RECEIVABLES PURCHASE AGREEMENT AMONG NATIONSTAR MORTGAGE ADVANCE RECEIVABLES TRUST 2010-ADV1 AS ISSUER NATIONSTAR ADVANCE FUNDING II LLC AS DEPOSITOR AND NATIONSTAR MORTGAGE LLC AS SELLER DATED AS OF November 15, 2010
Exhibit 10.51
EXECUTION COPY
AMONG
NATIONSTAR MORTGAGE ADVANCE RECEIVABLES TRUST 2010-ADV1
AS ISSUER
NATIONSTAR ADVANCE FUNDING II LLC
AS DEPOSITOR
AND
NATIONSTAR MORTGAGE LLC
AS SELLER
DATED AS OF November 15, 2010
TABLE OF CONTENTS
Page | ||||
ARTICLE I. DEFINITIONS |
1 | |||
Section 1.01. Certain Defined Terms |
1 | |||
Section 1.02. Other Definitional Provisions |
4 | |||
ARTICLE II. SALE OF RECEIVABLES; CLOSING; ACKNOWLEDGMENT AND CONSENT |
4 | |||
Section 2.01. Sale of Receivables |
4 | |||
Section 2.02. Closing |
6 | |||
Section 2.03. Seller’s Acknowledgement and Consent to Assignment |
7 | |||
ARTICLE III. CONDITIONS PRECEDENT TO CLOSING |
7 | |||
Section 3.01. Closing Subject to Conditions Precedent |
7 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE ISSUER |
9 | |||
Section 4.01. Representations and Warranties |
9 | |||
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR |
9 | |||
Section 5.01. Representations and Warranties |
9 | |||
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF THE SELLER |
12 | |||
Section 6.01. Representations and Warranties |
12 | |||
Section 6.02. Repurchase Upon Breach |
19 | |||
ARTICLE VII. INTENTION OF THE PARTIES; SECURITY INTEREST |
20 | |||
Section 7.01. Intention of the Parties |
20 | |||
Section 7.02. Security Interest |
21 | |||
ARTICLE
VIII. COVENANTS OF THE SELLER |
22 | |||
Section 8.01. Information |
22 | |||
Section 8.02. Acknowledgment |
22 | |||
Section 8.03. Access to Information |
22 | |||
Section 8.04. Ownership and Security Interests; Further Assurances |
23 | |||
Section 8.05. Covenants |
23 | |||
Section 8.06. Assignment of Rights |
24 | |||
ARTICLE IX. ADDITIONAL COVENANTS |
24 | |||
Section 9.01. Legal Conditions to Closing |
24 | |||
Section 9.02. Expenses |
24 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 9.03. Mutual Obligations |
24 | |||
Section 9.04. Servicing Standards |
25 | |||
Section 9.05. Transfer of Servicing |
26 | |||
Section 9.06. Bankruptcy |
26 | |||
Section 9.07. Legal Existence |
26 | |||
Section 9.08. Compliance With Laws |
27 | |||
Section 9.09. Taxes |
27 | |||
Section 9.10. No Liens, Etc. Against Receivables and Trust Property |
27 | |||
Section 9.11. Amendments to Servicing Contract |
27 | |||
Section 9.12. No Netting or Offsetting |
28 | |||
Section 9.13. Books and Records |
28 | |||
Section 9.14. Verification Agent |
28 | |||
Section 9.15. Exclusive |
28 | |||
Section 9.16. Recovery |
29 | |||
Section 9.17. Merger; Change of Control |
29 | |||
Section 9.18. Use of Proceeds |
29 | |||
Section 9.19. Seller Procedures and, Methodology |
29 | |||
Section 9.20. Financial Covenants |
29 | |||
ARTICLE X. INDEMNIFICATION |
30 | |||
Section 10.01. Indemnification |
30 | |||
ARTICLE XI. MISCELLANEOUS |
31 | |||
Section 11.01. Amendments |
31 | |||
Section 11.02. Notices |
32 | |||
Section 11.03. No Waiver; Remedies |
32 | |||
Section 11.04. Binding Effect; Assignability |
32 | |||
Section 11.05. GOVERNING LAW; JURISDICTION |
32 | |||
Section 11.06. Execution in Counterparts |
32 | |||
Section 11.07. Survival |
33 | |||
Section 11.08. Third Party Beneficiary |
33 | |||
Section 11.09. General |
33 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
Section 11.10. LIMITATION OF DAMAGES |
33 | |||
Section 11.11. WAIVER OF JURY TRIAL |
34 | |||
Section 11.12. No Recourse |
34 | |||
Section 11.13. Confidentiality |
34 |
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Schedule I
|
— | Information for Notices | ||
Schedule II
|
— | Amendments to Servicing Contracts | ||
Exhibit A
|
— | Reserved | ||
Exhibit B
|
— | Funding Notice | ||
Exhibit C
|
— | Form of Xxxx of Sale from Depositor to Issuer | ||
Exhibit D
|
— | Form of Subordinated Note |
RECEIVABLES PURCHASE AGREEMENT, dated as of November 15, 2010 (this “Receivables Purchase
Agreement”) or this “Agreement”), among NATIONSTAR MORTGAGE ADVANCE RECEIVABLES TRUST
2010-ADV1 (the “Issuer”), NATIONSTAR ADVANCE FUNDING II LLC (the “Depositor”) and
NATIONSTAR MORTGAGE LLC (the “Seller” or “Nationstar”).
In consideration of the premises and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Certain Defined Terms. Capitalized terms used herein without definition
shall have the meanings set forth in the Indenture. Additionally, the following terms shall have
the following meanings:
“Aggregate Value” means, with respect to the Receivables sold by the Seller to the
Depositor on a Funding Date, the product of (a) the Receivables Balance of such Receivables on such
Funding Date and (b) a factor equal to the sum of the applicable Discount Factor and one half of
the amount by which 100% exceeds such Discount Factor.
“Bankruptcy Code” means the Federal Bankruptcy Code, as set forth in Title 11 of the
United States Code, as amended, and any successor statute and/or any bankruptcy, insolvency,
reorganization or similar law.
“Capital Lease Obligations” shall mean, for any Person, all obligations of such Person
to pay rent or other amounts under a lease of (or other agreement conveying the right to use)
property to the extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Agreement,
the amount of such obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
“Cash Equivalents” shall mean (a) securities with maturities of 90 days or less from
the date of acquisition issued or fully guaranteed or insured by the United States Government or
any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of 90
days or less from the date of acquisition and overnight bank deposits of any commercial bank having
capital and surplus in excess of $500,000,000, (c) repurchase obligations of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term of not more than seven
days with respect to securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof
by Standard and Poor’s Ratings Group or P-1 or the equivalent thereof by Xxxxx’x Investors Service,
Inc. and in either case maturing within 90 days after the day of acquisition, (e) securities with
maturities of 90 days or less from the date of
acquisition backed by standby letters of credit issued by any commercial bank satisfying the
requirements of clause (b) of this definition, or (f) shares of money market mutual or similar
funds which invest exclusively in assets satisfying the requirements of clauses (a) through (e) of
this definition.
“Cash Purchase Price” means, with respect to the Initial Receivables or with respect
to the Additional Receivables sold and/or contributed on a Funding Date, the Collateral Value of
such Receivables.
“Closing” shall have the meaning set forth in Section 2.02.
“Contribution” shall have the meaning set forth in Section 2.01(c).
“Depositor Material Adverse Effect” shall have the meaning set forth in Section
5.01(a).
“Governmental Actions” means any and all consents, approvals, permits, orders,
authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations,
declarations or filings with, any Governmental Authority required under any Governmental Rules.
“Governmental Authority” means the United States of America, any state or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and having jurisdiction over
the applicable Person.
“Governmental Rules” means any and all laws, statutes, codes, rules, regulations,
ordinances, orders, writs, decrees and injunctions of any Governmental Authority and any and all
legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental
Authority.
“Indebtedness” shall mean, 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 ninety (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 account of such Person; (e) Capital Lease Obligations
of such Person; (f) obligations of such Person under repurchase agreements or like arrangements;
(g) indebtedness of others guaranteed by such Person (to the extent so guaranteed); (h) all
obligations of such Person incurred in connection with the acquisition or carrying of fixed assets
by such Person; (i) indebtedness of general partnerships of
which such Person is a general partner; and (j) any other indebtedness of such Person by a
note, bond, debenture or similar instrument.
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“Indemnified Party” shall have the meaning set forth in Section 10.01(b).
“Indenture” means, the Indenture, dated as of November 15, 2010, between the Issuer
and the Indenture Trustee as the same may be amended, modified or supplemented from time to time.
“Intangible Assets” means assets that are considered to be intangible under GAAP,
including customer lists, goodwill, computer software, copyrights, trade names, trademarks,
patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.
“Lien” means, with respect to any asset, (a) any mortgage, lien, pledge, charge,
security interest, hypothecation, option or encumbrance of any kind in respect of such asset or (b)
the interest of a vendor or lessor under any conditional sale agreement, financing lease or other
title retention agreement relating to such asset.
“Liquidity” means with respect to the Seller, the sum of (i) its unrestricted cash,
plus (ii) its unrestricted Cash Equivalents, plus (iii) the aggregate amount of unused capacity
available to such Person (taking into account applicable haircuts) under committed mortgage loan
warehouse and servicer advance facilities for which the Seller has unencumbered eligible collateral
to pledge thereunder.
“Material Adverse Effect” shall mean a Depositor Material Adverse Effect or Seller
Material Adverse Effect, as applicable.
“Net Worth” shall mean, with respect to the Servicer, the excess of total assets of
the Servicer, over total liabilities of the Servicer, determined in accordance with GAAP.
“Non-Funding Election” shall have the meaning set forth in Section 2.01(e).
“Payment Clearing Account” shall mean account number 4121967343 held at Xxxxx Fargo
Bank, N.A. and entitled “Nationstar Mortgage LLC and in trust for the Benefit of Certain
Investors.”
“Receivables Related Collateral” shall have the meaning set forth in Section 7.01.
“Relevant UCC” means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
“Repurchase Price” shall have the meaning set forth in Section 6.02.
“Seller Material Adverse Effect” shall have the meaning set forth in Section 6.01(a).
“Subordinated Loan” has the meaning set forth in Section 2.01(c).
“Subordinated Loan Proceeds” has the meaning set forth in Section 2.01(c).
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“Subordinated Note” means the promissory note in substantially the form of Exhibit D
hereto as more fully described in Section 2.01(c), as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Tangible Net Worth” shall mean, with respect to the Seller, an amount equal to (A)
its Net Wroth, minus (B) any of its Intangible Assets (including, without limitation, goodwill,
capitalized financing costs and capitalized administrative costs, but excluding any originated or
purchased servicing rights or retained residual securities) and any and all advances to,
investments in receivables held from Affiliates, provided, however, that the
non-cash effect (gain or loss) of xxxx-to-market adjustments made directly to stockholders’ equity
for fluctuation of the value of financial instruments as mandated under the Statement of Financial
Accounting Standards No. 133 (or any successor statement) shall be excluded from the calculation of
Tangible Net Worth.
“Total Indebtedness” shall mean with respect to the Seller, for any period, the
aggregate Indebtedness of the Seller and its subsidiaries during such period, less the amount of
any nonspecific consolidated balance sheet reserves maintained in accordance with GAAP and less the
amount of any non-recourse debt, including any securitization debt.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the meanings defined herein when used in
any certificate or other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used herein and in any certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in Section 1.01, and accounting terms partially defined in
Section 1.01 to the extent not defined, shall have the respective meanings given to them under
GAAP. To the extent that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under GAAP, the definitions contained herein shall control.
(c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular provision of this
Agreement; and Section, subsection, Schedule and Exhibit references contained in this Agreement are
references to Sections, subsections, Schedules and Exhibits in or to this Agreement unless
otherwise specified.
ARTICLE II.
SALE OF RECEIVABLES; CLOSING; ACKNOWLEDGMENT AND CONSENT
Section 2.01. Sale of Receivables.
(a) Reserved.
(b) On the Initial Funding Date, the Seller shall sell to the Depositor and the Depositor
shall acquire from the Seller, in accordance with the procedures and subject to the
4
terms and
conditions set forth herein and in the Indenture, the Initial Receivables. On each subsequent
Funding Date during the Funding Period, the Seller shall sell to the Depositor and the Depositor
shall acquire from the Seller, in accordance with the procedures and subject to the terms and
conditions set forth herein and in the Indenture, Additional Receivables representing the
contractual rights to be reimbursed for all of the Delinquency Advances and Servicing Advances with
respect to the Securitization Trusts made prior to such Funding Date and not previously sold to the
Depositor. On the Initial Funding Date, the Depositor shall sell and/or contribute to the Issuer
and the Issuer shall acquire from the Depositor, in accordance with the procedures and subject to
the terms and conditions set forth herein and in the Indenture, the Initial Receivables. On each
subsequent Funding Date during the Funding Period, the Depositor shall sell and/or contribute to
the Issuer and the Issuer shall acquire from the Depositor, in accordance with the procedures and
subject to the terms and conditions set forth herein and in the Indenture, the Additional
Receivables acquired by the Depositor on such Funding Date.
