AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENTMortgage Loan Purchase Agreement |
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Exhibit 10.4
AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT
TABLE OF CONTENTS
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AMENDED AND RESTATED MORTGAGE LOAN PURCHASE AGREEMENT
This Amended and Restated Mortgage Loan Purchase Agreement (“ Agreement ”), dated as of the date set forth on the cover page hereof, between UBS WARBURG REAL ESTATE SECURITIES INC. (“ Purchaser ”) and the Seller whose name is set forth on the cover page hereof (“ Seller ”).
RECITALS
WHEREAS, the Purchaser and the Seller are parties to the Mortgage Loan Purchase Agreement, dated as of March 26, 2001 (the “ Original Mortgage Loan Purchase Agreement ”);
WHEREAS, pursuant to the Original Mortgage Loan Purchase Agreement, Seller may have, in its sole discretion, offered to sell to Purchaser from time to time Mortgage Loans (as defined therein), and Purchaser, in its sole discretion, may have agreed to purchase such Mortgage Loans from Seller in accordance with the terms and conditions set forth in the Original Mortgage Loan Purchase Agreement;
WHEREAS, the Seller and the Purchaser desire to amend and restate the Original Mortgage Loan Purchase Agreement as provided herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree that the Original Mortgage Loan Purchase Agreement be amended and restated in its entirety as follows:
PRELIMINARY STATEMENT
Seller may, in its sole discretion, offer to sell to Purchaser from time to time Mortgage Loans, and Purchaser, in its sole discretion, may agree to purchase such Mortgage Loans from Seller in accordance with the terms and conditions set forth in this Agreement. Seller, subject to the terms hereof, will cause each Mortgage Loan to be purchased by Takeout Investor. During the period from the purchase of a Mortgage Loan to the sale of the Mortgage Loan to Takeout Investor, Purchaser expects to rely entirely upon Seller to service each such Mortgage Loan.
The parties hereto hereby agree as follows:
Section 1. Definitions . Capitalized terms used but not defined herein shall have the meanings set forth in the Custodial Agreement. As used in this Agreement, the following terms shall have the following meanings:“ Accepted Servicing Practices ”: With respect to each Mortgage Loan, such standards which comply with the applicable standards and requirements under: (i) an applicable Agency Program and related provisions of the applicable Agency Guide pursuant to which the related Mortgage Loan is intended to be purchased, and/or (ii) any applicable FHA and/or VA program and related provisions of applicable FHA and/or VA servicing guidelines.
“ Act of Insolvency ”: With respect to Seller, (a) the commencement by Seller as debtor of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law, or Seller’s seeking the appointment of a receiver, trustee, custodian or similar official for Seller or any substantial part of its property, or (b) the commencement of any such case or proceeding against Seller, or another’s seeking such appointment, or the filing against Seller of an application for a protective decree which (1) is consented to or not timely contested by Seller, (2) results in the entry of an order for relief, such an appointment, the issuance of such a protective decree or the entry of an order having a similar effect, or (3) is not dismissed within sixty (60) days, (c) the making by Seller of a general assignment for the benefit of creditors, or (d) the admission in writing by Seller that Seller is unable to pay its debts as they become due or the nonpayment generally by Seller of its debts as they become due.
“ Affiliate ”: With respect to any Person, any “affiliate” of such Person, as such term is defined in the Bankruptcy Code.
“ Agency ”: The Government National Mortgage Association (“ GNMA ”), the Federal National Mortgage Association (“ Fannie Mae ”), and the Federal Home Loan Mortgage Corporation (“ Freddie Mac ”), as applicable.
“ Agency Approvals ”: As defined in Section 8(a)(viii) of this Agreement.
“ Agency Eligible Mortgage Loan ”: A mortgage loan that is in strict compliance with the eligibility requirements for swap or purchase by the designated Agency, under the applicable Agency Guide and/or applicable Agency Program.
“ Agency Guide ”: The GNMA Mortgage-Backed Securities Guide; the Fannie Mae Selling Guide and the Fannie Mae Servicing Guide; the Freddie Mac Sellers’ and Servicers’ Guide; as applicable, in each case as such Agency Guide may be amended from time to time.
“ Agency Program ”: The specific purchase program under the relevant Agency Guide or as otherwise approved by the Agency.
“ Applicable Guide ”: The Takeout Investor’s eligibility requirements for Mortgage Loans, as applicable, and as each may be amended or supplemented from time to time.
