Exhibit 10.4
================================================================================
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
MORTGAGEIT, INC., as seller ("MortgageIT" and a "Seller"), and
MORTGAGEIT HOLDINGS, INC., as seller ("Holdings" and a "Seller", and
together with MortgageIT, the "Sellers")
Dated March 11, 2005
================================================================================
TABLE OF CONTENTS
Page
----
1. Applicability............................................................1
2. Definitions..............................................................1
3. Program; Initiation of Transactions.....................................21
4. Repurchase..............................................................22
5. Price Differential......................................................23
6. Margin Maintenance......................................................24
7. Income Payments.........................................................25
8. Security Interest.......................................................26
9. Payment and Transfer....................................................26
10. Conditions Precedent....................................................26
11. Program; Costs..........................................................29
12. Servicing...............................................................30
13. Representations and Warranties..........................................31
14. Covenants...............................................................37
15. Events of Default.......................................................42
16. Remedies Upon Default...................................................46
17. Reports.................................................................48
18. Repurchase Transactions.................................................51
19. Single Agreement........................................................51
20. Notices and Other Communications........................................52
21. Entire Agreement; Severability..........................................53
22. Non assignability.......................................................53
23. Set-off.................................................................53
-i-
24. Binding Effect; Governing Law; Jurisdiction.............................54
25. No Waivers, Etc.........................................................54
26. Intent..................................................................55
27. Disclosure Relating to Certain Federal Protections......................55
28. Power of Attorney.......................................................56
29. Buyer May Act Through Affiliates........................................56
30. Indemnification; Obligations............................................56
31. Counterparts............................................................57
32. Confidentiality.........................................................57
33. Recording of Communications.............................................58
34. Periodic Fee............................................................58
36. Periodic Due Diligence Review...........................................58
37. Authorizations..........................................................59
38. Acknowledgement Of Anti-Predatory Lending Policies......................59
39. Joint and Several.......................................................59
SCHEDULES
Schedule 1 - Representations and Warranties with Respect to Purchased Mortgage
Loans
Schedule 2 - Authorized Representatives
ANNEXES
Annex I - Buyer Acting as Agent
Annex II - Periodic Fee Schedule
EXHIBITS
Exhibit A - Form of Transaction Request
Exhibit B - Form of Purchase Confirmation
Exhibit C - Form of Mortgage Loan Schedule
-ii-
Exhibit D - Form of Officer's Compliance Certificate
Exhibit E - Form of Guaranty
Exhibit F - Form of Opinion of Seller's and Guarantor's counsel
Exhibit G - Underwriting Guidelines
Exhibit H - Officer's Certificate of the Seller and Corporate Resolutions of
Seller
Exhibit I - Seller's Tax Identification Number
Exhibit J - Existing Indebtedness
Exhibit K - Escrow Instruction Letter
Exhibit L - Custodial and Bank Fee Schedule
Exhibit M - Form of Servicer Notice
-iii-
MASTER REPURCHASE AGREEMENT
This is a MASTER REPURCHASE AGREEMENT, dated as of March 11, 2005,
between MortgageIT, Inc., a New York corporation ("MortgageIT" and a "Seller"),
Mortgageit Holdings, Inc., a Maryland corporation ("Holdings" and a "Seller",
and together with MortgageIT, the "Sellers") and CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC (the "Buyer").
1. APPLICABILITY
From time to time the parties hereto may enter into transactions in
which Sellers agree to transfer to Buyer Mortgage Loans (as hereinafter defined)
against the transfer of funds by Buyer, with a simultaneous agreement by Buyer
to transfer to Sellers such Mortgage Loans at a date certain or on demand,
against the transfer of funds by Sellers. This Agreement is a commitment by
Buyer to engage in the Transactions as set forth herein up to the Maximum
Committed Purchase Price; provided, that the Buyer shall have no commitment to
enter into any Transaction requested which would result in the aggregate
Purchase Price of then outstanding Transactions to exceed the Maximum Committed
Purchase Price. 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 Sellers'
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, for any Person, Net Worth of such
Person plus Subordinated Debt, minus all intangible assets, including
capitalized servicing rights, goodwill, patents, tradenames, trademarks,
copyrights, franchises, any organizational expenses, deferred expenses, prepaid
expenses, prepaid assets, receivables from shareholders, Affiliates or
employees, and any other asset as shown as an intangible asset on the balance
sheet of such Person on a consolidated basis as determined at a particular date
in accordance with GAAP.
"Affiliate" means, with respect to any Person, any "affiliate" of such
Person, as such term is defined in the Bankruptcy Code.
"Aged Loan" means a Mortgage Loan which has been subject to a
Transaction hereunder for a period of greater than 120 days but not greater than
180 days.
"Agency" means Xxxxxxx Mac, Xxxxxx Xxx or GNMA, 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, supplemented or otherwise modified from time to time.
"Alt-A Mortgage Loan" means a first lien Mortgage Loan originated in
accordance with the criteria established by Buyer for Alt-A Mortgage Loans, as
determined by Buyer in its sole discretion and which has a FICO score of at
least 620.
"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 or requested
by Buyer pursuant to Section 17d hereof 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 by Sellers 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.
-2-
"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.
"BPO" means an opinion of the fair market value of a Mortgaged
Property given by a licensed real estate agent or broker which generally
includes three comparable sales and three comparable listings.
"Business Day" means any day other than (A) a Saturday or Sunday and
(B) a public or bank holiday in New York City.
"Buyer" means Credit Suisse First Boston Mortgage Capital LLC, and any
successor or assign 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 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 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 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.
"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.
"Change in Control" means:
(A) any transaction or event as a result of which Holdings ceases to
own, beneficially or of record, 100% of the stock of MortgageIT;
-3-
(B) the sale, transfer, or other disposition of all or substantially
all of either Seller's assets (excluding any such action taken in
connection with any securitization transaction); or
(C) the consummation of a merger or consolidation of either 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 outstanding immediately after such merger,
consolidation or such other reorganization is owned by Persons who
were not stockholders of Seller immediately prior to such merger,
consolidation or other reorganization.
"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 first lien 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, as determined by Buyer in its sole discretion.
"Co-op" means a private, cooperative housing corporation, having only
one class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial purposes
and common areas therein and whose board of directors authorizes the sale of
stock and the issuance of a Proprietary Lease.
"Co-op Corporation" means, with respect to any Co-op Loan, the
cooperative apartment corporation that holds legal title to the related Co-op
Project and grants occupancy rights to units therein to stockholders through
Proprietary Leases or similar arrangements.
"Co-op Lien Search" means a search for (a) federal tax liens,
mechanics' liens, lis pendens, judgments of record or otherwise against (i) the
Co-op Corporation and (ii) the seller of the Co-op Unit, (b) filings Uniform
Commercial Code financing statements and (c) the deed of the Co-op Project into
the Co-op Corporation.
"Co-op Loan" means a Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and collateral assignment of the related Proprietary Lease.
"Co-op Project" means, with respect to any Co-op Loan, all real
property and improvements thereto and rights therein and thereto owned by a
Co-op Corporation including without limitation the land, separate dwelling units
and all common elements.
-4-
"Co-op Shares" means, with respect to any Co-op Loan, the shares of
stock issued by a Co-op Corporation and allocated to a Co-op Unit and
represented by a stock certificates.
"Co-op Unit" means, with respect to any Co-op Loan, a specific unit in
a Co-op Project.
"Credit Limit" means, with respect to each HELOC, the maximum amount
permitted under the terms of the related Credit Line Agreement.
"Credit Line Agreement" means, with respect to each HELOC, the related
home equity line of credit agreement, account agreement and promissory note (if
any) executed by the related Mortgagor and any amendment or modification
thereof.
"CSFBMC Mortgage Loan" means a Mortgage Loan which is the subject of a
Take-out Commitment with Buyer or any Affiliate thereof.
"Custodial Agreement" means the custodial agreement dated as of the
date hereof, among Sellers, Buyer and Custodian as the same may be amended from
time to time.
"Custodial Mortgage Loan Schedule" has the meaning assigned to such
term in the Custodial Agreement.
"Custodian" means Deutsche Bank National Trust Company or such other
party specified by Buyer and agreed to by Sellers, 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.
"Draw" means, with respect to each HELOC, an additional borrowing by
the Mortgagor in accordance with the related Credit Line Agreement.
"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.
"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, Sellers, MERS and MERSCORP, Inc., to the extent applicable as the
same may be amended from time to time.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
-5-
"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 any Seller is a
member.
"Escrow Instruction Letter" means the Escrow Instruction Letter from
the related Seller to the Settlement Agent, in the form of Exhibit K 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 either 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 such 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 hereunder and which is approved by Buyer in its sole discretion;
provided, however, that Sellers shall pay to Buyer a fee of $25 with respect to
any such approval of an Exception Mortgage Loan other than a Wet-Ink Mortgage
Loan and $10 with respect to any such approval of an Exception Mortgage Loan
which is a Wet-Ink Mortgage Loan; and provided, that upon 30 days' notice to the
Sellers, Buyer may change such Exception Mortgage Loan approval fee. Buyer's
approval of a Mortgage Loan as an Exception
-6-
Mortgage Loan shall expire on the earlier of (a) the date set forth by the Buyer
in the written notice that such Mortgage Loan is approved as an Exception
Mortgage Loan (an "Exception Notice") or (b) the occurrence of any additional
event, other than that set forth in the Exception Notice, which would cause the
Mortgage Loan to become ineligible for purchase hereunder. The Pricing Rate,
Market Value, 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)(23)
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 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.
"FICO" means Fair Xxxxx & Co., or any successor thereto.
"Fidelity Insurance" shall mean insurance coverage with respect to
employee errors, omissions, dishonesty, forgery, theft, disappearance and
destruction, robbery and safe burglary, property (other than money and
securities) and computer fraud in an aggregate amount acceptable to Sellers'
regulators.
-7-
"Foreclosed Loan" means a Mortgage Loan, the property securing which
has been foreclosed upon by a Seller.
"Xxxxxxx Mac" means the Federal Home Loan Mortgage Corporation or any
successor thereto.
"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 any 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 keep-well, 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.
"HELOC" means a home equity revolving line of credit secured by a
mortgage, deed of trust or other instrument creating a first or second lien on
the related Mortgaged Property, which lien secures the related line of credit
and (i) that is underwritten in accordance with Sellers' Underwriting Guidelines
and (ii) that either (a) will be sold or securitized by any Seller or (b) is
subject to a Take-Out Commitment.
"High Cost Mortgage Loan" means a Mortgage Loan classified as (a) a
"high cost" loan under the Home Ownership and Equity Protection Act of 1994 or
(b) a "high cost," "threshold," "covered," or "predatory" loan under any other
applicable state, federal or local law (or a similarly classified loan using
different terminology under a law, regulation or ordinance imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage loans
having high interest rates, points and/or fees).
"Holdings" means MortgageIT Holdings, Inc., a Maryland corporation, or
its permitted successors and assigns.
-8-
"Home Equity Mortgage Loan" means a home equity mortgage loan
originated in accordance with the criteria established by Buyer, as determined
by Buyer in its sole discretion.
"Income" means with respect to any Purchased Mortgage Loan at any time
until repurchased by a 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 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 Only Adjustment Date" means, with respect to each Interest
Only Loan, the date, specified in the related Mortgage Note on which the Monthly
Payment will be adjusted to include principal as well as interest.
"Interest Only Loan" shall mean a Mortgage Loan which only requires
payments of interest for a period of time specified in the related Mortgage
Note.
"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 Purchased 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 a 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.
-9-
"Jumbo Mortgage Loan" means an A quality first lien Mortgage Loan
which is not eligible for sale to an Agency.
"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 Purchase Price of Transactions to be
outstanding on such day.
"Lien" means any mortgage, lien, pledge, charge, security interest or
similar encumbrance.
"Loan to Value Ratio" or "LTV" means with respect to any Mortgage
Loan, the ratio of the original outstanding principal amount of the Mortgage
Loan, with respect to a Mortgage Loan other than a HELOC, or the original Credit
Limit, with respect to a HELOC, and, with respect to any Second Lien Mortgage
Loan, the outstanding principal amount of any related first lien as of the date
of origination of such mortgage loan, to the lesser of (a) the Appraised Value
of the related Mortgaged Property at origination or (b) if the Mortgaged
Property was purchased within 12 months of the origination of such Mortgage
Loan, the purchase price of the related Mortgaged Property.
"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, each Seller acknowledges that (a) in the event that a Purchased
Mortgage Loan is not subject to a Take-out Commitment, Buyer may deem the Market
Value for such Mortgage Loan to be no greater than par and (b) the Market Value
of a Purchased Mortgage Loan may be reduced to zero by Buyer if:
(i) a breach of a representation, warranty or covenant made by
either Seller in this Agreement with respect to such Purchased
Mortgage Loan has occurred and is continuing;
(ii) such Purchased Mortgage Loan is a Non-Performing Mortgage
Loan (other than a Repurchased Mortgage Loan);
(iii) such Purchased Mortgage Loan has been released from the
possession of the Custodian under the Custodial Agreement (other than
to a Take-
-10-
out 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 subject to a
Transaction hereunder for a period of greater 180 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) such Purchased Mortgage Loan is no longer acceptable for
purchase by Buyer (or an Affiliate thereof) under any of the flow
purchase or conduit programs for which Seller then has been approved
due to a Requirement of Law relating to consumer credit laws or
otherwise;
(viii) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Aged Loans that are Purchased Mortgage Loans exceeds 15%
of the Maximum Aggregate Purchase Price;
(ix) when the Purchase Price for such Purchased Mortgage Loan is
added to other Purchased Mortgage Loans, the aggregate Purchase Price
of all Second Lien Mortgage Loans (including HELOCs) that are
Purchased Mortgage Loans exceeds $100 million;
(x) when the Purchase Price for such Purchased Mortgage Loan is
added to other Purchased Mortgage Loans, the aggregate Purchase Price
of all Sub-Prime Mortgage Loans that are Purchased Mortgage Loans
exceeds $100 million;
(xi) when the Purchase Price for such Purchased Mortgage Loan is
added to other Purchased Mortgage Loans, the aggregate Purchase Price
of all Wet-Ink Mortgage Loans that are Purchased Mortgage Loans
exceeds 30% of the Maximum Aggregate Purchase Price;
(xii) when the Purchase Price for such Purchased Mortgage Loan is
added to other Purchased Mortgage Loans, the aggregate Purchase Price
of all Repurchased Mortgage Loans that are Purchased Mortgage Loans
exceeds $5 million; or
(xiii) when the Purchase Price for such Purchased Mortgage Loan
is added to other Purchased Mortgage Loans, the aggregate Purchase
Price of all Mortgage Loans that are accompanied by a lost note
affidavit exceeds $1.5 million.
