AMENDED AND RESTATED MASTER
REPURCHASE AGREEMENT
This AMENDMENT
NO. 2 (this “ Amendment ”), dated as of
December 19, 2008 (the “ Amendment Effective Date
”), is made by and between PHH MORTGAGE CORPORATION, a New
Jersey corporation (the “ Seller ”) and THE
ROYAL BANK OF SCOTLAND PLC (the “ Buyer
”).
WHEREAS ,
Seller and Buyer are parties to that certain Amended and Restated
Master Repurchase Agreement, dated as of June 26, 2008, as
amended by Amendment No. 1 thereto, dated July 29, 2008
(as further amended, supplemented or otherwise modified from time
to time in accordance with its terms, the “ Master
Repurchase Agreement ”), whereby Buyer has agreed to
purchase from time to time, certain Eligible Loans, as provided in
and subject to the terms and conditions of the Master Repurchase
Agreement, and the other agreements entered into in connection with
the Master Repurchase Agreement (the “ Program
Documents ”);
WHEREAS ,
the parties desire to amend certain provisions of the Master
Repurchase Agreement as set forth herein; and
WHEREAS ,
Section 30 of the Master Repurchase Agreement permits the
amendments contemplated herein.
NOW,
THEREFORE , in consideration of the foregoing and the mutual
agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
1.
Definitions . Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed thereto
in the Master Repurchase Agreement, including by way of reference
to any other documents or agreements.
2.
Amendments to Master Repurchase Agreement . As of the
Amendment Effective Date, the Master Repurchase Agreement is hereby
amended as provided below:
(a) Section 2
of the Master Repurchase Agreement is hereby amended by adding the
following defined terms in their appropriate alphabetical
positions:
“ AM
Funded Wet Loan ” shall have the meaning assigned to such
term in the Disbursement Agent Agreement.
“
Disbursement Account ” shall have the meaning assigned
to such term in the Disbursement Agent Agreement.
“ Notice
of Intent to Issue Trust Receipt ” shall have the meaning
assigned to such term in the Custody Agreement.
“ PM
Funded Wet Loan ” shall have the meaning assigned to such
term in the Disbursement Agent Agreement.
“ Third
Party Loan Purchase Proceeds ” shall mean all amounts
paid by any third party to or upon the direction of Seller in
connection with such party’s purchase from Seller of any
Purchased Loans that are subject to Transactions under this
Agreement immediately prior to such purchase.
“ Third
Party Loan Purchase Proceeds Account ” shall mean the
following account established by Seller in accordance with
Section 13(mm) for the benefit of Buyer, “PHH Mortgage
Corporation Third Party Loan Purchase Proceeds Account; Account
#[***].
“ Third
Party Loan Purchase Proceeds Account Bank ” shall mean
The Bank of New York Mellon Trust Company, N.A., and its successors
and assigns.
“ Wire
Instructions ” shall have the meaning assigned to such
term in the Custody Agreement.
(b) The
definition of Income in Section 2 of the Master Repurchase
Agreement is hereby amended and restated in its entirety to read as
follows:
“
Income ” shall mean, with respect to any Purchased
Loan at any time, any principal and/or interest thereon and all
dividends, sale proceeds (including, without limitation, any FNMA
Loan Purchase Proceeds, Third Party Loan Purchase Proceeds or
proceeds from the securitization of such Purchased Loan or other
disposition thereof) and other collections and distributions
thereon (including, without limitation, any proceeds received in
respect of any Surety Bond, mortgage insurance or Additional
Collateral), but not including any commitment fees, origination
fees and/or servicing fees accrued in respect of periods on or
after the initial Purchase Date with respect to such Purchased Loan
or any Escrow Payments.