“ Applicable Purchase Agreement ”: The applicable agreement, providing for the purchase by Takeout Investor of Mortgage Loans from Seller as such agreement may be amended from time to time.
“ Asset Value ”: With respect to each Mortgage Loan, the outstanding principal balance of such Mortgage Loan less the Discount; provided, that, the Asset Value shall be deemed to be zero with respect to each Mortgage Loan (1) in respect of which there is a breach of a representation and warranty set forth in Schedule 1 (assuming each representation and warranty is made as of the date Asset Value is determined) or (2) which has been released from the possession of the Custodian under the Custodial Agreement to the Seller for a period in excess of ten (10) calendar days; provided that the Purchaser may, in its sole and absolute discretion, assign an Asset Value above zero with respect to any Mortgage Loan that would otherwise be deemed to have an Asset Value of zero.
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“ Assignee ”: With respect to this Agreement and any Mortgage Loan, any assignee of the Purchaser pursuant to a pledge or rehypothecation of the Mortgage Loan.
“ Authorized Signatory ”: An officer of the Seller who is authorized and empowered to request a purchase of Mortgage Loans by the Purchaser pursuant to a request for purchase, and is indicated on the Authorized Signatories of the Seller attached hereto as Exhibit F.
“ Bankruptcy Code ”: The United States Bankruptcy Code of 1978, as amended from time to time.
“ Business Day ”: Any day other than (a) a Saturday, Sunday or other day on which banks located in the City of New York, New York are authorized or obligated by law or executive order to be closed, or (b) any day on which UBS Warburg Real Estate Securities Inc. is closed for business, provided that notice thereof shall have been given not less than seven calendar days prior to such day.
“ Cash Account ”: A separate cash account established and maintained by Seller at the Purchaser under the conditions set forth in Section 2.1.
“ Cash Account Adjustment ”: An adjustment to the Cash Account Balance pursuant to a Cash Account Adjustment Notice.
“ Cash Account Adjustment Notice ”: The cash account adjustment notice, in the form of Exhibit H; to be used by Purchaser to notify Seller of any adjustments to the Cash Account Balance.
“ Cash Account Balance ”: As of any date, the net amount of funds in the Cash Account on such date.
“ Cash Account Interest Accrual ”: The simple interest calculation posted on the last Business Day of each month resulting from the product of each Business Day’s Cash Account Balance and Cash Account Interest Rate.
“ Cash Account Interest Rate ”: With respect to each month, the average opening federal funds rate for such month. The opening federal funds rate on a Business Day shall be counted as the Cash Account Interest Rate until the next Business Day.
“ Cash Account Wire Instructions ”: The wire instructions, set forth in a letter in the form of Exhibit I, to be used for the payment of funds to Seller.
“ Cash Window Mortgage Loan ”: Any Mortgage Loan to be sold to an Agency for cash.
“ Cash Window Transaction ”: A transaction in which a Cash Window Mortgage Loan is sold.
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“ Collateral ”: Each of the following items or types of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located: any cash or United Status Treasury obligations delivered to Purchaser pursuant to Section 7(d), and any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing.
“ Commitment Date ”: The date set forth in a Takeout Commitment as the commitment date.
“ Commitment Expiration Date ”: With respect to any Mortgage Loan, the date set forth in the related Takeout Commitment as the commitment date.
“ Commitment Requirements ”: The requirements issued by Takeout Investor in the Applicable Guide regarding the issuance of Takeout Commitments, as amended from time to time by Takeout Investor.
“ Conduit ”: As defined in the Custodial Agreement.
“ Conduit Submission Package ”: As defined in the Custodial Agreement.
“ Co-op ” shall mean a private, cooperative housing corporation, having only one class of stock outstanding, which owns or leases land and all or part of a building or buildings, including apartments, spaces used for commercial purposes and common areas therein and whose board of directors authorizes the sale of stock and the issuance of a Co-op Lease.
“ Co-op Lease ” shall mean, with respect to a Co-op Loan, the lease with respect to a dwelling unit occupied by the Mortgagor and relating to the stock allocated to the related dwelling unit.
“ Co-op Loan ” shall mean a Mortgage Loan, which is secured by the pledge of stock allocated to a dwelling unit in a Co-op and a collateral assignment of the related Co-op Lease.