-11-
"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 either Seller or any Affiliate that is
a party to any Program Agreement taken as a whole; (b) a material impairment of
the ability of either 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 either Seller or any
Affiliate that is a party to any Program Agreement.
"Maximum Aggregate Purchase Price" means FOUR HUNDRED MILLION DOLLARS
($400,000,000).
"Maximum Committed Purchase Price" shall mean TWO HUNDRED MILLION
DOLLARS ($200,000,000). All funds made available by Buyer to either Seller under
this Agreement will first be attributed to the Maximum Committed Purchase Price.
For purposes of this Agreement, Mortgage Loans will be allocated first to the
Maximum Committed Purchase Price based on the date on which such Mortgage Loan
becomes subject to this Agreement, commencing from the earliest date to the most
recent date. To the extent that there is availability under the Maximum
Aggregate Purchase Price, but any Mortgage Loans proposed by either Seller for
purchase by Buyer would otherwise exceed the Maximum Committed Purchase Price,
then to the extent that such Maximum Committed Purchase Price would be exceeded,
such Mortgage Loans may be purchased by the Buyer on an uncommitted basis, in
Buyer's sole discretion.
"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/or interest on a Mortgage Loan.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successors
thereto.
"Mortgage" means each mortgage, assignment of rents, security
agreement and fixture filing, or deed of trust, assignment of rents, security
agreement and fixture filing, deed to secure debt, assignment of rents, security
agreement and fixture filing, or similar instrument creating and evidencing a
lien on real property and other property and rights incidental thereto.
"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.
-12-
"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, Repurchased
Mortgage Loan, Exception Mortgage Loan, Jumbo Mortgage Loan, Alt-A Mortgage
Loan, Home Equity Mortgage Loan, Second Lien Mortgage Loan, HELOC, Co-op Loan or
Conforming Mortgage Loan which is a fixed or floating-rate, 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 sixty (60) days prior to the related Purchase
Date.
"Mortgage Loan Documents" means the documents in the related Mortgage
File to be delivered to the Custodian.
"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 either
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 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.
"MortgageIT" means MortgageIT, Inc., a New York corporation, or its
permitted successors and assigns.
"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 3(37) of ERISA to which contributions have been or are required to be
made by a 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.
-13-
"Net Worth" means, with respect to any Person, an amount equal to, on
a consolidated basis, such Person's stockholder 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 Sellers' 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 Sellers' 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 Sellers' 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
greater of (a) the Pricing Rate plus 2% or (b) the Mortgage Interest Rate.
"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 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
-14-
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) 0.75% with respect to Transactions the subject of which are
Conforming Mortgage Loans (other than Wet-Ink Mortgage Loans or
Repurchased Mortgage Loans);
(b) 0.75% with respect to Transactions the subject of which are
Jumbo Mortgage Loans (other than Wet-Ink Mortgage Loans or Repurchased
Mortgage Loans);
(c) 0.80% with respect to Transactions the subject of which are
Alt-A Mortgage Loans (other than Wet-Ink Mortgage Loans or Repurchased
Mortgage Loans);
(d) 0.85% with respect to Transactions the subject of which are
Sub-Prime Mortgage Loans (other than Wet-Ink Mortgage Loans or
Repurchased Mortgage Loans);
(e) 0.85% with respect to Transactions the subject of which are
Wet-Ink Mortgage Loans;
(f) 0.85% with respect to Transactions the subject of which are
Second Lien Mortgage Loans (other than Wet-Ink Mortgage Loans or
Repurchased Mortgage Loans);
(g) 0.85% with respect to Transactions the subject of which are
HELOCs (other than Wet-Ink Mortgage Loans or Repurchased Mortgage
Loans);
(h) 1.25% with respect to Transactions the subject of which are
Repurchased Mortgage Loans;
(i) the rate determined in the sole discretion of Buyer with
respect to Transactions the subject of which are Exception Mortgage
Loans and any other Transactions so identified by the Buyer in
agreeing to enter into a Transaction with respect to such Exception
Mortgage Loan
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 Servicing Agreement, if
any, the Servicer Notice, if any, the Custodial Agreement, this Agreement, the
Electronic Tracking
-15-
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.
"Proprietary Lease" means the lease on a Co-op Unit evidencing the
possessory interest of the owner of the Co-op Shares in such Co-op Unit.
"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 a Seller to Buyer.
"Purchase Price" means the price at which each Purchased Mortgage Loan
is transferred by a Seller to Buyer, which shall equal:
(i) on the Purchase Date, in the case of Purchased Mortgage Loans
(other than, in all cases, Mortgage Loans that are Repurchased Mortgage Loans)
the lesser of either:
(A) the product of (1) the Market Value of such Purchased Mortgage
Loan multiplied by (2) the applicable Purchase Price Percentage for such
Mortgage Loan; or
(B) (x) in the case of Purchased Mortgage Loans other than CSFBMC
Mortgage Loans, the product of (1) the outstanding principal amount thereof as
set forth in the Mortgage Loan Schedule multiplied by (2) the applicable
Purchase Price Percentage for such Mortgage Loan and (y) in the case of CSFBMC
Mortgage Loans, the outstanding principal amount thereof as set forth in the
Mortgage Loan Schedule; or
(ii) on the Purchase Date, in the case of Purchased Mortgage Loans
which are Repurchased Mortgage Loans, the lesser of (1) the product of (A)(x)
for the first 90 days in which the Purchased Mortgage Loan is subject to a
Transaction, 85%; and (y) thereafter, 85% minus an additional 10% for each
30-day period following the 90th day in which the Purchased Mortgage Loan is
subject to a Transaction multiplied by (B) the outstanding principal balance
thereof as set forth on the related Mortgage Loan Schedule or (2) 70% of the
value reflected in the most recent BPO; and
(iii) on any day after the Purchase Date, except where Buyer and a
Seller agree otherwise, the amount determined under the immediately preceding
clauses (i) or (ii) decreased by the amount of any cash transferred by a Seller
to Buyer pursuant to Section 4(c) hereof or applied to reduce a Seller's
obligations under clause (ii) of Section 4(b) hereof or under Section 6 hereof.
"Purchase Price Percentage" means, with respect to each Mortgage Loan,
the following percentage, as applicable:
-16-
(a) 98% with respect to Purchased Mortgage Loans that are Sub-Prime
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 Transactions the subject of which are first
lien Conforming Mortgage Loans;
(e) 98% with respect to Transactions the subject of which are Second
Lien Mortgage Loans;
(f) 98% with respect to Transactions the subject of which are HELOCs;
(g) with respect to Transactions the subject of which are Exception
Mortgage Loans, a percentage to be determined by Buyer in its sole
discretion.
"Purchased Mortgage Loans" means the collective reference to Mortgage
Loans together with the Repurchase Assets related to such Mortgage Loans
transferred by a Seller to Buyer in a Transaction hereunder, which are either
(i) listed on the related Mortgage Loan Schedule attached to the related
Transaction Request, or (ii) with respect to which the related Mortgage Loan is
in possession of the Custodian, 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 a 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.
"REIT" means a real estate investment trust, as defined in Section 856
of the Code.
"REIT Status" means, with respect to any Person, such Person's status
as a real estate investment trust, as defined in Section 856(a) of the Code,
that satisfies the conditions and limitations set forth in Section 856(b) and
856(c) of the Code.
-17-
"REO Property" means real property acquired by a 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 a 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 a Seller upon termination of a Transaction,
which will be determined in each case (including Transactions terminable upon
demand) as the sum of the Purchase Price and the accrued but unpaid Price
Differential as of the date of such determination.
"Repurchased Mortgage Loan" means a Mortgage Loan (a) which is
repurchased by a Seller from any third party purchaser as a result of (i) a
breach of representations and warranties under the agreed upon terms in which
the claimed breach is not a result of fraud or material misrepresentation of
fact by any party to the Mortgage Loan or consumer credit law violation or (ii)
an early payment default repurchase obligation, (b) where the claimed breach or
early payment default is expressly identified to Buyer in writing, (c) which is
subject to a Transaction hereunder for no more than 180 days and (d) which has
not been foreclosed upon or converted to REO Property. In addition to the
foregoing, in no event will a Repurchased Mortgage Loan be subject to a
Transaction hereunder as a "Repurchased Mortgage Loan" if there is a breach of
representation and warranty in respect of such Repurchased Mortgage Loan other
than the breach identified in writing to the Buyer pursuant to subclause (b) of
this definition.
"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
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" shall mean a Mortgage Loan secured by a
second lien on the related Mortgaged Property.
-18-
"Seller" means each of MortgageIT Holdings, Inc. and MortgageIT, Inc.
or their permitted successors and assigns.
"Servicer" means any servicer approved by Buyer in its sole
discretion, which may be Seller.
"Servicer Notice" means the notice acknowledged by the Servicer
substantially in the form of Exhibit M hereto.
"Servicing Agreement" means any servicing agreement entered into among
Sellers and a Servicer as the same may be amended from time to time.
"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 Sellers 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 a 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 a 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 a 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 first lien Mortgage Loan originated
in accordance with the criteria established by Buyer for sub-prime mortgage
loans, as determined by Buyer in its sole discretion.
"Take-out Commitment" means a commitment of a Seller to either (a)
sell one or more identified Mortgage Loans to a Take-out Investor or (b) (i)
swap one or more identified
-19-
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 a 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.
"Termination Date" means the earlier of (a) February 28, 2006, and (b)
the date of the occurrence of an Event of Default.
"Test Period" means any calendar quarter.
"Transaction" has the meaning set forth in Section 1 hereof.
"Transaction Request" means a request from a 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.
"Underwriting Guidelines" means the standards, procedures and
guidelines of the Sellers for underwriting and acquiring Mortgage Loans, which
are set forth in the written policies and procedures of the Sellers, a copy of
which is attached hereto as Exhibit G 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 loan guaranty certificate, 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.
-20-
"Wet-Ink Documents" means, with respect to any Wet-Ink Mortgage Loan,
the (a) Transaction Request and (b) the Mortgage Loan Schedule.
"Wet-Ink Mortgage Loan" means a Mortgage Loan which a Seller is
selling to Buyer simultaneously with the origination thereof.
3. PROGRAM; INITIATION OF TRANSACTIONS
a. From time to time, in the sole discretion of Buyer, Buyer will
purchase from Sellers certain Mortgage Loans that have been either
originated by either Seller or purchased by either Seller from other
originators. THIS AGREEMENT IS A COMMITMENT BY BUYER TO ENTER INTO
TRANSACTIONS WITH THE SELLER FOR AN AMOUNT EQUAL TO THE MAXIMUM
COMMITTED PURCHASE PRICE. THIS AGREEMENT IS NOT A COMMITMENT BY BUYER
TO ENTER INTO TRANSACTIONS WITH THE SELLER FOR AMOUNTS EXCEEDING THE
MAXIMUM COMMITTED PURCHASE PRICE BUT RATHER SETS FORTH THE PROCEDURES
TO BE USED IN CONNECTION WITH PERIODIC REQUESTS FOR BUYER TO ENTER
INTO TRANSACTIONS WITH THE SELLER. SELLER HEREBY ACKNOWLEDGES THAT,
BEYOND THE MAXIMUM COMMITTED PURCHASE PRICE, 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 Purchase Price of Purchased Mortgage Loans
subject to outstanding Transactions shall not exceed the Maximum
Aggregate Purchase Price.
b. With respect to each Transaction involving Mortgage Loans which are
not Wet-Ink Mortgage Loans, Sellers 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, Sellers 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, Sellers 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, or the Buyer, with
respect to each Wet-Ink Mortgage Loan, either a Request for
Certification and each Mortgage File or Wet-Ink Documents for each
Wet-Ink Mortgage Loan, as applicable, in accordance with Section
10(b)(3) hereof. With respect to requested Transactions which would
cause the related Purchase Price to exceed the Maximum Committed
Purchase Price, Buyer may enter into such requested Transaction or may
notify the Sellers of its intention not to enter into such
Transaction. In the event the Mortgage Loan Schedule provided by
Sellers contains erroneous computer data, is not formatted properly or
the computer fields are otherwise improperly aligned, Buyer shall
provide written or electronic notice to Sellers describing such error
and Sellers shall correct the computer data, reformat or properly
align the computer fields themselves and resubmit the Mortgage Loan
Schedule as required herein.
-21-
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
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 Sellers 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 Sellers with
respect to the Transaction to which the Purchase Confirmation relates,
and Sellers' acceptance of the related proceeds shall constitute
Sellers' 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 Sellers' interest in the Repurchase
Assets shall pass to Buyer on the Purchase Date, against the transfer
of the Purchase Price to Sellers. Upon transfer of the Mortgage Loans
to Buyer as set forth in this Section and until termination of any
related Transactions as set forth in Sections 4 or 16 of this
Agreement, ownership of each 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 related Seller to each
Mortgage shall be retained by related 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, the related Seller shall cause the related
Settlement Agent to deliver to the Custodian the remaining documents
in the Mortgage File.
