MASTER REPURCHASE AGREEMENT

Exhibit 10.1

 

MASTER REPURCHASE AGREEMENT

(for Pulte Mortgage LLC)

dated as of May 15, 2009

among

COMERICA BANK,

as Agent, Co-Lead Arranger and a Buyer,

BANK OF AMERICA, NATIONAL ASSOCIATION,

as Co-Lead Arranger and a Buyer

THE OTHER BUYERS PARTY HERETO

and

PULTE MORTGAGE LLC, as Seller

TABLE OF CONTENTS

 

 

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EXHIBITS AND SCHEDULES

 

 

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MASTER REPURCHASE AGREEMENT

THIS MASTER REPURCHASE AGREEMENT is made and entered into as of May 15, 2009, between and among Pulte Mortgage LLC, a Delaware limited liability company (the “ Seller ”), Comerica Bank, as Agent and representative of itself as a Buyer and the other Buyers (the “ Agent ” and sometimes “ Comerica Bank ”), Bank of America, National Association, as Co-Lead Arranger and the other Buyers, as defined in Section 1.2 .

RECITALS

1        Applicability and Defined Terms.

1.1.       Applicability . From time to time the parties hereto may enter into transactions in which the Seller agrees to transfer to the Agent on behalf of the Buyers, Eligible Loans on a servicing released basis against the transfer of funds by the Buyers, with a simultaneous agreement by the Buyers to transfer to the Seller such Eligible Loans at a date certain or on demand in the event of termination pursuant to Section 18.2 hereof, or if no demand is sooner made, on the Termination Date, against the transfer of funds by the Seller. Each such transaction shall be referred to herein as a “Transaction” and shall be governed by this Agreement, as hereinafter defined.

Comerica Bank has also agreed to provide a separate revolving swing line repurchase facility to initially and temporarily purchase Eligible Loans pending their purchase by all of the Buyers pursuant to this Agreement.

The parties hereby specifically declare that it is their intention that this Master Repurchase Agreement (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement,” which term includes the preamble above) and the purchases of Eligible Loans made pursuant to it (under both its regular and swing line provisions) are to be treated as repurchase transactions under the Title 11 of the United States Code, as amended (the “ Bankruptcy Code ”), including all rights that accrue to the Buyers by virtue of sections 559, 561 and 562 of the Bankruptcy Code. This Agreement also contains lien provisions with respect to the Purchased Loans so that if, contrary to the intent of the parties, any court of competent jurisdiction characterizes any Transaction as a financing, rather than a purchase, under applicable law, including the applicable provisions of the Bankruptcy Code, the Agent is deemed to have a first priority perfected security interest in and to the Purchased Loans to secure the payment and performance of all of the Seller’s Obligations under this Agreement and the other Repurchase Documents.

The Buyers’ agreement to establish and continue the revolving repurchase facilities, and Comerica Bank’s agreement to establish and continue such revolving swing line repurchase facility, are each made upon and subject to the terms and conditions of this Agreement. If there is any conflict or inconsistency between any of the terms or provisions of this Agreement and any of the other Repurchase Documents, this Agreement shall govern and control. If there is any conflict between any provision of this Agreement and any later supplement, amendment, restatement or replacement of it, then the latter shall govern and control.

1.2.       Defined Terms . Except where otherwise specifically stated, capitalized terms used in this Agreement and the other Repurchase Documents have the meanings assigned to them below or elsewhere in this Agreement.

“ Accepted Servicing Practices ” means, with respect to any Mortgage Loan, (a) those mortgage loan servicing standards and procedures in accordance with all applicable state, local and federal laws, rules and regulations and (b)(i) the mortgage loan servicing standards and procedures prescribed by Fannie Mae and Freddie Mac, in each case as set forth in the Fannie Mae Servicing Guide or Freddie Mac Servicing Guide, as applicable, and in the directives or applicable publications of such agencies, as such may be amended or supplemented from time to time, or (ii) with respect to any Mortgage Loans and any matters or circumstances as to which no such standard or procedure applies, the servicing standards, procedures and practices the Seller uses with respect to its own assets as of the date of this Agreement, subject to reasonable changes.

“ Additional Purchased Loans ” means Eligible Loans transferred by the Seller to the Buyers pursuant to, and as defined in, Section 6.1(a) .

“ Adjusted Tangible Net Worth ” means, as of any date, the sum of (a) all assets of the Seller and the Subsidiaries on a Consolidated basis, minus (b) the sum of (i) Total Liabilities (excluding Qualified Subordinated Debt), (ii) all assets of the Seller and the Subsidiaries that would be classified as intangible assets under GAAP, including, but not limited to, subscribed stock, goodwill (whether representing the excess of cost over book value of assets acquired or otherwise), patents, trademarks, trade names, copyrights, franchises, and the investment held in trust of the Seller in Joliet Mortgage Reinsurance Company, and (iii) unsecured notes and accounts receivable due from stockholders, directors, officers, members, employees, Affiliates or other related Persons (other than Parent and Subsidiaries).

“ Affiliate ” means and includes, with respect to a specified Person, any other Person:

(a)        that directly or indirectly through one or more intermediaries Controls, is Controlled by or is under common Control with the specified Person (in this definition only, the term “Control” means having the power to set or direct management policies, directly or indirectly);

(b)        that is a director, trustee, partner, member or executive officer of the specified Person or serves in a similar capacity in respect of the specified Person;

(c)        of which the specified Person is a director, trustee, partner, member or executive officer or with respect to which the specified Person serves in a similar capacity and over whom the specified Person, either alone or together with one or more other Persons similarly situated, has Control;

(d)        that, directly or indirectly through one or more intermediaries, is the beneficial owner of ten percent (10%) or more of any class of equity securities — which does not include any MBS — of the specified Person; or

 

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(e)        of which the specified Person is directly or indirectly the owner of ten percent (10%) or more of any class of equity securities of the specified Person.

“ Agency ” means Ginnie Mae, Fannie Mae or Freddie Mac.

“ Agency MBS ” means MBS issued or guaranteed as to timely payment of principal and interest by Ginnie Mae, Fannie Mae or Freddie Mac.

“ Agent ” is defined above.

“ Agent’s Fee ” is defined in the Fee Letter.

“ Aggregate Outstanding Purchase Price ” means as of any Determination Date, an amount equal to the sum of the Purchase Prices for all Purchased Loans included in all Open Transactions.

“ Agreement ” is defined in the Recitals.

“ Applicable Margin ” means two and five tenths percent (2.5%) per annum.

“ Applicable Measuring Period ” means for any quarter ending before March 31, 2010, the period beginning April 1, 2009 and ending on the last day of such quarter and for any date of determination ending on or after March 31, 2010, the four (4) preceding fiscal quarters ending on such date.

“ Approved Investor ” means Ginnie Mae, Fannie Mae, Freddie Mac and any of the Persons listed on Schedule AI , as it may be supplemented or amended from time to time by agreement of the Seller and the Agent; provided , that (a) persons listed on Schedule AI shall be Approved Investors only with respect to the type(s) of Mortgage Loans for which they are specified as an “Approved Investor” on Schedule AI , and (b) if the Agent shall give notice to the Seller of the Agent’s reasonable disapproval of any Approved Investor(s) named in the notice, the Approved Investor(s) so named shall no longer be (an) Approved Investor(s) from and after the time when the Agent sends that notice to the Seller or such later date as may be specified by the Agent in its sole discretion.

“ Authorized Seller Representative ” means a representative of the Seller duly designated by all requisite corporate action to execute any certificate, schedule or other document contemplated or required by this Agreement or the Custody Agreement on behalf of the Seller and as its act and deed. A list of Authorized Seller Representatives current as of the Effective Date is attached as Schedule AR . The Seller will provide an updated list of Authorized Seller Representatives to the Agent and the Custodian promptly following each addition to or subtraction from such list, and the Agent, the Buyers and the Custodian shall be entitled to rely on each such list until such an updated list is received by the Agent and the Custodian.

“ Backup Servicer ” means any Person designated by the Agent, in its sole discretion, to act as a backup servicer of the Purchased Loans in accordance with Section 19.10 .

“ Bankruptcy Code ” is defined in the Recitals.

 

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“ Basic Papers ” means all of the Loan Papers that must be delivered to the Custodian (in the case of Dry Loans, prior to the related Purchase Date and, in the case of Wet Loans, on or before the seventh (7th) Business Day after the related Purchase Date) in order for any particular Purchased Loan to continue to have Market Value. Schedule BP lists the Basic Papers.

“ Business Day ” means any day, other than a Saturday, Sunday or any other day designated as a holiday under Federal or applicable State statute or regulation, on which Agent is open for all or substantially all of its domestic and international business (including dealings in foreign exchange) in Detroit, Michigan, and, in respect of notices and determinations relating to the Daily Adjusting LIBOR Rate, also a day on which dealings in dollar deposits are also carried on in the London interbank market and on which banks are open for business in London, England.

“ Buyer ” means Comerica Bank and such other Person from time to time party to this agreement as a “Buyer.” Persons who are currently Buyers on any day shall be listed as Buyers in Schedule BC in effect for that day.

“ Buyer Affiliate ” means (a) with respect to any Buyer, (i) an Affiliate of such Buyer or (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making, purchasing, holding or otherwise investing in securities and mortgage reverse repurchase agreements, bank loans and similar financial arrangements in the ordinary course of its business and is administered or managed by such Buyer or an Affiliate of such Buyer and (b) with respect to any Buyer that is a fund which invests in securities and mortgage reverse repurchase agreements, bank loans and similar financial arrangements, any other fund that invests in securities and mortgage reverse repurchase agreements, bank loans and similar financial arrangements and is managed by the same investment advisor as such Buyer or by an Affiliate of such investment advisor.

“ Buyers’ Margin Percentage ” means:

 

(i)

for all Conforming Mortgage Loans, ninety-seven percent (97%);

 

(ii)

for Jumbo Mortgage Loans, ninety-five percent (95%);

 

(iii)

for Super Jumbo Mortgage Loans, ninety percent (90%);

 

(iv)

for Discretionary Loans, the Buyer’s Margin Percentage for the underlying type of Purchased Loan which would apply if no Disqualifiers existed; and

 

(v)

for Wet Loans, the Buyer’s Margin Percentage for the underlying type of Purchased Loan which would apply if such Purchased Loan were a Dry Loan.

“ Capitalized Servicing Rights ” means for any Person, all rights to service Mortgage Loans that would be capitalized under GAAP (regardless of whether such rights result from asset securitizations, whole loan sales or originations of Mortgage Loans).

 

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“ Cash Equivalents ” means and includes, on any day:

(a)        any evidence of debt issued by the United States government or any agency thereof, or guaranteed as to the timely payment of principal and interest by the United States government, and maturing ninety (90) days or less after that day; and

(b)        any demand deposit, time deposit, certificate of deposit or banker’s acceptance maturing not more than ninety (90) days after that day and issued by a commercial bank that either (i) is insured by the Federal Deposit Insurance Corporation or (ii) is a member of the Federal Reserve System and has a combined unimpaired capital and surplus and unimpaired undivided profits of not less than Two Hundred Fifty Million Dollars ($250,000,000); and

(c)        money market and cash accounts and money market funds which are invested in investments of the types described above or in commercial paper maturing no more than 90 days from the date of creation thereof and which is rated at least “A-1” by Standard & Poor’s Corporation or at least “P-1” by Moody’s Investors Service, Inc.

“ Central Elements ” means and includes the value of a substantial part of the Purchased Loans; the prospects for payment of each portion of the Repurchase Price, both Purchase Price and Price Differential, when due; the validity or enforceability of this Agreement and the other Repurchase Documents and, as to any Person referred to in any reference to the Central Elements, such Person’s property, business operations, financial condition and ability to fulfill and perform its obligations under this Agreement and the other Repurchase Documents to which it is a party, each taken as a whole, and such Person’s prospects of continuing in business as a going concern.

“ Certified Copy ” means a copy of an original Basic Paper or Supplemental Paper accompanied by (or on which there is stamped) a certification by an officer of either a title insurer or an agent of a title insurer (whether a title agency or a closing attorney) or, except where otherwise specified below, by an Authorized Seller Representative or an officer of the Servicer (if other than the Seller) or subservicer of the relevant Mortgage Loan, that such copy is a true copy of the original and (if applicable) that the original has been sent to the appropriate governmental filing office for recording in the jurisdiction where the related Mortgaged Premises are located. Each such certification shall be conclusively deemed to be a representation and warranty by the certifying officer, agent, Authorized Seller Representative or officer of the relevant Servicer or subservicer, as applicable, to the Agent, the Buyers and the Custodian upon which each may rely.

“ Change in Law ” means (a) the adoption of any applicable Legal Requirement after the Effective Date, (b) any change in any applicable Legal Requirement or in the interpretation or application thereof by any Governmental Authority after the Effective Date, or (c) reasonable compliance by any Buyer (or by any applicable office of any Buyer) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Effective Date.

 

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“ Change of Control ” in respect of the Seller means the occurrence of Parent not owning directly, or indirectly, 100% of the issued and outstanding ownership interests of the Seller.

“ Collateral ” has the meaning given the term in Section 10.1 .

“ Commitment ” means, for each Buyer, its commitment under Section 2.1 , subject to reduction as described in Section 2.6 , to fund its Funding Share of Transactions, limited to such Buyer’s Committed Sum.

“ Committed Sum ” means, for any day, the maximum total amount a Buyer is committed to fund for the purchase from the Seller of Eligible Loans on a revolving basis pursuant to this Agreement, on its terms and subject to its conditions. From the Effective Date of this Agreement through the Termination Date or such other date (if any) when all or any of them is changed by operation of the provisions of any agreement or Legal Requirement, the Committed Sums for the Buyers are as set forth on Schedule BC , as it may be amended and restated from time to time.

“ Conforming Mortgage Loan ” means a first priority Single-family residential Mortgage Loan that is (a) FHA insured, (b) VA guaranteed, or (c) a conventional mortgage loan that fully conforms to all Agency underwriting and other requirements.

“ Conforming Loan Sublimit ” is defined in the table set forth in Section 4.2(a) .

“ Consolidated ” refers to the consolidation of any Person, in accordance with GAAP, with its properly consolidated subsidiaries. References herein to a Person’s Consolidated financial statements refer to the consolidated financial statements of such Person and its properly consolidated subsidiaries.

“ Contingent Indebtedness ” of any Person at a particular date means the sum (without duplication) at such date of (a) all obligations of such Person in respect of letters of credit, acceptances, or similar obligations issued or created for the account of such Person, (b) all obligations of such Person under any contract, agreement or understanding of such Person pursuant to which such Person guarantees, or in effect guarantees, any indebtedness or other obligations of any other Person in any matter, whether directly or indirectly, contingently or absolutely, in whole or in part (excluding such Person’s contingent liability as endorser of negotiable instruments for collection in the ordinary course of business), (c) all liabilities secured by any Lien on any property owned by such Person, whether or not such Person has assumed or otherwise become liable for the payment thereof and (d) any liability of such Person or any Affiliate thereof in respect of unfunded vested benefits under any ERISA Plan, in each case excluding any such liabilities or obligations that constitute Debt.