“ Co-op Security Agreement ” shall mean the agreement creating a first lien security interest in the stock allocated to a dwelling unit in the residential cooperative housing corporation that was pledged to secure such Co-op Loan and the related Co-op Lease.
“ Credit File ”: All papers and records of whatever kind or description, whether developed or originated by Seller or others, required to document or service the Mortgage Loan; provided, however , that such Mortgage Loan papers, documents and records shall not include any Mortgage Loan papers, documents or records which are contained in the Conduit Submission Package.
“ Cure Expiration Date ”: With respect to a Defective Mortgage Loan in a Cash Window Transaction, the date occurring five Business Days after the Commitment Expiration Date.
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“ Custodial Account ”: A separate custodial account, established and maintained by Seller under the conditions set forth in Section 4(b), for the deposit by Seller of all collections in respect of a Mortgage Loan that are payable to Purchaser as the owner of the Mortgage Loan.
“ Custodial Agreement ”: The Amended and Restated Mortgage Loan Custodial Agreement, dated as of the date set forth on the cover sheet thereof, among Seller, Purchaser and Custodian, as amended from time to time.
“ Custodial Fee ”: With respect to each Mortgage Loan, the amount set forth on the related Funding Confirmation as the “Custodial Fee.”
“ Custodian ”: The custodian named in the Custodial Agreement and its permitted successors.
“ Defect Amount ”: An amount (expressed as a positive number) equal to the aggregate Asset Value of the Mortgage Loans owned by Purchaser hereunder less the aggregate Purchase Price for all such Mortgage Loans if at any time the aggregate Asset Value of the Mortgage Loans is less than the aggregate Purchase Price for all such Mortgage Loans.
“ Defective Mortgage Loan ”: A Mortgage Loan that is not in compliance with the Applicable Guide and this Agreement.
“ Discount ”: With respect to each Mortgage Loan, the amount set forth on such related Funding Confirmation as the Discount.
“ Document File ”: The Credit File and the Conduit Submission Package.
“ Due Date ”: The day of the month on which the Monthly Payment is due on a Mortgage Loan.
“ Electronic Tracking Agreement ”: The Electronic Tracking Agreement, dated as of the date hereof, among Purchaser, Seller, MERSCORP, Inc. and Mortgage Electronic Registration Systems, Inc.; provided that if no Mortgage Loans are or will be MERS Designated Mortgage Loans, all references herein to the Electronic Tracking Agreement shall be disregarded.
“ Electronic Transmission ” shall mean the delivery of information in an electronic format acceptable to the applicable recipient thereof.
“ FDIC ”: The Federal Deposit Insurance Corporation or any successor thereto.
“ FHA ”: The Federal Housing Administration.
“ Funding Confirmation ”: With respect to all Mortgage Loans purchased by Purchaser from Seller via a single wire funds transaction on a particular Business Day, the trade confirmation from Purchaser to Seller confirming the terms of Purchaser’s purchase of such Mortgage Loans.
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“ HUD ”: The United States Department of Housing and Urban Development.
“ Incremental Pass-Through Rate ”: The amount by which the Pass-Through Rate is increased upon the occurrence of (i) a Commitment Expiration Date or (ii) any event giving Purchaser the right to elect a remedy pursuant to Section 3, which amount shall be set forth in a Funding Confirmation as the “Incremental Pass-Through Rate”.
“ Interim Funder ”: With respect to each MERS Designated Mortgage Loan, the Person named on the MERS® System as the interim funder pursuant to the MERS Procedures Manual.
“ Investor ”: With respect to each MERS Designated Mortgage Loan, the Person named on the MERS® System as the investor pursuant to the MERS Procedures Manual.
“ Loan Purchase Detail ”: A loan purchase detail, transmitted via Electronic Transmission in the appropriate data layout set forth on Exhibit A-1, prepared by Seller, containing each data point set forth on Exhibit A or as may be requested by the Purchaser regarding the characteristics of all Mortgage Loans being offered for sale by Seller on a particular Business Day.
“ Losses ”: Any and all losses, claims, damages, liabilities or expenses (including reasonable attorneys’ fees) incurred by any person specified; provided, however , that “Losses” shall not include any losses, claims, damages, liabilities or expenses which would have been avoided had such person taken reasonable actions to mitigate such losses, claims, damages, liabilities or expenses.
