.
In connection with rendering this opinion, we have examined the following
documents and such other documents as we have deemed necessary or advisable:
a. The Program Agreements;
b. The organizational documents of Seller;
c. The certified Consents of the Officer of Seller relating to the transactions
provided for in the Program Agreements;
d. A copy of a UCC-1 financing statement relating to the Purchased Mortgage
Loans executed by Seller as debtor naming Buyer as secured party, which UCC-1
financing Statement will be filed under the Uniform Commercial Code as in effect
in the State of Delaware with the office of the Secretary of the State of
Delaware (the "Filing Office") on or about ________ __, 20__ (the "Form UCC-1");
e. The reports attached hereto as Exhibit A (the "Search Reports"), which set
forth the results of examination conducted by [Federal Research Corporation] of
all currently indexed UCC-1 financing statements naming the Company as debtor
that are on file in the Filing Office and the Office of the Secretary of the
State of Delaware;
f. Good standing certificates, as of a recent date, for Seller from each of the
States listed on Schedule 1 attached hereto; and
g. The certificates, letters and opinions required to be furnished by Seller and
others in connection with the execution of the Program Agreements, and the
additional certificates, letter and documents delivered by or on behalf of such
parties concurrently herewith.
For purposes of the opinions expressed below, we have assumed the authenticity
of all documents submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to the
originals of all documents.
Based solely upon the foregoing, we are of the opinion that:
1. Seller is a limited liability company, duly organized, validly existing and
in good standing under the laws of the State of Delaware, and has the corporate
power and authority to own its properties and transact the business in which it
is engaged. Seller is duly qualified as a foreign [[ ]] to transact business in,
and is in good standing under, the laws of each state in which a mortgaged
property is located or is otherwise exempt under applicable law from such
qualification. The principal place of business of Seller is located at
___________.
2. Seller has the power to engage in the transactions contemplated by the
Program Agreements, and has all requisite power, authority and legal right to
execute and deliver the Program Agreements, to transfer and deliver the Mortgage
Loans and to perform and observe the terms and conditions of the Program
Agreements.
3. The Program Agreements have been duly and validly authorized, executed and
delivered by Seller, and are valid, legal and binding agreements, enforceable
against Seller in accordance with their respective terms, subject to the effect
of bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally, none of
which will materially interfere with the realization of the benefits provided
thereunder or with Buyer's ownership of the Mortgage Loans.
4. No consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance by Seller
of, or compliance by such entity with, the Program Agreements, or the transfer
of the Mortgage Loans or the consummation of the transactions contemplated by
the Program Agreements.
5. Neither the transfer or delivery of the Mortgage Loans, nor the consummation
of any other of the transactions contemplated in the Program Agreements, nor the
fulfillment of the terms of the Program Agreements will result in a breach of or
constitutes or will constitute a default under (a) the charter or by-laws of
either of Seller, or the terms of any material indenture or other agreement or
instrument to which Seller is a party or by which it is bound or to which it is
subject, (b) any contractual or legal restriction contained in any indenture,
mortgage, deed of trust, agreement, instrument or other similar document to
which Seller is a party or by which it is bound or to which it is subject, or
(c) any statute or order, rule, regulation, writ, injunction or decree of any
court, governmental authority or regulatory body to which Seller or any of its
properties is subject or by which it is bound.
Page 56
6. There are no actions, suits, proceedings or investigations pending or, to the
best of our knowledge, threatened against either Seller that, in our judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties or
assets of either Seller or in any material impairment of the right or ability of
either Seller to carry on its business substantially as now conducted or in any
material liability on the part of either Seller that would draw into question
the validity of the Program Agreements, or of any action taken or to be taken in
connection with the transactions contemplated thereby, or that would be likely
to impair materially the ability of either Seller to perform under the terms of,
the Program Agreements.
7. The conveyance of each Mortgage Loan as and in the manner contemplated by the
Program Agreements is sufficient fully to transfer to Buyer all right, title and
interest of Seller thereto as owner, noteholder and mortgagee.
