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Exhibit 10.20
[PSA LOGO]
Public Securities Association
00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000
Telephone (000)000-0000
MASTER REPURCHASE AGREEMENT
Dated as of: NOVEMBER 7, 2001
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Between:
IMPAC WAREHOUSE LENDING GROUP
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and
APPROVED FEDERAL SAVINGS BANK
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1. Applicability
From time to time the parties hereto may enter into transactions in which
one party ("Seller") agrees to transfer to the other ("Buyer") securities or
financial instruments or whole mortgage loans or any interests in any whole
mortgage loans, including, without limitation, mortgage participation
certificates and mortgage pass-through certificates ("Securities") against the
transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer
to Seller such Securities at a date certain or on demand, against the transfer
of funds by Seller. Each such transaction shall be referred to herein as a
"Transaction" and shall be governed by this Agreement, including any
supplemental terms or conditions contained in Annex 1 hereto, unless otherwise
agreed in writing.
2. Definitions
(a) "Act of Insolvency", with respect to any party, (i) the commencement by
such party as debtor of any case or proceeding under any conservatorship or
receivership (within the meaning of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989) bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law, or such party seeking the appointment
of a conservator receiver, trustee, custodian or similar official for such party
or any substantial part of its property, or (ii) the commencement of any such
case or proceeding against such party, or another seeking such an appointment,
or the filing against a party of an application for a protective decree under
the provisions of the Securities Investor Protection Act of 1970, which (A) is
consented to or not timely contested by such party, (B) results in the entry of
an order for relief, such an appointment, the issuance of such a protective
decree or the entry of an order having a similar effect, or (C) is not dismissed
within 15 days, (iii) the making by a party of a general assignment for the
benefit of creditors, or (iv) the admission in writing by a party of such
party's inability to pay such party's debts as they become due;
(b) "Additional Purchased Securities", Securities provided by Seller to
Buyer pursuant to Paragraph 4(a) hereof;
(c) "Buyer's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of a percentage (which may be equal to
the percentage that is agreed to as the Seller's Margin Amount under
subparagraph (q) of this Paragraph), agreed to by Buyer and Seller prior to
entering into the Transaction, to the Repurchase Price for such Transaction as
of such date;
(d) "Confirmation", the meaning specified in Paragraph 3(b) hereof;
(e) "Income", with respect to any Security at any time, an principal
thereof then payable and all interest, dividends or other distributions thereon;
(f) "Margin Deficit", the meaning specified in Paragraph 4(a) hereof;
(g) "Margin Excess", the meaning specified in Paragraph 4(b) hereof;
(h) "Assumed Repurchase Value", with respect to any Securities as of any
date, the price for such Securities on such date obtained from a generally
recognized source agreed to by the parties or the most recent
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closing bid quotation from such a source, plus accrued Income to the extent not
included therein (other than any Income credited or transferred to, or applied
to the obligations of, Seller pursuant to Paragraph 5 hereof) as of such date
(unless contrary to market practice for such Securities) except that the Assumed
Repurchase Value of any Securities that are loans secured by mortgages or deeds
of trust on residential dwellings (such loans, "Mortgage Loans") as of any date
shall be the dollar amount ascribed to such Mortgage Loans on that date by Buyer
in its reasonable and sole discretion, and shall not include any Income on such
Mortgage Loans paid to and held by Seller pursuant to Paragraph 5 hereof, and
the Assumed Repurchase Value of any Additional Purchased Securities shall be the
fair market value thereof as determined by Buyer in its reasonable and sole
discretion;
(i) "Price Differential", with respect to any transaction hereunder as of
any date, the aggregate amount obtained by daily application of the Pricing Rate
for such Transaction to the Purchase Price for such Transaction on a 360 day per
year basis for the actual number of days during the period commencing on (and
including) the Purchase Date for such Transaction and ending on (but excluding)
the date of determination (reduced by any amount of such Price Differential
previously paid by Seller to Buyer with respect to such Transaction);
(j) "Pricing Rate", the per annum percentage rate for determination of the
Price Differential;
(k) "Prime Rate", the prime rate of U.S. money center commercial banks as
published in The Wall Street Journal;
(l) "Purchase Date", the date on which Purchased Securities are transferred
by Seller to Buyer;
(m) "Purchase Price", (i) on the Purchase Date, the price at which
Purchased Securities are transferred by Seller to Buyer, and (ii) thereafter,
such price increased by the amount of any cash transferred by Buyer to Seller
pursuant to Paragraph 4(b) hereof and decreased by the amount of any cash
transferred by Seller to Buyer pursuant to Paragraph 4(a) hereof or applied to
reduce Seller's obligations under clause (ii) of Paragraph 5 hereof;
(n) "Purchased Securities", the Securities transferred by Seller to Buyer
in a Transaction hereunder, and any Securities substituted therefor in
accordance with Paragraph 9 hereof. The term "Purchased Securities" to Paragraph
4(a) and shall exclude Securities returned pursuant to Paragraph 4(b);
(o) "Repurchase Date", the date on which Seller is to repurchase the
Purchased Securities from Buyer, including any date determined by application of
the provisions of Paragraphs 3(c) or 11 hereof;
(p) "Repurchase Price", the price at which Purchased Securities are to be
transferred from Buyer to Seller upon termination of a Transaction, which will
be determined in each case (including Transactions terminable upon demand) as
the sum of the Purchase Price and the Price Differential as of the date of such
determination, increased by any amount determined by the application of the
provisions of Paragraph 11 hereof;
(q) "Seller's Margin Amount", with respect to any Transaction as of any
date, the amount obtained by application of a percentage (which may be equal to
the percentage that is agreed to as the Buyer's Margin Amount under subparagraph
(c) of this Paragraph), agreed to by Buyer and Seller prior to entering into the
Transaction, to the Repurchase Price for such Transaction as of such date.
