UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 23, 2013 (December 17, 2013)
New Residential Investment Corp.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-35777 | 45-3449660 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification Number) |
|
1345 Avenue of the Americas, 46th Floor New York, New York |
10105 | |
| (Address of principal executive offices) | (Zip code) |
212-479-3150
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
| Item 1.01 | Entry into a Material Definitive Agreement. |
On December 17, 2013, Advance Purchaser LLC, a joint venture entity (the “Buyer”) capitalized by New Residential Investment Corp. (“New Residential”) and certain third-party co-investors, entered into a Master Servicing Rights Purchase Agreement and three related Sale Supplements (collectively, the “Purchase Agreement”) with Nationstar Mortgage LLC (“Nationstar”). A wholly owned subsidiary of New Residential is the managing member of the Buyer.
Pursuant to the Purchase Agreement, the Buyer agreed to:
| • | acquire from Nationstar the right to repayment with respect to approximately $3.3 billion of servicer advances (the “Servicer Advances”) currently outstanding on three pools (the “Pools”) of non-Agency mortgage loans with an aggregate unpaid principal balance (“UPB”) of approximately $58 billion as of November 30, 2013; |
| • | acquire from Nationstar the right to receive the basic fee component (the “Basic Fee”) of the mortgage servicing right (the “MSR”) on the Pools, provided that the Buyer will remit a portion of the Basic Fee to Nationstar in exchange for Nationstar continuing to service the Pools, as described below in more detail; and |
| • | purchase all future Servicer Advances on the Pools (together with the acquisition of the currently outstanding Servicer Advances and the Basic Fee, the “December Transaction”). |
In addition, under the Purchase Agreement the Buyer has the right, but not the obligation (the “Call Right”), to purchase up to $3.1 billion of outstanding Servicer Advances and the related Basic Fees on Nationstar’s two other pools of non-Agency loans in a transaction (the “Follow-On Transaction”) on substantially similar terms as the December Transaction, subject to the receipt of applicable consents. The Call Right expires on June 30, 2014. There can be no assurance that the Call Right will be exercised.
As background, an MSR provides a mortgage servicer with the right to service a pool of mortgages in exchange for a portion of the interest payments made on the underlying mortgages. This amount is expressed as a percentage of the UPB of the mortgages, and typically ranges from 25 to 50 basis points. The economics of the MSR are divided into (i) a “basic fee,” which is the amount of compensation for the performance of servicing duties, including advance obligations, and (ii) the remainder, or the “Excess MSR.” The Pools are the pools identified in New Residential’s filings with the Securities and Exchange Commission as Pool 10 (a portion of which is excluded from the December Transaction and is expected to be included in the Follow-On Transaction), Pool 17 and Pool 18, and the pools subject to the Follow-On Transaction are the pools identified in New Residential’s filings with the Securities and Exchange Commission as Pool 5, the portion of Pool 10 not included in the December Transaction, and Pool 12. New Residential previously acquired an interest in the Excess MSRs related to each of these pools.
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The purchase price for the December Transaction is approximately $3.3 billion, which is subject to adjustment based on changes in the calculation of the UPB of the Pools or the Servicer Advances. The Buyer will fund approximately $384 million of the purchase price (or $440 million including working capital) with equity and the remainder with debt incurred by certain wholly owned subsidiaries of the Buyer that have become the borrowers under the financing for the Servicer Advances, as described in more detail below under “Summary of Advance Facilities.”
The completion of the December Transaction will occur in stages. On December 17, 2013, the Buyer completed the purchase of approximately $2.4 billion of Servicer Advances and Basic Fees on approximately $43.4 billion UPB occurred (the “First Closing”). The closing for the purchase of the remaining $908 million of Servicer Advances and Basic Fees on approximately $14.3 billion UPB is expected to occur on or prior to January 31, 2014, subject to certain conditions.
As of the First Closing, New Residential owned approximately 37% of the Buyer, and the third-party co-investors owned the remainder. New Residential expects an additional co-investor to be admitted as a member of the Buyer, and the respective ownership percentages of New Residential and the co-investors will change in connection with the remaining closings of the December Transaction and, if completed, the Follow-On Transaction. Each member has the right, but not the obligation, to make pro rata capital contributions in excess of its stated commitment, provided that any member’s decision not to fund any such capital contribution will result in a reduction of its membership percentage.
Servicing Fees
Pursuant to the Purchase Agreement, Buyer will pay Nationstar a monthly servicing fee representing a portion of the Basic Fee, and, subject to the Buyer achieving a 14% return (the “Targeted Return”) on invested capital (as such term is defined in the Purchase Agreement), additional performance fees representing an additional portion of the Basic Fee. The fee arrangement allocates the economics of the Basic Fees (which, on a weighted average basis across the Pools, is 22.4 basis points) as follows:
| • | Approximately 2 basis points of the Basic Fee (the “Servicing Fee”) are paid to Nationstar; |
| • | Up to 15.4 basis points of the Basic Fee (the “Retained Amount”) is retained in full by the Buyer to the extent necessary to achieve the Targeted Return, and 50% of the portion of the Retained Amount that is not required to achieve the Targeted Return is paid to Nationstar; and |
| • | Up to 5 basis points of the Basic Fee (the “Performance Fee”) is retained in full by the Buyer to the extent necessary to achieve the Targeted Return, and any portion of the Performance Fee that is not required to achieve the Targeted Return is paid entirely to Nationstar. |
Nationstar is entitled to retain investment income on servicing accounts, prepayment interest excess and all ancillary income in connection with servicing the mortgage loans.
The foregoing description of the Purchase Agreement is not complete and is qualified in its entirety by reference to the Purchase Agreement (including the related Sale Supplements), copies of which are attached hereto as Exhibits 2.1, 2.2, 2.3 and 2.4, respectively, and which are incorporated herein by reference.
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Summary of the Advance Facilities
Special purpose subsidiaries of Nationstar previously issued approximately $2.13 billion of limited recourse variable funding notes (the “Notes”) to finance the advances funded or acquired by Nationstar. The Notes were issued through two wholly owned special purpose subsidiaries (the “Issuers”) pursuant to two servicer advance facilities (the “Barclays Facility” and the “CS Facility” and, collectively, the “Facilities”). The Notes bear interest equal to the sum of (i) a floating rate index rate equal to one-month LIBOR or a cost of funds rate, as applicable, and (ii) a margin ranging from 2.0% to 2.6%.
In connection with the transaction, Buyer purchased the equity of wholly owned special purpose subsidiaries of Nationstar (the “Depositors”) that own the Issuers. Accordingly, on December 17, 2013, Buyer and Nationstar amended and restated the transaction documents for each Facility, including:
| • | an amended and restated indenture (the “Barclays Facility Base Indenture”) between NRZ Servicer Advance Receivables Trust BC (the “Barclays Facility Issuer”), Wells Fargo Bank, N.A., as indenture trustee (the “Barclays Facility Indenture Trustee”), Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Barclays Bank PLC, as administrative agent; |
| • | an amended and restated series 2013-VF1 indenture supplement to the Barclays Facility Base Indenture between the Barclays Facility Issuer, the Barclays Facility Indenture Trustee, Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Barclays Bank PLC, as administrative agent; |
| • | an amended and restated receivables pooling agreement between the Barclays Facility Issuer and NRZ Servicer Advance Facility Transferor BC, LLC (the “Barclays Facility Depositor”); |
| • | an amended and restated receivables sale agreement between the Barclays Facility Depositor, the Buyer and Nationstar; |
| • | an amended and restated indenture (the “CS Facility Base Indenture”) between NRZ Servicer Advance Receivables Trust CS (the “CS Facility Issuer”), Wells Fargo Bank, N.A., as indenture trustee (the “CS Facility Indenture Trustee”), Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Credit Suisse AG, New York Branch, Natixis, New York Branch, and Morgan Stanley Bank, N.A., each as an administrative agent; |
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| • | an amended and restated series 2013-VF1 indenture supplement to the CS Facility Base Indenture between the CS Facility Issuer, the CS Facility Indenture Trustee, Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Credit Suisse AG, New York Branch, as administrative agent; |
| • | an amended and restated series 2013-VF2 indenture supplement to the CS Facility Base Indenture between the CS Facility Issuer, the CS Facility Indenture Trustee, Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Natixis, New York Branch, as administrative agent; |
| • | an amended and restated series 2013-VF3 indenture supplement to the CS Facility Base Indenture between the CS Facility Issuer, the CS Facility Indenture Trustee, Nationstar, as servicer (prior to the transfer of the related MSRs) and subservicer (following transfer of the related MSRs), Buyer, as administrator and as servicer (following transfer of the related MSRs), and Morgan Stanley Bank, N.A., as administrative agent; |
| • | an amended and restated receivables pooling agreement between the CS Facility Issuer and NRZ Servicer Advance Facility Transferor CS, LLC (the “CS Facility Depositor”); and |
| • | an amended and restated receivables sale agreement between the CS Facility Depositor, the Buyer and Nationstar. |
The Notes are secured by each Issuer’s respective assets, including, among other things, the Servicer Advances and a general reserve account. Pursuant to the servicer advance sale agreements, Nationstar will continue to sell new Servicer Advances related to the Pools to the Buyer, and Buyer will sell such new Servicer Advances to the Depositors. Buyer is required to purchase Servicer Advances arising from advances made by Nationstar pursuant to the related servicing agreements. Immediately following purchases under the receivables sale agreements, the Depositors will continue to sell Servicer Advances to the Issuers pursuant to the receivables pooling agreements.
Each of the Depositors and Issuers (collectively, the “Financing Facility SPVs”) is structured as a bankruptcy remote special purpose entity. Each Financing Facility SPV is the sole owner of its respective assets. Creditors of the Financing Facility SPVs (including the holders of the related Notes) have no recourse to any assets or revenues of Nationstar or Buyer other than to the limited extent contemplated by the documents related to such financing facilities for breaches of representations and warranties. Creditors of Nationstar and/or New Residential do not have recourse to any assets or revenues of the Financing Facility SPVs.
Additional borrowing is permitted on the Notes subject to a maximum balance ($2.9 billion under the CS Facility and $1.0 billion under the Barclays Facility) and certain funding conditions, such as the
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accuracy of representations and warranties, the absence of a default and the satisfaction of a collateral test that requires the sum of eligible servicer advances transferred to the Issuer multiplied by an advance rate plus all collections in Issuer accounts to be greater than or equal to the aggregate outstanding principal balance of the Notes. Generally, during the revolving period, payments to noteholders will consist of payments of interest, but excess cash flow from paid servicer advances may be used to fund new servicer advances.
The amount available under each Facility to purchase new servicer advances is determined from time to time based on the advance borrowing rate applicable to each type of servicer advance in respect of each class of Notes, available funds of the Issuer and the available undrawn amount of the Notes. The applicable advance borrowing rate varies based on the outstanding principal balance of each class of the Notes, the type of servicer advance and the occurrence of certain specified events.
Following the revolving period, principal will be paid on the Notes to the extent of available funds and in accordance with the priorities of payments set forth in the related transaction documents. The revolving periods for the Barclays Facility and the CS Facility end on the earlier of (i) the stated maturity date, which is September 18, 2014 in the case of the Barclays Facility and September 26, 2014 in the case of the CS Facility, and (ii) the occurrence of an early amortization event, a target amortization event or an event of default. Upon the occurrence of an early amortization event or a target amortization event, there is either an interest rate increase on the Notes, a rapid amortization of the Notes or an acceleration of principal repayment, or all of the foregoing.
The early amortization and target amortization events under the Facilities include: (i) the occurrence of an event of default under the transaction documents, (ii) failure to satisfy an interest coverage test, (iii) the occurrence of any servicer default or termination event for pooling and servicing agreements representing 15% or more (by mortgage loan balance as of the date of termination) of all the pooling and servicing agreements related to the Basic Fees, subject to certain exceptions; (iv) failure to satisfy a collateral performance test measuring the ratio of collected advance reimbursements to the balance of Servicer Advances; (v) failure to satisfy minimum tangible net worth requirements for Nationstar and the Buyer; (vi) failure to satisfy minimum liquidity requirements for Nationstar and the Buyer, (vii) failure to satisfy leverage tests for Nationstar and, in the case of the Barclays Facility only, the Buyer; (viii) a change of control of the Buyer; (ix) certain judgments against the Depositors, Issuers or Buyer in excess of certain thresholds; (x) payment default under, or an acceleration of, other debt of the Buyer; (xi) failure to deliver certain reports; and (xii) material breaches of any of the transaction documents.
Each Facility contains customary representations and warranties, as well as affirmative and negative covenants. Affirmative covenants include, among others, reporting requirements, provision of notices of material events, maintenance of existence, maintenance of books and records, compliance with laws, compliance with covenants under the designated servicing agreements and maintaining certain servicing standards with respect to the Servicer Advances and the related mortgage loans. Negative covenants include, among others, limitations on amendments to the designated servicing agreements and limitations on amendments to the procedures and methodology for reimbursing the Servicer Advances or determining that Servicer Advances have become non-recoverable.
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The Facilities also contain customary events of default, including, among others, (i) non-payment of principal, interest or other amounts when due, (ii) insolvency of Nationstar, the Buyer, the Issuers or Depositors; (iii) the Issuer becoming subject to registration as an “investment company” within the meaning of the Investment Company Act of 1940, as amended; (iv) Nationstar or the Buyer fail to comply with the deposit and remittance requirements set forth in any pooling and servicing agreement or the Facilities; and (v) Nationstar’s failure to make an indemnity payment after giving effect to any applicable grace period. Upon the occurrence and during the continuance of an event of default under each of the Facilities, the requisite percentage of the related noteholders may declare the Notes and all other obligations of the applicable Issuer immediately due and payable and may terminate the commitments. A bankruptcy event of default causes such obligations automatically to become immediately due and payable and the commitments automatically to terminate.
The foregoing summary of the agreements is not complete and is subject to and qualified in its entirety by reference to the full text of such agreements, which are attached to this Form 8-K as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 10.1 and 10.2, respectively. In accordance with Instruction 2 to Item 601 of Regulation S-K, New Residential has omitted the amended and restated pooling agreement and the amended and restated receivables sale agreement, each relating to the CS Facility, because these agreements are substantially identical in all material respects, except as to the parties thereto, to the amended and restated pooling agreement and the amended and restated receivables sale agreement, each relating to the Barclays Facility, which are attached as Exhibits 10.1 and 10.2.
Nationstar is majority owned by Fortress funds managed by an affiliate of New Residential’s manager. Barclays, Morgan Stanley, Natixis and Credit Suisse and certain of their respective affiliates have from time to time performed various financial advisory, commercial banking, investment banking and other related services for New Residential and its affiliates for which they have received customary compensation, and they may continue to do so in the future.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 is incorporated herein by reference into this Item 2.03.
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| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits |
|
Exhibit
|
Description |
|
| 2.1 | Master Servicing Rights Purchase Agreement between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
| 2.2 | Sale Supplement (Shuttle 1) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
| 2.3 | Sale Supplement (Shuttle 2) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
| 2.4 | Sale Supplement (First Tennessee) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
| 4.1 | Amended and Restated Indenture among NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator, as owner of the rights to the servicing rights and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Barclays Bank PLC, as administrative agent, dated as of December 17, 2013 | |
| 4.2 | Series 2013-VF1 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Barclays Bank PLC, as administrative agent, dated as of December 17, 2013 | |
| 4.3 | Amended and Restated Indenture among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator, as owner of the rights to the servicing rights and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Credit Suisse AG, New York Branch, as administrative agent, dated as of December 17, 2013 | |
| 4.4 | Series 2013-VF1 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Credit Suisse AG, New York Branch, as administrative agent, dated as of December 17, 2013 | |
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| 4.5 | Series 2013-VF2 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Natixis, New York Branch, as administrative agent, dated as of December 17, 2013 | |
| 4.6 | Series 2013-VF3 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Morgan Stanley Bank, N.A., as administrative agent, dated as of December 17, 2013 | |
| 10.1 | Amended and Restated Receivables Sale Agreement among Nationstar Mortgage LLC, as initial receivables seller and as servicer, Advance Purchaser LLC, as receivables seller and as servicer, and NRZ Servicer Advance Facility Transferor BC, LLC, as depositor, dated as of December 17, 2013 | |
| 10.2 | Amended and Restated Receivables Pooling Agreement between NRZ Servicer Advance Facility Transferor BC, LLC, as depositor, and NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, dated as of December 17, 2013 | |
The following agreements are being omitted in reliance on Instruction 2 to Item 601 of Regulation S-K, as discussed in Item 1.01 above:
| • | Amended and Restated Receivables Sale Agreement among Nationstar Mortgage LLC, as initial receivables seller and as servicer, Advance Purchaser LLC, as receivables seller and as servicer, and NRZ Servicer Advance Facility Transferor CS, LLC (f/k/a Nationstar Servicer Advance Facility Transferor, LLC 2013-CS), as depositor, dated as of December 17, 2013 |
| • | Amended and Restated Receivables Pooling Agreement between NRZ Servicer Advance Facility Transferor CS, LLC, as depositor, and NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, dated as of December 17, 2013 |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| NEW RESIDENTIAL INVESTMENT CORP. | ||||||
| Date: December 23, 2013 | By: |
/s/ Susan Givens |
||||
| Susan Givens | ||||||
| Chief Financial Officer | ||||||
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EXHIBIT INDEX
|
Exhibit
|
Description |
|
|
2.1 |
Master Servicing Rights Purchase Agreement between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
|
2.2 |
Sale Supplement (Shuttle 1) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
|
2.3 |
Sale Supplement (Shuttle 2) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
|
2.4 |
Sale Supplement (First Tennessee) between Nationstar Mortgage LLC and Advance Purchaser LLC, dated as of December 17, 2013 | |
|
4.1 |
Amended and Restated Indenture among NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator, as owner of the rights to the servicing rights and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Barclays Bank PLC, as administrative agent, dated as of December 17, 2013 | |
|
4.2 |
Series 2013-VF1 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Barclays Bank PLC, as administrative agent, dated as of December 17, 2013 | |
|
4.3 |
Amended and Restated Indenture among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator, as owner of the rights to the servicing rights and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Credit Suisse AG, New York Branch, as administrative agent, dated as of December 17, 2013 | |
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|
4.4 |
Series 2013-VF1 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Credit Suisse AG, New York Branch, as administrative agent, dated as of December 17, 2013 | |
|
4.5 |
Series 2013-VF2 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Natixis, New York Branch, as administrative agent, dated as of December 17, 2013 | |
|
4.6 |
Series 2013-VF3 Amended and Restated Indenture Supplement among NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Advance Purchaser LLC, as administrator and as servicer, Nationstar Mortgage LLC, as subservicer, and as servicer, and Morgan Stanley Bank, N.A., as administrative agent, dated as of December 17, 2013 | |
|
10.1 |
Amended and Restated Receivables Sale Agreement among Nationstar Mortgage LLC, as initial receivables seller and as servicer, Advance Purchaser LLC, as receivables seller and as servicer, and NRZ Servicer Advance Facility Transferor BC, LLC, as depositor, dated as of December 17, 2013 | |
|
10.2 |
Amended and Restated Receivables Pooling Agreement between NRZ Servicer Advance Facility Transferor BC, LLC, as depositor, and NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), as issuer, dated as of December 17, 2013 | |
The following agreements are being omitted in reliance on Instruction 2 to Item 601 of Regulation S-K, as discussed in Item 1.01 above:
| • | Amended and Restated Receivables Sale Agreement among Nationstar Mortgage LLC, as initial receivables seller and as servicer, Advance Purchaser LLC, as receivables seller and as servicer, and NRZ Servicer Advance Facility Transferor CS, LLC (f/k/a Nationstar Servicer Advance Facility Transferor, LLC 2013-CS), as depositor, dated as of December 17, 2013 |
| • | Amended and Restated Receivables Pooling Agreement between NRZ Servicer Advance Facility Transferor CS, LLC, as depositor, and NRZ Servicer Advance Receivables Trust CS (f/k/a Nationstar Servicer Advance Receivables Trust 2013-CS), as issuer, dated as of December 17, 2013 |
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Exhibit 2.1
EXECUTION COPY
MASTER SERVICING RIGHTS PURCHASE AGREEMENT
dated as of December 17, 2013
between
NATIONSTAR MORTGAGE LLC, as Seller,
and
ADVANCE PURCHASER LLC, as Purchaser
TABLE OF CONTENTS
| Page | ||||||
|
ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTION |
1 | |||||
|
1.1 |
Definitions | 1 | ||||
|
ARTICLE 2 SALES AND CLOSINGS |
10 | |||||
|
2.1 |
Sale Supplements | 10 | ||||
|
2.2 |
Closing Date | 10 | ||||
|
2.3 |
Closing Statement | 10 | ||||
|
2.4 |
Closing | 11 | ||||
|
2.5 |
Post Closing Reconciliation of Purchase Price | 12 | ||||
|
ARTICLE 3 GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER |
13 | |||||
|
3.1 |
Due Organization | 13 | ||||
|
3.2 |
Due Authorization; Binding Effect | 13 | ||||
|
3.3 |
No Conflicts | 13 | ||||
|
3.4 |
Consents | 13 | ||||
|
3.5 |
Litigation | 14 | ||||
|
3.6 |
Licenses | 14 | ||||
|
3.7 |
Bulk Sales | 14 | ||||
|
3.8 |
Broker’s Fees | 14 | ||||
|
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER |
14 | |||||
|
4.1 |
Due Organization | 14 | ||||
|
4.2 |
Due Authorization; Binding Effect | 14 | ||||
|
4.3 |
No Conflicts | 14 | ||||
|
4.4 |
Consents | 15 | ||||
|
4.5 |
Litigation | 15 | ||||
|
4.6 |
Licenses | 15 | ||||
|
4.7 |
Broker’s Fees | 15 | ||||
|
ARTICLE 5 OBLIGATIONS OF PARTIES PRIOR TO AND AFTER A CLOSING DATE |
15 | |||||
|
5.1 |
Conduct of Business | 15 | ||||
|
5.2 |
Regulatory Approvals | 15 | ||||
|
5.3 |
Third Party Consents | 16 | ||||
|
5.4 |
Fees and Expenses | 16 | ||||
|
5.5 |
Public Announcements | 17 | ||||
|
5.6 |
Records relating to Servicer Advances | 17 | ||||
|
5.7 |
Efforts to Consummate; Further Assurances | 17 | ||||
|
5.8 |
Servicing Rights Transition | 18 | ||||
|
5.9 |
MERS | 18 | ||||
|
5.10 |
Custodial Account and Escrow Account Reconciliation | 18 | ||||
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5.11 |
Interest on Related Escrow Accounts | 18 | ||||
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5.12 |
Payment of Certain Servicer Advances | 18 | ||||
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5.13 |
IRS Reporting | 18 | ||||
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5.14 |
Servicer Compliance Reports and Certifications | 19 | ||||
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5.15 |
Solicitation of Customers | 19 | ||||
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ARTICLE 6 CONDITIONS TO CLOSING |
19 | |||||
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6.1 |
Conditions to Obligations of the Parties | 19 | ||||
i
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6.2 |
Conditions to Obligations of Seller | 20 | ||||
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6.3 |
Conditions to Obligations of Purchaser | 20 | ||||
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ARTICLE 7 TERMINATION |
21 | |||||
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7.1 |
Termination | 21 | ||||
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7.2 |
Effect of Termination | 21 | ||||
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ARTICLE 8 MISCELLANEOUS PROVISIONS |
22 | |||||
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8.1 |
Notices | 22 | ||||
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8.2 |
Interpretation | 22 | ||||
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8.3 |
Exhibits and Schedules | 23 | ||||
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8.4 |
Entire Agreement | 23 | ||||
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8.5 |
Amendment; Waiver | 23 | ||||
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8.6 |
Governing Law | 23 | ||||
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8.7 |
Submission to Jurisdiction | 23 | ||||
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8.8 |
Waiver of Jury Trial | 24 | ||||
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8.9 |
No Strict Construction | 24 | ||||
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8.10 |
Severability | 24 | ||||
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8.11 |
Assignment; No Third-Party Beneficiaries | 24 | ||||
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8.12 |
Survival | 24 | ||||
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8.13 |
Specific Performance | 24 | ||||
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8.14 |
Intention of the Parties | 25 | ||||
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8.15 |
Reproduction of Documents | 25 | ||||
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8.16 |
Counterparts | 25 | ||||
ii
MASTER SERVICING RIGHTS PURCHASE AGREEMENT
THIS MASTER SERVICING RIGHTS PURCHASE AGREEMENT, dated as of December 17, 2013 (this “ Agreement ”) is by and between NATIONSTAR MORTGAGE LLC, a Delaware limited liability company (“ Seller ”) and ADVANCE PURCHASER LLC, a Delaware limited liability company (“ Purchaser ”).
RECITALS:
WHEREAS, Seller wishes to sell, assign and transfer certain Servicing Rights (as defined herein) and other related assets to Purchaser from time to time, and Purchaser wishes to purchase such Servicing Rights and other related assets and assume certain specified liabilities relating to such Servicing Rights, all upon the terms and conditions set forth herein and in the related Sale Supplement (as defined herein).
NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Seller and Purchaser agree as follows:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
1.1 Definitions . For purposes of this Agreement, the following capitalized terms shall have the respective meanings set forth or referenced below:
“ Accountant ” shall have the meaning set forth in Section 2.5 .
“ Action ” shall mean any claim, action, suit, arbitration, inquiry, proceeding or investigation by or before any Governmental Authority.
“ Affiliate ” shall mean, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, “ control ” (including, with correlative meanings, the terms “controlling, “controlled by” and “under common control with”), as applied to any Person, means ownership of 25% or more of the outstanding voting securities of such Person.
“ Aggregate Net Specified Amounts ” means, for any month, the sum of the Net Specified Amounts in respect of all Sale Supplements (or, for purposes of the definition of “Retained Amount” any Group of Sale Supplements) in respect of which the related Closing Dates for the underlying Sales have occurred.
“ Agreement ” shall mean this Master Servicing Rights Purchase Agreement, including the exhibits hereto, and, with respect to any Sale, the related Sale Supplement, as each of the foregoing may be amended, modified or supplemented from time to time in accordance with its terms.
“ Ancillary Income ” shall mean, with respect to any Servicing Agreement, any “Ancillary Income” or similar term as defined under any Servicing Agreement, including any and all income, revenue, fees, expenses, charges or other monies that Seller is entitled to receive, collect or retain as servicer pursuant to such Servicing Agreement (other than Servicing Fees, Prepayment Interest Excess and earnings received on amounts on deposit in any Custodial Account or Escrow Account), fees payable to the servicer under HAMP or other governmental programs (including state or local government
programs), late fees, fees and charges for dishonored checks (insufficient funds fees), pay-off fees, assumption fees, BPO fees, commissions and administrative fees on insurance and similar fees and charges collected from or assessed against Mortgagors, in each case to the extent payable to Seller as servicer under the terms of the related Mortgage Loan Documents and such Servicing Agreement.
“ Applicable Law ” shall mean: (i) all applicable laws, statutes, regulations or ordinances in force and as amended from time to time; (ii) the common law as applicable from time to time; (iii) all applicable binding court orders, judgments or decrees; and (iv) all applicable directives, policies, rules or orders; each of (i) through (iv) of any Governmental Authority.
“ Applicable Requirements ” shall mean and include, as of the time of reference, with respect to any Mortgage Loans, all of the following: (a) all contractual obligations of Seller in the Mortgage Loan Documents, in the applicable Servicing Agreements and the applicable Underlying Documents to which Seller is a party or by which Seller is bound or for which it is responsible and (b) all Applicable Laws binding upon Seller in each jurisdiction which is applicable to the context or situation to which the Applicable Requirements apply.
“ Assignment and Assumption Agreement ” shall mean, with respect to a Sale Supplement, any assignment and assumption agreement entered into by Seller and Purchaser in connection with the related Transferred Assets.
“ Business Day ” shall mean any day other than (i) a Saturday or Sunday, or (ii) a day on which banking or savings and loan institutions in the State of Texas or the State of New York are closed.
“ Closing ” shall have the meaning set forth in Section 2.2 .
“ Closing Date ” shall mean, with respect to a Sale, the date specified in the related Sale Supplement as the related “Closing Date”.
“ Closing Statement ” shall, with respect to a Sale, have the meaning specified in the related Sale Supplement.
“ Closing Statement Delivery Date ” shall, with respect to a Sale, have the meaning specified in the related Sale Supplement.
“ Code ” shall mean the Internal Revenue Code of 1986, as amended.
“ Custodial Account ” shall mean (a) each collection, custodial or similar account maintained or previously maintained by Seller pursuant to the Servicing Agreements for the benefits of the applicable trustee and/or the applicable certificateholders and (b) any amounts deposited or maintained therein.
“ Custodial Agreement ” shall mean the agreement or agreements, including the Servicing Agreements, if applicable, governing the retention of the Custodial Files in accordance with Applicable Requirements.
“ Custodial File ” shall mean, with respect to a Mortgage Loan, all of the documents that must be maintained on file with a Custodian under Applicable Requirements.
“ Custodian ” shall mean an entity acting as a mortgage loan document custodian under any Custodial Agreement or any successor in interest to the Custodian.
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“ Cut-off Date ” shall mean, with respect to a Sale Supplement, the “Cut-off Date” as defined in such Sale Supplement.
“ Database ” shall mean all information relating to the Mortgage Loans provided by Seller to Purchaser and contained in Seller’s electronic servicing software system and used by Seller in servicing the Mortgage Loans.
“ DSF ” means right to payment for Servicing Fees under a Servicing Agreement that are accrued and unpaid on the related monthly remittance date following the related due date and/or the right to receive reimbursement for any amounts advanced in respect thereof, net of Excluded Amounts.
“ Enforceability Exceptions ” shall mean limitations on enforcement and other remedies imposed by or arising under or in connection with applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Applicable Laws affecting creditors’ rights generally from time to time in effect or general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing with respect to those jurisdictions that recognize such concepts).
“ Equity Basis ” means, as of any date, the difference between (a) the sum of (i) the aggregate outstanding balance of Servicing Advance Receivables and DSF owned by the Purchaser and its subsidiaries and (ii) any amounts on deposit in reserve accounts in connection with Advance Indebtedness and (b) the principal amount of any Advance Indebtedness. For purposes hereof, “Advance Indebtedness” means any funded principal balance of outstanding indebtedness provided to the Purchaser or any subsidiary thereof by any third-party that is secured or backed by Servicing Advance Receivables and/or DSF.
“ Escrow Accounts ” shall mean, with respect to any Servicing Agreement, the accounts and all funds held or previously held therein by Seller in escrow for the benefit of the related Mortgagors with respect to the Mortgage Loans serviced pursuant to such Servicing Agreement (other than the Custodial Accounts), including, without limitation, all buy-down funds, tax and insurance funds and other escrow and impound amounts (including interest accrued thereon held for the benefit of the Mortgagors).
“ Estimated Purchase Price ” shall mean, with respect to a Sale and the Transferred Assets relating thereto, the estimated Purchase Price payable at the related Closing calculated in accordance with the related Sale Supplement.
“ Excluded Amounts ” shall, in connection with a Sale, have the meaning set forth in the related Sale Supplement.
“ Excluded Liabilities ” shall, in connection with a Sale, have the meaning set forth in the related Sale Supplement.
“ Fee Remittance Date ” means, the 10th day of each calendar month, or if such day is not a Business Day, the prior Business Day, beginning in the month following the date hereof, or such other day as mutually agreed upon by Seller and Purchaser.
“ Foreclosure ” shall mean the process culminating in the acquisition of title to a Mortgaged Property in a foreclosure sale or by a deed in lieu of foreclosure or pursuant to any other comparable procedure allowed under Applicable Requirements.
“ GAAP ” shall mean generally accepted accounting principles in the United States which, unless otherwise indicated or required by accounting practice, are applied on a consistent basis.
3
“ Governmental Authority ” shall mean any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government having authority in the United States, whether federal, state or local.
“ Group ” means, in respect of any Sale Supplement, the “Group” designated therefor in the recitals to such Sale Supplement (or elsewhere in such Sale Supplement).
“ HAMP ” shall mean the Home Affordable Modification Program implemented by the U.S. Department of the Treasury pursuant to Sections 101 and 109 of the Emergency Economic Stabilization Act of 2008, as amended from time to time.
“ Insurer ” shall mean (i) a Person who insures or guarantees all or any portion of the risk of loss on any Mortgage Loan, including without limitation any provider of private mortgage insurance, with respect to any Mortgage Loan or (ii) a Person who insures or guarantees all or any portion of the risk of loss on the securities issued pursuant to a Servicing Agreement or on net interest margin securities representing interests in such securities.
“ Liens ” shall mean, with respect to an asset, any lien, pledge, security interest, mortgage, deed of trust, encumbrance, easement, servitude, encroachment, charge or similar right of any Person other than the owner of the asset of any kind or nature whatsoever against the asset.
“ Loan File ” shall mean all documents, instruments, agreements and records relating to the Mortgage Loans in Seller’s possession or control reasonably necessary to service the Mortgage Loans in accordance with Applicable Requirements, and electronic images of the related Custodial File.
“ Master Servicer ” shall mean with respect to each Servicing Agreement, any entity identified as the “Master Servicer” therein, or any successor thereto.
“ Material Adverse Effect ” shall mean any effect, event, circumstance, development or change, individually or in the aggregate, which has or is reasonably likely to have, a material adverse effect on (i) the Transferred Assets or the interests of Purchaser with respect thereto, (ii) the ability of Seller to consummate the transactions contemplated by this Agreement, any Sale Supplement or the Subservicing Agreement or to perform its obligations hereunder or under any Sale Supplement or the Subservicing Agreement, (iii) the validity or enforceability of this Agreement, any Sale Supplement or the Subservicing Agreement or (iv) Purchaser’s (or its Affiliates’) costs, regulatory capital, taxes or accounting treatment with respect to the Transferred Assets.
“ MERS ” shall mean Mortgage Electronic Registration System, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor thereto.
“ MERS Loan ” shall mean any Mortgage Loan registered on the MERS System.
“ MERS System ” shall mean the mortgage electronic registry system administered by MERS.
“ Mortgage ” shall mean with respect to a Mortgage Loan, a mortgage, deed of trust or other security instrument creating a lien upon real property and any other property described therein which secures a Mortgage Note, together with any assignment, reinstatement, extension, endorsement or modification thereof.
“ Mortgage Escrow Payments ” shall mean the portion, if any, of the Mortgage Loan Payment in connection with a Mortgage Loan that, pursuant to the related Mortgage Loan Documents, must be made by a Mortgagor for deposit in a related Escrow Account for the payment of real estate taxes and assessments, insurance premiums, ground rents and similar items.
4
“ Mortgage Loan ” shall mean, with respect to any Servicing Agreement, any residential mortgage loan or home equity line of credit which is serviced by Seller pursuant to such Servicing Agreement and is identified on a Mortgage Loan Schedule for the Sale Supplement related to such Servicing Agreement.
“ Mortgage Loan Documents ” shall mean with respect to each Mortgage Loan, the documents in the related Custodial File and Loan File.
“ Mortgage Loan Payment ” shall mean, with respect to a Mortgage Loan, the amount of each scheduled installment on such Mortgage Loan, whether for principal, interest, escrow or other purpose, required or permitted to be paid by the Mortgagor in accordance with the terms of the Mortgage Loan Documents.
“ Mortgage Loan Schedule ” shall mean the schedule of Mortgage Loans and REO Properties subject to the applicable Servicing Agreements as of the related Cut-off Date, which schedule shall be delivered in electronic format by Seller to Purchaser and shall include the data fields agreed upon by Seller and Purchaser to the extent applicable with respect to each Mortgage Loan or REO Property.
“ Mortgage Note ” shall mean, with respect to a Mortgage Loan, a promissory note or notes, or other evidence of indebtedness, with respect to such Mortgage Loan secured by a Mortgage or Mortgages, together with any assignment, reinstatement, extension, endorsement or modification thereof.
“ Mortgage Pool ” shall mean with respect to a Servicing Agreement, all Mortgage Loans subject to such Servicing Agreement.
“ Mortgaged Property ” shall mean the improved residential real property that secures a Mortgage Note and that is subject to a Mortgage.
“ Mortgagor ” shall mean the obligor(s) on a Mortgage Note.
“ Net Specified Amounts ” shall, in connection with a Sale, have the meaning set forth in the related Sale Supplement.
“ Non-Qualified Servicer Advance ” shall mean an advance made by Seller under a Servicing Agreement to a third party that is not payable (without regard to the credit quality of the source of payment) either from (x) the applicable Trust or proceeds of the Mortgage Loans collected pursuant to the applicable Servicing Agreement, or (y) from the applicable Mortgagor on a Mortgage Loan pursuant to the terms of the Mortgage Loan Documents and Applicable Law in effect as of the date on which the related Servicer Advance is transferred to Purchaser pursuant to the related Sale Supplement (other than through the pursuit of deficiency judgments) because, in either case, (a) such advance does not qualify as a Servicer Advance or (b) reasonable documentation as to the type and amount of such advance is not available.
“ Officer ” shall mean the Chief Executive Officer, Chief Operating Officer, President or a Vice President or Member of the applicable party.
“ Outstanding Servicing Fees ” shall mean the amount of accrued and unpaid Servicing Fees due and payable under the Servicing Agreements as of the related Closing Date.
5
“ Person ” shall mean any individual, association, corporation, limited liability company, partnership, limited liability partnership, trust or any other entity or organization, including any Governmental Authority.
“ Post-Closing Statement ” shall have the meaning set forth in Section 2.5 .
“ Prepayment Interest Excess ” means with respect to each Mortgage Loan that was the subject of a principal prepayment, the amount of interest, if any, that is payable with respect to such principal prepayment to the extent such amount is payable to the servicer as additional servicing compensation pursuant to the related Servicing Agreement.
“ PSA ” shall mean: (i) each Servicing Agreement that is a pooling and servicing agreement, or (ii) with respect to each Servicing Agreement that is not a pooling and servicing agreement, the related servicing agreement or trust agreement relating to each Securitization Transaction pursuant to which the Mortgage Loans subject to such Servicing Agreement were securitized and mortgage-backed securities were issued.
“ Purchase Price ” shall mean, with respect to any Sale, the purchase price for the related Transferred Assets calculated in accordance with the related Sale Supplement.
“ Purchaser ” shall mean Advance Purchaser LLC, a Delaware limited liability company, and its successors-in-interest.
“ Rating Agency ” shall mean with respect to each PSA, the nationally recognized statistical rating organizations that rated the securities issued pursuant to such PSA on the date of issuance.
“ Reconciliation Excess Amount ” shall have the meaning set forth in Section 5.10 .
“ Reconciliation Shortfall Amount ” shall have the meaning set forth in Section 5.10 .
“ Recourse ” shall mean, with respect to any Mortgage Loan, any obligation or liability (actual or contingent) of Seller (a) to reimburse the applicable Trust for losses incurred in connection with the Foreclosure or other disposition of, or other realization or attempt to realize upon the collateral securing, such Mortgage Loan (including, without limitation, losses relating to loss mitigation or obtaining deeds in lieu of Foreclosure), which losses are not reimbursable from the applicable Mortgagor or pursuant to the Mortgage Loan Documents (other than through the pursuit of a deficiency judgment), the Servicing Agreements or the Underlying Documents; (b) to repurchase such Mortgage Loan in the event that the Mortgagor of such Mortgage Loan is in bankruptcy, in Foreclosure or in litigation; or (c) to repurchase such Mortgage Loan in the event of a delinquency or other payment default thereunder by the Mortgagor.
“ Regulatory Approvals ” shall mean all approvals from any Governmental Authority that are required to be obtained by Seller or Purchaser, as applicable, in order to consummate the transactions contemplated by this Agreement, including the expiration of all waiting periods thereunder (including any extensions thereof).
“ Related Agreement ” shall mean, with respect to any Sale, the related Sale Supplement, any related Assignment and Assumption Agreement and any other agreements, documents and instruments entered into in connection with such Sale.
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“ Retained Amount ” means, in respect of any month, the portion of the Aggregate Net Specified Amounts attributable to any Group equal to the Retained Percentage for such Group of the aggregate unpaid principal balance of all Mortgage Loans subject to the Sold Servicing Agreements related to such Group as of the first day of such calendar month. For purposes of determining the fees payable pursuant to Article IX , the “Retained Amount” shall be deemed to be retained out of the Aggregate Net Specified Amounts for purposes of achieving the Targeted Return before the retention or payment of any other amounts of Aggregate Net Specified Amounts.
“ Retained Percentage ” means (i) in respect of any Sale Supplement that constitutes a “Group 1” Sale Supplement, 0.154% per annum and (ii) in respect of any Sale Supplement that constitutes a Sale Supplement in any other Group, the “Retained Percentage” designated therefor in the related Sale Supplement.
“ REO Property ” shall mean any Mortgaged Property with respect to which the Trustee has taken ownership as a result of Foreclosure or acceptance of a deed in lieu of Foreclosure pursuant to the related Servicing Agreement.
“ Rights to MSRs ” shall, with respect to each Sale, have the meaning set forth in the related Sale Supplement.
“ Sale ” shall mean a sale of Transferred Assets pursuant to a Sale Supplement entered into pursuant to this Agreement.
“ Sale Supplement ” shall have the meaning set forth in Section 2.1 .