Subject to the satisfaction of the Funding Conditions on each Funding Date, the Issuer shall
pay to the Depositor and the Depositor shall pay to the Seller the Cash Purchase Price in respect
of the Initial Receivables or Additional Receivables sold on the Initial Funding Date or such
subsequent Funding Date, as applicable, in accordance with Section 7.01 of the Indenture. In
consideration of the sale and/or contribution of the Initial Receivables by the Depositor on the
Initial Funding Date, the Issuer shall pay, subject to the terms and conditions hereof and of the
Indenture, to the Depositor the Cash Purchase Price with respect to the Initial Receivables and
deliver to the Depositor the Trust Certificates. In consideration of the sale of the Additional
Receivables by the Depositor on each Funding Date during the Funding Period, the Issuer shall, in
accordance with the procedures set forth herein and in the Indenture and subject to the
satisfaction of the Funding Conditions, pay to the Depositor the aggregate Cash Purchase Price with
respect to the Additional Receivables sold and/or contribution by the Depositor to the Issuer on
such Funding Date, to the extent of funds available therefor on such Funding Date.
(c) In consideration of the sale of the Initial Receivables by the Seller on the Initial
Funding Date, or in consideration of the sale of Additional Receivables by Seller on any subsequent
Funding Date, the Depositor shall pay, subject to the terms and conditions hereof and of the
Indenture, to the Seller the aggregate Cash Purchase Price with respect to such Receivables plus
the proceeds of a subordinated revolving loan from the Seller to the Depositor (a “Subordinated Loan”) in an amount not to exceed the
remaining unpaid portion of the related Aggregate Value (such proceeds, the “Subordinated Loan
Proceeds”).
Subject to the limitations set forth in this Section 2.01(c), the Agent, on behalf of the
Depositor, shall request borrowings under the Subordinated Loan with respect to each purchase by
the Depositor of Receivables during the Funding Period to the extent necessary to make the payments
set forth in Sections 2.01(b) and (c) in connection with purchases of the Initial Receivables and
Additional Receivables, and the Seller irrevocably agrees to advance such amounts under the
Subordinated Loan so requested; provided, however, that the Depositor may not make
any borrowing under the Subordinated Loan unless at the time of (and immediately after) each such
borrowing thereunder, (i) the Depositor’s total assets exceed its total liabilities both before and
after the sale transaction, (ii) the Depositor’s cash on hand is sufficient to satisfy all of its
current obligations (other than its obligations under the
5
Subordinated Note and the obligation to
pay the Cash Purchase Price), (iii) the Depositor is adequately capitalized at a commercially
reasonable level and (iv) the Depositor has determined that its financial capacity to meet its
financial commitment under the Subordinated Loan and Subordinated Note is adequate. The
Subordinated Loan shall be evidenced by, and shall be payable in accordance with the terms and
provisions of the Seller’s Subordinated Note. The Seller is hereby authorized by Depositor to
endorse on the schedule attached to the Subordinated Note an appropriate notation evidencing the
date and amount of each advance thereunder, as well as the date of each payment with respect
thereto, provided that the failure to make such notation shall not affect any obligation of the
Depositor thereunder. The Seller shall record in its books and records all increases in and
payments in reduction of the outstanding principal amount of the Subordinated Note.
The excess of (i) the Aggregate Value of the Initial Receivables or Additional Receivables
sold and/or contributed on the Initial Funding Date or any subsequent Funding Date over (ii) the
Cash Purchase Price with respect to such Initial Receivables or Additional Receivables sold and/or
contributed on the Initial Funding Date or such subsequent Funding Date shall be a capital
contribution by the Depositor to the Issuer (the “Contribution”). The Aggregate
Receivables at any time of determination shall consist of the Initial Receivables and the
Additional Receivables sold and/or contributed to the Issuer prior to such time of determination.
(d) With respect to Servicing Advances, one (1) Business Day prior to the Initial Funding Date
and each subsequent Funding Date on which Additional Note Balances are to be purchased, by no later
than 12:00 PM Eastern time and, with respect to Delinquency Advances by no later than 10:00 AM
Eastern time (or, in the case of a Delinquency Advance to be made on such Funding Date, such other
time as the Servicer, the Seller, the Agent and the Indenture Trustee may mutually agree) on the
Initial Funding Date and each subsequent Funding Date on which Additional Note Balances are to be
purchased, the Seller shall deliver to the Depositor and the Depositor shall deliver to the Issuer,
with copies to the Agent and the Indenture Trustee, the funding notice (such notice, the
“Funding Notice”) and a xxxx of sale (the “Xxxx of Sale”), in substantially the forms annexed as Exhibits B and C hereto, respectively, with respect to the Receivables to be
sold and/or contributed on such Funding Date.
(e) On any Funding Date, the Seller may elect to sell all Receivables to the Depositor in
exchange for Subordinated Loan Proceeds without payment of any Cash Purchase Price by the
Depositor, and the depositor may simultaneously contribute such Receivables to the Issuer, if the
Seller and the Depositor determine that such actions are in their best interests (such action, a
“Non-Funding Election”); provided that, on the related Funding Date, the Seller
shall notify the Noteholders, the Agent and the Indenture Trustee of such Non-Funding Election.
Section 2.02. Closing. The closing (“Closing”) of the execution of this
Agreement upon and concurrent with the closing under the Note Purchase Agreement, shall take place
at 2:00 PM at the offices of SNR Xxxxxx US LLP, 2 World Financial Center, Xxx Xxxx, Xxx Xxxx 00000
on November 15, 2010, or if the conditions precedent to closing set forth in Article III of
this Agreement shall not have been satisfied or waived by such date, as soon as practicable after
such conditions shall have been satisfied or waived, or at such other time, date
6
and place as the
parties shall agree upon (the date of the Closing being referred to herein, the “Closing
Date”).
Section 2.03. Seller’s Acknowledgement and Consent to Assignment. Seller hereby
acknowledges that the Depositor has assigned to the Issuer and the Issuer has Granted to the
Indenture Trustee, on behalf of the secured Parties, the rights of the Depositor and the Issuer as
purchasers under this Agreement, including, without limitation, the right to enforce the
obligations of the Seller hereunder. The Seller hereby consents to such assignment by the
Depositor and Grant in the Indenture by the Issuer to the Indenture Trustee, on behalf of the
Secured Parties, and, agrees to remit the Repurchase Price in respect of any repurchased Receivable
directly to the Reimbursement Account as provided for in Section 6.02 hereof. The Seller
acknowledges that the Indenture Trustee, on behalf of the Secured Parties, shall be a third party
beneficiary in respect of the representations, warranties, covenants, rights and benefits arising
hereunder that are so Granted by the Issuer. The Seller hereby authorizes the Issuer and the
Indenture Trustee, as the Issuer’s assignee, on behalf of the Seller, to execute and deliver such
documents or certificates as may be necessary in order to enforce its rights to or collect under
the Receivables. The Seller hereby agrees to be bound by and perform all of the covenants and
obligations of the Seller and the Servicer set forth in the Indenture.
ARTICLE III.
CONDITIONS PRECEDENT TO CLOSING
Section 3.01. Closing Subject to Conditions Precedent. The Closing is subject to the
satisfaction at the time of the Closing of the following conditions (any or all of which may be
waived by the Agent in its sole discretion):
(a) Performance by the Seller and the Depositor. All the terms, covenants, agreements
and conditions of the Transaction Documents to be complied with and performed by the Seller and the
Depositor on or before the Closing Date shall have been complied with and performed in all material
respects.
(b) Representations and Warranties. Each of the representations and warranties of the
Seller and the Depositor made in the Transaction Documents shall be true and correct in all
material respects as of the Closing Date (except to the extent they expressly relate to an earlier
or later time).
(c) Officer’s Certificate. The Agent and the Indenture Trustee shall have received in
form and substance reasonably satisfactory to the Agent and its counsel an Officer’s Certificate
from the Seller and the Depositor, dated the Closing Date, certifying to the satisfaction of the
conditions set forth in the preceding paragraphs (a) and (b).
(d) Opinions of Counsel to the Seller, the Depositor and the Servicer. Counsel to the
Seller, the Depositor and the Servicer shall have delivered to the Agent and the Indenture Trustee
favorable opinions as to matters described in Section 4.01 of the Note Purchase Agreement dated as
of the Closing Date and reasonably satisfactory in form and substance to the Agent and its counsel.
7
(e) Filings and Recordations. As of the Closing Date, the Agent and the Indenture
Trustee shall have received evidence reasonably satisfactory to the Agent of (i) the completion of
all recordings, registrations and filings as may be necessary or, in the reasonable opinion of the
Agent, desirable to perfect or evidence the assignment by the Seller to the Depositor of the
Seller’s ownership interest in the Aggregate Receivables and the proceeds thereof and the
assignment by the Depositor to the Issuer of the Depositor’s ownership interest in the Aggregate
Receivables and the proceeds thereof and (ii) the completion of all recordings, registrations, and
filings as may be necessary or, in the reasonable opinion of the Agent, desirable to perfect or
evidence the Grant of a first priority perfected security interest in the Issuer’s ownership
interest in the Trust Estate, in favor of the Indenture Trustee, subject to no liens prior to the
Lien created by the Indenture.
(f) Documents. The Agent and the Indenture Trustee shall have received a duly
executed counterpart of this Agreement (in a form acceptable to the Agent), each of the other
Transaction Documents and each and every document or certification delivered by the Seller and the
Depositor in connection with this Agreement or any other Transaction Document, and each such
document shall be in full force and effect.
(g) Actions or Proceedings. No action, suit, proceeding or investigation by or before
any Governmental Authority shall have been instituted to restrain or prohibit the consummation of,
or to invalidate, any of the transactions contemplated by the Transaction Documents and the
documents related thereto in any material respect.
(h) Approvals and Consents. All Governmental Actions of all Governmental Authorities
required to consummate the transactions contemplated by the Transaction Documents and the documents
related thereto shall have been obtained or made.
(i) Fees, Costs and Expenses. The fees, costs and expenses payable by the Seller
pursuant to Section 9.02 hereof and any other Transaction Document shall have been paid, including
but not limited to, the Structuring Fee payable to the Agent in accordance with the terms and
provisions of the Fee Side Letter.
(j) Other Documents. The Seller and the Depositor shall have furnished to the Agent
and the Indenture Trustee such other opinions, information, certificates and documents as the Agent
may reasonably request.
(k) Reserved.
If any condition specified in this Section 3.01 shall not have been fulfilled when and as
required to be fulfilled, this Agreement may be terminated by the Issuer by notice to the Depositor
and the Seller and by the Depositor by notice to the Seller and the Issuer at any time at or prior
to the Closing Date, and the Issuer or Depositor, as applicable, shall incur no liability as a
result of such termination.
8
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
Section 4.01. Representations and Warranties. The Issuer hereby makes the following
representations and warranties on which the Seller and the Depositor are relying in executing this
Agreement and selling and/or contributing the Aggregate Receivables:
(a) Organization. The Issuer is a statutory trust duly formed and validly existing in
good standing under the laws of the State of Delaware and is duly qualified to do business and is
in good standing in each jurisdiction in which such qualification is necessary in order to perform
its obligations under this Agreement and the other Transaction Documents to which it is a party.
(b) Power and Authority. The Issuer has all requisite trust power and authority and
has all material governmental licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being conducted and to execute and deliver and perform its
obligations under this Agreement.
(c) Authorization of Transaction. All appropriate and necessary action has been taken
by the Issuer to authorize the execution and delivery of this Agreement and all other Transaction
Documents to which it is a party, and the authorize the performance and observance of the terms
hereof and thereof.
(d) Agreement Binding. This Agreement and each of the other Transaction Documents to
which the Issuer is a party constitute the legal, valid and binding obligation of the Issuer
enforceable against it in accordance with their terms except as may be limited by laws governing
insolvency or creditors’ rights or by rules of equity. The execution, delivery and performance by
the issuer of this Agreement and the other Transaction Documents to which the Issuer is a party
will not violate any provision of law, regulation, order or other governmental directive, or
conflict with, constitute a default under, or result in the breach of any provision of any material
agreement, ordinance, decree, bond, indenture, order or judgment to which the Issuer is a party or
by which it or its properties are bound.