3. Initiation; Confirmation; Termination
(a) An agreement to enter into a Transaction may be made orally or in
writing at the initiation of either Buyer or Seller. On the Purchase Date for
the Transaction, the Purchased Securities shall be transferred to Buyer or its
agent against the transfer of the Purchase price to an account of Seller.
(b) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller
(or both), as shall be agreed, shall promptly deliver to the other party a
written confirmation of each Transaction (a "Confirmation"). In the case of
Transactions involving Securities that are Mortgage Loans, (a) the Purchased
Securities shall be identified on a detailed listing to be provided by Seller to
Buyer (a "Mortgage Loan Schedule") attached to a Certificate of Seller in the
form attached hereto, (b) the Confirmation shall be sent by Seller to Buyer, (c)
the documents contained in the Mortgage File (as defined in Paragraph 7) shall
be delivered at the option of the Buyer to the Buyer, or the Custodian, and held
by the Custodian pursuant to the terms of a Custody Agreement, dated of enven
date herewith (the :Custody Agreement"), among Seller, Buyer and Custodian
pursuant to which Custodian shall, among other things, issue Trust Receipts, as
defined therein (the "Trust Receipts"), and (d) the Mortgage Loans shall be
serviced for Buyer by Seller pursuant to the Servicing Agreement, dated of even
date herewith (the "Servicing Agreement"), between Seller and Buyer. The
Confirmation shall describe the Purchased Securities (including CUSIP number, if
any), identify Buyer and Seller and set forth (i) the Purchase Date, (ii) the
Purchase
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Price, (iii) the Repurchase Date, unless the Transaction is to be terminable on
demand, (iv) the Pricing Rate or Repurchase Price applicable to the Transaction,
and (v) any additional terms or conditions of the Transaction not inconsistent
with this Agreement. The Confirmation, together with this Agreement, shall
constitute conclusive evidence of the terms agreed between Buyer and Seller with
respect to the Transaction to which the Confirmation relates, unless with
respect to the Confirmation specific objection is made promptly after receipt
thereof. In the event of any conflict between the terms of such Confirmation and
this Agreement, the terms of such Confirmation shall prevail.
(c) In the case of transactions terminable upon demand, such demand shall
be made by Buyer or Seller, no later than such time as is customary in
accordance with market practice, by telephone or otherwise on or prior to the
business day on which such termination will be effective. In the case of
Transactions involving Securities that are Mortgage Loans, (i) which meet the
requirements of the Seller's Warranties Agreement, such demand by Buyer may not
be made prior to 30 days following the date of the Transaction in which the
Securities were originally conveyed to Buyer provided no event of default has
occurred; (ii) which do not meet the requirements of the Seller's Warranties
Agreement in all material respects, such demand by Buyer may be made at any
time; or (iii) Seller may repurchase at any time, irrespective of whether the
particular Mortgage Loans(s) meets the requirements of the Seller's Warranties
Agreement. In any case, such demand either by Buyer or by Seller shall be for a
repurchase of all Purchased Securities subject to the related Transaction and
such demand shall be made no later than 5:00 p.m. New York City time on the
business day preceding the day on which such termination will be effective,
which termination shall also be on a business day. Upon receipt of the
Repurchase Price in immediately available funds, Buyer shall deliver the Trust
Receipt for such Transaction to Custodian for further disposition in accordance
with the terms of the Custody Agreement.On the date specified in such demand, or
on the date fixed for termination in the case of Transactions having a fixed
term, termination of the Transaction will be effected by transfer to Seller or
its agent of the purchased Securities and any Income in respect thereof received
by Buyer (and not previously credited or transferred to, or applied to the
obligations of, Seller pursuant to Paragraph 5 hereof) against the transfer of
the Repurchase Price to an account of Buyer.
4. Margin Maintenance
(a) If at any time the aggregate Assumed Repurchase Value of all Purchased
Securities subject to all Transactions in which a particular party hereto is
acting as Buyer is less than the aggregate Buyer's Margin Amount for all such
Transactions (a "Margin Deficit"), the Buyer may by notice to Seller require
Seller in such Transactions, at Seller's option, to transfer to Buyer cash or
additional Securities reasonably acceptable to Buyer ("Additional Purchased
Securities"), so that the cash and aggregate Assumed Repurchase Value of the
Purchased Securities, including any such Additional Purchased Securities, will
thereupon equal or exceed such aggregate Buyer's Margin Amount (decreased by the
amount of any Margin Deficit as of such date arising from any Transactions in
which such Buyer is acting as Seller).
(b) If at any time the aggregate Assumed Repurchase Value of all Purchased
Securities subject to all Transactions in which a particular party hereto is
acting as Seller exceeds the aggregate Seller's Margin Amount for all such
Transactions at such time (a "Margin Excess"), then Seller may by notice to
Buyer require Buyer in such Transactions, at Buyer's option to transfer cash or
Purchased Securities to Seller, so that the aggregate Assumed Repurchase Value
of the Purchased Securities, after deduction of any such cash or any Purchased
Securities so transferred, will thereupon not exceed such aggregate Seller's
Margin Amount (increased by the amount of any Margin Excess as of such date
arising from any Transactions in which such Seller is acting as Buyer).
(c) Any cash transferred pursuant to this Paragraph shall be attributed to
such Transactions as shall be agreed upon by Buyer and Seller.
(d) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer or Seller (or both) under
subparagraphs (a) and (b) of this Paragraph may be exercised only where a Margin
Deficit or Margin Excess exceeds a specified dollar amount or a specified
percentage of the Repurchase Prices for such Transactions (which amount or
percentage shall be agreed to by Buyer and Seller prior to entering into any
such Transactions).
(e) Seller and Buyer may agree, with respect to any or all Transactions
hereunder, that the respective rights of Buyer and Seller under subparagraphs
(a) and (b) of this Paragraph to require the elimination of a Margin Deficit or
a Margin Excess, as the case may be, may be exercised whenever such a Margin
Deficit or Margin Excess exists with respect to any single Transaction hereunder
(calculated without regard to any other Transaction outstanding under this
Agreement).