“ SEC ” shall mean the United States Securities and Exchange Commission.
“ Securitization Transaction ” shall mean with respect to each Servicing Agreement, the securitization transactions identified on Schedule I to the related Sale Supplement pursuant to which the Mortgage Loans subject to such Servicing Agreement were securitized pursuant to the related PSA.
“ Self-Regulatory Organization ” shall mean the London Stock Exchange, the FTSE Group, the Financial Industry Regulatory Authority, the American Stock Exchange, the National Futures Association, the Chicago Board of Trade, the New York Stock Exchange, any national securities exchange (as defined in the Securities Exchange Act of 1934, as amended), any other securities exchange, futures exchange, contract market, any other exchange or corporation or similar self-regulatory body or organization.
“ Seller ” shall mean Nationstar Mortgage LLC, a Delaware limited liability company, and its successors-in interest.
“ Seller’s Objection ” shall have the meaning set forth in Section 2.5 .
“ Servicer Advance ” shall mean any (i) “Servicing Advance”, “Corporate Advance” and/or “Escrow Advance”, each as defined in the applicable Servicing Agreement, or, to the extent not so defined therein, customary and reasonable out-of-pocket expenses incurred by Seller in connection with a default, delinquency, property management or protection, Foreclosure or other event relating to a Mortgage Loan or advances of delinquent taxes, assessments and insurance premiums payable by a Mortgagor or otherwise made with respect to a Mortgage Loan and, in each case, made in accordance with Applicable Requirements and for which Seller owns a right of reimbursement under the applicable Servicing Agreement as of the date such right is transferred to Purchaser pursuant to this Agreement as supplemented by the related Sale Supplement and (ii) all “Advances”, “P&I Advances”, “Monthly Advances” (each as defined in the applicable Servicing Agreement) or other advances in respect of principal or interest for which Seller owns a right of reimbursement under the applicable Servicing Agreement as of the date such right is transferred to Purchaser pursuant to this Agreement as supplemented by the related Sale Supplement.
7
“ Servicing Advance Receivable ” means, collectively, for each Servicer Advance, the right to receive reimbursement for such Servicer Advance under the Servicing Agreement pursuant to which such Servicer Advance was made.
“ Servicing Agreement ” shall mean each of the servicing agreements described on Schedule I attached to the related Sale Supplement and each related Underlying Document governing the rights, duties and obligations of Seller as servicer under such Servicing Agreements (including any Whole Loan Servicing Agreements).
“ Servicing Fees ” shall mean all compensation payable to Seller under the Servicing Agreements, including each “Servicing Fee” payable based on a percentage of the outstanding principal balance of the Mortgage Loans, but excluding Ancillary Income, Prepayment Interest Excess, Excluded Amounts and earnings received on amounts on deposit in any Custodial Account or Escrow Account; provided, however , Servicing Fees shall not include any compensation payable to the Seller as a Master Servicer under a PSA or Servicing Agreement (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans).
“ Servicing Rights ” shall mean all right, title and interest of Seller and all rights and obligations of Seller under the Servicing Agreements and Underlying Documents including, without limitation, the right (i) to receive all Servicing Fees, Ancillary Income, Prepayment Interest Excess or other compensation (including any Outstanding Servicing Fees) payable to Seller pursuant to the related Servicing Agreements, (ii) to any and all accounts established for the servicing of the Mortgage Loans or pursuant to the applicable Servicing Agreements, including, to the extent provided therein, any right or power to direct the disposition, disbursement, distribution or investment of amounts deposited therein, (iii) in and to the related Escrow Accounts and Custodial Accounts, (iv) to the related Loan Files, in each case, subject to the terms, restrictions and conditions applicable thereto pursuant to the applicable Servicing Agreement and Underlying Documents, (v) to be reimbursed for any Servicer Advances and to be paid for any DSF under the Servicing Agreements, (vi) to exercise any optional termination or clean-up call provisions, if any, as set forth in the related Servicing Agreements or PSAs, and (vii) to indemnification or other remedy, if any, from any subservicer of the Mortgage Loans or under the terms of the related Servicing Agreements, PSAs or Underlying Agreements relating to the period as of or after the date Purchaser acquires such Servicing Rights, in each case, excluding any Excluded Amounts. The term Servicing Rights shall not include any obligations in connection with any representations and warranties with respect to the Mortgage Loans or other Transferred Assets made by Seller or any of its Affiliates or any obligation to remedy breaches of any representations or warranties with respect to Seller or any of its Affiliates, the Mortgage Loans or other Transferred Assets or to indemnify any party in connection therewith or the obligations of any Master Servicer under a PSA or Servicing Agreement (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans).
“ Servicing Transfer Date ” shall mean, with respect to a Servicing Agreement, the date specified in the related Sale Supplement as the “Servicing Transfer Date” for such Servicing Agreement, or in any case, such other date or dates mutually agreed upon by Purchaser and Seller.
“ Servicing Transfer Instructions ” means with respect to each Transferred Asset, the servicing transfer instructions, if any, mutually agreed to by Purchaser and Seller and set forth in the related Sale Supplement.
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“ Sold Servicing Agreement ” means any Servicing Agreement in respect of which the Closing Date for the related Sale of any interests therein (including Rights to MSRs) has been consummated pursuant the related Sale Supplement.
“ Subservicing Agreement ” means the Master Subservicing Agreement to be entered into on or after the date hereof between Advance Purchaser LLC, as servicer, and Nationstar Mortgage LLC, as subservicer.
“ Targeted Return ” means a 14% annualized compounded return (giving effect to interest costs, expenses (including third-party expenses and allocated costs of internal fees (including, without limitation, legal fees and expenses) and fees of the Purchaser and its subsidiaries in the determination thereof) that is earned and paid monthly on Total Invested Capital. For purposes of determining whether the Targeted Return is achieved on any day, such determination shall be computed (i) based on such annualized return during the period commencing on December 17, 2013 through and including the date of such determination (and such annualized return shall be deemed to be capped at 14% at all times) and (ii) giving effect to any shortfalls on any prior dates in achieving such 14% annualized compounded return for any prior dates of determination (such that a “catch-up” in payments is required to achieve the Targeted Return). For the avoidance doubt, for any full month of computation, the “Targeted Return” shall equal 14% divided by 12.
“ Termination Date ” shall have the meaning set forth in Section 7.1 .
“ Third Party Consents ” shall mean any consent, authorization, approval, statement, waiver, order, license, certificate or permit or act of or from, or notice to any Rating Agency or any party to or referenced in any Servicing Agreement or any amendment to any Servicing Agreement or any financing source that is required under such Servicing Agreement in order to duly transfer the servicing of the Mortgage Loans and the Servicing Rights and other Transferred Assets related to such Servicing Agreement to Purchaser and consummate the transactions contemplated by this Agreement and the related Sale Supplement, in each case in form and substance reasonably satisfactory to Seller and Purchaser.
“ Total Invested Capital ” means, as of any date of determination, the sum of the following:
(i) Equity Basis as of the last day of the second calendar month preceding such date of determination
plus
(ii) Working Capital as of the last day of the second calendar month preceding such date of determination
plus
(iii) any net increase in the Equity Basis during the period from the last day of the second calendar month preceding such date of determination until the last day of the calendar month preceding such date of determination
plus
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(iv) any net increase in the Working Capital during the period from the last day of the second calendar month preceding such date of determination until the last day of the calendar month preceding such date of determination.
“ Transferred Assets ” shall, with respect to each Sale, have the meaning set forth in the related Sale Supplement.
“ Transferred Liabilities ” shall, with respect to each Sale, have the meaning set forth in the related Sale Supplement.
“ Trust ” shall mean, with respect to each Securitization Transaction, the trust or other legal entity that is the owner of the Mortgage Loans included in such Securitization Transaction.
“ Trustee ” shall mean with respect to each Servicing Agreement, the entity identified as the “trustee” or “indenture trustee” therein, or any successor trustee or successor indenture trustee, as applicable, thereto.
“ Underlying Documents ” means each operative document or agreement described on Schedule II attached to the related Sale Supplement executed in connection with each Securitization Transaction which is binding upon Seller, as servicer, if any.
“ Whole Loan Servicing Agreement ” means a Servicing Agreement related to a pool of Mortgage Loans that are not included in a Securitization Transaction.
“ Working Capital ” means, as of any date, 15% of the Equity Basis as of the end of the prior calendar month; provided, however, Seller and Purchaser shall enter into good faith discussions on a quarterly basis to determine whether the amount then used for purposes of agreed “working capital” is appropriate amount of capital to account for future working capital needs.
ARTICLE 2
SALES AND CLOSINGS
2.1 Sale Supplements . Seller and Purchaser may from time to time enter into one or more sale supplements substantially in such form and substance as the parties may mutually agree to (each a “ Sale Supplement ”), pursuant to which Seller and Purchaser will agree to the sale and purchase of certain Servicing Rights and other related assets on the terms set forth in this Agreement, as modified or supplemented by such Sale Supplement. The parties agree that, to the extent the terms of any Sale Supplement are inconsistent with any term of this Agreement, the terms of such Sale Supplement shall control with respect to the related Sale.
2.2 Closing Date . Assuming the conditions to the closing of a Sale have occurred, the purchase of Transferred Assets and assumption of Transferred Liabilities pursuant to a Sale Supplement shall occur at a closing (each, a “ Closing ”) to be held on the related Closing Date, at the offices of Sidley Austin LLP, in New York, New York, at 9 a.m., local time, or at such other time, place, and manner as the parties shall mutually agree.
2.3 Closing Statement . No later than the Closing Statement Delivery Date with respect to a Sale, Seller shall prepare and deliver to Purchaser the Closing Statement for such Sale.
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2.4 Closing .
(a) All actions taken and documents delivered at a Closing shall be deemed to have been taken and executed simultaneously, and no action shall be deemed taken nor any document delivered until all have been taken and delivered.
(b) At or prior to a Closing, subject to all the terms and conditions of this Agreement and the related Sale Supplement, Seller shall deliver to Purchaser the following with respect to such Sale and the related Transferred Assets (in any case, unless waived by the Purchaser):
(1) executed counterparts of each Related Agreement to which Seller is a party;
(2) secretary’s certificates, evidence of corporate existence and good standing, evidence of corporate approvals and other similar documents;
(3) if requested by the Purchaser, an opinion of counsel to Seller, dated as of the related Closing Date, in form and substance reasonably acceptable to Purchaser, with respect to certain corporate matters of Seller and other related matters;
(4) any required Regulatory Approvals with respect to Seller;
(5) all Third Party Consents required to be obtained on or prior to the Closing Date with respect to the Transferred Assets;
(6) a certificate of an Officer of Seller, dated as of the related Closing Date, certifying as to the satisfaction of the conditions set forth in Sections 6.1 and 6.2 in form and substance reasonably acceptable to Purchaser;
(7) a certificate of an Officer of Seller, dated as of the related Closing Date, relating to outstanding Servicer Advances and DSF in form and substance reasonably acceptable to Purchaser;
(8) customary documentation reasonably acceptable to Purchaser evidencing the release of any Lien on the related Servicing Rights and other Transferred Assets, which documentation may include but not be limited to any lien releases and UCC-3 termination statements with respect thereto;
(9) a limited power of attorney from Seller to allow Purchaser, in the name of Seller, to effect transfers of the related Transferred Assets and to service the Mortgage Loans pursuant to the related Servicing Agreements, as amended, which shall be in form and substance reasonably satisfactory to Seller and Purchaser;
(10) a receipt for payment of the Estimated Purchase Price paid at Closing; and
(11) such other certificates and documents as Purchaser determines to be reasonably necessary in connection with the consummation of the transactions contemplated by the Sale Supplement and which do not alter the parties’ respective obligations, liabilities or costs with respect thereto.
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(c) Purchaser shall deliver to Seller the following documents relating to such Sale (in any case, unless waived by the Seller):
(1) executed counterparts of each Related Agreement to which Purchaser is a party;
(2) secretary’s certificates, evidence of corporate existence and good standing, evidence of corporate approvals and other similar documents;
(3) an opinion of counsel to Purchaser, dated as of the related Closing Date, reasonably acceptable to Seller, with respect to certain corporate matters of Purchaser;
(4) any required Regulatory Approvals with respect to Purchaser;
(5) a certificate of an Officer of Purchaser dated as of the related Closing Date, certifying as to the satisfaction of the conditions set forth in Sections 6.1 and 6.3 in form and substance reasonably acceptable to Seller;
(6) the Estimated Purchase Price by wire transfer in immediately available funds to those accounts identified by Seller to Purchaser; and
(7) such certificates and other documents as Seller determines to be reasonably necessary in connection with the consummation of the transactions contemplated by the Sale Supplement and which do not alter the parties’ respective obligations, liabilities or costs with respect thereto.
2.5 Post Closing Reconciliation of Purchase Price . No later than sixty (60) days following a Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “ Post-Closing Statement ”) reconfirming the calculation of the Purchase Price for the related Sale as of such Closing Date. Seller shall, within thirty (30) days after its receipt of the Post-Closing Statement, inform Purchaser in writing (the “ Seller’s Objection ”), setting forth in reasonable detail the basis of any dispute Seller may have with respect to any information contained in the Post-Closing Statement. If no Seller’s Objection is received by Purchaser on or before the last day of such 30-day period, then the Post-Closing Statement shall be final and binding on the parties hereto. Purchaser shall have 30 days from its receipt of the Seller’s Objection to review and respond to the Seller’s Objection. If Seller timely submits the Seller’s Objection to Purchaser, Seller and Purchaser first shall seek in good faith to resolve any disagreement over the disputed items set forth in the Seller’s Objection. If any disagreement cannot be resolved by Purchaser and Seller within 30 days after Purchaser’s receipt of the Sellers’ Objection, then either Purchaser or Seller, by written notice to the other, may elect to have any such disagreement tendered to and resolved by a mutually agreeable internationally recognized independent certified public accounting firm (the “ Accountant ”), which shall determine whether the final Purchase Price set forth in the Post-Closing Statement requires adjustment. The determination by the Accountant shall be final and binding on the parties hereto for all purposes of this Agreement. Each of Seller and Purchaser shall bear all fees and costs incurred by it in connection with this determination and 50% of all fees and expenses relating to the foregoing work of the Accountant. The Accountant shall have full access to all information used by the Purchaser in preparing the Post Closing Statement and by Seller in preparing the Seller’s Objection, including the work papers of their respective accountants (to the extent permitted by such accountants), and all other information reasonably requested by the Accountant from Seller and Purchaser. The Accountant shall be instructed to submit its determination to the parties hereto in writing as soon as practicable after submission of the matter to it but no later than thirty (30) days after such submission. Once the parties hereto agree upon or otherwise arrive at, or once the Accountant has made a final
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determination on, the final Purchase Price, to the extent the final Purchase Price is less than the Estimated Purchase Price, Seller shall refund such difference to Purchaser within ten (10) Business Days following such determination, and to the extent the final Purchase Price is greater than the Estimated Purchase Price, Purchaser shall pay such difference to Seller within ten (10) Business Days following such determination.
ARTICLE 3
GENERAL REPRESENTATIONS AND WARRANTIES OF SELLER
Seller, as a condition to the consummation of the transactions contemplated hereby, hereby makes the following representations and warranties to Purchaser as of the date hereof, as of the date of each Sale Supplement, as of each Closing Date and as of each Servicing Transfer Date:
3.1 Due Organization . Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and has full power and authority to own its property and to carry on its business as presently conducted and to enter into, deliver and perform this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Seller and to carry out its obligations hereunder and thereunder.
3.2 Due Authorization; Binding Effect . The execution, delivery and performance of this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Seller has been duly and validly authorized by all necessary limited liability company or other action. This Agreement has been, and upon their execution each Sale Supplement and all documents executed pursuant hereto and thereto by Seller shall be, duly executed and delivered by Seller, and (assuming due authorization, execution and delivery by Purchaser) this Agreement constitutes, and upon their execution, each Sale Supplement and all documents executed pursuant hereto and thereto by Seller shall constitute, the legal, valid and binding obligations of Seller, enforceable against Seller in accordance with their respective terms, subject to the Enforceability Exceptions.
3.3 No Conflicts . The execution, delivery and performance by Seller of this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Seller do not and will not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss of a benefit under, or result in the creation or imposition of any Lien upon any of the assets of Seller under, any provision of (a) the organizational documents of Seller, (b) any mortgage, indenture or other agreement to which Seller is a party (other than any Servicing Agreement) or by which Seller or any of its properties or assets is subject (except as would not reasonably be expected to adversely affect the ability of Seller to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement and the Sale Supplements) or (c) any provision of any Applicable Law applicable to Seller or its properties or assets. With respect to each Servicing Agreement, the New York Uniform Commercial Code permits the Seller to transfer the Rights to MSRs to Purchaser under the Agreement and this Sales Supplement without violation of any applicable Servicing Agreement.
3.4 Consents . No consent of, or registration, declaration or filing with, any Governmental Authority or any other Person is required to be obtained, effected or given by or with respect to Seller in connection with the execution, delivery and performance of this Agreement or any Sale Supplement or the consummation of the transactions contemplated hereby or thereby, except for consents, registrations, declarations and filings that have been obtained or will be obtained prior to the related Closing Date or Servicing Transfer Date, as applicable.
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3.5 Litigation . There are no actions, litigation, suits or proceedings pending or, to Seller’s knowledge, threatened against Seller before or by any court, administrative agency, arbitrator or government body (i) with respect to this Agreement or any Sale Supplement or (ii) with respect to any other matter which if determined adversely to the Seller would reasonably be expected to materially and adversely affect Seller’s ability to perform its obligations under this Agreement or any Sale Supplement; and Seller is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect Seller’s ability to perform its obligations under this Agreement or any Sale Supplement.
3.6 Licenses . Seller has all licenses necessary to carry on its business as now being conducted and as is contemplated by this Agreement and each Sale Supplement to be conducted and is duly authorized and qualified to transact, in each applicable state, any and all business contemplated by this Agreement and each Sale Supplement (except where there is an appropriate statutory exemption applicable to Seller or the failure so to qualify would not materially and adversely affect Seller’s ability to perform its obligations under this Agreement or any Sale Supplement).
3.7 Bulk Sales . The sale and transfer of the Transferred Assets by Seller are not subject to the bulk transfer or similar statutory provisions of applicable law.
3.8 Broker’s Fees . There are no fees or commissions or any expenses of any broker, finder or investment banker or anyone else acting in the capacity of a broker, finder or investment banker for Seller in connection with the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser, as a condition to the consummation of the transactions contemplated hereby, hereby makes the following representations and warranties to Seller as of the date hereof, as of the date of each Sale Supplement, as of each Closing Date and as of each Servicing Transfer Date:
4.1 Due Organization . Purchaser is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, and has full power and authority to own its property and to carry on its business as presently conducted and to enter into, deliver and perform this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Purchaser and to carry out its obligations hereunder and thereunder.
4.2 Due Authorization; Binding Effect . The execution, delivery and performance of this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Purchaser has been duly and validly authorized by all necessary limited liability company or other action. This Agreement has been, and upon their execution each Sale Supplement and all documents executed pursuant hereto and thereto by Purchaser shall be, duly executed and delivered by Purchaser, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes, and upon their execution, each Sale Supplement and all documents executed pursuant hereto and thereto by Purchaser shall constitute, the legal, valid and binding obligations of Purchaser, enforceable against Purchaser in accordance with their respective terms, subject to the Enforceability Exceptions.
4.3 No Conflicts . The execution, delivery and performance by Purchaser of this Agreement, each Sale Supplement and all documents executed pursuant hereto and thereto by Purchaser do not and will not conflict with, or result in any violation of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to loss
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of a benefit under, or result in the creation or imposition of any Lien upon any of the assets of Purchaser under, any provision of (a) the organizational documents of Purchaser, (b) any mortgage, indenture or other agreement to which Purchaser is a party or by which Purchaser or any of its properties or assets is subject (except as would not reasonably be expected to adversely affect the ability of Purchaser to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement and the Sale Supplements) or (c) any provision of any Applicable Law applicable to Purchaser or its properties or assets.
4.4 Consents . No consent of, or registration, declaration or filing with, any Governmental Authority or any other Person is required to be obtained, effected or given by or with respect to Purchaser in connection with the execution, delivery and performance of this Agreement or any Sale Supplement or the consummation of the transactions contemplated hereby or thereby, except for consents, registrations, declarations and filings that have been obtained or will be obtained prior to the related Servicing Transfer Date.
4.5 Litigation . There are no actions, litigation, suits or proceedings pending or, to Purchaser’s knowledge, threatened against Purchaser before or by any court, administrative agency, arbitrator or government body (i) with respect to this Agreement or any Sale Supplement or (ii) with respect to any other matter which if determined adversely to the Purchaser would reasonably be expected to materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement or any Sale Supplement; and Purchaser is not in default with respect to any order of any court, administrative agency, arbitrator or governmental body so as to materially and adversely affect Purchaser’s ability to perform its obligations under this Agreement or any Sale Supplement.
4.6 Licenses . Purchaser has all licenses necessary to carry on its business as now being conducted and as is contemplated by this Agreement and each Sale Supplement (taking into account that Purchaser is engaging a subservicer to service the Mortgage Loans) to be conducted and is duly authorized and qualified to transact, in each applicable state, any and all business contemplated by this Agreement and each Sale Supplement (except where there is an appropriate statutory exemption applicable to Purchaser or the failure so to qualify would not have a Material Adverse Effect on the ability of Purchaser to perform its obligations hereunder).
4.7 Broker’s Fees . There are no fees or commissions or any expenses of any broker, finder or investment banker or anyone else acting in the capacity of a broker, finder or investment banker for Purchaser in connection with the transactions contemplated hereby.
ARTICLE 5
OBLIGATIONS OF PARTIES PRIOR TO AND AFTER A CLOSING DATE
5.1 Conduct of Business . Except as otherwise set forth in the related Sale Supplement, Seller will, from the date of execution of a Sale Supplement to the related Servicing Transfer Date, continue to service the Mortgage Loans relating to Servicing Agreements subject to such Sale Supplement in accordance with Applicable Requirements and in the ordinary course of business consistent with past practices.
5.2 Regulatory Approvals . As soon as possible following the execution of a Sale Supplement, (i) Seller shall have prepared and have filed applications and notices relating to any required Regulatory Approvals required to be obtained by it with respect to the related Sale and (ii) Purchaser shall have prepared and have filed applications and notices relating to any required Regulatory Approvals required to be obtained by it with respect to the related Sale. Each of Seller and Purchaser agrees to
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process such notices and applications as promptly as reasonably practicable and to provide the other promptly with a copy of such applications as filed and all material notices, orders, opinions, correspondence, and other documents with respect thereto, and to use commercially reasonable efforts to obtain all Regulatory Approvals required to be obtained by it. Each of Seller and Purchaser shall provide the other party such cooperation and information reasonably requested by in connection with compliance by such other party with the requirements of the applicable Governmental Authorities. The parties shall use commercially reasonable efforts to cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry relating to Regulatory Approvals, and to resolve any concerns of any Governmental Authority and obtain all Regulatory Approvals so as to permit the prompt completion of the transactions contemplated by a Sale Supplement.
5.3 Third Party Consents . Upon written notice from Purchaser to Seller with respect to any Servicing Agreement, Seller shall use commercially reasonable efforts, at no cost to Purchaser (except as otherwise provided in the applicable Sale Supplement), to obtain the applicable Third Party Consents with respect to each Sale prior to the applicable Closing Date; provided, however , Purchaser shall be responsible for satisfying any related parties whose consent may be directly or indirectly required or practically necessary to consummate the transfer of the applicable Servicing Rights to Purchaser, of Purchaser’s eligibility, qualification, responsibility, character, and fitness to become the transferee of such Servicing Rights. Purchaser shall cooperate with reasonable requests from third-parties (including rating agencies) to audit or review Purchaser’s servicing operations or to provide additional reasonable information concerning Purchaser as a condition to obtain any Third Party Consent, and Purchaser shall bear the costs of compliance with such requests. Seller and Purchaser shall cooperate in good faith to obtain and provide such information reasonably requested by the other party in connection with obtaining such Third Party Consents. In accordance with Applicable Requirements, Seller, at its sole expense (except as set forth in the immediately preceding sentence), shall submit to Insurers and third parties all materials, and pay such fees and costs as are required by Applicable Requirements, in order to obtain the Third Party Consents required to be obtained by Seller in a timely manner with respect to the transfer of the Transferred Assets from Seller to Purchaser. Seller shall promptly notify Purchaser if any Insurer or third party advises Seller that it does not consent to all or any portion of the Transferred Assets with respect to a Sale being transferred to Purchaser.
5.4 Fees and Expenses . Subject to Section 2.5 and Section 5.3 , unless expressly stated to the contrary in a Sale Supplement, each party will assume and pay for the expenses such party incurs with respect to a Sale, including, any fee payable by such party to any agent, broker or finder acting on its behalf in the Sale and costs, charges and expenses relating to its own attorneys’ and accountants’; provided that Seller shall (i) be responsible for the shipping and delivery costs related to the transfer of the Transferred Assets, including the Loan Files, any outstanding obligations to prepare and record Assignments of Mortgage, and any fees and costs to reflect the transfer of servicing of any MERS Loans to Purchaser or its designee on the MERS System and (ii) pay the costs, fees and expenses of obtaining all required Regulatory Approvals (other than any Regulatory Approvals required to be obtained by Purchaser, which shall be the responsibility of Purchaser) and the reasonable costs, fees and expenses of Third Party Consents required to be obtained (including the reasonable fees of any Trustee or Custodians), and any termination, transfer and/or other similar reasonable fees and expenses payable to any subservicer or subcontractor in order to transfer the servicing of the Mortgage Loans to Purchaser or its designee. Without limiting the foregoing, Seller shall assume and pay for the expenses of performing its obligations under this Agreement and each Sale Supplement (including, without limitation, (i) all costs and expenses associated with the servicing of the related Mortgage Loans under each Servicing Agreement until the occurrence of the Servicing Transfer Date therefor, (ii) all costs and expenses arising in connection with the transfer by the Seller to the Purchaser of any servicer advance financing facilities related to any Servicing Advances and/or DSF directly or indirectly transferred to Purchaser in connection with this Agreement and any Sale Supplement (it being acknowledged and agreed to Purchaser shall be
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responsible for the ongoing costs and expenses in connection with such facilities but the Seller shall be responsible for its own costs incurred in its capacity as servicer or sub-administrator thereunder) and (iii) taking such actions not inconsistent with the sale treatment of the Transferred Assets as may be reasonably requested by the Purchaser that will not result in any undue cost or expense to Seller in connection with the transactions contemplated hereby, by any Sale Supplement, by any servicer advance financing facility related to any Servicing Advances and/or DSF directly or indirectly transferred to Purchaser in connection with this Agreement and any Sale Supplement or, in any case, reasonably related thereto.
5.5 Public Announcements . Unless otherwise required by Applicable Law (including any required filings with the U.S. Securities and Exchange Commission) or the rules and regulations of any applicable Self-Regulatory Organization, neither of the parties shall make, or cause to be made, any press release or public announcement in respect of this Agreement or any Sale Supplement or the transactions contemplated hereby or thereby or otherwise communicate with any news media in respect thereof without the prior written consent of the other party (which shall not be unreasonably withheld, conditioned or delayed) and the parties hereto shall cooperate as to the form, timing and contents of any such press release, public announcement or communication.
5.6 Records relating to Servicer Advances and DSF . Seller shall provide to Purchaser, on or before each Closing Date, the following information (in the case of any Servicer Advance and/or DSF funded or accrued by a predecessor servicer, to the extent in the possession of Seller) (A) loan level Servicer Advance and DSF balances, (B) information reflecting the date or period such Servicer Advances were made or DSF were accrued, as applicable, and (C) loan level information related to the type of Servicing Advance (i.e., delinquency, tax, insurance, attorney fees, property inspection, etc.) and disbursement history of each Servicer Advance (which may be in electronic format). To the extent Seller is unable to provide any of the foregoing information to Purchaser on or prior to the related Closing Date, Seller shall use commercially reasonable efforts to obtain such information. Seller shall, consistent with industry standards, maintain copies of invoices or other customary evidence with respect to each Servicer Advance made by Seller and shall, to the extent readily available to Seller without due cost or expense, provide copies of such invoices or other customary evidence to the extent requested by Purchaser, a Mortgagor or a third party to support the reimbursement of such Servicer Advance. In the event Seller cannot provide, or cause to be provided to Purchaser any such invoice or other customary evidence, and Purchaser is unable to be reimbursed for such Servicer Advance solely as a result of such failure, Seller shall reimburse Purchaser for the amount of such unreimbursed Servicer Advances within thirty (30) days of Purchaser’s written request, to the extent Purchaser paid Seller for such amounts and such amounts remain unreimbursed.
5.7 Efforts to Consummate; Further Assurances . The parties hereto agree to use all reasonable efforts to satisfy or cause to be satisfied as soon as practicable their respective obligations hereunder and the conditions precedent to Closing. Seller shall, at any time and from time to time, promptly, upon the reasonable request of Purchaser, execute, acknowledge, deliver or perform (and shall cause any subservicer to execute, acknowledge deliver or perform), all such further acts, deeds, assignments, transfers, conveyances, and assurances as may be reasonably required (a) for the better vesting and conferring to Purchaser of title in and to the Servicing Rights and other Transferred Assets, (b) to effect the transactions contemplated by this Agreement or (c) to enable Purchaser or its designee to service the Mortgage Loans. Purchaser shall, any time and from time to time, promptly, upon the reasonable request of Seller, execute, acknowledge, deliver or perform, all such further acts and assurances as may be reasonably required to effect the transactions contemplated by a Sale Supplement, including, without limitation, the assumption by Purchaser of the Transferred Liabilities. At Purchaser’s request, Seller shall use commercially reasonable efforts to obtain any documents or instruments missing from any Loan File or Custodial File, and to cure any defects or deficiencies in the documents or instruments contained in any Loan Files or Custodial Files; provided that unless such document or instrument is missing, defective or deficient as a result of an act or omission of Seller or a subservicer engaged by Seller, Seller shall have no duty or obligation to obtain or cure any documents or instruments.
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5.8 Servicing Rights Transition . Seller and Purchaser shall comply in all material respects with the terms of the applicable Servicing Transfer Instructions with respect to the transfer of servicing of the related Mortgage Loans.
5.9 MERS . Seller shall prepare and record any assignments of mortgage required to be recorded by Seller prior to the related Servicing Transfer Date under the related Servicing Agreements. With respect to MERS Loans, Seller shall take any actions required to reflect the transfer of servicing from Seller to Purchaser or its designee and Purchaser’s or its designee’s status as servicing rights owner as of the related Closing Date.
5.10 Custodial Account and Escrow Account Reconciliation . In accordance with normal and customary industry practices in connection with the transfer of Servicing Rights and related Custodial Accounts and Escrow Accounts, Seller and Purchaser agree to reconcile and balance in good faith the applicable Custodial Accounts and Escrow Accounts within sixty (60) Business Days of the transfer of such Servicing Rights to Purchaser under the related Sale Supplement. The aggregate amount of shortfall included in the reconciling items referred to above (the “ Reconciliation Shortfall Amount ”), if any, shall be funded by Seller within ten (10) Business Days of such reconciliation. The aggregate amount of the excess included in the reconciling items referred to above (the “ Reconciliation Excess Amount ”), if any, shall be refunded by Purchaser within ten (10) Business Days of such reconciliation.
5.11 Interest on Related Escrow Accounts . Seller shall cause to be paid any interest on amounts in the related Escrow Accounts accrued to but not including the related Servicing Transfer Date to the extent interest with respect to such accounts is required to be paid under Applicable Requirements for the benefit of Mortgagors under the Mortgage Loans or any other appropriate party. Seller shall cause the deposit of any such interest earned on amounts in the related Escrow Accounts.
5.12 Payment of Certain Servicer Advances . Purchaser shall pay all invoices related to unreimbursed Servicer Advances incurred prior to the related Servicing Transfer Date for which the related invoice is received by Purchaser subsequent to the related Servicing Transfer Date, whether such invoice was submitted by the related service provider or by Seller, provided such invoice is received within ninety (90) days following the related Servicing Transfer Date and is reasonably determined by Purchaser to be reimbursable as a Servicer Advance under the related Servicing Agreement. In the event that Purchaser fails to pay any such invoice and Seller subsequently pays such amounts due, Purchaser covenants to reimburse Seller for any such amounts within thirty (30) days of receipt of an itemized invoice for such amounts. Seller shall reimburse Purchaser for any amounts paid by Purchaser relating to invoices received by Purchaser for services rendered prior to the related Servicing Transfer Date if reimbursement to the Purchaser under the related Servicing Agreement is denied as a result of inadequate or missing documentation or the late submission of the invoice to Purchaser
5.13 IRS Reporting . With respect to events that occurred prior to the related Servicing Transfer Date during the calendar year in which such Servicing Transfer Date occurs, Seller shall prepare and send to Mortgagors and prepare and file with the Internal Revenue Service all reports, forms, notices and filings required by the Code, Treasury regulations and other federal law, regulations or administrative procedures in connection with the Servicing Rights and the Mortgage Loans (including forms 1098, 1099 or 1099A). With respect to events that occurred on or after the related Servicing Transfer Date during the calendar year in which the related Servicing Transfer Date occurs, Purchaser (or its subservicer) shall prepare and send (or cause to be prepared and sent) to Mortgagors and prepare and file with the Internal Revenue Service, all reports, forms, notices and filings required by the Code, Treasury regulations and other federal law, regulations or administrative procedures in connection with the Servicing Rights and the Mortgage Loans.
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5.14 Servicer Compliance Reports and Certifications . Seller shall comply fully with all requirements of the Servicing Agreements relating to the provision of servicer compliance statements, servicer assessments and accountant attestations and backup servicer certifications relating to applicable Sarbanes-Oxley filings covering the period up to the related Servicing Transfer Date, including for the period in the calendar year in which the related Servicing Transfer Date occurs, prior to such Servicing Transfer Date. Seller shall provide Purchaser copies of all such documents required under the Servicing Agreements for these periods at the same time delivered to the other parties as required under the Servicing Agreements.
5.15 Solicitation of Customers . Except as permitted under the Subservicing Agreement, required by Applicable Requirements or as from time to time consented to by the Purchaser in its sole discretion, from and after the Servicing Transfer Date for any Servicing Agreement, Seller shall not directly or indirectly solicit, and Seller shall exercise commercially reasonable efforts to prevent any of its Affiliates from directly or indirectly soliciting, by means of direct mail, telephone or personal solicitation, the Mortgagors of any of the Mortgage Loans relating to such Servicing Agreement for purposes of prepayment or refinance or modification of such Mortgage Loans; it being understood and agreed that all rights and benefits relating to the direct solicitation of such Mortgagors with respect to any matter relating to the Mortgage Loans and all attendant right, title and interest in and to the list of such Mortgagors and data relating to their Mortgage Loans (including insurance renewal dates) shall be transferred to Purchaser on the related Closing Date. It is understood and agreed that the foregoing is not intended to prohibit general advertising or solicitations directed to the public generally.
5.16 Internal Controls . Seller shall maintain and regularly test controls over all processes, procedures, and systems involved in the collection, processing, and dissemination of financial and nonfinancial information provided to Purchaser under this Agreement, including such information collected, processed, or disseminated by parties engaged by Seller to provide financial and nonfinancial information to Purchaser. Seller shall provide Purchaser all reports, filings, test results, or other information reasonably requested by Purchaser to assess the risks of misstatement in the financial statements of Purchaser resulting from financial or nonfinancial information provided by Seller. In particular, Seller shall provide an annual Service Organization Control 1, or comparable, report prepared by a nationally recognized independent registered public accounting firm stating that (i) Seller suitably designed control objectives over the aforementioned processes, procedures, and systems and (ii) operated controls effectively to provide reasonable assurance that such control objectives over the aforementioned processes, procedures, and systems were achieved over the entire period covered by the report. For the avoidance of doubt, Seller shall cause the preparation of such report to adhere to standards reasonably established by Purchaser’s auditor.
ARTICLE 6
CONDITIONS TO CLOSING
6.1 Conditions to Obligations of the Parties . The obligation of each of Purchaser and Seller to complete the transactions contemplated by a Sale Supplement is conditioned upon fulfillment or, where legally permitted, waiver, on or before the related Closing Date, of each of the following conditions:
(a) There shall not be pending before any court or Governmental Authority of competent jurisdiction any action or proceeding by any third party that seeks to prohibit the consummation of the transactions contemplated by such Sale Supplement and that has a substantial probability of so prohibiting or adversely affecting the transactions contemplated by such Sale Supplement.
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(b) No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced, issued or entered into any order that is in effect and which prohibits or makes illegal the consummation of the transactions contemplated by such Sale Supplement.
(c) Each of Seller and Purchaser shall have obtained any Regulatory Approvals required to be obtained by such party to consummate the transactions contemplated by such Sale Supplement.
(d) The satisfaction of any additional condition set forth in such Sale Supplement.
6.2 Conditions to Obligations of Seller . The obligation of Seller to complete the transactions contemplated by a Sale Supplement is conditioned upon fulfillment or, where legally permitted, waiver, on or before the related Closing Date, of each of the following conditions:
(a) The representations and warranties made by Purchaser in such Sale Supplement and this Agreement shall be true and correct in all material respects (unless such representation or warranty was qualified as to materiality, in which case such representation and warranty shall be true and correct) as of the related Closing Date as though such representations and warranties were made at and as of such time (except that representations and warranties that speak as of a specified date shall be true and correct as of such date).
(b) Purchaser shall have performed and complied in all material respects with all obligations, covenants and agreements required by such Sale Supplement and this Agreement to be performed or complied with by it prior to or on the related Closing Date.
(c) Purchaser shall have delivered to Seller those items required by Section 2.4(c) with respect to the related Sale.
(d) The satisfaction of any additional condition set forth in such Sale Supplement.
6.3 Conditions to Obligations of Purchaser . The obligation of Purchaser to complete the transactions contemplated by a Sale Supplement is conditioned upon fulfillment or, where legally permitted, waiver, on or before the related Closing Date, of each of the following conditions:
(a) The representations and warranties made by Seller in such Sale Supplement and this Agreement shall be true and correct in all material respects (unless such representation or warranty was qualified as to materiality, in which case such representation and warranty shall be true and correct) as of the related Closing Date as though such representations and warranties were made at and as of such time (except that representations and warranties that speak as of a specified date shall be true and correct as of such date).
(b) Seller shall have performed and complied in all material respects with all obligations, covenants and agreements required by such Sale Supplement and this Agreement to be performed or complied with by it prior to or on the related Closing Date.
(c) Seller shall have delivered to Purchaser those items required by Section 2.4(b) with respect to the related Sale.
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(d) No event has occurred that, in the reasonable determination of Purchaser, has or could reasonable be expected to give rise to a Material Adverse Effect.
(e) The satisfaction of any additional condition set forth in such Sale Supplement.
ARTICLE 7
TERMINATION
7.1 Termination . Any Sale agreed to pursuant to a Sale Supplement may be terminated at any time after the execution of such Sale Supplement and prior to the related Closing Date (the date of any such termination, the “ Termination Date ”):
(a) by the mutual written consent of Seller and Purchaser;
(b) by either Purchaser or Seller upon written notice to the other party hereto, if any Governmental Authority with jurisdiction over such matters shall have issued an order permanently restraining, enjoining or otherwise prohibiting such Sale, and such governmental order shall have become final and unappealable; provided , however , that the right to terminate pursuant to this Section 7.1(b) shall not be available to any party hereto unless such party shall have used its commercially reasonable efforts to oppose any such order or to have such order vacated or made inapplicable to the transactions;
(c) by Purchaser, upon written notice to Seller, if Seller shall have breached in any material respect any of its representations or warranties or failed to perform any of its covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.1 or 6.3 and (B) is incapable of being cured by Seller by the related scheduled Closing Date or, if capable of being cured by Seller by the related scheduled Closing Date, Seller does not commence to cure such breach or failure within ten (10) Business Days after its receipt of written notice thereof from Purchaser and diligently pursue such cure thereafter;
(d) by Seller, upon written notice to Purchaser, if Purchaser shall have breached in any material respect any of its representations or warranties or failed to perform any of its covenants or other agreements contained in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.1 or 6.2 and (B) is incapable of being cured by Purchaser by the related scheduled Closing Date or, if capable of being cured by Purchaser by the related scheduled Closing Date, Purchaser does not commence to cure such breach or failure within ten (10) Business Days after its receipt of written notice thereof from Seller and diligently pursue such cure thereafter;
(e) by either Purchaser or Seller if the Closing of such Sale has not occurred by a date specified in the Sale Supplement; provided , however , that the right to terminate pursuant to this Section 7.1(e) shall not be available to any party whose failure to fulfill any obligation under this Agreement shall have been the cause of, or shall have resulted in, the failure of the Closing to occur on or prior to such date; or
(e) by the Purchaser, if a Termination Event is continuing under any Sale Supplement.