“ Corporation Tax Treatment Certificate ” is defined in Section 7.5(a) .

“ Currency Agreement ” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement for the purpose of hedging the currency risk associated with the Seller’s and its Subsidiaries’ operations and not for speculative purposes.

 

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“ Custodian ” means Bank of America, National Association, as Custodian under the Custody Agreement, or any successor custodian under the Custody Agreement acceptable to the Agent.

“ Custodian’s Fees ” are the fees to be paid by the Seller to the Custodian for its services under the Custody Agreement, as provided for in the Custody Agreement or by a separate agreement. Such fees are separate from and in addition to other fees to be paid to the Buyers and the Agent provided for in this Agreement.

“ Custody Agreement ” means the Custody Agreement dated as of the Effective Date among the Agent, the Seller and the Custodian, as it may be supplemented, amended or restated from time to time.

“ Customer ” means and includes each maker of a Mortgage Note and each cosigner, guarantor, endorser, surety and assumptor thereof, and each mortgagor or grantor under a Mortgage, whether or not such Person has personal liability for its payment of the Mortgage Loan evidenced or secured thereby, in whole or in part.

“ Daily Adjusting LIBOR Rate ” means, for any day, a per annum interest rate which is equal to the Applicable Margin plus quotient of the following:

 

(a)

for any day, the per annum rate of interest determined on the basis of the rate for deposits in United States Dollars for a period equal to one (1) month appearing on Page BBAM of the Bloomberg Financial Markets Information Service as of 11:00 a.m. (Detroit, Michigan time) (or as soon thereafter as practical) on such day, or if such day is not a Business Day, on the immediately preceding Business Day. In the event that such rate does not appear on Page BBAM of the Bloomberg Financial Markets Information Service (or otherwise on such Service) on any day, the “Daily Adjusting LIBOR Rate” for such day shall be determined by reference to such other publicly available service for displaying eurodollar rates as may be reasonably selected by Agent, or, in the absence of such other service, the “Daily Adjusting LIBOR Rate” for such day shall, instead, be determined based upon the average of the rates at which Agent is offered dollar deposits at or about 11:00 a.m. (Detroit, Michigan time) (or as soon thereafter as practical), on such day, or if such day is not a Business Day, on the immediately preceding Business Day, in the interbank eurodollar market in an amount comparable to the principal amount outstanding hereunder and for a period of one (1) month;

divided by

 

(b)

1.00 minus the maximum rate (expressed as a decimal) on such day at which Agent is required to maintain reserves on “Euro-currency Liabilities” as defined in and pursuant to Regulation D of the Board of Governors of the Federal Reserve System or, if such regulation or definition is modified, and as long as Agent is required to maintain reserves against a category of liabilities which includes eurodollar deposits or includes a category of assets which includes eurodollar loans, the rate at which such reserves are required to be maintained on such category;

 

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provided , however , in no event and at no time shall the Daily Adjusting LIBOR Rate be less than the Applicable Margin plus the LIBOR Rate Floor.

“ Debt ” means, with respect to any Person, on any day, the sum of the following (without duplication):

(a)        all of that Person’s debt or other obligations which, in accordance with GAAP, should be included in determining total liabilities as shown on the liabilities side of that Person’s balance sheet for that day;

(b)        all of that Person’s debt or other obligations for borrowed money or for the deferred purchase price of property or services, except that non-recourse MBS Debt arising out of transactions structured to qualify for GAAP sale treatment shall be excluded;

(c)        all of any other Person’s debt or other obligations for borrowed money or for the deferred purchase price of property or services in respect of which such Person is liable, contingently or otherwise, to pay or advance money or property as guarantor, surety, endorser or otherwise (excluding such Person’s contingent liability as endorser of negotiable instruments for collection in the ordinary course of business), or which such Person has agreed to purchase or otherwise acquire;

(d)        the aggregate principal balance, or repurchase price obligation, of that Person under repurchase agreements, reverse repurchase agreements, mortgage warehouse lines of credit, sale/buy-back agreements or like arrangements;

(e)        all debt for borrowed money or for the deferred purchase price of property or services secured by a Lien on any property owned or being purchased by that Person (even though that Person has not assumed or otherwise become liable for the payment of such debt) to the extent that such debt would not be otherwise counted as a liability for purposes of determining that Person’s net worth and to the extent that such debt is less than or equal to the net book value of such property; and

(f)        net payment obligations of that Person in respect of any exchange traded or over the counter derivative transaction, including any Hedge Agreement whether entered into for hedging or speculative purposes;

provided that, for purposes of this Agreement, there shall be excluded from the calculation of Debt for that day both (i) such Person’s obligations to pay to another Person any sums collected and held by the subject Person (as loan servicer, escrow agent or collection agent or in a similar capacity) for the account of such other Person, and (ii) Qualified Subordinated Debt.

“ Default ” means the occurrence of any event or existence of any condition that, but for the giving of notice, the lapse of time or both, would constitute an Event of Default.

 

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“ Default Pricing Rate ” means, on any day and with respect to any Transaction, a rate per annum equal to the otherwise applicable Pricing Rate plus three percent (3.0%) per annum.

“ Defaulting Buyer ” means any Buyer, as determined by the Agent, that has (a) failed to fund any portion of its Transactions (including any Swing Line Transactions syndicated pursuant to Section 2.5) within one Business Day of the date required to be funded by it hereunder, (b) notified the Seller, the Agent or any Buyer in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement, other mortgage repurchase agreements or any agreements in which it commits to extend credit, (c) failed, within one Business Day after request by the Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Transactions and participations in then outstanding Swing Line Transactions, (d) otherwise failed to pay over to the Agent or any other Buyer any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.

“ Determination Date ” means the date as of, or for, which a specified characteristic of a Mortgage Loan or other subject matter is being determined for purposes of a provision of this Agreement or another Repurchase Document.

“ Discretionary Loans ” means Mortgage Loans approved for purchase by the Agent in the exercise of its discretion pursuant to Section 22.8 .

“ Discretionary Loan Sublimit ” is defined in the table set forth in Section 4.2(c) .

“ Disqualifier ” means any of the circumstances or events affecting Purchased Loans that are described on Schedule DQ .

“ Dry Loan ” means an Eligible Loan originated by the Seller that has been closed, funded and qualifies without exception as an Eligible Loan, including satisfying the requirement that all of its Basic Papers have been delivered to the Custodian.

“ Effective Date ” means May 15, 2009.

“ Electronic Agent ” means MERSCORP, Inc. or its successor in interest or assigns.

“ Electronic Tracking Agreement ” means a written Electronic Tracking Agreement among the Seller, the Agent, MERS and the Electronic Agent, in form and substance acceptable to the Seller and the Agent, as it may be supplemented, amended, restated or replaced from time to time.

 

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“ Electronic Transmission ” means each document, instruction, authorization, file, information and any other communication transmitted, posted or otherwise made or communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent service.

“ Eligible Assignee ” means (a) a Buyer; (b) a Buyer Affiliate; or (c) any other Person (other than a natural person) approved by the (i) Agent and Swing Line Buyer, and (ii) unless a Event of Default has occurred and is continuing, the Seller (each such approval not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, “Eligible Assignee” shall not include the Seller, or any of the Seller’s Affiliates or Subsidiaries; and provided further that notwithstanding clause (c)(ii) of this definition, no assignment shall be made to an entity which is a competitor of the Seller without the consent of the Seller, which consent may be withheld in its sole discretion.

“ Eligible Loans ” is defined on Schedule EL .

“ Eligible Loans Report” is defined in the Custody Agreement.

“ ERISA ” means the Employee Retirement Income Security Act of 1974 and any successor statute, as amended from time to time, and all rules and regulations promulgated under it.

“ ERISA Affiliates ” means all members of the group of corporations and trades or businesses (whether or not incorporated) that, together with the Seller, are treated as a single employer under Section 414 of the Internal Revenue Code.

“ ERISA Plan ” means any pension benefit plan subject to Title IV of ERISA or Section 412 of the Internal Revenue Code maintained or contributed to by the Seller or any ERISA Affiliate with respect to which the Seller has a fixed or contingent liability.

“ Escrow Account ” means the Escrow Account established by the Seller with a bank reasonably satisfactory to the Agent under Section 8 , and subject to the control of the Agent into which amounts paid for escrow accumulation under Purchased Loans are paid for purposes of paying taxes, insurance and other appropriate escrow charges.

“ E-System ” means any electronic system and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Agent, any of its Affiliates or any other Person, providing for access to data protected by passcodes or other security system.

“ Event of Default ” is defined in Section 18.1 .

“ Event of Insolvency ” means, as to any Person:

(a)        such Person has commenced as debtor any case or proceeding under any bankruptcy, insolvency, reorganization, moratorium, delinquency, arrangement, readjustment of debt, liquidation, dissolution, or similar law of any jurisdiction whether now or hereafter in effect, or consents to the filing of any petition against it under such law, or petitions for, causes or consents to the appointment or election of a receiver,

 

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conservator, liquidator, trustee, sequestrator, custodian or similar official for such Person or any substantial part of its property, or an order for relief is entered under the Bankruptcy Code; or any of such Person’s property is sequestered by court or order; or the convening by such Person of any meeting of creditors for purposes of commencing any such case or proceeding or seeking such an appointment or election;

(b)        the commencement of any such case or proceeding against such Person, or another Person’s seeking an appointment or election of a receiver, conservator, liquidator, trustee, sequestrator, custodian or similar official for such Person, or any substantial part of its property, or the filing against the such Person of an application for a protective decree under the provisions of SIPA which (i) is consented to or not timely contested by such Person, (ii) results in the entry of an order for relief, such an appointment or election, the issuance of such a protective decree, or the entry of an order having a similar effect or (iii) is not dismissed within sixty (60) days;

(c)        the making by such Person of a general assignment for the benefit of creditors; or

(d)        the inability of such Person to, or the admission by such Person of its inability or its intention not to, pay its debts as they become due.

“ Excluded Taxes ” is defined in Section 7.5 .

“ Facility Fee ” is defined in Section 9.1 .

“Fannie Mae” means Federal National Mortgage Association and any successor thereto or to the functions thereof.

“ Federal Funds Effective Rate ” means, for any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by Agent from three Federal funds brokers of recognized standing selected by Agent, all as conclusively determined by the Agent, such sum to be rounded upward, if necessary, in the discretion of the Agent, to the nearest whole multiple of 1/100th of 1%.

“ Fee Letter ” means that certain letter dated as of March 18, 2009, from the Agent to the Seller.

“ FHA ” means the Federal Housing Administration and any successor.

“Freddie Mac” means the Federal Home Loan Mortgage Corporation and any successor thereto or to the functions thereof.

“ FICA ” means the Federal Insurance Contributions Act.

 

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“ FICO ” means Fair Isaac Corporation and, where used in this Agreement, refers to the credit scoring system developed by that company or to any other Customer credit scoring system whose use by the Seller (for purposes of this Agreement and the Transactions) has been specifically approved in writing by the Agent.

“ File ” means a file in the possession of the Custodian or its designee (other than the Seller or an Affiliate of the Seller) containing all of the Loan Papers for the relevant type of Mortgage Loan.

“ Financial Statements ” is defined in Section 15.2(f) .

“ Funding Account ” means the Seller’s non-interest bearing demand deposit account maintained with Comerica Bank and described in Schedule 1.2 into which the Agent may transfer funds (funds paid by the Buyers as Purchase Price) and from which the Agent is authorized to disburse funds to the Seller or its designee (such as its agents) for the funding of Transactions. The Funding Account shall be subject to setoff by the Agent for Pro Rata distribution to the Buyers and shall be subject to the control of the Agent.

“ Funding Share ” means, for each Buyer, that proportion of the sum of the original Purchase Prices for the Mortgage Loans to be purchased in a Transaction that bears the same ratio to the total amount of such sum as that Buyer’s Committed Sum bears to the Maximum Aggregate Commitment.

“ GAAP ” means, for any day, generally accepted accounting principles, applied on a consistent basis, stated in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants, or in statements and pronouncements of the Financial Accounting Standards Board or in such other statements by another entity or entities as may be approved by a significant segment of the accounting profession, that are applicable to the circumstances for that day. The requirement that such principles be applied on a consistent basis means that the accounting principles observed in a current period shall be comparable in all material respects to those applied in an earlier period, with the exception of changes in application to which the Seller’s independent certified public accountants have agreed and which changes and their effects are summarized in the subject company’s financial statements following such changes. If (a) during the term of this Agreement any change(s) in such principles occur(s) that materially changes the meaning or effect of any provision of this Agreement and (b) the Seller or the Required Buyers regard such change(s) as adverse to their respective interests, then upon written notice by the Seller to the Agent, or by the Agent or the Required Buyers to the Seller, the parties to this Agreement shall negotiate promptly and in good faith a supplement or amendment to this Agreement to achieve as nearly as possible preservation and continuity of the business substance of this Agreement in light of such change; provided that neither the Agent nor any of the Buyers shall be obligated to commence, continue or conclude any such negotiation or to execute any such supplement or amendment after any Event of Default has occurred (other than an Event of Default caused by such change) that has not been cured by the Seller or that the Agent has not declared in writing to have been waived in accordance with Section 22 .

“ Ginnie Mae ” means the Government National Mortgage Association and any successor.

 

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“ Governmental Authority ” means any foreign governmental authority, the United States of America, any state of the United States and any political subdivision of any of the foregoing, and any agency, department, commission, board, bureau, court or other tribunal.

“ Hazard Insurance Policy ” means, with respect to each Purchased Loan, the policy of fire and extended coverage insurance required to be maintained for the related Mortgaged Premises’ improvements (and, if the related Mortgaged Premises are located in a federally-designated special flood area, federal flood insurance issued in accordance with the Flood Disaster Protection Act of 1973, as amended from time to time, or, if repealed, any superseding legislation governing similar insurance coverage, or similar coverage against loss sustained by floods or similar hazards that conforms to the flood insurance requirements prescribed by Fannie Mae guidelines, which may be provided under a separate insurance policy), which insurance may be a blanket mortgage impairment policy.

“ Hedge Agreement ” means an Interest Rate Protection Agreement, a Currency Agreement or a forward sales agreement entered into in the ordinary course of the Seller’s or any of its Subsidiaries’ businesses to protect the Seller against changes in interest rates or the market value of assets.

“ HUD ” means the U.S. Department of Housing and Urban Development and any successor.

“ In Default ” means that, as to any Mortgage Loan, any Mortgage Note payment or escrow payment is unpaid for thirty (30) days or more after its due date (whether or not the Seller has allowed any grace period or extended the due date thereof by any means) or another material default has occurred and is continuing, including the commencement of foreclosure or the commencement of a case in bankruptcy for any Customer in respect of such Mortgage Loan.

“ Income ” means, with respect to any Purchased Loan on any day, all payments of principal, interest and other distributions thereon or proceeds thereof paid to the relevant party.

“ Income Account ” means a demand deposit account established by the Seller with a bank reasonably satisfactory to the Agent under the provisions of Section 8 , which shall be subject to the control of the Agent.

“ Indemnified Liabilities ” is defined in Section 20.2 .