(e) Consents. All licenses, consents and approvals required from, and all
registrations and filings required to be made by the Issuer, with any governmental or other public
body or authority for the making and performance by the Issuer of this Agreement and the other
Transaction Documents to which it is a party have been obtained and are in effect.
(f) Organizational Information. The Issuer’s Federal Tax ID Number is as follows:
00-0000000.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
Section 5.01. Representations and Warranties. The Depositor hereby makes the
following representations and warranties on which the Issuer and the Seller are relying in
9
executing this Agreement. The representations are made as of the execution and delivery of this
Agreement, and as of each date of conveyance of any Receivables. Such representations and
warranties shall survive the sale of any Aggregate Receivables to the Depositor and are as follows:
(a) Organization. The Depositor is a limited liability company duly formed and
validly existing in good standing under the laws of the state of Delaware and is duly qualified to
do business and is in good standing in each jurisdiction in which such qualification is necessary,
except where the failure to be so qualified or in good standing would not reasonably be expected to
have a material adverse effect on (i) the business, operations or financial condition of (A) the
Depositor or (B) the Depositor and its Affiliates taken as a whole or (ii) the validity or
enforceability of this Agreement or any of the other Transaction Documents to which the Depositor
is a party or the rights or remedies of the Seller, the Issuer or the Indenture Trustee hereunder
or thereunder or (iii) the ability of the Depositor to perform its obligations under this Agreement
or (iv) the enforceability or recoverability of any of the Aggregate Receivables or (v) the status
of all Receivables conveyed under this Agreement being free and clear of all liens (other than the
Lien created by the Indenture) (any of (i) through (v), a “Depositor Material Adverse
Effect”).
(b) Power and Authority. The Depositor has all requisite power and authority and has
all material governmental licenses, authorizations, consents and approvals necessary to own its
assets and carry on its business as now being conducted and to execute and deliver and perform its
obligations under this Agreement and any other Transaction Document to which it is a party and,
except to the extent not necessary in order to execute and deliver and perform its obligations
under this Agreement and any other Transaction Document to which it is a party, to own its asset
and carry on its business as now being conducted.
(c) Authorization of Transaction. All appropriate and necessary action has been taken
by the Depositor to authorize the execution and delivery of this Agreement and all other
Transaction Documents to which it is a party, and to authorize the performance and observance of
the terms hereof and thereof.
(d) Agreement Binding. This Agreement and each of the other Transaction Documents to
which the Depositor is a party constitute the legal, valid and binding obligation of the Depositor,
enforceable in accordance with their terms except as may be limited by laws governing insolvency or
creditors’ rights or by rules of equity.
(e) No Violations or Conflicts. The execution, delivery and performance by the
Depositor of this Agreement and the other Transaction Documents to which the Depositor is a party
will not violate any provision of law, regulation, order or other governmental directive, or
conflict with, constitute a default under, or result in the breach of any provision of any material
agreement, ordinance, decree, bond, indenture, order or judgment to which the Depositor is a party
or by which it or its properties is or are bound.
(f) Compliance with Law. The Depositor is conducting its business and operations in
compliance with all applicable laws, regulations, ordinances and directives of governmental
authorities, except where the failure to comply would not reasonably be expected
10
to have a
Depositor Material Adverse Effect. The Depositor has filed all tax returns required to be filed
and has paid all taxes in respect of the ownership of its assets or the conduct of its operations
prior to the date after which penalties attach for failure to pay, except to the extent that the
payment or amount of such taxes is being contested in good faith by it in appropriate proceedings
and adequate reserves have been provided for the payment thereof.
(g) Consents. All licenses, consents and approvals required from and all
registrations and filings required to be made by the Depositor with any governmental or other
public body or authority for the making and performance by the Depositor of this Agreement and the
other Transaction Documents to which it is a party have been obtained and are in effect.
(h) Litigation. There is no action, suit or proceeding at law or in equity by or
before any court, governmental agency or authority or arbitral tribunal now pending or, to the
knowledge of the Depositor, threatened against or affecting it which has a reasonable possibility of being determined adversely in a manner or amount that would
have a Depositor Material Adverse Effect.
(i) Other Obligations. The Depositor is not in default in the performance, observance
or fulfillment of any obligations, covenant or condition in any agreement or instrument to which it
is a party or by which it is bound the result of which should reasonably be expected to have a
Depositor Material Adverse Effect.
(j) 1940 Act. The Depositor is not required to be registered as an “investment
company” and is not a company “controlled” by an investment company within the meaning of the 1940
Act.
(k) Solvency. The Depositor, both prior to and after giving effect to each sale
and/or contribution of Aggregate Receivables on the Initial Funding Date or on any Funding Date
thereafter (i) is not, and will not be, “insolvent” (as such term is defined in § 101(32)(A) of the
Bankruptcy Code), (ii) is, and will be, able to pay its debts as they become due, and (iii) does
not have unreasonably small capital for the transactions contemplated in the Transaction Documents.
(l) Full Disclosure. No document, certificate or report furnished by or on behalf of
the Depositor, in writing, pursuant to this Agreement, any other Transaction Document or in
connection with the transactions contemplated hereby or thereby contains or will contain when
furnished any untrue statement of a material fact. There are no facts relating to and known by the
Depositor, which when taken as a whole, materially adversely affect the financial condition or
assets or business of the Depositor, or which should reasonably be expected to impair the ability
of the Depositor to perform its obligations under this Agreement or any other Transaction Document,
which have not been disclosed herein or in the certificates and other documents furnished by or on
behalf of the Depositor pursuant hereto or thereto. All books, records and documents delivered in
connection with the Transaction Documents are and will be true, correct and complete.
(m) ERISA. All Plans maintained by the Depositor or any of its Affiliates are in
substantial compliance with all applicable laws (including ERISA).
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(n) Fair Market Value and Fair Consideration. The Depositor is receiving fair
consideration and reasonably equivalent value in exchange for any sales of Receivables to the
Issuer under this Agreement.
(o) Bulk Transfers. No sale, contribution, transfer, assignment or conveyance of
Aggregate Receivables by the Depositor to the Issuer contemplated by this Agreement will be subject
to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(p) Name. The legal name of the Depositor is as set forth in this Agreement and the
Depositor does not have any trade names, fictitious names, assumed names or “doing business” names.
(q) Organizational Information. The Depositor’s Federal Tax ID Number is as follows:
00-0000000.
(r) Chief Executive Office. On the date of this Agreement, Depositor’s chief
executive office and principal place of business is located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxx 00000.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF THE SELLER
Section 6.01. Representations and Warranties. The Seller hereby makes the following
representations and warranties on which the Depositor and the Issuer are relying in accepting the
Aggregate Receivables and executing this Agreement. The representations are made as of the
execution and delivery of this Agreement, and as of each date of conveyance of any Additional
Receivables. Such representations and warranties shall survive the sale of any Aggregate
Receivables to the Depositor and are as follows:
(a) Organization. The Seller is a limited liability company duly formed and validly
existing in good standing under the laws of the state of Delaware and is duly qualified to do
business and is in good standing in each jurisdiction in which such qualification is necessary
except where the failure to be so qualified or in good standing would not reasonably be expected to
have a material adverse effect on (i) the business, operations or financial condition of (A) the
Seller or (B) the Seller and its Affiliates taken as a whole or (ii) the validity or enforceability
of this Agreement or any of the other Transaction Documents or the rights or remedies of the
Depositor, the Issuer or the Indenture Trustee hereunder or thereunder or (iii) the ability of the
Seller to perform its obligations under this Agreement or (iv) the enforceability or recoverability
of any of the Aggregate Receivables or (v) the status of all Receivables conveyed under this
Agreement being free and clear of all Liens (other than the Lien created by the Indenture) (any of
(i) through (v), a “Seller Material Adverse Effect”).
(b) Power and Authority. The Seller has all requisite limited liability company power and
authority and has all material governmental licenses, authorizations, consents and approvals
necessary to execute and deliver and perform its obligations under this Agreement and any other
Transaction Document to which it is a party and, except to the extent
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not necessary n order to execute and deliver and perform its obligations under this Agreement
and any other Transaction Document to which it is a party, to own its assets and carry on its
business as now being conducted.
(c) Authorization of Transaction. All appropriate and necessary action has been taken
by the Seller to authorize the execution and delivery of this Agreement and all other Transaction
documents which it is a party, and to authorize the performance and observance of the terms hereof
and thereof.
(d) Agreement Binding. This Agreement and each of the other Transaction Documents to
which the Seller is a party constitute the legal, valid and binding obligation of the Seller
enforceable in accordance with their terms except as may be limited by laws governing insolvency or
creditors’ rights or by rules of equity.
(e) No Violations or Conflicts. The execution, delivery and performance by the Seller
of this Agreement and the other Transaction Documents to which the Seller is a party will not
violate any provision of law, regulation, order or other governmental directive, or conflict with,
constitute a default under, or result in the breach of any provision of any agreement, ordinance,
decree, bond, indenture, order or judgment to which the Seller is a party or by which it or its
properties is or are bound.
(f) Compliance with Law. The Seller is conducting its business and operations in
compliance with all applicable laws, regulations, ordinances and directives of governmental
authorities, except where the failure to comply would not reasonably be expected to have a Seller
Material Adverse Effect. The Seller has filed all tax returns required to be filed and has paid
all taxes in respect of the ownership of its assets or the conduct of its operations prior to the
date after which penalties attach for failure to pay, except to the extent that the payment or
amount of such taxes is being contested in good faith by it in appropriate proceedings and adequate
reserves have been provided for the payment thereof.
(g) Consents. All licenses, consents and approvals required from and all
registrations and filings required to be made by the Seller with any governmental or other public
body or authority for the making and performance by the Seller of this Agreement and the other
Transaction Documents to which it is a party have been obtained and are in effect.
(h) Litigation. There is no action, suit or proceeding at law or in equity by or
before any court, governmental agency or authority or arbitral tribunal now pending or, to the
knowledge of the Seller, threatened against or affecting it which has a reasonable possibility of
being determined adversely in a manner or amount that would reasonably be expected to have a Seller
Material Adverse Effect.
(i) Other Obligations. The Seller is not in default in the performance, observance or
fulfillment of any obligation, covenant or condition in any agreement or instrument to which it is
a party or by which it is bound the result of which should reasonably be expected to have a Seller
Material Adverse Effect.
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(j) 1094 Act. The Seller is not required to be registered as an “investment company”
and is not a company “controlled” by an investment company within the meaning of the 1940 Act.
(k) Solvency. The Seller, both prior to and after giving effect to each sale of
Aggregate Receivables on the Initial Funding Date or on any Funding Date thereafter (i) is not, and
will not be, “insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code), (ii) is,
and will be, able to pay its debts as they become due, and (iii) does not have unreasonably small
capital for the business in which it is engaged or for any business or transaction in which it is
about to engage.
(l) Full Disclosure. No document, certificate or report furnished by or on behalf of
the Seller or the Servicer, in writing, pursuant to this Agreement, any other Transaction Document
or in connection with the transactions contemplated hereby or thereby contains or will contain when
furnished any untrue statement of a material fact. There are no facts relating to and known by the
Seller, which when taken as a whole, materially adversely affect the financial condition or assets
or business of the Seller or the Servicer, or which should reasonably be expected to impair the
ability of the Seller or the Servicer to perform its obligations under this Agreement or any other
Transaction Document or Servicing Contract, which have not been disclosed herein or in the
certificates and other documents furnished by or on behalf of the Seller or the Servicer pursuant
hereto or thereto. All books, records and documents delivered in connection with the Transaction
Documents are and will be true, correct and complete.
(m) ERISA. All Plans maintained by the Seller or any of its Affiliates are in
substantial compliance with all applicable laws (including ERISA).
(n) Fair Market Value and Fair Consideration. The Seller is receiving fair market
value and reasonably equivalent value in exchange for any sales of Receivables to the Depositor
under this Agreement.
(o) Bulk Transfers. No sale, contribution, transfer, assignment or conveyance of
Aggregate Receivables by the Seller to the Depositor contemplated by this Agreement will be subject
to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(p) Name. The legal name of the Seller is as set forth in this Agreement and the
Seller does not have any trade names, fictitious names, assumed names or “doing business” names
other than the “doing business” name “Champion Mortgage Company”.
(q) Organizational Information. The Seller’s Federal Tax ID Number is as follows:
00-0000000.
(r) Chief Executive Office. On the date of this Agreement, Seller’s chief executive
office and principal place of business is located at 000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx 00000.
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(s) Repayment of Receivables. The Seller has no reason to believe that at the time of
the sale of any Receivables to the Depositor pursuant hereto, such Receivables will not be paid in
full.
(t) Reimbursement Amounts. The Seller has not waived or forgiven any obligation of a
Mortgagor to repay any Delinquency Advance or Servicing Advance.