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(f) In the case of Transactions involving Securities that are Mortgage
Loans, (i) the percentage used in calculating Buyer's Margin Amount for such
Transaction shall be the percentage specified in the Confirmation and (ii)
Additional Purchased Securities shall be limited to obligations issued by the
United States government or mortgaged-backed securities issued by the Federal
National Mortgage Association ("FNMA") or guaranteed by the Government National
Mortgage Association ("GNMA") and otherwise acceptable to Buyer in its sole
discretion, (iii) the provisions of subparagraphs (b), (d) and (e) of this
Paragraph shall not apply.
5. Income Payments
Where a particular Transaction's term extends over an Income payment date
on the Securities subject to that Transaction, Buyer shall, as the parties may
agree with respect to such Transaction (or, in the absence of any agreement, as
Buyer shall reasonably determine in its discretion), on the date such Income is
payable either (i) transfer to or credit to the account of Seller an amount
equal to such Income payment or payments with respect to any Purchased
Securities subject to such Transaction or (ii) apply the Income payment or
payments to reduce the amount to be transferred to Buyer by Seller upon
termination of the Transaction. Buyer shall not be obligated to take any action
pursuant to the preceding sentence to the extent that such action would result
in the creation of a Margin Deficit, unless prior thereto or simultaneously
therewith Seller transfers to Buyer cash or Additional Purchased Securities
sufficient to eliminate such Margin Deficit. Notwithstanding the foregoing and
except as provided in Paragraph 11 of this Agreement, in the case of
Transactions involving Securities that are Mortgage Loans, Seller shall be
deemed to hold for the benefit of, and in trust for, Buyer all Income, including
without limitation all scheduled and unscheduled principal and interest
payments, received by Seller with respect to such Mortgage Loans. Seller shall
service the Mortgage Loans, or supervise the servicing of the Mortgage Loans,
for the benefit of Buyer in accordance with the terms of the Servicing
Agreement. On the 10th day of each month, Seller will provide Buyer with reports
substantially identical in form to FNMA's form 2010 remittance report with
respect to all Mortgage Loans then involved in any Transaction hereunder. Within
three business days of its receipt of each such report, Buyer either (i) shall
determine that a Margin Deficit has occurred and direct Seller to pay to Buyer
all Income received in the period covered by such report to the extent of such
Margin Deficit, in which case Buyer shall be deemed to have released any excess
Income to Seller, or (ii) shall determine that a Margin Deficit has not
occurred, in which case Buyer shall be deemed to have released all such Income
to Seller.
6. Security Interest
Although the parties intend that all transactions hereunder be sales and
purchases and not loans, in the event any such Transactions are deemed to be
loans, Seller shall be deemed to have pledged to Buyer as security for the
performance by Seller of its obligations under each such Transaction, and shall
be deemed to have granted to Buyer a security interest in, all of the Seller's
right (including the power to convey title thereto), title and interest in and
to the Purchased Securities, the contractual right to receive payments,
including the right to payments of principal and interest and the right to
enforce such payments, arising from or under any of the Purchased Securities,
the contractual right to service each Mortgage Loan, any sub-servicing
agreements with respect to each Mortgage Loan, and all documents in each
Mortgage File, with respect to all Transactions hereunder and all income,
payments, products and proceeds thereof (the "Collateral"). In such event, the
parties hereto intend to create for the benefit of Buyer, as secured party, a
legally valid and enforceable first priority perfected security interest in the
Collateral. On or prior to each Purchase Date, Seller shall cause to be filed in
the appropriate filing offices of the jurisdiction in which Seller maintains its
place of business, or its chief executive office if Seller has more than one
place of business, in accordance with applicable law, Uniform Commercial Code
financing statements naming Seller as debtor, Buyer as secured party, and the
Collateral as collateral.
7. Payment and Transfer
Unless otherwise mutually agreed, all transfers of funds hereunder shall be
in immediately available funds. All Securities transferred by
one party hereto to the other party (i) shall be in suitable
form for transfer or shall be accompanied by duly executed
instruments of transfer or assignment in blank and such other
documentation as the party receiving possession may reasonably
request, (ii) shall be transferred on the book-entry system of
a Federal Reserve Bank, or (iii) shall be transferred by any
other method mutually acceptable to Seller and Buyer. As used
herein with respect to Securities, "transfer" is intended to
have the same meaning as when used in Section 8-313 of the New
York Uniform Commercial Code or, where applicable, in any
federal regulation governing transfers of the Securities.