8. The Repurchase Agreement is effective to create, in favor of Buyer, either a
valid sale of the Purchased Mortgage Loans to Buyer or a valid security interest
under the Uniform Commercial Code in all of the right, title and interest of
Seller in, to and under the Purchased Mortgage Loans as collateral security for
the payment of Seller's obligations under the Repurchase Agreement, except that
(a) such security interests will continue in Purchased Mortgage Loans after its
sale, exchange or other disposition only to the extent provided in Section 9-315
of the Uniform Commercial Code, (b) the security interests in Purchased Mortgage
Loans in which Seller acquires rights after the commencement of a case under the
Bankruptcy Code in respect of Seller may be limited by Section 552 of the
Bankruptcy Code.
9. When the Mortgage Notes are delivered to the Custodian, endorsed in blank by
a duly authorized officer of Seller, the security interest referred to in
Section 9 above in the Mortgage Notes will constitute a fully perfected first
priority security interest in all right, title and interest of Seller therein.
10. (a) Upon the filing of financing statements on Form UCC-1 naming Buyer as
"Secured Party" and Seller as "Debtor", and describing the Purchased
Mortgage Loans, in the jurisdictions and recording offices listed on
Schedule 1 attached hereto, the security interests referred to in
Section 9 above will constitute fully perfected security interests
under the Uniform Commercial Code in all right, title and interest of
Seller in, to and under such Purchased Mortgage Loans, which can be
perfected by filing under the Uniform Commercial Code.
(b) The UCC Search Report sets forth the proper filing offices and the
proper debtors necessary to identify those Persons who have on file in
the jurisdictions listed on Schedule 1 financing statements covering
the Purchased Mortgage Loans as of the dates and times specified on
Schedule 2. The UCC Search Report identifies no Person who has filed
in any Filing Office a financing statement describing the Repurchased
Assets prior to the effective dates of the UCC Search Report.
11. Seller is not an "investment company", or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
Very truly yours,
______________________________________
Page 57
EXHIBIT G
UNDERWRITING GUIDELINES
Page 58
EXHIBIT H
AUTHORIZED SIGNATORIES
Cresleigh Financial Services, LLC
-------------------------------------------------
Page 59
EXHIBIT I
CORPORATE RESOLUTIONS OF SELLER
Action of the Board of Directors
Without a Meeting Pursuant to
Section ______ of ________
The undersigned, being the directors of [______________________], a [national]
banking [association] [corporation] (the "Seller"), do hereby consent to the
taking of the following action without a meeting and do hereby adopt the
following resolutions by written consent pursuant to Section ____________ of
______________ of the State of __________:
WHEREAS, it is in the best interests of the Seller to transfer from time to
time to Buyer Mortgage Loans against the transfer of funds by Buyer, with a
simultaneous agreement by Buyer to transfer to Seller such Mortgage Loans at a
date certain or on demand, against the transfer of funds by Seller pursuant to
the terms of the Repurchase Agreement (as defined below).
NOW, THEREFORE, be it
RESOLVED, that the execution, delivery and performance by the Seller of the
Master Repurchase Agreement (the "Repurchase Agreement ") to be entered into by
the Seller and Credit Suisse First Boston Mortgage Capital LLC, as Buyer,
substantially in the form of the draft dated _________ ___, 200_, attached
hereto as Exhibit A, are hereby authorized and approved and that the [President]
or any [Vice President] (collectively, the "Authorized Officers") of the Seller
be and each of them hereby is authorized and directed to execute and deliver the
Repurchase Agreement to the Buyer with such changes as the officer executing the
same shall approve, his execution and delivery thereof to be conclusive evidence
of such approval;
RESOLVED, that the execution, delivery and performance by the Seller of the
Custodial Agreement (the "Custodial Agreement ") to be entered into by the
Seller, the Buyer and LaSalle Bank, National Association, as custodian (the
"Custodian") substantially in the form of the draft dated _________ __, 200_,
attached hereto as Exhibit B, are hereby authorized and approved and that the
Authorized Officers of the Seller be and each of them hereby is authorized and
directed to execute and deliver the Custodial Agreement to the Buyer and
Custodian with such changes as the officer executing the same shall approve, his
execution and delivery thereof to be conclusive evidence of such approval;
RESOLVED, that the Authorized Officers hereby are, and each hereby is,
authorized to execute and deliver all such aforementioned agreements on behalf
of the Seller and to do or cause to be done, in the name and on behalf of the
Seller, any and all such acts and things, and to execute, deliver and file in
the name and on behalf of the Seller, any and all such agreements, applications,
certificates, instructions, receipts and other documents and instruments, as
such Authorized Officer may deem necessary, advisable or appropriate in order to
carry out the purposes of the foregoing resolutions.