“ MERS Designated Mortgage Loan ”: Mortgage Loans for which (a) the Seller has designated or will designate MERS as, and has taken or will take such action as is necessary to cause MERS to be, the mortgagee of record, as nominee for the Seller, in accordance with MERS Procedure Manual and (b) the Seller has designated or will designate the Purchaser as the Investor and Interim Funder on the MERS® System.
“ MERS Procedure Manual ”: The MERS Procedures Manual attached as Exhibit B to the Electronic Tracking Agreement, as it may be amended, supplemented or otherwise modified from time to time.
“ MERS Report ”: The schedule listing MERS Designated Mortgage Loans and other information prepared by the Electronic Agent pursuant to the Electronic Tracking Agreement.
“ MERS® System ”: The Electronic Agent’s mortgage electronic registry system, as more particularly described in the MERS Procedures Manual.
“ Monthly Payment ”: The scheduled monthly payment of principal and interest on a Mortgage Loan.
“ Mortgage ”: With respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of trust or other instrument creating a first lien on an estate in fee simple in real
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property securing a Mortgage Note and, with respect to a Co-op Loan, the Co-op Security Agreement.
“ Mortgage Loan ”: A mortgage loan which is subject to this Agreement, and which satisfies the Commitment Requirements as the same may be modified from time to time.
“ Mortgage Note ”: The note or other evidence of the indebtedness of a Mortgagor secured by a Mortgage.
“ Mortgaged Property ”: With respect to a Mortgage Loan that is not a Co-op Loan, the property subject to the lien of the Mortgage securing a Mortgage Note. With respect to a Co-op Loan, the stock allocated to a dwelling unit in the residential cooperative housing corporation that was pledged to secure such Co-op Loan and the related Co-op Lease.
“ Mortgagor ”: The obligor on a Mortgage Note.
“ NCUA ”: The National Credit Union Administration, or any successor thereto.
“ Original Mortgage Loan Purchase Agreement ”: Shall have the meaning assigned to such term in the recitals hereof.
“ OTS ”: The Office of Thrift Supervision, or any successor thereto.
“ Parent Company ”: A corporation or other entity owning at least 50% of the outstanding shares of voting stock of Seller.
“ Pass-Through Rate ”: With respect to each Mortgage Loan, the rate at which interest is passed through to Purchaser which initially shall be the rate of interest specified on a Funding Confirmation as the Pass-Through Rate.
“ Performance Fee ”: With respect to each Mortgage Loan, an amount equal to the Discount less the Custodial Fee, plus the Yield Compensation Adjustment plus or minus any other adjustments permitted hereunder, which amount shall be payable to Seller by Purchaser as compensation to Seller for its services hereunder.
“ Person ”: Any individual, corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, unincorporated association or government (or any agency, instrumentality or political subdivision thereof).
“ Property ”: Any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“ Purchase Advice ”: An approved purchase list delivered to Purchaser by the Takeout Investor via electronic or facsimile transmission, confirming the amount of Takeout Proceeds allocable to each Mortgage Loan purchased by Takeout Investor.
“ Purchase Date ”: With respect to any Mortgage Loan, the date of payment thereof by Purchaser to Seller of the Purchase Price.
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“ Purchase Price ”: With respect to each Mortgage Loan, an amount equal to the Trade Principal less an amount equal to the product of the Trade Principal and the Discount. Accrued interest shall be allocated in accordance with Section 2(c).
“ Purchaser ”: UBS Warburg Real Estate Securities Inc. and its successors.
“ Purchaser’s Wire Instructions to Seller ”: The wire instructions, set forth in a notice delivered by Purchaser to Seller containing the information set forth in Exhibit D, to be used for the payment of all amounts due and payable to Purchaser hereunder.
“ Qualified Insurer ”: A mortgage guaranty insurance company duly authorized and licensed where required by law to transact mortgage guaranty insurance business and approved as an insurer by Fannie Mae or Freddie Mac and GNMA.
“ RTC ”: The Resolution Trust Corporation or any successor thereto.
“ Seller ”: The Seller whose name is set forth on the cover page hereof, and its permitted successors hereunder.
“ Seller’s Release ”: A letter in the form of Exhibit C-1, delivered by Seller when no Warehouse has an interest in a Mortgage Loan, conditionally releasing all of Seller’s interest in a Mortgage Loan upon receipt of payment by Seller.