7.2 Effect of Termination . In the event of termination of a Sale pursuant to and in accordance with Section 7.1 , the related Sale Supplement shall forthwith become void and of no further force or effect whatsoever and there shall be no liability on the part of any party, or their respective officers, directors, subsidiaries or partners, as applicable, to this Agreement in connection with such Sale
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Supplement; provided , however , that nothing contained in this Agreement shall relieve any party to this Agreement from any liability resulting from or arising out of any breach of any agreement or covenant hereunder or under such Sale Supplement; provided , further , that notwithstanding the foregoing, the covenants and other obligations with respect to such Sale under this Agreement and such Sale Supplement shall terminate upon the termination of this Agreement, except that the agreements set forth in Sections 5.5 and 8.12 hereof and Article 8 of each Sale Supplement shall survive termination indefinitely.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 Notices . All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given: (a) when received, if given in person, by courier or by a national overnight delivery service, return receipt requested, (b) five Business Days after deposit in the United States Mail if delivered by registered or certified mail, return receipt requested, or (c) on the date of transmission, if sent by facsimile transmission or email transmission (receipt confirmed) on a Business Day during the normal business hours of the intended recipient, and, if not so sent on such a day and at such a time, at 10:00 a.m. on the following Business Day, provided that a copy is mailed by registered or certified mail, return receipt requested, in each case to the appropriate addresses, facsimile number or email address set forth below:
| (i) | If to Seller, addressed as follows: |
Nationstar Mortgage LLC
350 Highland Drive
Lewisville, Texas 75067
Attention: Amar Patel
| (ii) | If to Purchaser, addressed as follows: |
Advance Purchaser LLC
c/o New Residential Investment Corp.
1345 Avenue of the Americas
New York, NY 10105
Attention: Susan Givens, Chief Financial Officer
or to such other individual or address as a party hereto may designate for itself by notice given as provided in this Section.
8.2 Interpretation . The headings preceding the text of Articles and Sections included in this Agreement and the headings to Exhibits and Schedules attached to this Agreement are for convenience only and shall not be deemed part of this Agreement or be given any effect in interpreting this Agreement. The use of the masculine, feminine or neuter gender or the singular or plural form of words herein shall not limit any provision of this Agreement. The use of the terms “including” or “include” shall in all cases herein mean “including, without limitation” or “include, without limitation,” respectively. Reference to any Person shall include such Person’s successors and assigns to the extent such successors and assigns are permitted by the terms of any applicable agreement. Reference to a Person in a particular capacity shall exclude such Person in any other capacity or individually. Reference to any agreement (including this Agreement), document or instrument shall mean such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if
22
applicable, the terms hereof. Underscored references to Articles, Sections, paragraphs, clauses, Exhibits or Schedules shall refer to those portions of this Agreement unless otherwise specified. The use of the terms “hereunder,” “hereof,” “hereto” and words of similar import shall refer to this Agreement as a whole and not to any particular Article, Section, paragraph or clause of, or Exhibit or Schedule to, this Agreement. References to “dollars” or “$” shall mean United States dollars. References to the average unpaid principal balance of Mortgage Loans during a calendar month shall mean the average aggregate unpaid principal balance of such Mortgage Loans during such calendar month. Reference to any statute or statutory provision shall include any consolidation, reenactment, amendment, modification or replacement of the same and any subordinate legislation in force under the same from time to time. Accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles.
8.3 Exhibits and Schedules . The exhibits and schedules to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement.
8.4 Entire Agreement . This Agreement and the Related Agreements set forth the entire agreement and understanding of the parties hereto with respect to the transactions contemplated hereby and thereby and supersede any and all prior agreements, arrangements and understandings, both written and oral, between the parties relating to the subject matter hereof and thereof.
8.5 Amendment; Waiver . No amendment or modification of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. Neither the waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Agreement, nor the failure by any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The failure of a party hereto at any time or times to require performance of any provision hereof or claim damages with respect thereto shall in no manner affect its right at a later time to enforce the same. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.
8.6 Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
8.7 Submission to Jurisdiction . EACH OF THE PARTIES HERETO IRREVOCABLY (I) SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY; (II) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THE DEFENSE OF AN INCONVENIENT FORUM IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT;
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(III) CONSENTS TO SERVICE OF PROCESS UPON IT BY MAILING A COPY THEREOF BY CERTIFIED MAIL ADDRESSED TO IT AS PROVIDED FOR NOTICES HEREUNDER OR BY ANY OTHER MANNER IN ACCORDANCE WITH LAW; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
8.8 Waiver of Jury Trial . EACH PARTY HERETO IRREVOCABLY AND ABSOLUTELY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH, ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY, AND AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
8.9 No Strict Construction . The parties agree that the language used in this Agreement and the Related Agreements is the language chosen by the parties to express their mutual intent and that no rule of strict construction is to be applied against either party. The parties and their respective counsel have reviewed and negotiated the terms of this Agreement and the Related Agreements.
8.10 Severability . Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction, and there shall be deemed substituted for such term or provision at issue a valid, legal and enforceable term or provision as similar as possible to the term or provision at issue. If any term or provision of this Agreement is so broad as to be unenforceable, the term or provision shall be interpreted to be only so broad as is enforceable.
8.11 Assignment; Limited Third-Party Beneficiaries . This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns including the assignees of any assets under any “Servicer Advance Financing Agreement” (as defined in any applicable Sale Supplement). This Agreement may not be assigned or otherwise transferred by operation of law or otherwise without the express written consent of Seller and Purchaser and any such assignment or attempted assignment without such consent shall be void; provided that Purchaser may pledge its rights to any Person providing financing to Purchaser or its Affiliates. Purchaser shall give Seller prior written notice written notice of any such pledge. This Agreement is solely for the benefit of the parties hereto, and no provision of this Agreement shall be deemed to confer upon any other Person any remedy, claim, liability, reimbursement, cause of action or other right.
8.12 Survival . The parties’ respective representations and warranties contained in this Agreement shall survive in all cases, including, but not limited to, any termination of the Servicing Agreements. The covenants and agreements contained in this Agreement which by their terms contemplates performance after the related Closing Date shall survive the related Closing Date in accordance with such terms.
8.13 Specific Performance . The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, a party shall be entitled, in addition to any other remedy to which such party is entitled at law or in equity, to an injunction or injunctions to prevent breaches of this Agreement with respect to such Sale and to enforce specifically the terms and provisions of this Agreement with respect to such Sale, without the necessity of providing actual damages or posting any bond. Notwithstanding the foregoing, upon a valid termination in accordance with Section 7.1 , Seller shall not be entitled to any injunction or injunctions or to enforce specifically any term or provision of this Agreement.
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8.14 Intention of the Parties . Except to the extent otherwise set forth in a Sale Supplement, the parties intend that the sale and transfer herein contemplated constitute a sale of the Transferred Assets for legal, accounting and tax purposes, conveying good title thereto, free and clear of any Liens to Purchaser and that such property not be part of Seller’s estate or property of Seller in the event of any insolvency by Seller or otherwise. In the event that such conveyance is deemed to be, or to be made as security for, a loan the parties intend that Seller shall be deemed to have granted and does hereby grant to Purchaser a valid security interest in all of Seller’s right, title and interest in and to the Transferred Assets and that this Agreement shall constitute a security agreement under applicable law. Seller agrees that from time to time it shall promptly execute and deliver all additional instruments and documents and take all additional action that Purchaser may reasonably request in order to perfect the interests of Purchaser in, to and under, or to protect, the Transferred Assets or to enable Purchaser to exercise or enforce any of its rights or remedies hereunder. To the fullest extent permitted by applicable law, Seller hereby authorizes Purchaser to file financing statements and amendments thereto in connection with the transactions contemplated by this Agreement.
8.15 Reproduction of Documents . This Agreement and all documents relating thereto may be reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.
8.16 Counterparts . This Agreement may be executed and delivered (including by facsimile or email transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.
8.17 Subservicing Agreement . The Seller and the Purchaser hereby covenant to use commercially reasonable efforts to enter into the Subservicing Agreement promptly following the execution hereof. Such Subservicing Agreement shall provide (i) that the Seller shall be obligated to subservice the Mortgage Loans consistent with the terms of the related Servicing Agreements, (ii) other representations, warranties, terms and covenants customary for subservicing arrangements of this type, (iii) that the indenture trustees on behalf of noteholders under the “Servicer Advance Financing Agreements” (as defined in any applicable Sale Supplement) are intended third party beneficiaries hereof and (iv) that “Termination Events” under the Subservicing Agreement for a Subservicing Supplement shall be identical to those set forth in the related Sale Supplement.
ARTICLE 9
PERFORMANCE FEE
9.1 Performance Fee . The Servicer shall be entitled to a performance fee for each monthly period calculated in accordance with the terms hereof.
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9.2 Purchaser’s Retention of Net Specified Amounts . The Purchaser shall retain the Aggregate Net Specified Amounts in respect of each month that are necessary to be retained by the Purchaser to achieve the Targeted Return.
9.3 Performance Fee . To the extent that the Aggregate Net Specified Amounts exceed the amount necessary to achieve the Targeted Return, then such excess (the “ Available Amount ”) shall be allocated between the Seller and the Purchaser as follows:
(i) for any portion of the Available Amount comprising the Retained Amount, 50% to the Seller as a performance fee and 50% shall be retained by the Purchaser; and
(ii) for any portion of the Available Amount in excess of the Retained Amount, 100% to the Seller as a performance fee.
Such amount is payable on the payment date for any “Seller Monthly Servicing Fee” under any Sale Supplement.
For the avoidance of doubt, the maximum performance fee payable in respect of any Group of Sale Supplements to the Seller pursuant to this Section 9.3 for any calendar month (which is calculated on the assumption that all Servicing Fees on the Sold Servicing Agreements related to such Group are paid in full on a current basis) is equal to the excess of (a) the sum of (i) 50% of the Retained Percentage of the aggregate unpaid principal balance of all Mortgage Loans subject to the Sold Servicing Agreements in respect of such Group as of the first day of such calendar month and (ii) 100% of any remaining Servicing Fees over (b) the aggregate of the maximum Seller Monthly Servicing Fees payable pursuant to the Sale Supplements in respect of such Group.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Master Servicing Rights Purchase Agreement to be executed and delivered as of the date first above written.
| ADVANCE PURCHASER LLC | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: | Cameron MacDougall | |
| Title: | Secretary | |
| NATIONSTAR MORTGAGE LLC | ||
| By: | /s/ Amar Patel | |
| Name: | Amar Patel | |
| Title: | Executive Vice President | |
Signature Page to Master Servicing Rights Purchase Agreement
Exhibit 2.2
EXECUTION COPY
SALE SUPPLEMENT
(Shuttle 1)
dated as of December 17, 2013
between
NATIONSTAR MORTGAGE LLC, as Seller,
and
ADVANCE PURCHASER LLC, as Purchaser
TABLE OF CONTENTS
| Page | ||||||
|
ARTICLE 1 DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT |
1 | |||||
|
1.1 |
Definitions | 1 | ||||
|
1.2 |
Reference to the Master Servicing Rights Purchase Agreement | 8 | ||||
|
ARTICLE 2 PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES |
8 | |||||
|
2.1 |
Assignment and Conveyance of Rights to MSRs | 8 | ||||
|
2.2 |
Automatic Assignment and Conveyance of Servicing Rights | 8 | ||||
|
2.3 |
MSR Purchase Price | 9 | ||||
|
2.4 |
Assumed Liabilities and Excluded Liabilities | 9 | ||||
|
2.5 |
Remittance of Servicing Fees and Related Amounts | 10 | ||||
|
2.6 |
Payment of Estimated Purchase Price | 11 | ||||
|
ARTICLE 3 PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES AND ADVANCE SPES |
11 | |||||
|
3.1 |
Purchase and Sale of Advance SPEs | 11 | ||||
|
3.2 |
Advance SPE Purchase Price | 11 | ||||
|
3.3 |
Assignment and Conveyance of Servicing Advance Receivables | 11 | ||||
|
3.4 |
Servicing Advance Receivables Purchase Price | 12 | ||||
|
3.5 |
Servicing Advances | 12 | ||||
|
3.6 |
Reimbursement of Servicing Advances; Repayment of DSF | 12 | ||||
|
3.7 |
Servicing Advances | 13 | ||||
|
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER |
13 | |||||
|
4.1 |
General Representations | 13 | ||||
|
4.2 |
Title to Transferred Assets | 13 | ||||
|
4.3 |
Right to Receive Servicing Fees | 14 | ||||
|
4.4 |
Servicing Agreements and Underlying Documents | 14 | ||||
|
4.5 |
Mortgage Pool Information, Related Matters | 14 | ||||
|
4.6 |
Enforceability of Servicing Agreements | 14 | ||||
|
4.7 |
Compliance With Servicing Agreements | 15 | ||||
|
4.8 |
No Recourse | 16 | ||||
|
4.9 |
The Mortgage Loans | 16 | ||||
|
4.10 |
Servicing Advance Receivables | 17 | ||||
|
4.11 |
Servicing Agreement Consents and Other Third Party Approvals | 18 | ||||
|
4.12 |
Servicing Advance Financing Agreements | 18 | ||||
|
4.13 |
Anti-Money Laundering Laws | 18 | ||||
|
4.14 |
Servicer Ratings | 18 | ||||
|
4.15 |
Eligible Servicer | 18 | ||||
|
4.16 |
HAMP | 18 | ||||
|
4.17 |
Advance SPEs | 18 | ||||
|
4.18 |
Servicing Advance Financing Agreements | 19 | ||||
|
ARTICLE 5 CONDITIONS PRECEDENT |
19 | |||||
|
5.1 |
Conditions to the Purchase of the Rights to MSRs and the Advance SPEs | 19 | ||||
|
ARTICLE 6 SERVICING MATTERS |
20 | |||||
|
6.1 |
Seller as Servicer | 20 | ||||
|
6.2 |
Servicing | 20 | ||||
|
6.3 |
Collections from Obligors and Remittances | 20 | ||||
|
6.4 |
Servicing Practices | 20 | ||||
-i-
TABLE OF CONTENTS
(Continued)
-ii-
TABLE OF CONTENTS
(Continued)
| Page |
|
Exhibit A |
Form of Monthly Remittance Report | |
|
Schedule I |
Servicing Agreements | |
|
Schedule II |
Reserved | |
|
Schedule III |
Reserved | |
|
Schedule IV |
SPS Subservicing Agreement | |
|
Schedule V |
Non-Facility Eligible Servicing Agreements | |
|
Schedule VI |
Funding Schedule | |
|
Schedule VII |
Call Assets | |
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SALE SUPPLEMENT (Shuttle 1)
This Sale Supplement (Shuttle 1), dated as of December 17, 2013 (this “ Sale Supplement ”), is between Nationstar Mortgage LLC, a Delaware limited liability company (“ Seller ”), and Advance Purchaser LLC, a Delaware limited liability company (“ Purchaser ”):
WITNESSETH:
WHEREAS, Seller and Purchaser are parties to that certain Master Servicing Rights Purchase Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Agreement ”), with respect to the sale by Seller and the purchase by Purchaser of the Servicing Rights and other assets;
WHEREAS, this Sale Supplement shall constitute a “Group 1” Sale Supplement for purposes of the Agreement; and
WHEREAS, Seller and Purchaser desire to enter into the transactions described in the Agreement as supplemented by this Sale Supplement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT
1.1 Definitions . (a) For purposes of this Sale Supplement, the following capitalized terms shall have the respective meanings set forth or referenced below:
“ Additional Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Advance SPE Purchase Price ” shall mean an amount equal to the consolidated net book value as of the Closing Date of all assets and liabilities of the Advance SPEs (in any case, determined without giving effect to the transfer of any Specified Receivables).
“ Advance SPE ” means each of (i) NRZ Servicer Advance Facility Transferor CS, LLC, a Delaware limited liability company and (ii) NRZ Servicer Advance Facility Transferor BC, LLC, a Delaware limited liability company.
“ Advance SPE Issuer ” means each of (i) NRZ Servicer Advance Receivables Trust CS, a Delaware statutory trust (the “ CS Advance SPE Issuer ”) and (ii) NRZ Servicer Advance Receivables Trust BC (the “ Barclays Advance SPE Issuer ”), a Delaware statutory trust.
“ Applicable Requirements ” shall mean and include, as of the time of reference, with respect to any Mortgage Loans, all of the following: (a) all contractual obligations of Seller in the Mortgage Loan Documents, in the applicable Servicing Agreements and the applicable Underlying Documents to which Seller is a party or by which Seller is bound or for which it is responsible and (b) all Applicable Laws binding upon Seller in each jurisdiction which is applicable to the context or situation to which the Applicable Requirements apply.
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“ Assumed Liabilities ” shall have the meaning set forth in Section 2.4 .
“ Base Fee Percentage ” means a percentage equal to 0.02% divided by the Servicing Fee Rate.
“ Call Assets ” shall have the meaning set forth in Section 11.1 .
“ Call Asset Closing ” shall have the meaning set forth in Section 11.3 .
“ Call Notice ” shall have the meaning set forth in Section 11.2 .
“ Call Right ” shall have the meaning set forth in Section 11.1 .
“ Closing Date ” means December 17, 2013.
“ Closing Statement ” means the statement delivered by Seller to Purchaser on or before the Closing Date setting forth the good faith calculation of the Estimated Purchase Price.
“ Consent Period ” means, for each Deferred Servicing Agreement and each related Deferred Servicing Right, the period, if any, from and including the Closing Date to and including the related Servicing Transfer Date.
“ Current Excess Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Current Excess Servicing Spread Acquisition Agreement ” means each of (i) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (ii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XIII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (iii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of November 4, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIII LLC, as a purchaser, MSR XXIII 1 LLC, as a purchaser and MSR XXIII 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time and (iv) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of December 3, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIV LLC, as a purchaser, MSR XXIV 1 LLC, as a purchaser and MSR XXIV 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time.
“ Current Excess Servicing Spread Buyer ” shall mean, with respect to any Current Excess Servicing Spread Acquisition Agreement, each “Purchaser” set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Cut-off Date ” means December 17, 2013.
“ Deferred Mortgage Loan ” means a mortgage loan subject to a Deferred Servicing Agreement.
“ Deferred Servicing Agreement ” means, as of any date of determination, each Servicing Agreement that is not a Transferred Servicing Agreement on such date. For avoidance of doubt, on the Closing Date each Servicing Agreement is a Deferred Servicing Agreement.
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“ Deferred Servicing Right ” means, as of any date of determination, each Servicing Right arising under a Servicing Agreement that is a Deferred Servicing Agreement on such date.
“ Excluded Amounts ” means all Total Servicing Spread.
“ Excluded Liabilities ” shall have the meaning set forth in Section 2.4(c) .
“ Fannie Mae ” means the Federal National Mortgage Association, or any successor thereto.
“ Indemnified Person ” means, a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be.
“ Indemnifying Person ” means the Seller pursuant to Section 8.1 or the Purchaser pursuant to Section 8.2 , as the case may be.
“ Initial Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Investor ” means, with respect to any Securitization Transaction, any holder or other beneficial owner of any securities issued by the related Trust.
“ Liability ” shall have the meaning set forth in Section 8.1 .
“ Monthly Remittance Report ” means, with respect to each Deferred Servicing Agreement, a report substantially in the form attached as Exhibit A to this Sale Supplement or in such other form as may be agreed to by Seller and Purchaser from time to time.
“ Monthly Servicing Oversight Report ” means a report with respect to all of the Deferred Servicing Agreements and related Mortgage Loans in such form as may be agreed to by Seller and Purchaser from time to time.
“ MSR Purchase Price ” means, for each Servicing Agreement, $0.00.
“ Net Specified Amounts ” means, in respect of any calendar month, the excess of (i) the Specified Amounts for such month over (ii) the Seller Monthly Servicing Fee for such calendar month.
“ P&I Advance ” means any “P&I Advances,” “Monthly Advances” (each as defined in the applicable Transferred Servicing Agreement or any other similar term therein) or, if not defined therein, advances in respect of principal or interest for which Servicer has a right of reimbursement under the applicable Transferred Servicing Agreement.
“ Purchase Price ” means the sum of (a) the aggregate MSR Purchase Price for all of the Servicing Agreements and (b) the Advance SPE Purchase Price.
“ Purchaser Indemnified Party ” shall have the meaning set forth in Section 8.2 .
“ Rights to MSRs ” means, for each Servicing Agreement, each of the following assets:
(a) all Servicing Fees payable to Seller (including the “Base Servicing Fee” as defined under any related “Current Excess Servicing Spread Acquisition Agreement”) as of or after the Closing Date under such Servicing Agreement and the right to receive all Servicing Fees accruing and payable as of or after the Closing Date under such Servicing Agreement (including any rights to DSF arising in connection therewith if any such Servicing Fees remain accrued and unpaid on the related monthly remittance date following the related due date);
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(b) the right to purchase the Servicing Rights pursuant to Section 2.2 of this Sale Supplement;
(c) any proceeds of any of the foregoing; and
(d) unless and until the Seller demonstrates to the reasonable satisfaction of the Purchaser that Seller is able to bifurcate deferred servicing fees between the portion thereof in respect of Excluded Amounts and the portion thereof that are not Excluded Amounts, all deferred servicing fees arising under the Servicing Agreements in respect of the Excluded Amounts, not including any Current Excess Servicing Spread sold to the Current Excess Servicing Spread Buyer (and such deferred servicing fees attributable to Excluded Amounts shall be included in “DSF” for all purposes of the Agreement and this Sale Supplement notwithstanding the definition of “DSF” in the Agreement),
provided, that “Rights to MSRs” shall not include any rights to exercise any optional termination or clean up call provisions under such Servicing Agreements, it being understood, however that Seller may not exercise any optional termination or clean-up call without causing payment to the related Advance SPE Issuer of all DSF and Servicer Advance Receivables amounts unpaid under the related Servicing Agreement, unless such receivables are not owned by an Advance SPE Issuer in which case they must be paid to Advance Purchaser or its appropriate affiliate.
“ Sale Date ” means, for each Servicing Advance Receivable, the date on which such Servicing Advance Receivable is transferred to Purchaser pursuant to Section 3.3 .
“ Seller Indemnified Party ” shall have the meaning set forth in Section 8.1 .
“ Seller Monthly Servicing Fee ” shall have the meaning set forth in Section 7.1 .
“ Servicing Advance Financing Agreements ” means the following:
(i) the Indenture dated as of July 1, 2013 among Nationstar Servicer Advance Receivables Trust 2013-CS, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time; and
(ii) the Indenture dated as of September 19, 2013 among Nationstar Servicer Advance Receivables Trust 2013-BC, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time.
“ Servicing Advance Payment Date ” means (i) with respect to any Servicing Advance other than a P&I Advance, any “Funding Date” therefor under the applicable Servicing Advance Financing Agreement and (ii) with respect to any Servicing Advance that is a P&I Advance, the date on which such Servicing Advance is required to be made under the related Servicing Agreement. If there are no
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Servicing Advance Financing Agreements or if there are no “Funding Dates” occurring under Servicing Advance Financing Agreements, the “Servicing Advance Payment Date” for Additional Servicing Advance Receivables shall be dates mutually agreed upon between the Seller and the Purchaser as contemplated on Schedule VI hereto.
“ Servicing Advance Receivable Purchase Price ” means, with respect to each Servicing Advance Payment Date, for each Servicing Advance Receivable that has arisen since the last Servicing Advance Payment Date, the outstanding amount that is reimbursable under the related Servicing Agreement with respect to such Servicing Advance Receivable as of such Servicing Advance Payment Date.
“ Servicing Agreement ” means each of the servicing agreements related to the transactions described on Schedule I governing the rights, duties and obligations of Seller as servicer under such agreements.
“ Servicing Fee Collections ” means, for any calendar month in respect of the Deferred Servicing Agreements, any collections in respect of any Servicing Fees received and remitted to the Purchaser in respect of such calendar month (other than collections in respect of DSF).
“ Servicing Fee Rate ” means 0.235% per annum.
“ Servicing Rights Assets ” shall have the meaning set forth in Section 2.2 .
“ Servicing Transfer Date ” means, with respect to each Servicing Agreement, the date on which all of the Third Party Consents related to such Servicing Agreement necessary to transfer the related Servicing Rights to Seller are received, all other conditions precedent thereto have been satisfied, and the Purchaser has agreed in writing that it is the “Servicer” thereunder or such later date mutually agreed to by Seller and Purchaser.
“ Special Damages ” shall have the meaning set forth in Section 8.3(d) .
“ Specified Amounts ” means, in respect of any calendar month, the sum of (i) the Servicing Fee Collections for such month and (ii) the aggregate principal balance of indebtedness that the Purchaser (or any applicable subsidiary thereof) was able to borrow during such month against the pledge of DSF arising in connection with the Rights to MSRs during such calendar month.
“ Specified Receivables ” means the Servicing Advance Receivables and DSF transferred by the Seller to an Advance SPE prior to the Closing Date in respect of which no Funding Date has occurred on or prior to the Closing Date.
“ SPS Subservicing Agreement ” means the Subservicing Agreement dated as of June 28, 2013 between Nationstar Mortgage LLC and Select Portfolio Servicing, Inc. attached as Schedule IV hereto.
“ Sub-Administration Agreement ” means that certain Sub-Administration Agreement, dated as of the date hereof, between the Servicer and Nationstar, as the same may be amended, restated, supplemented or otherwise modified from time to time from time to time.
“ Subservicing Agreement ” means that certain Master Subservicing Agreement, dated on or after the date hereof, between the Seller, as subservicer, and the Purchaser, as servicer, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
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“ Subservicing Supplement ” means a Subservicing Supplement entered into between the Seller and the Purchaser on or after the date hereof in connection with the transactions contemplated hereby.
“ Summary Schedule ” shall have the meaning set forth in Section 4.5(a) .
“ Termination Event ” means the occurrence of any one or more of the following events (whatever the reason for the occurrence of such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Seller fails to remit any payment required to be made under the terms of this Sale Supplement (to the extent not resulting solely from Purchaser failing to purchase a Servicing Advance Receivable required to be purchased by Purchaser under this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which continues unremedied for a period of one (1) Business Day after the date on which written notice of such failure shall have been given by Purchaser to Seller;
(b) Seller fails to deliver any required information or report in a manner that is complete in all material respects as required pursuant to this Sale Supplement in the manner and time frame set forth herein, which failure continues unremedied for a period of two (2) Business Days after the date on which written notice of such failure shall have been given to Seller by Purchaser;
(c) Seller fails to observe or perform in any material respect any other covenant or agreement of Seller set forth in the Agreement, this Sale Supplement or any Current Excess Servicing Spread Acquisition Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(d) a material breach by Seller of any representation and warranty made by it in the Agreement, this Sale Supplement (other than a representation contained in Section 4.9 of this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which breach continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(e) Seller fails to maintain residential primary servicer ratings for subprime loans of at least “Average” by Standard & Poor’s Rating Services, a division of Standards & Poor’s Financial Services LLC (or its successor in interest);
(f) Seller ceases to be a Fannie Mae, Freddie Mac or FHA approved servicer;
(g) the occurrence of any of the items set forth in clauses (ii) or (iii) of the definition of Material Adverse Effect;
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(h) any of the conditions specified in the applicable “Servicer Default”, “Servicer Event of Default,” “Event of Default,” “Servicing Default” or “Servicer Event of Termination” or similar sections of any Deferred Servicing Agreement or any related Underlying Document shall have occurred with respect to Seller for any reason not caused by Purchaser (other than as a result of any delinquency or loss trigger which was already triggered as of the Closing Date with respect to such Deferred Servicing Agreement); provided that Seller shall be entitled to any applicable cure period set forth in such Deferred Servicing Agreement or Underlying Document;
(i) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Seller and such decree or order shall have remained in force undischarged or unstayed for a period of thirty (30) days;
(j) Seller shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Seller or of or relating to all or substantially all of its property;
(k) Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(l) the occurrence of any “Facility Early Amortization Event”, “Event of Default” or “Target Amortization Event” under and as defined in each Servicing Advance Financing Agreement by or related to the Seller and the breach of any portfolio test therein (including, without limitation, any reimbursement rate trigger and/or any interest coverage trigger);
(m) the occurrence of any “Termination Event” under any other Sale Supplement;
(n) Seller shall deliver any information to Purchaser in connection with this Agreement that is inaccurate and Purchaser determines acting reasonably that such inaccurate information has caused a “material weakness” of the financial reporting of Purchaser, New Residential Investment Corp. or any Subsidiary thereof; or
(o) with respect to any Servicing Agreement, any related Current Excess Servicing Spread Buyer exercizes “Control” in respect the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to the related Current Excess Servicing Spread Acquisition Agreement as permitted under such Current Excess Servicing Spread Acquisition Agreement.
“ Third-Party Claim ” shall have the meaning set forth in Section 8.3(b) .
“ Transferred Assets ” means the Rights to MSRs, the Advance SPEs and the Transferred Servicing Rights.
“ Transferred Receivables Assets ” shall have the meaning set forth in Section 3.3 .
“ Transferred Servicing Agreement ” means, as of any date of determination, a Servicing Agreement with respect to which the related Servicing Rights have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement or to its designee in accordance with the terms of this Sale Supplement on or prior to such date. For the avoidance of doubt, on the Closing Date no Servicing Agreement is a Transferred Servicing Agreement.
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“ Transferred Servicing Rights ” means, as of any date of determination, any Servicing Rights that have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement on or prior to such date.
“ Total Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ UCC ” shall have the meaning set forth in Section 3.3 .
“ Underlying Documents ” means each PSA related to the transactions described on Schedule I .
(b) Any capitalized term used but not defined in this Sale Supplement shall have the meaning assigned to such term in the Agreement.
1.2 Reference to the Master Servicing Rights Purchase Agreement . Each of Seller and Purchaser agrees that (a) this Sale Supplement is a “Sale Supplement” executed pursuant to Section 2.1 of the Agreement, (b) the terms of this Sale Supplement are hereby incorporated into the Agreement with respect to the Servicing Agreements and the related Mortgage Loans to the extent set forth therein and herein, and (c) the terms of this Sale Supplement apply to the Servicing Agreements specified herein and not to any other “Servicing Agreement” as that term is used in the Agreement. In the event of any conflict between the provisions of this Sale Supplement and the Agreement, the terms of this Sale Supplement shall prevail.
ARTICLE 2
PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED
LIABILITIES
2.1 Assignment and Conveyance of Rights to MSRs .
(a) As of the Closing Date, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, all of its right, title and interest in and to all of the Rights to MSRs for each of the Servicing Agreements.
(b) On and after the Closing Date, Purchaser shall be obligated to maintain a complete and accurate list of Servicing Agreements that are Deferred Servicing Agreements and Transferred Servicing Agreements, as the same shall be amended and modified from time to time in connection with Deferred Servicing Agreements becoming Transferred Servicing Agreements as contemplated by the terms and provisions of this Sale Supplement. The list of Deferred Servicing Agreements and Transferred Servicing Agreements maintained by Purchaser under this Section 2.1(b) shall be (x) available for inspection by Seller at any time during normal business hours and (y) presumed to be accurate absent manifest error on the part of Purchaser.
2.2 Automatic Assignment and Conveyance of Servicing Rights . As of the Servicing Transfer Date with respect to each Servicing Agreement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, without further action by any Person, all of its right, title and interest in and to the following assets (the “ Servicing Rights Assets ”):
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(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to such Servicing Agreement, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) all Ancillary Income and Prepayment Interest Excess received as of or after the related Servicing Transfer Date under such Servicing Agreements;
(c) all Custodial Accounts and Escrow Accounts related to such Servicing Agreement and amounts on deposit therein;
(d) all files and records in Seller’s possession or control, including the related database, relating to the Servicing Rights Assets specified in clauses (a), (b) and (c);
(e) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to such Servicing Rights Assets and/or the Assumed Liabilities;
(f) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(g) any proceeds of any of the foregoing.
2.3 MSR Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, as consideration for the purchase of the Rights to MSRs and the Servicing Rights Assets, on the Closing Date, Purchaser shall pay the MSR Purchase Price for each Servicing Agreement to Seller in immediately available funds to an account designated in writing by Seller to Purchaser.
2.4 Assumed Liabilities and Excluded Liabilities .
(a) Upon the terms and subject to the conditions set forth herein and in the Agreement, Purchaser shall assume, (i) the obligation to pay the Servicing Advance Receivables Purchase Price and the other obligations on account of the Servicing Agreements set forth in the Agreement and this Sale Supplement and (ii) as of or after the Servicing Transfer Date for each Servicing Agreement, all of the duties, obligations, and liabilities of Seller (other than the Excluded Liabilities) as servicer under each such Servicing Agreement accrued and pertaining solely to the period from and after such Servicing Transfer Date (the “ Assumed Liabilities ”).
(b) Purchaser hereby agrees to act as servicer under each Servicing Agreement following the related Servicing Transfer Date and assumes responsibility for the due and punctual performance and observance of each covenant and condition to be performed or observed by the servicer under the applicable Servicing Agreement, including the obligation to service each Mortgage Loan in accordance with the terms of the related Servicing Agreement;
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provided , however , that the parties hereto acknowledge and agree that neither Purchaser nor any successor servicer assumes any liabilities of Seller, or any obligations of Seller relating to any period of time prior to the applicable Servicing Transfer Date. Seller hereby acknowledges that neither this Sale Supplement nor the Agreement limits or otherwise releases it from its liabilities for its acts or omissions as the servicer under the Servicing Agreements prior to the related Servicing Transfer Date. Purchaser hereby acknowledges that Seller shall have no further obligation as servicer under any of the Servicing Agreements on and after the related Servicing Transfer Date, except to the extent set forth in this Sale Supplement, the Agreement, the Subservicing Agreement and the Subservicing Supplement.
(c) Notwithstanding anything to the contrary contained herein, Purchaser does not assume any duties, obligations or liabilities of any kind, whether known, unknown, contingent or otherwise, (i) not relating to the Transferred Servicing Rights or the Assumed Liabilities, (ii) attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date, (iii) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date, (iv) relating to any representation and warranty made by Seller or any of its Affiliates with respect to the related Mortgage Loans or the Transferred Assets under the Servicing Agreements or (v) relating to the Seller’s capacity as “Administrator” of any Advance SPE Issuer or as a member of any Advance SPE prior to the date hereof (the “ Excluded Liabilities ”). Without limiting the generality of the foregoing, it is not the intention that the assumption by Purchaser of the Assumed Liabilities shall in any way enlarge the rights of any third parties relating thereto. Nothing contained in the Agreement or this Sale Supplement shall prevent any party hereto from contesting matters relating to the Assumed Liabilities with any third party obligee.
(d) From and after the related Servicing Transfer Date, except as otherwise provided for in Section 8.3 of this Sale Supplement, (i) Purchaser shall have complete control over the payment, settlement or other disposition of the Assumed Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto, subject to the terms of the related Servicing Agreements and (ii) Seller shall have complete control over the payment, settlement or other disposition of the Excluded Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto. Except as otherwise provided in this Sale Supplement, (i) Seller shall promptly notify Purchaser of any claim made against Seller with respect to the Assumed Liabilities or the Transferred Assets and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Assumed Liabilities or Transferred Assets without the prior written consent of Purchaser and (ii) Purchaser shall promptly notify Seller of any claim made against Purchaser with respect to the Excluded Liabilities and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Excluded Liabilities without the prior written consent of Seller.
2.5 Remittance of Servicing Fees and Related Amounts . On each Fee Remittance Date, the Seller shall remit to an account designated by the Purchaser any collections in respect of any Servicing Fees for a month received by the Seller during the prior monthly collection period (other than collections in respect of DSF). Notwithstanding the foregoing, collection and remittance of all collections on account of DSF shall be made in accordance with Section 3.6 . If any Current Excess Servicing Spread Buyer excercizes “Control” of the “Third Party Controlled Cusotidal Account” pursuant to and in accordance with any Current Excess Servicing Spread Acquisition Agreement related to the Servicing Agreements, the Seller shall remit to Purchaser (and shall direct in writing any applicable depositary institution to remit to the Purchaser directly), any payments on account of the “Base Servicing Fee” thereunder directly to the
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Purchaser. If a Termination Event has occurred, the Seller shall, following Purchaser’s request therefor, withdraw from time to time collections on the Servicing Fees from the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to a Current Excess Servicing Spread Acquisition Agreement amount in respect of the “Base Servicing Fee” thereunder as permitted by the related Current Excess Servicing Spread Acquisition Agreement and remit such amounts to the Purchaser as payments on account of the Servicing Fees in respect of the Servicing Agreements.
2.6 Payment of Estimated Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, Purchaser shall pay the Estimated Purchase Price to Seller at the Closing in immediately available funds to an account designated in writing by Seller to Purchaser. The Estimated Purchase Price shall be reconciled to the final Purchase Price in accordance with Section 2.5 of the Agreement.
ARTICLE 3
PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES AND ADVANCE SPES
3.1 Purchase and Sale of Advance SPEs . As of the Closing Date, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, all of its right, title and interest in and to each of the Advance SPEs.
3.2 Advance SPE Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, as consideration for the purchase of the Advance SPEs, Purchaser shall pay the Advance SPE Purchase Price to Seller in immediately available funds to an account designated in writing by Seller to Purchaser.
3.3 Assignment and Conveyance of Servicing Advance Receivables . Commencing on the Closing Date, and continuing until the close of business on the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller hereby sells, conveys, assigns and transfers to Purchaser, and Purchaser acquires from Seller, without recourse except as provided herein and in the Servicing Advance Financing Agreements to which Seller is a party, free and clear of any Liens, all of Seller’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Servicing Advance Receivable (i) in existence on the Closing Date that arose under the Servicing Agreements and is owned by Seller as of the Closing Date (in each case, to the extent not previously transferred to an Advance SPE), if any (the “ Initial Servicing Advance Receivables ”), (ii) in existence on any Business Day on or after the Closing Date that arises under any Servicing Agreement prior to the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement (“ Additional Servicing Advance Receivables ”), and (iii) in the case of both Initial Servicing Advance Receivables and Additional Servicing Advance Receivables, all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the Uniform Commercial Code in effect in all applicable jurisdictions (the “ UCC ”)), together with all rights of Seller to enforce such Initial Servicing Advance Receivables and Additional Servicing Advance Receivables (collectively, the “ Transferred Receivables Assets ”). Until the related Servicing Transfer Date, Seller shall, automatically and without any further action on its part, sell, assign, transfer and convey to Purchaser, on each Business Day, each Additional Servicing Advance Receivable not previously transferred to Purchaser and Purchaser shall, automatically and without further action on its part, purchase each such Additional Servicing Advance Receivable. The Purchaser shall pay the Seller the Servicing Advance Receivables Purchase Price in accordance with Section 3.4 . The parties acknowledge and agree that so long as the Servicing Advance Receivables with respect to a Servicing
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Agreement are being sold by Purchaser to the Advance SPEs pursuant to the Servicing Advance Financing Agreements, the sale of such Servicing Advance Receivables by Seller to Purchaser shall be made pursuant to and in accordance with the provisions of the Servicing Advance Financing Agreements, and Seller covenants and agrees to comply with the provisions of such Servicing Advance Financing Agreements with respect to such Servicing Advance Receivables. For the avoidance of doubt, the Purchaser shall not have any obligation to pay any purchase price to the Seller in connection with the purchase of deferred servicing fees related to any Excluded Amounts (it being understood that the Purchaser will acquire such deferred servicing fees in accordance with clause (d) of the definition of “Rights to MSRs”).
3.4 Servicing Advance Receivables Purchase Price . In consideration of the sale, assignment, transfer and conveyance to Purchaser of the Servicing Advance Receivables and related Transferred Receivables Assets, on the terms and subject to the conditions set forth in this Sale Supplement, Purchaser shall, on the Servicing Advance Payment Date immediately following the date on which the related Servicing Advance was made (with respect to any Servicing Advance other than a P&I Advance) or on the related Servicing Advance Payment Date (with respect to any Servicing Advance that is a P&I Advance), pay and deliver to an account designated in writing by Seller to Purchaser, in immediately available funds, a purchase price equal to the applicable Servicing Advance Receivables Purchase Price; provided that Seller shall have complied with the terms of Section 3.3 and Section 3.5 with respect to the related Servicing Advance Receivable. In addition, the Purchaser hereby agrees to pay to the Seller on the initial Servicing Advance Payment Date an amount equal to the outstanding amount of the Specified Receivables as of the Closing Date.
3.5 Servicing Advances . Seller covenants and agrees that each Servicer Advance made by Seller under the Servicing Agreements prior to the related Servicing Transfer Date shall (a) be required to be made pursuant to the terms of the related Deferred Servicing Agreement and comply with the terms of such Deferred Servicing Agreement and Applicable Law, (b) comply with Seller’s advance policies and stop advance policies and procedures and not constitute a nonrecoverable Servicer Advance as determined by Seller in accordance with the related Servicing Agreement as of the date Seller made such Servicer Advance and (c) be supported by customary backup documentation. Seller agrees to provide weekly reports to Purchaser of Servicer Advances made by Seller under the Deferred Servicing Agreements and deliver to Purchaser such customary backup documentation relating to any Servicer Advance promptly upon request by Purchaser. In the event Seller cannot provide, or cause to be provided to Purchaser any customary backup documentation, and Purchaser is unable to be reimbursed for such Servicer Advance solely as a result of such failure, Seller shall reimburse Purchaser for the amount of such unreimbursed Servicer Advances within thirty (30) days of Purchaser’s written request, to the extent Purchaser paid Seller for such amounts and such amounts remain unreimbursed.