(u) Aggregate Receivables. As of the Initial Funding Date with respect to the Initial
Receivables and as of the related Funding Date with respect to the Additional Receivables, as
applicable:
(i) | Each Initial Receivable and Additional Receivable is payable in United States dollars and has been created pursuant to and in accordance with the terms of the related Servicing Contract, in accordance with the Seller’s customary procedures with respect to the applicable Securitization Trust and in the ordinary course of business of the Seller. | ||
(ii) | The sale to the Depositor and the sale and/or contribution to the Issuer of the rights to reimbursement for the Delinquency Advances and Servicing Advances under each Securitization Trust, and the assignment and Grant thereof to the Indenture Trustee, does not violate the terms of the related Servicing Contract or any other document or agreements to which the Seller is a party or to which its assets or properties are subject. | ||
(iii) | No Receivable has been sold, transferred, assigned or pledged by the Seller to any Person other than the Depositor or by the Depositor to any other Person other than the Issuer. Immediately prior to the transfer and assignment herein contemplated, the Seller was the sole owner with respect to each such Receivable, and had the right to transfer and sell such Receivable, free and clear of all Liens and rights of others; immediately upon the transfer and assignment thereof, the Issuer shall own all of such interest in and to such Receivable, free and clear of all Liens and rights of others (other than the Lien created by the Indenture). | ||
(iv) | Seller has not taken any action that, or failed to take any action the omission of which, would materially impair the rights of the Depositor, the Issuer, the Indenture Trustee (or any Secured Party) with respect to any such Receivable. | ||
(v) | No such Receivable has been identified by the Seller or reported to the Seller as having resulted from fraud perpetrated by any Person with respect to such Receivable. | ||
(vi) | All filings (including UCC filings) necessary in any jurisdiction to perfect the transfers and assignments herein contemplated, and |
15
solely in the event that any of the transfers contemplated hereby were to be recharacterized as a pledge or secured loan from the Depositor to the Seller and an assignment thereof from the Depositor to the Issuer rather than absolute sales, to perfect the Depositor’s and the Issuer’s respective security interests in the Aggregate Receivables that are prior, as applicable, to any other interest held or to be held by any other Person (except the Indenture Trustee on behalf of the Secured Parties), have been made. | |||
(vii) | Such Receivable constitutes a “general intangible” within the meaning of Section 9-102(a)(42) of the UCC or a “payment intangible” within the meaning of Section 9-102(a)(61) of the UCC; no Receivable is secured by “real property” or “fixtures” or evidenced by an “instrument” as such quoted terms are used for purposes of creating and perfecting a security interest under the Relevant UCC. | ||
(viii) | Each such Receivable is the legal, valid and binding obligation of the related Securitization Trust and is enforceable in accordance with its terms. There is no valid and enforceable offset; defense or counterclaim to the obligation of the related Securitization Trust to make payment of any such Receivable. | ||
(ix) | Each such Receivable is entitled to be paid, has not been repaid in whole or been compromised, adjusted (except by partial payment); extended, satisfied, subordinated, rescinded, amended or modified, and is not subject to compromise, adjustment, extension, satisfaction, subordination; rescission, set-off, counterclaim, defense, amendment or modification by the Seller. | ||
(x) | No such Receivable includes amounts payable as a result of accounting or other errors, or the failure to deposit funds or the misapplication of funds by the Servicer. | ||
(xi) | No such Receivable has been identified by the Seller as a Nonrecoverable Advance (as defined in the Servicing Contracts) for which reimbursement has not been sought from the Securitization Trust in accordance with the related Servicing Contract. | ||
(xii) | The Initial Receivables shall constitute all of the outstanding Receivables with respect to the Securitization Trusts as of the Initial Funding Date except for Receivables repurchased by the Seller pursuant to Section 6.02 hereof or Section 2.19 of the Indenture. The Additional Receivables conveyed on any Funding Date constitute all of the Receivables related to Delinquency |
16
Advances and/or Servicing Advances with respect to the Securitization Trusts (other than the Initial Receivables), as of such Funding Date, not previously sold to the Depositor hereunder, except for Receivables repurchased by the Seller pursuant to Section 6.02 hereof or Section 2.19 of the Indenture. The Seller has not sold, assigned, transferred or conveyed, without the Agent’s consent, the right to reimbursement for any Delinquency Advance or Servicing Advance with respect to the Securitization Trusts to any Person other than the Depositor. | |||
(xiii) | Other than any Bottom of the Waterfall Servicing Advances, if the related Delinquency Advance or Servicing Advance becomes a Nonrecoverable Advance after the related Funding Date, the related Servicing Contract provides for the reimbursement of such Delinquency Advance or Servicing Advance from the general collections of the Securitization Trust prior to any payments to related Securitization Trust certificateholders. | ||
(xiv) | Each Servicing Contract is in full force and effect and, other than as set forth in Schedule II, has not been amended or modified; no party thereto, to the knowledge of the Seller, is in default thereunder; no Servicing Contract requires the Servicer to make Nonrecoverable Advances (as such term is defined in the Servicing Contracts); each Servicing Contract requires reimbursement in full of all applicable Delinquency Advances and Servicing Advances in connection with any redemption of Securitization Trust certificates or termination of the Securitization Trust under such Servicing Contract prior to any payments to related Securitization Trust certificateholders; and, to the extent known to the Seller at the time of a material modification of a Mortgage Loan, all Delinquency Advances and Servicing Advances related to such Mortgage Loan are reimbursed in full upon such modification. | ||
(xv) | Each such Receivable is an obligation of a Securitization Trust for which the related Servicing Contract provides that (A) the Servicer may enter into an advance facility with any Person which provides that such Person may receive an assignment or pledge of the Servicer’s rights to be reimbursed, for Delinquency Advances and Servicing Advances under such Servicing Contract, (B) all Delinquency Advances and Servicing Advances as to a Mortgage Loan are reimbursed on a First In First Out (“FIFO”) basis, such that the Delinquency Advances and Servicing Advances of a particular type that were disbursed first in time will be reimbursed prior to Delinquency Advances and Servicing Advances of the same type with respect to that Mortgage Loan that were disbursed later in time, and (C) all Delinquency Advances and Servicing Advances will be fully reimbursed in connection with any |
17
redemption of Securitization Trust certificates or notes or the termination of the Securitization Trust under such Servicing Contract. | |||
(xvi) | No such Receivable prior to conveyance hereunder is an obligation of a Securitization Trust for which a Securitization Termination Event has occurred and is continuing. | ||
(xvii) | The principal amount of any Receivable, when added to the aggregate outstanding principal amount of all Receivables under the related Securitization Trust, does not cause the aggregate outstanding principal amount of all such Receivables to exceed 30% of the aggregate outstanding principal amount of all Receivables. | ||
(xviii) | None the Receivables are related to Delinquency Advances or Servicing Advances reimbursed other than in accordance with the terms and provisions of the related Servicing Contacts; | ||
(xix) | If a Receivable relates to a Loan-Level Delinquency Advance or a Servicing Advance that relates to a Mortgage Loan secured by a second or more junior lien on the related mortgaged property, the outstanding principal amount of that Receivable, when added to the aggregate outstanding principal amount of all Receivables that relate to Loan-Level Delinquency Advances and Servicing Advances that relate to Mortgage Loans secured by second or more junior lien on the respective related mortgaged properties, does not cause the aggregate principal amount of all Receivables secured by second or more junior liens on mortgaged properties to exceed 2.00% of the aggregate principal amount of all Receivables. | ||
(xx) | No such Receivable is a Forbearance Receivable with respect to which 100% of the Noteholders have not given consent; with respect to a Forbearance Receivable with respect which 100% of the Noteholders have given consent, the Receivables Balance of such Receivable, when added to the aggregate Receivables Balance of all other Forbearance Receivables under the related Securitization Trust, does not cause the aggregate Receivables Balance of all Forbearance Receivables under such Securitization Trust to exceed 1% of the aggregate Receivables Balance of all Receivables under such Securitization Trust; | ||
(xxi) | No Receivable relates to a Mortgage Loan with respect which any applicable federal or state foreclosure moratorium is set by legislation or regulatory or administrative action for which there is no clearly definable period of time for which such moratoriums has |
18
been established (as determined in the sole and absolute discretion of the Agent). | |||
(xxii) | With respect to the Mortgage Loan relating to such Receivable, any related Delinquency Advances or Servicing Advances have been fully funded by the Servicer using its own funds or; with respect to Delinquency Advances, Amounts Held for Future Distribution. | ||
(xxiii) | The principal amount of any Receivable relating to a Bottom of the Waterfall Servicing Advance, when added to the aggregate outstanding principal amount of all Receivables relating to Bottom of the Waterfall Servicing Advances does not cause the aggregate outstanding principal amount of all such Receivables to exceed 2.0% of the principal amount of all Receivables. | ||
(xxiv) | With respect to Bottom of the Waterfall Servicing Advances, the Receivables Balance of such Receivable when added to the aggregate outstanding Receivables Balance of all Receivables relating to Bottom of the Waterfall Servicing Advances related to such Mortgage Loan, does not cause the Loan-Level Valuation Ratio relating to such Mortgage Loan to be less than 2.0:1. | ||
(xxv) | With respect to Receivables related to Bottom of the Waterfall Servicing Advances, the related Servicing Advance has not become a Nonrecoverable Advance. | ||
(xxvi) | No Receivable relates to a “high-cost mortgage loan” or “higher-priced mortgage loan” (as such terms, or term of substantially similar import, are defined in Section 32 of the Truth in Lending Act (Regulation Z) or any corresponding law in effect in the state in which the related Mortgage Loan was originated). |
Section 6.02. Repurchase Upon Breach. The Issuer, the Depositor, the Indenture
Trustee or the Seller, as the case may be, shall inform the Issuer, the Depositor or the Seller (as
applicable), the Agent and the Indenture Trustee promptly (but in no event later than two (2)
Business Days following such discovery), in writing, upon the discovery of any breach of the
Seller’s or Depositor’s representations and warranties hereunder. If any such representation or
warranty pertains to a Receivable (including the representations under Sections 5.01(a)(iv) and
6.01(a)(iv)), upon the direction of the Agent, unless such breach shall have been cured by the
earlier of (i) the Funding Date immediately following such breach, or (ii) thirty (30) days after
the earlier to occur of (A) the discovery of such breach by the Issuer, the Depositor or the Seller
(as applicable) or (B) receipt of written notice of such breach by the Issuer, the Depositor, the
Agent, the Indenture Trustee or the Seller (as applicable), the Seller or the Depositor, as
applicable, shall repurchase such Receivable from the Issuer at a price equal to the outstanding
Receivables Balance of such Receivable as of the date of repurchase (the “Repurchase
Price”). The Seller or the Depositor, as applicable, shall pay any Repurchase Price directly to the
Indenture Trustee for deposit into the Reimbursement Account.
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ARTICLE VII.
INTENTION OF THE PARTIES; SECURITY INTEREST
Section 7.01. Intention of the Parties. It is the intention of the parties hereto
that each transfer and assignment contemplated by this Agreement shall constitute an absolute sale
of the related Receivables from the Seller to the Depositor and an absolute sale or contribution,
or a combination thereof, as applicable, of the related Receivables from the Depositor to the
Issuer and that the related Receivables shall not be part of the Seller’s or the Depositor’s estate
or otherwise be considered property of the Seller or the Depositor in the event of the bankruptcy,
receivership, insolvency, liquidation, conservatorship or similar proceeding relating to the Seller
or the Depositor or any of their property. Except as set forth below, it is not intended that any
amounts available for reimbursement of Receivables be deemed to have been pledged by the Seller to
the Depositor or by the Depositor to the Issuer or the Indenture Trustee to secure a debt or other
obligation of the Seller or the Depositor. In the event that (A) the purchase of Receivables by
the Depositor or the Issuer is deemed by a court or applicable regulatory, administrative or other
governmental body contrary to the express intent of the parties to constitute a pledge rather than
a sale or contribution, or a combination thereof, of the Receivables; or (B) if amounts available
now or in the future for reimbursement of any Receivables are held to be property of the Seller or
the Depositor or a loan to the Seller or the Depositor, or (C) if for any reason this Agreement is
held or deemed to be a financing or some other similar arrangement or agreement, then: (i) this
Agreement is and shall be a security agreement within the meaning of Articles 8 and 9 of the
Relevant UCC; (ii) the Issuer shall be treated as having a first priority, perfected security
interest in and to, and lien on, the Receivables transferred and assigned to the Issuer hereunder;
(iii) the agreement of the Seller and the Depositor hereunder to sell, assign, convey and transfer
the Receivables shall be a grant by the Seller to the Depositor and by the Depositor to the Issuer
of, and the Seller does hereby grant to the Depositor and the Depositor does hereby grant to the
Issuer, a security interest in all of the Seller’s and Depositor’s, as applicable, property and
right (including the power to convey title thereto), title, and interest, whether now owned or
hereafter acquired in and to the Aggregate Receivables, together with (A) all amounts payable now
or in the future by or with respect to the Receivables and (B) any and all general intangibles
consisting of, arising from or relating to any of the foregoing, and all proceeds of the
conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all such amounts from time to time held or invested in
accounts maintained by or on behalf of the Seller, by or on behalf of the Securitization Trusts or
by or on behalf of the Depositor, whether in the form of cash, instruments securities or other
property (the “Receivables Related Collateral”). The possession by the Issuer or its agent
of notes and such other goods, money, documents or such other items of property as constitute
instruments, money, negotiable documents or chattel paper, in each case, which constitute any of
the items described in the foregoing sentence, or proceeds thereof, shall be “possession by the
secured party,” or possession by a purchaser or a person designated by such secured party, for
purposes of perfecting the security interest pursuant to the Relevant UCC of any applicable
jurisdiction; and notifications to persons holding such property, and acknowledgments, receipts or
confirmations from persons holding such property, shall be
20
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of any such holder for the purpose of perfecting
such security interest under applicable law.