“ Indemnified Parties ” is defined in Section 20.2 .

“ Interest Rate Protection Agreement ” means, with respect to any or all of the Purchased Loans, any short sale of any U.S. Treasury securities, futures contract, mortgage related security, Eurodollar futures contract, options related contract, interest rate swap, cap or collar agreement or similar arrangement providing for protection against fluctuations in interest rates or the exchange of nominal interest obligations, either generally or under specific contingencies, that is entered into by the Seller and a financial institution and is reasonably acceptable to the Agent.

“ Internal Revenue Code ” means the Internal Revenue Code of 1986 or any subsequent federal income tax law or laws, as amended from time to time.

 

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“ Investor Commitment ” means an unexpired written commitment held by the Seller from an Approved Investor to buy Purchased Loans, and that specifies (a) the type or item(s) of Purchased Loan, (b) a purchase date or purchase deadline date and (c) a purchase price or the criteria by which the purchase price will be determined.

“ Jumbo Mortgage Loan ” means a Mortgage Loan that would otherwise be a Conforming Mortgage Loan secured by a first Lien Mortgage except that the original principal amount is more than the maximum Agency loan amount but not more than One Million Dollars ($1,000,000).

“ Jumbo Loan Sublimit ” is defined in the table set forth in Section 4.2(c) .

“ Jumbo/Super Jumbo Loan Sublimit ” is defined in Section 4.2(d) .

“ Legal Requirement ” means any law, statute, ordinance, decree, ruling, requirement, order, judgment, rule or regulation (or interpretation of any of them), including any of the foregoing that relate to environmental standards or controls, energy regulations and occupational safety and health standards or controls, of any (domestic or foreign) court or other Governmental Authority, and the terms of any license, permit, consent or approval issued by any Governmental Authority.

“ LIBOR Lending Office ” means Agent’s office located in the Cayman Islands, British West Indies, or such other branch of Agent, domestic or foreign, as it may hereafter designate as its LIBOR Lending Office by notice to the Seller.

“LIBOR Rate Floor ” means two percent (2%) per annum

“ Lien ” means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest).

“ Liquidity ” means the sum of (a) the market value, as reasonably determined by Agent, of Seller’s unencumbered and unrestricted cash and Cash Equivalents (including any amounts held in the Funding Account, Operating Account or Income Account), plus (b) the market value, as reasonably determined by Agent of Seller’s unencumbered and unrestricted Marketable Securities, plus (c) the amount by which the aggregate Purchase Value of all Purchased Loans at such time exceeds the aggregate Purchase Price outstanding for all Open Transactions at such time.

“ Loan Papers ” means the Mortgage Note and all of the other papers related to the establishment of a Purchased Loan and the creation, perfection and maintenance of its lien and lien priority for such Purchased Loan, including its Basic Papers and its Supplemental Papers and including any papers securing, guaranteeing or otherwise related to or delivered in connection with any Purchased Loan, in a form reasonably acceptable to the Agent (including any guaranties, lien priority agreements, security agreements, mortgages, deeds of trust, collateral assignments of the Seller’s interest in underlying obligations or security, subordination agreements, intercreditor agreements, negative pledge agreements, loan agreements, management agreements, development agreements, design professional agreements, payment,

 

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performance or completion bonds, mortgage security and insurance contracts, title, mortgage, pool, casualty, flood and earthquake insurance policies, binders and commitments, FHA insurance and VA guaranties, participation certificates and agreements, financing statements and investor or purchase commitments), as any such Loan Paper may be supplemented, amended, restated or replaced from time to time.

“ Loan Records ” means books, records, ledger cards, files, papers, documents, instruments, certificates, appraisal reports, surveys, bonds, journals, reports, correspondence, customer lists, information and data that describes, catalogs or lists such information or data, computer printouts, media (tapes, discs, cards, drives, flash memory or any other kind of physical, electronic or virtual data or information storage media or systems) and related data processing software (subject to any licensing restrictions) and similar items that at any time evidence or contain information relating to any of the Purchased Loans, and other information and data that is used or useful for managing and administering the Purchased Loans, together with the nonexclusive right to use (in common with the Seller and any repurchase agreement counterparty or secured party that has a valid and enforceable interest therein and that agrees that its interest is similarly nonexclusive) the Seller’s operating systems to manage and administer any of the Purchased Loans and any of the related data and information described above, or that otherwise relates to the Purchased Loans, together with the media on which the same are stored to the extent stored with material information or data that relates to property other than the Purchased Loans (tapes, discs, cards, drives, flash memory or any other kind of physical or virtual data or information storage media or systems), and the Seller’s rights to access the same, whether exclusive or nonexclusive, to the extent that such access rights may lawfully be transferred or used by the Seller’s permittees, and any computer programs that are owned by the Seller (or licensed to the Seller under licenses that may lawfully be transferred or used by the Seller’s permittees) and that are used or useful to access, organize, input, read, print or otherwise output and otherwise handle or use such information and data.

“ Margin Call ” is defined in Section 6.1(a) .

“ Margin Deficit ” is defined in Section 6.1(a) .

“ Margin Excess” is defined in Section 6.1(b) .

“ Margin Stock ” has the meaning assigned to that term in Regulation U as in effect from time to time.

“ Marketable Securities ” means common stock or other securities traded on the New York Stock Exchange, American Stock Exchange, NASDAQ or other recognized exchange acceptable to Agent.

“ Market Value ” means what the Agent determines as the market value of any Purchased Loan, using a commercially reasonable methodology that is, in its sole discretion, in accordance with standards customarily applicable in the financial industry to third party service providers providing values on comparable assets to be used in connection with the financing of such assets, without reference to Hedge Agreements or Investor Commitments. The Agent’s determination of Market Value hereunder shall be conclusive and binding upon the parties, absent manifest error.

 

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“ Maximum Aggregate Commitment ” means the maximum Aggregate Outstanding Purchase Price that is allowed to be outstanding under this Agreement on any day, being the amount set forth in Schedule BC in effect for that day, as it may be increased pursuant to Section 2.3 or decreased pursuant to Section 2.6 . The Maximum Aggregate Commitment on the Effective Date is Seventy Million Dollars ($70,000,000.00) . If and when some or all of the Buyers then party to this Agreement agree in writing to increase their Committed Sums, or if a new Buyer or Buyers joins the syndicate of Buyers, or if there is both such an increase and a new Buyer’s joinder, the Agent shall execute an updated Schedule BC reflecting the new Maximum Aggregate Commitment and deliver it to the Seller and the Buyers, and that updated Schedule BC shall thereupon be substituted for and supersede the prior Schedule BC .

“ MBS ” means a mortgage pass-through security, collateralized mortgage obligation, REMIC or other security that (a) is based on and backed by an underlying pool of Mortgage Loans and (b) provides for payment by its issuer to its holder of specified principal installments and/or a fixed or floating rate of interest on the unpaid balance and for all prepayments to be passed through to the holder, whether issued in certificated or book-entry form and whether or not issued, guaranteed, insured or bonded by Ginnie Mae, Fannie Mae, Freddie Mac, an insurance company, a private issuer or any other investor.

“ Merger ” is defined in Section 17.1 .

“ MERS ” means Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or its successors or assigns.

“ MERS Designated Loan ” means a Purchased Loan registered to the Seller on the MERS® System.

“ MERS Procedures Manual ” means the MERS Procedures Manual, as it may be amended from time to time.

“ MERS® System ” means the Electronic Agent’s mortgage electronic registry system, as more particularly described in the MERS Procedures Manual.

“ Mortgage ” means a mortgage, deed of trust, deed to secure debt, security deed or other mortgage instrument or similar evidence of lien legally effective in the U.S. jurisdiction where the relevant real property is located to create and constitute a valid and enforceable Lien, subject only to Permitted Encumbrances, on the fee simple estate in improved real property.

“ Mortgage Assignment ” means an assignment of a Mortgage, in form sufficient under the Legal Requirements of the U.S. jurisdiction where the real property covered by such Mortgage is located to give record notice of the assignment of such Mortgage, perfect the assignment and establish its priority relative to other transactions in respect of the Mortgage assigned (no Mortgage Assignment is required for any Mortgage that has been originated in the name of MERS and registered under the MERS® System).

 

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“ Mortgage Loan ” means any loan evidenced by a Mortgage Note and includes all right, title and interest of the lender or mortgagee of such loan as a holder of both the beneficial and legal title to such loan, including (a) all Loan Papers, Loan Records or other loan documents, files and records of the lender or mortgagee for such loan, (b) the monthly payments, any prepayments, insurance and other proceeds, (c) all Servicing Rights related to such loan and (d) all other rights, interests, benefits, security, proceeds, remedies and claims (including, without limitation, REO) in favor or for the benefit of the lender or mortgagee arising out of or in connection with such loan.

“ Mortgage Loan Transmission File ” means a file containing all information concerning each Mortgage Loan required by the “ Record Layout, ” as defined and provided for in (and attached as an exhibit to) the Custody Agreement, one of which shall be delivered by the Seller to the Custodian for each Purchased Loan on its Purchase Date, both by electronic, computer readable transmission in accordance with such Record Layout and, in the event such electronic transmission is not possible, by faxing a hard copy thereof to the Custodian.

“ Mortgage Note ” means a promissory note secured by a Mortgage.

“ Mortgaged Premises ” means the Property securing a Mortgage Loan.

“ Multiemployer Plan ” means any “multiemployer plan,” as defined in Section 4001(a)(3) of ERISA, which is maintained for employees of the Seller or any of the Seller’s Subsidiaries.

“ Net Income ” means for any period, the net income (or loss) of the Seller and the Subsidiaries, determined on a Consolidated basis in accordance with GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a Subsidiary or is merged into or consolidated with the Seller or any Subsidiary, (b) the income (or deficit) of any Person in which any Person (other than the Seller and any Subsidiaries) has a joint interest, except to the extent that any such income is actually received by the Seller or any Subsidiary from such Person in the form of dividends or similar distributions and (c) the undistributed earnings of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of any contractual obligation or by law applicable to such Subsidiary.

“ Non-excluded Taxes ” is defined in Section 7.1 .

“ Non-exempt Buyer ” is defined in Section 7.5 .

“ Nonfunding Buyer ” is defined in Section 2.1 .

“ Obligations ” means all of the Seller’s present and future obligations, liabilities and indebtedness under this Agreement or any of the other Repurchase Documents, or in respect of any Products, or any Hedge Agreement entered into with the Agent or any Buyer, whether for Repurchase Price, Price Differential, Margin Call, premium, fees, costs, attorneys’ fees or other obligation or liability, and whether absolute or contingent, and all renewals, extensions, modifications and increases of any of them.

 

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“ Officer’s Certificate ” means a certificate executed on behalf of the Seller or another relevant Person by a Responsible Officer.

“ Open Transaction ” means a Transaction in which the Buyers have purchased and paid for the related Purchased Loans but the Seller has not repurchased all of them, such that the remaining Purchased Loans not repurchased by the Seller of the subject Transaction would be an Open Transaction.

“ Operating Account ” means the Seller’s non-interest bearing demand deposit account maintained with Agent and described on Schedule 1.2, from which the Agent is authorized pursuant to Section 3.5 to withdraw funds on any day in an amount equal to the aggregate Repurchase Prices of all Purchased Loans that are Past Due on that day. The Operating Account shall be subject to setoff by the Agent for Pro Rata distribution to the Buyers and, upon the occurrence and during the continuance of an Event of Default, the Agent may also terminate the Seller’s right to withdraw, or direct the payment of funds in the Operating Account until the Obligations have been paid in full.

“ Organizational Documents ” means as to any Person other than a natural Person, its articles or certificate of incorporation, organization, limited partnership or other document filed with a Governmental Authority evidencing the organization of such entity and any bylaws, operating agreement or other governance document governing the rights of the holders of the ownership interests in such Person.

“ Other Taxes ” is defined in Section 7.2 .

“ Parent ” means Pulte Homes, Inc., a Delaware corporation.

“ Past Due ” means that the Seller has not repurchased the subject Purchased Loan on or before its Repurchase Date.

“ Permitted Encumbrances ” means, in respect of the Mortgaged Premises securing a Purchased Loan, (a) tax Liens for real property taxes and government-improvement assessments that are not delinquent; (b) easements and restrictions that do not materially and adversely affect the title to, marketability of or value of such Mortgaged Premises or prohibit or interfere with the use of such Mortgaged Premises as a one-to-four family residential dwelling; (c) reservations as to oil, gas or mineral rights, provided such rights do not include the right to remove buildings or other material improvements on or near the surface of such Mortgaged Premises or to mine or drill on the surface thereof or otherwise enter the surface for purposes of mining, drilling or exploring for, or producing, transporting or otherwise handling oil, gas or other minerals of any kind; (d) agreements for the installation, maintenance or repair of public utilities, provided such agreements do not create or evidence Liens on such Mortgaged Premises or authorize or permit any Person to file or acquire claims of Liens against such Mortgaged Premises; and (e) such other exceptions (if any) as are acceptable under relevant Agency guidelines; provided that any encumbrance that is not permitted pursuant to the standards of any relevant Investor Commitment by which the subject Purchased Loan is covered shall not be a Permitted Encumbrance.

 

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“ Person ” means and includes natural persons, corporations, limited liability companies, limited partnerships, registered limited liability partnerships, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments and agencies and political subdivisions of them.

“ Plan ” means an employee pension benefit plan of a type described in Section 3(2) of ERISA and that is subject to Title IV of ERISA in respect of which the Seller is an “employer” as defined in Section 3(5) of ERISA.

“ Plan Party ” is defined in Section 32.1 .

“ Price Differential ” means, with respect to any Transaction hereunder for any day, the aggregate amount obtained by multiplication of the Pricing Rate for each day by the Purchase Price for such Transaction, based on a three hundred sixty (360) day per year basis for the actual number of days during the period commencing on (and including) the Purchase Date for such Transaction and ending on (but excluding) the Determination Date, reduced by any such amount previously paid by the Seller to the Agent (for Pro Rata distribution to the Buyers) with respect to such Transaction.

“ Pricing Rate ” means the Daily Adjusting LIBOR Rate (or, if applicable under Section 6.7, the Prime Referenced Rate), or the Default Pricing Rate, as determined under this Agreement.

“ Prime Rate ” means the per annum interest rate established by the Agent as its prime rate for its borrowers, as such rate may vary from time to time, which rate is not necessarily the lowest rate on loans made by the Agent at any such time, provided that in no event shall the Prime Rate be less than two and one-half percent (2.50%) per annum.

“ Prime Referenced Rate ” means a per annum interest rate which is equal to the Applicable Margin plus the Prime Rate.

“ Principal Balance ” means, for any day, the advanced and unpaid principal balance of a Purchased Loan on that day.

“ Privacy Requirements ” means (a) Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., (b) federal regulations implementing such act codified at 12 CFR Parts 40, 216, 332 and 573, (c) the Interagency Guidelines Establishing Standards For Safeguarding Customer Information and codified at 12 CFR Parts 30, 208, 211, 225, 263, 308, 364, 568 and 570 and (d) any other applicable federal, state and local laws, rules, regulations and orders relating to the privacy and security of Seller’s Customer Information, as such statutes, regulations, guidelines, laws, rules and orders may be amended from time to time.