3.6 Reimbursement of Servicing Advances; Repayment of DSF .
(i) Seller shall, to the extent permitted under any Deferred Servicing Agreement cause the reimbursement of any Servicer Advances under the Deferred Servicing Agreements to be made directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as reimbursement of any Servicer Advance. Any such amounts shall be remitted in accordance with Purchaser’s written directions.
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(ii) Seller shall, to the extent permitted under any Deferred Servicing Agreement remit collections of DSF under the Deferred Servicing Agreements directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as payment of DSF and will not net any amounts owing to Seller for fees hereunder or under the Subservicing Agreement out of any DSF. Any such amounts shall be remitted in accordance with Purchaser’s written directions. Seller agrees that it will (i) remit collections on DSF to the Purchaser and (ii) retain all collections on all deferred servicing fees, other than DSF in each case, related to the same Deferred Servicing Agreement, on a pro-rata basis based on the outstanding amount of DSF and the outstanding amount of such other deferred servicing fees.
(iii) The Purchaser hereby designates the account identified as the “Collection and Funding Account” in the Amended and Restated Indenture of the CS Advance SPE Issuer, in the case of the Servicing Agreements identified on Part 1 of Schedule I hereto as the account into which remittances of collections in respect of Servicing Advance Receivables and DSF under such Servicing Agreements shall be deposited.
(iv) The Purchaser hereby designates the account identified as the “Collection and Funding Account” in the Amended and Restated Indenture of the Barclays Advance SPE Issuer, in the case of the Servicing Agreements identified on Part 2 of Schedule I hereto as the account into which remittances of collections in respect of Servicing Advance Receivables and DSF under such Servicing Agreements shall be deposited.
3.7 Servicing Advances . Seller covenants and agrees to punctually perform, at its own expense, all administrative functions and duties under the (i) Sub-Administration Agreement and (ii) Servicing Advance Financing Agreements (including, without limitation, the remittance of collections on the “Receivables” and all reporting with respect to the Receivables) and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets and other administrative and reporting tasks as reasonably requested by the Purchaser from time to time in connection with the Servicing Advance Financing Agreements or any such refinancings, replacements or restructurings thereof. Seller agrees to cooperate with Purchaser in connection with any ratings on any of the obligations under any Servicing Advance Financing Agreements and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Purchaser as of (a) each of the Closing Date and each Sale Date or (b) as of such other dates specified below:
4.1 General Representations . Each of the representations and warranties set forth in Article 3 of the Agreement are true and correct.
4.2 Title to Transferred Assets . From and including the Closing Date until such Servicing Rights Assets are transferred to Purchaser under Section 2.2 , Seller shall be the sole holder and owner of the Servicing Rights Assets and shall have good and marketable title to the Servicing Rights Assets, free and clear of any Liens. Upon the sale of such Servicing Rights Assets pursuant to Section 2.2, Seller will transfer to Purchaser good and marketable title to the Servicing Rights Assets free and clear of any Liens. Seller is the sole holder and owner of the Rights to MSRs and the Advance SPEs and the sale and delivery to Purchaser of the Rights to MSRs and the Advance SPEs pursuant to the provisions of this Sale
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Supplement will transfer to Purchaser good and marketable title to the Rights to MSRs and the Advance SPEs free and clear of any Liens. Each Advance SPE is the owner of all of the equity interests of the related Advance SPE Issuer, free and clear of any Liens. Each Advance SPE Issuer is the owner of all outstanding Servicing Advance Receivables and DSF arising under the Servicing Agreements on or before the Closing Date.
4.3 Right to Receive Servicing Fees . Seller is entitled to receive Servicing Fees as servicer under each Servicing Agreement, and the New York Uniform Commercial Code permits the Seller to transfer the Rights to MSRs to Purchaser under the Agreement and this Sales Supplement without violation of any applicable Servicing Agreement. The Servicing Fees included in the Rights to MSRs represent the right to receive current Servicing Fees collections for each month in an amount equal to the Servicing Fee Rate multiplied by the aggregate unpaid principal balance of all Mortgage Loans serviced by the Seller subject to the Servicing Agreements as of the related date of determination (which such amount is equal to the “Base Servicing Fee” under the applicable Current Excess Servicing Spread Acquisition Agreement). If the Purchaser does not receive the full amount of such current Servicing Fee pursuant to Section 2.5 in respect of any month (because the underlying mortgagor does not make the required payments or otherwise), the Purchaser will have a right to payment for such unpaid Servicing Fees as DSF.
4.4 Servicing Agreements and Underlying Documents . Schedule I hereto contains a list of the transactions related to all Servicing Agreements (other than the Underlying Documents) related to the Servicing Rights, in each case with all amendments and modifications thereto, or supplements thereto with respect to such Servicing Rights.
4.5 Mortgage Pool Information, Related Matters .
(a) Seller has delivered to Purchaser one or more summary schedules which set forth information with respect to each Mortgage Pool relating to the Servicing Rights (the “ Summary Schedules ”). Seller acknowledges that Purchaser has relied on such Summary Schedules to determine the Purchase Price it was willing to pay for the Transferred Assets.
(b) The Summary Schedules, the Mortgage Loan Schedule and the Database are true, accurate and complete in all material respects as of the related Cut-off Date or such other date specified thereon.
(c) The Mortgage Loan Schedule indicates, by code reference, which of the Mortgage Loans have been converted into REO Properties as of the Cut-off Date.
4.6 Enforceability of Servicing Agreements .
(a) Seller has delivered to Purchaser, on or prior to the related Closing Date, true and complete copies of all Servicing Agreements related to the transactions listed on Schedule I hereto and all amendment thereto and all Underlying Documents and all amendments thereto. There are no other written or oral agreements binding upon Seller or Purchaser that modify, supplement or amend any such Servicing Agreement or Underlying Document.
(b) Seller has not received written notice of any pending or threatened cancellation or partial termination of any Servicing Agreement or Underlying Document or any written notice of any pending or threatened termination of Seller as servicer of any of the Mortgage Loans.
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(c) On and prior to the related Servicing Transfer Date, each Servicing Agreement and each of the Underlying Documents is or was a valid and binding obligation of Seller, is or was in full force and effect and enforceable against Seller in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors rights generally and general principles of equity (regardless of whether considered in a proceeding of law or in equity).
4.7 Compliance With Servicing Agreements .
(a) Seller has serviced the Mortgage Loans subject to the Servicing Agreements and has kept and maintained complete and accurate books and records in connection therewith, all in accordance with Applicable Requirements, has made all remittances required to be made by it under each Servicing Agreement and is otherwise in compliance in all material respects with all Servicing Agreements and the Applicable Requirements.
(b) (i) No early amortization event, servicer default, servicer termination event, event of default or other default or breach has occurred under any Servicing Agreement or any Underlying Document (except with respect to the delinquency or loss performance triggers identified in the Summary Schedules), and (ii) no event has occurred, which with the passage of time or the giving of notice or both would: (A) constitute a material default or breach by Seller under any Servicing Agreement, Underlying Document or under any Applicable Requirement; (B) permit termination, modification or amendment of any such Servicing Agreement or Underlying Document by a third party without the consent of Seller; (C) enable any third party to demand that either Seller or Purchaser either incur any repurchase obligations pursuant to a Servicing Agreement or an Underlying Document or provide indemnification for any amount of losses relating to a breach of a loan representation or warranty; (D) impose on Seller or Purchaser sanctions or penalties in respect of any Servicing Agreement or Underlying Document; or (E) rescind any insurance policy or reduce insurance benefits in respect of any Servicing Agreement or Underlying Document which would result in a material breach or trigger a default of any obligation of Seller under any Servicing Agreement or Underlying Document.
(c) Other than the SPS Subservicing Agreement, there are no agreements currently in place with any subservicers to perform any of Seller’s duties under the Servicing Agreements; provided, however , the foregoing shall not prohibit the use by Seller of third-party vendors to perform discrete servicing functions in the ordinary course of business or otherwise in accordance with the Subservicing Agreement.
(d) Each report and officer’s certification prepared by Seller as servicer pursuant to a Servicing Agreement is true and correct in all material respects. Seller has previously made available to Purchaser a correct and complete description of the policies and procedures used by Seller in connection with servicing the Mortgage Loans related to the Servicing Agreements.
(e) In the preceding twelve (12) month period, no Governmental Authority, Investor, Insurer, rating agency, trustee, master servicer or any other party to a Servicing Agreement has provided written notice to Seller claiming or stating that Seller has violated, breached or not complied with any Applicable Requirements in connection with the servicing of the related Mortgage Loans which has not been resolved by Seller.
(f) All Custodial Accounts and Escrow Accounts have been established and continuously maintained in accordance with Applicable Requirements. All Custodial Account and Escrow Account balances required by the Mortgage Loans and paid for the account of the Mortgagors under the related Mortgage Loans have been credited properly to the appropriate account and have been retained in and disbursed from the appropriate account in accordance with Applicable Requirements in all material respects.
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4.8 No Recourse . None of the Servicing Agreements or other contracts to be assumed by Purchaser hereunder provide for Recourse to Seller.
4.9 The Mortgage Loans .
(a) Each of the Mortgage Loans and REO Properties related to each Servicing Agreement has been serviced in accordance with Applicable Requirements in all material respects.
(b) Except as disclosed on the Mortgage Loan Schedule, in the related Database and in the related Loan File and consistent with the requirements of the related Servicing Agreement, Seller has not waived any default, breach, violation or event of acceleration under any Mortgage Loan, except to the extent that any such waiver is permitted under the related Servicing Agreement and reflected in the Mortgage Loan Schedule, the related Database and the related Loan File and the disclosure relating to such waiver is reflected consistently in all material respects among the related Mortgage Loan Schedule, the related Database and the related Loan File. The Mortgage related to each Mortgage Loan related to the Servicing Agreements has not been satisfied, cancelled or subordinated, in whole or in part, and except as permitted under the related Servicing Agreement, the related Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, or subordination.
(c) There is in force with respect to each Mortgaged Property and REO Property related to a Servicing Agreement a hazard insurance policy (including any policy in effect under a forced place insurance policy) and, if applicable, a flood insurance policy that provides, at a minimum, for the coverage as required by the applicable Servicing Agreement. Seller and any prior servicer or subservicer under the Servicing Agreements has taken all necessary steps to maintain any hazard insurance policy, flood insurance policy, primary mortgage insurance policy, and title insurance policy as required under the Servicing Agreements.
(d) Seller is not aware of any repurchase requests or demands being made or threatened to be made with respect to any Mortgage Loans related to the Servicing Agreements in excess of $5 million with respect to any Servicing Agreement.
(e) Except as disclosed in the related Database, Seller has not received notice from any Mortgagor with respect to the Mortgage Loans related to the Servicing Agreements of a request for relief pursuant to or invoking any of the provisions of the Servicemembers Civil Relief Act or any similar law which would have the effect of suspending or reducing the Mortgagor’s payment obligations under a Mortgage Loan or which would prevent such loan from going into foreclosure.
(f) With respect to each adjustable rate Mortgage Loan, Seller and each prior servicer has complied in all material respects with all Applicable Requirements regarding interest rate and payment adjustments.
(g) Each first lien Mortgage Loan is covered by a valid and freely assignable, life of loan, tax service contract, and flood tracking services contract, in full force and effect. All flood zone determination information provided to Purchaser is true and correct in all material respects.
(h) There are no actions, claims, litigation or governmental investigations pending or, to the knowledge of Seller, threatened, against Seller, or with respect to any Servicing Agreement or any
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Mortgage Loan, which relate to or affect Seller’s rights with respect to the Servicing Rights or Seller’s right to sell, assign and transfer the Servicing Rights or the Rights to MSRs or to receive any Servicing Fee, which could reasonably be expected to have a Material Adverse Effect individually or in the aggregate.
(i) Payments received by Seller with respect to any Mortgage Loans related to the Servicing Agreements have been remitted and properly accounted for as required by Applicable Requirements in all material respects. All funds received by Seller in connection with the satisfaction of Mortgage Loans, including foreclosure proceeds and insurance proceeds from hazard losses, have been deposited in the appropriate Custodial Account or Escrow Account and all such funds have been applied to pay accrued interest on the Mortgage Loans, to reduce the principal balance of the Mortgage Loans in question, or for reimbursement of repairs to the Mortgaged Property or as otherwise required by Applicable Requirements or are on deposit in the appropriate Custodial Account or Escrow Account.
(j) Seller is not aware of any Person that has issued any notice or written intention to exercise the optional call or optional redemption provisions under any of the related Servicing Agreements.
(k) No fraudulent action has taken place on the part of Seller in connection with its servicing of any Mortgage Loan related to the Servicing Agreement.
(l) Except with respect to partial releases, actions required by a divorce decree, assumptions, or as otherwise permitted under Applicable Requirements and documented in the Loan File and the Database, (i) the terms of each Mortgage Note and Mortgage have not been modified by Seller or any prior servicer, (ii) no party thereto has been released in whole or in part by Seller or any prior servicer and (iii) no part of the Mortgaged Property has been released by Seller or any prior servicer.
4.10 Servicing Advance Receivables .
(a) From and including the Closing Date until such Servicing Advance Receivable is transferred to Purchaser under Section 3.3 , other than those Servicing Advance Receivables previously sold to an Advance SPE (which are owned by such Advance SPE or the related Advance SPE Issuer), Seller is the sole holder and owner of each Servicing Advance Receivable and has good and marketable title to such Servicing Advance Receivable. Seller has not previously assigned, transferred or encumbered the Servicing Advance Receivables or DSF other than pursuant to the Agreement, this Sale Supplement and the Servicing Advance Financing Agreements. The sale and delivery to Purchaser of the Servicing Advance Receivables pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Servicing Advance Receivables free and clear of any Liens (other than the Liens created pursuant to the Servicing Advance Financing Agreements).
(b) Each Servicing Advance Receivable transferred to Purchaser under Section 3.3 , is at the time of such transfer a valid and existing account or payment intangible owing to Seller and is carried on the books of Seller at or less than the amount actually advanced or accrued net of any charge-offs or other adjustments by Seller. Seller has not received any notice from a master servicer, securities administrator, trustee, Insurer, Investor or any other Person, which disputes or denies a claim by Seller for reimbursement or payment in connection with any such Servicing Advance Receivable. Each Servicer Advance made by Seller (and each trailing invoice received by Purchaser on or after the related Servicing Transfer Date for services rendered prior to such Servicing Transfer Date) that is reimbursed or paid by Purchaser to Seller or a third party service provider is fully reimbursable to Purchaser as a Servicer Advance under the terms of the related Servicing Agreement.
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(c) Each Servicer Advance made by Seller was made in accordance with Applicable Requirements and Seller’s advance policies and stop advance policies and procedures in all material respects, and is not subject to any set-off or claim that could be asserted against Purchaser. No Servicer Advance made by Seller or any prior servicer under a Servicing Agreement and not reimbursed or paid to Seller prior to the related Sale Date is a Non-Qualified Servicer Advance. Seller has not received any written notice from any Person in which such Person disputes or denies a claim by Seller for reimbursement in connection with a specifically identified Servicer Advance.
4.11 Servicing Agreement Consents and Other Third Party Approvals . None of the execution, delivery and performance of the Agreement and this Sale Supplement by Seller, the transfers of Servicing Rights under Section 2.2 , the transfer of Rights to MSRs under Section 2.1 , the transfers of Servicing Advance Receivables under Section 3.3 , the transfer of the Advance SPEs under Section 3.1 and the other transactions contemplated hereby require any consent, approval, waiver, authorization, penalties, notice or filing to be obtained by Seller or Purchaser from, or to be given by Seller or Purchaser to, or made by Seller or Purchaser with, any Person, except for, with respect to the Servicing Rights Assets, the Third Party Consents.
4.12 Servicing Advance Financing Agreements .
(a) Other than those Servicing Agreements set forth on Schedule V, all of the Servicing Agreements are “Facility Eligible Servicing Agreements,” and each Servicer Advance and each DSF owned by an Advance SPE is a “Facility Eligible Receivable,” each as defined under the Servicing Advance Financing Agreements. Each Servicing Agreement has been approved under a Servicing Advance Financing Agreement and, as of the date hereof, the eligibility of the related Servicing Advance Receivables, DSF and related eligibility categorization of the Servicing Advance Receivables as set forth on Schedule 1 of each of the Indentures referenced in the definition of “Servicing Advance Financing Agreement” is true and correct.
(b) All of the representations and warranties of Seller in the Servicing Advance Financing Agreements are true and correct in all material respects.
(c) Each of Seller and its Affiliates have complied in all material respects with the terms of the existing Servicing Advance Financing Agreements.
4.13 Anti-Money Laundering Laws . Seller has complied with all applicable anti-money laundering laws and regulations.
4.14 Servicer Ratings . As of the Closing Date, Seller has a residential primary servicer rating for the servicing of subprime residential mortgage loans issued by S&P of “above Average”.
4.15 Eligible Servicer . Seller meets the eligibility requirements of a servicer and a subservicer under the terms of each Servicing Agreement and Underlying Document.
4.16 HAMP . Seller has entered into a Commitment to Purchase Financial Instrument and Servicer Participation Agreement with Fannie Mae, as financial agent of the United States, which agreement is in full force and effect.
4.17 Advance SPEs . None of the Advance SPEs or the Advance SPE Issuers has any obligations or liabilities other than those arising under the Servicing Advance Financing Agreements in the ordinary course of business. None of the Advance SPEs or the Advance SPE Issuers has entered into any transactions other than the Servicing Advance Financing Agreements and agreements incidental thereto.
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4.18 Servicing Advance Financing Agreements .
(a) No Event of Default, Facility Early Amortization Event or Target Amortization Event has occurred and is continuing under any of the Servicing Advance Financing Agreements and no event has occurred that, with the giving of notice or the passage of time, would constitute an Event of Default, Facility Early Amortization Event or Target Amortization Event under any of the Servicing Advance Financing Agreement.
(b) The Seller has delivered true and correct copies of each of the Servicing Advance Financing Agreements to the Purchaser.
(c) The Seller has delivered to the Purchaser true and correct copies of each of the reports delivered by the Verification Agents pursuant to the Servicing Advance Financing Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions to the Purchase of the Rights to MSRs and the Advance SPEs . Purchaser’s obligations to (i) purchase the Rights to MSRs pursuant to Section 2.1 and the Servicing Rights pursuant to Section 2.2 and to pay the Purchase Price (and the Estimated Purchase Price) pursuant to Section 2.3 and Section 2.6 and (ii) purchase the Advance SPEs pursuant to Section 3.1 and to pay the Advance SPE Purchase Price pursuant to Section 3.4 are subject to the satisfaction or Purchaser’s waiver of each of the conditions set forth in Section 6.1 and Section 6.3 of the Agreement (except the requirement to deliver the Third Party Consents necessary to transfer the Servicing Rights pursuant to Section 2.2 ) with respect to each of the Servicing Agreements and each of the Servicing Rights, as applicable, on the Closing Date and the satisfaction of each of the following conditions:
(a) Seller shall have obtained all consents or approvals required to be obtained to consummate the transfers of the Rights to MSRs to Purchaser pursuant to Section 2.1 and the equity in the Advance SPEs pursuant to Section 3.1 ;
(b) The Purchaser shall have received evidence acceptable to it that each related Servicing Agreement has been designated and approved as a “Facility Eligible Servicing Agreement” under a Servicing Advance Financing Agreement;
(c) No Termination Event shall be continuing hereunder or under any other Sale Supplement and no other event shall be continuing that, with the passage of time, the giving of notice or both, would constitute a Termination Event hereunder or under any other Sale Supplement;
(d) The Purchaser shall have received an acceptable opinion letter as to “true sale” matters of Bingham McCutchen LLP; and
(e) The amendment and restatement of the Servicing Advance Financing Agreements contemplating the transactions contemplated hereby shall have been executed and delivered by each of the parties thereto and all of the conditions precedent to the effectiveness of the amended and restated Servicing Advance Financing Agreements set forth therein have been satisfied.
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ARTICLE 6
SERVICING MATTERS
6.1 Seller as Servicer . Except as expressly set forth in this Sale Supplement, Seller shall perform all of its duties and obligations of under each Servicing Agreement until the related Servicing Transfer Date and shall at all times until the related Servicing Transfer Date meet any standards and fulfill any requirements applicable to Seller under each Servicing Agreement.
6.2 Servicing . Except as otherwise specifically provided in this Sale Supplement, Seller covenants and agrees to service and administer each Mortgage Loan related to a Servicing Agreement from and after the Closing Date until the related Servicing Transfer Date in accordance with Applicable Law, the terms of the related Mortgage Loan Documents and any applicable private mortgage insurance or pool insurance, the standards, requirements, guidelines, procedures, restrictions and provisions of the related Servicing Agreement and Underlying Documents governing the duties of Seller thereunder, this Sale Supplement and any other Applicable Requirements. Without limiting the foregoing, Seller covenants and agrees that it shall perform its obligations pursuant to this Sale Supplement in a manner that will not cause the termination of Seller as servicer under any Deferred Servicing Agreement, including any termination based on Seller’s management of delinquency or loss performance with respect to Mortgage Loans related to such Deferred Servicing Agreement. The parties acknowledge and agree that any termination of Seller as servicer with respect to a Servicing Agreement pursuant to a delinquency or loss performance trigger or for any other reason, other than as a result of a failure by Purchaser to purchase Servicing Advance Receivables pursuant to Section 3.3 , shall be deemed to be the result of a breach by Seller of its obligations under this Sale Supplement and the Agreement. In the event of a conflict between a Servicing Agreement and this Article 6 , the Servicing Agreement shall control, and the failure of Seller to perform any obligation under the Agreement or this Sale Supplement as a result of such conflict shall not constitute a breach of the Agreement or this Sale Supplement by Seller.
6.3 Collections from Obligors and Remittances . Seller shall promptly remit all amounts received by Seller with respect to the Mortgage Loans to the applicable Custodial Account or Escrow Account in accordance with the related Servicing Agreement. Seller shall also make any compensating interest payments or prepayment interest shortfall payments required to be made by Seller with respect to the Mortgage Loans under the Deferred Servicing Agreements in accordance with the related Servicing Agreement.
6.4 Servicing Practices . Seller shall not make any material change to its servicing practices with respect to the Deferred Mortgage Loans after the date hereof, including, any material changes to its cash collection and sweep processes or its advance policies or stop advance policies, without Purchaser’s prior written consent (in any case, unless required by Applicable Requirements, in which case Purchaser’s prior written consent is not required but Seller shall give Purchaser written notice of any such changes). Seller shall comply with any Purchaser directions to implement reasonable changes to Seller’s servicing practices applicable with respect to all or a portion of the Mortgage Loans, including any changes necessary to ensure compliance with any Applicable Laws or governmental programs or directions received pursuant to the applicable Servicing Agreements.
6.5 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser.
6.6 Escrow Accounts . Subject to the terms of the related Deferred Servicing Agreement, Seller shall be entitled to withdraw funds from any Escrow Account related to a Deferred Servicing Agreement only for the purposes permitted in the applicable Servicing Agreement.
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6.7 Notices and Financial Information . Until the last Servicing Transfer Date, Seller will furnish, or will cause to be furnished, to Purchaser:
(a) within two (2) Business Days after the occurrence of a breach by Seller of the Agreement or this Sale Supplement or any Termination Event, notice of such event;
(b) any information required to be delivered by Seller pursuant to the Subservicing Agreement; and
(c) such other information regarding the condition or operations, financial or otherwise, of Seller or any of its subsidiaries as Purchaser may from time to time reasonably request.
6.8 Defaults under Deferred Servicing Agreements . Seller covenants and agrees to use its reasonable best efforts to cure any breach, default or notice of default with respect to its obligations under any Deferred Servicing Agreement within the timeframe for cure set forth in such Deferred Servicing Agreement.
6.9 Continuity of Business . (a) Seller will maintain a disaster recovery plan in support of the services it performs pursuant to this Sale Supplement and each Deferred Servicing Agreement. Seller’s disaster recovery plan shall include, at a minimum, procedures for back-up/restoration of operating and loan administration computer systems; procedures and third-party agreements for replacement equipment (e.g. computer equipment), and procedures and third-party agreements for off-site production facilities. Seller will provide Purchaser information regarding its disaster recovery plan upon Purchaser’s reasonable request. Seller agrees to annually test its disaster recovery plan to ensure compliance with this Section 6.9 . If such test results identify a material failure, Seller shall advise Purchaser of the steps Seller will be taking to remedy such failure and shall notify Purchaser when Seller has remedied such failure and retested. Seller will notify Purchaser anytime Seller’s disaster recovery plan is activated. In the event of an activation of the disaster recovery plan, Seller shall use best efforts to provide redundancy capabilities for a majority of the critical systems within 48 hours in at least one of Seller’s other servicing facilities unaffected by the disaster to ensure servicing of the Mortgage Loans will be re-established within such 48 hours.
6.10 [RESERVED] .
6.11 Amendments to Deferred Servicing Agreements; Transfer of Servicing Rights . Seller hereby covenants and agrees not to amend the Servicing Agreements without Purchaser’s prior written consent. Seller shall not sell or otherwise voluntarily transfer servicing under any of the Deferred Servicing Agreement during the Consent Period except as expressly provided in this Sale Supplement or take any other actions inconsistent with Purchaser’s right to acquire ownership of Servicing Rights with respect to a Servicing Agreement upon receipt of the required Third Party Consents.
6.12 Assumption of Servicing Duties; Transfer of Rights to MSRs and Servicing Rights . Purchaser may from time to time assume the performance of any of Seller’s servicing obligations under a Deferred Servicing Agreement so long as such assumption is permitted pursuant to such Deferred Servicing Agreement and does not limit Seller’s right to receive (or materially reduce the likelihood of collection of) the Servicing Fees, Ancillary Income, Prepayment Interest Excess, investment income on any Custodial Account or Escrow Account or any other amount payable to the Seller as servicer pursuant to such Deferred Servicing Agreement. Notwithstanding anything in the Agreement or this Sale Supplement to the contrary, Purchaser may transfer the Rights to MSRs to any third party and/or may direct Seller to transfer the Servicing Rights to a third party that can obtain the required Third Party Consents, subject to the right of the Seller to receive the Seller Monthly Servicing Fee, the Performance
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Fee, the Ancillary Income, investment income on the Custodial Accounts and Escrow Accounts and, if applicable, the Prepayment Interest Excess with respect to such Deferred Servicing Agreement pursuant to and in accordance with Article 7 . For the avoidance of doubt, Purchaser shall be entitled to receive all proceeds of such transfer.
6.13 Termination Event . In the case that any Termination Event occurs with respect to any Servicing Agreement during the Consent Period, Seller shall, upon Purchaser’s written direction to such effect, use commercially reasonable efforts to transfer the Servicing Rights relating to any affected Servicing Agreement to a third party servicer identified by Purchaser with respect to which all required Third Party Consents with respect to such Servicing Agreement can be obtained. Purchaser shall be entitled to receive all proceeds of such transfer.
6.14 Servicing Transfer . Seller and Purchaser shall, prior to the Servicing Transfer Date with respect to each Servicing Agreement, work in good faith to determine and agree upon applicable servicing transfer procedures with respect to such Servicing Agreement.
6.15 Fannie Mae/Freddie Mac . Seller shall not have its right to service suspended by Fannie Mae, Freddie Mac or FHA. Seller shall at all times meet the qualifications of a Fannie Mae, Freddie Mac or FHA seller/servicer. Seller shall provide Purchaser with prompt written notice of any negative action by Fannie Mae. Freddie Mac or FHA regarding its right to service or its standing as an approved seller/servicer.
6.16 MERS . Seller shall at all times maintain its membership in the Mortgage Electronic Registration System, Inc (“ MERS ”).
6.17 Insurance . (a) Seller shall maintain, at its own expense:
(i) fidelity bond insurance of at least what is required by Fannie Mae and Freddie Mac (or pursuant to a waiver of such requirements issued by Fannie Mae or Freddie Mac) or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage);
(ii) professional liability/errors and omissions insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which insurance shall protect and insure Seller against losses, including errors and omissions and negligent acts of such persons;
(iii) fidelity bond bond (crime) insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage); and
(iv) commercial general liability, umbrella and excess insurance in the amount of $1,000,000 per occurrence and $2,000,000 general aggregate and umbrella and excess insurance of at least $10,000,000 per occurrence, in the aggregate, which coverage shall extend to Purchaser (who shall be named as additional insured on a certificate of insurance with respect to such coverage).
(b) The insurance coverages under this Section 6.17 shall be primary, and all coverage shall be non-contributing with respect to any other insurance or self-insurance that may be maintained by Purchaser or its Affiliates. To the fullest extent allowed by the policies of insurance described in
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Section 6.17(a)(iv) , Seller shall waive all rights of subrogation against Purchaser and its Affiliates. At least annually, Seller shall provide certificates of insurance evidencing that the coverages and policy endorsements required under this Agreement are maintained in force. The insurers selected by Seller shall be authorized to conduct business in the jurisdictions in which services are to be performed. When the policy is issued each such insurer shall have at least an A.M. Best rating of A- VII or shall otherwise be acceptable to Fannie Mae and Freddie Mac. In the case of loss or damage or other event that requires notice or other action under the terms of any insurance coverage specified in this Section 6.17 , Seller shall be solely responsible to take such action. Seller shall provide Purchaser with contemporaneous notice and with such other information as Purchaser may request regarding the event.
6.18 Delegation . Seller may not engage any subservicer for the Deferred Servicing Agreements other than in connection with the SPS Subservicing Agreement. Seller shall not amend or otherwise modify the SPS Subservicing Agreement; provided , however, that Seller may terminate the SPS Subservicing Agreement. Seller shall (i) perform and observe all the terms and provisions of the SPS Subservicing Agreement to be performed or observed by it, enforce the SPS Subservicing Agreement in accordance with its terms and take all action as may from time to time be reasonably requested by the Purchaser in order to accomplish the foregoing, and (ii) upon the reasonable request of and as directed by the Purchaser, make such demands and requests to any other party to the SPS Subservicing Agreement as are permitted to be made by the Seller thereunder (including the exercise of any right of termination).
6.19 Access to Mortgage Servicing System . Seller shall provide Purchaser and its accountants and advisors with electronic access to Seller’s mortgage servicing system to view any available information with respect to the Deferred Servicing Agreements and the Mortgage Loans. Seller shall also provide Purchaser and its accountants and advisors with reasonable access to Seller’s financial operations system to monitor Seller’s performance under the Agreement and this Sale Supplement Seller shall provide Purchaser with the tools to create and administer log in identifications and passwords for each of its authorized users. Purchaser shall comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access. Upon reasonable prior notice, without undue interference with Seller’s business and at Purchaser’s expense, the Seller shall (i) give to Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders reasonable access to all of the properties, books, contracts, documents, insurance policies, records and personnel of the Seller concerning the Servicing Agreements or the Mortgage Loans to the extent Purchaser reasonably deems necessary or desirable in connection with the transactions contemplated hereby and (ii) furnish to Purchaser and such persons as Purchaser shall designate such additional information as Purchaser or such persons may reasonably request in connection with the transactions contemplated hereby. Purchaser shall cause all of its officers, employees, agents, attorneys, consultants, accountants and lenders to comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access or information.
6.20 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser. Seller shall provide the following reports to Purchaser:
(a) On or prior to each monthly reporting date with respect to each Deferred Servicing Agreement, the Monthly Remittance Report relating to such Deferred Servicing Agreement, in electronic medium mutually acceptable to the parties, which Monthly Remittance Report shall also include with it (i) information sufficient for Purchaser to determine whether a P&I Advance will have to be made with respect to any Mortgage Loan subject to such Deferred Servicing Agreement and (ii) appropriate supporting information regarding the amount and nature of such P&I Advances.
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(b) No later than the first Business Day of each month, the Monthly Servicing Oversight Report as to the end of the prior calendar month, in electronic medium mutually acceptable to the parties.
Any other reports or information Purchaser may request, to the extent that the requested information or data is reasonably available to Seller without undue expense or hardship.
6.21 Relationship Management and Staffing .
(a) Project Managers . Seller shall designate one (1) individual (“ Seller Project Manager ”) to: (A) serve as the single point of contact and accountability for Seller for the Agreement and this Sale Supplement; (B) have day-to-day authority for undertaking to ensure that Seller’s performance of the Agreement and this Sale Supplement meets Purchaser’s reasonable satisfaction; and (C) have authority to direct Seller in support of the foregoing. Purchaser shall designate one (1) individual (“ Purchaser Project Manager ”) to: (A) serve as the single point of contact and accountability for Purchaser for the Agreement and this Sale Supplement; and (B) have authority to direct Purchaser in support of the foregoing. Seller and Purchaser have the right to replace the Seller Project Manager or Purchaser Project Manager, respectively, upon prior written notice to the other party.
(b) Designated Committee . Seller and Purchaser shall establish a committee comprising two (2) individuals who are officers or employees of Seller and two (2) individuals who are or employee officers of Purchaser (collectively, the “ Designated Committee ”). Until the last Servicing Transfer Date, the Designated Committee shall be responsible for monitoring the performance of the services provided pursuant to the Agreement and this Sale Supplement, providing recommendations for improving the performance of such services and discussing potential solutions to any disputes with respect to the services. Seller and Purchaser shall have the right to replace those of its officers who are serving on the Designated Committee upon written notice to the other party.
(c) Periodic Meetings . Until the last Servicing Transfer Date, unless otherwise mutually agreed upon by Seller and Purchaser, the Designated Committee shall have a telephonic meeting each calendar month and a meeting in person at least once a fiscal quarter. Such regular meetings shall be at such times and locations as may be mutually agreed by the members of the Designated Committee. The Designated Committee shall discuss at any such regular meeting any topic that either Seller or Purchaser desires to discuss at such regular meeting. In addition, until the last Servicing Transfer Date, either Seller or Purchaser may call a special telephonic meeting of the Designated Committee upon five (5) Business Days prior written notice to the other party, which notice shall set forth in reasonable detail the topics to be discussed at such special meeting.
(d) Seller shall assign an adequate number of personnel to the performance of Seller’s obligations under the Agreement and this Sale Supplement. Seller shall properly educate and train all such personnel and ensure that all such personnel are fully qualified to perform the services that they are providing and shall have passed Seller’s customary background check for personnel in similar positions.
(e) Seller shall provide Purchaser and its accountants and advisors with a copy of its independent audit reports, including SAS 70 reviews, of its data processing environment and internal controls within a reasonable time after such reports are completed, and shall make all work papers regarding such audits available as requested to the appropriate regulatory agencies, if any, having jurisdiction over Seller’s servicing hereunder. In addition, Seller will make available to Purchaser and its accountants and advisors for on-site review copies of any internal audit reports relating to its servicing operations. Within thirty (30) days following Purchaser’s request, the parties shall meet to discuss the frequency, scope and level of detail of Seller’s independent audits. Seller shall use commercially reasonable efforts to incorporate Purchaser’s comments into the requirements for its next and subsequent
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audits to the extent it is determined that Seller’s audit practices are not consistent with servicing industry practice. Purchaser, its authorized representatives and Purchaser’s regulators and auditors may on five (5) Business Days notice conduct audits and reviews on Seller’s premises including auditing and reviewing Seller’s facilities, equipment, books and records (electronic or otherwise), operational systems and such other audits as may be reasonably necessary to ensure Seller’s compliance with the terms and conditions of the Agreement, this Sale Supplement, the Deferred Servicing Agreements and Applicable Laws and to ensure Seller’s financial and operational viability with respect to the servicing under this Agreement. In addition, Seller will provide Purchaser and its accountants and advisors with the results of a security audit to be performed no less than annually. This security audit will be at no expense to Purchaser and will test the compliance with the agreed-upon security standards and procedures set forth in this Agreement. Purchaser will have the ability to bring in a third party (who may not be a competitor of Seller) or use its own staff for an independent security audit. If Purchaser chooses to conduct its own security audit, it will be at Purchaser’s expense. In addition, Seller shall give access to the Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders (collectively, the “ Purchaser Parties ”) reasonable access to Seller’s financial reporting, internal accounting systems and other operational systems for purposes of obtaining information reasonably requested by such Purchaser Party. The Purchaser understands, and shall advise each Purchaser Party, that Nationstar Mortgage Holdings Inc. (the “Parent”), the ultimate parent of the Seller, is a publicly traded company and that and Purchaser Parties that obtain material non-public information concerning the Parent are prohibited from trading in the securities of the Parent for so long as they possess material non-public information. The Purchaser shall, and shall cause each of the Purchaser Parties that received information or access described in this section, to enter into reasonable and customary confidentiality agreements with the Seller and to comply with all confidentiality restrictions imposed by Applicable Requirements.
6.22 Funding of Servicing Advance Receivables . Purchaser and Seller agree to deliver the reports and other information specified on Schedule VI hereto at the times described on Schedule VI hereto in connection with origination of the Servicing Advance Receivables and the payment of the Servicing Advance Receivables Purchase Price on the related Servicing Advance Payment Dates.
ARTICLE 7
SELLER SERVICING FEES; COSTS AND EXPENSES
7.1 Seller Monthly Servicing Fee . As consideration for Seller servicing the Mortgage Loans pursuant to the Deferred Servicing Agreements during the applicable Consent Period, Purchaser shall pay to Seller, a monthly base servicing fee for each calendar month during such period during which Seller is servicing Mortgage Loans with respect to Deferred Servicing Agreements pursuant to this Sale Supplement equal to the Base Fee Percentage of the Specified Amounts with respect to such calendar month (the “ Seller Monthly Servicing Fee ”). The Seller Monthly Servicing Fee for any month is payable on the 2 nd Business Day following the Purchaser’s receipt of the Servicing Fee Collections for such month from the Seller pursuant to Section 2.5 hereof (and any delay in payment shall affect the calculation of the Targeted Return).
7.2 Costs and Expenses . Except as otherwise expressly provided in the Agreement or this Sale Supplement, each party hereto shall be responsible for its own costs and expenses incurred in connection with the negotiation and execution of the Agreement, this Sale Supplement and all documents relating thereto. Seller shall be required to pay all expenses incurred by it in connection with its obligations hereunder to the extent such expenses do not constitute Servicer Advances and shall not be entitled to reimbursement therefor except as specifically provided for herein or in the applicable Deferred Servicing Agreement. Seller shall reimburse Purchaser for any reasonable out-of-pocket costs, including legal fees, incurred by Purchaser in connection with obtaining any required Third Party Consents; provided , however , that Purchaser shall not incur such costs without the prior written approval of Seller.
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7.3 Ancillary Income . Seller shall be entitled to retain as additional compensation any Ancillary Income, investment income on amounts on deposit in the Custodial Accounts and Escrow Accounts and any Prepayment Interest Excess received by Seller with respect to the Deferred Mortgage Loans, to the extent such amounts are permitted to be retained by Seller pursuant to the related Deferred Servicing Agreement.
7.4 No Offset . Neither party shall have any right to offset against any amount payable hereunder or other agreement to the other party, or otherwise reduce any amount payable hereunder as a result of, any amount owing by the other party or any of its Affiliates to such party or any of its Affiliates.
ARTICLE 8
INDEMNIFICATION
8.1 Seller Indemnification of Purchaser . Seller agrees to indemnify and hold harmless Purchaser and each officer, director, agent, employee or Affiliate of Purchaser (each, a “ Seller Indemnified Party ”) from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, forfeitures, legal fees and expenses, and any and all related costs and/or expenses of litigation, administrative and/or regulatory agency proceedings, and any other costs, fees and expenses (each, a “ Liability ”) suffered or incurred by Purchaser or any such other Person (whether or not resulting from a third party claim) arising directly or indirectly out of or resulting from (a) any event relating to Transferred Assets occurring prior to the Closing Date, (b) a breach of any of Seller’s representations and warranties contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or Seller’s failure to observe and perform any of Seller’s duties, obligations, covenants or agreements contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or any Servicing Advance Financing Agreements or any refinancings or replacements thereof, (c) acts or omissions of Seller, any other servicer of any Mortgage Loans, or any subservicer, contractor or agent engaged by Seller or any other servicer, in each case prior to the related Servicing Transfer Date, relating to the Transferred Assets, including any failure by Seller, any other servicer or any subservicer, contractor or agent engaged by Seller or any other servicer prior to the related Servicing Transfer Date to comply with the Applicable Requirements, (d) the Excluded Liabilities, (e) any acts or omissions by Seller or its employees or agents in performance of its duties or obligations pursuant to this Sale Supplement, (f) the failure of all Servicing Advances and/or DSF to be reimbursed or repaid, as applicable, in connection with the exercise of any optional termination or cleanup call under any Servicing Agreement except pursuant to an exercise of any optional termination or cleanup call made at the direction of New Residential Investment Corp., (g) any Event of Default, Facility Early Amortization Event or Target Amortization Event (or the equivalent of any of the foregoing, including any other event that causes or permits the early amortization or acceleration of any obligations, notes other instrument) under any Servicing Advance Financing Agreements or any refinancings or replacements thereof arising because of any actions or inactions of Seller or any of its agents (including, without limitation, any failure of any financial test, any judgment and/or any breach of any contractual obligation of the Seller) or (h) the exercize of “Control” by any Current Excess Servicing Spread Buyer pursuant to any in accordance with to any Current Excess Servicing Spread Acquisition Agreement of the “Third Party Controlled Current Spread Custodial Account” maintained pursuant thereto.