4. REPURCHASE
a. Sellers shall 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). Sellers are obligated to repurchase and take physical
possession of the Purchased Mortgage Loans from Buyer or its designee
(including the Custodian) at Sellers' expense on the related
Repurchase Date.
-22-
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 agrees to release its ownership
interest hereunder in the Purchased Mortgage Loans (including, the
Repurchase Assets related thereto) at the request of Sellers. With
respect to payments in full by the related Mortgagor of a Purchased
Mortgage Loan, Sellers agree to (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 Loan. If Buyer does not redesignate such
Mortgage Loan as an Exception Mortgage Loan, and if either Seller
fails to notify Buyer within five (5) Business Days following notice
or knowledge of such violation that neither Seller wants to receive a
bid for such Mortgage Loan as described below, Buyer or an Affiliate
of Buyer may offer to terminate Sellers' right and obligation to
repurchase such Mortgage Loan by paying Sellers a price to be set by
Buyer in its sole discretion (a "Bid"). Sellers, within five (5)
Business Days of receipt of Buyer's bid (the "Violation Deadline")
may, in their sole discretion, either (i) accept Buyer's bid,
terminating Sellers' 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. Sellers 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 Sellers' 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 Sellers written or
electronic notice of the amount of the Price Differential due on such
Price Differential Payment Date. On the Price Differential Payment
Date, Sellers 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, and 34 hereof), by wire transfer in
immediately available funds.
-23-
b. If Sellers fail 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, Sellers
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.
x. Xxxxxxx may remit to Buyer funds in $500,000 increments to be held
as unsegregated cash margin and collateral for all Obligations under
the Repurchase Agreement (such amount, to the extent not applied to
Obligations under the Repurchase Agreement, the "Buydown Amount"). The
Buydown Amount shall be used by Buyer in order to calculate the Price
Differential, which will accrue on the Purchase Price then outstanding
minus the Buydown Amount, applied to Transactions involving Conforming
Mortgage Loans. The Sellers shall be entitled to request a drawdown of
the Buydown Amount or remit additional funds to be added to the
Buydown Amount in increments of $500,000 no more than one time per
week. Without limiting the generality of the foregoing, in the event
that a Margin Call or other Default exists, the Buyer shall be
entitled to use any or all of the Buydown Amount to cure such
circumstance or otherwise exercise remedies available to the Buyer
without prior notice to, or consent from, the Sellers.
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 Sellers 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. Sellers
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 Sellers.
c. In the event that a Margin Deficit exists with respect to any
Purchased Mortgage Loan, Buyer may retain any funds received by it to
which the Sellers would otherwise be entitled hereunder, which funds
(i) shall be held by Buyer
-24-
against the related Margin Deficit and (ii) may be applied by Buyer
against any Purchased Mortgage Loan for which the related Margin
Deficit remains otherwise unsatisfied. Notwithstanding the foregoing,
the Buyer retains the right, in its sole discretion, to make a Margin
Call in accordance with the provisions of this Section 6.
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 third-party
Servicer is in place for any Purchased Mortgage Loans, such Servicer
shall deposit such Income to the Collection Account. Sellers 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, Sellers 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, to the extent that there is any excess
Income after repayment of all amounts to be transferred to Buyer by
Sellers, Buyer, in its sole option, may apply the excess income to
reduce the Repurchase Price due upon termination of any other
outstanding Transactions.
c. In the event that an Event of Default has occurred and is
continuing, notwithstanding any provision set forth herein, Sellers
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 Sellers in writing.
d. Notwithstanding any provision to the contrary in this Section 7,
within two (2) Business Days of receipt by Sellers of any prepayment
of principal in full, with respect to a Purchased Mortgage Loan,
Sellers 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 Sellers, Sellers shall remit to Buyer all
collections received by Servicer or Sellers 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.
-25-
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, each Seller hereby pledges to Buyer as security for the performance by
Sellers of their 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 each Seller's right thereunder relate to
the Purchased Mortgage Loans), any related Take-out Commitments, any Property
relating to the Purchased Mortgage Loans, all insurance policies and insurance
proceeds relating to any Purchased 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,
Interest Rate Protection Agreements, accounts (including any interest of Sellers
in escrow accounts) and any other contract rights, instruments, 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, 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"). Sellers agree 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 Sellers hereby
authorize the Buyer to file financing statements relating to the Repurchase
Assets, as the Buyer, at its option, may deem appropriate. The Sellers 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 Sellers 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. 3058 9442, for the account of CSFB
Buyer/MortgageIT Seller-Inbound Account, Citibank, ABA No. 021 000 089 or such
other account as Buyer shall specify to Sellers in writing. Sellers acknowledge
that they have 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 following,
-26-
in form and substance satisfactory to Buyer and duly executed by
Sellers and each other party thereto:
(1) Program Agreements. The Program Agreements (including
without limitation 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, duly
authorized and filed Uniform Commercial Code financing statements on
Form UCC-1.
(3) Organizational Documents. A certificate of the corporate
secretary of each Seller substantially in the form of Exhibit H
hereto, attaching certified copies of each Seller's charter, bylaws
and corporate 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 from the jurisdiction of organization of each
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 each Seller, certifying the names, true
signatures and titles of the representatives duly authorized to
request transactions hereunder and to execute the Program Agreements.
(6) Opinions of Counsel. Opinions of Sellers' 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 each Seller.
(8) Fees. Payment of any fees due to Buyer hereunder.
(9) Insurance. Evidence that each Seller has added Buyer as
an additional loss payee under the Sellers' Fidelity Insurance.
b. All Transactions. The obligation of Buyer to enter into each
Transaction pursuant to this Agreement is subject to the following
conditions precedent:
-27-
(1) Due Diligence Review. Without limiting the generality of
Section 35 hereof, Buyer shall have completed, to its satisfaction,
its due diligence review of the related Mortgage Loans and the
Sellers.
(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 Custodial
Mortgage Loan Schedule, 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;
(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
Sellers 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).
-28-
(7) Electronic Tracking Agreement. To the extent Sellers are
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:
(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
Mortgage Loans 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. Sellers 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. Sellers shall also pay,
or reimburse Buyer if Buyer shall pay, any termination fee, which may
be due any servicer. Sellers shall pay the fees and expenses of
Buyer's counsel in connection with the Program Agreements. Legal fees
for any subsequent amendments to this Agreement or related documents
shall be borne by Sellers. Sellers shall pay ongoing custodial and
bank fees and expenses as set forth on Exhibit L 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
-29-
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 Sellers agree 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. With respect to any Transaction, Buyer may conclusively rely upon,
and shall incur no liability to Sellers 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 Sellers'
behalf, whether or not such person is listed on the certificate
delivered pursuant to Section 10(a)(5) hereof. In each such case,
Sellers hereby waive the right to dispute Buyer's record of the terms
of the Purchase Confirmation, request or other communication.
d. Notwithstanding the assignment of the Program Agreements with
respect to each Purchased Mortgage Loan to Buyer, each Seller agrees
and covenants with Buyer to enforce diligently Sellers' rights and
remedies set forth in the Program Agreements.
e. Any payments made by Sellers 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, and otherwise indemnify Buyer for any such taxes
imposed.
12. SERVICING
a. Sellers, on Buyer's behalf, shall contract with Servicer to, or if
any Seller is the Servicer, such Seller shall, service the Mortgage
Loans consistent with the degree of skill and care that each 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.
x. Xxxxxxx 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.
-30-
x. Xxxxxxx 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, Sellers shall provide promptly to Buyer 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. Sellers 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 Sellers should discover that, for any reason whatsoever, Sellers
or any entity responsible to Sellers for managing or servicing any
such Purchased Mortgage Loan has failed to perform fully Sellers'
obligations under the Program Agreements or any of the obligations of
such entities with respect to the Purchased Mortgage Loans, Sellers
shall promptly notify Buyer.
13. REPRESENTATIONS AND WARRANTIES
a. Each Seller represents and warrants to Buyer as of the date hereof
and as of each Purchase Date for any Transaction that:
(1) Seller Existence. MortgageIT has been duly organized and
is validly existing as a corporation in good standing under the laws
of the State of New York. Holdings has been duly organized and is
validly existing as a corporation in good standing under the laws of
the State of Maryland.
(2) Licenses. Each Seller is duly licensed or is otherwise
qualified in 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 and is not in default of such state's applicable laws, rules
and regulations. Each 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
-31-
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. Each Seller is an FHA Approved Mortgagee and VA
Approved Lender.
(3) Power. Each 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. Each 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 such Seller, all requisite or other corporate action
having been taken, and each is valid, binding and enforceable against
such 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. Holdings has heretofore furnished
to Buyer a copy of (a) its consolidated and consolidating balance
sheet and the consolidated balance sheets of its consolidated
Subsidiaries for the fiscal year of Holdings ended December 31, 2003
and the related consolidated and consolidating statements of income
and retained earnings and of cash flows for Holdings 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 BDO Xxxxxxx, LLP and (b) its consolidated balance
sheet and the consolidated balance sheets of its consolidated
Subsidiaries for the quarterly fiscal periods of Holdings ended March
31, 2004, June 30, 2004 and September 30, 2004 and the related
consolidated statements of income and retained earnings and of cash
flows for Holdings 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 Holdings and its Subsidiaries
and the consolidated results of its operations as at such dates and
for such fiscal periods, all in accordance with GAAP applied on a
consistent basis. Since December 31, 2004, there has been no material
adverse change in the consolidated business, operations or financial
condition of Holdings and its consolidated Subsidiaries taken as a
whole from that set forth in said financial statements nor is Holdings
aware of any state of facts which (with notice or the lapse of time)
would or could result in any such material adverse change. Holdings
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
-32-
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 Holdings 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.
(7) Solvency. Each 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. Neither Seller intends
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 Sellers upon the
sale of the Purchased Mortgage Loans to Buyer constitutes reasonably
equivalent value and fair consideration for such Purchased Mortgage
Loans. Sellers are 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
each 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 certificate of incorporation or by-laws
of such Seller or any law, rule, regulation, order, judgment, writ,
injunction or decree applicable to such Seller of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over such Seller, which conflict would have a Material
Adverse Effect and will not result in any violation of any such
mortgage, instrument, agreement or obligation to which such Seller is
a party.
(9) True and Complete Disclosure. All information, reports,
exhibits, schedules, financial statements or certificates of Sellers
or 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 Sellers, 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 Sellers of this Agreement,
any Transaction Request, Purchase Confirmation and the Program
Agreements.
-33-
(11) Litigation. There is no action, proceeding or
investigation pending with respect to which either Seller has received
service of process or, to the best of Sellers' 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) makes a claim individually
or in an aggregate amount greater than $25 million, (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 condition,
properties or prospects of either Seller or their respective
Affiliates since the date set forth in the most recent financial
statements supplied to Buyer.
(13) Ownership. Upon payment of the 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
the Sellers.
(15) Taxes. Sellers and their Subsidiaries have timely filed
all tax returns that are required to be filed by them and have paid
all taxes, 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 Sellers
and their Subsidiaries in respect of taxes and other governmental
charges are, in the opinion of Sellers, adequate.
(16) Investment Company. Neither Seller nor any of their
respective 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.
On the Effective Date, MortgageIT's chief executive office, is, and
has been, located at 00 Xxxxxx Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000. On the Effective Date, MortgageIT's jurisdiction of
organization is New York. On the Effective Date, Holding's chief
executive office, is, and has been, located at 00 Xxxxxx
-00-
Xxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. On the Effective Date,
Holding's jurisdiction of organization is Maryland. Each Seller shall
provide Buyer with thirty days advance notice of any change in such
Seller's principal office or place of business or jurisdiction.
Neither Seller has a trade name other than as set forth on Schedule 2.
During the preceding five years, neither Seller has 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.
(18) Location of Books and Records. The location where
Sellers keeps their books and records, including all computer tapes
and records relating to the Purchased Mortgage Loans and the related
Repurchase Assets are their respective chief executive offices.
(19) Adjusted Tangible Net Worth. On the Effective Date,
Sellers' Adjusted Tangible Net Worth is not less than $170,000,000.
(20) ERISA. Each Plan to which a Seller or its Subsidiaries
make direct contributions, and, to the knowledge of Sellers, 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. Sellers have 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
Sellers 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 as
disclosed in the financial statements described in Section 13(a)(5)
hereof. Neither Seller nor any Subsidiary of Sellers 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 Sellers or of any of its
Subsidiaries has given notice of any asserted default thereunder.
(23) Other Indebtedness. All Indebtedness (other than
Indebtedness evidenced by this Agreement) of Sellers existing on the
date hereof is listed on Exhibit J hereto (the "Existing
Indebtedness").
(24) Agency Approvals. With respect to each Agency Security
and to the extent necessary, each Seller is an FHA Approved Mortgagee,
a VA Approved Lender. Each Seller is also approved by Xxxxxx Xxx as an
approved lender and Xxxxxxx Mac as an approved seller/servicer, and,
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,
-35-
each Seller in good standing, with no event having occurred or either
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
either 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 either 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, Sellers shall so notify Buyer immediately in
writing. Each 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.
(25) No Reliance. Each Seller has made its own independent
decisions to enter into the Program Agreements and each Transaction
and as to whether such Transaction is appropriate and proper for it
based upon its own judgment and upon advice from such advisors
(including without limitation, legal counsel and accountants) as it
has deemed necessary. Neither Seller is relying upon any advice from
Buyer as to any aspect of the Transactions, including without
limitation, the legal, accounting or tax treatment of such
Transactions.
(26) Plan Assets. Neither Seller is an employee benefit plan
as defined in Section 3 of Title I of ERISA, or a plan described in
Section 4975(e)(1) of the Code, and the Purchased Mortgage Loans are
not "plan assets" within the meaning of 29 CFR Section 2510.3-101 in
the Sellers' hands.