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In the case of Transactions involving Securities that are
Mortgage Loans, the transfer of such Mortgage Loans for the
purposes of this Paragraph 7 shall include the delivery to the
Buyer or Custodian, as directed by the Buyer, the following
documents (the "Mortgage File") with respect to each Mortgage
Loan, as set forth in the Custody Agreement: subject, however,
to the paragraph immediately following clause (xii) below;"
(i) the original note or other evidence of
indebtedness (the "Mortgage Note") of the obligor thereon
(each such obligor, a "Mortgagor"), endorsed to the order of
or assigned to Seller by the holder/payee thereof, without
recourse, and endorsed by Seller, without recourse, in blank;
(ii) the original mortgage, deed of trust or other
instrument (the "Mortgage") creating a first lien on the
underlying property securing the Mortgage Loan (the "Mortgaged
Property"), naming Seller as the "mortgagee" or "beneficiary"
thereof, and bearing on the face thereof the address of Seller
as provided in Paragraph 13 of this Agreement, or, if the
Mortgage does not name Seller as the mortgagee/beneficiary,
the Mortgage, together with an instrument of assignment
assigning the Mortgage, individually or together with other
Mortgages, to Seller and bearing on the face thereof the
address of Seller as provided in Paragraph 13 of this
Agreement, and, in either case, bearing evidence that such
instruments have been recorded in the appropriate jurisdiction
where the Mortgaged Property is located (or, in lieu of the
original of the Mortgage or the assignment thereof, a
duplicate or conformed copy of the Mortgage or the instrument
of assignment, if any, together with a certificate of either
the closing attorney or an officer of the title insurer that
issued the related title insurance policy, or a certificate of
receipt from the recording office, certifying that such copy
or copies represent true and correct copy(ies) of the
original(s) and that such original(s) have been or are
currently submitted to be recorded in the appropriate
governmental recording office of the jurisdiction where the
Mortgaged Property is located);
(iii) an original assignment of Mortgage, in blank,
which assignment shall be in form and substance acceptable for
recording and, in the event that the Seller acquired the
Mortgage Loan in a merger, the assignment must be by
"[Seller], successor by merger to [name of predecessor]";
(iv) any intervening assignment of the Mortgage not
included in (ii) above, including any warehousing assignment;
(v) any assumption, modification, extension or
guaranty agreement;
(vi) the Lender's title insurance policy, or, if such
policy has not been issued, a written commitment or interim
binder issued by the title insurance company evidencing that
the required title insurance coverage is in effect and
unconditionally guaranteeing the holder of the Mortgage Loan
that the lender's title insurance policy will be issued;
(vii) if applicable, any policy or certificate of
primary mortgage guaranty insurance;
(viii) if the Mortgage Note or Mortgage or any other
material document or instrument relating to the Mortgage
Loan has been signed by a person on behalf of the Mortgagor,
the power of attorney or other instrument that authorized
and empowered such person to sign with recording information
thereon;
(ix) with respect to FHA insured Mortgage Loans, the
original FHA Insurance Contract, together with a completed HUD
Form 92080 "Mortgagee Record Change" with the Purchasing
Mortgagees name left blank;
(x) with respect to VA guaranteed Mortgage Loans, the
original VA Loan Guaranty Certificate;
(xi) with respect to each Mortgage Loan which is
subject to the provisions of the Homeownership and Equity
Protection Act of 1994, a copy of a notice to each entity
which was a purchaser or assignee of the Mortgage Loan,
satisfying the provisions of such Act and the regulations
issued thereunder, to the effect that the Mortgage Loan is
subject to special truth in lending rules; and
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(xii) any other document as may be requested by Buyer.
"Notwithstanding the above, Seller shall, at least one
Business Day prior to the related Purchase Date, deliver to or
cause to be delivered to Buyer or Custodian, as directed by
Buyer, originals or true copies of such documents contained in
the Mortgage File; and within forty eight (48) hours after
such purchase date Seller shall deliver or cause to be
delivered to Buyer or Custodian, as directed by Buyer, the
originals (to the extent not previously delivered) of all such
documents in the Mortgage File. Failure by Seller to deliver
or cause to be delivered such documents within such time
periods specified in the immediately preceding sentence shall
constitute an Event of Default under the Master Repurchase
Agreement. Seller shall cause each closing agent to hold any
originals of such documents in the Mortgage File held by such
closing agent prior to delivery thereof to Buyer or Custodian,
as directed by Buyer, in trust and as bailee for Buyer.
In addition to the documents contained in the
Mortgage File, Seller shall deliver to buyer on or prior to
the Purchase Date for such Transaction a security release
certification acceptable to Buyer, certifying the release of
any security interest of a third party which may have existed
with respect to any of the Mortgage Loans subject to such
Transaction during the 45-day period prior to the related
Purchase Date.
Seller shall include on each Mortgage Loan Schedule a
code indicating whether the Mortgage Loan is subject to the Homeownership and
Equity Protection Act of 1994."
Seller shall cause to be maintained a servicing file
("Servicing File") with respect to each Mortgage Loan that shall contain the
following documents:
(a) copies of all the documents contained in the
Mortgage File;
(b) any instrument necessary to complete
identification of any exception set forth in the exception
schedule in the title insurance policy (e.g., map or plat,
restrictions, easements, sewer agreements, home association
declarations, etc.);
(c) a survey of the Mortgaged Property;
(d) any hazard insurance policy or flood insurance
policy, with extended coverage of the hazard insurance
policy;
(e) the Mortgage Loan closing statement (Form HUD-1)
and any other truth-in-lending, real estate settlement
procedure forms or other disclosure statements required by
law;
(f) the residential loan application, if applicable;
(g) any verification of employment and income;
(h) if applicable, any verification of acceptable
evidence of source and amount of downpayment;
(i) any credit report on the borrower under the
Mortgage Loan;
(j) each residential appraisal report;
(k) a photograph of the Mortgaged Property;
(l) any tax receipts, insurance premiums, ledger
sheets, payment records, insurance claim files and
correspondence, current and historical computerized data
files, underwriting standards used for origination and all
other papers and records developed or originated by the
Seller,
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any servicer or others, required to document the Mortgage Loan
or to service the Mortgage Loan; and
(m) any other document as may be requested by Buyer.
Seller shall cause to be delivered to Buyer each Servicing File upon Event of
Default by Seller under the Master Repurchase Agreement.