(c) Section 3(a)
of the Master Repurchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(a) Subject
to the terms and conditions of the Program Documents, Buyer shall,
from time to time enter into Transactions with an aggregate
Purchase Price for all Purchased Loans acquired by Buyer not to
exceed the Maximum Aggregate Purchase Price. Unless otherwise
agreed, Seller shall request that Buyer enter into a Transaction by
delivering (A) in the case of any Dry Loans or any
Undocumented Loans, (i) a Transaction Notice, appropriately
completed, and a Loan Schedule to Buyer and Custodian, and
(ii) the Mortgage File to Custodian for each Loan proposed to
be included in such Transaction, which Transaction Notice and Loan
Schedule must be received no later than 5:00 p.m. (New
York
[***]INDICATES
MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2
City time) one
Business Day prior to the requested Purchase Date, (B) in the
case of any Wet Loans, (i) a Transaction Notice, appropriately
completed, and a Loan Schedule to Buyer, Custodian and Disbursement
Agent, and (ii) the Mortgage File to Custodian for each Loan
proposed to be included in such Transaction. The Transaction Notice
and Loan Schedule relating to any AM Funded Wet Loan must be
received by no later than 5:00 p.m. (New York City time) one
Business Day prior to the requested Purchase Date. The Loan
Schedule relating to any PM Funded Wet Loan must be received by no
later than 9:00 a.m. (New York City time) and the Transaction
Notice relating to any PM Funded Wet Loan must be received by no
later than 11:00 a.m. (New York City time), in each case on
the requested Purchase Date. Each Transaction Notice shall clearly
indicate those Loans that are intended to be Undocumented Loans, AM
Funded Wet Loans, PM Funded Wet Loans or Dry Loans and shall
include a Loan Schedule in respect of the Eligible Loans that
Seller proposes to include in the related Transaction. Each
Transaction Notice shall specify the proposed Purchase Date,
Purchase Price, Pricing Rate and Repurchase Date (subject to
Section 3(i)). Seller agrees to repurchase from Buyer, on the
same Business Day of discovery, any Undocumented Loans or Wet Loans
that were previously subject to a Transaction that do not close for
any reason including, but not limited to, a Rescission. In the
event that the parties hereto desire to enter into a Transaction on
terms other than as set forth in this Agreement and the Transaction
Notice, Buyer shall deliver to Seller, in electronic or other
format, a “Confirmation” specifying such terms prior to
entering into such Transaction, including, without limitation, the
Purchase Date, the Purchase Price, the Pricing Rate therefor and
the Repurchase Date. By entering in to a Transaction with Buyer,
Seller consents to the terms set forth in any related Confirmation.
Any such Transaction Notice and the related Confirmation, if any,
together with this Agreement, shall constitute conclusive evidence
of the terms agreed to between Buyer and Seller with respect to the
Transaction to which the Transaction Notice and Confirmation, if
any, relates. In the event of any conflict between this Agreement
and a Confirmation, the terms of the Confirmation shall control
with respect to the related Transaction.”
(d) Section 3(c)
of the Master Repurchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(c) Notwithstanding
the provisions of Sections 3(a) and 3(b) above requiring the
execution of a Transaction Notice and delivery of the Mortgage
Files to the Custodian prior to the Purchase Date, with respect to
each Transaction involving a Wet Loan or an Undocumented Loan,
Seller shall, in lieu of delivering the Mortgage Files with respect
to Wet Loans and Undocumented Loans on such Purchase Date or date
of substitution: (i) prior to 5:00 p.m. (New York City time)
on the Business Day immediately preceding the related Purchase Date
or date of substitution of any Undocumented Loans deliver to the
Custodian an Undocumented Loan Schedule setting forth a list of all
such Undocumented Loans and cause the Custodian to deliver to Buyer
a Notice of Intent to Issue Trust Receipt with respect thereto in
accordance with the Custody Agreement, (ii) prior to 5:00 p.m. (New
York City time) on the Business Day immediately
3
preceding the
related Purchase Date or date of substitution of any AM Funded Wet
Loans deliver to the Custodian a Wet Loan Schedule, setting forth a
list of all such AM Funded Wet Loans and cause the Custodian to
deliver to Buyer, by no later than 6:00 p.m. (New York City time)
on such preceding Business Day, a Notice of Intent to Issue Trust
Receipt, with respect thereto, in accordance with the Custody
Agreement, (iii) prior to 9:00 a.m. (New York City time) on the
Purchase Date or date of substitution of any PM Funded Wet Loans
deliver to the Custodian a Wet Loan Schedule setting forth a list
of all such PM Funded Wet Loans and cause the Custodian to deliver
to Buyer by no later than 11:00 a.m. (New York City time) on
such Purchase Date a Notice of Intent to Issue Trust Receipt with
respect thereto, in accordance with the Custody Agreement, and
(iv) in each case, deliver the Mortgage Files to the Custodian
and cause the Custodian to deliver a Trust Receipt to Buyer (by
telecopier with hard copy to follow on the following Business Day)
not later than the day that is ten (10) Business Days
following the related Purchase Date or date of substitution, as
applicable, indicating that such Wet Loan or Undocumented Loan has
converted to a Dry Loan, in accordance with the procedures set
forth in the Custody Agreement. The original copies of such Trust
Receipts shall be delivered to JPMorgan Chase Bank at [***],
Attention: Jennifer John for the account of The Royal Bank of
Scotland plc, telephone number (212)623-5953, as agent for Buyer by
overnight delivery using a nationally recognized insured overnight
delivery service.”