 

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“ Pro Rata ” means in accordance with the Buyers’ respective ownership interests in the Purchased Loans. On any day, the Buyers will each own an undivided fractional ownership interest in and to each Purchased Loan:

(a)        if the Commitments of the Buyers are outstanding on that day, (i) whose numerator is that Buyer’s Committed Sum for that day and (ii) whose denominator is the Maximum Aggregate Commitment for that day; or

(b)        if the Commitments have expired or have been terminated and have not been reinstated, (i) whose numerator is the aggregate sum of the portions of the Purchase Prices paid by that Buyer in all Regular Transactions outstanding on that day plus such Buyer’s Funding Share of the Purchase Prices paid by the Swing Line Buyer in all Swing Line Transactions outstanding on that date and (ii) whose denominator is the aggregate sum of the Purchase Prices paid by all Buyers in all such Transactions (including all Swing Line Transactions) outstanding on the day;

subject to adjustment pursuant to Section 3.10 .

“ Products ” means any one or more of the following types of services or facilities extended to the Seller by the Agent or any Buyer: (i) credit cards, (ii) credit card processing services, (iii) debit cards, (iv) purchase cards, (v) Automated Clearing House (ACH) transactions, (vi) cash management, including controlled disbursement services, and (vii) establishing and maintaining deposit accounts.

“ Property ” means any interest of a Person in any kind of property, whether real, personal or mixed, tangible or intangible, including the Mortgage Loans.

“ Purchase Date ” means, for any Transaction, the date on which the Seller is to convey the subject Purchased Loans to the Buyers.

“ Purchase Price ” means (a) on the relevant Purchase Date, the price at which the Purchased Loans in a Transaction are sold by the Seller to the Buyers, such price being the Purchased Loans’ initial Purchase Value, and (b) thereafter, except where the Agent and the Seller agree otherwise, such Purchased Loans’ Purchase Value decreased by the amount of any cash transferred in respect of such Purchased Loans (as determined by the Agent) by the Seller to the Agent pursuant to Sections 3.3 and 6.1 (absent manifest error, the Agent’s determination of for which Transaction(s) cash was transferred by the Seller to the Agent shall be conclusive and binding).

“ Purchase Price Decrease” means a reduction in the outstanding Purchase Price for Purchased Loans without a termination of a Transaction or portion thereof as described in Section 3.3(d) .

“ Purchase Value ” means the lesser of (a) (i) the Buyers’ Margin Percentage for a Purchased Loan multiplied by (ii) the least of:

(A)        the face principal amount of the related Mortgage Note;

 

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(B)        the unpaid Principal Balance of such Purchased Loan;

(C)        the price to be paid for such Purchased Loan under an Investor Commitment or the weighted average price under unused Investor Commitments into which such Purchased Loan is eligible for delivery; and

(D)        the Seller’s origination or acquisition price for such Purchased Loan.

and, (b) at the discretion of the Agent, the Buyer’s Margin Percentage of the Market Value of such Purchased Loan; provided , that (i) the Purchase Value for Purchased Loans in excess of the sublimits set forth in Section 4.2 shall be zero and, (ii) the Purchase Value for any Purchased Loan that is not an Eligible Loan shall be zero.

“ Purchased Loans ” means the Eligible Loans sold by the Seller to the Buyers in Transactions, and any Eligible Loans substituted therefor in accordance with Section 11 . The term “Purchased Loans” with respect to any Transaction at any time shall also include Additional Purchased Loans delivered pursuant to Section 3.8 and Section 6.1 .

“ Purchased Loans Support ” means all property (real or personal) assigned, hypothecated or securing any Purchased Loans, or otherwise pertaining to any Purchased Loans, including without limitation:

(1)        all Loan Papers, whether now owned or hereafter acquired, related to, and all private mortgage insurance on, any Purchased Loans, and all renewals, extensions, modifications and replacements of any of them;

(2)        all rights, liens, security interests, guarantees, insurance agreements and assignments accruing or to accrue to the benefit of the Seller in respect of any Purchased Loan;

(3)        all of the Seller’s rights (including but not limited to rights to payment), powers, privileges, benefits and remedies under each and every paper now or hereafter securing, insuring, guaranteeing or otherwise relating to or delivered in connection with any Purchased Loan, including all Loan Papers and Loan Records;

(4)        all of the Seller’s rights, to the extent assignable, in, to and under all Investor Commitments and any and all other commitments issued by (i) Ginnie Mae, Fannie Mae, Freddie Mac, another mortgage company or any other investor or any Buyer or securities issuer to guarantee, purchase or invest in any of the Purchased Loans or any MBS based on or backed by any of them or (ii) any broker or investor to purchase any MBS, whether evidenced by book entry or certificate, representing or secured by any interest in any of the Purchased Loans, together with the proceeds arising from or pursuant to any and all such commitments; and all rights to deliver Purchased Loans to investors or purchasers, and all rights to proceeds resulting from the disposition of such Purchased Loans;

(5)        all rights under every Hazard Insurance Policy relating to real estate securing a Purchased Loan for the benefit of the creditor of such Purchased Loan, the

 

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proceeds of all errors and omissions insurance policies and all rights under any blanket hazard insurance policies to the extent they relate to any Purchased Loan or its security and all hazard insurance or condemnation proceeds paid or payable with respect to any of the Purchased Loans and/or any of the property securing payment of any of the Purchased Loans or covered by any related instrument;

(6)        all present and future claims and rights of the Seller to have, demand, receive, recover, obtain and retain payments from, and all proceeds of any nature paid or payable by, any governmental, quasi-governmental or private mortgage guarantor or insurer (including VA, FHA or any other Person) with respect to any of the Purchased Loans;

(7)        all tax, insurance, maintenance fee and other escrow deposits or payments made by the Customers under such Purchased Loans (the Buyers’ Agent and the Buyers acknowledge that the Seller’s rights in such deposits are limited to the rights of an escrow agent and such other rights, if any, in and to such deposits as are accorded by the Purchased Loans and related papers); and

(8)        all monies, accounts, deposit accounts, payment intangibles and general intangibles, however designated or maintained, constituting or representing so-called “completion escrow” funds or “holdbacks,” and being Purchased Loans’ proceeds recorded as disbursed but that have not been paid over to the seller of the subject Mortgaged Premises (the purchase of which is financed by such Purchased Loan), but that are instead being held by the Seller or by a third party escrow agent pending completion of specified improvements or landscaping requirements for such Mortgaged Premises.

“ Qualified Subordinated Debt ” means unsecured Debt of the Seller to any Person as to which (a) the papers evidencing, securing, governing or otherwise related to such Debt are reasonably satisfactory in form and substance to Agent and (b) that is subordinated to the Obligations pursuant to a currently effective and irrevocable Subordination Agreement, including standstill and blockage provisions, reasonably approved by the Agent.

“ Recourse Servicing ” means Servicing Rights under a Servicing Agreement with respect to which the Servicer is obligated to repurchase or indemnify the holder of the related Mortgage Loans in respect of defaults on such Mortgage Loans at any time during the term of such Mortgage Loans.

“ Register ” is defined in Section 22.17(d) .

“ Regular Transaction ” means a Transaction funded by all Buyers, rather than by Comerica Bank under the Swing Line.

“ Regulation T” means Regulation T promulgated by the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 220, or any other regulation when promulgated to replace the prior Regulation T and having substantially the same function.

 

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“ Regulation U ” means Regulation U promulgated by the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 221, or any other regulation when promulgated to replace the prior Regulation U and having substantially the same function.

“ Regulation X ” means Regulation X promulgated by the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 224, or any other regulation when promulgated to replace the prior Regulation X and having substantially the same function.

“ REO ” means real property improved by a one-through four-family residence owned following judicial or nonjudicial foreclosure (or conveyance by deed in lieu of foreclosure) of a Mortgage securing a Single-family Loan.

“ Repurchase Date ” means the date on which the Seller is to repurchase Purchased Loans from the Buyers, being the earlier of (a) the date when the Approved Investor is to purchase such Purchased Loans and (b) any date determined by application of the provisions of Section 3.3 or 18.

“ Repurchase Documents ” means and includes this Agreement, the Custody Agreement, any Subordination Agreement(s), any financing statements or other papers now or hereafter authorized, executed or issued pursuant to this Agreement, and all other documents, instruments and agreements at any time evidencing, governing, securing or otherwise relating to any of the Obligations, and any renewal, extension, rearrangement, increase, supplement, modification or restatement of any of them.

“ Repurchase Price ” means the price at which Purchased Loans are to be resold by the Buyers to the Seller upon termination of a Transaction (including Transactions terminable upon demand), which will be determined in each case as the sum of (a) the Purchase Price and (b) the Price Differential as of the date of such determination.

“ Repurchase Settlement Account ” means the Seller’s non-interest bearing demand deposit account to be maintained with Comerica Bank and described on Schedule 1.2, to be used for (a) the Agent’s and the Buyers’ deposits of Purchase Price payments for Purchased Loans (including any Swing Line Purchases) to the extent not deposited directly in the Funding Account; (b) any principal payments received by the Agent or the Custodian (other than regular principal and interest payments) on any Purchased Loans; (c) the Agent’s deposit of Repurchase Price payments received from the Seller or from an Approved Investor for the Seller’s account for distribution to the Buyers; and (d) only if and when (i) no Default has occurred unless it has been either cured by the Seller or waived in writing by the Agent (acting with the requisite consent of the Buyers as provided in this Agreement) and (ii) no Event of Default has occurred unless it has been either cured by the Seller or waived in writing by the Agent (acting with the requisite consent of the Buyers as provided in this Agreement), transfer to the Operating Account of proceeds of sales or other dispositions of Purchased Loans to an Approved Investor in excess (if any) of the Repurchase Price of such Purchased Loan. The Repurchase Settlement Account shall be a blocked account from which the Seller shall have no right to directly withdraw funds, but instead such funds may be withdrawn or paid out only against the order of an authorized officer of the Agent (acting with the requisite consent of the Buyers as provided herein).

 

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“ Request/Confirmation ” means letters substantially in the form of Exhibit A , delivered pursuant to Section 3.1 and their related Mortgage Transmission Files.

“ Required Buyers ” means, for any day, Buyers (a) whose Commitments comprise at least sixty-six and two-thirds percent (66-2/3%) of the Maximum Aggregate Commitment under this Agreement, or (b) who own at least sixty-six and two-thirds percent (66-2/3%) of the Purchased Loans owned by the Buyers on that day if on or before that day the Commitments have expired or have been terminated and have not been reinstated; provided however, that so long as there are fewer than three Buyers, considering any Buyer and its Buyer Affiliates as a single Buyer, “Required Buyers” means all Buyers.

“ Responsible Officer ” means a duly authorized member, manager or officer of Seller acceptable to Agent.

“ Seller’s Customer ” means any natural person who has applied to the Seller for a financial product or service, has obtained any financial product or service from the Seller or has a Mortgage Loan that is serviced or subserviced by the Seller.

“ Seller’s Customer Information ” means any information or records in any form (written, electronic or otherwise) containing a Seller’s Customer’s personal information or identity, including such Seller’s Customer’s name, address, telephone number, loan number, loan payment history, delinquency status, insurance carrier or payment information, tax amount or payment information and the fact that such Seller’s Customer has a relationship with the Seller.

“ Serviced Loans” means all Mortgage Loans serviced or required to be serviced by the Seller under any Servicing Agreement, irrespective of whether the actual servicing is done by another Person (a subservicer) retained by the Seller for that purpose.

“ Servicer ” means, initially the Seller, and upon termination of the Seller’s right to service the Purchase Loans pursuant to the provisions of Section 19.7 , the Backup Servicer or such other Person (including the Agent) as the Agent may appoint as Servicer.

“ Servicing Agreement ” means, with respect to any Person, the arrangement, whether or not in writing, pursuant to which that Person acts as servicer of Mortgage Loans, whether owned by that Person or by others.

“ Servicing Functions ” means, with respect to the servicing of Mortgage Loans, the collection of payments for the reduction of principal and application of interest, collection of amounts held or to be held in escrow for payment of taxes, insurance and other escrow items and payment of such taxes and insurance from amounts so collected, foreclosure services, and all other actions required to conform with Accepted Servicing Practices.

“ Servicing Records ” has the meaning given the term in Section 19.5 hereof.

“ Servicing Rights ” means the rights and obligations to administer and service a Mortgage Loan, including, without limitation, the rights and obligations to: ensure the taxes and insurance are paid, provide foreclosure services, provide full escrow administration and perform any other obligations required by any owner of a Mortgage Loan, collect the payments for the reduction of principal and application of interest, and manage and remit collected payments.

 

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“ Single-family Loan” means a Mortgage Loan that is secured by a Mortgage covering real property improved by a one-, two-, three- or four-family residence.

“ SIPA ” means the Securities Investors Protection Act of 1970, 15 U.S.C. §78a et. seq ., as amended.

“ Solvent ” means, for any Person, that (a) the fair market value of its assets exceeds its liabilities, (b) it has sufficient cash flow to enable it to pay its debts as they mature, and (c) it does not have unreasonably small capital to conduct its business.

“ Statement Date ” means December 31, 2008.

“ Statement Date Financial Statements ” is defined in Section 15.2(f) .

“ Sublimit ” means one or more (as the context requires) of the sublimits described in Section 4.2 .

“ Subordination Agreement ” means a written subordination agreement in form and substance satisfactory to and approved by the Agent that subordinates (a) all present and future debts and obligations owing by the Seller to the Person signing such subordination agreement to (b) the Obligations, in both right of payment and lien priority, including standstill and blockage provisions approved by the Agent.

“ Subservicer ” means any entity permitted by the Agent to act as a subservicer of the Servicer (which permission shall not be unreasonably withheld) who shall perform Servicing Functions under a Subservicer Instruction Letter.

“ Subservicer Instruction Letter ” means an instruction letter to a Subservicer in form and substance reasonably agreed to by the Seller and the Agent.

“ Subsidiary ” means any corporation, association or other business entity (including a trust) in which any Person (directly or through one or more other Subsidiaries or other types of intermediaries), owns or controls:

(a)        more than fifty percent (50%) of the total voting power or shares of stock entitled to vote in the election of its directors, managers or trustees; or

(b)        more than ninety percent (90%) of the total assets and more than ninety percent (90%) of the total equity through the ownership of capital stock (which may be non-voting) or a similar device or indicia of equity ownership.

“ Super Jumbo Mortgage Loan ” means a Mortgage Loan that would otherwise be a Conforming Mortgage Loan secured by a first Lien Mortgage except that the original principal amount is more than the maximum Agency loan amount, more than One Million Dollars ($1,000,000), but not more than One Million Five Hundred Thousand Dollars ($1,500,000) unless approved by Agent.

 

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“ Supplemental Papers ” means the Loan Papers for a particular Loan other than its Basic Papers.

“ Swing Line ” means the short term revolving discretionary Mortgage Loans purchase facility provided for in Section 2.4 under which Comerica Bank may, in its sole discretion, fund (as “ Swing Line Purchases ”) purchases of Eligible Loans to bridge the Seller’s daily Transactions.