(27) Real Estate Investment Trust. Holdings has not engaged
in any material "prohibited transactions" as defined in Section
857(b)(6)(B)(iii) and (C) of the Code. Holdings for its current "tax
year" (as defined in the Code) is entitled to a dividends paid
deduction under the requirements of Section 857 of the Code with
respect to any dividends paid by it with respect to each such year for
which it claims a deduction in its Form 1120-REIT filed with the
United States Internal Revenue Service for such year.
b. With respect to every Purchased Mortgage Loan, each Seller jointly
and severally 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 in all material respects except with respect to an Exception
Mortgage Loan, such exceptions as have been approved by the Buyer.
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
-36-
by Sellers, 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, Sellers 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 for inclusion in a securitization.
14. COVENANTS
Each Seller jointly and severally covenants with Buyer that, during the term of
this facility:
a. Adjusted Tangible Net Worth. Sellers, on a consolidated basis,
shall maintain an Adjusted Tangible Net Worth of at least the sum of
(i) $170,000,000.
b. Indebtedness to Adjusted Tangible Net Worth Ratio. During the
period beginning on the date hereof through and including May 31,
2005, Sellers' combined ratio of Indebtedness to Adjusted Tangible Net
Worth shall not exceed 25:1. During the period beginning on June 1,
2005 through and including the Termination Date, Sellers' combined
ratio of Indebtedness to Adjusted Tangible Net Worth shall not exceed
20:1.
c. Litigation. Sellers 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 either Seller or any of their 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 individually
or in an aggregate amount greater than $25 million, or (iii) which,
individually or in the aggregate, if adversely determined, could be
reasonably likely to have a Material Adverse Effect. Sellers will
promptly provide notice of any judgment, which with the passage of
time, could cause an Event of Default hereunder.
d. Prohibition of Fundamental Changes. Neither Seller shall 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 either Seller may merge or consolidate with (a)
any wholly owned subsidiary of either Seller, or (b) any other Person
if such Seller is the surviving corporation; and provided further,
that if after giving effect thereto, no Default would exist hereunder.
-37-
e. Maintenance of Profitability. Sellers shall not permit, for any
Test Period, Net Income for such Test Period, 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 eleventh
calendar day 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 Sellers, an Asset Tape by no later
than the Reporting Date. Sellers 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 and GMAC with the execution of this Agreement.
g. Insurance. The Sellers shall continue to maintain, for Sellers and
their Subsidiaries, Fidelity Insurance in an aggregate amount at least
equal to $2,000,000 with respect to errors and omissions insurance and
$5,000,000 with respect to blanket insurance policy.. The Sellers
shall maintain, for Sellers and their Subsidiaries, Fidelity Insurance
in respect of their officers, employees and agents, with respect to
any claims made in connection with all or any portion of the
Repurchase Assets. The Sellers shall notify the Buyer of any material
change in the terms of any such Fidelity Insurance.
h. No Adverse Claims. Sellers warrant 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. Sellers 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, Sellers
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. Sellers will not allow any default for
which any Seller is responsible to occur under any Purchased Mortgage
Loans or the related Repurchase Assets or any Program Agreement and
Sellers 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.
-38-
k. Records.
(1) Sellers 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 preceding subparagraph, and all such
Records shall be in Custodian's possession unless Buyer otherwise
approves. Neither Seller will 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 Sellers will obtain or cause to
be obtained a receipt from a financially responsible person for any
such paper, record or file. Each 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, the applicable Seller will hold or cause to
be held all related Records in trust for Buyer. Sellers 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,
the applicable 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
such Seller with its chief operating officer and chief financial
officer and to discuss the affairs, finances and accounts of such
Seller with its independent certified public accountants.
l. Books. Each 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.
m. Approvals. Sellers shall maintain all licenses, permits or other
approvals necessary for Sellers to conduct their business and to
perform its obligations under the Program Agreements, and Sellers
shall conduct their business strictly in accordance with applicable
law.
n. Material Change in Business. Neither Seller shall make any material
change in the nature of its business as carried on at the date hereof.
o. Underwriting Guidelines. Without the prior written consent of
Buyer, Sellers shall not amend or otherwise modify the Underwriting
Guidelines. Without limiting the foregoing, in the event that either
Seller makes any amendment or
-39-
modification to the Underwriting Guidelines, such Seller shall
promptly deliver to Buyer a complete copy of the amended or modified
Underwriting Guidelines.
p. Distributions. If an Event of Default has occurred and is
continuing, neither Seller shall 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 such Seller.
q. Applicable Law. Each Seller shall comply with the requirements of
all applicable laws, rules, regulations and orders of any Governmental
Authority.
r. Existence. Each 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. Neither
Seller shall 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. Each Seller shall timely file all tax returns that are
required to be filed by it and shall timely 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. Neither Seller will enter into any
transaction, including, without limitation, any purchase, sale, lease
or 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 such Seller's
business and (c) upon fair and reasonable terms no less favorable to
such 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. Neither Seller shall 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 either Seller do not exceed $2,000,000.
w. Indebtedness. Sellers shall not incur any additional material
Indebtedness (other than (i) the Existing Indebtedness in amounts not
to exceed the amounts specified on Exhibit J hereto and (ii) usual and
customary accounts payable for a mortgage company) without the prior
written consent of Buyer.
-40-
x. Hedging. Sellers shall deliver to Buyer a written summary of their
hedging policies and procedures, and promptly upon any change thereto,
a written summary thereof. Sellers shall enter into and maintain
Interest Rate Protection Agreements in accordance with their hedging
policies and procedures.
y. True and Correct Information. All information, reports, exhibits,
schedules, financial statements or certificates of each Seller, any
Affiliate thereof or any of their officers furnished to Buyer
hereunder and during Buyer's diligence of such 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 each 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. MortgageIT shall maintain its status
with Xxxxxx Xxx as an approved lender and Xxxxxxx Mac as an approved
seller/servicer, in each case in good standing. MortgageIT shall
service or cause to be serviced all Purchased Mortgage Loans which are
Committed Mortgage Loans in accordance with the applicable agency
guide. Should MortgageIT, for any reason, cease to possess all such
applicable Agency Approvals, or should notification to the relevant
Agency or to the Department of Housing and Urban Development, FHA or
VA be required, MortgageIT shall so notify Buyer immediately in
writing. Notwithstanding the preceding sentence, such Seller shall
take all necessary action to maintain all of its applicable Agency
Approvals at all times during the term of this Agreement and each
outstanding Transaction. MortgageIT 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,
Sellers 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
Mae 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
-41-
subscriber, unless otherwise agreed to in writing by Buyer, in Buyer's
sole discretion.
bb. No Pledge. Neither Seller shall pledge, transfer or convey any
security interest in the Collection Account to any Person without the
express written consent of Buyer.
cc. Plan Assets. Neither Seller shall be an employee benefit plan as
defined in Section 3 of Title I of ERISA, or a plan described in
Section 4975(e)(1) of the Code and the Sellers shall not use "plan
assets" within the meaning of 29 CFR Section 2510.3-101 to engage in
this Repurchase Agreement or any Transaction hereunder.
dd. HELOC Provisions. With respect to each HELOC, if a Mortgagor
requests an increase in the related Credit Limit, the applicable
Seller, shall, in its sole discretion, either accept or reject the
Mortgagor's request in accordance with such Seller's Underwriting
Guidelines and notify the Buyer in writing of such Seller's decision.
If the request for a Credit Limit increase is accepted by the
applicable Seller, the increase will be effected by such Seller
through modification of the Mortgage Loan with the Mortgagor. Sellers
shall deliver to the Buyer an updated Mortgage Loan Schedule
reflecting the modification to the Mortgage Loan and shall deliver any
modified Mortgage Loan Documents to the Custodian. Notwithstanding
anything to the contrary herein, in no event shall Buyer have any
obligation to fund any Draws with respect to any HELOC, which
obligations shall be retained by the Seller.
15. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default"
hereunder:
a. Payment Failure. Failure of any 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 otherwise, 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 either Seller to
Buyer or to any Affiliate of Buyer, or (ii) cure any Margin Deficit
when due pursuant to Section 6 hereof.
b. Cross Default. (i) Any Seller or any of such Seller's Affiliates
shall be in default under (i) any Indebtedness of such Seller or of
such Affiliate 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 with respect to such
Indebtedness, or (ii) any other contract to which any Seller or such
Affiliate is a party 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.
-42-
c. Assignment. Assignment or attempted assignment by any Seller of
this Agreement or any rights hereunder without first obtaining the
specific written consent of Buyer, or the granting by any Seller of
any security interest, lien or other encumbrances on any Purchased
Mortgage Loans to any person other than Buyer.
d. Insolvency. An Act of Insolvency shall have occurred with respect
to any Seller, or any Affiliate.
e. Material Adverse Change. Any material adverse change in the
Property, business, financial condition or operations of any Seller or
any of their 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 any Seller's ability to perform its obligations
under this Agreement or any other Program Agreement.
f. Breach of Financial Representation or Covenant or Obligation. A
breach by any 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), 00x, 00x, 00x, 00x, 00x, 00x, 00x,
00xx, 14cc or 14dd of this Agreement.
g. Breach of Non-Financial Representation or Covenant. A breach by any
Seller of any other material representation, warranty or covenant set
forth in this Agreement (and not otherwise specified in Section 15(f)
above), if such 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, the existence of a Margin Deficit and the obligation to
repurchase such Mortgage Loan) unless (i) such party 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
such party, its Subsidiaries or Affiliates; or (B) Buyer's
determination to enter into this Agreement or Transactions with such
party, then such breach shall constitute an immediate Event of Default
and Sellers shall have no cure right hereunder).
h. Change of Control. The occurrence of a Change in Control.
i. Failure to Transfer. Sellers fail to transfer the Purchased
Mortgage Loans to Buyer on the applicable Purchase Date (provided
Buyer has tendered the related Purchase Price).
j. Judgment. A final judgment or judgments for the payment of money in
excess of $5,000,000 in the aggregate shall be rendered against any or
both Sellers or any of their Affiliates by one or more courts,
administrative tribunals or other bodies
-43-
having jurisdiction and the same shall not be satisfied, discharged
(or provision shall not be made for such discharge) or bonded, or a
stay of execution thereof shall not be procured, within 30 days from
the date of entry thereof.
k. 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 any Seller or any Affiliate thereof, or shall have taken
any action to displace the management of any Seller or any Affiliate
thereof or to curtail its authority in the conduct of the business of
any Seller or any Affiliate thereof, or takes any action in the nature
of enforcement to remove, limit or restrict the approval of any 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 k shall not have been discontinued or stayed within
30 days.
l. Inability to Perform. An officer of any Seller shall admit its
inability to, or its intention not to, perform any of Sellers'
Obligations hereunder.
m. 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.
n. Financial Statements. Any 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 such Seller as a "going concern" or a reference of similar
import.
o. REIT Status. The failure of Holdings to at any time continue to be
(i) qualified as a real estate investment trust as defined in Section
856 of the Code and (ii) entitled to a dividend paid deduction under
Section 857 of the Code with respect to dividends paid by it with
respect to each taxable year for which it claims a deduction on its
Form 1120 - REIT filed with the United States Internal Revenue Service
for such year, or the entering into by Holdings of any material
"prohibited transactions" as defined in Sections 857(b) and 856(c) of
the Code.
p. REIT Asset and Income Tests. The failure of Holdings to satisfy any
of the following asset or income tests and Buyer has delivered notice
of an Event of Default to Holdings with respect thereto:
(1) At the close of each taxable year, at least 75 percent
of Holdings' gross income consists of (i) "rents from real property"
within the meaning of Section 856(c)(3)(A) of the Code, (ii) interest
on obligations secured by mortgages on real property or on interests
in real property, within the meaning of Section 856(c)(3)(B) of the
Code, (iii) gain from the sale or other disposition of real property
(including interests in real property and interests in mortgages on
real property) which is not property described in Section 1221(a)(1)
of the Code,
-44-
within the meaning of Section 856(c)(3)(C) of the Code, (iv) dividends
or other distributions on, and gain (other than gain from "prohibited
transactions" within the meaning of Section 857(b)(6)(B)(iii) of the
Code) from the sale or other disposition of, transferable shares (or
transferable certificates of beneficial interest) in other qualifying
REITs within the meaning of Section 856(d)(3)(D) of the Code, and (v)
amounts described in Sections 856(c)(3)(E) through 856(c)(3)(I) of the
Code.
(2) At the close of each taxable year, at least 95 percent
of Holdings' gross income consists of (i) the items of income
described in paragraph 1 hereof (other than those described in Section
856(c)(3)(I) of the Code), (ii) gain realized from the sale or other
disposition of stock or securities which are not property described in
Section 1221(a)(1) of the Code, (iii) interest, (iv) dividends, and
(v) income derived from payments to Holdings on interest rate swap or
cap agreements, options, futures contracts, forward rate agreements
and other similar financial instruments entered into to reduce the
interest rate risks with respect to any indebtedness incurred or to be
incurred to acquire or carry real estate assets, or gain from the sale
or other disposition of such an investment as described in section
856(c)(5)(G), in each case within the meaning of Section 856(c)(2) of
the Code.
(3) At the close of each quarter of Holdings' taxable years,
at least 75 percent of the value of Holdings' total assets (as
determined in accordance with Treasury Regulations Section 1.856-2(d))
has consisted of and will consist of real estate assets within the
meaning of Sections 856(c)(4) and 856(c)(5)(B) of the Code, cash and
cash items (including receivables which arise in the ordinary course
of Holdings' operations, but not including receivables purchased from
another person), and Government Securities; unless (a) the test
described in this paragraph (3) has been satisfied as of the end of
the immediately preceding quarter of Holdings' taxable year, (b) such
test is not satisfied as the result of the acquisition of a security
or property during the current quarter of Holdings' taxable year, (c)
Holdings delivers within 10 days of the end of the current quarter of
Holdings' taxable year to Buyer notice that such test is not
satisfied, (d) such test is satisfied within the 30 day period as
provided under section 856(c)(4), and (e) an officer of Holdings
certifies as to such satisfaction within such 30 day period, and
provides documentation, reasonably satisfactory to Buyer evidencing
such satisfaction.