(e) Section 3(d)
of the Master Repurchase Agreement is hereby amended and restated
in its entirety to read as follows:
“(d) Upon
Seller’s request to enter into a Transaction pursuant to
Section 3(a), Buyer shall, assuming all conditions precedent set
forth in Section 3 and in Sections 9(a) and 9(b) have been
met, and provided no Default, Event of Default or Event of
Termination shall have occurred and be continuing, if all
conditions precedent are satisfied (i) with respect to Dry
Loans or Undocumented Loans, by 5:00 p.m. (New York City time) on
the Business Day preceding the requested Purchase Date,
(ii) with respect to AM Funded Wet Loans, by 6:00 p.m. (New
York City time) on the Business Day preceding the requested
Purchase Date, or (iii) with respect to PM Funded Wet Loans,
by 11:00 a.m. (New York City Time) on the requested Purchase
Date purchase the Eligible Loans included in the related
Transaction Notice by transferring, via wire transfer (pursuant to
Wire Instructions provided by Seller to Buyer and, in the case of
any Wet Loans, to Disbursement Agent, on or prior to such Purchase
Date), the Purchase Price. Buyer shall pay such Purchase Price
(i) with respect to Dry Loans or Undocumented Loans, not later
than 2:00 p.m. (New York City time) on the requested Purchase Date,
(ii) with respect to AM Funded Wet Loans, not later than 9:00
a.m. (New York City time) on the requested Purchase Date, and (iii)
with respect to PM Funded Wet Loans, not later than 11:30 a.m.
(New York City time) on the requested Purchase Date. Purchases of
Wet Loans shall be consummated in accordance with the procedures
set forth in the Disbursement Agent Agreement. Seller acknowledges
and agrees that the Purchase Price paid in
[***]INDICATES
MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
4
connection with
any servicing released Loans that are purchased in any Transaction
includes a mutually negotiated premium allocable to the portion of
such Purchased Loans that constitutes the related Servicing
Rights.”
(f) Section 7
of the Master Repurchase Agreement is hereby amended and restated
in its entirety to read as follows:
“Where a
particular term of a Transaction extends over the date on which
Income is paid in respect of any Purchased Loan subject to that
Transaction, such Income shall be the property of Buyer.
Notwithstanding the foregoing, and provided no Default or Event of
Default has occurred and is continuing, Buyer agrees that Seller
shall be entitled to receive an amount equal to all Income (other
than any FNMA Loan Purchase Proceeds or Third Party Loan Purchase
Proceeds) received in respect of the Purchased Loans, whether by
Buyer, Custodian, Disbursement Agent or any servicer or any other
Person, which is not otherwise received by Seller, to the full
extent it would be so entitled if the Purchased Loans had not been
sold to Buyer; provided that any Income received by Seller
while the related Transaction is outstanding shall be deemed to be
held by Seller solely in trust for Buyer pending the repurchase on
the related Repurchase Date; provided further that
Seller shall hold all such Income (other than any FNMA Loan
Purchase Proceeds or Third Party Loan Purchase Proceeds) in the
Collection Account. Seller shall deposit all Income (other than any
FNMA Loan Purchase Proceeds or Third Party Loan Purchase Proceeds)
received by it into the Collection Account within three
(3) Business Days of Seller’s receipt thereof. Seller
shall direct FNMA to deposit all FNMA Loan Purcha
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