“ Swing Line Buyer ” means Comerica Bank in its role as Buyer for Swing Line Transactions.

“ Swing Line Limit ” means, for any day, the greater of (a) Fifteen Million Dollars ($15,000,000), or (b) (i) the Committed Sum of Comerica Bank, minus (ii) Comerica Bank’s Funding Share of the Purchase Prices for all Purchased Loans included in all Open Transactions, being the maximum amount that may be funded and outstanding on that day under the Swing Line.

“ Swing Line Refunding Due Date ” for each Transaction funded under the Swing Line means the Business Day on which the Swing Line Buyer shall elect to have such Swing Line Transaction funded by the Buyers pursuant to Section 2.5 , or on the next Business Day thereafter if the Buyers are notified of such request after 3:30 p.m. (Detroit, Michigan time) on such Business Day.

“ Swing Line Transaction ” means a Transaction funded by the Swing Line Buyer under the Swing Line.

“ Taxes ” is defined in Section 7.1 .

“ Termination Date ” means the earlier of (a) May 14, 2010 or (b) the date when the Buyers’ Commitments are terminated pursuant to this Agreement, by order of any Governmental Authority or by operation of law.

“ Total Liabilities ” means all liabilities of the Seller and its Subsidiaries, including nonrecourse debt and also including all contingent liabilities and obligations (including Recourse Servicing, recourse sale and other recourse obligations, and guaranty, indemnity and mortgage loan repurchase obligations), in each case as are reflected on the Seller’s Consolidated balance sheet as liabilities in accordance with GAAP, but excluding Qualified Subordinated Debt.

“ Transaction ” is defined in the Recitals.

“ UCC ” means the Uniform Commercial Code or similar laws of the applicable jurisdiction, as amended from time to time.

“ VA ” means the Department of Veterans Affairs and any successor.

 

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“ Wet Loan ” means a Purchased Loan originated and owned by the Seller immediately prior to being purchased by the Buyers:

(a)        that has been closed on or prior to the Business Day on which the Purchase Price is paid therefor, by a title agency or closing attorney, and that would qualify as an Eligible Loan except that some or all of its Basic Papers are in transit to, but have not yet been received by, the Custodian so as to satisfy all requirements to permit the Seller to sell it pursuant to this Agreement without restriction;

(b)        that will fully qualify as an Eligible Loan when the original Basic Papers have been received by the Custodian;

(c)        as to which such full qualification can and will be achieved on or before seven (7) Business Days after the relevant Purchase Date; and

(d)        for which the Seller has delivered to the Custodian a Mortgage Loan Transmission File on or before the Purchase Date, submission of which to the Custodian shall constitute the Seller’s certification to the Custodian, the Buyers and the Agent that a complete File as to such Purchased Loan, including the Basic Papers, exists and that such File is in the possession of either the title agent or closing attorney that closed such Purchased Loan, the Seller or that such File has been or will be shipped to the Custodian.

Each Wet Loan that satisfies the foregoing requirements shall be an Eligible Loan subject to the condition subsequent of physical delivery of its Mortgage Note, Mortgage and all other Basic Papers, to the Custodian on or before seven (7) Business Days after the relevant Purchase Date. Each Wet Loan sold by the Seller shall be irrevocably deemed purchased by the Buyers and shall automatically become a Purchased Loan effective on the date of the related Transaction, and the Seller shall take all steps necessary or appropriate to cause the sale to the Buyers and delivery to the Custodian of such Wet Loan and its Basic Papers to be completed, perfected and continued in all respects, including causing the original promissory note evidencing such Purchased Loan to be physically delivered to the Custodian within seven (7) Business Days after the relevant Purchase Date, and, if requested by the Agent, to give written notice to any title agent, closing attorney or other Person in possession of the Basic Papers for such Purchased Loan of the Buyers’ purchase of such Purchased Loan. Upon the Custodian’s receipt of the Basic Papers relative to a Wet Loan such Purchased Loan shall no longer be considered a Wet Loan.

“ Wet Loans Sublimit ” is defined in Section 4.2 .

Other Definitional Provisions . Accounting terms not otherwise defined shall have the meanings given them under GAAP.

(a)        Defined terms may be used in the singular or the plural, as the context requires.

(b)        Except where otherwise specified, all times of day used in the Repurchase Documents are local (U.S. Eastern Time Zone) times in Detroit, Michigan.

 

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(c)        Unless the context plainly otherwise requires (e.g., if preceded by the word “not”), wherever the word “including” or a similar word is used in the Repurchase Documents, it shall be read as if it were written, “including by way of example but without in any way limiting the generality of the foregoing concept or description”.

(d)        Unless the context plainly otherwise requires, wherever the term “Agent” is used in this Agreement (excluding Section 22 ), it shall be read as if it were written “the Agent (as agent and representative of the Buyers).”

2        The Buyers’ Commitments.

2.1.         The Buyers’ Commitments to Purchase . Subject to the terms and conditions of this Agreement (including without limitation the terms and conditions set forth in Section 4 and Section 14 ) and provided no Default or Event of Default has occurred and is continuing that has not been waived by the Buyers or the Required Buyers, as applicable (or, if one has occurred and not been so cured or declared waived, if all of the Buyers, in their sole discretion and with or without waiving such Default or Event of Default, have elected in writing that Transactions under this Agreement shall continue nonetheless), the Buyers agree to make revolving purchases of Eligible Loans on a servicing released basis through the Termination Date, so long as the Aggregate Outstanding Purchase Price does not exceed the Maximum Aggregate Commitment and so long as each Buyer’s Committed Sum is not exceeded. The Buyers’ respective Committed Sums and the Maximum Aggregate Commitment are set forth on Schedule BC in effect at the relevant time, as it may have been amended or restated pursuant to this Agreement. Upon the joinder of additional Buyer(s), if any, the parties agree to approve in writing revised and updated versions of Schedule BC . The fractions to be applied to determine the respective Funding Shares of the Buyers for any day are their respective Committed Sums divided by the Maximum Aggregate Commitment for that day. Each Buyer shall be obligated to fund only that Buyer’s own Funding Share of any Transaction requested, and no Buyer shall be obligated to the Seller or any other Buyer to fund a greater share of any Transaction. No Buyer shall be excused from funding its applicable Funding Share of any Transaction merely because any other Buyer has failed or refused to fund its relevant Funding Share of that or any other Transaction. If any Buyer fails to fund its Funding Share of any Transaction (a “Nonfunding Buyer”), the Agent (in its sole and absolute discretion) may choose to fund the amount that such Nonfunding Buyer failed or refused to fund, or the Agent as a Buyer and the other Buyers who are willing to do so may (in each of their sole and absolute discretion) do so in the proportion that the Committed Sum of each bears to the total Committed Sums of all Buyers that have funded (or are funding) their own Funding Shares of that Transaction and that are willing to fund part of the Funding Share of such Nonfunding Buyer. Should the Agent and/or any other Buyer(s) fund any or all of the Nonfunding Buyer’s Funding Share of any Transaction, then the Nonfunding Buyer shall have the obligation to deliver such amount to the Agent (for its own account and/or for distribution to the Buyer(s) who funded it, as the case may be) in immediately available funds on the next Business Day. Regardless of whether the other Buyers fund the Funding Share of the Nonfunding Buyer, the respective ownership interests of the Buyers in the Transaction shall be adjusted as provided in Section 3.10 . The obligations of the Buyers hereunder are several and not joint.

 

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2.2.         Expiration or Termination of the Commitments . Unless extended in writing or terminated earlier in accordance with this Agreement, the Buyers’ Commitments (including Comerica Bank’s Swing Line Commitment) shall automatically expire at the close of business on the Termination Date, without any requirement for notice or any other action by the Agent, any of the Buyers or any other Person.

2.3.         Request for Increase in Maximum Aggregate Commitment . If the Seller shall request to the Agent an increase in the Maximum Aggregate Commitment to a specified amount up to One Hundred Forty Million Dollars ($140,000,000.00), the Agent shall use its best efforts to obtain increased Committed Sums from existing Buyers, new Commitments from prospective new Buyers or such combination thereof as the Agent shall elect, to achieve such requested increase; provided that no Default has occurred that has not been cured before it has become an Event of Default, and no Event of Default has occurred that the Seller has not cured or that the Agent has not declared in writing to have been waived in accordance with Section 22 . No Buyer will have any obligation to increase its Committed Sum. If an increase in the Maximum Aggregate Commitment is achieved, then (a) the Pro Rata ownership interest in the Purchased Loans of each Buyer shall, following funding by the Buyers increasing their Commitment Sums or by the new Buyers, automatically be adjusted proportionately and (b)  Schedule BC shall be updated and the update executed and delivered by the Agent to the Seller and each of the Buyers and, effective as of the date specified on such update, shall each automatically supersede and replace the then-existing corresponding schedule for all purposes.

2.4.         Swing Line Facility . In addition to its Commitment under Section 2.1 , the Swing Line Buyer may, in its discretion, fund revolving Swing Line Transactions for aggregate Purchase Prices which do not on any day exceed the Swing Line Limit for the purpose of initially funding requested Transactions.

2.5.         Swing Line Transactions .

   (a)        The Seller shall have the right to request a Swing Line Transaction and Swing Line Buyer may, in its discretion, agree to fund such Swing Line Transaction:

(i)        only if such Swing Line Transaction fully qualifies in all respects for funding as Regular Transaction under this Agreement;

(ii)        provided that no Default has occurred that has not been cured before it has become an Event of Default, and no Event of Default has occurred and is continuing that has not been waived by the Buyers or the Required Buyers, as applicable and all conditions precedent in Section 14.1 (with respect to the initial purchase hereunder) and Section 14.2 have been satisfied;

(iii)        so long as (A) the Swing Line Limit is not exceeded and (B) such Swing Line Transaction will not cause the sum of Comerica Bank’s Funding Share of the Swing Line Transactions plus Comerica Bank’s Funding Share of all Open Transactions to exceed Comerica Bank’s Commitment;

 

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(iv)        so long as, after giving effect to the proposed Swing Line Transaction, the Aggregate Outstanding Purchase Price would not exceed the Maximum Aggregate Commitment;

(v)         provided that a Request/Confirmation has been received by the Agent and the Swing Line Buyer by no later than 3:30 p.m. (Detroit, Michigan time) on the Business Day such Transaction is to be funded;

(vi)        provided that the Agent has received a satisfactory Eligible Loans Report from the Custodian on such date; and

(vii)       provided that the Seller is not aware of any reason why the requested Transaction cannot or will not be fully funded by the Buyers on the first Swing Line Refunding Due Date following the Business Day on which the Swing Line Transaction is to be funded.

   (b)        All Swing Line Transactions shall have a Price Differential from the date funded until the date repaid and the Repurchase Price therefor shall be due and payable to Comerica Bank at the same rate(s) as would be applicable if such Swing Line Transactions had been funded as Regular Transactions by all Buyers, instead of having been funded by the Swing Line Buyer alone as Swing Line Transactions.

   (c)        On each Swing Line Refunding Due Date, each Swing Line Transaction shall terminate and the Seller shall repurchase all Purchased Loans subject to such Swing Line Transaction to the extent such Transaction is not converted to a Regular Transaction pursuant to this Section 2.5 .

   (d)        The Swing Line Buyer may at any time in its sole discretion with respect to any outstanding Swing Line Transaction, require each Buyer (including the Swing Line Buyer) to fund such Swing Line Transaction, by delivering notice to each Buyer. Unless an Event of Default under Section 18.1(b) shall have occurred and be continuing on such Swing Line Refunding Due Date (in which event the procedures under clause (e) shall apply), no later than 4:00 p.m. (Detroit, Michigan time) on such Swing Line Refunding Due Date, each Buyer shall transfer its Funding Share in immediately available funds to the Repurchased Settlement Account for application against the Swing Line Transaction, whereupon the Swing Line Transaction shall be deemed a Regular Transaction.

   (e)        If, on any Swing Line Refunding Due Date, an Event of Default under Section 18.1(b) shall have occurred and be continuing, each Buyer shall, no later than 4:00 p.m. (Detroit, Michigan time) on such Swing Line Refunding Due Date, purchase a participation in the Swing Line Transaction by immediately transferring to the Agent, for the benefit of the Swing Line Buyer, in immediately available funds, an amount equal to its Funding Share of the Purchase Price of such Swing Line Transaction, and upon its receipt thereof, the Agent shall deliver to such Buyer a certificate evidencing such participation.

 

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(f)        Unless a Buyer shall have notified the Swing Line Buyer, prior to any Swing Line Transaction, that any applicable condition precedent set forth in Sections 14.1 or 14.2 had not then been satisfied, such Buyer’s obligation to convert the Swing Line Transaction to a Regular Transaction pursuant to clause (d) of this Section 2.5 or to purchase a participation in respect of such Swing Line Transaction pursuant to clause (e) of this Section 2.5 shall be unconditional, continuing, irrevocable and absolute and shall not be affected by any circumstances, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right which such Buyer may have against the Agent, the Swing Line Buyer or any other Person, (ii) the occurrence or continuance of a Default or Event of Default, (iii) any adverse change in the condition (financial or otherwise) of the Seller, (iv) the expiration, cancellation or termination, with or without cause of some or all of such Buyers’ Commitments or if such Commitment has been waived, released or excused for any reason whatsoeveor or (v) any other circumstances, happening or event whatsoever. In the event that any Buyer fails to make payment to the Agent of any amount due under this Section 2.5 , the Agent shall be entitled to receive, retain and apply against such obligation the Repurchase Prices (including Price Differential) otherwise payable to such Buyer hereunder until the Agent receives such payment from such Buyer or such obligation is otherwise fully satisfied. In addition to the foregoing, if for any reason any Buyer fails to make payment to the Agent of any amount due under this Section 2.5 , such Buyer shall be deemed, at the option of the Agent, to have unconditionally and irrevocably purchased from the Swing Line Buyer, without recourse or warranty, an undivided interest and participation in the applicable Swing Line Transaction in the amount of such Buyer’s Funding Share of that Transaction, and such interest and participation may be recovered from such Buyer together with interest thereon at the Federal Funds Rate for each day during the period commencing on the date of demand and ending on the date such amount is received. On the Termination Date, the Seller shall repurchase all Purchased Loans then subject to a Swing Line Transaction.

(g)        The Agent shall disburse to the Swing Line Buyer from the Repurchase Settlement Account an amount equal to the sum of the Funding Shares funded by all of the other Buyers in respect of the refunding of any Swing Line Transaction; provided that if a Buyer other than the Swing Line Buyer advises the Agent by telephone and confirms the advice by fax that such Buyer has placed all of its Funding Share on the federal funds wire to the Repurchase Settlement Account, the Agent shall continue to keep the Swing Line Transaction outstanding to the extent of that Buyer’s Funding Share so wired until such Buyer’s Funding Share is received in the Repurchase Settlement Account, and the Agent shall then repay the Swing Line Buyer that still-outstanding portion of the Swing Line Transaction from the Repurchase Settlement Account, and the Price Differential accrued at the Pricing Rate(s) applicable to the Transaction on that Funding Share for the period from (and including) the relevant Swing Line Refunding Due Date to (but excluding) the date such Buyer’s Funding Share is received by the Agent shall belong to the Swing Line Buyer. If any Buyer fails to fund its Funding Share to fund a Swing Line Transaction in accordance with clause (d) of this Section 2.5 , or fails to fund its Funding Share to purchase a participation in a Swing Line Transaction in accordance with clause (e) of this Section 2.5 , then that Buyer shall also be obligated to pay to the Swing Line Buyer interest on the Funding Share so due from such Buyer to the Swing Line Buyer at the Federal Funds Rate from (and including) such Swing Line Refunding Due Date to (but excluding) the date of payment of such required amount.