Section 7.02. Security Interest.
(a) The Seller shall, to the extent “consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed to create a security interest in (i) any
of the Aggregate Receivables, (ii) the amounts reimbursable now or in the future by or with respect
to the Securitization Trusts in respect of any of the Aggregate Receivables or (iii) the other
property described above (including any and all Receivables Related Collateral), such security
interest would be a perfected security interest of first priority under applicable law and will be
maintained as such throughout the term of this Agreement. The Seller shall execute such documents
and instruments as the Depositor may reasonably request from time to time in order to effectuate
the foregoing and shall to the Depositor the executed copy of such documents and instruments.
Without limiting the generality of the foregoing, the Depositor shall forward for fling, or shall
cause to be forwarded for filing, at the expense of the Seller, all filings necessary to maintain
the effectiveness of any original filings necessary under the Relevant UCC to perfect the
Depositor’s security interest described above, including without limitation (x) UCC continuation
statements, and (y) such other statements as may be occasioned by (1) any change of name of the
Seller or the Depositor (such preparation and filing shall be at the expense of the Depositor, if
occasioned by a change in such party’s name) or (2) any change of location of the jurisdiction of
organization of the Seller.
(b) The Depositor shall, to the extent consistent with this Agreement, take such actions as
may be necessary to ensure that, if this Agreement were deemed to create a security interest in (i)
any of the Aggregate Receivables, (ii) the amounts reimbursable now or in the future by or with
respect to the Securitization Trusts in respect of any of the Aggregate Receivables or (iii) the
other property described above (including any and all Receivables Related Collateral), such
security interest would be a perfected security interest of first priority under applicable law and
will be maintained as such throughout the term of this Agreement. At the Issuer’s direction, the
Depositor shall execute such documents and instruments as the Issuer may reasonably request from
time to time in order to effectuate the foregoing and shall return to the Issuer the executed copy
of such documents and instruments. Without limiting the generality of the foregoing, the Issuer
shall forward for filing, or shall cause to be forwarded for filing, at the expense of the
Depositor, all filings necessary to maintain the effectiveness of any original filings necessary
under the Relevant UCC to perfect the Issuer’s security interest described above, including without
limitation (x) UCC continuation statements and (y) such other statements as may be occasioned by
(1) any change of name of the Depositor or the Issuer (such preparation and filing shall be at the
expense of the Issuer, if occasioned by a change in such party’s name) or (2) any change in the
jurisdiction of organization of the Depositor.
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ARTICLE VIII.
COVENANTS OF THE SELLER
Section 8.01. Information. The Seller shall furnish to the Depositor, the Issuer, the
Indenture Trustee, the Calculation. Agent, the Agent and the Secured Parties:
(a) such information (including financial information), documents, records or reports with
respect to the Aggregate Receivables, the Securitization Trusts, the Seller, the Servicer as the
Issuer, the Depositor, the Indenture Trustee, the Calculation Agent, the Agent, the Noteholders or
the Secured Parties may from time to time reasonably request;
(b) prompt notice of any Event of Default, Securitization Termination Event, Servicer
Termination Event, Early Amortization Event or Funding Interruption Event under the Indenture, or
any event known to the Seller which, with the passage of time or the giving of notice or both,
would become an Event of Default, Securitization Termination Event, Early Amortization Event or
Funding Interruption Event under the Indenture;
(c) prompt written notice of a change in name, or address of the jurisdiction of organization
of the Seller, the Depositor, or the Issuer;
(d) prompt notice of the occurrence of any Servicer Termination Event or “event of default” by
the Servicer under any Servicing Contract (as such term or term of substantially similar import is
defined in such Servicing Contract) without regard to whether such “event of default” has been
cured; and
(e) the information and reports required pursuant to Section 6.02 of the Indenture.
Section 8.02. Acknowledgment. Prior to the date on which a Securitization Trust is
added to any of Schedule I through Schedule III to the Indenture, the Seller shall have obtained
the consent of the Securitization Trustee of such Securitization Trust or seek acknowledgment of
receipt of such Securitization Trustee’s notice, in each case as required under the applicable
Servicing Contract, that the Seller intends to enter into an “Advance Facility” (as such term or
term of substantially similar import is defined in each Servicing Contract), whereby the Seller
will sell and assign the Receivables to the Depositor, following which the Depositor will sell
and/or contribute to the Issuer, who will pledge and assign such Receivables to the Indenture
Trustee, acting on behalf of the Noteholders, as an “Advance Financing Person” (as such term of
substantially similar import is defined in each Servicing Contract), and that the Transaction
Documents shall constitute such “Advance Facility”.
Section 8.03. Access to Information.
(a) The Seller shall, at any time and from time to time during regular business hours, or at
such other reasonable times upon reasonable notice to the Seller permit the Depositor, the Issuer,
the Indenture Trustee, the Agent, the Noteholders or their agents or representatives, at the
Seller’s expense; provided, however, (i) to the extent the Agent, the Noteholders
or their agents exercise their rights under this Section 8.03(a) more than twice in any
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given calendar year any expense incurred in connection with the exercise of such rights shall
be subject to the approval of the Seller and (ii) any expense incurred in connection with the
exercise of such rights in excess of $5,000 per calendar year shall be subject to the approval of
the Seller; provided, further, the limitations set forth in this Section 8.03 shall
be in addition to and in no way affect the terms and provisions of the Verification Agent Letter or
Section 9.04; provided, further, that, no such limitations shall apply after an
Event of Default or an Early Amortization Event, but only so long as that does not unreasonably
interfere with the Seller’s conduct of its business:
(i) | to examine all books, records and documents (including computer tapes and disks) in the possession or under the control of the Seller relating to the Aggregate Receivables or the Transaction Documents as may be requested; | ||
(ii) | to visit the offices and property of the Seller for the purpose of examining such materials described in clause (i) above; and | ||
(iii) | to conduct verification procedures alongside the Verification Agent, including access to the appropriate servicing personnel of the Seller. |
Section 8.04. Ownership and Security Interests; Further Assurances. The Seller will
take all action necessary to maintain the Indenture Trustee’s security interest in the Receivables
and the other items pledged to the Indenture Trustee pursuant to the Indenture.
The Seller agrees to take any and all acts and to execute any and all further instruments
reasonably necessary or requested by the Depositor, the Issuer, the Indenture Trustee, the Agent or
the holders of 66 2/3% of the Commitments of the Notes to more fully effect the purposes of this
Agreement.
Section 8.05. Covenants. The Seller shall duly observe and perform each of its
covenants set forth in each of the Transaction Documents to which it is a party. The Seller shall
duly observe and perform all of the covenants and obligations of the Seller and the Servicer set
forth in the Indenture as if the Seller was a party thereto. The Seller in its capacity as
Servicer shall duly observe and perform each of its covenants set forth in each Servicing Contract,
and hereby covenants to pay as and when billed by the Depositor, the Issuer, the Indenture Trustee,
the Calculation Agent or the Agent all of the reasonable out-of-pocket costs and expenses incurred
in connection with the administration of the transactions contemplated hereby, including, without
limitation, all reasonable fees, disbursements and expenses of counsel to the Depositor; the
Issuer, the Agent, the Indenture Trustee and the Calculation Agent. The Seller shall, promptly
upon making its determination that a Delinquency Advance or Servicing Advance is a Nonrecoverable
Advance, seek reimbursement for that advance in accordance with the related Servicing Contract.
The Seller hereby covenants that except for the sales hereunder, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist
any lien on, any Receivable, or any interest therein; and the Seller will defend the right, title
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and interest of the Issuer, as assignee of the Depositor, in, to and under the Receivables,
against all claims of third parties claiming through or under the Seller.
Section 8.06. Assignment of Rights. Either (i) while an Event of Default has occurred
and is continuing or (ii) in the absence of an Event of Default but only for the limited purpose of
effecting buybacks for defective Receivables, the Seller, the Depositor, and the Issuer hereby
constitute and irrevocably appoint the Indenture Trustee, with full power of substitution and
revocation, as the Seller’s, the Depositor’s and the Issuer’s true and lawful agent and
attorney-in-fact, with the power to the full extent permitted by law, to exercise with respect to
the Receivables conveyed under this Agreement, all the rights, powers and remedies of an owner.
The power of attorney granted pursuant to this Agreement and all authority hereby conferred are
granted and conferred solely to protect the Secured Parties’ respective interests in the
Receivables and shall not impose any duty upon the Indenture Trustee to exercise any power. The
Seller, the Depositor and the Issuer shall execute any documentation, including, without
limitation, any powers of attorney and/or irrevocable proxies, requested by the Indenture Trustee
to effectuate such assignment. The foregoing grant and assignment are powers coupled with an
interest and are irrevocable.
ARTICLE IX.
ADDITIONAL COVENANTS
Section 9.01. Legal Conditions to Closing. The parties hereto will take all
reasonable action necessary to obtain (and will cooperate with one another in taking such action to
obtain) any consent, authorization, permit, license, franchise, order or approval of, or any
exemption by, any Governmental Authority or any other Person, required to be obtained or made by it
in connection with any of the transactions contemplated by this Agreement.
Section 9.02. Expenses.
(a) The Seller covenants that, whether or not the Closing takes place, except as otherwise
expressly provided herein, all reasonable costs and expenses incurred by the Agent, the Calculation
Agent or the Indenture Trustee in connection with this Agreement and the transactions contemplated
hereby shall be paid by the Seller.
(b) Except as otherwise expressly set forth in the Indenture, the Seller covenants to pay as
and when billed by the Depositor, the Issuer, the Indenture Trustee, the Calculation Agent, the
Agent or any Noteholder all of the reasonable out-of-pocket costs and expenses incurred in
connection with the consummation of the transactions contemplated hereby, including, without
limitation, all reasonable fees, disbursements and expenses of counsel to the Depositor, the
Issuer, the Agent, the Indenture Trustee, the Calculation Agent and the Noteholders.
Section 9.03. Mutual Obligations. On and after the Closing, each party hereto will
do, execute and perform all such other acts, deeds and documents as one or more other parties may
from time to time reasonably require in order to carry out the intent of this Agreement.