8. Segregation of Purchased Securities
To the extent required by applicable law, all Purchased Securities in the
possession of Seller shall be segregated from other securities in its possession
and shall be identified as subject to this Agreement. Segregation may be
accomplished by appropriate identification on the books and records of the
holder, including a financial intermediary or a clearing corporation. Title to
all Purchased Securities (except for Securities that are Mortgage Loans) shall
pass to Buyer. In the case of Purchased Securities that are Mortgage Loans, upon
transfer of the Mortgage Loans to Buyer as set forth in Paragraph 3(a) of this
Agreement and until termination of any Transactions as set forth in Paragraphs
3(c) or 11 of this Agreement, ownership of each Mortgage Loan, including each
document in the related Mortgage File, is vested in Buyer. Upon transfer of the
Mortgage Loans to Buyer as set forth in Paragraph 3(a) of this Agreement and
until termination of any Transactions as set forth in Paragraphs 3(c) or 11 of
this Agreement, record title in the name of Seller to each Mortgage shall be
retained by Seller in trust, for the benefit of Buyer, for the sole purpose of
facilitating the servicing and the supervision of the servicing of the Mortgage
Loans pursuant to the Servicing Agreement. Unless otherwise agreed by Buyer and
Seller, nothing in this Agreement shall preclude Buyer from engaging in
repurchase transactions with the Purchased Securities or otherwise pledging or
hypothecating the Purchased Securities, but no such transaction shall relieve
Buyer of its obligations to transfer Purchased Securities (and, with respect to
the Mortgage Loans, not substitutes therefor) to Seller pursuant to Paragraphs
3, 4 or 11 hereof. Upon termination of any Transactions as set forth in
Paragraph 3(c) of this Agreement, Buyer agrees to execute promptly endorsements
of the Mortgage Notes, assignments of the Mortgages and UCC-3 assignments, to
the extent that such documents are prepared by Seller for Buyer's execution, are
delivered to Buyer by Seller and are necessary to reconvey, without recourse, to
Seller and perfect title of like tenor to that conveyed to Buyer to the related
Mortgage Loans. Buyer agrees to cooperate with Seller to identify documents that
may be required to effect such reconveyance and perfection of title to Seller.
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Required Disclosure for Transactions in Which the Seller Retains Custody
of the Purchased Securities
Seller is not permitted to substitute other securities for those subject to
this Agreement and therefore must keep Buyer's securities segregated at all
times, unless in this Agreement Buyer grants Seller the right to substitute
other securities. If Buyer grants the right to substitute, this means that
Buyer's securities will likely be commingled with Seller's own securities during
the trading day. Buyer is advised that, during any trading day that Buyer's
securities are commingled with Seller's securities, the [will]* [may]** be
subject to liens granted by Seller to [its clearing bank]1* [third parties]**
and may be used by Seller for deliveries on other securities transactions.
Whenever the securities are commingled, Seller's ability to resegregate
substitute securities for Buyer will be subject to Seller's ability to satisfy
[the clearing]* [any]** lien or to obtain substitute securities.
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9. Substitution
(a) Seller may, subject to agreement with and acceptance by Buyer,
substitute other Securities for any Purchased Securities. Such substitution
shall be made by transfer to Buyer of such other Securities and transfer to
Seller of such Purchased Securities. After substitution, the substituted
Securities shall be deemed to be Purchased Securities.
(b) In Transactions in which the Seller retains custody of Purchased
Securities, the parties expressly agree that Buyer shall be deemed, for purposes
of subparagraph (a) of this Paragraph, to have agreed to and accepted in this
Agreement substitution by Seller of other Securities for Purchased Securities;
provided, however, that such other Securities shall have a Assumed Repurchase
Value at least equal to the Assumed Repurchase Value of the Purchased Securities
for which they are substituted; provided, further, that, in the case
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* Language to be used under 17 C.F.R. ss.403.4(e) if Seller is a government
securities broker or dealer other than a financial institution.
** Language to be used under 17 C.F.R.ss.403.4(d) if Seller is a financial
institution.
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of Transactions involving Securities that are Mortgage Loans, the retention
by Seller of custody of any document in any Mortgage File or otherwise shall be
held by Seller in trust Buyer for purposes of servicing or supervising the
servicing of the related Mortgage Loan and shall not be deemed to constitute
Seller's retention of custody of the Purchased Securities for purposes of this
subparagraph.
10. Representations
Each of Buyer and Seller represents and warrants to the other that (i) it
is duly authorized to execute and deliver this Agreement, to enter into the
Transactions contemplated hereunder and to perform its obligations hereunder and
has taken all necessary action to authorize such execution, delivery and
performance, (ii) it will engage in such Transactions as principal (or, if
agreed in writing in advance of any Transaction by the other party hereto, as
agent for a disclosed principal), (iii) the person signing this Agreement on its
behalf is duly authorized to do so on its behalf (or on behalf of any such
disclosed principal), (iv) it has obtained all authorizations of any
governmental body required in connection with this Agreement and the
Transactions hereunder and such authorizations are in full force and effect and
(v) the execution, delivery and performance of this Agreement and the
Transactions hereunder will not violate any law, ordinance, charter, by-law or
rule applicable to it or any agreement by which it is bound or by which any of
its assets are affected, (vi) Seller and Buyer have entered into the Transaction
described in each Confirmation contemporaneously with the sale of the Purchased
Securities by Seller to Buyer and the transfer of the Purchase Price by Buyer to
Seller, or, in the event that the Transaction is deemed to constitute a loan,
contemporaneously with the grant of the security interest in the Collateral by
Seller to Buyer pursuant to Paragraph 6 hereof and the transfer of the
consideration therefor, consisting of the extension of the Purchase Price, which
represents the loan proceeds, by Buyer to Seller, (vii) the board of directors
of Seller has approved the form of Confirmation and the Master Repurchase
Agreement, and such approval is reflected in the minutes of said board, and
(viii) each Confirmation, the Master Repurchase Agreement, the Custody Agreement
and the Servicing Agreement have been and shall be, continuously, from the time
of their execution, a corporate record of Seller. On the Purchase Date for any
Transaction Buyer and Seller shall each be deemed to repeat all the foregoing
representations made by it.