 

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   (h)        All accrued Price Differential on Swing Line Transactions shall be due and payable by the Seller to the Agent (for distribution to the Swing Line Buyer) on the Price Differential payment due date (determined under Section 5 ) next following the date of the Swing Line Transaction. All Price Differential accrued on Swing Line Transactions through the applicable Swing Line Refunding Due Date shall be due and payable by the Seller to the Agent (for distribution to the Swing Line Buyer) no later than two (2) Business Days after the applicable Swing Line Refunding Due Date, but in no than event later the Termination Date.

2.6.         Optional Reduction or Termination of Buyers’ Commitments . The Seller may, at any time, without premium or penalty, upon not less than five (5) Business Days prior written notice to the Agent, reduce or terminate the Maximum Aggregate Commitment, ratably, with any such reduction in a minimum aggregate amount for all the Buyers of Five Million Dollars ($5,000,000), or, if more, in an integral multiple of or a larger integral multiple of One Hundred Thousand Dollars ($100,000); provided , however , that (a) at no time may the Aggregate Outstanding Purchase Price exceed the Maximum Aggregate Commitment after giving effect to any such reduction, and (b) unless terminated in full, the Maximum Aggregate Commitment shall not be reduced to less than Thirty Million Dollars ($30,000,000). Upon termination in full of the Buyers’ Commitments pursuant to this Section 2.6 , the Seller shall pay to the Agent for the ratable benefit of the Buyers the full amount of all outstanding Obligations under the Repurchase Documents.

3        Initiation; Termination.

3.1.         Seller Request; Agent Confirmation .

   (a)        Subject to the terms and conditions of this Agreement (including, without limitation, the terms and conditions set forth in Section 2.1 and Section 14 ), the Seller may request a Regular Transaction and the Buyers shall fund such Regular Transaction, subject to the following:

(i)        Agent and Custodian shall have received a Request/Confirmation in accordance with Section 3.2 hereof by no later than 1:00 p.m. on the proposed Purchase Date; and

(ii)       Agent shall have received a satisfactory Eligible Loans Report from the Custodian on the proposed Purchase Date;

   Provided that if such items are received by the applicable parties on any Business Day, but are not received by the times specified above, the Transaction may be funded on the same day, at the Swing Line Buyer’s option, as a Swing Line Transaction (subject to the conditions set forth in Section 2.5 above), or on the next Business Day as a Regular Transaction, subject in each case to the other terms and conditions of this Agreement.

 

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 (b)        Upon receiving any Request/Confirmation for any Regular Transaction under Section 3.1 hereof, Agent shall promptly notify each Buyer by wire, telex or telephone (confirmed by wire, telecopy or telex). Unless such Buyer’s commitment to make purchases hereunder shall have been suspended or terminated in accordance with this Agreement, each such Buyer shall make available the amount of its respective Funding Share of each requested Transaction in immediately available funds to the Agent no later than 4:00 p.m. on the date of such Transaction. Any Buyer that fails to fund its Funding Share of any Transaction shall be deemed to be a Nonfunding Buyer and a Defaulting Buyer under the terms of this Agreement.

3.2.     Request/Confirmation . Each Request/Confirmation shall identify the Agent and the Seller and set forth:

 (a)        the Purchase Date applicable to the relevant Transaction;

 (b)        for each of the Eligible Loans to be sold, the Purchase Price; and

 (c)        any additional terms or conditions of the Transaction mutually agreed to by the Agent and the Seller.

Each Request/Confirmation shall be binding on the parties, unless written notice of objection is received by the Agent prior to the funding of any related Transaction by any Buyer. In the event of any conflict between the terms of a Request/Confirmation and this Agreement, this Agreement shall prevail.

3.3.     Transaction Termination; Purchase Price Decrease .

 (a)         Automatic Termination . Each Transaction, or applicable portion thereof, will automatically terminate on the earlier of (i) the date or dates when the subject Purchased Loans are purchased by Approved Investor(s) and (ii) the Termination Date. Upon any such automatic termination, the Seller shall repurchase all applicable Purchased Loans in accordance with Section 3.3(c) .

 (b)         Termination Upon Occurrence of Disqualifier . If any Disqualifier occurs in respect of a Purchased Loan, (i) the Buyers shall reconvey to the Seller or its designee the applicable Purchased Loan, servicing released, and (ii) if and only to the extent of any Margin Deficit that exists as determined in accordance with Section 6.1 , the Seller shall immediately pay the Repurchase Price with respect to the applicable Purchased Loan (but only to the extent of the Margin Deficit) in immediately available funds to the account referred to in Section 3.4 .

 (c)         How Terminations will be Effected . Termination of a Transaction (or the applicable portion thereof) will be effected by (i) the Buyers’ reconveyance to the Seller or its designee of applicable Purchased Loans, servicing released, and payment of any Income in respect thereof received by the Agent and not previously either paid to the Seller or applied as a credit to the Seller’s Obligations, and (ii) payment of the Repurchase Price with respect to the applicable Purchased Loans in immediately available funds to the account referred to in Section 3.4 on the Repurchase Date, so that

 

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the Agent receives the Repurchase Price (for Pro Rata distribution to the Buyers) in immediately available funds on that same Business Day; provided that the portion of the Repurchase Price attributable to accrued and unpaid Price Differential for the Repurchased Loan shall be due on the next Price Differential payment date in accordance with Section 5.3 ; provided further that all accrued and unpaid Price Differential shall be due and payable on the Termination Date.

 (d)         Purchase Price Decrease . The Seller may effectuate a Purchase Price Decrease on any Business Day by delivery to the Agent in immediately available funds of an amount specified by the Seller as a Purchase Price Decrease on that Business Day. No Purchased Loans shall be, or be deemed to be, repurchased in connection with a Purchase Price Decrease.

3.4.     Place for Payments of Repurchase Prices . All Repurchase Price payments shall be paid to the Repurchase Settlement Account.

3.5.     Withdrawals from and Credits to Operating Account . If the Seller fails for any reason to repurchase any one or more Purchased Loans on the relevant Repurchase Date, to pay any Price Differential or fees when due or to satisfy any Margin Call in the manner and by the time specified in Sections 3.3 and 3.4 , the Agent is hereby specifically and irrevocably authorized to withdraw funds from the Operating Account or any other account of the Seller in an amount equal to the sum of the Repurchase Prices of all Purchased Loans that are Past Due, plus accrued, unpaid Price Differential or fees, plus Margin Deficit (if applicable), on that day and cause application of such funds withdrawn to the payment of the Repurchase Prices of such Purchased Loans, Price Differential or fees, and Margin Deficit (if applicable) in such order and manner as the Agent may elect and, if funds in the Operating Account or any other account of the Seller are insufficient to pay the such amounts, the Seller shall pay the amount due hereunder on demand by wire to the Repurchase Settlement Account. As long as no Default or Event of Default has occurred and is continuing, or thereafter with the consent of the Required Buyers, the Agent shall, at the written request of the Seller, cause any amount deposited in the Repurchase Settlement Account in excess of amounts required hereunder to be transferred to the Operating Account.

3.6.     Transfer of Existing Mortgage Loan Portfolio .

(a)     Some of the Buyers and the Seller are also parties to the Sixth Amended and Restated Revolving Credit Agreement dated as of May 16, 2006 (as amended, the “ Warehousing Credit Agreement ”), pursuant to which such Buyers and the other lenders party thereto (the “ Existing Lenders ”) and JPMorgan Chase Bank, N.A. (in its capacity as agent for the lenders party to the Warehousing Credit Agreement, the “Warehousing Credit Agreement Agent”) have made Advances (defined in the Warehousing Credit Agreement) in the nature of loans to the Seller. Repayment of these Advances and all interest accrued thereon, and payment and performance of the other obligations of the Seller under the Warehousing Credit Agreement, are secured by a pledge and grant of a first priority security interest in certain Mortgage Loans and related collateral delivered by the Seller to the Warehousing Credit Agreement Agent under the Warehousing Credit Agreement (collectively, the “ Existing Mortgage Loan Portfolio ”), all on the terms and

 

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conditions set forth therein and in the Pledge and Security Agreement referred to therein. The Seller has requested that it be permitted to sell the Existing Mortgage Loan Portfolio, on the terms and conditions set forth herein, to the Agent for the benefit of the Buyers on the Effective Date, and this Section 3.6 and Section 3.7 memorialize the parties’ further agreements on that subject.

(b)     Concurrently with the initial Transaction hereunder, the Seller shall cause the disbursement of the proceeds of such Transaction and additional funds made available by the Seller, if required, to the Existing Lenders ratably in accordance with their advances against the Existing Mortgage Loan Portfolio. The Warehousing Credit Agreement shall thereupon be terminated (except for any provisions thereof that by their terms survive termination of said agreement).

(c)     As part of the initial Transaction hereunder, subject to the terms and conditions of this Agreement, the Buyers shall purchase all Eligible Loans in the Existing Mortgage Loan Portfolio on the terms set forth in this Agreement.

3.7.     Special Terms Applicable to the Existing Mortgage Loan Portfolio . The following changes in the terms and conditions of this Agreement are applicable to the Existing Mortgage Loan Portfolio and the Mortgage Loans therein:

 (a)        The Repurchase Date for each such Mortgage Loan under Section 3.3 (and as set forth in the Disqualifiers on Schedule DQ ) shall be measured from the date on which the Mortgage Loan was first pledged by the Seller pursuant to the Warehousing Credit Agreement. The requirement of Schedule EL (8)  that each Eligible Loan be originated no more than 45 days prior to its Purchase Date shall be measured from the date on which the Mortgage Loan was first pledged by the Seller pursuant to the Warehousing Credit Agreement (i.e. that it was originated no more than 45 days prior to the date it was first pledged by the Seller pursuant to the Warehousing Credit Agreement). The prior pledge of an Eligible Loan that is a part of the Existing Mortgage Loan Portfolio pursuant to the Warehousing Credit Agreement shall not violate any covenant, representation or warranty under this Agreement regarding a prior pledge of any Eligible Loan.

 (b)        Each such Mortgage Loan must be an Eligible Loan at the time of purchase under this Agreement unless otherwise agreed by all Buyers and the Seller.

 (c)        The Seller makes the following additional representations and warranties in connection with the sale and purchase of the Existing Mortgage Loan Portfolio: the Seller has not filed a petition in any case, action or proceeding under the Bankruptcy Code or any similar state law; no petition in any case, action or proceeding under the Bankruptcy Code or any similar state laws have been filed against the Seller that has not been dismissed or vacated; and the Seller has not filed any answer or otherwise admitted in writing any insolvency or inability to pay its debts or has made an assignment for the benefit of creditors or consented to the appointment of a receiver or trustee of all or a material part of its property. The Seller has no intention to make any such filing or admission in the next ninety (90) days. The sale and purchase of the Existing Mortgage Loan Portfolio will not be a preference, voidable transfer, fraudulent conveyance, or otherwise in violation of the Bankruptcy Code or any similar state or federal law.

 

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3.8.     Delivery of Additional Mortgage Loans . The Seller may from time to time deliver to the Agent Mortgage Loans that are also Eligible Loans without entering into a new Transaction by providing to the Agent the documents required under Section 3.1(a) with respect to such Mortgage Loans. The Seller and the Buyers agree that such Mortgage Loans delivered pursuant to this Section 3.8 shall be treated as Purchased Loans subject to the existing Transactions hereunder from the date of such delivery.

3.9.     Application of Purchase Price Decreases and Repurchase Price Payments . Upon receipt by the Agent of amounts paid or prepaid as Purchase Price Decreases or Repurchase Price (except upon the exercise of remedies provided in Section 18 ) the Agent shall apply amounts so received to the payment of all Obligations that are then due, then, at the option of the Swing Line Buyer, to the payment of all Swing Line Transactions, with the balance deposited into the Operating Account unless otherwise agreed by the Buyers.

3.10.   Defaulting Buyers . Notwithstanding any provision of this Agreement to the contrary, if any Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long as such Buyer is a Defaulting Buyer:

 (a)        applicable fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting Buyer pursuant to Section 9.1 ;

 (b)        the Commitment of and the outstanding Purchase Prices paid by such Defaulting Buyer shall not be included in determining whether all Buyers or the Required Buyers have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 22 ), provided that any waiver, amendment or modification requiring the consent of all Buyers or each affected Buyer which affects such Defaulting Buyer differently than other affected Buyers shall require the consent of such Defaulting Buyer;

 (c)        if any Swing Line Transactions shall exist at the time a Buyer becomes a Defaulting Buyer then the Seller shall within one Business Day following notice by the Agent repurchase the Purchased Loans subject to such Swing Line Transactions;

 (d)        the respective ownership interests of both (i) the Defaulting Buyer and (ii) the Buyer (or Buyers) that funded the Defaulting Buyer’s Funding Share(s) of any Transaction shall be proportionately decreased and increased, respectively, to the same extent as if their respective Committed Sums were changed in direct proportion to the unreimbursed balance outstanding from time to time thereafter of the amount so funded;

 (e)        if no other Buyer funds any of the Defaulting Buyer’s Funding Share, then the Pro Rata ownership interests of the Buyers in the Purchased Loans shall be changed, so that each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open Transactions on that day to (ii) the total of the Purchase Prices paid by all Buyers in all

 

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Open Transactions on that day, but the Defaulting Buyer’s share of all subsequent distributions of any Repurchase Price and Margin Deficit payments shall be paid to the other Buyers, pro rata among them in the ratio that the Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be readjusted after each such payment, until their Pro Rata ownership interests are restored to what they were before any Defaulting Buyer failed to fund. Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests in any Purchased Loan due to any Buyer’s failure to fund its Funding Share(s) of any Transaction, such failure to fund shall not diminish any Buyer’s Funding Share(s) for subsequent Transactions.