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Section 9.04. Servicing Standards. At all times, the Seller, as Servicer shall,
unless otherwise consented to by the Agent:
(i) | continue to make Delinquency Advances and Servicing Advances and seek reimbursement, including reimbursement of Delinquency Advances and Servicing Advances deemed Nonrecoverable Advances by the Servicer, in accordance with the related Servicing Contract; | ||
(ii) | apply the Advance Reimbursement Amount on a First In First Out (“FIFO”) basis; | ||
(iii) | identify on its systems the Issuer as the owner of each Delinquency Advance and Servicing Advance and that such Delinquency Advance or Servicing Advance has been pledged to the Indenture Trustee; | ||
(iv) | maintain systems and operating procedures necessary to comply with all the terms of the Transaction Documents, including but not limited to maintaining records and systems necessary to indicate cumulative recoveries on each category of Delinquency Advance and Servicing Advance; | ||
(v) | cooperate with the Verification Agent in its duties set forth in the Transaction Documents; | ||
(vi) | cooperate with the Calculation Agent and the Indenture Trustee in their respective duties set forth in the Transaction Documents; | ||
(vii) | make all Delinquency Advances within the period required under the related Servicing Contract, unless the same is the result of inadvertence and is corrected on or prior to the related Distribution Date for the applicable Securitization Trust; | ||
(viii) | with respect to all Delinquency Advances, agree to deposit the Advance Reimbursement Amount from the Collection Account of the related Securitization Trust directly to the Reimbursement Account on a daily basis not later than the second Business Day following receipts thereof and not deposit any Advance Reimbursement Amount at any time in the Servicer’s own accounts; | ||
(ix) | with respect to all Servicing Advances, agree to deposit the Advance Reimbursement Amount from the Payment Clearing Account directly to the Reimbursement Account on a daily basis not later than the second Business Day following receipt thereof and not deposit any Advance Reimbursement Amount at any time in the Servicer’s own accounts; |
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(x) | as it relates to Delinquency Advances on Mortgage Loans with Forbearance Agreements, continue the practice of reimbursing the oldest Delinquency Advance with any current payment received; | ||
(xi) | maintain, or cause to be maintained, accurate records with respect to the Mortgage Loans in each Securitization Trust reflecting the status of all Pool-Level Delinquency Advances, Loan Level Delinquency Advances (Non-Judicial States), Loan-Level Delinquency Advances (Judicial States), Corporate Advances (Non-Judicial States), Corporate Advances (Judicial States), Escrow Advances (Non-Judicial States) and Escrow Advances (Judicial States) for such Securitization Trust, including the cumulative recoveries related to such Delinquency Advances and Servicing Advances; | ||
(xii) | service all Mortgage Loans related to all Securitization Trusts in accordance with the terms of the related Servicing Contract without regard to any ownership of any securities issued by the related Securitization Trust; and | ||
(xiii) | other than with respect to an amendment to a Servicing Contract executed in accordance with Section 9.11 hereof, not change reimbursement mechanics of Delinquency Advances on any Securitization Trust from Pool-Level Advances to Loan-Level Delinquency Advances or from Loan-Level Delinquency Advances to Pool-Level Advances. |
Section 9.05. Transfer of Servicing. Upon a transfer of servicing by the Seller as
Servicer, the Seller shall use commercially reasonable efforts to negotiate payment in full by the
successor servicer of the aggregate Receivables Balance relating to the Aggregate Receivables;
provided, however, that the Seller as Servicer shall not agree to any negotiated
payment of such aggregate Receivables Balance by the successor servicer without the consent of the
Agent.
Section 9.06. Bankruptcy. The Seller shall not take any action in any capacity to
file any bankruptcy, reorganization or insolvency proceedings against the Depositor or the Issuer,
or cause the Depositor or the Issuer to commence any reorganization, bankruptcy or insolvency
proceedings under any applicable state or federal law, including without limitation any
readjustment of debt, or marshaling of assets or liabilities or similar proceedings. The Depositor
shall not take any action in any capacity to file any bankruptcy, reorganization or insolvency
proceedings against the Issuer, or cause the Issuer to commence any reorganization bankruptcy or
insolvency proceedings under any applicable state or federal law, including without limitation any
readjustment of debt, or marshaling of assets or liabilities or similar proceedings. The Seller
and the Depositor are not transferring and will not transfer any of the Receivables with intent to
hinder, delay or defraud any Person.
Section 9.07. Legal Existence. The Seller and the Depositor shall do or cause to be
done all things necessary on their part to preserve and keep in full force and effect their
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existence as limited liability companies or corporations, as applicable, and the Issuer shall do or
cause to be done all things necessary on its part to preserve and keep in full force and effect its
existence as a Delaware statutory trust, and each of the Seller, the Depositor and the Issuer shall
do or cause to be done all things necessary on their part to maintain each of theirs licenses,
approvals, registrations or qualifications in all jurisdictions in which their ownership or lease
of property or the conduct of their business requires such licenses, approvals, registrations or
qualifications; except for failures to maintain any such licenses, approvals, registrations or
qualifications which, individually or in the aggregate; would not have a Material Adverse Effect.
Section 9.08. Compliance With Laws. The Seller and the Depositor shall comply with
all laws, rules and regulations and orders of any Governmental Authority applicable to the Seller
and the Depositor, except where the failure to comply would not have a Material Adverse Effect.
Section 9.09. Taxes. The Seller and the Depositor shall pay and discharge all taxes,
assessments and governmental charges or levies imposed upon the Seller and the Depositor, as
applicable, or upon such party’s income and profits, or upon any of such party’s property or any
part thereof, before the same shall become in default; provided, that the Seller and the Depositor
shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the
validity or amount thereof shall be contested in good faith by appropriate proceedings and the
Seller and the Depositor shall have set aside on its books adequate reserves with respect to any
such tax, assessment, charge or levy so contested, or so long as the failure to pay any such tax,
assessment, charge or levy would not, individually or in the aggregate, have a Material Adverse
Effect.
Section 9.10. No Liens, Etc. Against Receivables and Trust Property. Each of the
Seller and the Depositor hereby covenants and agrees not to create or suffer to exist (by operation
of law or otherwise) any Lien upon or with respect to any of the Aggregate Receivables or any of
its interest therein, if any, or upon or with respect to any of its interest in any Account, or
assign any right to receive income in respect thereof, except for the Lien created by the
Indenture. Each of the Seller and the Depositor shall immediately notify the Indenture Trustee of
the existence of any Lien on’-any of the Aggregate Receivables and shall defend the right, title
and interest of each of the Depositor, the Issuer and the Indenture Trustee in, to and under the
Aggregate Receivables, against all claims of third parties.
Section 9.11. Amendments to Servicing Contract. The Seller, in its capacity as
Servicer under the Servicing Contracts, with respect to the Securitization Trusts, hereby covenants
and agrees not to amend or agree to the amendment of any of the Servicing Contracts without
providing ten (10) days prior written notice to the Agent and the Indenture Trustee (for subsequent
distributions to Noteholders) (in each case, such written notice delivered by certified mail,
return receipt requested) and, if such amendment has a material adverse effect on the Trust Estate
or the interests of the Noteholders as determined by the Agent, without receipt of the prior
written consent of the Agent and the Required Noteholders. The Agent
shall notify the Seller, in
its capacity as Servicer, that it reasonably believes such amendment to have a material adverse
effect on the Trust Estate within such ten (10) days of its receipt of the notice of the Seller of
the applicable amendment, provided, however, that if no such notice is received by
the Seller from the Agent within such ten (10) day period, the Agent will be deemed to have
notified the Seller,
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in its capacity as Servicer, that it reasonably believes such amendment does
not have a material adverse effect on the Trust Estate or the interests of the Noteholders at the
expiration of such ten (10) days. Notwithstanding the foregoing, the Seller, in its capacity as
Servicer under the Servicing Contracts with respect to the Securitization Trusts, may amend a
Servicing Contract with the written consent of the Agent and the Required Noteholders.
Section 9.12. No Netting or Offsetting. The Seller, in its capacity as Servicer,
shall collect and deposit gross collections with respect to the Securitization Trusts into the
related Collection Accounts in accordance with the related Servicing Contracts, without netting,
off-set or deduction from such collections or deposits for any purpose, with the exception of
Servicing Compensation due and payable to the Servicer. The Seller shall make all Delinquency
Advances and Servicing Advances out of its own funds, without the utilization of any netting or
offsetting of amounts in any account of the Securitization Trust, except as permitted under the
Servicing Contracts with respect to amounts paid ahead by Mortgagors (or such substantially similar
term as is used in each such Servicing Contract). The Seller shall repay any amounts borrowed with
respect to amounts paid ahead by Mortgagors (or such substantially similar term as is used
in each such Servicing Contract) pursuant to the terms and provisions of the Servicing Contracts.
Section 9.13. Books and Records. The Seller shall maintain accounts and records
as to each Receivable accurately and in sufficient detail to permit the reader thereof to know at
any time the status of such Receivable, including payments and recoveries made and payments owing
(and the nature of each, if applicable). The Seller shall maintain its computer records so that,
from and after the time of the Granting of the security interest under the Indenture on the
Receivables to the Indenture Trustee, the Seller’s master computer records (including any back-up
archives) that refer to any Receivables indicate clearly the interest of the Issuer in such
Receivables and that the Receivable is owned by the Issuer and pledged to the Indenture Trustee on
behalf of the Secured Parties.
The Depositor shall maintain (or cause to be maintained) accounts and records as to each
Aggregate Receivable accurately and in sufficient detail to permit the reader thereof to know at
any time the interest of the Issuer in such Receivables and that the Receivable is owned by the
Issuer and pledged to the Indenture Trustee on behalf of the Secured Parties.
Section 9.14. Verification Agent. Each of the Seller and the Depositor shall
cooperate with the Verification Agent and shall allow the Verification Agent access to its books,
records, computer system and employees during ordinary business hours upon reasonable notice and,
subject to the terms of the Verification Agent Letter, shall allow the Verification Agent to review
all collections and to make copies of any books, records and documents requested by the
Verification Agent, but solely to the extent such items and review relate to the Aggregate
Receivables and the obligations of the Seller, the Servicer and the Depositor under the Transaction
Documents and the Servicing Contracts for the Securitization Trusts.
Section 9.15. Exclusive. The Initial Receivables to be sold to the Depositor and to
be sold and/or contributed from the Depositor to the Issuer on the Initial Funding Date shall
consist of all of the Receivables with respect to the Securitization Trusts outstanding as of the
Initial Funding Date. The Additional Receivables sold on each Funding Date shall consist of all of
the Receivables with respect to the Securitization Trusts other than the Initial Receivables and
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the Receivables previously sold to the Depositor hereunder (other than Receivables repurchased by
the Seller pursuant to Section 6.02 hereof or Section 2.19 of the Indenture) as of the related
Funding Date. During the Funding Period, the Seller shall not sell, assign, transfer, pledge or
convey any Receivable with respect to the Securitization Trusts to any Person other than the
Depositor.
Section 9.16. Recovery. The Seller shall diligently endeavor to collect reimbursement
of Aggregate Receivables and shall not waive or forgive the obligation of a mortgagor to pay such
amounts except as may be required pursuant to the related Servicing Contracts or in accordance with
accepted servicing practices (as set forth in such Servicing Contracts); provided,
however, that upon waiving the right to collect all or part of any such Receivable, the
Seller shall immediately notify the Agent of such waiver and, upon the direction of the Agent,
purchase the related Receivable from the Issuer at an amount equal to the applicable Repurchase
Price.
Section 9.17. Merger; Change of Control. Without the prior written consent of the
Agent, the Seller and the Depositor shall not enter into any transaction of merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation, wind up or
dissolution). In addition, without the prior written consent to the Agent, the Seller hereby
covenants that it shall not enter into any agreement or understanding, engage in any transaction or
take any other action that shall result in a Change of Control with respect to the Seller.
Section 9.18. Use of Proceeds. The Seller shall utilize the proceeds of each purchase
of Initial Receivables and Additional Receivables for general corporate purposes.
Section 9.19. Seller Procedures and, Methodology. The Seller shall provide the Agent
and the Noteholders with 30 days written notice prior to the modification of its procedures or
methodology relating to (i) the reimbursement mechanics of Delinquency Advances or Servicing
Advances; (ii) the way in which it determines that a Delinquency Advance or Servicing Advance is a
Nonrecoverable Advance and the extent to which it is no longer obligated to make any such
Delinquency Advance or Servicing Advance under the “related Servicing Contract; and (iii) the way
in which it calculates the Reconciled Market Value of a residential property subject to a Mortgage
Loan or an REO property.
Section 9.20. Financial Covenants. The Seller, acting as Servicer, covenants that:
(a) the ratio of its Total Indebtedness to Tangible Net Worth (excluding any residual
securities issued in connection with an MBS securitization transaction) shall not at any time be
greater than 9:1;
(b) the Seller shall maintain minimum Liquidity in an amount of not less than $20,000,000 as
of the end of each calendar month; and
(c) the Tangible Net Worth of Seller shall at all times be greater than $150,000,000.
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ARTICLE X.
INDEMNIFICATION
Section 10.01. Indemnification.
(a) Without limiting any other rights that an Indemnified Party may have hereunder or under
applicable law, the Seller hereby agrees to indemnify each Indemnified Party (as defined below)
from and against any and all Indemnified Amounts (as defined below) which may be imposed on,
incurred by or asserted against an Indemnified Party in any way arising out of or relating to any
breach of the Seller’s or the Servicer’s obligations or covenants under this Agreement or any other
Transaction Document, or the ownership of the Aggregate Receivables or in respect of the Aggregate
Receivables, excluding, however, Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party.