8.2 Purchaser Indemnification of Seller . Purchaser agrees to indemnify and hold harmless Seller and each officer, director, agent, employee or Affiliate of Seller (each, a “ Purchaser Indemnified
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Party ”) from and against any and all Liability suffered or incurred by Seller or any such other Person arising out of or resulting from (a) a breach of any of Purchaser’s representations and warranties or covenants contained in the Agreement, the Sale Supplement or any other Related Agreement, (b) acts or omissions of Purchaser or any subservicer, contractor or agent (other than Seller or any of Seller’s Affiliates) engaged by Purchaser relating to the Transferred Assets or (c) the Assumed Liabilities.
8.3 Indemnification Procedures .
(a) As promptly as is reasonably practicable after becoming aware of a claim for indemnification under the Agreement or this Sale Supplement not involving a Third-Party Claim, but in any event no later than fifteen (15) Business Days after first becoming aware of such claim, the Indemnified Person shall give notice to the Indemnifying Person of such claim, which notice shall specify the facts alleged to constitute the basis for such claim and the amount that the Indemnified Person seeks hereunder from the Indemnifying Person; provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby.
(b) The Indemnified Person shall give notice as promptly as is reasonably practicable, but in any event no later than ten (10) Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any claim, or the commencement of any action, suit, claim or proceeding, by any unaffiliated third Person (a “ Third-Party Claim ”) in respect of which indemnity may be sought under the Agreement or this Sale Supplement (which notice shall specify in reasonable detail the nature and amount of such claim); provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby. The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third-Party Claim, and (ii) upon notice to the Indemnified Person, at any time during the course of any such Third-Party Claim, assume the defense thereof with counsel of its own choice and, in the event of such assumption, shall have the exclusive right, subject to clause (i) in the proviso in Section 8.3(c) , to settle or compromise such Third-Party Claim. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person chooses to defend or prosecute any such Third-Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof.
(c) Any settlement or compromise made or caused to be made by the Indemnified Person (unless the Indemnifying Person has the exclusive right to settle or compromise under clause (ii) of Section 8.3(b) or the Indemnifying Person, as the case may be), of any such Third-Party Claim shall also be binding upon the Indemnifying Person or the Indemnified Person, as the case may be, in the same manner as if a final judgment had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided , however , that (i) no obligation, restriction, loss or admission of guilt or wrongdoing shall be imposed on the Indemnified Person as a result of such settlement or compromise without its prior written consent and (ii) the Indemnified Person will not compromise or settle any Third Party Claim without the prior written consent of the Indemnifying Person.
(d) Except as specifically provided for in the Agreement or this Sale Supplement, no claim may be made by an Indemnified Person for any special, indirect, punitive or consequential damages (“ Special Damages ”) in respect of any breach or wrongful conduct (whether the claim therefor is based on contract, tort or duty imposed by law) in connection with, arising out of, or in any way related to the transactions contemplated, or relationship established, by this Agreement or any Sale Supplement, or any act, omission or event occurring in connection herewith or therewith, and to the fullest extent permitted by law, each of Seller and Purchaser hereby waives, releases and agrees not to sue upon any such claim for Special Damages, whether or not accrued or whether or not known or suspected to exist in its favor.
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8.4 Tax Treatment . (a) Seller and Purchaser agree that all payments made by any of them to or for the benefit of the other under this Article 8 , under other indemnity provisions of the Agreement or this Sale Supplement and for any misrepresentations or breaches of warranties or covenants, shall be treated as adjustments to the Purchaser Price for tax purposes and that such treatment shall govern for purposes hereof except to the extent that the Applicable Laws of a particular jurisdiction provide otherwise.
(b) Seller, Purchaser and each of their respective Affiliates agree that entering into this Sale Supplement shall be treated for all tax purposes as a sale of the Servicing Rights Assets and the Purchaser shall be treated as the beneficial owner of the Servicing Rights Assets for tax purposes as a result of entering into this Sale Supplement. The parties covenant and agree to take no position for Tax purposes contrary to the foregoing tax treatment, and to prevent any Affiliate from taking such a contrary position.
(c) All payments made pursuant to this Agreement shall be made free and clear and without deductions of any kind for taxes.
8.5 Survival . The parties’ obligations under this Article 8 shall survive any termination of the Agreement and/or this Sale Supplement.
8.6 Additional Indemnification . (a) Without limiting Seller’s obligations under Article 8 of this Sale Supplement, it is agreed by the parties that if Seller is terminated as servicer under any Deferred Servicing Agreement as a result of any action described in clauses (a) through (e) of Section 8.1 above or pursuant to the penultimate sentence of Section 6.2 , Seller shall also pay to Purchaser, as reasonable and just compensation for such termination, an amount equal to the following as liquidated damages, and not as penalty, in the event of such a termination: the sum of (i) the outstanding amount of all Servicing Advance Receivables and DSF arising thereunder and (ii) the product of (I) the Servicing Fee Rate minus 0.02, (II) 1.5 and (II) the aggregate unpaid principal balance of the Mortgage Loans subject to such Servicing Agreement at the time of termination.
8.7 Specific Performance . Notwithstanding any other provision of the Agreement or this Sale Supplement, (i) it is understood and agreed that the remedy of indemnity payments pursuant to this Article 8 and other remedies at law would be inadequate in the case of any actual or threatened breach of the Agreement or this Sale Supplement by Seller and (ii) Purchaser shall be entitled, without limiting its other remedies and without the necessity of proving actual damages or posting any bond, to equitable relief, including the remedy of specific performance or injunction, with respect to any breach or threatened breach of such covenants. Such relief shall be in addition to, and not in lieu of, all other remedies available at law or in equity to such party under the Agreement and this Sale Supplement.
8.8 Current Excess Servicing Spread Acquisition Agreement . The Seller shall not amend, waive or otherwise modify any Current Excess Servicing Spread Acquisition Agreement related to any Servicing Agreement if such amendment, waiver or other modification could reasonably be expected to materially and adversely affect the Purchaser or delay the remittance of Servicing Fees pursuant to Section 2.5 .
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ARTICLE 9
GRANT OF SECURITY INTEREST
9.1 Granting Clause . Seller and Purchaser intend that the sale of the Transferred Assets pursuant to this Sale Supplement and the Agreement constitutes a valid sale of the Transferred Assets from Seller to Purchaser, conveying good title thereto free and clear of any Lien, and that the beneficial interest in and title to the Transferred Assets not be part of Seller’s estate in the event of the bankruptcy of Seller. Notwithstanding the foregoing, to secure its performance of its obligations under the Agreement and this Sale Supplement, Seller hereby grants to Purchaser a security interest in all of its right, title and interest in and to the following, whether now owned or hereafter acquired, and all monies “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property,” (each as defined in the applicable UCC) and other property consisting of, arising from or relating to any of the following:
(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to the Servicing Agreements, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) the Rights to MSRs with respect to each Servicing Agreement;
(c) all Servicing Fees, Ancillary Income and Prepayment Interest Excess received under the Servicing Agreements and subject to Section 6.10 of this Sale Supplement;
(d) all income from amounts on deposit in Custodial Accounts and related Escrow Accounts related to the Servicing Agreements;
(e) all files and records in Seller’s possession or control, including the related Database, relating to the assets specified in clauses (a) through (d);
(f) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to any of the foregoing and/or the Assumed Liabilities;
(g) all equity interests in the Advance SPEs;
(h) all Servicing Advance Receivables and DSF in respect of the Servicing Agreements and all monies due or to become due and all amounts received or receivable;
(i) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(j) any proceeds of any of the foregoing (collectively, the “ Collateral ”).
This Sale Supplement shall constitute a security agreement under applicable law. Seller agrees that from time to time it shall promptly execute and deliver all additional instruments and documents and take all additional action that Purchaser may reasonably request in order to perfect the interests of Purchaser in, to
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and under, or to protect, the Collateral or to enable Purchaser to exercise or enforce any of its rights or remedies hereunder. To the fullest extent permitted by applicable law, Seller hereby authorizes Purchaser to file financing statements and amendments thereto in connection with the grant of a security interest pursuant to this Section 9.1 . Seller covenants and agrees to take all necessary action to prevent the creation or imposition of any Lien upon any of the Collateral, and to maintain the Collateral free and clear of all Liens, other than the Lien securing the obligations of Seller arising under this Sale Supplement.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Further Assurances . Without limiting Section 5.7 of the Agreement, each party hereto shall execute and deliver in a reasonable timeframe such reasonable and appropriate additional documents, instruments or agreements and take such reasonable actions as may be necessary or appropriate to effectuate the purposes of this Sale Supplement at the request of the other party. Without limiting the foregoing, the Seller agrees that it will promptly at Purchaser’s request execute and deliver an one or more assignment and assumption agreements, in form mutually agreed to by the parties, one or more equity interest assignments, in form mutually agreed to by the parties, or such other documents, instruments or agreements as Purchaser may reasonably request to evidence the transfers of Rights to MSRs pursuant to Section 2.1 , Servicing Rights pursuant to Section 2.2 , Advance SPEs pursuant to Section 3.1 and Transferred Receivables Assets pursuant to Section 3.3 .
10.2 Compliance with Applicable Laws; Licenses . Seller will comply with all Applicable Laws in connection with the performance of its obligations under the Agreement and this Sale Supplement. Seller shall maintain all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of Seller to perform its obligations under the Agreement and this Sale Supplement.
10.3 Merger, Consolidation, Etc . Seller will keep in full effect its existence, rights and franchises as a limited liability company, and will obtain and preserve its qualification to do business as a foreign organization in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Agreement, this Sale Supplement, each Deferred Servicing Agreement or any of the Deferred Mortgage Loans, or to perform its duties under the Agreement or this Sale Supplement. Seller may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets to any Person, in which case any Person resulting from any merger or consolidation to which Seller shall be a party or acquiring all or substantially all of the assets of Seller, or any Person succeeding to the business of Seller shall be the successor of Seller hereunder and under the Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided , however , that the successor or surviving Person shall be an institution whose deposits are insured by FDIC or a company whose business includes the servicing of mortgage loans and shall have a tangible net worth not less than $25,000,000.
10.4 Annual Officer’s Certificate . Not later than March 15 of each calendar year commencing in 2014, Seller shall deliver to Purchaser an Officer’s Certificate stating, as to each signatory thereof, that (i) a review of the activities of Seller during the preceding year and of performance under the Agreement and this Sale Supplement has been made under such officers’ supervision and (ii) to the best of such officer’s knowledge, based on such review, Seller has fulfilled all of its obligations under the Agreement and this Sale Supplement in all material respects throughout such year, or, if there has been a default in the fulfillment of any such obligation in any material respect, specifying each such default known to such officer and the nature and status thereof.
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10.5 Accounting Treatment . Notwithstanding Section 8.14 of the Agreement, the parties acknowledge that until such time as the Third Party Consents with respect to a Servicing Agreement are obtained, the parties shall treat the transaction hereunder with respect to the Servicing Rights as a financing for accounting purposes.
10.6 Incorporation . The provisions of Article 8 of the Agreement are hereby incorporated into this Sale Supplement by reference, mutatis mutandis , as if its provisions were fully set forth herein. To the extent that any provision of Article 8 of the Agreement conflicts with this Sale Supplement, the provisions of this Sale Supplement shall govern and control.
10.7 Third Party Beneficiaries . Seller and Purchaser each acknowledges and agrees that the indenture trustee, on behalf of the holders of related notes, with respect to any Servicing Advance Financing Agreements pursuant to which Purchaser has transferred Servicing Advance Receivables and DSF arising under a Deferred Servicing Agreement is an express third party beneficiary of this Sale Supplement and the Agreement solely with respect to the Deferred Servicing Agreements related to such Servicing Advance Financing Agreement.
10.8 Subservicing Supplement . The Seller and the Purchaser hereby covenant to use commercially reasonable efforts to enter into a Subservicing Supplement promptly following the execution hereof in order to evidence subservicing arrangements in respect of any Transferred Servicing Agreements. The Subservicing Supplement shall not conflict with the Subservicing Agreement. The fee allocation economics under such Subservicing Supplement shall be substantially identical to the fee allocation economics hereof with respect to the Deferred Servicing Agreements.
ARTICLE 11
CALL RIGHT
11.1 Call Right . At any time during the Call Period, Purchaser shall have the right, but not the obligation, to purchase from Seller, on the terms set forth in this Article 11 , and upon the exercise of such right (the “ Call Right ”), Seller shall have the obligation to transfer to Purchaser, any or all of the assets set forth on Schedule VII (the “ Call Assets ”). The rights contemplated by this Article XI may be effected in one or more transactions.
11.2 Call Notice . Purchaser shall have the right to exercise the Call Right hereunder by providing written notice (a “ Call Notice ”) to Seller at any time prior to June 30, 2014. A Call Notice may be revoked at any time. Such Call Notice shall specify the specific Call Assets to be acquired. Seller shall not (i) directly or indirectly, sell, exchange, transfer, assign, participate or otherwise dispose of any of the Call Assets or (ii) give, encumber, assign, pledge, mortgage, hypothecate or otherwise use as collateral or other security all or any part of the Call Assets without the written consent of Purchaser, in each case, except, with respect to Servicing Advance Receivables and DSF, in connection with the transactions contemplated by (x) the Indenture, dated as of June 7, 2013, between Nationstar Mortgage Advance Receivables Trust, The Bank of New York Mellon, a New York banking corporation, as trustee, as calculation agent, as paying agent, and as securities intermediary, Nationstar Mortgage LLC, as administrator and as servicer, and the “Administrative Agents” from time to time parties thereto or (y) the Indenture, dated as of July 1, 2013, between Nationstar Servicer Advance Receivables Trust 2013-BofA, Wells Fargo Bank, National Association, as trustee, as calculation agent, as paying agent, and as securities intermediary, Nationstar Mortgage LLC, as administrator and as servicer, and the “Administrative Agents” from time to time parties thereto.
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11.3 Call Asset Closing . The closing of the purchase of any Call Assets from Seller (a “ Call Asset Closing ”) shall take place as soon as reasonably practicable after the date of delivery of the Call Notice to Seller, or as otherwise agreed by Purchaser and Seller. Each Call Asset Closing shall take place, in any case, at 10:00 a.m. (New York time), at the principal offices of Purchaser, or at such other date, time or place as the parties to may agree. At any Call Asset Closing, Seller shall transfer and deliver to Purchaser, full right, title and interest in and to the Call Assets purchased by Purchaser, free and clear of all liens, security interests, adverse claims or restrictions of any kind and nature (except as otherwise set forth in this Agreement). Simultaneously with such transfer of Call Assets, the Purchaser shall deliver to Seller, by wire transfer of immediately available funds to such bank account as Seller shall designate, the purchase price for the Call Assets being purchased by Purchaser.
11.4 Transfer of Call Right . Notwithstanding any provision of this Agreement to the contrary, Purchaser may transfer the right to purchase any Call Assets at the Call Asset Closing to any designee that is an Affiliate of or other entity managed by New Residential Investment Corp.
11.5 Sale Supplement . The terms of any sale of any Call Asset to the Purchaser shall be made pursuant a Sale Supplement on terms substantially similar to the terms hereof (it being understood that the same “Termination Events” shall apply thereto) except that no Sale Supplement related to the sale of any Call Assets shall constitute a “Group 1” Sale Supplement for purposes of the Agreement. For purposes of any such Sale Supplement, (i) Nationstar Servicer Advance Facility Transferor, LLC 2013-BofA, a Delaware limited liability company, shall constitute an “Advance SPE”, (ii) Nationstar Servicer Advance Receivables Trust 2013-BofA shall constitute an Advance SPE Issuer, (iii) the Indenture dated as of July 1, 2013 among Nationstar Servicer Advance Receivables Trust 2013-BofA, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time shall constitute “Servicing Advance Financing Agreements” and (iv) if requisite consents to the transfer thereof are obtained (a) Nationstar Mortgage Advance Receivables Trust, a Delaware statutory trust, shall constitute an “Advance SPE Issuer”, (b) Nationstar Advance Funding III LLC, shall constitute an “Advance SPE” and (c) the “NMART Indenture” identified on Schedule VII hereto and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time shall constitute “Servicing Advance Financing Agreements”. The indenture trustees on behalf of noteholders under the Servicer Advance Financing Agreements may be intended third party beneficiaries hereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Sale Supplement to be executed and delivered by its respective officer thereunto duly authorized as of the date above written.
| NATIONSTAR MORTGAGE LLC | ||
| By: |
/s/ Amar Patel |
|
| Name: Amar Patel | ||
| Title: Executive Vice President | ||
| ADVANCE PURCHASER LLC | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: Cameron MacDougall | ||
| Title: Secretary | ||
Signature Page to Sale Supplement
Exhibit A Form of Monthly Remittance Report
2
Exhibit 2.3
EXECUTION COPY
SALE SUPPLEMENT
(Shuttle 2)
dated as of December 17, 2013
between
NATIONSTAR MORTGAGE LLC, as Seller,
and
ADVANCE PURCHASER LLC, as Purchaser
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT | 1 | |||||
|
1.1 |
Definitions | 1 | ||||
|
1.2 |
Reference to the Master Servicing Rights Purchase Agreement | 8 | ||||
| ARTICLE 2 PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES | 8 | |||||
|
2.1 |
Assignment and Conveyance of Rights to MSRs | 8 | ||||
|
2.2 |
Automatic Assignment and Conveyance of Servicing Rights | 8 | ||||
|
2.3 |
MSR Purchase Price | 9 | ||||
|
2.4 |
Assumed Liabilities and Excluded Liabilities | 9 | ||||
|
2.5 |
Remittance of Servicing Fees and Related Amounts | 10 | ||||
|
2.6 |
Payment of Estimated Purchase Price | 10 | ||||
| ARTICLE 3 PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES | 10 | |||||
|
3.1 |
[RESERVED] | 10 | ||||
|
3.2 |
[RESERVED] | 10 | ||||
|
3.3 |
Assignment and Conveyance of Servicing Advance Receivables | 11 | ||||
|
3.4 |
Servicing Advance Receivables Purchase Price | 11 | ||||
|
3.5 |
Servicing Advances | 11 | ||||
|
3.6 |
Reimbursement of Servicing Advances; Repayment of DSF | 12 | ||||
|
3.7 |
Servicing Advances | 12 | ||||
| ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER | 13 | |||||
|
4.1 |
General Representations | 13 | ||||
|
4.2 |
Title to Transferred Assets | 13 | ||||
|
4.3 |
Right to Receive Servicing Fees | 13 | ||||
|
4.4 |
Servicing Agreements and Underlying Documents | 13 | ||||
|
4.5 |
Mortgage Pool Information, Related Matters | 13 | ||||
|
4.6 |
Enforceability of Servicing Agreements | 14 | ||||
|
4.7 |
Compliance With Servicing Agreements | 14 | ||||
|
4.8 |
No Recourse | 15 | ||||
|
4.9 |
The Mortgage Loans | 15 | ||||
|
4.10 |
Servicing Advance Receivables | 16 | ||||
|
4.11 |
Servicing Agreement Consents and Other Third Party Approvals | 17 | ||||
|
4.12 |
[RESERVED] | 17 | ||||
|
4.13 |
Anti-Money Laundering Laws | 17 | ||||
|
4.14 |
Servicer Ratings | 17 | ||||
|
4.15 |
Eligible Servicer | 17 | ||||
|
4.16 |
HAMP | 18 | ||||
|
4.17 |
Servicing Advance Financing Agreements | 18 | ||||
| ARTICLE 5 CONDITIONS PRECEDENT | 18 | |||||
|
5.1 |
Conditions to the Purchase of the Rights to MSRs | 18 | ||||
| ARTICLE 6 SERVICING MATTERS | 19 | |||||
|
6.1 |
Seller as Servicer | 19 | ||||
|
6.2 |
Servicing | 19 | ||||
|
6.3 |
Collections from Obligors and Remittances | 19 | ||||
|
6.4 |
Servicing Practices | 19 | ||||
|
6.5 |
Servicing Reports | 19 | ||||
|
6.6 |
Escrow Accounts | 19 | ||||
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TABLE OF CONTENTS
(continued)
| Exhibit A | Form of Monthly Remittance Report | |||
| Schedule I | Servicing Agreements | |||
| Schedule II | Reserved | |||
| Schedule III | Reserved | |||
| Schedule IV | SPS Subservicing Agreement | |||
| Schedule V | Non-Facility Eligible Servicing Agreements | |||
| Schedule VI | Funding Schedule | |||
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SALE SUPPLEMENT (Shuttle 2)
This Sale Supplement (Shuttle 2), dated as of December 17, 2013 (this “ Sale Supplement ”), is between Nationstar Mortgage LLC, a Delaware limited liability company (“ Seller ”), and Advance Purchaser LLC, a Delaware limited liability company (“ Purchaser ”):
WITNESSETH:
WHEREAS, Seller and Purchaser are parties to that certain Master Servicing Rights Purchase Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Agreement ”), with respect to the sale by Seller and the purchase by Purchaser of the Servicing Rights and other assets;
WHEREAS, this Sale Supplement shall constitute a “Group 1” Sale Supplement for purposes of the Agreement; and
WHEREAS, Seller and Purchaser desire to enter into the transactions described in the Agreement as supplemented by this Sale Supplement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT
1.1 Definitions . (a) For purposes of this Sale Supplement, the following capitalized terms shall have the respective meanings set forth or referenced below:
“ Additional Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Applicable Requirements ” shall mean and include, as of the time of reference, with respect to any Mortgage Loans, all of the following: (a) all contractual obligations of Seller in the Mortgage Loan Documents, in the applicable Servicing Agreements and the applicable Underlying Documents to which Seller is a party or by which Seller is bound or for which it is responsible and (b) all Applicable Laws binding upon Seller in each jurisdiction which is applicable to the context or situation to which the Applicable Requirements apply.
“ Assumed Liabilities ” shall have the meaning set forth in Section 2.4 .
“ Base Fee Percentage ” means a percentage equal to 0.02% divided by the Servicing Fee Rate.
“ Closing Date ” means the date mutually agreed upon by the Seller and the Purchaser upon the satisfaction of the conditions precedent set forth in Section 5.1 hereof, which date shall not be later than January 31, 2014. Notwithstanding the foregoing, if the condition precedent set forth in Section 5.1(e) cannot be satisfied for any Servicing Agreement on the date agreed upon as the “Closing Date” (because the transfer date for such Servicing Agreement to the Servicer from a predecessor servicer is “pushed” or otherwise) (any such Servicing Agreement, a “Pushed Servicing Agreement”) and, subsequent to such “Closing Date”, such condition and all other conditions set forth in Section 5.1 are satisfied on a date that is not later than January 31, 2014 for any Pushed Servicing Agreement, the Seller and the Purchaser shall endeavor in good faith to designate a different date that shall constitute the “Closing Date” for such Pushed Servicing Agreements.
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“ Closing Statement ” means the statement delivered by Seller to Purchaser on or before the Closing Date setting forth the good faith calculation of the Estimated Purchase Price.
“ Consent Period ” means, for each Deferred Servicing Agreement and each related Deferred Servicing Right, the period, if any, from and including the Closing Date to and including the related Servicing Transfer Date.
“ Current Excess Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Current Excess Servicing Spread Acquisition Agreement ” means each of (i) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (ii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XIII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (iii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of November 4, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIII LLC, as a purchaser, MSR XXIII 1 LLC, as a purchaser and MSR XXIII 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time and (iv) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of December 3, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIV LLC, as a purchaser, MSR XXIV 1 LLC, as a purchaser and MSR XXIV 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time.
“ Current Excess Servicing Spread Buyer ” shall mean, with respect to any Current Excess Servicing Spread Acquisition Agreement, each “Purchaser” set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Cut-off Date ” means December 17, 2013.
“ Deferred Mortgage Loan ” means a mortgage loan subject to a Deferred Servicing Agreement.
“ Deferred Servicing Agreement ” means, as of any date of determination, each Servicing Agreement that is not a Transferred Servicing Agreement on such date. For avoidance of doubt, on the Closing Date each Servicing Agreement is a Deferred Servicing Agreement.
“ Deferred Servicing Right ” means, as of any date of determination, each Servicing Right arising under a Servicing Agreement that is a Deferred Servicing Agreement on such date.
“ Excluded Amounts ” means all Total Servicing Spread.
“ Excluded Liabilities ” shall have the meaning set forth in Section 2.4(c) .
“ Fannie Mae ” means the Federal National Mortgage Association, or any successor thereto.
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“ Indemnified Person ” means, a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be.
“ Indemnifying Person ” means the Seller pursuant to Section 8.1 or the Purchaser pursuant to Section 8.2 , as the case may be.
“ Initial Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Investor ” means, with respect to any Securitization Transaction, any holder or other beneficial owner of any securities issued by the related Trust.
“ Liability ” shall have the meaning set forth in Section 8.1 .
“ Monthly Remittance Report ” means, with respect to each Deferred Servicing Agreement, a report substantially in the form attached as Exhibit A to this Sale Supplement or in such other form as may be agreed to by Seller and Purchaser from time to time.
“ Monthly Servicing Oversight Report ” means a report with respect to all of the Deferred Servicing Agreements and related Mortgage Loans in such form as may be agreed to by Seller and Purchaser from time to time.
“ MSR Purchase Price ” means, for each Servicing Agreement, $0.00.
“ Net Specified Amounts ” means, in respect of any calendar month, the excess of (i) the Specified Amounts for such month over (ii) the Seller Monthly Servicing Fee for such calendar month.
“ P&I Advance ” means any “P&I Advances,” “Monthly Advances” (each as defined in the applicable Transferred Servicing Agreement or any other similar term therein) or, if not defined therein, advances in respect of principal or interest for which Servicer has a right of reimbursement under the applicable Transferred Servicing Agreement.
“ Purchase Price ” means the sum of the aggregate MSR Purchase Price for all of the Servicing Agreements.
“ Purchaser Indemnified Party ” shall have the meaning set forth in Section 8.2 .
“ Rights to MSRs ” means, for each Servicing Agreement, each of the following assets:
(a) all Servicing Fees payable to Seller (including the “Base Servicing Fee” as defined under any related “Current Excess Servicing Spread Acquisition Agreement”) as of or after the Closing Date under such Servicing Agreement and the right to receive all Servicing Fees accruing and payable as of or after the Closing Date under such Servicing Agreement (including any rights to DSF arising in connection therewith if any such Servicing Fees remain accrued and unpaid on the related monthly remittance date following the related due date);
(b) the right to purchase the Servicing Rights pursuant to Section 2.2 of this Sale Supplement;
(c) any proceeds of any of the foregoing; and
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(d) unless and until the Seller demonstrates to the reasonable satisfaction of the Purchaser that Seller is able to bifurcate deferred servicing fees between the portion thereof in respect of Excluded Amounts and the portion thereof that are not Excluded Amounts, all deferred servicing fees arising under the Servicing Agreements in respect of the Excluded Amounts, not including any Current Excess Servicing Spread sold to the Current Excess Servicing Spread Buyer (and such deferred servicing fees attributable to Excluded Amounts shall be included in “DSF” for all purposes of the Agreement and this Sale Supplement notwithstanding the definition of “DSF” in the Agreement),
provided , that “Rights to MSRs” shall not include any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, it being understood, however that Seller may not exercise any optional termination or clean-up call without causing payment to the related Advance SPE Issuer of all DSF and Servicer Advance Receivables amounts unpaid under the related Servicing Agreement, unless such receivables are not owned by an Advance SPE Issuer in which case they must be paid to Advance Purchaser or its appropriate affiliate.
“ Sale Date ” means, for each Servicing Advance Receivable, the date on which such Servicing Advance Receivable is transferred to Purchaser pursuant to Section 3.3 .
“ Seller Indemnified Party ” shall have the meaning set forth in Section 8.1 .
“ Seller Monthly Servicing Fee ” shall have the meaning set forth in Section 7.1 .
“ Servicing Advance Financing Agreements ” means the following:
(i) the Indenture dated as of July 1, 2013 among Nationstar Servicer Advance Receivables Trust 2013-CS, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time; and
(ii) the Indenture dated as of September 19, 2013 among Nationstar Servicer Advance Receivables Trust 2013-BC, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time.
“ Servicing Advance Payment Date ” means (i) with respect to any Servicing Advance other than a P&I Advance, any “Funding Date” therefor under the applicable Servicing Advance Financing Agreement and (ii) with respect to any Servicing Advance that is a P&I Advance, the date on which such Servicing Advance is required to be made under the related Servicing Agreement. If there are no Servicing Advance Financing Agreements or if there are no “Funding Dates” occurring under Servicing Advance Financing Agreements, the “Servicing Advance Payment Date” for Additional Servicing Advance Receivables shall be dates mutually agreed upon between the Seller and the Purchaser as contemplated on Schedule VI hereto.
“ Servicing Advance Receivable Purchase Price ” means, with respect to each Servicing Advance Payment Date, for each Servicing Advance Receivable that has arisen since the last Servicing Advance Payment Date, the outstanding amount that is reimbursable under the related Servicing Agreement with respect to such Servicing Advance Receivable as of such Servicing Advance Payment Date.
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“ Servicing Agreement ” means each of the servicing agreements related to the transactions described on Schedule I governing the rights, duties and obligations of Seller as servicer under such agreements.
“ Servicing Fee Collections ” means, for any calendar month in respect of the Deferred Servicing Agreements, any collections in respect of any Servicing Fees received and remitted to the Purchaser in respect of such calendar month (other than collections in respect of DSF).
“ Servicing Fee Rate ” means 0.22% per annum.
“ Servicing Rights Assets ” shall have the meaning set forth in Section 2.2 .
“ Servicing Transfer Date ” means, with respect to each Servicing Agreement, the date on which all of the Third Party Consents related to such Servicing Agreement necessary to transfer the related Servicing Rights to Seller are received, all other conditions precedent thereto have been satisfied, and the Purchaser has agreed in writing that it is the “Servicer” thereunder or such later date mutually agreed to by Seller and Purchaser.
“ Special Damages ” shall have the meaning set forth in Section 8.3(d) .
“ Specified Amounts ” means, in respect of any calendar month, the sum of (i) the Servicing Fee Collections for such month and (ii) the aggregate principal balance of indebtedness that the Purchaser (or any applicable subsidiary thereof) was able to borrow during such month against the pledge of DSF arising in connection with the Rights to MSRs during such calendar month.
“ SPS Subservicing Agreement ” means the Subservicing Agreement dated as of June 28, 2013 between Nationstar Mortgage LLC and Select Portfolio Servicing, Inc. attached as Schedule IV hereto.
“ Sub-Administration Agreement ” means that certain Sub-Administration Agreement, dated as of the date hereof, between the Servicer and Nationstar, as the same may be amended, restated, supplemented or otherwise modified from time to time from time to time.
“ Subservicing Agreement ” means that certain Master Subservicing Agreement, dated on or after the date hereof, between the Seller, as subservicer, and the Purchaser, as servicer, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“ Subservicing Supplement ” means a Subservicing Supplement entered into between the Seller and the Purchaser on or after the date hereof in connection with the transactions contemplated hereby.
“ Summary Schedule ” shall have the meaning set forth in Section 4.5(a) .
“ Termination Event ” means the occurrence of any one or more of the following events (whatever the reason for the occurrence of such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Seller fails to remit any payment required to be made under the terms of this Sale Supplement (to the extent not resulting solely from Purchaser failing to purchase a Servicing Advance Receivable required to be purchased by Purchaser under this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which continues unremedied for a period of one (1) Business Day after the date on which written notice of such failure shall have been given by Purchaser to Seller;
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(b) Seller fails to deliver any required information or report in a manner that is complete in all material respects as required pursuant to this Sale Supplement in the manner and time frame set forth herein, which failure continues unremedied for a period of two (2) Business Days after the date on which written notice of such failure shall have been given to Seller by Purchaser;
(c) Seller fails to observe or perform in any material respect any other covenant or agreement of Seller set forth in the Agreement, this Sale Supplement or any Current Excess Servicing Spread Acquisition Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(d) a material breach by Seller of any representation and warranty made by it in the Agreement, this Sale Supplement (other than a representation contained in Section 4.9 of this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which breach continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(e) Seller fails to maintain residential primary servicer ratings for subprime loans of at least “Average” by Standard & Poor’s Rating Services, a division of Standards & Poor’s Financial Services LLC (or its successor in interest);
(f) Seller ceases to be a Fannie Mae, Freddie Mac or FHA approved servicer;
(g) the occurrence of any of the items set forth in clauses (ii) or (iii) of the definition of Material Adverse Effect;
(h) any of the conditions specified in the applicable “Servicer Default”, “Servicer Event of Default,” “Event of Default,” “Servicing Default” or “Servicer Event of Termination” or similar sections of any Deferred Servicing Agreement or any related Underlying Document shall have occurred with respect to Seller for any reason not caused by Purchaser (other than as a result of any delinquency or loss trigger which was already triggered as of the Closing Date with respect to such Deferred Servicing Agreement); provided that Seller shall be entitled to any applicable cure period set forth in such Deferred Servicing Agreement or Underlying Document;
(i) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Seller and such decree or order shall have remained in force undischarged or unstayed for a period of thirty (30) days;
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(j) Seller shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Seller or of or relating to all or substantially all of its property;
(k) Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(l) the occurrence of any “Facility Early Amortization Event”, “Event of Default” or “Target Amortization Event” under and as defined in each Servicing Advance Financing Agreement by or related to the Seller and the breach of any portfolio test therein (including, without limitation, any reimbursement rate trigger and/or any interest coverage trigger);
(m) the occurrence of any “Termination Event” under any other Sale Supplement;
(n) Seller shall deliver any information to Purchaser in connection with this Agreement that is inaccurate and Purchaser determines acting reasonably that such inaccurate information has caused a “material weakness” of the financial reporting of Purchaser, New Residential Investment Corp. or any Subsidiary thereof; or
(o) with respect to any Servicing Agreement, any related Current Excess Servicing Spread Buyer exercises “Control” in respect of the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to the related Current Excess Servicing Spread Acquisition Agreement as permitted under such Current Excess Servicing Spread Acquisition Agreement.
“ Third-Party Claim ” shall have the meaning set forth in Section 8.3(b) .
“ Total Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Transferred Assets ” means the Rights to MSRs and the Transferred Servicing Rights.
“ Transferred Receivables Assets ” shall have the meaning set forth in Section 3.3 .
“ Transferred Servicing Agreement ” means, as of any date of determination, a Servicing Agreement with respect to which the related Servicing Rights have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement or to its designee in accordance with the terms of this Sale Supplement on or prior to such date. For the avoidance of doubt, on the Closing Date no Servicing Agreement is a Transferred Servicing Agreement.
“ Transferred Servicing Rights ” means, as of any date of determination, any Servicing Rights that have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement on or prior to such date.
“ UCC ” shall have the meaning set forth in Section 3.3 .
“ Underlying Documents ” means each PSA related to the transactions described on Schedule I .
(b) Any capitalized term used but not defined in this Sale Supplement shall have the meaning assigned to such term in the Agreement.
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1.2 Reference to the Master Servicing Rights Purchase Agreement . Each of Seller and Purchaser agrees that (a) this Sale Supplement is a “Sale Supplement” executed pursuant to Section 2.1 of the Agreement, (b) the terms of this Sale Supplement are hereby incorporated into the Agreement with respect to the Servicing Agreements and the related Mortgage Loans to the extent set forth therein and herein, and (c) the terms of this Sale Supplement apply to the Servicing Agreements specified herein and not to any other “Servicing Agreement” as that term is used in the Agreement. In the event of any conflict between the provisions of this Sale Supplement and the Agreement, the terms of this Sale Supplement shall prevail.
ARTICLE 2
PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES
2.1 Assignment and Conveyance of Rights to MSRs .
(a) As of the Closing Date, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, all of its right, title and interest in and to all of the Rights to MSRs for each of the Servicing Agreements.
(b) On and after the Closing Date, Purchaser shall be obligated to maintain a complete and accurate list of Servicing Agreements that are Deferred Servicing Agreements and Transferred Servicing Agreements, as the same shall be amended and modified from time to time in connection with Deferred Servicing Agreements becoming Transferred Servicing Agreements as contemplated by the terms and provisions of this Sale Supplement. The list of Deferred Servicing Agreements and Transferred Servicing Agreements maintained by Purchaser under this Section 2.1(b) shall be (x) available for inspection by Seller at any time during normal business hours and (y) presumed to be accurate absent manifest error on the part of Purchaser.
2.2 Automatic Assignment and Conveyance of Servicing Rights . As of the Servicing Transfer Date with respect to each Servicing Agreement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, without further action by any Person, all of its right, title and interest in and to the following assets (the “ Servicing Rights Assets ”):
(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to such Servicing Agreement, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) all Ancillary Income and Prepayment Interest Excess received as of or after the related Servicing Transfer Date under such Servicing Agreements;
(c) all Custodial Accounts and Escrow Accounts related to such Servicing Agreement and amounts on deposit therein;
(d) all files and records in Seller’s possession or control, including the related database, relating to the Servicing Rights Assets specified in clauses (a), (b) and (c);
(e) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to such Servicing Rights Assets and/or the Assumed Liabilities;
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(f) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(g) any proceeds of any of the foregoing.
2.3 MSR Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, as consideration for the purchase of the Rights to MSRs and the Servicing Rights Assets, on the Closing Date, Purchaser shall pay the MSR Purchase Price for each Servicing Agreement to Seller in immediately available funds to an account designated in writing by Seller to Purchaser.
2.4 Assumed Liabilities and Excluded Liabilities .
(a) Upon the terms and subject to the conditions set forth herein and in the Agreement, Purchaser shall assume, (i) the obligation to pay the Servicing Advance Receivables Purchase Price and the other obligations on account of the Servicing Agreements set forth in the Agreement and this Sale Supplement and (ii) as of or after the Servicing Transfer Date for each Servicing Agreement, all of the duties, obligations, and liabilities of Seller (other than the Excluded Liabilities) as servicer under each such Servicing Agreement accrued and pertaining solely to the period from and after such Servicing Transfer Date (the “ Assumed Liabilities ”).
(b) Purchaser hereby agrees to act as servicer under each Servicing Agreement following the related Servicing Transfer Date and assumes responsibility for the due and punctual performance and observance of each covenant and condition to be performed or observed by the servicer under the applicable Servicing Agreement, including the obligation to service each Mortgage Loan in accordance with the terms of the related Servicing Agreement;
provided , however , that the parties hereto acknowledge and agree that neither Purchaser nor any successor servicer assumes any liabilities of Seller, or any obligations of Seller relating to any period of time prior to the applicable Servicing Transfer Date. Seller hereby acknowledges that neither this Sale Supplement nor the Agreement limits or otherwise releases it from its liabilities for its acts or omissions as the servicer under the Servicing Agreements prior to the related Servicing Transfer Date. Purchaser hereby acknowledges that Seller shall have no further obligation as servicer under any of the Servicing Agreements on and after the related Servicing Transfer Date, except to the extent set forth in this Sale Supplement, the Agreement, the Subservicing Agreement and the Subservicing Supplement.
(c) Notwithstanding anything to the contrary contained herein, Purchaser does not assume any duties, obligations or liabilities of any kind, whether known, unknown, contingent or otherwise, (i) not relating to the Transferred Servicing Rights or the Assumed Liabilities, (ii) attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date, (iii) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date or (iv) relating to any representation and warranty made by Seller or any of its Affiliates with respect to the
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related Mortgage Loans or the Transferred Assets under the Servicing Agreements (the “ Excluded Liabilities ”). Without limiting the generality of the foregoing, it is not the intention that the assumption by Purchaser of the Assumed Liabilities shall in any way enlarge the rights of any third parties relating thereto. Nothing contained in the Agreement or this Sale Supplement shall prevent any party hereto from contesting matters relating to the Assumed Liabilities with any third party obligee.
(d) From and after the related Servicing Transfer Date, except as otherwise provided for in Section 8.3 of this Sale Supplement, (i) Purchaser shall have complete control over the payment, settlement or other disposition of the Assumed Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto, subject to the terms of the related Servicing Agreements and (ii) Seller shall have complete control over the payment, settlement or other disposition of the Excluded Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto. Except as otherwise provided in this Sale Supplement, (i) Seller shall promptly notify Purchaser of any claim made against Seller with respect to the Assumed Liabilities or the Transferred Assets and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Assumed Liabilities or Transferred Assets without the prior written consent of Purchaser and (ii) Purchaser shall promptly notify Seller of any claim made against Purchaser with respect to the Excluded Liabilities and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Excluded Liabilities without the prior written consent of Seller.
2.5 Remittance of Servicing Fees and Related Amounts . On each Fee Remittance Date, the Seller shall remit to an account designated by the Purchaser any collections in respect of any Servicing Fees for a month received by the Seller during the prior monthly collection period (other than collections in respect of DSF). Notwithstanding the foregoing, collection and remittance of all collections on account of DSF shall be made in accordance with Section 3.6 . If any Current Excess Servicing Spread Buyer exercised “Control” of the “Third Party Controlled Current Spread Custodial Account” pursuant to and in accordance with any Current Excess Servicing Spread Acquisition Agreement related to the Servicing Agreements, the Seller shall remit to Purchaser (and shall direct in writing any applicable depositary institution to remit to the Purchaser directly), any payments on account of the “Base Servicing Fee” thereunder directly to the Purchaser. If a Termination Event has occurred, the Seller shall, following Purchaser’s request therefor, withdraw from time to time collections on the Servicing Fees from the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to a Current Excess Servicing Spread Acquisition Agreement amount in respect of the “Base Servicing Fee” thereunder as permitted by the related Current Excess Servicing Spread Acquisition Agreement and remit such amounts to the Purchaser as payments on account of the Servicing Fees in respect of the Servicing Agreements.