“ Seller’s Wire Instructions ”: The wire instructions, set forth in a letter in the form of Exhibit C-2, to be used for the payment of funds to Seller when no Warehouse Lender has an interest in the Mortgage Loans to which such payment relates.
“ Servicing Rights ”: Any and all of the following: (a) any and all rights to service the Mortgage Loans; (b) any payments to or monies received by Seller or any other Person for servicing the Mortgage Loans; (c) any late fees, penalties or similar payments with respect to the Mortgage Loans; (d) all agreements or documents creating, defining or evidencing any such servicing rights to the extent they relate to such servicing rights and all rights of Seller or any other Person thereunder; (e) escrow payments or other similar payments with respect to the Mortgage Loans and any amounts actually collected by Seller or any other Person with respect thereto; and (f) all accounts and other rights to payment related to the Mortgage Loans.
“ Settlement Date ”: With respect to any Mortgage Loan, the date the allocable Pass-Through Rate shall cease to accrue upon payment by Takeout Investor to Purchaser of the Takeout Proceeds as confirmed by Purchaser’s receipt from Seller of the related Settlement Information in accordance with Section 3(a).
“ Settlement Information ”: The Purchase Advice or group of Purchase Advices which shall identify each Mortgage Loan by the Mortgagor’s name, and of which the aggregate disbursement amount equals the precise dollar amount of Takeout Proceeds to be received by Purchaser from this Agreement and, when applicable, a Takeout Proceeds Identification Letter.
“ Subsidiary ”: With respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the
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terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
“ Successor Servicer ”: An entity designated by Purchaser, in conformity with Section 16, to replace Seller as servicer for Purchaser.
“ Takeout Commitment ”: Commitment of Seller to sell one or more Mortgage Loans to Takeout Investor and of Takeout Investor to purchase one or more Mortgage Loans from Seller.
“ Takeout Investor ”: The applicable Conduit.
“ Takeout Proceeds ”: The amount of funds Takeout Investor pays to Purchaser on a particular Business Day as identified by the related Settlement Information.
“ Takeout Proceeds Identification Letter ”: A letter in the form of Exhibit K, delivered by Seller to Purchaser identifying Takeout Proceeds received by Purchaser from an Agency or Takeout Investor which funds do not relate to Mortgage Loans purchased by Purchaser from Seller.
“ Third Party Underwriter ”: Any third party, including but not limited to a mortgage loan pool insurer, who underwrites the Mortgage Loan(s) prior to the purchase by Purchaser.
“ Third Party Underwriter’s Certificate ”: A certificate issued by a Third Party Underwriter with respect to a Mortgage Loan, certifying that such Mortgage Loan complies with its underwriting requirements.
“ Trade Price ”: The trade price set forth on a Takeout Commitment.
“ Trade Principal ”: With respect to any Mortgage Loan, the outstanding principal balance of the Mortgage Loan multiplied by a percentage equal to the Trade Price.
“ Transaction ”: Any sale of a Mortgage Loan by Seller to Purchaser pursuant to a Funding Confirmation in accordance with this Agreement.
“ UBSRES Purchase Program ”: Purchaser’s Cash Window Funding Program, Conduit Funding Program, or MBS Swap Funding Program as applicable.
“ Underlying Mortgaged Property ” shall mean with respect to each Co-op Loan, the underlying real property owned by the related residential cooperative housing corporation.
“ VA ”: The Department of Veterans Affairs.
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“ Warehouse Lender ”: Any lender, including, without limitation, Purchaser, providing financing to the Seller in any fractional amount for the purpose of originating or purchasing Mortgage Loans which lender has a security interest in such Mortgage Loans as collateral for the obligations of Seller to such lender.
“ Warehouse Lender’s Release ”: A letter in the form of Exhibit B-1, from a Warehouse Lender to Purchaser, conditionally releasing all of Warehouse Lender’s right, title and interest in certain Mortgage Loans identified therein upon receipt of payment by Warehouse Lender.
“ Warehouse Lender’s Wire Instructions ”: The wire instructions, set forth in a letter in the form of Exhibit B-2, from a Warehouse Lender to Purchaser, setting forth wire instructions for all amounts due and payable to such Warehouse Lender hereunder.
“ Withdrawal/Deposit Notice ”: A notice, substantially in the form of Exhibit J, delivered by Seller to Purchaser, from time to time, in connection with withdrawals from and deposits to the Cash Account.