(4) At the close of each quarter of each of Holdings'
taxable years, (a) not more than 25 percent of Holdings' total asset
value will be represented by securities (other than those described in
paragraph 3), (b) not more than 20 percent of Holdings' total asset
value will be represented by securities of one or more taxable REIT
subsidiaries, and (c) (i) not more than 5 percent of the value of
Holdings' total assets will be represented by securities of any one
issuer (other than Government Securities and securities of taxable
REIT subsidiaries), and (ii) Holdings will not hold securities
possessing more than 10 percent of the total voting power or value of
the outstanding securities of any one issuer (other than
-45-
Government Securities, securities of taxable REIT subsidiaries, and
securities of a qualified REIT subsidiary within the meaning of
Section 856(i) of the Code); unless (d) the tests described in this
paragraph (4) have been satisfied as of the end of the immediately
preceding quarter of Holdings' taxable year, (e) any of the tests
described in this paragraph (4) are not satisfied as the result of the
acquisition of a security or property during the current quarter of
Holdings' taxable year, (f) Holdings delivers within 10 days of the
end of the current quarter of Holdings' taxable year to Buyer notice
that such test is not satisfied, (g) such test is satisfied within the
30 day period as provided under section 856(c)(4), and (h) an officer
of Holdings certifies as to such satisfaction within such 30 day
period, and provides documentation, reasonably satisfactory to Buyer
evidencing such satisfaction.
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 of
any Seller or any Affiliate), 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 Sellers 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) Sellers'
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 a Seller hereunder, and (iii) each Seller shall
immediately deliver to Buyer the Mortgage Files relating to any
Purchased Mortgage Loans subject to such Transactions then in such
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 Sellers relating to the Purchased Mortgage Loans and all
documents relating to the Purchased Mortgage Loans (including, without
limitation, any legal, credit or
-46-
servicing files with respect to the Purchased Mortgage Loans) which
are then or may thereafter come in to the possession of Sellers or any
third party acting for Sellers. 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 Sellers 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 any Seller, Sellers
shall not commingle the amounts received with other funds of Sellers
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 not be
required to give any warranties as to the Purchased Mortgage Loans
with respect to any such disposition thereof. Buyer may specifically
disclaim or modify any warranties of title or the like relating to the
Purchased Mortgage Loans. The foregoing procedure for disposition of
the Purchased Mortgage Loans and liquidation of the Repurchase Assets
shall not be considered to adversely affect the commercial
reasonableness of any sale thereof. Sellers agree that it would not be
commercially unreasonable for Buyer to dispose of the Purchased
Mortgage Loans or the Repurchase Assets or any portion thereof by
using Internet sites that provide for the auction of assets similar to
the Purchased Mortgage Loans or the Repurchase Assets, or that have
the reasonable capability of doing so, or that match buyers and
sellers of assets. 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. Buyer shall also be entitled,
in its sole discretion to elect, in lieu of selling all or a portion
of such Purchased Mortgage Loans, to give the Sellers credit for such
Purchased Mortgage Loans and the Repurchase Assets in an amount equal
to the Market Value of the Purchased Mortgage Loans against the
aggregate unpaid Repurchase Price and any other amounts owing by the
Sellers hereunder.
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.
x. Xxxxxxx 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,
-47-
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, Sellers shall be liable
to Buyer for interest on any amounts owing by Sellers hereunder, from
the date Sellers become liable for such amounts hereunder until such
amounts are (i) paid in full by Sellers or (ii) satisfied in full by
the exercise of Buyer's rights hereunder. Interest on any sum payable
by Sellers 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 Sellers. 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. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and each Seller hereby expressly waives
any defenses such Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Sellers also waive any defense
(other than a defense of payment or performance) Sellers might
otherwise have arising from the use of nonjudicial process,
enforcement and sale of all or any portion of the Repurchase Assets,
or from any other election of remedies. Each 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 Sellers and the Mortgage Loans, which review shall be at
the expense of Sellers.
17. REPORTS
a. Notices. Sellers 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 Sellers hereunder which is given to Sellers' lenders,
(y) immediately, notice of the occurrence of any Event of
-48-
Default hereunder or default or breach by any Seller or Servicer of
any obligation under any Program Agreement or any material contract or
agreement of any 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 forty-five
(45) calendar days after the end of each calendar month, the unaudited
consolidated and consolidating balance sheets of each Seller and its
consolidated Subsidiaries as at the end of such period and the related
unaudited consolidated and consolidating statements of income and
retained earnings and of cash flows for such 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 each 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 such 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 each Seller, the
consolidated and consolidating balance sheets of such Seller and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated and consolidating statements of income and
retained earnings and of cash flows for the such 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 such 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 either Seller, within 5 Business Days of their filing with the SEC;
provided, that, Sellers 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 either Seller or their Affiliates, no later than 90
days after the end of the year;
(5) as soon as available, and in any event within thirty
(30) days of receipt, copies of relevant portions of all final written
Agency, FHA, VA, Governmental Authority and investor audits,
examinations, evaluations,
-49-
monitoring reviews and reports of its operations (including those
prepared on a contract basis) which provide for or relate to (i)
material corrective action required, (ii) material sanctions proposed,
imposed or required, including without limitation notices of defaults,
notices of termination of approved status, notices of imposition of
supervisory agreements or interim servicing agreements, and notices of
probation, suspension, or non-renewal, or (iii) "report cards,"
"grades" or other classifications of the quality of either Seller's
operations;
(6) from time to time such other information regarding the
financial condition, operations, or business of the Sellers as Buyer
may reasonably request;
(7) as soon as reasonably possible, and in any event within
thirty (30) days after a Responsible Officer of the Sellers has
knowledge of the occurrence of any Event of Termination, stating the
particulars of such Event of Termination in reasonable detail;
(8) as soon as reasonably possible, notice of any of the
following events:
(a) change in the insurance coverage required of any 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 any 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 any 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) any material issues raised upon examination of any Seller or
Seller's facilities by any Governmental Authority;
(f) any material change in the Indebtedness of any Seller,
including, without limitation, any default, renewal, non-renewal,
termination, increase in available amount or decrease in available
amount related thereto;
(g) 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
-50-
(h) any other event, circumstance or condition that has resulted,
or has a possibility of resulting, in a Material Adverse Effect with
respect to any Seller or Servicer.
b. Officer's Certificates. Sellers will furnish to Buyer, at the time
the Sellers furnish each set of financial statements, and on a
quarterly basis, pursuant to Section 17(a)(1) or (2) above, a
certificate of a Responsible Officer of Sellers in the form of Exhibit
D hereto.
c. Mortgage Loan Reports. Sellers 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. Sellers shall provide to Buyer, electronically, in a
format mutually acceptable to Buyer and Sellers, an Asset Tape by no
later than the Reporting Date.
e. Other. Sellers shall deliver to Buyer any other reports or
information reasonably requested by Buyer or as otherwise required
pursuant to this Agreement.
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. Unless an Event of Default shall have occurred, no such
transaction shall relieve Buyer of its obligations to transfer Purchased
Mortgage Loans to Sellers pursuant to Section 4 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 Sellers 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 each 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
-51-
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 Sellers:
MortgageIT, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Chief Operating Officer
Phone Number: 000-000-0000
Fax Number: 000-000-0000
MortgageIT Holdings, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Phone Number: 000-000-0000
Fax Number: 000-000-0000
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: Xxx Xxxxxxxx
Phone Number: (000) 000-0000
Fax Number: (000) 000-0000
-52-
For all other Notices:
Credit Suisse First Boston Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Phone Number: 000-000-0000
Fax Number: 000-000-0000
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 either 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 as agent of Sellers, for review by Sellers 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 Sellers (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, Sellers 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 either 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 Sellers, any such notice being
expressly waived by Sellers to the
-53-
extent permitted by applicable law, upon any amount becoming due and payable by
Sellers 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 Sellers. Buyer agrees promptly to notify Sellers 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.
Sellers 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. EACH SELLER HEREBY WAIVES TRIAL BY JURY. EACH 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. EACH 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
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.
-54-
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.
-55-
28. POWER OF ATTORNEY
Each Seller hereby authorizes Buyer to file such financing statement
or statements relating to the Repurchase Assets without such Seller's signature
thereon as Buyer, at its option, may deem appropriate. Each Seller hereby
appoints Buyer as such Seller's agent and attorney-in-fact to execute any such
financing statement or statements in such 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 Repurchase Assets, including, but not
limited to, the right to endorse notes, complete blanks in documents, transfer
servicing, and sign assignments on behalf of such 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. Sellers 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
a. Each 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. Each
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. Each 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. Each Seller hereby
acknowledges that its obligations hereunder are recourse obligations
of such Seller and are not limited to recoveries each Indemnified
Party may have with respect to the Purchased Mortgage Loans. Each
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
-56-
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 Sellers 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, Sellers 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 Sellers
fail 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 Sellers 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
This Agreement and its terms, provisions, supplements and amendments,
and notices hereunder, are proprietary to Buyer and Agent and shall be held by
Sellers in strict confidence and shall not be disclosed to any third party
without the written consent of Buyer except for (i) disclosure to either
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.
Notwithstanding the foregoing or anything to the contrary contained herein or in
any other Program Agreement, the parties hereto may disclose to any and all
Persons, without limitation of any kind, the federal, state and local tax
treatment of the Transactions, any fact relevant to understanding the federal,
state and local tax treatment of the Transactions, and all materials of any kind
(including opinions or other tax analyses) relating to such federal, state and
local tax treatment and that may be relevant to understanding such tax
treatment; provided that Sellers may not disclose the name of or identifying
information with respect to Buyer or Agent or any pricing terms (including,
without limitation, the Pricing Rate, Periodic Fee, Purchase Price Percentage
and Purchase Price) or other nonpublic business or financial information
(including any sublimits and financial covenants) that is unrelated to the
federal, state and local tax treatment of the Transactions and is not relevant
to understanding the federal, state and local tax treatment of the Transactions,
without the prior written consent of the Buyer.
-57-
33. RECORDING OF COMMUNICATIONS
Buyer and Sellers 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 Sellers 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. PERIODIC FEE
Seller shall pay to Buyer in immediately available funds a
non-refundable fee due and owing upon closing and payable in arrears no later
than the Price Differential Payment Date following the end of each calendar
quarter, in the amount set forth in the fee schedule attached hereto as Annex
II. Such Periodic Fee will be waived if, during such calendar quarter, Buyer or
any of Buyer's Affiliates is named as lead or co-lead underwriter on any of
Sellers' securitizations or if Sellers sell at least $100,000,000 of residential
mortgage loans (other than pursuant to this Agreement) to Buyer or Buyer's
Affiliates. 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. PERIODIC DUE DILIGENCE REVIEW
Each Seller acknowledges that Buyer has the right to perform
continuing due diligence reviews with respect to the Sellers and the Mortgage
Loans, for purposes of verifying compliance with the representations, warranties
and specifications made hereunder, or otherwise, and Sellers agree 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
Sellers, 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 Sellers and/or the Custodian. Sellers 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, Sellers acknowledge that Buyer
may purchase Mortgage Loans from Sellers based solely upon the information
provided by Sellers to Buyer in the Mortgage Loan 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. Sellers agree 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 Sellers. Sellers further agree that Sellers shall pay all
out-of-pocket costs
-58-
and expenses incurred by Buyer in connection with Buyer's activities pursuant to
this Section 36 ("Due Diligence Costs").
36. AUTHORIZATIONS
Any of the persons whose signatures and titles appear on Schedule 2
are authorized, acting singly, to act for Sellers or Buyer, as the case may be,
under this Agreement.
37. ACKNOWLEDGEMENT OF ANTI-PREDATORY LENDING POLICIES
Buyer has in place internal policies and procedures that expressly
prohibit its purchase of any High Cost Mortgage Loan.
38. JOINT AND SEVERAL
Sellers and Buyer hereby acknowledge and agree that Sellers are each
jointly and severally liable to Buyer for all of their respective obligations
hereunder.
[Signature Page Follows]
-59-
IN WITNESS WHEREOF, each Seller and the Buyer have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
date first above written.
Credit Suisse First Boston Mortgage Capital LLC, as Buyer
By: /s/ XXXXX X. XXXXXXXXX
------------------------------------
Title: Vice President
Date: March 17, 2005
MortgageIT, Inc., as Seller
By: /s/ XXXX X. XXXX
------------------------------------
Title: General Counsel and Secretary
Date: March 17, 2005
MortgageIT Holdings, Inc., as Seller
By: /s/ XXXX X. XXXX
------------------------------------
Title: General Counsel and Secretary
Date: March 17, 2005
Sch. 1-1
SCHEDULE 1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO PURCHASED MORTGAGE LOANS
With respect to each Purchased Mortgage Loan, each Seller jointly and
severally represents and warrants to Buyer that each of the following
representations and warranties are true and correct, except with respect to any
Repurchased Mortgage Loan in which the claimed breach of the representation or
warranty is expressly identified to Buyer in writing pursuant to clause (b) of
the definition of Repurchased Mortgage Loan except that with respect to an
Exception Mortgage Loan such exceptions as have been approved by the Buyer. With
respect to any representations and warranties made to the best of Sellers'
knowledge, in the event that it is discovered that the circumstances with
respect to the related Mortgage Loan are not accurately reflected in such
representation and warranty notwithstanding the knowledge or lack of knowledge
of the Sellers then, notwithstanding that such representation and warranty is
made to the best of the Sellers' knowledge, such Mortgage Loan shall be assigned
a Market Value of zero.
(a) Payments Current. Except with respect to each Non-Performing
Mortgage Loan, 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 nor has any payment
under the Mortgage Loan been delinquent at any time since the origination of the
Mortgage Loan. 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 any 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/or 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 Custodial
Mortgage Loan Schedule. 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 Custodial Mortgage Loan Schedule. 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
Sch. 1-2
agreement is part of the Mortgage File delivered to the Custodian and the terms
of which are reflected in the Custodial Mortgage Loan Schedule.