RESOLVED, that the proper officers, agents and counsel of the Seller are,
and each of such officers, agents and counsel is, hereby authorized for and in
the name and on behalf of the Seller to take all such further actions and to
execute and deliver all such other agreements, instruments and documents, and to
make all governmental filings, in the name and on behalf of the Seller and such
officers are authorized to pay such fees, taxes and expenses, as advisable in
order to fully carry out the intent and accomplish the purposes of the
resolutions heretofore adopted hereby.
Dated as of: ___________ ___, 200_
Page 60
EXHIBIT J
SELLER'S TAX IDENTIFICATION NUMBER
Cresleigh Financial Services, LLC: 00-0000000
Page 61
EXHIBIT K
EXISTING INDEBTEDNESS
$90,000,000 Warehouse Facility with Residential Funding Corp.
Page 62
EXHIBIT L
WET INK PROCEDURES
Wet Funding Requirements:
Send e-mail to CSFB by 10:00 (EST) to notify of intent to fund.
Send excel data file(s) to CSFB by 3:00 (EST)
Original document file must be received by the custodian within 7 Business
days.
Page 63
EXHIBIT M
FORM OF ESCROW INSTRUCTION LETTER TO BE PROVIDED BY BORROWER
BEFORE CLOSING
The escrow instruction letter (the "Escrow Instruction Letter") shall also
include the following instruction to the Settlement Agent (the "Escrow Agent"):
Credit Suisse First Boston Mortgage Capital LLC (the "Buyer"), has agreed
to provide funds ("Escrow Funds") to Cresleigh Financial Services LLC, to
finance certain mortgage loans (the "Mortgage Loans") for which you are acting
as Escrow Agent.
You hereby agree that (a) you shall receive such Escrow Funds from Buyer to
be disbursed in connection with this Escrow Instruction Letter, (b) you will
hold such Escrow Funds in trust, without deduction, set-off or counterclaim for
the sole and exclusive benefit of Buyer until such Escrow Funds are fully
disbursed on behalf of Buyer in accordance with the instructions set forth
herein, and (c) you will disburse such Escrow Funds on the date specified for
closing (the "Closing Date") only after you have followed the Escrow Instruction
Letter's requirements with respect to the Mortgage Loans. In the event that the
Escrow Funds cannot be disbursed on the Closing Date in accordance with the
Escrow Instruction Letter, you agree to promptly remit the Escrow Funds to the
Custodian by re-routing via wire transfer the Escrow Funds in immediately
available funds, without deduction, set-off or counterclaim, back to the account
specified in Buyer's incoming wire transfer.
You further agree that, upon disbursement of the Escrow Funds, you will
hold all Mortgage Loan Documents specified in the Escrow Instruction Letter in
escrow as agent and bailee for Buyer, and will forward the Mortgage Loan
Documents and original Escrow Instruction Letter in connection with such
Mortgage Loans by overnight courier (y) to the Custodian within five (5)
Business Days following the date of origination.
You agree that all fees, charges and expenses regarding your services to be
performed pursuant to the Escrow Instruction Letter are to be paid by Seller or
its borrowers, and Buyer shall have no liability with respect thereto.