2.6 Payment of Estimated Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, Purchaser shall pay the Estimated Purchase Price to Seller at the Closing in immediately available funds to an account designated in writing by Seller to Purchaser. The Estimated Purchase Price shall be reconciled to the final Purchase Price in accordance with Section 2.5 of the Agreement.
ARTICLE 3
PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES
3.1 [RESERVED] .
3.2 [RESERVED] .
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3.3 Assignment and Conveyance of Servicing Advance Receivables . Commencing on the Closing Date, and continuing until the close of business on the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller hereby sells, conveys, assigns and transfers to Purchaser, and Purchaser acquires from Seller, without recourse except as provided herein and in the Servicing Advance Financing Agreements to which Seller is a party, free and clear of any Liens, all of Seller’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Servicing Advance Receivable (i) in existence on the Closing Date that arose under the Servicing Agreements and is owned by Seller as of the Closing Date, if any (the “ Initial Servicing Advance Receivables ”), (ii) in existence on any Business Day on or after the Closing Date that arises under any Servicing Agreement prior to the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement (“ Additional Servicing Advance Receivables ”), and (iii) in the case of both Initial Servicing Advance Receivables and Additional Servicing Advance Receivables, all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the Uniform Commercial Code in effect in all applicable jurisdictions (the “ UCC ”)), together with all rights of Seller to enforce such Initial Servicing Advance Receivables and Additional Servicing Advance Receivables (collectively, the “ Transferred Receivables Assets ”). Until the related Servicing Transfer Date, Seller shall, automatically and without any further action on its part, sell, assign, transfer and convey to Purchaser, on each Business Day, each Additional Servicing Advance Receivable not previously transferred to Purchaser and Purchaser shall, automatically and without further action on its part, purchase each such Additional Servicing Advance Receivable. The Purchaser shall pay the Seller the Servicing Advance Receivables Purchase Price in accordance with Section 3.4 . The parties acknowledge and agree that so long as the Servicing Advance Receivables with respect to a Servicing Agreement are being sold by Purchaser to a special purpose vehicle in connection with any Servicing Advance Financing Agreement, the sale of such Servicing Advance Receivables by Seller to Purchaser shall be made pursuant to and in accordance with the provisions of the Servicing Advance Financing Agreements, and Seller covenants and agrees to comply with the provisions of such Servicing Advance Financing Agreements with respect to such Servicing Advance Receivables. For the avoidance of doubt, the Purchaser shall not have any obligation to pay any purchase price to the Seller in connection with the purchase of deferred servicing fees related to any Excluded Amounts (it being understood that the Purchaser will acquire such deferred servicing fees in accordance with clause (d) of the definition of “Rights to MSRs”).
3.4 Servicing Advance Receivables Purchase Price . In consideration of the sale, assignment, transfer and conveyance to Purchaser of the Servicing Advance Receivables and related Transferred Receivables Assets, on the terms and subject to the conditions set forth in this Sale Supplement, Purchaser shall, on the Servicing Advance Payment Date immediately following the date on which the related Servicing Advance was made (with respect to any Servicing Advance other than a P&I Advance) or on the related Servicing Advance Payment Date (with respect to any Servicing Advance that is a P&I Advance), pay and deliver to an account designated in writing by Seller to Purchaser, in immediately available funds, a purchase price equal to the applicable Servicing Advance Receivables Purchase Price; provided that Seller shall have complied with the terms of Section 3.3 and Section 3.5 with respect to the related Servicing Advance Receivable.
3.5 Servicing Advances . Seller covenants and agrees that each Servicer Advance made by Seller under the Servicing Agreements prior to the related Servicing Transfer Date shall (a) be required to be made pursuant to the terms of the related Deferred Servicing Agreement and comply with the terms of such Deferred Servicing Agreement and Applicable Law, (b) comply with Seller’s advance policies and stop advance policies and procedures and not constitute a nonrecoverable Servicer Advance as determined by Seller in accordance with the related Servicing Agreement as of the date Seller made such Servicer Advance and (c) be supported by customary backup documentation. Seller agrees to provide
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weekly reports to Purchaser of Servicer Advances made by Seller under the Deferred Servicing Agreements and deliver to Purchaser such customary backup documentation relating to any Servicer Advance promptly upon request by Purchaser. In the event Seller cannot provide, or cause to be provided to Purchaser any customary backup documentation, and Purchaser is unable to be reimbursed for such Servicer Advance solely as a result of such failure, Seller shall reimburse Purchaser for the amount of such unreimbursed Servicer Advances within thirty (30) days of Purchaser’s written request, to the extent Purchaser paid Seller for such amounts and such amounts remain unreimbursed.
3.6 Reimbursement of Servicing Advances; Repayment of DSF .
(i) Seller shall, to the extent permitted under any Deferred Servicing Agreement cause the reimbursement of any Servicer Advances under the Deferred Servicing Agreements to be made directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as reimbursement of any Servicer Advance. Any such amounts shall be remitted in accordance with Purchaser’s written directions.
(ii) Seller shall, to the extent permitted under any Deferred Servicing Agreement remit collections of DSF under the Deferred Servicing Agreements directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as payment of DSF and will not net any amounts owing to Seller for fees hereunder or under the Subservicing Agreement out of any DSF. Any such amounts shall be remitted in accordance with Purchaser’s written directions. Seller agrees that it will (i) remit collections on DSF to the Purchaser and (ii) retain all collections on all deferred servicing fees, other than DSF in each case, related to the same Deferred Servicing Agreement, on a pro-rata basis based on the outstanding amount of DSF and the outstanding amount of such other deferred servicing fees.
(iii) On the Closing Date, the Purchaser shall designate an account for each Servicing Agreement as the “Collection and Funding Account” into which remittances of collections in respect of Servicing Advance Receivables and DSF under such Servicing Agreements shall be deposited in connection with a Servicing Advance Financing Agreement.
3.7 Servicing Advances . Seller covenants and agrees to punctually perform, at its own expense, all administrative functions and duties under the (i) Sub-Administration Agreement and (ii) Servicing Advance Financing Agreements (including, without limitation, the remittance of collections on the “Receivables” and all reporting with respect to the Receivables) and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets and other administrative and reporting tasks as reasonably requested by the Purchaser from time to time in connection with the Servicing Advance Financing Agreements or any such refinancings, replacements or restructurings thereof. Seller agrees to cooperate with Purchaser in connection with any ratings on any of the obligations under any Servicing Advance Financing Agreements and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Purchaser as of (a) each of the Closing Date and each Sale Date or (b) as of such other dates specified below:
4.1 General Representations . Each of the representations and warranties set forth in Article 3 of the Agreement are true and correct.
4.2 Title to Transferred Assets . From and including the Closing Date until such Servicing Rights Assets are transferred to Purchaser under Section 2.2 , Seller shall be the sole holder and owner of the Servicing Rights Assets and shall have good and marketable title to the Servicing Rights Assets, free and clear of any Liens. Upon the sale of such Servicing Rights Assets pursuant to Section 2.2, Seller will transfer to Purchaser good and marketable title to the Servicing Rights Assets free and clear of any Liens. Seller is the sole holder and owner of the Rights to MSRs and the sale and delivery to Purchaser of the Rights to MSRs pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Rights to MSRs free and clear of any Liens.
4.3 Right to Receive Servicing Fees . Seller is entitled to receive Servicing Fees as servicer under each Servicing Agreement, and the New York Uniform Commercial Code permits the Seller to transfer the Rights to MSRs to Purchaser under the Agreement and this Sales Supplement without violation of any applicable Servicing Agreement. The Servicing Fees included in the Rights to MSRs represent the right to receive current Servicing Fees collections for each month in an amount equal to the Servicing Fee Rate multiplied by the aggregate unpaid principal balance of all Mortgage Loans serviced by the Seller subject to the Servicing Agreements as of the related date of determination (which such amount is equal to the “Base Servicing Fee” under the applicable Current Excess Servicing Spread Acquisition Agreement). If the Purchaser does not receive the full amount of such current Servicing Fee pursuant to Section 2.5 in respect of any month (because the underlying mortgagor does not make the required payments or otherwise), the Purchaser will have a right to payment for such unpaid Servicing Fees as DSF.
4.4 Servicing Agreements and Underlying Documents . Schedule I hereto contains a list of the transactions related to all Servicing Agreements (other than the Underlying Documents) related to the Servicing Rights, in each case with all amendments and modifications thereto, or supplements thereto with respect to such Servicing Rights.
4.5 Mortgage Pool Information, Related Matters .
(a) Seller has delivered to Purchaser one or more summary schedules which set forth information with respect to each Mortgage Pool relating to the Servicing Rights (the “ Summary Schedules ”). Seller acknowledges that Purchaser has relied on such Summary Schedules to determine the Purchase Price it was willing to pay for the Transferred Assets.
(b) The Summary Schedules, the Mortgage Loan Schedule and the Database are true, accurate and complete in all material respects as of the related Cut-off Date or such other date specified thereon.
(c) The Mortgage Loan Schedule indicates, by code reference, which of the Mortgage Loans have been converted into REO Properties as of the Cut-off Date.
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4.6 Enforceability of Servicing Agreements .
(a) Seller has delivered to Purchaser, on or prior to the related Closing Date, true and complete copies of all Servicing Agreements related to the transactions listed on Schedule I hereto and all amendment thereto and all Underlying Documents and all amendments thereto. There are no other written or oral agreements binding upon Seller or Purchaser that modify, supplement or amend any such Servicing Agreement or Underlying Document.
(b) Seller has not received written notice of any pending or threatened cancellation or partial termination of any Servicing Agreement or Underlying Document or any written notice of any pending or threatened termination of Seller as servicer of any of the Mortgage Loans.
(c) On and prior to the related Servicing Transfer Date, each Servicing Agreement and each of the Underlying Documents is or was a valid and binding obligation of Seller, is or was in full force and effect and enforceable against Seller in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors rights generally and general principles of equity (regardless of whether considered in a proceeding of law or in equity).
4.7 Compliance With Servicing Agreements .
(a) Seller has serviced the Mortgage Loans subject to the Servicing Agreements and has kept and maintained complete and accurate books and records in connection therewith, all in accordance with Applicable Requirements, has made all remittances required to be made by it under each Servicing Agreement and is otherwise in compliance in all material respects with all Servicing Agreements and the Applicable Requirements.
(b) (i) No early amortization event, servicer default, servicer termination event, event of default or other default or breach has occurred under any Servicing Agreement or any Underlying Document (except with respect to the delinquency or loss performance triggers identified in the Summary Schedules), and (ii) no event has occurred, which with the passage of time or the giving of notice or both would: (A) constitute a material default or breach by Seller under any Servicing Agreement, Underlying Document or under any Applicable Requirement; (B) permit termination, modification or amendment of any such Servicing Agreement or Underlying Document by a third party without the consent of Seller; (C) enable any third party to demand that either Seller or Purchaser either incur any repurchase obligations pursuant to a Servicing Agreement or an Underlying Document or provide indemnification for any amount of losses relating to a breach of a loan representation or warranty; (D) impose on Seller or Purchaser sanctions or penalties in respect of any Servicing Agreement or Underlying Document; or (E) rescind any insurance policy or reduce insurance benefits in respect of any Servicing Agreement or Underlying Document which would result in a material breach or trigger a default of any obligation of Seller under any Servicing Agreement or Underlying Document.
(c) There are no agreements currently in place with any subservicers to perform any of Seller’s duties under the Servicing Agreements; provided, however , the foregoing shall not prohibit the use by Seller of third-party vendors to perform discrete servicing functions in the ordinary course of business or otherwise in accordance with the Subservicing Agreement.
(d) Each report and officer’s certification prepared by Seller as servicer pursuant to a Servicing Agreement is true and correct in all material respects. Seller has previously made available to Purchaser a correct and complete description of the policies and procedures used by Seller in connection with servicing the Mortgage Loans related to the Servicing Agreements.
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(e) In the preceding twelve (12) month period, no Governmental Authority, Investor, Insurer, rating agency, trustee, master servicer or any other party to a Servicing Agreement has provided written notice to Seller claiming or stating that Seller has violated, breached or not complied with any Applicable Requirements in connection with the servicing of the related Mortgage Loans which has not been resolved by Seller.
(f) All Custodial Accounts and Escrow Accounts have been established and continuously maintained in accordance with Applicable Requirements. All Custodial Account and Escrow Account balances required by the Mortgage Loans and paid for the account of the Mortgagors under the related Mortgage Loans have been credited properly to the appropriate account and have been retained in and disbursed from the appropriate account in accordance with Applicable Requirements in all material respects.
4.8 No Recourse . None of the Servicing Agreements or other contracts to be assumed by Purchaser hereunder provide for Recourse to Seller.
4.9 The Mortgage Loans .
(a) Each of the Mortgage Loans and REO Properties related to each Servicing Agreement has been serviced in accordance with Applicable Requirements in all material respects.
(b) Except as disclosed on the Mortgage Loan Schedule, in the related Database and in the related Loan File and consistent with the requirements of the related Servicing Agreement, Seller has not waived any default, breach, violation or event of acceleration under any Mortgage Loan, except to the extent that any such waiver is permitted under the related Servicing Agreement and reflected in the Mortgage Loan Schedule, the related Database and the related Loan File and the disclosure relating to such waiver is reflected consistently in all material respects among the related Mortgage Loan Schedule, the related Database and the related Loan File. The Mortgage related to each Mortgage Loan related to the Servicing Agreements has not been satisfied, cancelled or subordinated, in whole or in part, and except as permitted under the related Servicing Agreement, the related Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, or subordination.
(c) There is in force with respect to each Mortgaged Property and REO Property related to a Servicing Agreement a hazard insurance policy (including any policy in effect under a forced place insurance policy) and, if applicable, a flood insurance policy that provides, at a minimum, for the coverage as required by the applicable Servicing Agreement. Seller and any prior servicer or subservicer under the Servicing Agreements has taken all necessary steps to maintain any hazard insurance policy, flood insurance policy, primary mortgage insurance policy, and title insurance policy as required under the Servicing Agreements.
(d) Seller is not aware of any repurchase requests or demands being made or threatened to be made with respect to any Mortgage Loans related to the Servicing Agreements in excess of $5 million with respect to any Servicing Agreement.
(e) Except as disclosed in the related Database, Seller has not received notice from any Mortgagor with respect to the Mortgage Loans related to the Servicing Agreements of a request for relief pursuant to or invoking any of the provisions of the Servicemembers Civil Relief Act or any similar law which would have the effect of suspending or reducing the Mortgagor’s payment obligations under a Mortgage Loan or which would prevent such loan from going into foreclosure.
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(f) With respect to each adjustable rate Mortgage Loan, Seller and each prior servicer has complied in all material respects with all Applicable Requirements regarding interest rate and payment adjustments.
(g) Each first lien Mortgage Loan is covered by a valid and freely assignable, life of loan, tax service contract, and flood tracking services contract, in full force and effect. All flood zone determination information provided to Purchaser is true and correct in all material respects.
(h) There are no actions, claims, litigation or governmental investigations pending or, to the knowledge of Seller, threatened, against Seller, or with respect to any Servicing Agreement or any Mortgage Loan, which relate to or affect Seller’s rights with respect to the Servicing Rights or Seller’s right to sell, assign and transfer the Servicing Rights or the Rights to MSRs or to receive any Servicing Fee, which could reasonably be expected to have a Material Adverse Effect individually or in the aggregate.
(i) Payments received by Seller with respect to any Mortgage Loans related to the Servicing Agreements have been remitted and properly accounted for as required by Applicable Requirements in all material respects. All funds received by Seller in connection with the satisfaction of Mortgage Loans, including foreclosure proceeds and insurance proceeds from hazard losses, have been deposited in the appropriate Custodial Account or Escrow Account and all such funds have been applied to pay accrued interest on the Mortgage Loans, to reduce the principal balance of the Mortgage Loans in question, or for reimbursement of repairs to the Mortgaged Property or as otherwise required by Applicable Requirements or are on deposit in the appropriate Custodial Account or Escrow Account.
(j) Seller is not aware of any Person that has issued any notice or written intention to exercise the optional call or optional redemption provisions under any of the related Servicing Agreements.
(k) No fraudulent action has taken place on the part of Seller in connection with its servicing of any Mortgage Loan related to the Servicing Agreement.
(l) Except with respect to partial releases, actions required by a divorce decree, assumptions, or as otherwise permitted under Applicable Requirements and documented in the Loan File and the Database, (i) the terms of each Mortgage Note and Mortgage have not been modified by Seller or any prior servicer, (ii) no party thereto has been released in whole or in part by Seller or any prior servicer and (iii) no part of the Mortgaged Property has been released by Seller or any prior servicer.
4.10 Servicing Advance Receivables .
(a) From and including the Closing Date until such Servicing Advance Receivable is transferred to Purchaser under Section 3.3 , Seller is the sole holder and owner of each Servicing Advance Receivable and has good and marketable title to such Servicing Advance Receivable. Seller has not previously assigned, transferred or encumbered the Servicing Advance Receivables or DSF other than pursuant to the Agreement, this Sale Supplement and the Servicing Advance Financing Agreements. The sale and delivery to Purchaser of the Servicing Advance Receivables pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Servicing Advance Receivables free and clear of any Liens (other than the Liens created pursuant to the Servicing Advance Financing Agreements).
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(b) Each Servicing Advance Receivable transferred to Purchaser under Section 3.3 , is at the time of such transfer a valid and existing account or payment intangible owing to Seller and is carried on the books of Seller at or less than the amount actually advanced or accrued net of any charge-offs or other adjustments by Seller. Seller has not received any notice from a master servicer, securities administrator, trustee, Insurer, Investor or any other Person, which disputes or denies a claim by Seller for reimbursement or payment in connection with any such Servicing Advance Receivable. Each Servicer Advance made by Seller (and each trailing invoice received by Purchaser on or after the related Servicing Transfer Date for services rendered prior to such Servicing Transfer Date) that is reimbursed or paid by Purchaser to Seller or a third party service provider is fully reimbursable to Purchaser as a Servicer Advance under the terms of the related Servicing Agreement.
(c) Each Servicer Advance made by Seller was made in accordance with Applicable Requirements and Seller’s advance policies and stop advance policies and procedures in all material respects, and is not subject to any set-off or claim that could be asserted against Purchaser. No Servicer Advance made by Seller or any prior servicer under a Servicing Agreement and not reimbursed or paid to Seller prior to the related Sale Date is a Non-Qualified Servicer Advance. Seller has not received any written notice from any Person in which such Person disputes or denies a claim by Seller for reimbursement in connection with a specifically identified Servicer Advance.
4.11 Servicing Agreement Consents and Other Third Party Approvals . None of the execution, delivery and performance of the Agreement and this Sale Supplement by Seller, the transfers of Servicing Rights under Section 2.2 , the transfer of Rights to MSRs under Section 2.1 , the transfers of Servicing Advance Receivables under Section 3.3 and the other transactions contemplated hereby require any consent, approval, waiver, authorization, penalties, notice or filing to be obtained by Seller or Purchaser from, or to be given by Seller or Purchaser to, or made by Seller or Purchaser with, any Person, except for, with respect to the Servicing Rights Assets, the Third Party Consents.
4.12 Servicing Advance Financing Agreements .
(a) Other than those Servicing Agreements set forth on Schedule V , all of the Servicing Agreements are “Facility Eligible Servicing Agreements,” and each Servicer Advance and each DSF owned by a special purpose vehicle in connection with any Servicing Advance Financing Agreement is a “Facility Eligible Receivable,” each as defined under the Servicing Advance Financing Agreements. Each Servicing Agreement has been approved under a Servicing Advance Financing Agreement and, as of the date hereof, the eligibility of the related Servicing Advance Receivables, DSF and related eligibility categorization of the Servicing Advance Receivables as set forth on Schedule 1 of each of the Indentures referenced in the definition of “Servicing Advance Financing Agreement” is true and correct.
(b) All of the representations and warranties of Seller in the Servicing Advance Financing Agreements are true and correct in all material respects.
(c) Each of Seller and its Affiliates have complied in all material respects with the terms of the existing Servicing Advance Financing Agreements.
4.13 Anti-Money Laundering Laws . Seller has complied with all applicable anti-money laundering laws and regulations.
4.14 Servicer Ratings . As of the Closing Date, Seller has a residential primary servicer rating for the servicing of subprime residential mortgage loans issued by S&P of “above Average”.
4.15 Eligible Servicer . Seller meets the eligibility requirements of a servicer and a subservicer under the terms of each Servicing Agreement and Underlying Document.
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4.16 HAMP . Seller has entered into a Commitment to Purchase Financial Instrument and Servicer Participation Agreement with Fannie Mae, as financial agent of the United States, which agreement is in full force and effect.
4.17 Servicing Advance Financing Agreements
(a) No Event of Default, Facility Early Amortization Event or Target Amortization Event has occurred and is continuing under any of the Servicing Advance Financing Agreements and no event has occurred that, with the giving of notice or the passage of time, would constitute an Event of Default, Facility Early Amortization Event or Target Amortization Event under any of the Servicing Advance Financing Agreement.
(b) The Seller has delivered true and correct copies of each of the Servicing Advance Financing Agreements to the Purchaser.
(c) The Seller has delivered to the Purchaser true and correct copies of each of the reports delivered by the Verification Agents pursuant to the Servicing Advance Financing Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions to the Purchase of the Rights to MSRs . Purchaser’s obligations to purchase the Rights to MSRs pursuant to Section 2.1 and the Servicing Rights pursuant to Section 2.2 and to pay the Purchase Price (and the Estimated Purchase Price) pursuant to Section 2.3 and Section 2.6 are subject to the satisfaction or Purchaser’s waiver of each of the conditions set forth in Section 6.1 and Section 6.3 of the Agreement (except the requirement to deliver the Third Party Consents necessary to transfer the Servicing Rights pursuant to Section 2.2 ) with respect to each of the Servicing Agreements and each of the Servicing Rights, as applicable, on the Closing Date and the satisfaction of each of the following conditions:
(a) The Closing Date shall occur on or before January 31, 2013.
(b) Seller shall have obtained all consents or approvals required to be obtained to consummate the transfers of the Rights to MSRs to Purchaser pursuant to Section 2.1 ;
(c) The Purchaser shall have received evidence acceptable to it that each related Servicing Agreement has been designated and approved as a “Facility Eligible Servicing Agreement” under a Servicing Advance Financing Agreement;
(d) No Termination Event shall be continuing hereunder or under any other Sale Supplement and no other event shall be continuing that, with the passage of time, the giving of notice or both, would constitute a Termination Event hereunder or under any other Sale Supplement; and
(e) The Seller have obtained all required Third Party Consents to be the named servicer under the related Servicing Contracts (it being understood that the failure to obtain such consents for any Servicing Agreement shall then result in such Servicing Agreement ceasing to be a “Servicing Agreement” for purposes at such time, subject to the second sentence of the definition of “Closing Date”).
(f) The Purchaser shall have received an acceptable opinion letter as to “true sale” matters of Bingham McCutchen LLP.
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ARTICLE 6
SERVICING MATTERS
6.1 Seller as Servicer . Except as expressly set forth in this Sale Supplement, Seller shall perform all of its duties and obligations of under each Servicing Agreement until the related Servicing Transfer Date and shall at all times until the related Servicing Transfer Date meet any standards and fulfill any requirements applicable to Seller under each Servicing Agreement.
6.2 Servicing . Except as otherwise specifically provided in this Sale Supplement, Seller covenants and agrees to service and administer each Mortgage Loan related to a Servicing Agreement from and after the Closing Date until the related Servicing Transfer Date in accordance with Applicable Law, the terms of the related Mortgage Loan Documents and any applicable private mortgage insurance or pool insurance, the standards, requirements, guidelines, procedures, restrictions and provisions of the related Servicing Agreement and Underlying Documents governing the duties of Seller thereunder, this Sale Supplement and any other Applicable Requirements. Without limiting the foregoing, Seller covenants and agrees that it shall perform its obligations pursuant to this Sale Supplement in a manner that will not cause the termination of Seller as servicer under any Deferred Servicing Agreement, including any termination based on Seller’s management of delinquency or loss performance with respect to Mortgage Loans related to such Deferred Servicing Agreement. The parties acknowledge and agree that any termination of Seller as servicer with respect to a Servicing Agreement pursuant to a delinquency or loss performance trigger or for any other reason, other than as a result of a failure by Purchaser to purchase Servicing Advance Receivables pursuant to Section 3.3 , shall be deemed to be the result of a breach by Seller of its obligations under this Sale Supplement and the Agreement. In the event of a conflict between a Servicing Agreement and this Article 6 , the Servicing Agreement shall control, and the failure of Seller to perform any obligation under the Agreement or this Sale Supplement as a result of such conflict shall not constitute a breach of the Agreement or this Sale Supplement by Seller.
6.3 Collections from Obligors and Remittances . Seller shall promptly remit all amounts received by Seller with respect to the Mortgage Loans to the applicable Custodial Account or Escrow Account in accordance with the related Servicing Agreement. Seller shall also make any compensating interest payments or prepayment interest shortfall payments required to be made by Seller with respect to the Mortgage Loans under the Deferred Servicing Agreements in accordance with the related Servicing Agreement.
6.4 Servicing Practices . Seller shall not make any material change to its servicing practices with respect to the Deferred Mortgage Loans after the date hereof, including, any material changes to its cash collection and sweep processes or its advance policies or stop advance policies, without Purchaser’s prior written consent (in any case, unless required by Applicable Requirements, in which case Purchaser’s prior written consent is not required but Seller shall give Purchaser written notice of any such changes). Seller shall comply with any Purchaser directions to implement reasonable changes to Seller’s servicing practices applicable with respect to all or a portion of the Mortgage Loans, including any changes necessary to ensure compliance with any Applicable Laws or governmental programs or directions received pursuant to the applicable Servicing Agreements.
6.5 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser.
6.6 Escrow Accounts . Subject to the terms of the related Deferred Servicing Agreement, Seller shall be entitled to withdraw funds from any Escrow Account related to a Deferred Servicing Agreement only for the purposes permitted in the applicable Servicing Agreement.
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6.7 Notices and Financial Information . Until the last Servicing Transfer Date, Seller will furnish, or will cause to be furnished, to Purchaser:
(a) within two (2) Business Days after the occurrence of a breach by Seller of the Agreement or this Sale Supplement or any Termination Event, notice of such event;
(b) any information required to be delivered by Seller pursuant to the Subservicing Agreement; and
(c) such other information regarding the condition or operations, financial or otherwise, of Seller or any of its subsidiaries as Purchaser may from time to time reasonably request.
6.8 Defaults under Deferred Servicing Agreements . Seller covenants and agrees to use its reasonable best efforts to cure any breach, default or notice of default with respect to its obligations under any Deferred Servicing Agreement within the timeframe for cure set forth in such Deferred Servicing Agreement.
6.9 Continuity of Business . (a) Seller will maintain a disaster recovery plan in support of the services it performs pursuant to this Sale Supplement and each Deferred Servicing Agreement. Seller’s disaster recovery plan shall include, at a minimum, procedures for back-up/restoration of operating and loan administration computer systems; procedures and third-party agreements for replacement equipment (e.g. computer equipment), and procedures and third-party agreements for off-site production facilities. Seller will provide Purchaser information regarding its disaster recovery plan upon Purchaser’s reasonable request. Seller agrees to annually test its disaster recovery plan to ensure compliance with this Section 6.9 . If such test results identify a material failure, Seller shall advise Purchaser of the steps Seller will be taking to remedy such failure and shall notify Purchaser when Seller has remedied such failure and retested. Seller will notify Purchaser anytime Seller’s disaster recovery plan is activated. In the event of an activation of the disaster recovery plan, Seller shall use best efforts to provide redundancy capabilities for a majority of the critical systems within 48 hours in at least one of Seller’s other servicing facilities unaffected by the disaster to ensure servicing of the Mortgage Loans will be re-established within such 48 hours.
6.10 [RESERVED] .
6.11 Amendments to Deferred Servicing Agreements; Transfer of Servicing Rights . Seller hereby covenants and agrees not to amend the Servicing Agreements without Purchaser’s prior written consent. Seller shall not sell or otherwise voluntarily transfer servicing under any of the Deferred Servicing Agreement during the Consent Period except as expressly provided in this Sale Supplement or take any other actions inconsistent with Purchaser’s right to acquire ownership of Servicing Rights with respect to a Servicing Agreement upon receipt of the required Third Party Consents.
6.12 Assumption of Servicing Duties; Transfer of Rights to MSRs and Servicing Rights . Purchaser may from time to time assume the performance of any of Seller’s servicing obligations under a Deferred Servicing Agreement so long as such assumption is permitted pursuant to such Deferred Servicing Agreement and does not limit Seller’s right to receive (or materially reduce the likelihood of collection of) the Servicing Fees, Ancillary Income, Prepayment Interest Excess, investment income on any Custodial Account or Escrow Account or any other amount payable to the Seller as servicer pursuant to such Deferred Servicing Agreement. Notwithstanding anything in the Agreement or this Sale Supplement to the contrary, Purchaser may transfer the Rights to MSRs to any third party and/or may direct Seller to transfer the Servicing Rights to a third party that can obtain the required Third Party Consents, subject to the right of the Seller to receive the Seller Monthly Servicing Fee, the Performance
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Fee, the Ancillary Income, investment income on the Custodial Accounts and Escrow Accounts and, if applicable, the Prepayment Interest Excess with respect to such Deferred Servicing Agreement pursuant to and in accordance with Article 7 . For the avoidance of doubt, Purchaser shall be entitled to receive all proceeds of such transfer.
6.13 Termination Event . In the case that any Termination Event occurs with respect to any Servicing Agreement during the Consent Period, Seller shall, upon Purchaser’s written direction to such effect, use commercially reasonable efforts to transfer the Servicing Rights relating to any affected Servicing Agreement to a third party servicer identified by Purchaser with respect to which all required Third Party Consents with respect to such Servicing Agreement can be obtained. Purchaser shall be entitled to receive all proceeds of such transfer.
6.14 Servicing Transfer . Seller and Purchaser shall, prior to the Servicing Transfer Date with respect to each Servicing Agreement, work in good faith to determine and agree upon applicable servicing transfer procedures with respect to such Servicing Agreement.
6.15 Fannie Mae/Freddie Mac . Seller shall not have its right to service suspended by Fannie Mae, Freddie Mac or FHA. Seller shall at all times meet the qualifications of a Fannie Mae, Freddie Mac or FHA seller/servicer. Seller shall provide Purchaser with prompt written notice of any negative action by Fannie Mae. Freddie Mac or FHA regarding its right to service or its standing as an approved seller/servicer.
6.16 MERS . Seller shall at all times maintain its membership in the Mortgage Electronic Registration System, Inc (“ MERS ”).
6.17 Insurance . (a) Seller shall maintain, at its own expense:
(i) fidelity bond insurance of at least what is required by Fannie Mae and Freddie Mac (or pursuant to a waiver of such requirements issued by Fannie Mae or Freddie Mac) or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage);
(ii) professional liability/errors and omissions insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which insurance shall protect and insure Seller against losses, including errors and omissions and negligent acts of such persons;
(iii) fidelity bond (crime) insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage); and
(iv) commercial general liability, umbrella and excess insurance in the amount of $1,000,000 per occurrence and $2,000,000 general aggregate and umbrella and excess insurance of at least $10,000,000 per occurrence, in the aggregate, which coverage shall extend to Purchaser (who shall be named as additional insured on a certificate of insurance with respect to such coverage).
(b) The insurance coverages under this Section 6.17 shall be primary, and all coverage shall be non-contributing with respect to any other insurance or self-insurance that may be maintained by Purchaser or its Affiliates. To the fullest extent allowed by the policies of insurance described in
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Section 6.17(a)(iv) , Seller shall waive all rights of subrogation against Purchaser and its Affiliates. At least annually, Seller shall provide certificates of insurance evidencing that the coverages and policy endorsements required under this Agreement are maintained in force. The insurers selected by Seller shall be authorized to conduct business in the jurisdictions in which services are to be performed. When the policy is issued each such insurer shall have at least an A.M. Best rating of A- VII or shall otherwise be acceptable to Fannie Mae and Freddie Mac. In the case of loss or damage or other event that requires notice or other action under the terms of any insurance coverage specified in this Section 6.17 , Seller shall be solely responsible to take such action. Seller shall provide Purchaser with contemporaneous notice and with such other information as Purchaser may request regarding the event.
6.18 Delegation . Seller may not engage any subservicer for the Deferred Servicing Agreements other than in connection with the SPS Subservicing Agreement. Seller shall not amend or otherwise modify the SPS Subservicing Agreement; provided , however, that Seller may terminate the SPS Subservicing Agreement. Seller shall (i) perform and observe all the terms and provisions of the SPS Subservicing Agreement to be performed or observed by it, enforce the SPS Subservicing Agreement in accordance with its terms and take all action as may from time to time be reasonably requested by the Purchaser in order to accomplish the foregoing, and (ii) upon the reasonable request of and as directed by the Purchaser, make such demands and requests to any other party to the SPS Subservicing Agreement as are permitted to be made by the Seller thereunder (including the exercise of any right of termination).
6.19 Access to Mortgage Servicing System . Seller shall provide Purchaser and its accountants and advisors with electronic access to Seller’s mortgage servicing system to view any available information with respect to the Deferred Servicing Agreements and the Mortgage Loans. Seller shall also provide Purchaser and its accountants and advisors with reasonable access to Seller’s financial operations system to monitor Seller’s performance under the Agreement and this Sale Supplement Seller shall provide Purchaser with the tools to create and administer log in identifications and passwords for each of its authorized users. Purchaser shall comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access. Upon reasonable prior notice, without undue interference with Seller’s business and at Purchaser’s expense, the Seller shall (i) give to Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders reasonable access to all of the properties, books, contracts, documents, insurance policies, records and personnel of the Seller concerning the Servicing Agreements or the Mortgage Loans to the extent Purchaser reasonably deems necessary or desirable in connection with the transactions contemplated hereby and (ii) furnish to Purchaser and such persons as Purchaser shall designate such additional information as Purchaser or such persons may reasonably request in connection with the transactions contemplated hereby. Purchaser shall cause all of its officers, employees, agents, attorneys, consultants, accountants and lenders to comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access or information.
6.20 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser. Seller shall provide the following reports to Purchaser:
(a) On or prior to each monthly reporting date with respect to each Deferred Servicing Agreement, the Monthly Remittance Report relating to such Deferred Servicing Agreement, in electronic medium mutually acceptable to the parties, which Monthly Remittance Report shall also include with it (i) information sufficient for Purchaser to determine whether a P&I Advance will have to be made with respect to any Mortgage Loan subject to such Deferred Servicing Agreement and (ii) appropriate supporting information regarding the amount and nature of such P&I Advances.
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(b) No later than the first Business Day of each month, the Monthly Servicing Oversight Report as to the end of the prior calendar month, in electronic medium mutually acceptable to the parties.
Any other reports or information Purchaser may request, to the extent that the requested information or data is reasonably available to Seller without undue expense or hardship.
6.21 Relationship Management and Staffing .
(a) Project Managers . Seller shall designate one (1) individual (“ Seller Project Manager ”) to: (A) serve as the single point of contact and accountability for Seller for the Agreement and this Sale Supplement; (B) have day-to-day authority for undertaking to ensure that Seller’s performance of the Agreement and this Sale Supplement meets Purchaser’s reasonable satisfaction; and (C) have authority to direct Seller in support of the foregoing. Purchaser shall designate one (1) individual (“ Purchaser Project Manager ”) to: (A) serve as the single point of contact and accountability for Purchaser for the Agreement and this Sale Supplement; and (B) have authority to direct Purchaser in support of the foregoing. Seller and Purchaser have the right to replace the Seller Project Manager or Purchaser Project Manager, respectively, upon prior written notice to the other party.
(b) Designated Committee . Seller and Purchaser shall establish a committee comprising two (2) individuals who are officers or employees of Seller and two (2) individuals who are or employee officers of Purchaser (collectively, the “ Designated Committee ”). Until the last Servicing Transfer Date, the Designated Committee shall be responsible for monitoring the performance of the services provided pursuant to the Agreement and this Sale Supplement, providing recommendations for improving the performance of such services and discussing potential solutions to any disputes with respect to the services. Seller and Purchaser shall have the right to replace those of its officers who are serving on the Designated Committee upon written notice to the other party.
(c) Periodic Meetings . Until the last Servicing Transfer Date, unless otherwise mutually agreed upon by Seller and Purchaser, the Designated Committee shall have a telephonic meeting each calendar month and a meeting in person at least once a fiscal quarter. Such regular meetings shall be at such times and locations as may be mutually agreed by the members of the Designated Committee. The Designated Committee shall discuss at any such regular meeting any topic that either Seller or Purchaser desires to discuss at such regular meeting. In addition, until the last Servicing Transfer Date, either Seller or Purchaser may call a special telephonic meeting of the Designated Committee upon five (5) Business Days prior written notice to the other party, which notice shall set forth in reasonable detail the topics to be discussed at such special meeting.
(d) Seller shall assign an adequate number of personnel to the performance of Seller’s obligations under the Agreement and this Sale Supplement. Seller shall properly educate and train all such personnel and ensure that all such personnel are fully qualified to perform the services that they are providing and shall have passed Seller’s customary background check for personnel in similar positions.
(e) Seller shall provide Purchaser and its accountants and advisors with a copy of its independent audit reports, including SAS 70 reviews, of its data processing environment and internal controls within a reasonable time after such reports are completed, and shall make all work papers regarding such audits available as requested to the appropriate regulatory agencies, if any, having jurisdiction over Seller’s servicing hereunder. In addition, Seller will make available to Purchaser and its accountants and advisors for on-site review copies of any internal audit reports relating to its servicing operations. Within thirty (30) days following Purchaser’s request, the parties shall meet to discuss the frequency, scope and level of detail of Seller’s independent audits. Seller shall use commercially reasonable efforts to incorporate Purchaser’s comments into the requirements for its next and subsequent
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audits to the extent it is determined that Seller’s audit practices are not consistent with servicing industry practice. Purchaser, its authorized representatives and Purchaser’s regulators and auditors may on five (5) Business Days notice conduct audits and reviews on Seller’s premises including auditing and reviewing Seller’s facilities, equipment, books and records (electronic or otherwise), operational systems and such other audits as may be reasonably necessary to ensure Seller’s compliance with the terms and conditions of the Agreement, this Sale Supplement, the Deferred Servicing Agreements and Applicable Laws and to ensure Seller’s financial and operational viability with respect to the servicing under this Agreement. In addition, Seller will provide Purchaser and its accountants and advisors with the results of a security audit to be performed no less than annually. This security audit will be at no expense to Purchaser and will test the compliance with the agreed-upon security standards and procedures set forth in this Agreement. Purchaser will have the ability to bring in a third party (who may not be a competitor of Seller) or use its own staff for an independent security audit. If Purchaser chooses to conduct its own security audit, it will be at Purchaser’s expense. In addition, Seller shall give access to the Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders (collectively, the “ Purchaser Parties ”) reasonable access to Seller’s financial reporting, internal accounting systems and other operational systems for purposes of obtaining information reasonably requested by such Purchaser Party. The Purchaser understands, and shall advise each Purchaser Party, that Nationstar Mortgage Holdings Inc. (the “Parent”), the ultimate parent of the Seller, is a publicly traded company and that and Purchaser Parties that obtain material non-public information concerning the Parent are prohibited from trading in the securities of the Parent for so long as they possess material non-public information. The Purchaser shall, and shall cause each of the Purchaser Parties that received information or access described in this section, to enter into reasonable and customary confidentiality agreements with the Seller and to comply with all confidentiality restrictions imposed by Applicable Requirements.
6.22 Funding of Servicing Advance Receivables . Purchaser and Seller agree to deliver the reports and other information specified on Schedule VI hereto at the times described on Schedule VI hereto in connection with origination of the Servicing Advance Receivables and the payment of the Servicing Advance Receivables Purchase Price on the related Servicing Advance Payment Dates.
ARTICLE 7
SELLER SERVICING FEES; COSTS AND EXPENSES
7.1 Seller Monthly Servicing Fee . As consideration for Seller servicing the Mortgage Loans pursuant to the Deferred Servicing Agreements during the applicable Consent Period, Purchaser shall pay to Seller, a monthly base servicing fee for each calendar month during such period during which Seller is servicing Mortgage Loans with respect to Deferred Servicing Agreements pursuant to this Sale Supplement equal to the Base Fee Percentage of the Specified Amounts with respect to such calendar month (the “ Seller Monthly Servicing Fee ”). The Seller Monthly Servicing Fee for any month is payable on the 2 nd Business Day following the Purchaser’s receipt of the Servicing Fee Collections for such month from the Seller pursuant to Section 2.5 hereof (and any delay in payment shall affect the calculation of the Targeted Return).