(d) No Defenses. The Mortgage Loan is not subject to any 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. Neither Seller has 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.
(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 the applicable 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 the 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 the applicable 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
Sellers. 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.
Neither 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
Sch. 1-3
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 either 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 the
applicable 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.
(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. Neither Seller has 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 Custodial Mortgage Loan
Schedule 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 low-rise 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
Sch. 1-4
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;
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
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) with
respect to each first lien mortgage loan, a valid, subsisting and enforceable
first lien and first priority security interest or (b) with respect to each
Second Lien Mortgage Loan, second priority lien and second priority security
interest on the property described therein and Sellers have 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; with respect to each Co-op Loan, each Assignment of Lease
Agreement creates a valid, enforceable and subsisting first security interest in
the collateral securing the related Mortgage Note subject only to (a) the lien
of the related Co-op Corporation for unpaid assessments representing the
obligor's pro rata share of the Co-op Corporation's payments for its blanket
mortgage, current and future real property taxes, insurance premiums,
maintenance fees and other assessments to which like collateral is commonly
subject and (b) other matters to which like collateral is commonly subject which
do not materially interfere with the benefits of the security intended to be
provided by the Assignment of Lease Agreement; provided, however, that the
appurtenant Proprietary Lease may be subordinated or otherwise subject to the
lien of any mortgage of the Co-op Project;
(j) Validity of Mortgage Documents. The Mortgage Note and the Mortgage
with respect to the Mortgage Loan (and the Assignment of Lease Agreement with
respect to each Co-op Loan) 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. With respect to each Co-op Loan, all parties to the Mortgage
Note and the Mortgage Loan had legal capacity to execute and deliver the
Mortgage Note, the Assignment of Lease Agreement, the Proprietary Lease, the
Stock Power, the Recognition Agreement, the Financing Statement and the
Assignment of Proprietary Lease and such documents have been duly and properly
executed by such parties, each Stock Power (i) has all signatures guaranteed or
(ii) if all signatures are not guaranteed, then such Co-op Shares will be
transferred by the stock transfer agent of the Co-op Corporation if the Sellers
undertake to convert the ownership of the collateral securing the related Co-op
Loan. No fraud, error, omission, misrepresentation, negligence or similar
occurrence with respect to a Mortgage
Sch. 1-5
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. Sellers have 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 Sellers' 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. Except with respect to HELOCs,
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
(except to the extent that holdbacks and escrows are permitted by Xxxxxx Mae or
Xxxxxxx Mac). 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. The applicable 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, (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. Other than HELOCs where the Underwriting
Guidelines provide for origination without title insurance and the Take-out
Investor does not require title insurance for its purchase thereof, 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 Sellers, their 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, with respect to a
Mortgage Loan other than a HELOC, or the original Credit Limit, with respect to
a HELOC (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 (4) of
Sch. 1-6
paragraph (i) of this 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. Additionally, such lender's title
insurance policy affirmatively insures ingress and egress and against
encroachments by or upon the Mortgaged Property or any interest therein. 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. The applicable 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 the
applicable Seller, has done, by act or omission, anything which would impair the
coverage of such lender'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 either 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; and with respect to each
Co-op Loan, there is no default in complying with the terms of the Mortgage
Note, the Assignment of Lease Agreement and the Proprietary Lease and all
maintenance charges and assessments (including assessments payable in the future
installments, which previously became due and owing) have been paid, and the
related Seller has the right under the terms of the Mortgage Note, Assignment of
Lease Agreement and Recognition Agreement to pay any maintenance charges or
assessment owed by the Mortgagor.
(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 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. The Mortgage Loan was originated by or
in conjunction with a mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National Housing Act, a
savings and loan association, a
Sch. 1-7
savings bank, a commercial bank, credit union, insurance company or similar
banking institution which is supervised and examined by a federal or state
authority. Other than respect to HELOCs and Interest Only Loans, principal
and/or interest payments on the Mortgage Loan commenced no more than 60 days
after funds were disbursed in connection with the Mortgage Loan. With respect to
adjustable rate Mortgage Loans, the Mortgage Interest Rate is adjusted 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.
Other than with respect to a HELOC, or the Credit Limit, with respect to a
HELOC, the Mortgage Note is payable on the first day of each month in equal
monthly installments of principal and/or interest (subject to an "interest only"
period in the case of Interest Only Loans), which installments of interest (a)
with respect to adjustable rate Mortgage Loans are subject to change on the
Interest Rate Adjustment Date due to adjustments to the Mortgage Interest Rate
on each Interest Rate Adjustment Date and (b) with respect to Interest Only
Loans are subject to change on the Interest Only Adjustment Date due to
adjustments to the Mortgage Interest Rate on each Interest Only Adjustment Date,
in both cases 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. With respect to HELOCs, the related Mortgagor may
request advances up to the Credit Limit within the first ten years following the
date of origination. Each HELOC will amortize within 30 years from the date of
origination.
(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. 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. Neither Seller has 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. Neither Seller has 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.
Sch. 1-8
(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.
(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
intended for purchase by GNMA and for 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 with respect to Mortgage Loans intended for
purchase by GNMA, 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 either 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 or, in the case of Second Lien Mortgage Loans, a second 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 or with respect to HELOC's, the Credit Limit of
the Mortgage Loan.
(aa) No Condemnation Proceeding. There have not been any condemnation
proceedings with respect to the Mortgaged Property and neither Seller has
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 the applicable 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
Sch. 1-9
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, the applicable
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 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 either 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
Xxx 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 either Seller or any designee of either Seller or any corporation in
which either Seller or any officer, director, or employee had a financial
interest at the time of placement of such insurance.
(ee) Servicemembers Civil Relief Act. The Mortgagor has not notified
either Seller, and neither Seller has knowledge, of any relief requested or
allowed to the Mortgagor under the Servicemembers Civil Relief Act of 2003.
(ff) Appraisal. Except with respect to HELOCs originated in accordance
with the Underwriting Guidelines or if not otherwise required by Xxxxxx Mae or
Xxxxxxx Mac for such Mortgage Loan, the Mortgage File contains an appraisal of
the related Mortgaged Property signed prior to the funding of the Mortgage Loan
by a qualified appraiser, duly appointed by the applicable 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
the applicable Seller maintains such statement in the Mortgage File.
Sch. 1-10
(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.
(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 either Seller
on or prior to such date) which has resulted or will result in 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 either 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 neither Seller has 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 the applicable Seller or any Affiliate or
correspondent of such Seller, except in connection with a refinanced Mortgage
Loan.
(mm) Origination Date. The origination date is no earlier than sixty
(60) days prior to the related Purchase Date.
(nn) No Exception. The Custodian has not noted any material exceptions
on a Custodial Mortgage Loan Schedule with respect to the Mortgage Loan which
would materially adversely affect the Mortgage Loan or Buyer's interest in the
Mortgage Loan and, which in the case of a Wet-Ink Mortgage Loan, has not been
cured within seven Business Days of purchase.
(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 the applicable Seller and held in such Seller's name.
Sch. 1-11
(qq) Bona Fide Loan. Such Purchased Mortgage Loan arose from a bona
fide loan, complying 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.
(rr) Other Encumbrances. To the best of each 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 Custodial Mortgage Loan Schedule
delivered to the Custodian and Buyer.
(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) Aging. Such Purchased Mortgage Loan has not been subject to a
Transaction hereunder for more than 180 days.
(ww) 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).
(xx) Primary Mortgage Guaranty Insurance. Where applicable, 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 eligible to be insured, pursuant
to the National Housing Act. Each Mortgage Loan which is represented by the
applicable Seller to be guaranteed, or to be eligible for guaranty, by the VA is
guaranteed, or eligible to be guaranteed, under the
Sch. 1-12
provisions of 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 or 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 enforceability of any
private mortgage insurance or FHA insurance applicable to the Mortgage Loans or
any VA guaranty with respect to the Mortgage Loans.
(yy) Predatory Lending Regulations; High Cost Loans. None of the
Mortgage Loans are classified as High Cost Mortgage Loans.
(zz) 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 the applicable 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.
(aaa) 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 purchase of such Mortgage Loans.
(bbb) Revolving Period. Each HELOC provides for an initial period (the
"Revolving Period") during which the Mortgagor is required to make monthly
payments of interest payable in arrears and requires repayment of the unpaid
principal balance thereof over a period following the Revolving Period (the
"Repayment Period") which is not in excess of 120 months. As of the Purchase
Date no HELOC was in its Repayment Period. The Mortgage Interest Rate on each
Mortgage Loan adjusts periodically in accordance with the Credit Line Agreement
to equal the sum of the Index and the related Gross Margin. On each Adjustment
Date the related Seller has made interest rate adjustments on the Mortgage Loan
which are in compliance with the related Mortgage and Mortgage Note and
applicable law.
(ccc) Co-op Loan: Valid First Lien. With respect to each Co-op Loan,
the related Mortgage is a valid, enforceable and subsisting first security
interest on the related cooperative shares securing the related cooperative note
and lease, subject only to (a) liens of the cooperative for unpaid assessments
representing the Mortgagor's pro rata share of the cooperative's payments for
its blanket mortgage, current and future real property taxes, insurance
premiums, maintenance fees and other assessments to which like collateral is
commonly subject and (b) other matters to which like collateral is commonly
subject which do not materially
Sch. 1-13
interfere with the benefits of the security intended to be provided by the
security interest. There are no liens against or security interests in the
cooperative shares relating to each Co-op Loan (except for unpaid maintenance,
assessments and other amounts owed to the related cooperative which individually
or in the aggregate will not have a material adverse effect on such Co-op Loan),
which have priority equal to or over the Sellers' security interest in such
Co-op Shares;
(ddd) Co-op Loan: Compliance with Law. With respect to each Co-op
Loan, the related cooperative corporation that owns title to the related
cooperative apartment building is a "cooperative housing corporation" within the
meaning of Section 216 of the Internal Revenue Code, and is in material
compliance with applicable federal, state and local laws which, if not complied
with, could have a material adverse effect on the Mortgaged Property;
(eee) Co-op Loan: No Pledge. With respect to each Co-op Loan, there is
no prohibition against pledging the shares of the cooperative corporation or
assigning the Proprietary Lease. With respect to each Co-op Loan, (i) the term
of the related Proprietary Lease is longer than the term of the Co-op Loan, (ii)
there is no provision in any Proprietary Lease which requires the Mortgagor to
offer for sale the Co-op Shares owned by such Mortgagor first to the Co-op
Corporation, (iii) there is no prohibition in any Proprietary Lease against
pledging the Co-op Shares or assigning the Proprietary Lease and (iv) the
Recognition Agreement is on a form of agreement published by Aztech Document
Systems, Inc. as of the date hereof or includes provisions which are no less
favorable to the lender than those contained in such agreement; and
(fff) Co-op Loan: Acceleration of Payment. With respect to each Co-op
Loan, each Assignment of Proprietary Lease contains enforceable provisions such
as to render the rights and remedies of the holder thereof adequate for the
realization of the material benefits of the security provided thereby. The
Assignment of Proprietary Lease contains an enforceable provision for the
acceleration of the payment of the unpaid principal balance of the Mortgage Note
in the event the Co-op Unit is transferred or sold without the consent of the
holder thereof.
Sch. 1-14
Schedule 1-1
SCHEDULE 2
AUTHORIZED REPRESENTATIVES
SELLER NOTICES
Address: MortgageIT, Inc.
Name: Xxxxxxx X. Xxxxxxxx 00 Xxxxxx Xxxx, 0xx Xxxxx
Telephone: 000-000-0000 Xxx Xxxx, XX 00000
Facsimile: 000-000-0000 Attention: Chief Operating Officer
Address: MortgageIT Holdings, Inc.
Name: Xxxx Xxxx 00 Xxxxxx Xxxx, 0xx Xxxxx
Telephone: 000-000-0000 Xxx Xxxx, XX 00000
Facsimile: 000-000-0000 Attention: Xxxxxxx Xxxxxxxx
MORTGAGEIT, INC. AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized,
acting singly, to act for Seller under this Agreement:
Name Title Signature
--------------- ----------------------------- ------------------------------
Xxxx X. Xxxxxx Chief Executive Officer
Xxxx X. Xxxx General Counsel and Secretary
Xxxxxx X. Xxxx Chief Financial Officer
MORTGAGEIT HOLDINGS, INC. AUTHORIZATIONS
Any of the persons whose signatures and titles appear below are authorized,
acting singly, to act for Seller under this Agreement:
Name Title Signature
---------------- ----------------------------- -----------------------------
Xxxx X. Xxxxxx Chief Executive Officer
Xxxx X. Xxxx General Counsel and Secretary
Xxxxx X. Xxxxxxx Chief Financial Officer
A-I-1
BUYER NOTICES
Address: Credit Suisse First Boston
Name: Xxxx Xxxxxxxxx Mortgage Capital LLC
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Telephone: 000-000-0000 Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
BUYER AUTHORIZATIONS
Any of the persons whose signatures and titles appear below, including any other
authorized officers, are authorized, acting singly, to act for Buyer under this
Agreement:
Name Title Signature
----------------- ---------------------------- -----------------------------
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
Xxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxxxx
A-I-2
ANNEX I
BUYER ACTING AS AGENT
This Annex I forms a part of the Master Repurchase Agreement dated as
of March 11, 2005 (the "Agreement") among Credit Suisse First Boston Mortgage
Capital LLC, MortgageIT, Inc. and MortgageIT Holdings, Inc. 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 Sellers 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 Mortgage Loan or portion of the
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 Purchase Price or
Purchased Mortgage Loans, 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.
A-I-1
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 each applicable 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 Sellers' 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 Sellers 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 Sellers' 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.