“ Wire Fee ”: For each disbursement relating to a Transaction, a fee payable to Purchaser by Seller as set forth in the Funding Confirmation.
“ Yield Compensation Adjustment ”: Subject to any further adjustment provided in this Agreement, an amount (which may be a negative number) equal to:
A(BC-DE)
where (i) A equals the number of days in the period beginning on the Purchase Date to but not including the Settlement Date, (ii) B equals the principal amount of the Mortgage Loan, (iii) C equals the interest rate (expressed as a decimal) on the Mortgage Loan, (iv) D equals the Purchase Price and (v) E equals the Pass-Through Rate (expressed as a decimal).
Section 2. Procedures for Purchases of Mortgage Loans . (a) (1) Purchaser may, in its sole discretion, from time to time, purchase one or more Mortgage Loans from Seller. Seller shall be deemed to make for the benefit of Purchaser, as of the applicable dates specified in Section 8, the representations and warranties set forth in Section 8 in respect of each such Mortgage Loan.(a) (2) Prior to Purchaser’s election to purchase any Mortgage Loan, Purchaser shall have received from Seller (i) a Loan Purchase Detail, via Electronic Transmission, (ii) a MERS Report reflecting the Purchaser as Investor or Interim Funder for each MERS Designated Mortgage Loan and (iii) Custodian shall have received all applicable documents required by Section 2 of the Custodial Agreement. The terms and conditions of such purchase shall be set forth in this Agreement and in each Funding Confirmation.
(b) (1) If Purchaser elects to purchase any Mortgage Loan, Purchaser shall pay the amount of the Purchase Price for such Mortgage Loan by wire transfer of immediately available funds (i) if a Warehouse Lender’s Release has been included in the related Conduit
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Submission Package, in accordance with the Warehouse Lender’s Wire Instructions or (ii) if there is no Warehouse Lender’s Release included in the related Conduit Submission Package, in accordance with the Seller’s Wire Instructions. If Purchaser is the Warehouse Lender with respect to a Mortgage Loan, the amount transferred shall be reduced to account for amounts previously advanced by Purchaser with respect to such Mortgage Loan. With respect to each Mortgage Loan which Purchaser has elected to purchase, Custodian shall deliver to Takeout Investor the applicable portion of the Conduit Submission Package, in the manner and at the time set forth in the Custodial Agreement. Seller shall thereafter promptly deliver to Takeout Investor any and all additional documents requested by Takeout Investor to enable Takeout Investor to make payment to Purchaser of the Takeout Proceeds.
(b) (2) Simultaneously with the payment by Purchaser of the Purchase Price of a Mortgage Loan, in accordance with the Warehouse Lender’s Wire Instructions or the Seller’s Wire Instructions, as applicable, with respect to a Mortgage Loan, Seller hereby conveys to Purchaser all of Seller’s right, title and interest in and to such Mortgage Loan, free and clear of any lien, claim or encumbrance.
(c) With respect to each Mortgage Loan that Purchaser elects to purchase hereunder, Purchaser shall owe to Seller a Performance Fee. The Yield Compensation Adjustment component of the Performance Fee shall include an accrued interest calculation. Purchaser’s accrued interest calculation shall be identical to that of Takeout Investor, therefore the amount of accrued interest included in a settlement calculation will represent accrued interest paid to Purchaser and paid by Purchaser.
(d) Notwithstanding the satisfaction by Seller of the conditions specified in Section 2(a), Purchaser is not obligated to purchase any Mortgage Loan offered to it hereunder. In the event that Purchaser rejects a Mortgage Loan for purchase for any reason and/or does not transmit the Purchase Price, any Conduit Submission Package delivered to Custodian in anticipation of such purchase shall be returned by Custodian in accordance with the terms of the bailee letter under which it was received.
Section 2.1. Cash Account .(a) Seller hereby authorizes and directs Purchaser to create the Cash Account. The Cash Account shall be held by Purchaser for Seller subject to the terms and conditions of this Agreement. Purchaser shall notify Seller, via electronic or facsimile transmission, of the Cash Account Balance on each Business Day when the Cash Account Balance is greater than zero and on each Business Day on which a Transaction occurs hereunder.(b) Purchaser shall credit the Cash Account for (i) any deposits therein by Seller upon Seller’s written direction pursuant to a Withdrawal/Deposit Notice, (ii) any amounts due Seller and payable by Purchaser under any | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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