7.2 Costs and Expenses . Except as otherwise expressly provided in the Agreement or this Sale Supplement, each party hereto shall be responsible for its own costs and expenses incurred in connection with the negotiation and execution of the Agreement, this Sale Supplement and all documents relating thereto. Seller shall be required to pay all expenses incurred by it in connection with its obligations hereunder to the extent such expenses do not constitute Servicer Advances and shall not be entitled to reimbursement therefor except as specifically provided for herein or in the applicable Deferred Servicing Agreement. Seller shall reimburse Purchaser for any reasonable out-of-pocket costs, including legal fees, incurred by Purchaser in connection with obtaining any required Third Party Consents; provided , however , that Purchaser shall not incur such costs without the prior written approval of Seller.
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7.3 Ancillary Income . Seller shall be entitled to retain as additional compensation any Ancillary Income, investment income on amounts on deposit in the Custodial Accounts and Escrow Accounts and any Prepayment Interest Excess received by Seller with respect to the Deferred Mortgage Loans, to the extent such amounts are permitted to be retained by Seller pursuant to the related Deferred Servicing Agreement.
7.4 No Offset . Neither party shall have any right to offset against any amount payable hereunder or other agreement to the other party, or otherwise reduce any amount payable hereunder as a result of, any amount owing by the other party or any of its Affiliates to such party or any of its Affiliates.
ARTICLE 8
INDEMNIFICATION
8.1 Seller Indemnification of Purchaser . Seller agrees to indemnify and hold harmless Purchaser and each officer, director, agent, employee or Affiliate of Purchaser (each, a “ Seller Indemnified Party ”) from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, forfeitures, legal fees and expenses, and any and all related costs and/or expenses of litigation, administrative and/or regulatory agency proceedings, and any other costs, fees and expenses (each, a “ Liability ”) suffered or incurred by Purchaser or any such other Person (whether or not resulting from a third party claim) arising directly or indirectly out of or resulting from (a) any event relating to Transferred Assets occurring prior to the Closing Date, (b) a breach of any of Seller’s representations and warranties contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or Seller’s failure to observe and perform any of Seller’s duties, obligations, covenants or agreements contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or any Servicing Advance Financing Agreements or any refinancings or replacements thereof, (c) acts or omissions of Seller, any other servicer of any Mortgage Loans, or any subservicer, contractor or agent engaged by Seller or any other servicer, in each case prior to the related Servicing Transfer Date, relating to the Transferred Assets, including any failure by Seller, any other servicer or any subservicer, contractor or agent engaged by Seller or any other servicer prior to the related Servicing Transfer Date to comply with the Applicable Requirements, (d) the Excluded Liabilities, (e) any acts or omissions by Seller or its employees or agents in performance of its duties or obligations pursuant to this Sale Supplement, (f) the failure of all Servicing Advances and/or DSF to be reimbursed or repaid, as applicable, in connection with the exercise of any optional termination or cleanup call under any Servicing Agreement except pursuant to an exercise of any optional termination or cleanup call made at the direction of New Residential Investment Corp., (g) any Event of Default, Facility Early Amortization Event or Target Amortization Event (or the equivalent of any of the foregoing, including any other event that causes or permits the early amortization or acceleration of any obligations, notes other instrument) under any Servicing Advance Financing Agreements or any refinancings or replacements thereof arising because of any actions or inactions of Seller or any of its agents (including, without limitation, any failure of any financial test, any judgment and/or any breach of any contractual obligation of the Seller) or (h) the exercise of “Control” by any Current Excess Servicing Spread Buyer pursuant to and in accordance with any Current Excess Servicing Spread Acquisition Agreement of the “Third Party Controlled Current Spread Custodial Account” maintained pursuant thereto.
8.2 Purchaser Indemnification of Seller . Purchaser agrees to indemnify and hold harmless Seller and each officer, director, agent, employee or Affiliate of Seller (each, a “ Purchaser Indemnified Party ”) from and against any and all Liability suffered or incurred by Seller or any such other Person
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arising out of or resulting from (a) a breach of any of Purchaser’s representations and warranties or covenants contained in the Agreement, the Sale Supplement or any other Related Agreement, (b) acts or omissions of Purchaser or any subservicer, contractor or agent (other than Seller or any of Seller’s Affiliates) engaged by Purchaser relating to the Transferred Assets or (c) the Assumed Liabilities.
8.3 Indemnification Procedures .
(a) As promptly as is reasonably practicable after becoming aware of a claim for indemnification under the Agreement or this Sale Supplement not involving a Third-Party Claim, but in any event no later than fifteen (15) Business Days after first becoming aware of such claim, the Indemnified Person shall give notice to the Indemnifying Person of such claim, which notice shall specify the facts alleged to constitute the basis for such claim and the amount that the Indemnified Person seeks hereunder from the Indemnifying Person; provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby.
(b) The Indemnified Person shall give notice as promptly as is reasonably practicable, but in any event no later than ten (10) Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any claim, or the commencement of any action, suit, claim or proceeding, by any unaffiliated third Person (a “ Third-Party Claim ”) in respect of which indemnity may be sought under the Agreement or this Sale Supplement (which notice shall specify in reasonable detail the nature and amount of such claim); provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby. The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third-Party Claim, and (ii) upon notice to the Indemnified Person, at any time during the course of any such Third-Party Claim, assume the defense thereof with counsel of its own choice and, in the event of such assumption, shall have the exclusive right, subject to clause (i) in the proviso in Section 8.3(c) , to settle or compromise such Third-Party Claim. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person chooses to defend or prosecute any such Third-Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof.
(c) Any settlement or compromise made or caused to be made by the Indemnified Person (unless the Indemnifying Person has the exclusive right to settle or compromise under clause (ii) of Section 8.3(b) or the Indemnifying Person, as the case may be), of any such Third-Party Claim shall also be binding upon the Indemnifying Person or the Indemnified Person, as the case may be, in the same manner as if a final judgment had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided , however , that (i) no obligation, restriction, loss or admission of guilt or wrongdoing shall be imposed on the Indemnified Person as a result of such settlement or compromise without its prior written consent and (ii) the Indemnified Person will not compromise or settle any Third Party Claim without the prior written consent of the Indemnifying Person.
(d) Except as specifically provided for in the Agreement or this Sale Supplement, no claim may be made by an Indemnified Person for any special, indirect, punitive or consequential damages (“ Special Damages ”) in respect of any breach or wrongful conduct (whether the claim therefor is based on contract, tort or duty imposed by law) in connection with, arising out of, or in any way related to the transactions contemplated, or relationship established, by this Agreement or any Sale Supplement, or any act, omission or event occurring in connection herewith or therewith, and to the fullest extent permitted by law, each of Seller and Purchaser hereby waives, releases and agrees not to sue upon any such claim for Special Damages, whether or not accrued or whether or not known or suspected to exist in its favor.
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8.4 Tax Treatment . (a) Seller and Purchaser agree that all payments made by any of them to or for the benefit of the other under this Article 8 , under other indemnity provisions of the Agreement or this Sale Supplement and for any misrepresentations or breaches of warranties or covenants, shall be treated as adjustments to the Purchaser Price for tax purposes and that such treatment shall govern for purposes hereof except to the extent that the Applicable Laws of a particular jurisdiction provide otherwise.
(b) Seller, Purchaser and each of their respective Affiliates agree that entering into this Sale Supplement shall be treated for all tax purposes as a sale of the Servicing Rights Assets and the Purchaser shall be treated as the beneficial owner of the Servicing Rights Assets for tax purposes as a result of entering into this Sale Supplement. The parties covenant and agree to take no position for Tax purposes contrary to the foregoing tax treatment, and to prevent any Affiliate from taking such a contrary position.
(c) All payments made pursuant to this Agreement shall be made free and clear and without deductions of any kind for taxes.
8.5 Survival . The parties’ obligations under this Article 8 shall survive any termination of the Agreement and/or this Sale Supplement.
8.6 Additional Indemnification . (a) Without limiting Seller’s obligations under Article 8 of this Sale Supplement, it is agreed by the parties that if Seller is terminated as servicer under any Deferred Servicing Agreement as a result of any action described in clauses (a) through (e) of Section 8.1 above or pursuant to the penultimate sentence of Section 6.2 , Seller shall also pay to Purchaser, as reasonable and just compensation for such termination, an amount equal to the following as liquidated damages, and not as penalty, in the event of such a termination: the sum of (i) the outstanding amount of all Servicing Advance Receivables and DSF arising thereunder and (ii) the product of (I) the Servicing Fee Rate minus 0.02, (II) 1.5 and (II) the aggregate unpaid principal balance of the Mortgage Loans subject to such Servicing Agreement at the time of termination.
8.7 Specific Performance . Notwithstanding any other provision of the Agreement or this Sale Supplement, (i) it is understood and agreed that the remedy of indemnity payments pursuant to this Article 8 and other remedies at law would be inadequate in the case of any actual or threatened breach of the Agreement or this Sale Supplement by Seller and (ii) Purchaser shall be entitled, without limiting its other remedies and without the necessity of proving actual damages or posting any bond, to equitable relief, including the remedy of specific performance or injunction, with respect to any breach or threatened breach of such covenants. Such relief shall be in addition to, and not in lieu of, all other remedies available at law or in equity to such party under the Agreement and this Sale Supplement.
8.8 Current Excess Servicing Spread Acquisition Agreement . The Seller shall not amend, waive or otherwise modify any Current Excess Servicing Spread Acquisition Agreement related to any Servicing Agreement if such amendment, waiver or other modification could reasonably be expected to materially and adversely affect the Purchaser or delay the remittance of Servicing Fees pursuant to Section 2.5 .
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ARTICLE 9
GRANT OF SECURITY INTEREST
9.1 Granting Clause . Seller and Purchaser intend that the sale of the Transferred Assets pursuant to this Sale Supplement and the Agreement constitutes a valid sale of the Transferred Assets from Seller to Purchaser, conveying good title thereto free and clear of any Lien, and that the beneficial interest in and title to the Transferred Assets not be part of Seller’s estate in the event of the bankruptcy of Seller. Notwithstanding the foregoing, to secure its performance of its obligations under the Agreement and this Sale Supplement, Seller hereby grants to Purchaser a security interest in all of its right, title and interest in and to the following, whether now owned or hereafter acquired, and all monies “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property,” (each as defined in the applicable UCC) and other property consisting of, arising from or relating to any of the following:
(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to the Servicing Agreements, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) the Rights to MSRs with respect to each Servicing Agreement;
(c) all Servicing Fees, Ancillary Income and Prepayment Interest Excess received under the Servicing Agreements and subject to Section 6.10 of this Sale Supplement;
(d) all income from amounts on deposit in Custodial Accounts and related Escrow Accounts related to the Servicing Agreements;
(e) all files and records in Seller’s possession or control, including the related Database, relating to the assets specified in clauses (a) through (d);
(f) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to any of the foregoing and/or the Assumed Liabilities;
(g) all Servicing Advance Receivables and DSF in respect of the Servicing Agreements and all monies due or to become due and all amounts received or receivable;
(h) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(i) any proceeds of any of the foregoing (collectively, the “ Collateral ”).
This Sale Supplement shall constitute a security agreement under applicable law. Seller agrees that from time to time it shall promptly execute and deliver all additional instruments and documents and take all additional action that Purchaser may reasonably request in order to perfect the interests of Purchaser in, to and under, or to protect, the Collateral or to enable Purchaser to exercise or enforce any of its rights or remedies hereunder. To the fullest extent permitted by applicable law, Seller hereby authorizes Purchaser
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to file financing statements and amendments thereto in connection with the grant of a security interest pursuant to this Section 9.1 . Seller covenants and agrees to take all necessary action to prevent the creation or imposition of any Lien upon any of the Collateral, and to maintain the Collateral free and clear of all Liens, other than the Lien securing the obligations of Seller arising under this Sale Supplement.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Further Assurances . Without limiting Section 5.7 of the Agreement, each party hereto shall execute and deliver in a reasonable timeframe such reasonable and appropriate additional documents, instruments or agreements and take such reasonable actions as may be necessary or appropriate to effectuate the purposes of this Sale Supplement at the request of the other party. Without limiting the foregoing, the Seller agrees that it will promptly at Purchaser’s request execute and deliver an one or more assignment and assumption agreements, in form mutually agreed to by the parties, one or more equity interest assignments, in form mutually agreed to by the parties, or such other documents, instruments or agreements as Purchaser may reasonably request to evidence the transfers of Rights to MSRs pursuant to Section 2.1 , Servicing Rights pursuant to Section 2.2 and Transferred Receivables Assets pursuant to Section 3.3 .
10.2 Compliance with Applicable Laws; Licenses . Seller will comply with all Applicable Laws in connection with the performance of its obligations under the Agreement and this Sale Supplement. Seller shall maintain all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of Seller to perform its obligations under the Agreement and this Sale Supplement.
10.3 Merger, Consolidation, Etc . Seller will keep in full effect its existence, rights and franchises as a limited liability company, and will obtain and preserve its qualification to do business as a foreign organization in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Agreement, this Sale Supplement, each Deferred Servicing Agreement or any of the Deferred Mortgage Loans, or to perform its duties under the Agreement or this Sale Supplement. Seller may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets to any Person, in which case any Person resulting from any merger or consolidation to which Seller shall be a party or acquiring all or substantially all of the assets of Seller, or any Person succeeding to the business of Seller shall be the successor of Seller hereunder and under the Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided , however , that the successor or surviving Person shall be an institution whose deposits are insured by FDIC or a company whose business includes the servicing of mortgage loans and shall have a tangible net worth not less than $25,000,000.
10.4 Annual Officer’s Certificate . Not later than March 15 of each calendar year commencing in 2014, Seller shall deliver to Purchaser an Officer’s Certificate stating, as to each signatory thereof, that (i) a review of the activities of Seller during the preceding year and of performance under the Agreement and this Sale Supplement has been made under such officers’ supervision and (ii) to the best of such officer’s knowledge, based on such review, Seller has fulfilled all of its obligations under the Agreement and this Sale Supplement in all material respects throughout such year, or, if there has been a default in the fulfillment of any such obligation in any material respect, specifying each such default known to such officer and the nature and status thereof.
10.5 Accounting Treatment . Notwithstanding Section 8.14 of the Agreement, the parties acknowledge that until such time as the Third Party Consents with respect to a Servicing Agreement are obtained, the parties shall treat the transaction hereunder with respect to the Servicing Rights as a financing for accounting purposes.
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10.6 Incorporation . The provisions of Article 8 of the Agreement are hereby incorporated into this Sale Supplement by reference, mutatis mutandis , as if its provisions were fully set forth herein. To the extent that any provision of Article 8 of the Agreement conflicts with this Sale Supplement, the provisions of this Sale Supplement shall govern and control.
10.7 Third Party Beneficiaries . Seller and Purchaser each acknowledges and agrees that the indenture trustee, on behalf of the holders of related notes, with respect to any Servicing Advance Financing Agreements pursuant to which Purchaser has transferred Servicing Advance Receivables and DSF arising under a Deferred Servicing Agreement is an express third party beneficiary of this Sale Supplement and the Agreement solely with respect to the Deferred Servicing Agreements related to such Servicing Advance Financing Agreement.
10.8 Subservicing Supplement . The Seller and the Purchaser hereby covenant to use commercially reasonable efforts to enter into a Subservicing Supplement promptly following the execution hereof in order to evidence subservicing arrangements in respect of any Transferred Servicing Agreements. The Subservicing Supplement shall not conflict with the Subservicing Agreement. The fee allocation economics under such Subservicing Supplement shall be substantially identical to the fee allocation economics hereof with respect to the Deferred Servicing Agreements.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Sale Supplement to be executed and delivered by its respective officer thereunto duly authorized as of the date above written.
| NATIONSTAR MORTGAGE LLC | ||
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By: |
/s/ Amar Patel |
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Name: Amar Patel |
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Title: Executive Vice President |
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ADVANCE PURCHASER LLC |
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By: |
/s/ Cameron MacDougall |
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Name: Cameron MacDougall |
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Title: Secretary |
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Signature Page to Sale Supplement
Exhibit A Form of Monthly Remittance Report
2
Exhibit 2.4
EXECUTION COPY
SALE SUPPLEMENT
(First Tennessee)
dated as of December 17, 2013
between
NATIONSTAR MORTGAGE LLC, as Seller,
and
ADVANCE PURCHASER LLC, as Purchaser
TABLE OF CONTENTS
| Page | ||||||
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ARTICLE 1 DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT |
1 | |||||
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1.1 |
Definitions |
1 | ||||
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1.2 |
Reference to the Master Servicing Rights Purchase Agreement |
8 | ||||
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ARTICLE 2 PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES |
8 | |||||
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2.1 |
Assignment and Conveyance of Rights to MSRs |
8 | ||||
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2.2 |
Automatic Assignment and Conveyance of Servicing Rights |
8 | ||||
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2.3 |
MSR Purchase Price |
9 | ||||
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2.4 |
Assumed Liabilities and Excluded Liabilities |
9 | ||||
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2.5 |
Remittance of Servicing Fees and Related Amounts |
10 | ||||
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2.6 |
Payment of Estimated Purchase Price |
10 | ||||
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ARTICLE 3 PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES |
10 | |||||
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3.1 |
[RESERVED] |
10 | ||||
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3.2 |
[RESERVED] |
10 | ||||
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3.3 |
Assignment and Conveyance of Servicing Advance Receivables |
11 | ||||
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3.4 |
Servicing Advance Receivables Purchase Price |
11 | ||||
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3.5 |
Servicing Advances |
11 | ||||
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3.6 |
Reimbursement of Servicing Advances; Repayment of DSF |
12 | ||||
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3.7 |
Servicing Advances |
12 | ||||
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ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER |
13 | |||||
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4.1 |
General Representations |
13 | ||||
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4.2 |
Title to Transferred Assets |
13 | ||||
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4.3 |
Right to Receive Servicing Fees |
13 | ||||
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4.4 |
Servicing Agreements and Underlying Documents |
13 | ||||
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4.5 |
Mortgage Pool Information, Related Matters |
13 | ||||
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4.6 |
Enforceability of Servicing Agreements |
14 | ||||
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4.7 |
Compliance With Servicing Agreements |
14 | ||||
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4.8 |
No Recourse |
15 | ||||
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4.9 |
The Mortgage Loans |
15 | ||||
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4.10 |
Servicing Advance Receivables |
16 | ||||
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4.11 |
Servicing Agreement Consents and Other Third Party Approvals |
17 | ||||
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4.12 |
Servicing Advance Financing Agreements |
17 | ||||
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4.13 |
Anti-Money Laundering Laws |
17 | ||||
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4.14 |
Servicer Ratings |
17 | ||||
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4.15 |
Eligible Servicer |
17 | ||||
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4.16 |
HAMP |
18 | ||||
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ARTICLE 5 CONDITIONS PRECEDENT |
18 | |||||
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5.1 |
Conditions to the Purchase of the Rights to MSRs |
18 | ||||
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ARTICLE 6 SERVICING MATTERS |
19 | |||||
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6.1 |
Seller as Servicer |
19 | ||||
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6.2 |
Servicing |
19 | ||||
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6.3 |
Collections from Obligors and Remittances |
19 | ||||
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6.4 |
Servicing Practices |
19 | ||||
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6.5 |
Servicing Reports |
19 | ||||
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6.6 |
Escrow Accounts |
19 | ||||
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6.7 |
Notices and Financial Information |
20 | ||||
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TABLE OF CONTENTS
(continued)
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TABLE OF CONTENTS
(continued)
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Schedule IV |
SPS Subservicing Agreement |
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Schedule V |
Non-Facility Eligible Servicing Agreements |
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Schedule VI |
Funding Schedule |
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SALE SUPPLEMENT (First Tennessee)
This Sale Supplement (First Tennessee), dated as of December 17, 2013 (this “ Sale Supplement ”), is between Nationstar Mortgage LLC, a Delaware limited liability company (“ Seller ”), and Advance Purchaser LLC, a Delaware limited liability company (“ Purchaser ”):
WITNESSETH:
WHEREAS, Seller and Purchaser are parties to that certain Master Servicing Rights Purchase Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “ Agreement ”), with respect to the sale by Seller and the purchase by Purchaser of the Servicing Rights and other assets;
WHEREAS, this Sale Supplement shall constitute a “Group 1” Sale Supplement for purposes of the Agreement; and
WHEREAS, Seller and Purchaser desire to enter into the transactions described in the Agreement as supplemented by this Sale Supplement;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS; REFERENCE TO MASTER SERVICING RIGHTS PURCHASE AGREEMENT
1.1 Definitions . (a) For purposes of this Sale Supplement, the following capitalized terms shall have the respective meanings set forth or referenced below:
“ Additional Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Applicable Requirements ” shall mean and include, as of the time of reference, with respect to any Mortgage Loans, all of the following: (a) all contractual obligations of Seller in the Mortgage Loan Documents, in the applicable Servicing Agreements and the applicable Underlying Documents to which Seller is a party or by which Seller is bound or for which it is responsible and (b) all Applicable Laws binding upon Seller in each jurisdiction which is applicable to the context or situation to which the Applicable Requirements apply.
“ Assumed Liabilities ” shall have the meaning set forth in Section 2.4 .
“ Base Fee Percentage ” means a percentage equal to 0.02% divided by the Servicing Fee Rate.
“ Closing Date ” means the date mutually agreed upon by the Seller and the Purchaser upon the satisfaction of the conditions precedent set forth in Section 5.1 hereof, which date shall not be later than January 31, 2014. Notwithstanding the foregoing, if the condition precedent set forth in Section 5.1(e) cannot be satisfied for any Servicing Agreement on the date agreed upon as the “Closing Date” (because the transfer date for such Servicing Agreement to the Servicer from a predecessor servicer is “pushed” or otherwise) (any such Servicing Agreement, a “Pushed Servicing Agreement”) and, subsequent to such “Closing Date”, such condition and all other conditions set forth in Section 5.1 are satisfied on a date that is not later than January 31, 2014 for any Pushed Servicing Agreement, the Seller and the Purchaser shall endeavor in good faith to designate a different date that shall constitute the “Closing Date” for such Pushed Servicing Agreements.
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“ Closing Statement ” means the statement delivered by Seller to Purchaser on or before the Closing Date setting forth the good faith calculation of the Estimated Purchase Price.
“ Consent Period ” means, for each Deferred Servicing Agreement and each related Deferred Servicing Right, the period, if any, from and including the Closing Date to and including the related Servicing Transfer Date.
“ Current Excess Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Current Excess Servicing Spread Acquisition Agreement ” means each of (i) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (ii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of January 6, 2013, between Nationstar Mortgage LLC, as seller, and MSR XIII LLC, as purchaser, as amended, restated, supplemented or otherwise modified from time to time, (iii) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of November 4, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIII LLC, as a purchaser, MSR XXIII 1 LLC, as a purchaser and MSR XXIII 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time and (iv) that certain Current Excess Servicing Spread Acquisition Agreement for Non-Agency Mortgage Loans, dated as of December 3, 2013, between Nationstar Mortgage LLC, as seller, MSR XXIV LLC, as a purchaser, MSR XXIV 1 LLC, as a purchaser and MSR XXIV 2 LLC, as a purchaser, as amended, restated, supplemented or otherwise modified from time to time.
“ Current Excess Servicing Spread Buyer ” shall mean, with respect to any Current Excess Servicing Spread Acquisition Agreement, each “Purchaser” set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Cut-off Date ” means December 17, 2013.
“ Deferred Mortgage Loan ” means a mortgage loan subject to a Deferred Servicing Agreement.
“ Deferred Servicing Agreement ” means, as of any date of determination, each Servicing Agreement that is not a Transferred Servicing Agreement on such date. For avoidance of doubt, on the Closing Date each Servicing Agreement is a Deferred Servicing Agreement.
“ Deferred Servicing Right ” means, as of any date of determination, each Servicing Right arising under a Servicing Agreement that is a Deferred Servicing Agreement on such date.
“ Excluded Amounts ” means all Total Servicing Spread.
“ Excluded Liabilities ” shall have the meaning set forth in Section 2.4(c) .
“ Fannie Mae ” means the Federal National Mortgage Association, or any successor thereto.
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“ Indemnified Person ” means, a Purchaser Indemnified Party or a Seller Indemnified Party, as the case may be.
“ Indemnifying Person ” means the Seller pursuant to Section 8.1 or the Purchaser pursuant to Section 8.2 , as the case may be.
“ Initial Servicing Advance Receivable ” shall have the meaning set forth in Section 3.3 .
“ Investor ” means, with respect to any Securitization Transaction, any holder or other beneficial owner of any securities issued by the related Trust.
“ Liability ” shall have the meaning set forth in Section 8.1 .
“ Monthly Remittance Report ” means, with respect to each Deferred Servicing Agreement, a report substantially in the form attached as Exhibit A to this Sale Supplement or in such other form as may be agreed to by Seller and Purchaser from time to time.
“ Monthly Servicing Oversight Report ” means a report with respect to all of the Deferred Servicing Agreements and related Mortgage Loans in such form as may be agreed to by Seller and Purchaser from time to time.
“ MSR Purchase Price ” means, for each Servicing Agreement, $0.00.
“ Net Specified Amounts ” means, in respect of any calendar month, the excess of (i) the Specified Amounts for such month over (ii) the Seller Monthly Servicing Fee for such calendar month.
“ P&I Advance ” means any “P&I Advances,” “Monthly Advances” (each as defined in the applicable Transferred Servicing Agreement or any other similar term therein) or, if not defined therein, advances in respect of principal or interest for which Servicer has a right of reimbursement under the applicable Transferred Servicing Agreement.
“ Purchase Price ” means the sum of the aggregate MSR Purchase Price for all of the Servicing Agreements.
“ Purchaser Indemnified Party ” shall have the meaning set forth in Section 8.2 .
“ Rights to MSRs ” means, for each Servicing Agreement, each of the following assets:
(a) all Servicing Fees payable to Seller (including the “Base Servicing Fee” as defined under any related “Current Excess Servicing Spread Acquisition Agreement”) as of or after the Closing Date under such Servicing Agreement and the right to receive all Servicing Fees accruing and payable as of or after the Closing Date under such Servicing Agreement (including any rights to DSF arising in connection therewith if any such Servicing Fees remain accrued and unpaid on the related monthly remittance date following the related due date);
(b) the right to purchase the Servicing Rights pursuant to Section 2.2 of this Sale Supplement;
(c) any proceeds of any of the foregoing; and
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(d) unless and until the Seller demonstrates to the reasonable satisfaction of the Purchaser that Seller is able to bifurcate deferred servicing fees between the portion thereof in respect of Excluded Amounts and the portion thereof that are not Excluded Amounts, all deferred servicing fees arising under the Servicing Agreements in respect of the Excluded Amounts, not including any Current Excess Servicing Spread sold to the Current Excess Servicing Spread Buyer (and such deferred servicing fees attributable to Excluded Amounts shall be included in “DSF” for all purposes of the Agreement and this Sale Supplement notwithstanding the definition of “DSF” in the Agreement),
provided , that “Rights to MSRs” shall not include any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, it being understood, however that Seller may not exercise any optional termination or clean-up call without causing payment to the related Advance SPE Issuer of all DSF and Servicer Advance Receivables amounts unpaid under the related Servicing Agreement, unless such receivables are not owned by an Advance SPE Issuer in which case they must be paid to Advance Purchaser or its appropriate affiliate.
“ Sale Date ” means, for each Servicing Advance Receivable, the date on which such Servicing Advance Receivable is transferred to Purchaser pursuant to Section 3.3 .
“ Seller Indemnified Party ” shall have the meaning set forth in Section 8.1 .
“ Seller Monthly Servicing Fee ” shall have the meaning set forth in Section 7.1 .
“ Servicing Advance Financing Agreements ” means the following:
(i) the Indenture dated as of July 1, 2013 among Nationstar Servicer Advance Receivables Trust 2013-CS, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time; and
(ii) the Indenture dated as of September 19, 2013 among Nationstar Servicer Advance Receivables Trust 2013-BC, as issuer, Wells Fargo Bank, National Association, as indenture trustee, the Seller, as Servicer and Administrator and the “Administrative Agents” from time to time parties thereto, and each other “Transaction Document” as such term is defined therein, in each case as the same may be amended, extended, refinanced, replaced or restructured from time to time.
“ Servicing Advance Payment Date ” means (i) with respect to any Servicing Advance other than a P&I Advance, any “Funding Date” therefor under the applicable Servicing Advance Financing Agreement and (ii) with respect to any Servicing Advance that is a P&I Advance, the date on which such Servicing Advance is required to be made under the related Servicing Agreement. If there are no Servicing Advance Financing Agreements or if there are no “Funding Dates” occurring under Servicing Advance Financing Agreements, the “Servicing Advance Payment Date” for Additional Servicing Advance Receivables shall be dates mutually agreed upon between the Seller and the Purchaser as contemplated on Schedule VI hereto.
“ Servicing Advance Receivable Purchase Price ” means, with respect to each Servicing Advance Payment Date, for each Servicing Advance Receivable that has arisen since the last Servicing Advance Payment Date, the outstanding amount that is reimbursable under the related Servicing Agreement with respect to such Servicing Advance Receivable as of such Servicing Advance Payment Date.
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“ Servicing Agreement ” means each of the servicing agreements related to the transactions described on Schedule I governing the rights, duties and obligations of Seller as servicer under such agreements.
“ Servicing Fee Collections ” means, for any calendar month in respect of the Deferred Servicing Agreements, any collections in respect of any Servicing Fees received and remitted to the Purchaser in respect of such calendar month (other than collections in respect of DSF).
“ Servicing Fee Rate ” means 0.15% per annum.
“ Servicing Rights Assets ” shall have the meaning set forth in Section 2.2 .
“ Servicing Transfer Date ” means, with respect to each Servicing Agreement, the date on which all of the Third Party Consents related to such Servicing Agreement necessary to transfer the related Servicing Rights to Seller are received, all other conditions precedent thereto have been satisfied, and the Purchaser has agreed in writing that it is the “Servicer” thereunder or such later date mutually agreed to by Seller and Purchaser.
“ Special Damages ” shall have the meaning set forth in Section 8.3(d) .
“ Specified Amounts ” means, in respect of any calendar month, the sum of (i) the Servicing Fee Collections for such month and (ii) the aggregate principal balance of indebtedness that the Purchaser (or any applicable subsidiary thereof) was able to borrow during such month against the pledge of DSF arising in connection with the Rights to MSRs during such calendar month.
“ SPS Subservicing Agreement ” means the Subservicing Agreement dated as of June 28, 2013 between Nationstar Mortgage LLC and Select Portfolio Servicing, Inc. attached as Schedule IV hereto.
“ Sub-Administration Agreement ” means that certain Sub-Administration Agreement, dated as of the date hereof, between the Servicer and Nationstar, as the same may be amended, restated, supplemented or otherwise modified from time to time from time to time.
“ Subservicing Agreement ” means that certain Master Subservicing Agreement, dated on or after the date hereof, between the Seller, as subservicer, and the Purchaser, as servicer, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.
“ Subservicing Supplement ” means a Subservicing Supplement entered into between the Seller and the Purchaser on or after the date hereof in connection with the transactions contemplated hereby.
“ Summary Schedule ” shall have the meaning set forth in Section 4.5(a) .
“ Termination Event ” means the occurrence of any one or more of the following events (whatever the reason for the occurrence of such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) Seller fails to remit any payment required to be made under the terms of this Sale Supplement (to the extent not resulting solely from Purchaser failing to purchase a Servicing Advance Receivable required to be purchased by Purchaser under this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which continues unremedied for a period of one (1) Business Day after the date on which written notice of such failure shall have been given by Purchaser to Seller;
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(b) Seller fails to deliver any required information or report in a manner that is complete in all material respects as required pursuant to this Sale Supplement in the manner and time frame set forth herein, which failure continues unremedied for a period of two (2) Business Days after the date on which written notice of such failure shall have been given to Seller by Purchaser;
(c) Seller fails to observe or perform in any material respect any other covenant or agreement of Seller set forth in the Agreement, this Sale Supplement or any Current Excess Servicing Spread Acquisition Agreement, which failure continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(d) a material breach by Seller of any representation and warranty made by it in the Agreement, this Sale Supplement (other than a representation contained in Section 4.9 of this Sale Supplement) or any Current Excess Servicing Spread Acquisition Agreement, which breach continues unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been given to Seller by Purchaser; provided , however , in the event that any such default is incurable by its own terms or such failure was willfully or intentionally made by the Seller, a Termination Event shall be deemed to occur immediately hereunder without regard to the thirty (30) day cure period set forth above;
(e) Seller fails to maintain residential primary servicer ratings for subprime loans of at least “Average” by Standard & Poor’s Rating Services, a division of Standards & Poor’s Financial Services LLC (or its successor in interest);
(f) Seller ceases to be a Fannie Mae, Freddie Mac or FHA approved servicer;
(g) the occurrence of any of the items set forth in clauses (ii) or (iii) of the definition of Material Adverse Effect;
(h) any of the conditions specified in the applicable “Servicer Default”, “Servicer Event of Default,” “Event of Default,” “Servicing Default” or “Servicer Event of Termination” or similar sections of any Deferred Servicing Agreement or any related Underlying Document shall have occurred with respect to Seller for any reason not caused by Purchaser (other than as a result of any delinquency or loss trigger which was already triggered as of the Closing Date with respect to such Deferred Servicing Agreement); provided that Seller shall be entitled to any applicable cure period set forth in such Deferred Servicing Agreement or Underlying Document;
(i) a decree or order of a court or agency or supervisory authority having jurisdiction for the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings, or for the winding-up or liquidation of its affairs, shall have been entered against Seller and such decree or order shall have remained in force undischarged or unstayed for a period of thirty (30) days;
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(j) Seller shall consent to the appointment of a conservator or receiver or liquidator in any insolvency, bankruptcy, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to Seller or of or relating to all or substantially all of its property;
(k) Seller shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors or voluntarily suspend payment of its obligations;
(l) the occurrence of any “Facility Early Amortization Event”, “Event of Default” or “Target Amortization Event” under and as defined in each Servicing Advance Financing Agreement by or related to the Seller and the breach of any portfolio test therein (including, without limitation, any reimbursement rate trigger and/or any interest coverage trigger);
(m) the occurrence of any “Termination Event” under any other Sale Supplement;
(n) Seller shall deliver any information to Purchaser in connection with this Agreement that is inaccurate and Purchaser determines acting reasonably that such inaccurate information has caused a “material weakness” of the financial reporting of Purchaser, New Residential Investment Corp. or any Subsidiary thereof; or
(o) with respect to any Servicing Agreement, any related Current Excess Servicing Spread Buyer exercises “Control” in respect of the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to the related Current Excess Servicing Spread Acquisition Agreement as permitted under such Current Excess Servicing Spread Acquisition Agreement.
“ Third-Party Claim ” shall have the meaning set forth in Section 8.3(b) .
“ Total Servicing Spread ” shall, with respect to any Mortgage Loans and Servicing Agreement, have the meaning set forth in the related Current Excess Servicing Spread Acquisition Agreement.
“ Transferred Assets ” means the Rights to MSRs and the Transferred Servicing Rights.
“ Transferred Receivables Assets ” shall have the meaning set forth in Section 3.3 .
“ Transferred Servicing Agreement ” means, as of any date of determination, a Servicing Agreement with respect to which the related Servicing Rights have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement or to its designee in accordance with the terms of this Sale Supplement on or prior to such date. For the avoidance of doubt, on the Closing Date no Servicing Agreement is a Transferred Servicing Agreement.
“ Transferred Servicing Rights ” means, as of any date of determination, any Servicing Rights that have been transferred to Purchaser pursuant to Section 2.2 of this Sale Supplement on or prior to such date.
“ UCC ” shall have the meaning set forth in Section 3.3 .
“ Underlying Documents ” means each PSA related to the transactions described on Schedule I .
(b) Any capitalized term used but not defined in this Sale Supplement shall have the meaning assigned to such term in the Agreement.
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1.2 Reference to the Master Servicing Rights Purchase Agreement . Each of Seller and Purchaser agrees that (a) this Sale Supplement is a “Sale Supplement” executed pursuant to Section 2.1 of the Agreement, (b) the terms of this Sale Supplement are hereby incorporated into the Agreement with respect to the Servicing Agreements and the related Mortgage Loans to the extent set forth therein and herein, and (c) the terms of this Sale Supplement apply to the Servicing Agreements specified herein and not to any other “Servicing Agreement” as that term is used in the Agreement. In the event of any conflict between the provisions of this Sale Supplement and the Agreement, the terms of this Sale Supplement shall prevail.
ARTICLE 2
PURCHASE AND SALE OF SERVICING RIGHTS AND RIGHTS TO MSRS; ASSUMED LIABILITIES
2.1 Assignment and Conveyance of Rights to MSRs .
(a) As of the Closing Date, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, all of its right, title and interest in and to all of the Rights to MSRs for each of the Servicing Agreements.
(b) On and after the Closing Date, Purchaser shall be obligated to maintain a complete and accurate list of Servicing Agreements that are Deferred Servicing Agreements and Transferred Servicing Agreements, as the same shall be amended and modified from time to time in connection with Deferred Servicing Agreements becoming Transferred Servicing Agreements as contemplated by the terms and provisions of this Sale Supplement. The list of Deferred Servicing Agreements and Transferred Servicing Agreements maintained by Purchaser under this Section 2.1(b) shall be (x) available for inspection by Seller at any time during normal business hours and (y) presumed to be accurate absent manifest error on the part of Purchaser.
2.2 Automatic Assignment and Conveyance of Servicing Rights . As of the Servicing Transfer Date with respect to each Servicing Agreement, Seller does hereby sell, convey, assign and transfer to Purchaser, without recourse except as provided herein, free and clear of any Liens, without further action by any Person, all of its right, title and interest in and to the following assets (the “ Servicing Rights Assets ”):
(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to such Servicing Agreement, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) all Ancillary Income and Prepayment Interest Excess received as of or after the related Servicing Transfer Date under such Servicing Agreements;
(c) all Custodial Accounts and Escrow Accounts related to such Servicing Agreement and amounts on deposit therein;
(d) all files and records in Seller’s possession or control, including the related database, relating to the Servicing Rights Assets specified in clauses (a), (b) and (c);
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(e) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to such Servicing Rights Assets and/or the Assumed Liabilities;
(f) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(g) any proceeds of any of the foregoing.
2.3 MSR Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, as consideration for the purchase of the Rights to MSRs and the Servicing Rights Assets, on the Closing Date, Purchaser shall pay the MSR Purchase Price for each Servicing Agreement to Seller in immediately available funds to an account designated in writing by Seller to Purchaser.
2.4 Assumed Liabilities and Excluded Liabilities .
(a) Upon the terms and subject to the conditions set forth herein and in the Agreement, Purchaser shall assume, (i) the obligation to pay the Servicing Advance Receivables Purchase Price and the other obligations on account of the Servicing Agreements set forth in the Agreement and this Sale Supplement and (ii) as of or after the Servicing Transfer Date for each Servicing Agreement, all of the duties, obligations, and liabilities of Seller (other than the Excluded Liabilities) as servicer under each such Servicing Agreement accrued and pertaining solely to the period from and after such Servicing Transfer Date (the “ Assumed Liabilities ”).
(b) Purchaser hereby agrees to act as servicer under each Servicing Agreement following the related Servicing Transfer Date and assumes responsibility for the due and punctual performance and observance of each covenant and condition to be performed or observed by the servicer under the applicable Servicing Agreement, including the obligation to service each Mortgage Loan in accordance with the terms of the related Servicing Agreement;
provided , however , that the parties hereto acknowledge and agree that neither Purchaser nor any successor servicer assumes any liabilities of Seller, or any obligations of Seller relating to any period of time prior to the applicable Servicing Transfer Date. Seller hereby acknowledges that neither this Sale Supplement nor the Agreement limits or otherwise releases it from its liabilities for its acts or omissions as the servicer under the Servicing Agreements prior to the related Servicing Transfer Date. Purchaser hereby acknowledges that Seller shall have no further obligation as servicer under any of the Servicing Agreements on and after the related Servicing Transfer Date, except to the extent set forth in this Sale Supplement, the Agreement, the Subservicing Agreement and the Subservicing Supplement.
(c) Notwithstanding anything to the contrary contained herein, Purchaser does not assume any duties, obligations or liabilities of any kind, whether known, unknown, contingent or otherwise, (i) not relating to the Transferred Servicing Rights or the Assumed Liabilities, (ii) attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date, (iii) attributable to any actions, causes of action, claims, suits or proceedings or violations of law or regulation attributable to any acts or omissions to act taken or omitted to be taken by Seller (or any of its Affiliates, agents, contractors or representatives, including, without limitation, any subservicer of the Mortgage Loans) prior to the applicable Servicing Transfer Date or (iv) relating to any representation and warranty made by Seller or any of its Affiliates with respect to the
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related Mortgage Loans or the Transferred Assets under the Servicing Agreements (the “ Excluded Liabilities ”). Without limiting the generality of the foregoing, it is not the intention that the assumption by Purchaser of the Assumed Liabilities shall in any way enlarge the rights of any third parties relating thereto. Nothing contained in the Agreement or this Sale Supplement shall prevent any party hereto from contesting matters relating to the Assumed Liabilities with any third party obligee.