(f)        any amount payable to such Defaulting Buyer hereunder (whether on account of Repurchase Price, Price Differential, Margin Deficits, Purchase Price Decrease, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Buyer pursuant to Section 20.2 but excluding Section 6.4 ) shall, in lieu of being distributed to such Defaulting Buyer, be retained by the Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Agent (i) first, to the payment of any amounts owing by such Defaulting Buyer to the Agent hereunder, (ii) second, pro rata, to the payment of any amounts owing by such Defaulting Buyer to the Swing Line Buyer hereunder, (iii) third, to the funding of any Transaction or the funding of any participating interest in any Swing Line Transaction in respect of which such Defaulting Buyer has failed to fund its portion thereof as required by this Agreement, as determined by the Agent, (iv) fourth, if so determined by the Agent and the Seller, held in such account as cash collateral for future funding obligations of the Defaulting Buyer under this Agreement, (v) fifth, pro rata, to the payment of any amounts owing to the Seller or the Buyers as a result of any judgment of a court of competent jurisdiction obtained by the Seller or any Buyer against such Defaulting Buyer as a result of such Defaulting Buyer’s breach of its obligations under this Agreement, and (vi) sixth, to such Defaulting Buyer or as otherwise directed by a court of competent jurisdiction; provided , that if such payment is (x) a Purchase Price Decrease and (y) made at a time when the conditions set forth in Section 14.2 are satisfied, such payment shall be applied solely to reduce the Purchase Prices owed to all Buyers that are not Defaulting Buyers Pro Rata prior to being applied to any Purchase Prices owed to any Defaulting Buyer.

In the event that the Agent, the Seller and the Swing Line Buyer each agrees that a Defaulting Buyer has adequately remedied all matters that caused such Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s Commitment and on such date such Redeemed Buyer shall purchase from the other Buyers at par a portion of the Open Transactions as the Agent shall determine may be necessary in order for such Redeemed Buyer to participate in such Open Transactions in accordance with its Pro Rata share. For purposes of this Section 3.11 , “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at such time.

 

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Nothing contained in the foregoing shall be deemed to constitute a waiver by the Seller of any of its rights or remedies (whether in equity or law) against any Buyer which fails to fund any Transaction hereunder at the time or in the amount required to be funded under the terms of this Agreement.

4        Transaction Limits and Sublimits.

4.1.     Transaction Limits . Each Transaction shall be subject to the limitation that no purchase will be made if at the time of or after such purchase, the Aggregate Outstanding Purchase Price exceeds or would exceed the lesser of:

(a)     the Maximum Aggregate Commitment; or

(b)     the sum of the following, without duplication:

(i)      For Purchased Loans which are Conforming Mortgage Loans, the lesser of (A) the Purchase Value all such Conforming Mortgage Loans, or (B) the Conforming Loan Sublimit, plus

(ii)     For Purchased Loans which are Jumbo Mortgage Loans or Super Jumbo Mortgage Loans, the lesser of:

(A)      The sum of the following:

(1)        For Jumbo Mortgage Loans, the lesser of (I) Purchase Value of all such Jumbo Mortgage Loans, or (II) the Jumbo Loans Sublimit, plus

(2)        For Super Jumbo Mortgage Loans, the lesser of (I) the Purchase Value of all such Super Jumbo Mortgage Loans, or (II) the Super Jumbo Loans Sublimit; or

(B)      The Jumbo/Super Jumbo Loans Sublimit.

(iv)     For Purchased Loans which are Wet Loans, the lesser of (A) the Purchase Value of all such Wet Loans, or (B) the Wet Loans Sublimit, plus

(v)      For Purchased Loans which are Discretionary Loans, the lesser of (A) the Purchase Value of all such Discretionary Loans, or (B) the Discretionary Loans Sublimit.

 

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4.2.       Transaction Sublimits . The following sublimits shall also be applicable to the Transactions hereunder such that after giving effect to any proposed Transaction and after giving effect to any repurchase, addition or substitution of any Mortgage Loan hereunder, the following shall be true:

 (a)      The Aggregate Outstanding Purchase Price of Conforming Mortgage Loans may be as much as one hundred percent (100%) of the Maximum Aggregate Commitment (the “ Conforming Loan Sublimit ”).

 (b)      The Aggregate Outstanding Purchase Price of all Purchased Loans that are Wet Loans shall not exceed (x) fifty percent (50%) of the Maximum Aggregate Commitment on any of the first five and last five Business Days of any month or (y) thirty-five percent (35%) of the Maximum Aggregate Commitment on any other day (the “ Wet Loans Sublimit ”).

 (c)      The Aggregate Outstanding Purchase Price of all Purchased Loans that are of the type listed in the first column of the following table shall not exceed the percentage of the Maximum Aggregate Commitment or amount listed in the second column of the table (the name of that Sublimit is set forth in the third column).

 

 (d)      The Aggregate Outstanding Purchase Price of all Purchased Loans that are Jumbo Mortgage Loans or Super Jumbo Loans shall not exceed the greater of Five Million Dollars ($5,000,000) or five percent (5%) of the Maximum Aggregate Commitment on any day (“ Jumbo/Super Jumbo Loans Sublimit ”).

4.3.       Compliance . Seller shall immediately repurchase Purchased Loans necessary to comply with all of the requirements of Section 4.1 and Section 4.2 of this Agreement.

5        Price Differential.

5.1.       Pricing Rate . Except as otherwise provided herein with respect to the Default Pricing Rate, the Pricing Rate to be applied to the Purchase Prices of Purchased Loans to determine the Price Differential in all Open Transactions shall be the applicable from time to time.

 

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5.2.       Pricing Rate for Default Pricing Rate Purchased Loans . Notwithstanding any contrary or inconsistent provision of this Section 5 , the Pricing Rate to be multiplied by the Purchase Prices of all Purchased Loans shall be the Default Pricing Rate from (and including) (a) the day immediately following the Repurchase Date for any Past Due Purchased Loan and until (but excluding) the date on which such Past Due Purchased Loan is repurchased by transfer to the Agent (for Pro Rata distribution to the Buyers) of its full Repurchase Price in immediately available funds; and (b) the date designated by the Agent to the Seller after the occurrence and during the continuance of an Event of Default under Section 18.1 .

5.3.       Price Differential Payment Due Dates . Price Differential on each Open Transaction accrued and unpaid to the end of each month before the Termination Date shall be due and payable five (5) Business Days after the end of each month, whether or not such Transaction is still an Open Transaction on such payment due date; provided that (a) all accrued and unpaid Price Differential on all Transactions shall be due on the Termination Date, and (b) all Pricing Differential calculated at the Default Pricing Rate shall be due on demand.

6        Margin Maintenance.

6.1.       Margin Deficit .

 (a)      If at any time the aggregate Purchase Value of all Purchased Loans subject to all Transactions hereunder is less than the aggregate Repurchase Price (excluding Price Differential), minus, without duplication, cash transfers previously made from the Seller to the Agent in response to previous Margin Calls, if any, for all such Transactions (a “ Margin Deficit ”), then by notice to the Seller (a “ Margin Call ”), the Agent shall require the Seller to transfer (for the account of the Buyers) to the Agent or the Custodian, as appropriate, either (at the Seller’s option) cash, additional Eligible Loans reasonably acceptable to the Agent (“ Additional Purchased Loans ”), or a combination of cash and Additional Purchased Loans, so that the cash and the aggregate Purchase Value of the Purchased Loans, including any such Additional Purchased Loans, will thereupon at least equal the then aggregate Repurchase Price (excluding Price Differential). The Agent will request a recalculation of the Purchase Value of all or a portion of the Purchased Loans from the Custodian at the times it deems appropriate in its sole discretion and at any other time at the request of the Required Buyers; provided that, other than during the existence of a Default or Event of Default, the Purchase Values shall not be recalculated on less than a weekly basis.

 (b)      On any Business Day on which the Purchase Value of the Purchased Loans subject to Transactions exceeds the then outstanding aggregate Repurchase Price (excluding Price Differential) of all Transactions (a “ Margin Excess ”), so long as no Default or Event of Default has occurred and is continuing or will result therefrom, the Agent shall, upon receipt of a written request from the Seller, remit cash or release Purchased Loans, as requested by the Seller, in either case in an amount equal to the lesser of (i) the amount requested by the Seller and (ii) such Margin Excess, subject

 

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always to the other limitations of this Agreement. If cash is to be remitted the Agent shall treat the receipt of the written request of the Seller under this Section 6.1(b) as if it were a request for a Transaction. To the extent the Agent remits cash to the Seller, such cash shall be (A) additional Purchase Price with respect to the Transactions, and (B) subject in all respects to the provisions and limitations of this Agreement. Each Buyer shall fund its Pro Rata share of such additional Purchase Price as if the remission of such Margin Excess were the initiation of a Transaction hereunder.

6.2.       Margin Call Deadline . If the Agent delivers a Margin Call to the Seller at or before 11:00 a.m. (Detroit, Michigan time) on any Business Day, then the Seller shall transfer cash and/or Additional Purchased Loans as provided in Section 6.1 on the same Business Day. If the Agent delivers a Margin Call to the Seller after 11:00 a.m. (Detroit, Michigan time) on any Business Day, then the Seller shall transfer cash and/or Additional Purchased Loans by no later than 11:00 a.m. (Detroit, Michigan time) on the next following Business Day.

6.3.       Application of Cash . Any cash transferred to the Agent (for Pro Rata distribution to the Buyers) pursuant to this Section 6 shall be applied by the Buyers on receipt from the Agent which shall occur on the date received from the Seller or the next Business Day if received after 1:00 p.m. (Detroit, Michigan time)

6.4.       Increased Cost . If the adoption of, or any change in, any applicable law, rule or regulation (whether domestic or foreign) of any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Buyer (or its LIBOR Lending Office) with any request or directive (whether or not having the force of law) made by any such authority, central bank or comparable agency after the Effective Date:

(a) shall subject such Buyer (or its LIBOR Lending Office) to any tax, duty or other charge with respect with respect to this Agreement or any Transaction or change the basis of taxation of payments to the Buyer in respect thereof (except for changes in the rate of tax on the overall net income of Buyer or its LIBOR Lending Office imposed by the jurisdiction in which Buyer’s principal executive office or LIBOR Lending Office is located);

(b) shall impose, modify or deem applicable any reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by Buyer (or its LIBOR Lending Office), or shall impose on Buyer (or its LIBOR Lending Office) or the foreign exchange and interbank markets any other condition affecting this Agreement or the making or maintaining of Transactions hereunder; or

(c) shall impose on the Buyer any other condition:

and the result of any of the foregoing is to increase the cost to such Buyer, by an amount which the Buyer deems to be material, of entering, continuing or maintaining any Transaction or to reduce any amount due or owing hereunder in respect thereof, then in any such case, the Seller shall promptly pay the Agent (for distribution to such Buyer) such additional amount or amounts as calculated by the Buyer in good faith as will compensate the Buyer for such increased cost or

 

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reduced amount. A certificate of a Buyer, prepared in good faith and in reasonable detail by such Buyer and submitted to the Seller and the Agent, setting forth the basis for determining such additional amount or amounts necessary to compensate such Buyer shall be conclusive and binding for all purposes, absent manifest error.

6.5.       Capital Adequacy . In the event that any applicable law, treaty, rule or regulation (whether domestic or foreign) now or hereafter in effect and whether or not presently applicable to a Buyer, or any interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof, or compliance by a Buyer with any guideline, request or directive of any such authority (whether or not having the force of law), including any risk-based capital guidelines, affects or would affect the amount of capital required or expected to be maintained by such Buyer (or any corporation controlling such Buyer), and such Buyer determines that the amount of such capital is increased by or based upon the existence of any its obligations hereunder or the maintaining of any Transactions, and such increase has the effect of reducing the rate of return on such Buyer’s (or such controlling corporation’s) capital as a consequence of such obligations or the maintaining of such Transactions to a level below that which such Buyer (or such controlling corporation) could have achieved but for such circumstances (taking into consideration its policies with respect to capital adequacy), then the Seller shall pay to such Buyer, within fifteen (15) days of the Seller’s receipt of written notice from such Buyer demanding such compensation, additional amounts as are sufficient to compensate such Buyer (or such controlling corporation) for any increase in the amount of capital and reduced rate of return which Buyer reasonably determines to be allocable to the existence of any obligations of the Buyer hereunder or to maintaining any Transactions hereunder. A certificate of a Buyer as to the amount of such compensation, prepared in good faith and in reasonable detail by the Buyer and submitted to the Seller, shall be conclusive and binding for all purposes absent manifest error.

6.6.       Eligible Loans Report . In the discretion of the Agent or Required Buyers if it or they reasonably determine that market conditions warrant (except that the Agent shall have no obligation to make such determination more frequently than once per day), the Agent may request that the Custodian: (a) make a determination of the aggregate Market Values for the Purchased Loans (which may include the Purchase Value of any Mortgage Loans purchased on that day) by summing the values of the individual Purchased Loans as reported on (and recorded by the Custodian from) the Mortgage Loan Transmission Files, valuing at zero Purchased Loans for which the Custodian has current actual knowledge that a Disqualifier exists; and (b) issue and provide a copy to the Agent and the Seller of a statement of the value of the Purchased Loans as so determined.

6.7.       Provisions Relating to Daily Adjusting LIBOR Rate .

 (a)      If the Agent or the Required Buyers (after consultation with the Agent) shall determine in good faith that, (a) it is or they are unable to determine or ascertain the Daily Adjusting LIBOR Rate, or (b) by reason of circumstances affecting the foreign exchange and interbank markets generally, deposits in eurodollars in the applicable amounts or for the relative maturities are not being offered to Agent or such Buyers, or (c) the Daily Adjusting LIBOR Rate will not accurately or fairly cover or reflect the cost of making, maintaining or funding any Transaction based upon the Daily Adjusting

 

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LIBOR Rate, then Agent shall forthwith give notice thereof to the Seller.   Thereafter, until Agent notifies the Seller that such conditions or circumstances no longer exist, the Prime Referenced Rate shall be the applicable interest rate for all Transactions during such period of time, and each Transaction which bears interest at or by reference to the Daily Adjusting LIBOR Rate shall automatically be converted into an Advance which bears interest at or by reference to the Daily Adjusting LIBOR Rate.

 (b)      If, after the date of this Agreement, the adoption or introduction of, or any change in, any applicable law, rule or regulation or in the interpretation or administration thereof by any governmental authority charged with the interpretation or administration thereof, or compliance by any of the Buyers (or any of their respective LIBOR Lending Offices) with any request or directive (whether or not having the force of law) of any such authority, shall make it unlawful or impossible for any of the Buyers (or any of their respective LIBOR Lending Offices) to honor its obligations hereunder to make or maintain any Transaction which bears interest at or by reference to the Daily Adjusting LIBOR Rate, such Buyer shall give notice thereof to the Seller and the Agent. Thereafter, until such Buyer notifies the Seller that such conditions or circumstances no longer exist, the Prime Referenced Rate shall be the applicable interest rate for all Transactions hereunder during such period of time, and if any of the Buyers may not lawfully continue to maintain any existing Transaction which bears interest at or by reference to the Daily Adjusting LIBOR Rate, the applicable Transaction shall immediately be converted to an Advance which bears interest at or by reference to the Prime Referenced Rate. For purposes of this Section, a change in law, rule, regulation, interpretation or administration shall include, without limitation, any change made or which becomes effective on the basis of a law, rule, regulation, interpretation or administration presently in force, the effective date of which change is delayed by the terms of such law, rule, regulation, interpretation or administration.