11. Events of Default
In the event that (i) Seller fails to repurchase or Buyer fails to transfer
Purchased Securities upon the applicable Repurchase
Date, (ii) Seller or Buyer fails, after one business
day's notice, to comply with Paragraph 4 hereof,
(iii) Buyer fails to comply with Paragraph 5 hereof,
(iv) an Act of Insolvency occurs with respect to
Seller or Buyer, (v) any representation made by
Seller or Buyer, other than any representation made
by Seller as to a particular Mortgage Loan, shall
have been incorrect or untrue in any material respect
when made or repeated or deemed to have been made or
repeated, (vi) Seller or Buyer shall admit to the
other its inability to, or its intention not to,
perform any of its obligations hereunder (vii) Buyer
shall have reasonably determined that Seller is or
will be unable to meet its commitments under this
Agreement, the Custody Agreement, the Guaranty, the
Sellers Warranties Agreement, the Servicing Agreement
and any other related agreement (such agreements, the
"Transaction Documents") and shall have notified
Seller of such determination and such other party
shall not have responded with appropriate information
to the contrary to the satisfaction of the notifying
party within 24 hours;
(viii) The Master Repurchase Agreement shall for any reason
cease to create a valid, first priority security
interest in any of the Purchased Securities purported
to be covered thereby;
(ix) A final judgment by any competent court in the United
States of America for the payment of money in an
amount of at least $100,000 is rendered against
Seller, and the same remains undischarged for a
period of 30 days during which execution of such
judgment is not effectively stayed;
(x) Seller shall fail to observe or perform any of the
covenants or agreements under any Transaction
Document, which failure materially and adversely
affects the rights of the Buyer;
(xi) Any event of default or any event which with notice,
the passage of time or both shall constitute an event
of default shall occur and be continuing under any
repurchase or other financing agreement for borrowed
funds or indenture for borrowed funds by which Seller
is bound or affected shall occur and be continuing;
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(xii) In the good faith judgment of Buyer, a material
adverse change shall have occurred in the business,
operations, properties, prospects or condition
(financial or otherwise) of Seller;
(xiii) Seller shall request written assurances as to the
financial well-being of Buyer and such assurances
shall not have been provided within 24 hours of such
request;
(xiv) Seller shall be in default with respect to any normal
and customary covenants under any debt contract or
agreement, any servicing agreement or any lease to
which it is a party, which default could materially
and adversely affect the financial condition of
Seller (which covenants include, but are not limited
to, an Act of Insolvency of Seller or the failure of
Seller to make required payments under such contract
or agreement as they become due).
(xv) Any representation or warranty made by Seller in any
Transaction Document shall have been incorrect or
untrue in any material respect (to the extent that
such representation or warranty does not incorporate
a materiality limitation in its terms) when made or
repeated or when deemed to have been made or
repeated;
(xvi) Seller shall fail to promptly notify Buyer of (i) the
acceleration of any debt obligation or the
termination of any credit facility of Seller,
respectively; (ii) the amount and maturity of any
such debt assumed after the date hereof; (iii) any
adverse developments with respect to pending or
future litigation involving Seller, respectively; and
(iv) any other developments which might materially
and adversely affect the financial condition of
Seller;
(xvii) 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
Seller's status as a "going concern";
(vxiii) Seller shall fail to maintain a tangible net worth of
no less than $916,000.00. The term "tangible net
worth" shall mean the excess of all of the Seller's
assets (excluding any value for goodwill, trademarks,
patents, copyrights, organization expense and other
similar intangible items) over all its liabilities as
completed and determined in accordance with generally
accepted accounting principles consistently applied.
(xx) Seller shall fail to deliver to Buyer or Custodian as directed by
Buyer the documents in the Mortgage File within the time period specified in 1
Paragraph 7 of the Master Repurchase Agreement. (each an "Event of Default"):
(a) At the option of the nondefaulting party, exercised by written notice
to the defaulting party (which option shall be deemed to have been exercised,
even if no notice is given, immediately upon the occurrence of an Act of
Insolvency), the Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur.
(b) In all Transactions in which the defaulting party is acting as Seller,
if the nondefaulting party exercises or is deemed to have exercised the option
referred to in subparagraph (a) of the Paragraph, (i) the defaulting party's
obligations hereunder to repurchase all Purchased Securities in such
Transactions shall thereupon become immediately due and payable, (ii) to the
extent permitted by applicable law, the Repurchase Price with respect to each
such Transaction shall be increased by the aggregate amount obtained by daily
application of (x) the greater of the Pricing Rate for such Transaction or the
Prime Rate to (y) the Repurchase Price for such Transaction as of the Repurchase
Date as determined pursuant to subparagraph (a) of this Paragraph (decreased as
of any day by (A) any amounts retained by the nondefaulting party with respect
to such Repurchase Price pursuant to clause (iii) of the subparagraph, (B) any
proceeds from the sale of Purchased Securities pursuant to subparagraph (d)(I)
of this Paragraph, and (C) any amounts credited to the account of the defaulting
party pursuant to subparagraph (e) of the Paragraph) on a 360 day per year basis
for the actual number of days during the period from and including the date of
the Event of Default giving rise to such option to but excluding the date of
payment of the Repurchase Price as so increased, (iii) all Income paid after
such exercise or deemed exercise shall be retained by the nondefaulting party
and applied to the aggregate unpaid Repurchase Prices owed by the defaulting
party, and (iv) the defaulting party shall immediately deliver to the
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nondefaulting party any Purchased Securities subject to such Transactions then
in the defaulting party's possession.
(c) In all Transactions in which the defaulting party is acting as Buyer,
upon tender by the nondefaulting party of payment of the aggregate Repurchase
Prices for all such Transactions, the defaulting party's right, title and
interest in all Purchased Securities subject to such Transactions shall be
deemed transferred to the nondefaulting party, and the defaulting party shall
deliver all such Purchased Securities to the non defaulting party.