A-I-2
(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 Sellers' obligations to Buyer or Buyer's obligations to Sellers,
as the case may be, and for receipt of performance by Buyer of its obligations
to Sellers or Sellers of their 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.
A-I-3
ANNEX II
PERIODIC FEE SCHEDULE
The Periodic Fee shall be an amount equal to the product of (x) 0.10%
per annum and (y) the Maximum Committed Purchase Price, based on a 360 day year
payable quarterly in arrears.
A-1
EXHIBIT A
FORM OF TRANSACTION REQUEST
[Date]
Credit Suisse First Boston Mortgage Capital LLC
[Address]
Attention: ________________
Re: Master Repurchase Agreement dated as of March 11, 2005 (as amended from
time to time, the "Master Repurchase Agreement") by and among MortgageIT,
Inc., MortgageIT Holdings, Inc. and Credit Suisse First Boston Mortgage
Capital LLC
[Name] hereby requests that Credit Suisse First Boston Mortgage Capital LLC
("CSFBMCL") enter into a Transaction with respect to the Mortgage Loans listed
on the Custodial Mortgage Loan Schedule attached hereto on Attachment 1 and as
set forth below, pursuant to the Master Repurchase Agreement.
TOTAL NUMBER OF MORTGAGE LOANS ___ Mortgage Loans - (See
Custodial Mortgage Loan Schedule)
ORIGINAL PRINCIPAL AMOUNT OF MORTGAGE LOANS: $
CURRENT PRINCIPAL AMOUNT OF MORTGAGE LOANS: $
PROPOSED PURCHASE PRICE: $
PURCHASE PRICE INCREASE: $
AGGREGATE 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.)
A-2
[Name]
By:
----------------------------------------
Name:
Title:
[wire instructions]
A-3
EXHIBIT B
FORM OF PURCHASE CONFIRMATION
[Date]
MortgageIT, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
MortageIT Holdings, Inc.
00 Xxxxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention:
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 Custodial Mortgage Loan Schedule pursuant to the Master Repurchase
Agreement dated as of March 11, 2005 (as amended from time to time, the "Master
Repurchase Agreement") by and among MortgageIT, Inc., MortgageIT Holdings, Inc.
and Credit Suisse First Boston Mortgage Capital LLC under the following terms
and conditions:
--------------------------------------------------------------------------------
Market Value: $
--------------------------------------------------------------------------------
Current Principal Amount of Mortgage Loans: $
--------------------------------------------------------------------------------
Aggregate Purchase Price: $
--------------------------------------------------------------------------------
Purchase Date:
--------------------------------------------------------------------------------
Repurchase Date:
--------------------------------------------------------------------------------
Pricing Rate:
--------------------------------------------------------------------------------
ADDITIONAL INFORMATION:
--------------------------------------------------------------------------------
Aggregate Purchase Price (date): $
--------------------------------------------------------------------------------
Less Previous Aggregate Purchase Price: $
--------------------------------------------------------------------------------
Less Price Differential due on (date): $
--------------------------------------------------------------------------------
Net funds due [CSFB]/[MortgageIT] on (date): $
--------------------------------------------------------------------------------
B-1
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:
MORTGAGEIT, INC.
By:
----------------------------------------
Name:
Title:
MORTGAGEIT HOLDINGS, INC.
By:
----------------------------------------
Name:
Title:
B-2
EXHIBIT C
MORTGAGE LOAN SCHEDULE
MORTGAGE LOAN CHARACTERISTICS
1. Customer Name
2. Collateral Number
3. Primary Borrower Last Name
4. Primary Borrower First Name
5. Co-Borrower Last Name *
6. Co-Borrower First Name *
7. Property Address
8. City
9. State
10. Zip Code
11. County
12. SS Number
13. SS # Co-borrower *
14. Product Type/Code
15. Loan Amount
16. Original monthly principal and interest
17. Original interest rate
18. Original date of Mortgage Note
19. Closing Date
20. First Payment Date
21. Maturity Date
22. Loan Type (adjustable, fixed, etc)
23. Purchase Date
24. Funding Method Code (wire disbursement, etc.)
25. Closing Agent
26. Address
27. City
28. State
29. Zip Code
30. Account Number
31. ABA Number
32. Closing Schedule
33. Instructions
34. Name of Bank
35. Address of Bank
36. City of Bank
37. State of Bank
38. Zip of Bank
39. Other Account Bank *
40. Further Instructions *
C-1
41. Investor *
42. Investor Commitment Number *
43. Price *
44. Commitment Date *
45. Commitment Expiration Date *
46. Property Type
47. Lien Position
48. LTV
49. CLTV
50. FICO
51. Amortization Term
52. Purpose
53. No. of Units
54. Original Appraised Value
55. Name of appraiser
56. Certificate Number for each loan with primary mortgage insurance*
57. Margin*
58. Life floor*
59. Index type*
60. Initial rate floor*
61. Periodic rate cap*
62. Life cap*
63. First interest rate adjustment date*
* If applicable.
C-2
EXHIBIT D
OFFICER'S COMPLIANCE CERTIFICATE
I, __________________________, do hereby certify that I am the duly elected,
qualified and authorized officer of MortgageIT, Inc. ("MortgageIT"). This
Certificate is delivered to you in connection with Section 17b of the Master
Repurchase Agreement dated as of March 11, 2005, among MortgageIT, Inc.,
MortgageIT Holdings, Inc. and Credit Suisse First Boston Mortgage Capital LLC
(as amended from time to time, the "Agreement"), as the same may have been
amended from time to time. I hereby certify that, as of the date of the
financial statements attached hereto and as of the date hereof, MortgageIT is
and has been in compliance with all the terms of the Agreement and, without
limiting the generality of the foregoing, I certify that:
Adjusted Tangible Net Worth. The Sellers, on a consolidated
basis, have maintained an Adjusted Tangible Net Worth of at least
$170,000,000. A detailed summary of the calculation of Seller's
actual Adjusted Tangible Net Worth is provided in Schedule 1
hereto.
Indebtedness to Adjusted Tangible Net Worth Ratio. During the
period beginning on the date hereof through and including May 31,
2005, Sellers have maintained a ratio of Indebtedness to Adjusted
Tangible Net Worth of no greater than 25:1. During the period
beginning on June 1, 2005 until the Termination Date, Sellers
have maintained a ratio of Indebtedness to Adjusted Tangible Net
Worth of no greater than 20:1. A calculation of Sellers' actual
Indebtedness to Adjust Tangible Net Worth is provided in Schedule
1 hereto.
Maintenance of Profitability. Sellers have not permitted, for any
Test Period, Net Income for such Test Period, before income taxes
for such Test Period and distributions made during such Test
Period, to be less than $1.00.
Insurance. Sellers or their Affiliates, have maintained, for
Sellers and their 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 $_____________.
Financial Statements. The financial statements attached hereto
are accurate and complete, accurately reflect the financial
condition of Sellers, and do not omit any material fact as of the
date(s) thereof.
Documentation. Sellers have 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.
D-1
Compliance. Each 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 Program
Agreements to be observed, performed and satisfied by it. [If a
covenant or other agreement or condition has not been complied
with, the applicable Seller shall describe such lack of
compliance and provide the date of any related waiver thereof.]
Regulatory Action. Neither Seller is currently under
investigation or, to best of any Seller's knowledge, no
investigation by any federal, state or local government agency is
threatened. Neither Seller has been the subject of any government
investigation which has resulted in the voluntary or involuntary
suspension of a license, a cease and desist order, or such other
action as could adversely impact Sellers' business. [If so, the
applicable Seller shall describe the situation in reasonable
detail and describe the action that Seller has taken or proposes
to take in connection therewith.]
No Default. No Default or Event of Default has occurred or is
continuing. [If any Default or Event of Default has occurred and
is continuing, applicable Seller shall describe the same in
reasonable detail and describe the action such Seller has taken
or proposes to take with respect thereto, and if such Default or
Event of Default has been expressly waived by Buyer in writing,
such Seller shall describe the Default or Event of Default and
provide the date of the related waiver.]
Indebtedness. All Indebtedness (other than Indebtedness evidenced
by the Repurchase Agreement) of Sellers existing on the date
hereof is listed on Schedule 2 hereto.
Purchased Mortgage Loans. Attached hereto as Schedule 3 is a true
and correct list of all Mortgage Loans purchased by Buyer and
held by Custodian pending repurchase.
Originations. Attached hereto as Schedule 4 is a true and correct
summary of all Mortgage Loans originated by Sellers during the
calendar quarter ending on [DATE].
Heding. Attached hereto as Schedule 5 is a true and correct
summary of all Interest Rate Protection Agreements entered into
or maintained by Sellers during the calendar quarter ending on
[DATE].
REIT Qualification Tests. Holdings is, and has been since
_____________, a real estate investment trust (a "REIT") for U.S.
federal income tax purposes. Attached hereto as Schedule 5 is a
true and correct summary of the calculations for REIT
qualification of Holdings.
REIT Asset and Income Tests.
D-2
1. At the close of each taxable year, at least 75 percent of Holdings'
gross income consists of (i) "rents from real property" within the
meaning of Section 856(c)(3)(A) of the Code, (ii) interest on
obligations secured by mortgages on real property or on interests in
real property, within the meaning of Section 856(c)(3)(B) of the Code,
(iii) gain from the sale or other disposition of real property
(including interests in real property and interests in mortgages on
real property) which is not property described in Section 1221(a)(1)
of the Code, within the meaning of Section 856(c)(3)(C) of the Code,
(iv) dividends or other distributions on, and gain (other than gain
from "prohibited transactions" within the meaning of Section
857(b)(6)(B)(iii) of the Code) from the sale or other disposition of,
transferable shares (or transferable certificates of beneficial
interest) in other qualifying REITs within the meaning of Section
856(d)(3)(D) of the Code, and (v) amounts described in Sections
856(c)(3)(E) through 856(c)(3)(I) of the Code.
2. At the close of each taxable year, at least 95 percent of Holdings'
gross income consists of (i) the items of income described in
paragraph 1 hereof (other than those described in Section 856(c)(3)(I)
of the Code), (ii) gain realized from the sale or other disposition of
stock or securities which are not property described in Section
1221(a)(1) of the Code, (iii) interest, (iv) dividends, and (v) income
derived from payments to Holdings on interest rate swap or cap
agreements, options, futures contracts, forward rate agreements and
other similar financial instruments entered into to reduce the
interest rate risks with respect to any indebtedness incurred or to be
incurred to acquire or carry real estate assets, or gain from the sale
or other disposition of such an investment as described in section
856(c)(5)(G), in each case within the meaning of Section 856(c)(2) of
the Code.
3. At the close of each quarter of Holdings' taxable years, at least 75
percent of the value of Holdings' total assets (as determined in
accordance with Treasury Regulations Section 1.856-2(d)) has consisted
of and will consist of real estate assets within the meaning of
Sections 856(c)(4) and 856(c)(5)(B) of the Code, cash and cash items
(including receivables which arise in the ordinary course of Holdings'
operations, but not including receivables purchased from another
person), and Government Securities; unless (a) the test described in
this paragraph (3) has been satisfied as of the end of the immediately
preceding quarter of Holdings' taxable year, (b) such test is not
satisfied as the result of the acquisition of a security or property
during the current quarter of Holdings' taxable year, (c) Holdings
delivers within 10 days of the end of the current quarter of Holdings'
taxable year to Buyer notice that such test is not satisfied, (d) such
test is satisfied within the 30 day period as provided under section
856(c)(4), and (e) an officer of Holdings certifies as to such
satisfaction within such 30 day period, and provides documentation,
reasonably satisfactory to Buyer evidencing such satisfaction.
D-3
4. At the close of each quarter of each of Holdings' taxable years, (a)
not more than 25 percent of Holdings' total asset value will be
represented by securities (other than those described in paragraph 3),
(b) not more than 20 percent of Holdings' total asset value will be
represented by securities of one or more taxable REIT subsidiaries,
and (c) (i) not more than 5 percent of the value of Holdings' total
assets will be represented by securities of any one issuer (other than
Government Securities and securities of taxable REIT subsidiaries),
and (ii) Holdings will not hold securities possessing more than 10
percent of the total voting power or value of the outstanding
securities of any one issuer (other than Government Securities,
securities of taxable REIT subsidiaries, and securities of a qualified
REIT subsidiary within the meaning of Section 856(i) of the Code);
unless (d) the tests described in this paragraph (4) have been
satisfied as of the end of the immediately preceding quarter of
Holdings' taxable year, (e) any of the tests described in this
paragraph (4) are not satisfied as the result of the acquisition of a
security or property during the current quarter of Holdings' taxable
year, (f) Holdings delivers within 10 days of the end of the current
quarter of Holdings' taxable year to Buyer notice that such test is
not satisfied, (g) such test is satisfied within the 30 day period as
provided under section 856(c)(4), and (h) an officer of Holdings
certifies as to such satisfaction within such 30 day period, and
provides documentation, reasonably satisfactory to Buyer evidencing
such satisfaction.