Without limiting or being limited by the foregoing, the Seller shall pay on demand to each
Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and
against any and all Indemnified Amounts relating to or resulting from:
(i) | a breach of any representation or warranty made by the Seller under or in connection with this Agreement; | ||
(ii) | the failure by the Seller or the Servicer to comply with any term, provision or covenant contained in this Agreement, or any agreement executed by it in connection with this Agreement or with any applicable law, rule or regulation with respect to any Aggregate Receivable, or the nonconformity or any Aggregate Receivable with any such applicable law, rule or regulation; or | ||
(iii) | the failure to vest and maintain vested in the Issuer, or to transfer, to the Issuer, ownership of the Aggregate Receivables, together with all collections in respect thereof, free and clear of any adverse claim (except as permitted hereunder and in the Indenture), whether existing at the time of the transfer of such Aggregate Receivable or at any time thereafter, or the failure to vest and maintain vested in the Indenture Trustee the perfection of the security interest in the Aggregate Receivables free and clear of any adverse claim (except as permitted hereunder and in the Indenture), whether existing at the time of the transfer of such Aggregate Receivable or at any time thereafter. |
(b) Any Indemnified Amounts subject to the indemnification provisions of this Section 10.01
shall be paid to the Indemnified Party within twenty (20) Business Days following demand therefor.
“Indemnified Party” means any of the Depositor, the Issuer, the Indenture Trustee, the
Calculation Agent, the owner Trustee, the Agent, the Noteholders and any Swap Provider and their
officers, employees, directors and successors or assigns. “Indemnified
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Amounts” means any
and all claims, losses, liabilities, obligations, damages, penalties, actions, judgments, suits,
and related reasonable costs and reasonable expenses of any nature whatsoever, including reasonable
attorneys’ fees and disbursements (subject to the following paragraph), incurred by an Indemnified
Party.
(c) Promptly after an Indemnified Party shall have been served with the summons or other first
legal process or shall have received written notice of the threat of a claim in respect of which an
indemnity may be claimed against the Seller under this Section 10.01, the Indemnified Party shall
notify the Seller in writing of the service of such summons, other legal process or written notice,
giving information therein as to the nature and basis of the claim, and providing a copy thereof;
provided, however, that failure so to notify the Seller shall not relieve the
Seller from any liability which it may have hereunder or otherwise except to the extent that the
Seller is prejudiced by such failure so to notify the Seller. The Seller will be entitled, at its
own expense, to participate in the defense of any such claim or action and to assume the defense
thereof, with counsel reasonably satisfactory to such Indemnified Party, unless the defendants in
any such action include both the Indemnified Party and the Seller, and the Indemnified Party (upon
the advice of counsel) shall have reasonably concluded that there may be legal defenses available
to it that are different from or additional to those available to the Seller, or one or more
Indemnified Parties, and which in the reasonable opinion of such counsel are sufficient to create a
conflict of interest for the same counsel to represent both the Seller and such Indemnified party;
provided, however, that the Seller shall not be responsible for the fees and
expenses of more than one firm of attorneys for all Indemnified Parties related to the Depositor,
one firm of attorneys for all Indemnified Parties related to the Issuer, one firm of attorneys for
all Indemnified Parties related to the Agent, one firm of attorneys for all Indemnified Parties
related to the Noteholders and one firm of attorneys for all Indemnified Parties related to the
Indenture Trustee. Each Indemnified Party shall cooperate with the Seller in the defense of any
such action or claim. The Seller shall not, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such proceeding or
threatened proceeding.
ARTICLE XI.
MISCELLANEOUS
Section 11.01. Amendments. No amendment or waiver of any provision of this Agreement
shall in any event be effective unless the same shall be in writing and signed by all of the
parties hereto and consented to in writing by the Agent, and then such amendment, waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, that, except as otherwise provided in Section 8.01 of the Indenture or expressly provided
therein, the Issuer shall not make, or permit any person to make, any amendment, modification or
change to, or provide any waiver under this Agreement or any other Transaction Document to which
the Issuer is a party without the prior written consent of the Required Noteholders.
31
Section 11.02. Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing (including telecopies) and mailed or e-mailed,
telecopied (with a copy delivered by overnight courier) or delivered, as to each party hereto, at
its address as set forth in Schedule I hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and communications
shall be deemed effective upon receipt thereof, and in the case of telecopies, when receipt is
confirmed by telephone.
Section 11.03. No Waiver; Remedies. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 11.04. Binding Effect; Assignability.
(a) This Agreement shall be binding upon and inure to the benefit of the Seller, the Depositor
and the Issuer and their respective permitted successors and assigns; provided,
however, that the Seller shall not have any right to assign its respective rights hereunder
or interest herein (by operation of law or otherwise) without the prior written consent of the
Agent and the Depositor shall not have any right to assign its respective rights hereunder or
interest herein (by operation of law or otherwise) without the prior written consent of the Agent.
(b) This Agreement shall create and constitute the continuing obligation of the parties hereto
in accordance with its terms, and shall remain in full force and effect until such time as the
Indenture has terminated.
Section 11.05. GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT
OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE
JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS
AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS
AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT.
Section 11.06. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement.
32
Section 11.07. Survival. All representations, warranties, covenants, guaranties and
indemnifications contained in this Agreement and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the sale, transfer or repayment
of the Aggregate Receivables.
Section 11.08. Third Party Beneficiary. The Seller and the Depositor acknowledge and
agree that the Indenture Trustee, the Calculation Agent, the Agent and the other Secured Parties
are intended third party beneficiaries of this Agreement.
Section 11.09. General. (a) No course of dealing and no delay or failure of the
Issuer (or the Indenture Trustee as its assignee) in exercising any right, power or privilege under
this Agreement shall affect any other or future exercise thereof or the exercise of any other
right, power or privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right, power or privilege
preclude any further exercise thereof or of any other right, power or privilege. The rights and
remedies of the Issuer (and the Indenture Trustee as its assignee) under this Agreement are
cumulative and not exclusive of any rights or remedies which the Issuer would otherwise have.
(b) The obligations of the Seller and the Depositor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by (a) any exercise or nonexercise of any right,
remedy, power or privilege under or in respect of this Agreement or applicable law, including,
without limitation, any failure to set-off or release in whole or in part by the Issuer of any
balance of any deposit account or credit on its books in favor of the issuer or any waiver,
consent, extension, indulgence or other action or inaction in respect of any thereof, or (b) any
other act or thing or omission or delay to do any other act or thing which would operate as a
discharge of the Issuer as a matter of law.
(c) This Agreement sets forth the entire understanding of the parties relating to the subject
matter hereof and thereof, and supersedes all prior understandings and agreements, whether written
or oral with respect to the subject matter hereof and thereof.
(d) The Seller shall pay the Depositor’s and the Issuer’s costs and expenses reasonably
incurred in connection with the enforcement of any of the Seller’s obligations hereunder.
(e) Any provision of this Agreement which is prohibited, unenforceable or not authorized in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality, of such provision in any other jurisdiction.
Section 11.10. LIMITATION OF DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE PARTIES AGREE THAT NO PARTY SHALL BE
LIABLE TO ANY OTHER FOR ANY SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY
33
OTHER LEGAL OR EQUITABLE
PRINCIPLES; PROVIDED, THAT, THE FOREGOING PROVISION SHALL NOT LIMIT OR RELIEVE ANY PARTY OF ANY
OBLIGATION UNDER THIS AGREEMENT TO INDEMNIFY ANY OTHER PARTY AGAINST ANY DAMAGES IMPOSED (INCLUDING
SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES) UPON SUCH PARTY BY A FINAL ORDER OF ANY COURT OF
COMPETENT JURISDICTION IN CONNECTION WITH ANY LEGAL ACTION BROUGHT AGAINST SUCH PARTY BY ANY THIRD
PARTY.
Section 11.11. WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT TORT OR OTHERWISE) ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, THE PURCHASES OR THE ACTIONS OF ANY PARTY IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Section 11.12. No Recourse. It is expressly understood and agreed by the parties
hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as trustee of the Issuer, in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal representations,
undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of
binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability
on Wilmington Trust Company, individually or personally, to perform any covenant either expressed
or implied contained herein, all such liability, if any, being expressly waived by the parties
hereto and by any Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under this Receivables
Purchase Agreement or any other related documents.
Section 11.13. Confidentiality.
(a) The Seller covenants and agrees to hold in confidence, and not disclose to any Person, the
terms of this Agreement or of any other Transaction Document (including any fees payable in
connection with this Agreement or the other Transaction Documents or the identity of any
Noteholder), except as the Agent or any Noteholder may have consented to in writing prior to any
proposed disclosure and except it may disclose such information (i) to Affiliates of the Seller or
its or their respective directors, officers, employees, agents, advisors, counsel, underwriters,
financing sources and other representatives who are informed of the confidential nature of such
information and instructed to keep it confidential, (ii) to the extent it should be (A) required by
law, rule, regulation, subpoena, or in connection with any legal or regulatory proceeding or (B)
requested by any governmental or regulatory authority having jurisdiction over the disclosing
party; provided, that, in the case of clause (ii)(A), the disclosing party will use all reasonable
efforts to maintain confidentiality and will (unless otherwise prohibited by law) notify the Agent
and the Noteholders of its intention to make any such
34
disclosure prior to making such disclosure,
(iii) to the extent required to be included in the financial statements or filings with the
Securities and Exchange Commission of the Seller or an Affiliate thereof, (iv) to the extent
required to exercise any rights or remedies under the Transaction Documents, and (v) to the extent
required to consummate and administer the transactions contemplated under the Transaction
Documents:
(b) Notwithstanding the generality of the foregoing, Seller and its Affiliates shall maintain
the confidentiality of the sensitive economic terms (i.e., Discount Factors, Margin Rate, Default
Additional Rate, Post-ARD Additional Rate and the like) set forth in any of the Transaction
Documents in negotiations, discussions, agreements or due diligence in connection with any
financing, repurchase, credit or similar transactions with any third-party (including any credit
facility or any similar structure with respect to mortgage related assets including mortgage loans,
RMBS or any similar assets); provided however, this requirement snail not apply to
the tax structure or tax treatment of the transactions contemplated by the Transaction Documents
and the Seller and its Affiliates (and any employee, representative, or agent of the Seller and its
Affiliates) may disclose to any and all persons without limitation of any kind, the tax structure
and tax treatment of such transactions and facts relevant to such tax structure and tax treatment;
provided, further the sensitive economic terms referenced above (i.e., Discount
Factors, Margin Rate, Default Additional Rate, Post-ARD Additional Rate) shall not be treated by
the parties as facts relevant to such tax structure and tax treatment.
[Signature Page Follows]
35
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers hereunto duly authorized, as of the date first above written.
NATIONSTAR MORTGAGE ADVANCE RECEIVABLES TRUST 2010-ADVI |
||
By: Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee |
||
By: /s/ Xxxxxxx X. Xxxxxx | ||
Name: Xxxxxxx X. Xxxxxx | ||
Title: Financial Services Officer | ||
NATIONSTAR ADVANCE FUNDING II LLC |
||
By: /s/ Xxxxxxx Xxxx | ||
Name: Xxxxxxx Xxxx | ||
Title: SVP | ||
NATIONSTAR MORTGAGE LLC | ||
By: /s/ Xxxxxxx Xxxx | ||
Name: Xxxxxxx Xxxx | ||
Title: SVP |
Consented to by:
XXXXX FARGO SECURITIES, LLC
as Agent
as Agent
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
36
XXXXX FARGO BANK, N.A.