(d) The non-defaulting party may with concurrent notice to the defaulting
party:
(i) as to Transactions in which the defaulting party is acting as
Seller, (A) immediately sell, in a recognized market or in any other
commercially reasonable manner at such price or prices as the nondefaulting
party may reasonably deem satisfactory, any or all Purchased Securities
subject to such Transactions and apply the proceeds thereof to the
aggregate unpaid Repurchase Prices and any other amounts owing by the
defaulting party hereunder or (B) in its sole discretion elect, in lieu of
selling all or a portion of such Purchased Securities, to give the
defaulting party credit for such Purchased Securities in an amount equal to
the price therefor on such date, obtained from a generally recognized
source or the most recent closing bid quotation from such a source, against
the aggregate unpaid Repurchase Prices and any other amounts owing by the
defaulting party hereunder and in either case upon the determination and
receipt by Buyer, in a manner deemed final and complete by Buyer in its
sole discretion, of the aggregate unpaid Repurchase Prices and any other
amounts owing by the defaulting party, including, without limitation, any
unpaid fees, expenses or other amounts owing to the Custodian under the
Custody Agreement, or to which Buyer is otherwise entitled hereunder, Buyer
shall transfer the portion of the Purchased Securities and proceeds
thereof, including without limitation, any proceeds of a sale of the
servicing rights to the Mortgage Loans, held by Buyer following such
receipt to either (i) Seller, if in Buyer's sole discretion Seller is
legally entitled thereto, (ii) such other party or person as is in Buyer's
reasonable judgment is legally entitled thereto, or (iii) if Buyer cannot
determine in its reasonable judgment the person or party entitled thereto,
a court of competent jurisdiction; and
(ii) as to the Transactions in which the defaulting party is acting as
Buyer, (A) purchase securities ("Replacement Securities") of the same class
and amount as any Purchased Securities that are not delivered by the
defaulting party to the nondefaulting party as required hereunder or (B) in
its sole discretion elect, in lieu of purchasing Replacement Securities, to
be deemed to have purchased Replacement Securities at the price therefor on
such date, obtained from a generally recognized source or the most recent
closing bid quotation from such a source.
(e) As to Transactions in which the defaulting party is acting as Buyer,
the defaulting party shall be liable to the nondefaulting party (i) with respect
to Purchased Securities (other than Additional Purchased Securities), for any
excess of the price paid (or deemed paid) by the nondefaulting party for
Replacement Securities therefor over the Repurchase Price for such Purchased
Securities and (ii) with respect to Additional Purchased Securities, for the
price paid (or deemed paid) by the nondefaulting party for the Replacement
Securities therefor. In addition, the defaulting party shall be liable to the
nondefaulting party for interest on such remaining liability with respect to
each such purchase (or deemed purchase) of Replacement Securities from the date
of such purchase (or deemed purchase until paid in full by Buyer. Such interest
shall be at a rate equal to the greater of the Pricing Rate for such Transaction
or the Prime Rate.
(f) For purposes of this Paragraph 11, the Repurchase Price for each
Transaction hereunder in respect of which the defaulting party is acting as
Buyer shall not increase above the amount of such Repurchase Price for such
Transaction determined as of the date of the exercise or deemed exercise by the
nondefaulting party of its option under subparagraph (a) of this Paragraph.
(g) The defaulting party shall be liable to the nondefaulting party for the
amount of all reasonable legal or other expenses incurred by the nondefaulting
party in connection with or as a consequence of an Event of Default, together
with interest thereon at a rate equal to the greater of the Pricing Rate for the
relevant Transaction or the Prime Rate.
(h) The nondefaulting party shall have, in addition to its rights
hereunder, any rights otherwise available to it under an other agreement or
applicable law.
(j) Seller acknowledges that any delay in the ability of Buyer to exercise
its remedies pursuant to Paragraph 11 hereof shall result in irreparable injury
to Buyer.
12. Single Agreement
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Buyer and Seller acknowledge that, and have entered hereunto and will enter
into each Transaction hereunder in consideration of and in reliance upon the
fact that, all Transactions hereunder constitute a single business and
contractual relationship and have been made in consideration of each other.
Accordingly, each of Buyer and Seller agrees (i) to perform all of its
obligations in respect of each Transaction hereunder, and that a default in the
performance of any such obligations shall constitute a default by it in respect
of all Transactions hereunder, (ii) that each of them shall be entitled to set
off claims and apply property held by them in respect of any Transaction against
obligations owing to them in respect of any other Transactions hereunder and
(iii) that payments, deliveries and other transfers made by either of them in
respect of any Transaction shall be deemed to have been made in consideration of
payments, deliveries and other transfers in respect of any other Transactions
hereunder, and the obligations to make any such payments, deliveries and other
transfers may be applied against each other and netted.
13. Notices and Other Communications
Any notice or communication in respect of this Agreement will be
sufficiently given to a party if in writing and delivered in
person, sent by certified or registered mail, return receipt
requested, or by overnight courier or given by facsimile
transfer at the following address or facsimile number:
If to [BUYER]:
Impac Warehouse Lending Group
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
If to [SELLER]:
APPROVED FEDERAL SAVINGS BANK
0000 Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
Facsimile Number: (000) 000-0000
A notice or communication will be effective:
(i) if delivered by hand or sent by overnight courier, on
the day and time it is delivered;
(ii) If sent by facsimile transfer, on the day it is sent; or
(iii) if sent by certified or registered mail, return receipt
requested, three days after dispatch.
Either party may by notice to the other change the address or
facsimile number at which notices or communications are to be given to it.
14. Entire Agreement; Severability
This Agreement shall supersede any existing agreements between the parties
containing general terms and conditions for repurchase transactions with respect
to Securities that consist of mortgage loans. Each provision and agreement
herein shall be treated as separate and independent from any other provision or
agreement herein and shall be enforceable notwithstanding the unenforceability
of any such other provision or agreement.
15. Non-assignability; Termination
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The rights and obligations of the parties under this Agreement and under
any Transaction shall not be assigned by either party without the prior written
consent of the other party. Subject to the foregoing, this Agreement and any
Transactions shall be binding upon and shall inure to the benefit of the parties
and their respective successors and assigns. This Agreement may be cancelled by
either party upon giving written notice to the other, except that this Agreement
shall, notwithstanding such notice, remain applicable to any Transactions then
outstanding.
16. Governing Law
This Agreement shall be governed by the laws of the State of New York
without giving effect to the conflict of law principles thereof.