D-4
IN WITNESS WHEREOF, I have set my hand this ______ day of ________, ________.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
D-5
SCHEDULE 1 TO OFFICER'S COMPLIANCE CERTIFICATE
CALCULATIONS OF FINANCIAL COVENANTS
AS OF THE QUARTER ENDED [DATE]
I. ADJUSTED TANGIBLE NET WORTH
1. Net Worth (book) $
Plus:
2. Subordinated Debt (maturity (greater than) CSFB line maturity) $
I.(A) TOTAL OF ITEMS 1-2 $
Less:
3. Capitalized servicing balance $
4. Goodwill $
5. Receivables or advances due from shareholders,
affiliates, employees or related parties $
6. Trademarks $
7. Capitalized organizational expenses $
8. Copyrights $
9. Tradenames $
10. Restricted Cash $
11. Deferred Charges $
12. Prepaid assets $
13. Investments in related entities, partnerships $
14. Any other intangible assets $
I.(B) TOTAL OF ITEMS 3-14 $
I.(C) ACTUAL ADJUSTED TANGIBLE NET WORTH (A MINUS B) $
Adjusted Tangible Net Worth Covenant $
COMPLIANCE? YES / NO
II. LEVERAGE RATIO
TOTAL DEBT DIVIDED BY ADJUSTED TANGIBLE NET WORTH - ACTUAL XX.X
Leverage Covenant xx.x
COMPLIANCE? YES / NO
D-6
SCHEDULE 2 TO OFFICER'S COMPLIANCE CERTIFICATE
INDEBTEDNESS as of _________________________
----------------------------------------------------
TOTAL OUTSTANDING
LENDER COMMITMENT INDEBTEDNESS EXPIRATION DATE
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
D-7
SCHEDULE 3 TO OFFICER'S COMPLIANCE CERTIFICATE
PURCHASED MORTGAGE LOANS
D-8
SCHEDULE 4 TO OFFICER'S COMPLIANCE CERTIFICATE
OVERALL MORTGAGE LOAN ORIGINATIONS
------------------------------------------------------------------
TOTAL NUMBER OF AGGREGATE PRINCIPAL
MORTGAGE LOANS BALANCE OF MORTGAGE
MORTGAGE LOAN TYPE ORIGINATED LOANS ORIGINATED
------------------------------------------------------------------
Alt-A Mortgage Loans
------------------------------------------------------------------
Conforming Mortgage Loans
------------------------------------------------------------------
HELOCs
------------------------------------------------------------------
Jumbo Mortgage Loans
------------------------------------------------------------------
Second Lien Mortgage Loans
------------------------------------------------------------------
Sub-Prime Mortgage Loans
------------------------------------------------------------------
D-9
SCHEDULE 5 TO OFFICER'S COMPLIANCE CERTIFICATE
Interest Rate Protection Agreements
D-1
SCHEDULE 6 TO OFFICER'S COMPLIANCE CERTIFICATE
CALCULATIONS FOR REIT QUALIFICATION
AS OF THE QUARTER ENDED [DATE]
-----------------------------------------------------------------------------------------------------
I. 75% OF GROSS INCOME (SECTION 856(C)(3)):
-----------------------------------------------------------------------------------------------------
1. Gross income for quarter $
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
2. Qualifying income under section 856(c)(3) $
-----------------------------------------------------------------------------------------------------
3. Line 2 divided by Line 1 (cannot be less than 0.75)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
II. 95% OF GROSS INCOME (SECTION 856(C)(2)):
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
4. Qualifying income under section 856(c)(2)
-----------------------------------------------------------------------------------------------------
5. Line 4 divided by Line 1 (cannot be less than 0.95)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
III. 75% OF TOTAL ASSETS (SECTION 856(C)(4)(A)):
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
6. Value of total assets $
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
7. Qualifying assets under section 856(c)(4)(A) $
-----------------------------------------------------------------------------------------------------
8. Line 7 divided by Line 6 (cannot be less than 0.75)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
IV. 25% OF TOTAL ASSETS (SECTION 856(C)(4)(B)(I)):
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
9. Value of securities held (other than those included in Line 7) $
-----------------------------------------------------------------------------------------------------
10. Line 9 divided by Line 6 (cannot be more than 0.25)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
V. 20% OF TOTAL ASSETS (SECTION 856(C)(4)(B)(II)):
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
11. Value of securities of one or more taxable REIT subsidiaries $
-----------------------------------------------------------------------------------------------------
12. Line 11 divided by Line 6 (cannot be more than 0.2)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
VI. 5% OF TOTAL ASSETS (SECTION 856(C)(4)(B)(III)(I)):
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
13. Value of securities held of each issuer (except for those included in Line
7 or Line 11)
-----------------------------------------------------------------------------------------------------
14. Line 13 divided by Line 6 (cannot be more than 0.05)
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
F-1
EXHIBIT F
FORM OF OPINION OF SELLERS' 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 MortgageIT, Inc. ("MortgageIT" and a "Seller") and
MortgageIT Holdings, Inc. ("Holdings" and together with MortgageIT, Inc.,
"Sellers") 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 ("Buyer") pursuant to
a Master Repurchase Agreement, dated as of March 11, 2005, among Sellers and
Buyer (the "Master Repurchase Agreement"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Master Repurchase
Agreement.
We have acted as counsel to Sellers 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 such documents as we
have deemed necessary or advisable, including the following documents:
a. The Program Agreements;
b. The organizational documents of each Seller;
c. The certified Consents of the Officer of each Seller relating to the
transactions provided for in the Program Agreements;
d. A copy of a UCC-1 financing statement describing the Repurchase Assets naming
applicable Seller as debtor and Buyer as secured party, which will be filed
under the Uniform Commercial Code as in effect in the State of ___________ with
the office of the [Secretary of the State] of _________ (the "Filing Office") on
or about ________ __, 20__ (the "Financing Statement");
e. The reports attached hereto as Exhibit A (the "Search Reports"), which set
forth the results of an examination conducted by [Federal Research Corporation]
of all currently indexed UCC-1 financing statements naming Seller as debtor that
are on file in the Filing Office;
f. Good standing certificates, as of a recent date, for each Seller from each of
the States listed on Schedule 1 attached hereto; and
F-1
g. The certificates, letters and opinions required to be furnished by each
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. MortgageIT is a corporation, duly organized, validly existing and in good
standing under the laws of the State of New York, and has the corporate power
and authority to own its properties and transact the business in which it is
engaged. MortgageIT is duly qualified as a foreign corporation 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 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
2. Holdings is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Maryland, and has the corporate power
and authority to own its properties and transact the business in which it is
engaged. Holdings is duly qualified as a foreign corporation 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 00
Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
3. Each 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
Repurchase Assets and to perform and observe the terms and conditions of the
Program Agreements.
4. The Program Agreements have been duly and validly authorized, executed and
delivered by each Seller and are valid, legal and binding agreements,
enforceable against each 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.
5. No consent, approval, authorization or order of, or notice, filing or
registration with, any court or governmental agency or body is required for the
execution, delivery and performance by either Seller of, or compliance by such
entity with, the Program Agreements, or the transfer of the Repurchase Assets or
the consummation of the transactions contemplated by the Program Agreements.
6. 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 Seller, or the terms of any material indenture or
F-2
other agreement or instrument to which either 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 either 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 either Seller or any of its properties is subject or by which it is bound.
7. 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.
8. The conveyance of each Purchased 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 either Seller thereto as owner, noteholder and
mortgagee.
9. The Repurchase Agreement is effective to create, in favor of the Buyer, a
valid "security interest" as defined in Section 1-201(37) of the Uniform
Commercial Code in all of the right, title and interest of the Seller in, to and
under the Repurchase Assets, except that (a) such security interests will
continue in Repurchase Assets after its sale, exchange or other disposition only
to the extent provided in Section 9-306 of the Uniform Commercial Code, (b) the
security interests in Repurchase Assets in which any Seller acquires rights
after the commencement of a case under the Bankruptcy Code in respect of the
Seller may be limited by Section 552 of the Bankruptcy Code.
10. When the Mortgage Notes are delivered to the Custodian, endorsed in blank by
a duly authorized officer of applicable 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.
11. (a) Upon the filing of Financing Statements with the Filing Office, the
security interests referred to in Section 9 above will constitute a fully
perfected security interest under the Uniform Commercial Code in all right,
title and interest of applicable Seller in, to and under such Repurchase
Assets, to the extent that a security interest therein 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
Repurchase Assets 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 Repurchase Assets prior to the effective
dates of the UCC Search Report.
F-3
12. Neither Seller is 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,
----------------------------------------
F-4
EXHIBIT G
UNDERWRITING GUIDELINES
G-1
EXHIBIT H
Certificate of an Officer of the Seller
The undersigned, ____________ of [MortgageIT, Inc.] [MortgageIT
Holdings, Inc.], a [STATE] corporation (the "[Seller]"), hereby certifies as
follows:
1. Attached hereto as Exhibit A is a copy of the Certificate of
Incorporation of the [Seller], as certified by the Secretary of State of the
State of [STATE].
2. Neither any amendment to the Certificate of Incorporation of the
[Seller] nor any other charter document with respect to the [Seller] has been
filed, recorded or executed since _______ __, 200__, and no authorization for
the filing, recording or execution of any such amendment or other charter
document is outstanding.
3. Attached hereto as Exhibit B is a true, correct and complete copy
of the By-laws of the [Seller] as in effect as of the date hereof and at all
times since ________, 200__.
4. Attached hereto as Exhibit C is a true, correct and complete copy
of resolutions adopted by the Board of Directors of the [Seller] by unanimous
written consent on _________ __, 200_ (the "Resolutions"). The Resolutions have
not been further amended, modified or rescinded and are in full force and effect
in the form adopted, and they are the only resolutions adopted by the Board of
Directors of the [Seller] or by any committee of or designated by such Board of
Directors relating to the execution and delivery of, and performance of the
transactions contemplated by the Master Repurchase Agreement dated as of March
11, 2005 (the "Repurchase Agreement"), between the Seller and Credit Suisse
First Boston Mortgage Capital LLC (the "Buyer") and the Custodial Agreement
dated as of March 11, 2005, among the Seller, the Buyer and LaSalle Bank,
National Association, as custodian (the "Custodian").
5. The Repurchase Agreement and the [Custodial Agreement] are
substantially in the form approved by the Resolutions or pursuant to authority
duly granted by the Resolutions.
6. The undersigned, as a officers of the [Seller] or as
attorney-in-fact, are authorized to and have signed manually the Repurchase
Agreement, the [Custodial Agreement] or any other document delivered in
connection with the transactions contemplated thereby, were duly elected or
appointed, were qualified and acting as such officer or attorney-in-fact at the
respective times of the signing and delivery thereof, and were duly authorized
to sign such document on behalf of the [Seller], and the signature of each such
person appearing on any such document is the genuine signature of each such
person.
Name Title Signature
---- ----- ---------
H-1
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Certificate as of the _____ day of __________________, 200_.
_____________________________________[Seller], as [Seller]
By:
---------------------------------
Name:
Title:
H-2
Exhibit C to Officer's Certificate of the Seller
CORPORATE RESOLUTIONS OF SELLER
Action of the Board of Directors
Without a Meeting Pursuant to
Section ______ of ________
The undersigned, being the directors of [______________________], a
[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 Sellers 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 Sellers such Mortgage
Loans at a date certain or on demand, against the transfer of funds by Sellers
pursuant to the terms of the Repurchase Agreement (as defined below).
NOW, THEREFORE, be it
RESOLVED, that the execution, delivery and performance by the Sellers
of the Master Repurchase Agreement (the "Repurchase Agreement") to be entered
into by the Sellers and Credit Suisse First Boston Mortgage Capital LLC, as
Buyer, substantially in the form of the draft dated March 11, 2005, attached
hereto as Exhibit A, are hereby authorized and approved and that the [President]
or any [Vice President] (collectively, the "Authorized Officers") of the
applicable 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 Sellers
of the Custodial Agreement (the "Custodial Agreement") to be entered into by the
Sellers, the Buyer and LaSalle Bank, National Association, as custodian (the
"Custodian") substantially in the form of the draft dated March 11, 2005,
attached hereto as Exhibit B, are hereby authorized and approved and that the
Authorized Officers of the applicable 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;
H-3
RESOLVED, that the Authorized Officers hereby are, and each hereby is,
authorized to execute and deliver all such aforementioned agreements on behalf
of the Sellers and to do or cause to be done, in the name and on behalf of the
Sellers, any and all such acts and things, and to execute, deliver and file in
the name and on behalf of the Sellers, 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 Sellers
are, and each of such officers, agents and counsel is, hereby authorized for and
in the name and on behalf of the applicable 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 Sellers 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_
H-4
EXHIBIT I
SELLER'S TAX IDENTIFICATION NUMBER
MortgageIT, Inc. 00-0000000
MortgageIT Holdings, Inc. 00-0000000
I-1
EXHIBIT J
EXISTING INDEBTEDNESS
UBS $1.15 billion warehouse line
Xxxxxxx Xxxxx $500 million warehouse line
RFC $100 million warehouse line
J-1
EXHIBIT K
FORM OF ESCROW INSTRUCTION LETTER TO BE PROVIDED BY SELLER 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 MortgageIT, Inc. and MortgageIT
Holdings, Inc. 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
Sellers 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 Sellers, and that you are acting as an independent
contractor and not as an agent of Sellers.
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.
K-1
Whether or not an Escrow Instruction Letter 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.
K-2
EXHIBIT L
BANK FEE SCHEDULE
COLLATERAL SERVICES GROUP
Schedule of Fees
Credit Suisse/First Boston Corporation; Mortgage IT
March 11, 2005
Deposit/Review Fee $ 6.00 per file
Deposit Fee includes balancing collateral to client electronic data, review to
Custodial Agreement.
Miscellaneous Expenses At Cost
Miscellaneous expenses include but are not limited to legal fees, postage,
overnight carrier services, monthly dda account maintenance, supplies etc.
L-1
EXHIBIT M
FORM OF SERVICER NOTICE
[Date]
[________________], as Servicer
[ADDRESS]
Attention: ___________
Re: Master Repurchase Agreement, dated as of March 11, 2005 (the
"Repurchase Agreement"), by and between MortgageIT, Inc. and
MortgageIT Holdings, Inc.. (the "Sellers") and Credit Suisse First
Boston Mortgage Capital LLC (the "Buyer").
Ladies and Gentlemen:
[___________________] (the "Servicer") is servicing certain mortgage loans for
Sellers pursuant to that certain Servicing Agreement between the Servicer and
Sellers. Pursuant to the Repurchase Agreement between Buyer and Sellers, the
Servicer is hereby notified that Sellers have 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 Sellers, the Servicer may conclusively rely on any information or Notice of
Event of Default delivered by Buyer, and Sellers 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.
M-1
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: [___];
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:
M-2