7        Taxes.

7.1.       Payments to be Free of Taxes; Withholding . Any and all payments by the Seller under or in respect of this Agreement or any other Repurchase Documents to which the Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any and all present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities (including penalties, interest and additions to tax) with respect thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any taxation authority or other Governmental Authority (collectively, “ Taxes ”), unless required by any Legal Requirement. If the Seller shall be required under any applicable Legal Requirement to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Repurchase Documents to the Agent (for the account of the Buyers), (a) the Seller shall make all such deductions and withholdings in respect of Taxes, (b) the Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Legal Requirement and (c) the sum payable by the Seller shall be increased as may be necessary so that after the Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 7 ) each Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made in respect of

 

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Non-excluded Taxes. For purposes of this Agreement the term “ Non-excluded Taxes ” means Taxes other than, in the case of any Person, Taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the laws of which such Person is organized or of its applicable lending office, or any political subdivision thereof.

7.2.       Other Taxes . In addition, the Seller hereby agrees to pay any present or future stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges or levies (including any interest or penalties arising in connection therewith) that arise from any payment made under or in respect of this Agreement or any other Repurchase Document or from the execution, delivery or registration of, any performance under, or otherwise with respect to, this Agreement or any other Repurchase Documents (collectively, “ Other Taxes ”).

7.3.       Taxes Indemnity . The Seller hereby agrees to indemnify the Buyers and the Agent for, and to hold each of them harmless against, the full amount of Non-excluded Taxes and Other Taxes, and the full amount of Taxes (other than Taxes that are imposed on its overall net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the laws of which such Person is organized or of its applicable lending office, or any political subdivision thereof) of any kind imposed by any jurisdiction on amounts payable under this Section 7 imposed on or paid by the Buyers or the Agent and any liability (including penalties, additions to tax, interest and expenses) arising therefrom or with respect thereto. The indemnity by the Seller provided for in this Section 7.3 shall apply and be made whether or not the Non-excluded Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by the Seller under the indemnity set forth in this Section 7.3 shall be paid within fifteen (15) days from the date on which the Agent makes written demand therefor.

7.4.       Receipt . Within thirty (30) days after the date of any payment of Taxes, the Seller (or any Person making such payment on behalf of the Seller) shall furnish to the Agent for each Buyer’s account a certified copy of the original official receipt evidencing payment thereof.

7.5.       Non-Exempt Buyer . For purposes of this Section 7.5 , the terms “United States” and “United States person” shall have the meanings specified in Section 7701 of the Internal Revenue Code. Each Buyer (including, for avoidance of doubt, any assignee, successor or participant) that either (x) is not incorporated under the laws of the United States, any State thereof or the District of Columbia or (y) whose name does not include “Incorporated”, “Inc.”, “Corporation”, “Corp.”, “P.C.”, “insurance company” or “assurance company” (a “ Non-Exempt Buyer ”) shall deliver or cause to be delivered to the Agent two originals of each of the following properly completed and duly executed documents:

 (a)      in the case of a Non-Exempt Buyer that is not a United States person, (i) a complete and executed (A) U.S. Internal Revenue Form W-8BEN with Part II completed in which the Buyer claims the benefits of a tax treaty with the United States providing for a zero or reduced rate of withholding (or any successor forms thereto), including all appropriate attachments or (B) U.S. Internal Revenue Service Form W-8ECI (or any successor forms thereto) and (ii) if such Non-Exempt Buyer is treated as a corporation for United States federal tax purposes, a certificate substantially in the form of Exhibit D (a “ Corporation Tax Treatment Certificate ”); or

 

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 (b)      in the case of an individual, (i) a complete and executed U.S. Internal Revenue Service Form W-8BEN (or any successor forms thereto) and a Corporation Tax Treatment Certificate or (ii) a complete and executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto); or

 (c)      in the case of a Non-Exempt Buyer that is organized under the laws of the United States, any State thereof, or the District of Columbia, (i) a complete and executed U.S. Internal Revenue Service Form W-9 (or any successor forms thereto), including all appropriate attachments, and (ii) if such Non-Exempt Buyer is treated as a corporation for United States federal tax purposes, a Corporation Tax Treatment Certificate; or

 (d)      in the case of a Non-Exempt Buyer that (i) is not organized under the laws of the United States, any State thereof, or the District of Columbia and (ii) is treated as a corporation for U. S. federal income tax purposes, a complete and executed U.S. Internal Revenue Service Form W-8BEN claiming a zero rate of withholding (or any successor forms thereto) and a Corporation Tax Treatment Certificate; or

 (e)      in the case of a Non-Exempt Buyer that (i) is treated for U.S. federal income tax purposes as a partnership or other non-corporate entity, and (ii) is not organized under the laws of the United States, any State thereof, or the District of Columbia, (A)(1) a complete and executed U.S. Internal Revenue Service Form W-8IMY (or any successor forms thereto) (including all required documents and attachments) and (2) a Corporation Tax Treatment Certificate, and (ii) without duplication, with respect to each of its beneficial owners and the beneficial owners of such beneficial owners looking through chains of owners to individuals or entities that are treated as corporations for U.S. federal income tax purposes (all such owners, “ Beneficial Owners ”), the documents that would be required by this Section 7.5 with respect to each such Beneficial Owner if such Beneficial Owner were a Buyer, provided that no such documents will be required with respect to a Beneficial Owner to the extent the actual Buyer is determined to be in compliance with the requirements for certification on behalf of its Beneficial Owner as may be provided in applicable U.S. Treasury regulations, or the requirements of this Section 7.5 are otherwise determined to be unnecessary, all such determinations under this Section 7.5 to be made in the sole discretion of the Seller, provided that each such Buyer shall be provided an opportunity to establish such compliance as reasonable; or

 (f)      in the case of a Non-Exempt Buyer that is disregarded for U.S. federal income tax purposes, the document that would be required by this Section 7.5 with respect to its Beneficial Owner if such Beneficial Owner were a Buyer; or

 (g)      in the case of a Non-Exempt Buyer that (i) is not a United States person and (ii) is acting in the capacity as an “intermediary” (as defined in U.S. Treasury regulations), (A)(1) a U.S. Internal Revenue Service Form W-8IMY (or any successor form thereto) (including all required documents and attachments) and (2) a Corporation Tax Treatment Certificate, and (B) if the intermediary is a “non-qualified intermediary” (as defined in U.S. Treasury regulations), from each person upon whose behalf the “non-qualified intermediary” is acting the documents that would be required by this Section 7.5 with respect to each such person if each such person were a Buyer.

 

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If the forms referred to in this Section 7.5 that are provided by a Buyer at the time such Buyer first becomes a party to this Agreement, a successor to a Buyer or, with respect to a permitted assignment of or a grant of a participation in the interests of a Buyer hereunder, the effective date thereof, indicate a United States interest withholding tax rate in excess of zero, withholding tax at such rate shall be treated as Taxes other than Non-excluded Taxes (“ Excluded Taxes ”) and shall not qualify as Non-Excluded Taxes unless and until such Buyer provides the appropriate form certifying that a lesser rate applies, whereupon withholding tax at such lesser rate shall be considered Excluded Taxes solely for the periods governed by such form. If, however, on the date a Person becomes an assignee, successor or participant to this Agreement, the Buyer transferor was entitled to indemnification or additional amounts under this Section 7 , then the Buyer assignee, successor or participant shall be entitled to indemnification or additional amounts to the extent (and only to the extent), that the Buyer transferor was entitled to such indemnification or additional amounts for Non-excluded Taxes, and the Buyer assignee, successor or participant shall be entitled to additional indemnification or additional amounts for any other or additional Non-excluded Taxes.

7.6.       If Buyer Fails to Provide Form . For any period with respect to which a Buyer required to do so has failed to provide the Seller with the appropriate form, certificate or other document described in Section 7.5 (other than (a) if such failure is due to a change in any applicable Legal Requirement, or in the interpretation or application thereof, occurring after the date on which a form, certificate or other document originally was required to be provided, (b) if such form, certificate or other document otherwise is not required under Section 7.5 or (c) if it is legally inadvisable or otherwise commercially disadvantageous for such Buyer to deliver such form, certificate or other document), such Buyer shall not be entitled to indemnification or additional amounts under Section 7.2 or Section 7.3 with respect to Non-excluded Taxes imposed by the United States by reason of such failure; provided that should a Buyer become subject to Non-excluded Taxes because of its failure to deliver a form, certificate or other document required hereunder, the Seller shall take such steps as such Buyer shall reasonably request, to assist such Buyer in recovering such Non-excluded Taxes.

7.7.       Refunds . If the Agent or any Buyer, in its sole opinion, determines that it has finally and irrevocably received or been granted a refund in respect of any Taxes paid as to which indemnification has been paid by the Seller pursuant to this Section, it shall promptly remit such refund, net of all reasonable out of pocket costs and expenses, to the Seller; provided, that the Seller agrees to promptly return any such refund to the Agent or such Buyer, as applicable, if such person is required to repay such refund to the relevant taxing authority. Nothing contained herein shall impose an obligation on the Agent or any Buyer to apply for any such refund.

7.8.       Survival . Without prejudice to the survival of any other agreement of the Seller hereunder, the agreements and obligations of the Seller contained in this Section 7 shall survive the termination of this Agreement. Nothing contained in this Section 7 shall require the Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.

 

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8        Income and Escrow Payments; Control.

8.1.       Income and Escrow Payments . Notwithstanding that the Buyers, the Agent and the Seller intend that the Transactions be sales to the Buyers of the Purchased Loans, where a particular Transaction’s term extends over an Income payment date on the Purchased Loans subject to that Transaction, all payments and distributions, whether in cash or in kind, made on or with respect to the Purchased Loans shall be paid directly to the Seller or its designee by the relevant Customer, and the Agent (and the Buyers) shall have no obligation to collect or apply any Income to prevent or reduce any Margin Deficit, unless the Seller (a) arranges for such Income to be paid to the Agent (for Pro Rata distribution to the Buyers), (b) requests that the Agent apply such Income when received against the Seller’s Margin Deficit(s) and (c) concurrently transfers to the Agent either (i) cash or (ii) at the Agent’s option and with the Agent’s written approval, Additional Purchased Loans, sufficient to eliminate such Margin Deficit. Amounts paid to the Seller by the relevant Customer shall be deposited by the Seller into the Income Account within two (2) Business Days of receipt by the Seller and, as to amounts so paid to the Seller for escrow payments, into the Escrow Account. The Income Account and the Escrow Account shall be maintained by the Seller with a bank reasonably satisfactory to the Agent and shall be subject to the control of the Agent. The Income Account and Escrow Account may be interest bearing accounts if allowed or required by applicable law. At all times, other than during the existence of an Event of Default, the Seller may have full use of all Income and amounts on deposit in the Income Account, subject to the provisions of Section 8.2 .

8.2.       Income and Escrow Accounts . Other than during the existence of an Event of Default and so long as the Seller is also the Servicer, the Seller shall make payments from the Escrow Account of all appropriate amounts payable with respect to each Purchased Loan for taxes, insurance and other purposes for which the funds are paid into the Escrow Account. Subject to Section 8.3 , amounts on deposit in the Income Account shall be used by the Seller to pay its fees as Servicer while it serves in such capacity, and may be used to pay to the Agent amounts due under this Agreement for Margin Deficit or Price Differential and for any other lawful purpose.

8.3.       Income and Escrow Accounts after Default . Upon the occurrence and during the continuation of an Event of Default, the Seller shall have no right to direct withdrawal or application of funds in the Income Account and the Escrow Account unless authorized to do so in writing by the Agent. The Agent may cause all amounts on deposit in the Income Account to be paid to it or its designee for application as provided in Section 18.4 . The Agent or its designee shall direct payments from the Escrow Account for the purposes for which such funds are deposited into the Escrow Account and shall comply with all Legal Requirements applicable to the operation of the Income Account and the Escrow Account, including any Agency guidelines with respect thereto.

9        Facility Fee; Agent’s Fee.

9.1.       Facility Fee . The Seller agrees to pay to the Agent (for Pro Rata distribution to the Buyers) a facility fee (the “ Facility Fee ”) in an amount equal to the sum of one quarter of one percent (0.25%) of the Maximum Aggregate Commitment. The Facility Fee shall be payable

 

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concurrently with the execution hereof, and shall be deemed fully earned upon receipt by Agent. The Facility Fee is compensation to the Buyers for committing to make funds available for revolving purchases of Eligible Loans on the terms and subject to the conditions of this Agreement, and are not compensation for the use or forbearance or detention of money. The calculation by the Agent of the amount of the Facility Fee shall be conclusive and binding absent manifest error.

9.2.       Agent’s Fee . As set forth in the Fee Letter.

10        Security Interest; License.

10.1.     Intent of the Parties . The parties intend that all Transactions hereunder be sales and purchases (other than for accounting and tax purposes) and not loans; nonetheless, as a security agreement under the UCC and as a security agreement or other arrangement or other credit enhancement related to this Agreement and transactions hereunder as provided for in Section 101(47) (A)(v) of the Bankruptcy Code, the Seller hereby pledges to the Agent for the benefit of the Buyers as security for the performance by the Seller of the Obligations and hereby grants, assigns and pledges to the Agent for the benefit of the Buyers a fully perfected first priority security interest in all of the following, whether now owned or hereafter acquired, wherever located (the “Collateral”):

 

(i)      all Purchased Loans Support;

(ii)     all of the Seller’s right, title and interest in all Mortgaged Premises related to the Purchased Loans;

(iii)    all rights to deliver Purchased Loans to investors and other purchasers and all proceeds resulting from the disposition of Purchased Loans pursuant thereto, including the Seller’s right and entitlement to receive the entire purchase price paid for Purchased Loans sold;

(iv)    all Hedge Agreements relating to or constituting any and all of the foregoing or relating to the Obligations, including all rights to payment arising under such Hedge Agreements;

 

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(v)      all Servicing Rights and Servicing Records in respect of any of the Purchased Loans; and

(vi)     all of the Seller’s rights now or hereafter existing in, to or under any MBS secured by, created from or representing any interest in any of the Purchased Loans, whether now owned or hereafter acquired by the Seller, and whether such MBS are evidenced by book entry or certificate (the Buyers’ Agent’s ownership interest and security interest in each MBS created from, based on or backed by Purchased Loans shall automatically exist in, attach to, cover and affect all of the Seller’s right, title and interest in that MBS when issued and its proceeds and the Buyers’ Agent’s ownership interest and security interest in the Purchased Loans from which such MBS was so created shall automatically terminate and be released when such MBS is issued, subject to automatic reinstatement if such issuance is voided or set aside by any court of competent jurisdiction), all right to the payment of monies and non-cash distributions on account of any of such MBS and all new, substituted and additional securities at any time issued with respect thereto;

 

(c)      Related

Accounts, Payment Intangibles, General Intangibles:

(i)      all accounts, payment intangibles, general intangibles, documents (including documents of title), chattel paper (including without limit electronic chattel paper and tangible chattel paper), contract rights and proceeds, whether now or hereafter existing (including all of the Seller’s present and future rights to have and receive interest and other compensation, whether or not yet accrued, earned, due or payable, and all other rights to payment), under or arising out of or relating to the Purchased Loans;

(ii)     all instruments, documents or writings evidencing any such accounts, payment intangibles, general intangibles, instruments, chattel paper, contra