as Noteholder
as Noteholder
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Director
Name: Xxxxxx X. Xxxxx
Title: Director
37
SCHEDULE I
INFORMATION FOR NOTICES
1. | If to the Issuer: |
NATIONSTAR MORTGAGE ADVANCE RECEIVABLES TRUST 2010-ADV1 c/o Wilmington Trust Company Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Attention: Corporate Trust Administration Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
(with a copy to the Seller) |
2. | if to the Depositor: |
NATIONSTAR ADVANCE FUNDING II LLC 000 Xxxxxxx Xxxxx Xxxxxxxxxx, Xxxxx 00000 Attention: Xxxx Xxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
3. | if to the Seller: |
NATIONSTAR MORTGAGE LLC 000 Xxxxxxxx Xxxxx Xxxxxxxxxx, Xxxxx 00000 Attention: Xxxx Xxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
4. | if to the Indenture Trustee on behalf of the Secured Parties or the Calculation Agent: |
Use Notice Address provided in the Indenture. |
5. | if to the Agent: |
XXXXX FARGO SECURITIES, LLC 000 Xxxxx Xxxxxxx Xxxxxx MAC X0000-000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxxxxx Xxxxxxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
6. | if to the Noteholders: |
XXXXX FARGO BANK, N.A. 000 Xxxxx Xxxxxxx Xxxxxx MAC X0000-000 Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 Attention: Xxxxxx Xxxxx Facsimile: (000) 000-0000 Telephone: (000) 000-0000 |
39
SCHEDULE II
AMENDMENTS TO SERVICING CONTRACTS
AVAILABLE UPON REQUEST
EXHIBIT A
[RESERVED]
EXHIBIT B
FORM OF FUNDING NOTICE
[Insert date]
Nationstar Mortgage Advance Receivables
|
Xxxxx Fargo Bank, N.A. | |
Trust 2010-ADV1
|
0000 Xxx Xxxxxxxxx Xxxx | |
c/o Wilmington Trust Company
|
Columbia, Maryland 20145-1951 | |
Xxxxxx Square North
|
Client Manager — Nationstar Mortgage | |
0000 Xxxxx Xxxxxx Xxxxxx
|
Advance Receivables Trust 2010-ADV1 | |
Xxxxxxxxxx, Xxxxxxxx 00000
|
Facsimile: (000) 000-0000 | |
Attention: Corporate Trust Administration
|
Telephone: (000) 000-0000 | |
Facsimile: (000) 000-0000 |
||
Telephone: (000) 000-0000 |
||
Xxxxx Fargo Securities, LLC
|
PricewaterhouseCoopers LLP | |
000 Xxxxx Xxxxxxx Xxxxxx
|
0000 X Xxxxxx XX, Xxxxx 000X | |
MAC D1053-082
|
Washington, DC 20005 | |
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
|
Attention: Xxxxx X. Xxxxx | |
Attention: Xxxxxxxx Xxxxxxxx
|
Facsimile: (000) 000-0000 | |
Facsimile: (000) 000-0000
|
Telephone: (000) 000-0000 | |
Telephone: (000) 000-0000 |
Re: Receivables Purchase Agreement, dated as of November 15, 2010; Funding Notice
Pursuant to Section 2.01 of the Receivables Purchase Agreement, dated as of November 15, 2010
(the “Receivables Purchase Agreement”), among Nationstar Mortgage Advance Receivables Trust
2010-ADV1 (the “Issuer”), Nationstar Advance Funding II LLC (the “Depositor”) and
Nationstar Mortgage LLC (the “Seller”), the undersigned hereby notifies you that the
Receivables listed on Exhibit A hereto, in the amount of $[___________], are being sold by the
Seller to the Depositor and by the Depositor to the Issuer on the Funding Date occurring on [insert
date].
The Seller also hereby certifies that (i) the Funding conditions contained in Sections
7.02(ii), (iv), (v), (vi), (vii), (viii), (xiv), (xv), and (xvii) of the Indenture, dated as of
November 15, 2010, between the Issuer and Xxxxx Fargo Bank, N.A. have been met, and (ii) the
representations and warranties contained in Section 6 of the Receivables Purchase Agreement are
true and correct as of the date hereof.
The Depositor also hereby certifies that the representations and warranties contained in
Section 5 of the Receivables Purchase Agreement are true and correct as of the date hereof.
Very truly yours,
NATIONSTAR MORTGAGE LLC
By: | ||||
Name: | ||||
Title: | ||||
NATIONSTAR ADVANCE FUNDING II
By: | ||||
Name: | ||||
Title: | ||||
We have performed the subset of the procedures set forth in Exhibit 1 of our engagement letter for
Agreed Upon Procedures reports with Xxxxx Fargo Securities, LLC and Nationstar Mortgage LLC dated
[__________]. We noted no exceptions as a result of these procedures. All restrictions, terms and
conditions of the engagement letter apply to these procedures.
[PricewaterhouseCoopers LLP (signed)]
[Date]
[Date]
By:
|
43
EXHIBIT C
FORM OF XXXX OF SALE
Nationstar Mortgage LLC (the “Seller”) hereby absolutely sells to Nationstar Advance
Funding II LLC, and Nationstar Advance Funding II LLC (the “Depositor”) hereby absolutely
sells to Nationstar Mortgage Advance Receivables Trust 2010-ADV1, a statutory trust organized under
the laws of the State of Delaware (the “Purchaser”). Without recourse, except as set forth
in the Receivables Purchase Agreement:
(a) | all right, title and interest in and to the Receivables indentified in the Schedule attached hereto as Exhibit A; and | ||
(b) | All principal, interest and other proceeds of any kind received with respect to such Receivables, including but not limited to proceeds derived from the conversion, voluntary or involuntary, of any of such assets into cash or other liquidated property. |
The ownership of the Receivables is vested in Purchaser and the ownership of all records and
documents with respect to the related Receivables prepared by or which come into the possession of
the Seller or the Depositor shall immediately vest in Purchaser and shall be retained and
maintained, in trust, by the Seller or the Depositor, as applicable at the will of Purchaser in
such custodial capacity only. The sale of the Receivables shall be reflected as a sale on the
Seller’s and the Depositor’s business records, tax returns and financial statements.
This Xxxx of Sale is made pursuant to, and is subject to the terms and conditions of, that
certain Receivables Purchase Agreement dated as of November 15, 2010, among Nationstar Mortgage
LLC, as seller, Nationstar Advance Funding II LLC, as depositor and Nationstar Mortgage Advance
Receivables Trust 2010-ADV1, as issuer (the (“Agreement”). The Seller confirms to
Purchaser that the representations and warranties set forth in Article 6 of the Agreement are true
and correct as if made on the date hereof (except to the extent that they expressly relate to an
earlier or later date). The Depositor confirms to Purchaser that the representations and
warranties set forth in Article 5 of the Agreement are true and correct as if made on the date
hereof (except to the extent that they expressly relate to an earlier or later date).
Capitalized terms use herein and not otherwise defined shall have the meanings set forth in
the Agreement.
DATED:
NATIONSTAR MORTGAGE LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
NATIONSTAR ADVANCE FUNDING II | ||||
By: | ||||
Name: | ||||
Title: | ||||
45
EXHIBIT D
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR
INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE OWNER HEREOF UNLESS SUCH TRANSACTION IS
EXEMPT FROM REGISTRATION UNDER THE ACT AND SUCH STATE LAWS, AND WILL NOT BE A “PROHIBITED
TRANSACTION” UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”). BY ACCEPTANCE OF THIS SUBORDINATED NOTE, THE HOLDER AGREES TO BE BOUND BY ALL
THE TERMS OF THE RECEIVABLES PURCHASE AGREEMENT.
[___], 2010
FOR VALUE RECEIVED, the undersigned, Nationstar Advance Funding II LLC, a Delaware limited
liability company (the “Depositor”), promises to pay to the order of Nationstar Mortgage
LLC, a Delaware limited liability company (the “Seller”), on [______], 20[__] (the
“Maturity Date”) the aggregate unpaid principal amount of all amounts loaned hereunder
pursuant to Section 2.01(c) of that certain Receivables Purchase Agreement, dated as of November
15, 2010 (together with all amendments and other modifications, if any, from time to time
thereafter made thereto, the “Receivables Purchase Agreement”), among the Seller, the
Depositor and Nationstar Mortgage Advance Receivables Trust 2010-ADV1 (the “Issuer”),
together with any and all accrued and unpaid interest on all amounts loaned hereunder.
Interest will accrue on the average daily balance of the unpaid principal amount of all
amounts loaned hereunder for each day from the date such loan amounts are made until they become
due and or are paid in full, at a rate per annum equal to the sum of (i) the LIBOR Rate (as
defined below) and (ii) a spread designated as such in writing by the Seller to the Depositor from
time to time (the “Spread”). Interest will be computed on the basis of a 360-day year and
paid for the actual number of days elapsed (including the first but excluding the last day).
Should any principal of, or accrued interest on, any amounts loaned hereunder not be paid when due,
such amount will bear interest from its due date until paid in full, at a rate per annum equal to
the sum of (i) the LIBOR Rate (ii) the Spread and (iii) [1.00]%. Interest shall be payable on the
unpaid principal balance of this note (this “Subordinated Note”) commencing on [________],
200[____] and continuing on the [___] day of each [January, April, July, and October]. With
respect to any such [___] day that is not a Business Day, the interest payment otherwise due on
such [___] day shall be due on the next subsequent day that is a Business Day.
For the purposes of this Subordinated Note, “LIBOR Rate” shall mean the offered rate
for one-month U.S. dollar deposits as such rate appears on Reuters Screen LIBOR01 Page (as defined
in the International Swaps and Derivatives Association, Inc. 2000 Definitions) or such other page
as may replace Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on such date; provided
that if such rate does not appear on Telerate Page 3750, the rate for such date will be determined
on the basis of the rates at which one-month U.S. dollar deposits are offered
by [Name of Banks] (the “Reference Banks”) at approximately 11:00 a.m. (London time)
on such date; to prime banks in the London interbank market. In such event, the Seller will
request the principal London office of each of the Reference Banks to provide a quotation of its
rate. If at least two such quotations are provided, the rate for that date will be the arithmetic
mean of the quotations (rounded upwards if necessary to the nearest whole multiple of 1/16%). If
fewer than two quotations are provided as requested, the rate for that will be the arithmetic mean
of the rates quoted by major banks in New York City, selected by the Seller, at approximately 11:00
a.m. (New York City time) on such date for one-month U.S. dollar loans to leading European banks.
Unless plainly wrong, the computer records of the holder hereof shall on any day conclusively
evidence the unpaid balance of this Subordinated Note and its advances and payments history posted
up to that day. All loans and advances, and all payments and permitted prepayments made hereon may
be (but are not required to be) set forth by or on behalf of such holder on the schedule which is
attached hereto or otherwise recorded in such holder’s computer or manual records;
provided, that any failure to make notation of any principal advance or accrual of interest
shall not cancel, limit or otherwise affect Depositor’s obligations or any of such holder’s rights
with respect to that advance or accrual. Unless otherwise defined, capitalized terms used herein
have the meanings provided in or specified in accordance with the Receivables Purchase Agreement.
The obligation of the Depositor to pay the principal of, and interest on, all loans and
advances on this Subordinated Note shall be absolute and unconditional, shall be binding and, to
the fullest extent permitted by law, enforceable in all circumstances whatsoever and shall not be
subject to setoff, recoupment or counterclaim; provided, however, that the
Depositor shall only be obligated to pay principal and interest on this Subordinated Note from cash
actually received by the Depositor from distributions on the Receivables after payment of all
amounts due the Noteholder under the Indenture, dated as of November 15, 2010, between the Issuer
and Xxxxx Fargo Bank, N.A., as indenture trustee.
Depositor may prepay at any time, without penalty or fee, the principal or interest
outstanding hereunder or any portion of such principal or interest. Payments of both principal and
interest are to be made in lawful money of the United States of America in same day or immediately
available funds.
The Seller hereby agrees, prior to the date that is 367 days after the Maturity Date, not to
acquiesce, petition, or invoke the process of any court or government authority (or to encourage or
cooperate with others) for the purpose of commencing or sustaining a case against the Seller under
any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of or for the Seller or any
substantial part of its property, or ordering the winding up or liquidation of the affairs of the
Seller. The foregoing shall not limit the rights of the Depositor to file any claim in, or to
otherwise take any action with respect to, any insolvency proceeding instituted against the Seller
by any other unaffiliated entity.
Notwithstanding anything contained herein to the contrary, to the extent that the Seller is
deemed to have any interest in any assets of the Depositor, the Seller agrees that its interest in
those assets is subordinate to claims or rights of all other creditors of the Depositor. The
Seller
47
agrees that this Subordinated Note constitutes a subordinated note for purposes of Section
510(a) of the United States Bankruptcy Code, as amended from time to time (11 U.S.C. §§ 101 et
seq.).
As set forth in Section 2.01(c) of the Receivables Purchase Agreement, the Depositor hereby
represents and warrants as of each loan and advance made hereon that at the time of (and
immediately after) each loan and advance made hereunder, (i) the Depositor’s total assets exceed
its total liabilities both before and after the sale transaction, (ii) the Depositor’s cash on hand
is sufficient to satisfy all of its current obligations (other than its obligations under this
Subordinated Note and the obligation to pay the Cash Purchase Price), (iii) the Depositor is
adequately capitalized at a commercially reasonable level and (iv) the Depositor has determined
that its financial capacity to meet its financial commitment under the Subordinate Loan and this
Subordinated Note is adequate. Each loan or advance made hereunder by the Seller to the Depositor
is subject to the accuracy of the representations and warranties herein made on the part of the
Depositor.
This Subordinated Note is the Subordinated Note referred to in, and evidences indebtedness
incurred under, the Receivables Purchase Agreement, and the holder hereof is entitled to the
benefits, Receivables Purchase Agreement. Upon and subject to the terms and conditions of the
Receivables Purchase Agreement, Depositor may borrow, repay and reborrow against this note under
the circumstances, in the manner and for the purposes specified in the Receivables Purchase
Agreement and this Subordinated Note, but for no other purposes. All parties hereto, whether as
makers, endorsers or otherwise, severally waive presentment for payment, demand, protest and notice
of dishonor.
THIS SUBORDINATED NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS.
[Signature Page Follows]
48
NATIONSTAR ADVANCE FUNDING II LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
49