17. No Waivers, Etc.
No express or implied waiver of any Event of Default by either party shall
constitute a waiver of any other Event of Default and no exercise of any remedy
hereunder. 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 subparagraphs 4(a) or 4(b) hereof will not constitute a waiver of
any right to do so at a later date.
18. Use of Employee Plan Assets
(a) If assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") are intended to be
used by either party hereto (the "Plan Party") in a Transaction, the Plan Party
shall so notify the other party prior to the Transaction. The Plan Party shall
represent in writing to the other party that the Transaction does not constitute
a prohibited transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed in reliance thereon but shall not be required so to
proceed.
(b) Subject to the last sentence of subparagraph (a) of this Paragraph, any
such Transaction shall proceed only if Seller furnishes or has furnished to
Buyer its most recent available audited statement of its financial condition and
its most recent subsequent unaudited statement of its financial condition.
(c) By entering into a Transaction pursuant to this Paragraph, Seller shall
be deemed (i) to represent to Buyer that since the date of Seller's latest such
financial statements, there has been no material adverse change in Seller's
financial condition which Seller has not disclosed to Buyer, and (ii) to agree
to provide Buyer with future audited and unaudited statements of its financial
condition as the y are issued, so long as it is a Seller in any outstanding
transaction involving a Plan Party.
19. Intent
(a) The parties recognize that each Transaction is a "repurchase agreement"
as that term is defined in Section 101 of Title 11 of the United States Code, as
amended (except insofar as the type of Securities subject to such Transaction or
the term of such Transaction would render such definition inapplicable), and a
"securities contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended.
(b) It is understood that either party's right to liquidate Securities
delivered to it in connection with Transactions hereunder or to exercise any
other remedies pursuant to Paragraph 11 hereof, is a contractual right to
liquidate such Transaction as described in Sections 555 and 559 of Title 11 of
the United States Code, as amended.
20. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
(a) in the case of Transactions in which one of the parties is a broker or
dealer registered with the Securities and Exchange Commission ("SEC") under
Section 15 of the Securities Exchange Act of 1934 ("1934 Act"), the Securities
Investor Protection Corporation has taken the position that the provisions of
the Securities Investor Protection Act of 1970 ("SIPA") do not protect the other
party with respect to any Transaction hereunder;
(b) in the case of Transactions in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC
under Section 15C of the 1934 Act, SIPA will not provide protection to the other
party with respect to any Transaction hereunder; and
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(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, the through either the Bank Insurance Fund or the Savings
Association Insurance Fund, or the National Credit Union Share Insurance Fund,
as applicable.
IMPAC WAREHOUSE LENDING GROUP APPROVED FEDERAL SAVINGS BANK
By ____________________________________ By _________________________________
Title _________________________________ Title ______________________________
Date __________________________________ Date ________________________________
ANNEX I
Supplemental Terms and Conditions
31. This Annex I is executed and shall be construed as an
agreement supplemental to the Master Repurchase Agreement and, as provided in
the Master Repurchase Agreement, this Annex I forms a part thereof.
32. All of the covenants, stipulations, promises and
agreements in this Annex I shall bind the successors and assigns of the parties
hereto, whether expressed or not.
33. This Annex I may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
34. Seller shall promptly provide such further assurances or
agreements as Buyer may request in order to effect the purposes of this Master
Repurchase Agreement, including without limitation, the delivery of any further
documents to ensure that Buyer maintains a first priority perfected security
interest in the Collateral pursuant to Paragraph 6 hereof and to carry into
effect the purpose, of the Transaction Documents.
35. Buyer is hereby appointed the attorney-in-fact of Seller
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing or endorsing any instruments that Buyer may deem necessary
or advisable to accomplish the purposes hereof, including, without limitation,
completing or correcting any endorsement of a Mortgage Note or assignment of a
Mortgage, which appointment as attorney-in-fact is irrevocable and coupled with
an interest. Without limiting the generality of the foregoing, Buyer shall have
the right and power during the occurrence and continuation of any Event of
Default to receive, endorse and collect all checks made payable to the order of
Seller representing any payment on account of the principal of or interest on
any of the Collateral and to give full discharge for the same.
36. Seller shall promptly pay as and when payment is due all,
and Buyer shall not be liable for any, expenses, fees and charges incurred by
Buyer or Seller (other than the salaries and overhead of Buyer and its
affiliates) arising out of or related in any way, to the administration and
enforcement of this Agreement or the Custody Agreement ("Costs"), including,
without limitation, legal expenses, the fees and expenses of the Custodian,
recording and filing fees and any costs associated with reconveyance of the
Purchased Securities and, in the event that any Costs are incurred by Buyer,
Seller shall reimburse Buyer on demand of Buyer accompanied by a statement
describing the circumstances and the nature of the Cost, by wire transfer of
immediately available federal funds.
37. Seller and Buyer contemplate that all Mortgage Loans
purchased by Buyer and subject to repurchase pursuant to this Master Repurchase
Agreement shall have an
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average daily balance (in principal amount) of $ 7,500,000 (the "Minimum Usage
Amount"). If, within forty-five (45) days of the date hereof, Seller shall not
have sold any Mortgage Loans to Buyer pursuant to this Master Repurchase
Agreement, Seller shall promptly pay Buyer $1,500. If at any time after
forty-five (45) days after the Seller shall have commenced selling Mortgage
Loans to Buyer, pursuant to this Master Repurchase Agreement but the average
daily balance (in principal amount) of all Mortgage Loans held by Buyer is less
than the Minimum Usage Amount, Seller shall pay Buyer a fee to be determined by
Buyer in its sole discretion, provided, however such fee shall not exceed $1,500
during any thirty (30) day period.
38. This Annex I shall supersede any existing annex to or
modification of the Master Repurchase Agreement.
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ANNEX II
Names and Addresses for Communications Between Parties