You represent, warrant and covenant that you are not an affiliate of or
otherwise controlled by Seller, and that you are acting as an independent
contractor and not as an agent of Seller.
The provisions of this Escrow Instruction Letter may not be modified,
amended or altered, except by written instrument, executed by the parties hereto
and Buyer. You understand that Buyer shall act in reliance upon the provisions
set forth in this Escrow Instruction Letter, and that Buyer is an intended third
party beneficiary hereof.
Please acknowledge your receipt and acceptance of the Escrow Instruction
Letter by signing below and immediately returning it, via facsimile, to the
Custodian at facsimile number ( ) ____________, Attention: _____, followed by a
mailed original to: [Custodian address]. In any event, whether or not an Escrow
Instruction Letter is executed by you is received by the Custodian, your
acceptance of the Escrow Funds shall be deemed to constitute your acceptance of
the Escrow Instruction Letter.
Page 64
EXHIBIT N
CUSTODIAL AND BANK FEE SCHEDULE
Deposit/Review Fee $ 10.00 per file
Deposit Fee includes balancing collateral to client electronic data, review to
Custodial Agreement.
Release/Reinstatement Fee $ 5.00 per file
This fee applies to servicing releases and sales.
Cancelled Funding Fee $ 10.00 per file
Overnight Courier Fee at cost
Release Rejection $ 3.00 per reject
Photocopies $1.00 per file pull fee
$0.25 per page copied
Faxes $1.00 per page + file pull fee
Endorsements $0.50 per endorsement
Miscellaneous Expenses At Cost
Miscellaneous expenses include but are not limited to legal fees, postage,
overnight carrier services, supplies etc.
Page 65
EXHIBIT O
FORM OF SERVICER NOTICE
[DATE]
[________________], as Servicer
[ADDRESS]
Attention: ___________
Re: Master Repurchase Agreement, dated as of March 1, 2002 (the
"Repurchase Agreement"), by and between Cresleigh Financial Services,
LLC (the "Seller"), and Credit Suisse First Boston Mortgage Capital
LLC (the "Buyer").
Ladies and Gentlemen:
[___________________] (the "Servicer") is servicing certain mortgage loans for
Seller pursuant to that certain Servicing Agreement between the Servicer and
Seller. Pursuant to the Repurchase Agreement between Buyer and Seller, the
Servicer is hereby notified that Seller has pledged to Buyer certain mortgage
loans which are serviced by Servicer which are subject to a security interest in
favor of Buyer.
Upon receipt of a Notice of Event of Default from Buyer in which Buyer shall
identify the mortgage loans which are then pledged to Buyer under the Repurchase
Agreement (the "Mortgage Loans"), the Servicer shall segregate all amounts
collected on account of such Mortgage Loans, hold them in trust for the sole and
exclusive benefit of Buyer, and remit such collections in accordance with
Buyer's written instructions. Following such Notice of Event of Default,
Servicer shall follow the instructions of Buyer with respect to the Mortgage
Loans, and shall deliver to Buyer any information with respect to the Mortgage
Loans reasonably requested by Buyer.
Notwithstanding any contrary information which may be delivered to the Servicer
by Seller, the Servicer may conclusively rely on any information or Notice of
Event of Default delivered by Buyer, 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 or Notice of Event of Default.
Please acknowledge receipt of this instruction letter by signing in the
signature block below and forwarding an executed copy to Buyer promptly upon
receipt. Any notices to Buyer should be delivered to the following addresses:
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000; Attention: Xx. Xxxx
Xxxxxxxxx and Ms. Xxxxx Xxxxxx; Telephone:; Facsimile:; with a copy to Eleven
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; Attention: Legal Department;
Telephone:; Facsimile:.
Very truly yours,
[____________________]
By:____________________________________
Name:
Title:
ACKNOWLEDGED:
[__________________],
as Servicer
By:_________________________________
Title:
Telephone:
Facsimile:
Page 66
EXHIBIT P
Computer Correction Fee Schedule
$10 per Mortgage Loan
Page 67