(d) From and after the related Servicing Transfer Date, except as otherwise provided for in Section 8.3 of this Sale Supplement, (i) Purchaser shall have complete control over the payment, settlement or other disposition of the Assumed Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto, subject to the terms of the related Servicing Agreements and (ii) Seller shall have complete control over the payment, settlement or other disposition of the Excluded Liabilities and the right to commence, control and conduct all negotiations and proceedings with respect thereto. Except as otherwise provided in this Sale Supplement, (i) Seller shall promptly notify Purchaser of any claim made against Seller with respect to the Assumed Liabilities or the Transferred Assets and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Assumed Liabilities or Transferred Assets without the prior written consent of Purchaser and (ii) Purchaser shall promptly notify Seller of any claim made against Purchaser with respect to the Excluded Liabilities and shall not voluntarily make any payment of, settle or offer to settle, or consent or compromise or admit liability with respect to, any Excluded Liabilities without the prior written consent of Seller.
2.5 Remittance of Servicing Fees and Related Amounts . On each Fee Remittance Date, the Seller shall remit to an account designated by the Purchaser any collections in respect of any Servicing Fees for a month received by the Seller during the prior monthly collection period (other than collections in respect of DSF). Notwithstanding the foregoing, collection and remittance of all collections on account of DSF shall be made in accordance with Section 3.6 . If any Current Excess Servicing Spread Buyer exercised “Control” of the “Third Party Controlled Current Spread Custodial Account” pursuant to and in accordance with any Current Excess Servicing Spread Acquisition Agreement related to the Servicing Agreements, the Seller shall remit to Purchaser (and shall direct in writing any applicable depositary institution to remit to the Purchaser directly), any payments on account of the “Base Servicing Fee” thereunder directly to the Purchaser. If a Termination Event has occurred, the Seller shall, following Purchaser’s request therefor, withdraw from time to time collections on the Servicing Fees from the “Third Party Controlled Current Spread Custodial Account” maintained pursuant to a Current Excess Servicing Spread Acquisition Agreement amount in respect of the “Base Servicing Fee” thereunder as permitted by the related Current Excess Servicing Spread Acquisition Agreement and remit such amounts to the Purchaser as payments on account of the Servicing Fees in respect of the Servicing Agreements.
2.6 Payment of Estimated Purchase Price . Subject to the conditions set forth in this Sale Supplement and the Agreement, Purchaser shall pay the Estimated Purchase Price to Seller at the Closing in immediately available funds to an account designated in writing by Seller to Purchaser. The Estimated Purchase Price shall be reconciled to the final Purchase Price in accordance with Section 2.5 of the Agreement.
ARTICLE 3
PURCHASE AND SALE OF SERVICING ADVANCE RECEIVABLES
3.1 [RESERVED] .
3.2 [RESERVED] .
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3.3 Assignment and Conveyance of Servicing Advance Receivables . Commencing on the Closing Date, and continuing until the close of business on the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement, subject to the terms and conditions set forth in the Agreement and this Sale Supplement, Seller hereby sells, conveys, assigns and transfers to Purchaser, and Purchaser acquires from Seller, without recourse except as provided herein and in the Servicing Advance Financing Agreements to which Seller is a party, free and clear of any Liens, all of Seller’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Servicing Advance Receivable (i) in existence on the Closing Date that arose under the Servicing Agreements and is owned by Seller as of the Closing Date, if any (the “ Initial Servicing Advance Receivables ”), (ii) in existence on any Business Day on or after the Closing Date that arises under any Servicing Agreement prior to the earlier of the related Servicing Transfer Date or date of Seller’s termination as servicer pursuant to such Servicing Agreement (“ Additional Servicing Advance Receivables ”), and (iii) in the case of both Initial Servicing Advance Receivables and Additional Servicing Advance Receivables, all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the Uniform Commercial Code in effect in all applicable jurisdictions (the “ UCC ”)), together with all rights of Seller to enforce such Initial Servicing Advance Receivables and Additional Servicing Advance Receivables (collectively, the “ Transferred Receivables Assets ”). Until the related Servicing Transfer Date, Seller shall, automatically and without any further action on its part, sell, assign, transfer and convey to Purchaser, on each Business Day, each Additional Servicing Advance Receivable not previously transferred to Purchaser and Purchaser shall, automatically and without further action on its part, purchase each such Additional Servicing Advance Receivable. The Purchaser shall pay the Seller the Servicing Advance Receivables Purchase Price in accordance with Section 3.4 . The parties acknowledge and agree that so long as the Servicing Advance Receivables with respect to a Servicing Agreement are being sold by Purchaser to a special purpose vehicle in connection with any Servicing Advance Financing Agreement, the sale of such Servicing Advance Receivables by Seller to Purchaser shall be made pursuant to and in accordance with the provisions of the Servicing Advance Financing Agreements, and Seller covenants and agrees to comply with the provisions of such Servicing Advance Financing Agreements with respect to such Servicing Advance Receivables. For the avoidance of doubt, the Purchaser shall not have any obligation to pay any purchase price to the Seller in connection with the purchase of deferred servicing fees related to any Excluded Amounts (it being understood that the Purchaser will acquire such deferred servicing fees in accordance with clause (d) of the definition of “Rights to MSRs”).
3.4 Servicing Advance Receivables Purchase Price . In consideration of the sale, assignment, transfer and conveyance to Purchaser of the Servicing Advance Receivables and related Transferred Receivables Assets, on the terms and subject to the conditions set forth in this Sale Supplement, Purchaser shall, on the Servicing Advance Payment Date immediately following the date on which the related Servicing Advance was made (with respect to any Servicing Advance other than a P&I Advance) or on the related Servicing Advance Payment Date (with respect to any Servicing Advance that is a P&I Advance), pay and deliver to an account designated in writing by Seller to Purchaser, in immediately available funds, a purchase price equal to the applicable Servicing Advance Receivables Purchase Price; provided that Seller shall have complied with the terms of Section 3.3 and Section 3.5 with respect to the related Servicing Advance Receivable.
3.5 Servicing Advances . Seller covenants and agrees that each Servicer Advance made by Seller under the Servicing Agreements prior to the related Servicing Transfer Date shall (a) be required to be made pursuant to the terms of the related Deferred Servicing Agreement and comply with the terms of such Deferred Servicing Agreement and Applicable Law, (b) comply with Seller’s advance policies and stop advance policies and procedures and not constitute a nonrecoverable Servicer Advance as determined by Seller in accordance with the related Servicing Agreement as of the date Seller made such Servicer Advance and (c) be supported by customary backup documentation. Seller agrees to provide
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weekly reports to Purchaser of Servicer Advances made by Seller under the Deferred Servicing Agreements and deliver to Purchaser such customary backup documentation relating to any Servicer Advance promptly upon request by Purchaser. In the event Seller cannot provide, or cause to be provided to Purchaser any customary backup documentation, and Purchaser is unable to be reimbursed for such Servicer Advance solely as a result of such failure, Seller shall reimburse Purchaser for the amount of such unreimbursed Servicer Advances within thirty (30) days of Purchaser’s written request, to the extent Purchaser paid Seller for such amounts and such amounts remain unreimbursed.
3.6 Reimbursement of Servicing Advances; Repayment of DSF .
(i) Seller shall, to the extent permitted under any Deferred Servicing Agreement cause the reimbursement of any Servicer Advances under the Deferred Servicing Agreements to be made directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as reimbursement of any Servicer Advance. Any such amounts shall be remitted in accordance with Purchaser’s written directions.
(ii) Seller shall, to the extent permitted under any Deferred Servicing Agreement remit collections of DSF under the Deferred Servicing Agreements directly into Purchaser’s account (or any account designated by the Purchaser that has been established in accordance with Purchaser’s written directions). In any case, Seller shall within two (2) Business Days of the receipt thereof, remit to Purchaser any amounts that are received by Seller under any Deferred Servicing Agreement after the Closing Date as payment of DSF and will not net any amounts owing to Seller for fees hereunder or under the Subservicing Agreement out of any DSF. Any such amounts shall be remitted in accordance with Purchaser’s written directions. Seller agrees that it will (i) remit collections on DSF to the Purchaser and (ii) retain all collections on all deferred servicing fees, other than DSF in each case, related to the same Deferred Servicing Agreement, on a pro-rata basis based on the outstanding amount of DSF and the outstanding amount of such other deferred servicing fees.
(iii) On the Closing Date, the Purchaser shall designate an account for each Servicing Agreement as the “Collection and Funding Account” into which remittances of collections in respect of Servicing Advance Receivables and DSF under such Servicing Agreements shall be deposited in connection with a Servicing Advance Financing Agreement.
3.7 Servicing Advances . Seller covenants and agrees to punctually perform, at its own expense, all administrative functions and duties under the (i) Sub-Administration Agreement and (ii) Servicing Advance Financing Agreements (including, without limitation, the remittance of collections on the “Receivables” and all reporting with respect to the Receivables) and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets and other administrative and reporting tasks as reasonably requested by the Purchaser from time to time in connection with the Servicing Advance Financing Agreements or any such refinancings, replacements or restructurings thereof. Seller agrees to cooperate with Purchaser in connection with any ratings on any of the obligations under any Servicing Advance Financing Agreements and any refinancing, replacement or restructuring thereof in whole or in part related to any of the Transferred Assets.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the following representations and warranties to Purchaser as of (a) each of the Closing Date and each Sale Date or (b) as of such other dates specified below:
4.1 General Representations . Each of the representations and warranties set forth in Article 3 of the Agreement are true and correct.
4.2 Title to Transferred Assets . From and including the Closing Date until such Servicing Rights Assets are transferred to Purchaser under Section 2.2 , Seller shall be the sole holder and owner of the Servicing Rights Assets and shall have good and marketable title to the Servicing Rights Assets, free and clear of any Liens. Upon the sale of such Servicing Rights Assets pursuant to Section 2.2, Seller will transfer to Purchaser good and marketable title to the Servicing Rights Assets free and clear of any Liens. Seller is the sole holder and owner of the Rights to MSRs and the sale and delivery to Purchaser of the Rights to MSRs pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Rights to MSRs free and clear of any Liens.
4.3 Right to Receive Servicing Fees . Seller is entitled to receive Servicing Fees as servicer under each Servicing Agreement, and the New York Uniform Commercial Code permits the Seller to transfer the Rights to MSRs to Purchaser under the Agreement and this Sales Supplement without violation of any applicable Servicing Agreement. The Servicing Fees included in the Rights to MSRs represent the right to receive current Servicing Fees collections for each month in an amount equal to the Servicing Fee Rate multiplied by the aggregate unpaid principal balance of all Mortgage Loans serviced by the Seller subject to the Servicing Agreements as of the related date of determination (which such amount is equal to the “Base Servicing Fee” under the applicable Current Excess Servicing Spread Acquisition Agreement). If the Purchaser does not receive the full amount of such current Servicing Fee pursuant to Section 2.5 in respect of any month (because the underlying mortgagor does not make the required payments or otherwise), the Purchaser will have a right to payment for such unpaid Servicing Fees as DSF.
4.4 Servicing Agreements and Underlying Documents . Schedule I hereto contains a list of the transactions related to all Servicing Agreements (other than the Underlying Documents) related to the Servicing Rights, in each case with all amendments and modifications thereto, or supplements thereto with respect to such Servicing Rights.
4.5 Mortgage Pool Information, Related Matters .
(a) Seller has delivered to Purchaser one or more summary schedules which set forth information with respect to each Mortgage Pool relating to the Servicing Rights (the “ Summary Schedules ”). Seller acknowledges that Purchaser has relied on such Summary Schedules to determine the Purchase Price it was willing to pay for the Transferred Assets.
(b) The Summary Schedules, the Mortgage Loan Schedule and the Database are true, accurate and complete in all material respects as of the related Cut-off Date or such other date specified thereon.
(c) The Mortgage Loan Schedule indicates, by code reference, which of the Mortgage Loans have been converted into REO Properties as of the Cut-off Date.
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4.6 Enforceability of Servicing Agreements .
(a) Seller has delivered to Purchaser, on or prior to the related Closing Date, true and complete copies of all Servicing Agreements related to the transactions listed on Schedule I hereto and all amendment thereto and all Underlying Documents and all amendments thereto. There are no other written or oral agreements binding upon Seller or Purchaser that modify, supplement or amend any such Servicing Agreement or Underlying Document.
(b) Seller has not received written notice of any pending or threatened cancellation or partial termination of any Servicing Agreement or Underlying Document or any written notice of any pending or threatened termination of Seller as servicer of any of the Mortgage Loans.
(c) On and prior to the related Servicing Transfer Date, each Servicing Agreement and each of the Underlying Documents is or was a valid and binding obligation of Seller, is or was in full force and effect and enforceable against Seller in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization and other similar laws relating to or affecting creditors rights generally and general principles of equity (regardless of whether considered in a proceeding of law or in equity).
4.7 Compliance With Servicing Agreements .
(a) Seller has serviced the Mortgage Loans subject to the Servicing Agreements and has kept and maintained complete and accurate books and records in connection therewith, all in accordance with Applicable Requirements, has made all remittances required to be made by it under each Servicing Agreement and is otherwise in compliance in all material respects with all Servicing Agreements and the Applicable Requirements.
(b) (i) No early amortization event, servicer default, servicer termination event, event of default or other default or breach has occurred under any Servicing Agreement or any Underlying Document (except with respect to the delinquency or loss performance triggers identified in the Summary Schedules), and (ii) no event has occurred, which with the passage of time or the giving of notice or both would: (A) constitute a material default or breach by Seller under any Servicing Agreement, Underlying Document or under any Applicable Requirement; (B) permit termination, modification or amendment of any such Servicing Agreement or Underlying Document by a third party without the consent of Seller; (C) enable any third party to demand that either Seller or Purchaser either incur any repurchase obligations pursuant to a Servicing Agreement or an Underlying Document or provide indemnification for any amount of losses relating to a breach of a loan representation or warranty; (D) impose on Seller or Purchaser sanctions or penalties in respect of any Servicing Agreement or Underlying Document; or (E) rescind any insurance policy or reduce insurance benefits in respect of any Servicing Agreement or Underlying Document which would result in a material breach or trigger a default of any obligation of Seller under any Servicing Agreement or Underlying Document.
(c) There are no agreements currently in place with any subservicers to perform any of Seller’s duties under the Servicing Agreements; provided, however , the foregoing shall not prohibit the use by Seller of third-party vendors to perform discrete servicing functions in the ordinary course of business or otherwise in accordance with the Subservicing Agreement.
(d) Each report and officer’s certification prepared by Seller as servicer pursuant to a Servicing Agreement is true and correct in all material respects. Seller has previously made available to Purchaser a correct and complete description of the policies and procedures used by Seller in connection with servicing the Mortgage Loans related to the Servicing Agreements.
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(e) In the preceding twelve (12) month period, no Governmental Authority, Investor, Insurer, rating agency, trustee, master servicer or any other party to a Servicing Agreement has provided written notice to Seller claiming or stating that Seller has violated, breached or not complied with any Applicable Requirements in connection with the servicing of the related Mortgage Loans which has not been resolved by Seller.
(f) All Custodial Accounts and Escrow Accounts have been established and continuously maintained in accordance with Applicable Requirements. All Custodial Account and Escrow Account balances required by the Mortgage Loans and paid for the account of the Mortgagors under the related Mortgage Loans have been credited properly to the appropriate account and have been retained in and disbursed from the appropriate account in accordance with Applicable Requirements in all material respects.
4.8 No Recourse . None of the Servicing Agreements or other contracts to be assumed by Purchaser hereunder provide for Recourse to Seller.
4.9 The Mortgage Loans .
(a) Each of the Mortgage Loans and REO Properties related to each Servicing Agreement has been serviced in accordance with Applicable Requirements in all material respects.
(b) Except as disclosed on the Mortgage Loan Schedule, in the related Database and in the related Loan File and consistent with the requirements of the related Servicing Agreement, Seller has not waived any default, breach, violation or event of acceleration under any Mortgage Loan, except to the extent that any such waiver is permitted under the related Servicing Agreement and reflected in the Mortgage Loan Schedule, the related Database and the related Loan File and the disclosure relating to such waiver is reflected consistently in all material respects among the related Mortgage Loan Schedule, the related Database and the related Loan File. The Mortgage related to each Mortgage Loan related to the Servicing Agreements has not been satisfied, cancelled or subordinated, in whole or in part, and except as permitted under the related Servicing Agreement, the related Mortgaged Property has not been released from the lien of the Mortgage, in whole or in part, nor has any instrument been executed that would effect any such release, cancellation, or subordination.
(c) There is in force with respect to each Mortgaged Property and REO Property related to a Servicing Agreement a hazard insurance policy (including any policy in effect under a forced place insurance policy) and, if applicable, a flood insurance policy that provides, at a minimum, for the coverage as required by the applicable Servicing Agreement. Seller and any prior servicer or subservicer under the Servicing Agreements has taken all necessary steps to maintain any hazard insurance policy, flood insurance policy, primary mortgage insurance policy, and title insurance policy as required under the Servicing Agreements.
(d) Seller is not aware of any repurchase requests or demands being made or threatened to be made with respect to any Mortgage Loans related to the Servicing Agreements in excess of $5 million with respect to any Servicing Agreement.
(e) Except as disclosed in the related Database, Seller has not received notice from any Mortgagor with respect to the Mortgage Loans related to the Servicing Agreements of a request for relief pursuant to or invoking any of the provisions of the Servicemembers Civil Relief Act or any similar law which would have the effect of suspending or reducing the Mortgagor’s payment obligations under a Mortgage Loan or which would prevent such loan from going into foreclosure.
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(f) With respect to each adjustable rate Mortgage Loan, Seller and each prior servicer has complied in all material respects with all Applicable Requirements regarding interest rate and payment adjustments.
(g) Each first lien Mortgage Loan is covered by a valid and freely assignable, life of loan, tax service contract, and flood tracking services contract, in full force and effect. All flood zone determination information provided to Purchaser is true and correct in all material respects.
(h) There are no actions, claims, litigation or governmental investigations pending or, to the knowledge of Seller, threatened, against Seller, or with respect to any Servicing Agreement or any Mortgage Loan, which relate to or affect Seller’s rights with respect to the Servicing Rights or Seller’s right to sell, assign and transfer the Servicing Rights or the Rights to MSRs or to receive any Servicing Fee, which could reasonably be expected to have a Material Adverse Effect individually or in the aggregate.
(i) Payments received by Seller with respect to any Mortgage Loans related to the Servicing Agreements have been remitted and properly accounted for as required by Applicable Requirements in all material respects. All funds received by Seller in connection with the satisfaction of Mortgage Loans, including foreclosure proceeds and insurance proceeds from hazard losses, have been deposited in the appropriate Custodial Account or Escrow Account and all such funds have been applied to pay accrued interest on the Mortgage Loans, to reduce the principal balance of the Mortgage Loans in question, or for reimbursement of repairs to the Mortgaged Property or as otherwise required by Applicable Requirements or are on deposit in the appropriate Custodial Account or Escrow Account.
(j) Seller is not aware of any Person that has issued any notice or written intention to exercise the optional call or optional redemption provisions under any of the related Servicing Agreements.
(k) No fraudulent action has taken place on the part of Seller in connection with its servicing of any Mortgage Loan related to the Servicing Agreement.
(l) Except with respect to partial releases, actions required by a divorce decree, assumptions, or as otherwise permitted under Applicable Requirements and documented in the Loan File and the Database, (i) the terms of each Mortgage Note and Mortgage have not been modified by Seller or any prior servicer, (ii) no party thereto has been released in whole or in part by Seller or any prior servicer and (iii) no part of the Mortgaged Property has been released by Seller or any prior servicer.
4.10 Servicing Advance Receivables .
(a) From and including the Closing Date until such Servicing Advance Receivable is transferred to Purchaser under Section 3.3 , Seller is the sole holder and owner of each Servicing Advance Receivable and has good and marketable title to such Servicing Advance Receivable. Seller has not previously assigned, transferred or encumbered the Servicing Advance Receivables or DSF other than pursuant to the Agreement, this Sale Supplement and the Servicing Advance Financing Agreements. The sale and delivery to Purchaser of the Servicing Advance Receivables pursuant to the provisions of this Sale Supplement will transfer to Purchaser good and marketable title to the Servicing Advance Receivables free and clear of any Liens (other than the Liens created pursuant to the Servicing Advance Financing Agreements).
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(b) Each Servicing Advance Receivable transferred to Purchaser under Section 3.3 , is at the time of such transfer a valid and existing account or payment intangible owing to Seller and is carried on the books of Seller at or less than the amount actually advanced or accrued net of any charge-offs or other adjustments by Seller. Seller has not received any notice from a master servicer, securities administrator, trustee, Insurer, Investor or any other Person, which disputes or denies a claim by Seller for reimbursement or payment in connection with any such Servicing Advance Receivable. Each Servicer Advance made by Seller (and each trailing invoice received by Purchaser on or after the related Servicing Transfer Date for services rendered prior to such Servicing Transfer Date) that is reimbursed or paid by Purchaser to Seller or a third party service provider is fully reimbursable to Purchaser as a Servicer Advance under the terms of the related Servicing Agreement.
(c) Each Servicer Advance made by Seller was made in accordance with Applicable Requirements and Seller’s advance policies and stop advance policies and procedures in all material respects, and is not subject to any set-off or claim that could be asserted against Purchaser. No Servicer Advance made by Seller or any prior servicer under a Servicing Agreement and not reimbursed or paid to Seller prior to the related Sale Date is a Non-Qualified Servicer Advance. Seller has not received any written notice from any Person in which such Person disputes or denies a claim by Seller for reimbursement in connection with a specifically identified Servicer Advance.
4.11 Servicing Agreement Consents and Other Third Party Approvals . None of the execution, delivery and performance of the Agreement and this Sale Supplement by Seller, the transfers of Servicing Rights under Section 2.2 , the transfer of Rights to MSRs under Section 2.1 , the transfers of Servicing Advance Receivables under Section 3.3 and the other transactions contemplated hereby require any consent, approval, waiver, authorization, penalties, notice or filing to be obtained by Seller or Purchaser from, or to be given by Seller or Purchaser to, or made by Seller or Purchaser with, any Person, except for, with respect to the Servicing Rights Assets, the Third Party Consents.
4.12 Servicing Advance Financing Agreements .
(a) Other than those Servicing Agreements set forth on Schedule V , all of the Servicing Agreements are “Facility Eligible Servicing Agreements,” and each Servicer Advance and each DSF owned by a special purpose vehicle in connection with any Servicing Advance Financing Agreement is a “Facility Eligible Receivable,” each as defined under the Servicing Advance Financing Agreements. Each Servicing Agreement has been approved under a Servicing Advance Financing Agreement and, as of the date hereof, the eligibility of the related Servicing Advance Receivables, DSF and related eligibility categorization of the Servicing Advance Receivables as set forth on Schedule 1 of each of the Indentures referenced in the definition of “Servicing Advance Financing Agreement” is true and correct.
(b) All of the representations and warranties of Seller in the Servicing Advance Financing Agreements are true and correct in all material respects.
(c) Each of Seller and its Affiliates have complied in all material respects with the terms of the existing Servicing Advance Financing Agreements.
4.13 Anti-Money Laundering Laws . Seller has complied with all applicable anti-money laundering laws and regulations.
4.14 Servicer Ratings . As of the Closing Date, Seller has a residential primary servicer rating for the servicing of subprime residential mortgage loans issued by S&P of “above Average”.
4.15 Eligible Servicer . Seller meets the eligibility requirements of a servicer and a subservicer under the terms of each Servicing Agreement and Underlying Document.
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4.16 HAMP . Seller has entered into a Commitment to Purchase Financial Instrument and Servicer Participation Agreement with Fannie Mae, as financial agent of the United States, which agreement is in full force and effect.
4.17 Servicing Advance Financing Agreements .
(a) No Event of Default, Facility Early Amortization Event or Target Amortization Event has occurred and is continuing under any of the Servicing Advance Financing Agreements and no event has occurred that, with the giving of notice or the passage of time, would constitute an Event of Default, Facility Early Amortization Event or Target Amortization Event under any of the Servicing Advance Financing Agreement.
(b) The Seller has delivered true and correct copies of each of the Servicing Advance Financing Agreements to the Purchaser.
(c) The Seller has delivered to the Purchaser true and correct copies of each of the reports delivered by the Verification Agents pursuant to the Servicing Advance Financing Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Conditions to the Purchase of the Rights to MSRs . Purchaser’s obligations to purchase the Rights to MSRs pursuant to Section 2.1 and the Servicing Rights pursuant to Section 2.2 and to pay the Purchase Price (and the Estimated Purchase Price) pursuant to Section 2.3 and Section 2.6 are subject to the satisfaction or Purchaser’s waiver of each of the conditions set forth in Section 6.1 and Section 6.3 of the Agreement (except the requirement to deliver the Third Party Consents necessary to transfer the Servicing Rights pursuant to Section 2.2 ) with respect to each of the Servicing Agreements and each of the Servicing Rights, as applicable, on the Closing Date and the satisfaction of each of the following conditions:
(a) The Closing Date shall occur on or before January 31, 2013.
(b) Seller shall have obtained all consents or approvals required to be obtained to consummate the transfers of the Rights to MSRs to Purchaser pursuant to Section 2.1 ;
(c) The Purchaser shall have received evidence acceptable to it that each related Servicing Agreement has been designated and approved as a “Facility Eligible Servicing Agreement” under a Servicing Advance Financing Agreement;
(d) No Termination Event shall be continuing hereunder or under any other Sale Supplement and no other event shall be continuing that, with the passage of time, the giving of notice or both, would constitute a Termination Event hereunder or under any other Sale Supplement; and
(e) The Seller have obtained all required Third Party Consents to be the named servicer under the related Servicing Contracts (it being understood that the failure to obtain such consents for any Servicing Agreement shall then result in such Servicing Agreement ceasing to be a “Servicing Agreement” for purposes at such time, subject to the second sentence of the definition of “Closing Date”).
(f) The Purchaser shall have received an acceptable opinion letter as to “true sale” matters of Bingham McCutchen LLP.
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ARTICLE 6
SERVICING MATTERS
6.1 Seller as Servicer . Except as expressly set forth in this Sale Supplement, Seller shall perform all of its duties and obligations of under each Servicing Agreement until the related Servicing Transfer Date and shall at all times until the related Servicing Transfer Date meet any standards and fulfill any requirements applicable to Seller under each Servicing Agreement.
6.2 Servicing . Except as otherwise specifically provided in this Sale Supplement, Seller covenants and agrees to service and administer each Mortgage Loan related to a Servicing Agreement from and after the Closing Date until the related Servicing Transfer Date in accordance with Applicable Law, the terms of the related Mortgage Loan Documents and any applicable private mortgage insurance or pool insurance, the standards, requirements, guidelines, procedures, restrictions and provisions of the related Servicing Agreement and Underlying Documents governing the duties of Seller thereunder, this Sale Supplement and any other Applicable Requirements. Without limiting the foregoing, Seller covenants and agrees that it shall perform its obligations pursuant to this Sale Supplement in a manner that will not cause the termination of Seller as servicer under any Deferred Servicing Agreement, including any termination based on Seller’s management of delinquency or loss performance with respect to Mortgage Loans related to such Deferred Servicing Agreement. The parties acknowledge and agree that any termination of Seller as servicer with respect to a Servicing Agreement pursuant to a delinquency or loss performance trigger or for any other reason, other than as a result of a failure by Purchaser to purchase Servicing Advance Receivables pursuant to Section 3.3 , shall be deemed to be the result of a breach by Seller of its obligations under this Sale Supplement and the Agreement. In the event of a conflict between a Servicing Agreement and this Article 6 , the Servicing Agreement shall control, and the failure of Seller to perform any obligation under the Agreement or this Sale Supplement as a result of such conflict shall not constitute a breach of the Agreement or this Sale Supplement by Seller.
6.3 Collections from Obligors and Remittances . Seller shall promptly remit all amounts received by Seller with respect to the Mortgage Loans to the applicable Custodial Account or Escrow Account in accordance with the related Servicing Agreement. Seller shall also make any compensating interest payments or prepayment interest shortfall payments required to be made by Seller with respect to the Mortgage Loans under the Deferred Servicing Agreements in accordance with the related Servicing Agreement.
6.4 Servicing Practices . Seller shall not make any material change to its servicing practices with respect to the Deferred Mortgage Loans after the date hereof, including, any material changes to its cash collection and sweep processes or its advance policies or stop advance policies, without Purchaser’s prior written consent (in any case, unless required by Applicable Requirements, in which case Purchaser’s prior written consent is not required but Seller shall give Purchaser written notice of any such changes). Seller shall comply with any Purchaser directions to implement reasonable changes to Seller’s servicing practices applicable with respect to all or a portion of the Mortgage Loans, including any changes necessary to ensure compliance with any Applicable Laws or governmental programs or directions received pursuant to the applicable Servicing Agreements.
6.5 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser.
6.6 Escrow Accounts . Subject to the terms of the related Deferred Servicing Agreement, Seller shall be entitled to withdraw funds from any Escrow Account related to a Deferred Servicing Agreement only for the purposes permitted in the applicable Servicing Agreement.
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6.7 Notices and Financial Information . Until the last Servicing Transfer Date, Seller will furnish, or will cause to be furnished, to Purchaser:
(a) within two (2) Business Days after the occurrence of a breach by Seller of the Agreement or this Sale Supplement or any Termination Event, notice of such event;
(b) any information required to be delivered by Seller pursuant to the Subservicing Agreement; and
(c) such other information regarding the condition or operations, financial or otherwise, of Seller or any of its subsidiaries as Purchaser may from time to time reasonably request.
6.8 Defaults under Deferred Servicing Agreements . Seller covenants and agrees to use its reasonable best efforts to cure any breach, default or notice of default with respect to its obligations under any Deferred Servicing Agreement within the timeframe for cure set forth in such Deferred Servicing Agreement.
6.9 Continuity of Business . (a) Seller will maintain a disaster recovery plan in support of the services it performs pursuant to this Sale Supplement and each Deferred Servicing Agreement. Seller’s disaster recovery plan shall include, at a minimum, procedures for back-up/restoration of operating and loan administration computer systems; procedures and third-party agreements for replacement equipment (e.g. computer equipment), and procedures and third-party agreements for off-site production facilities. Seller will provide Purchaser information regarding its disaster recovery plan upon Purchaser’s reasonable request. Seller agrees to annually test its disaster recovery plan to ensure compliance with this Section 6.9 . If such test results identify a material failure, Seller shall advise Purchaser of the steps Seller will be taking to remedy such failure and shall notify Purchaser when Seller has remedied such failure and retested. Seller will notify Purchaser anytime Seller’s disaster recovery plan is activated. In the event of an activation of the disaster recovery plan, Seller shall use best efforts to provide redundancy capabilities for a majority of the critical systems within 48 hours in at least one of Seller’s other servicing facilities unaffected by the disaster to ensure servicing of the Mortgage Loans will be re-established within such 48 hours.
6.10 [RESERVED] .
6.11 Amendments to Deferred Servicing Agreements; Transfer of Servicing Rights . Seller hereby covenants and agrees not to amend the Servicing Agreements without Purchaser’s prior written consent. Seller shall not sell or otherwise voluntarily transfer servicing under any of the Deferred Servicing Agreement during the Consent Period except as expressly provided in this Sale Supplement or take any other actions inconsistent with Purchaser’s right to acquire ownership of Servicing Rights with respect to a Servicing Agreement upon receipt of the required Third Party Consents.
6.12 Assumption of Servicing Duties; Transfer of Rights to MSRs and Servicing Rights . Purchaser may from time to time assume the performance of any of Seller’s servicing obligations under a Deferred Servicing Agreement so long as such assumption is permitted pursuant to such Deferred Servicing Agreement and does not limit Seller’s right to receive (or materially reduce the likelihood of collection of) the Servicing Fees, Ancillary Income, Prepayment Interest Excess, investment income on any Custodial Account or Escrow Account or any other amount payable to the Seller as servicer pursuant to such Deferred Servicing Agreement. Notwithstanding anything in the Agreement or this Sale Supplement to the contrary, Purchaser may transfer the Rights to MSRs to any third party and/or may direct Seller to transfer the Servicing Rights to a third party that can obtain the required Third Party Consents, subject to the right of the Seller to receive the Seller Monthly Servicing Fee, the Performance
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Fee, the Ancillary Income, investment income on the Custodial Accounts and Escrow Accounts and, if applicable, the Prepayment Interest Excess with respect to such Deferred Servicing Agreement pursuant to and in accordance with Article 7 . For the avoidance of doubt, Purchaser shall be entitled to receive all proceeds of such transfer.
6.13 Termination Event . In the case that any Termination Event occurs with respect to any Servicing Agreement during the Consent Period, Seller shall, upon Purchaser’s written direction to such effect, use commercially reasonable efforts to transfer the Servicing Rights relating to any affected Servicing Agreement to a third party servicer identified by Purchaser with respect to which all required Third Party Consents with respect to such Servicing Agreement can be obtained. Purchaser shall be entitled to receive all proceeds of such transfer.
6.14 Servicing Transfer . Seller and Purchaser shall, prior to the Servicing Transfer Date with respect to each Servicing Agreement, work in good faith to determine and agree upon applicable servicing transfer procedures with respect to such Servicing Agreement.
6.15 Fannie Mae/Freddie Mac . Seller shall not have its right to service suspended by Fannie Mae, Freddie Mac or FHA. Seller shall at all times meet the qualifications of a Fannie Mae, Freddie Mac or FHA seller/servicer. Seller shall provide Purchaser with prompt written notice of any negative action by Fannie Mae. Freddie Mac or FHA regarding its right to service or its standing as an approved seller/servicer.
6.16 MERS . Seller shall at all times maintain its membership in the Mortgage Electronic Registration System, Inc (“ MERS ”).
6.17 Insurance . (a) Seller shall maintain, at its own expense:
(i) fidelity bond insurance of at least what is required by Fannie Mae and Freddie Mac (or pursuant to a waiver of such requirements issued by Fannie Mae or Freddie Mac) or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage);
(ii) professional liability/errors and omissions insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which insurance shall protect and insure Seller against losses, including errors and omissions and negligent acts of such persons;
(iii) fidelity bond (crime) insurance of at least what is required by Fannie Mae and Freddie Mac or by any Deferred Servicing Agreement or Applicable Law, which coverage shall extend to Purchaser (who shall be named as loss payee on a certificate of insurance with respect to such coverage); and
(iv) commercial general liability, umbrella and excess insurance in the amount of $1,000,000 per occurrence and $2,000,000 general aggregate and umbrella and excess insurance of at least $10,000,000 per occurrence, in the aggregate, which coverage shall extend to Purchaser (who shall be named as additional insured on a certificate of insurance with respect to such coverage).
(b) The insurance coverages under this Section 6.17 shall be primary, and all coverage shall be non-contributing with respect to any other insurance or self-insurance that may be maintained by Purchaser or its Affiliates. To the fullest extent allowed by the policies of insurance described in
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Section 6.17(a)(iv) , Seller shall waive all rights of subrogation against Purchaser and its Affiliates. At least annually, Seller shall provide certificates of insurance evidencing that the coverages and policy endorsements required under this Agreement are maintained in force. The insurers selected by Seller shall be authorized to conduct business in the jurisdictions in which services are to be performed. When the policy is issued each such insurer shall have at least an A.M. Best rating of A- VII or shall otherwise be acceptable to Fannie Mae and Freddie Mac. In the case of loss or damage or other event that requires notice or other action under the terms of any insurance coverage specified in this Section 6.17 , Seller shall be solely responsible to take such action. Seller shall provide Purchaser with contemporaneous notice and with such other information as Purchaser may request regarding the event.
6.18 Delegation . Seller may not engage any subservicer for the Deferred Servicing Agreements other than in connection with the SPS Subservicing Agreement. Seller shall not amend or otherwise modify the SPS Subservicing Agreement; provided , however, that Seller may terminate the SPS Subservicing Agreement. Seller shall (i) perform and observe all the terms and provisions of the SPS Subservicing Agreement to be performed or observed by it, enforce the SPS Subservicing Agreement in accordance with its terms and take all action as may from time to time be reasonably requested by the Purchaser in order to accomplish the foregoing, and (ii) upon the reasonable request of and as directed by the Purchaser, make such demands and requests to any other party to the SPS Subservicing Agreement as are permitted to be made by the Seller thereunder (including the exercise of any right of termination).
6.19 Access to Mortgage Servicing System . Seller shall provide Purchaser and its accountants and advisors with electronic access to Seller’s mortgage servicing system to view any available information with respect to the Deferred Servicing Agreements and the Mortgage Loans. Seller shall also provide Purchaser and its accountants and advisors with reasonable access to Seller’s financial operations system to monitor Seller’s performance under the Agreement and this Sale Supplement Seller shall provide Purchaser with the tools to create and administer log in identifications and passwords for each of its authorized users. Purchaser shall comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access. Upon reasonable prior notice, without undue interference with Seller’s business and at Purchaser’s expense, the Seller shall (i) give to Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders reasonable access to all of the properties, books, contracts, documents, insurance policies, records and personnel of the Seller concerning the Servicing Agreements or the Mortgage Loans to the extent Purchaser reasonably deems necessary or desirable in connection with the transactions contemplated hereby and (ii) furnish to Purchaser and such persons as Purchaser shall designate such additional information as Purchaser or such persons may reasonably request in connection with the transactions contemplated hereby. Purchaser shall cause all of its officers, employees, agents, attorneys, consultants, accountants and lenders to comply with all confidentiality restrictions imposed by Applicable Requirements with respect to any information obtained by Purchaser resulting from such access or information.
6.20 Servicing Reports . Seller shall simultaneously deliver a copy of any reports delivered by Seller to any Person pursuant to the Deferred Servicing Agreements to Purchaser. Seller shall provide the following reports to Purchaser:
(a) On or prior to each monthly reporting date with respect to each Deferred Servicing Agreement, the Monthly Remittance Report relating to such Deferred Servicing Agreement, in electronic medium mutually acceptable to the parties, which Monthly Remittance Report shall also include with it (i) information sufficient for Purchaser to determine whether a P&I Advance will have to be made with respect to any Mortgage Loan subject to such Deferred Servicing Agreement and (ii) appropriate supporting information regarding the amount and nature of such P&I Advances.
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(b) No later than the first Business Day of each month, the Monthly Servicing Oversight Report as to the end of the prior calendar month, in electronic medium mutually acceptable to the parties.
Any other reports or information Purchaser may request, to the extent that the requested information or data is reasonably available to Seller without undue expense or hardship.
6.21 Relationship Management and Staffing .
(a) Project Managers . Seller shall designate one (1) individual (“ Seller Project Manager ”) to: (A) serve as the single point of contact and accountability for Seller for the Agreement and this Sale Supplement; (B) have day-to-day authority for undertaking to ensure that Seller’s performance of the Agreement and this Sale Supplement meets Purchaser’s reasonable satisfaction; and (C) have authority to direct Seller in support of the foregoing. Purchaser shall designate one (1) individual (“ Purchaser Project Manager ”) to: (A) serve as the single point of contact and accountability for Purchaser for the Agreement and this Sale Supplement; and (B) have authority to direct Purchaser in support of the foregoing. Seller and Purchaser have the right to replace the Seller Project Manager or Purchaser Project Manager, respectively, upon prior written notice to the other party.
(b) Designated Committee . Seller and Purchaser shall establish a committee comprising two (2) individuals who are officers or employees of Seller and two (2) individuals who are or employee officers of Purchaser (collectively, the “ Designated Committee ”). Until the last Servicing Transfer Date, the Designated Committee shall be responsible for monitoring the performance of the services provided pursuant to the Agreement and this Sale Supplement, providing recommendations for improving the performance of such services and discussing potential solutions to any disputes with respect to the services. Seller and Purchaser shall have the right to replace those of its officers who are serving on the Designated Committee upon written notice to the other party.
(c) Periodic Meetings . Until the last Servicing Transfer Date, unless otherwise mutually agreed upon by Seller and Purchaser, the Designated Committee shall have a telephonic meeting each calendar month and a meeting in person at least once a fiscal quarter. Such regular meetings shall be at such times and locations as may be mutually agreed by the members of the Designated Committee. The Designated Committee shall discuss at any such regular meeting any topic that either Seller or Purchaser desires to discuss at such regular meeting. In addition, until the last Servicing Transfer Date, either Seller or Purchaser may call a special telephonic meeting of the Designated Committee upon five (5) Business Days prior written notice to the other party, which notice shall set forth in reasonable detail the topics to be discussed at such special meeting.
(d) Seller shall assign an adequate number of personnel to the performance of Seller’s obligations under the Agreement and this Sale Supplement. Seller shall properly educate and train all such personnel and ensure that all such personnel are fully qualified to perform the services that they are providing and shall have passed Seller’s customary background check for personnel in similar positions.
(e) Seller shall provide Purchaser and its accountants and advisors with a copy of its independent audit reports, including SAS 70 reviews, of its data processing environment and internal controls within a reasonable time after such reports are completed, and shall make all work papers regarding such audits available as requested to the appropriate regulatory agencies, if any, having jurisdiction over Seller’s servicing hereunder. In addition, Seller will make available to Purchaser and its accountants and advisors for on-site review copies of any internal audit reports relating to its servicing operations. Within thirty (30) days following Purchaser’s request, the parties shall meet to discuss the frequency, scope and level of detail of Seller’s independent audits. Seller shall use commercially reasonable efforts to incorporate Purchaser’s comments into the requirements for its next and subsequent
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audits to the extent it is determined that Seller’s audit practices are not consistent with servicing industry practice. Purchaser, its authorized representatives and Purchaser’s regulators and auditors may on five (5) Business Days notice conduct audits and reviews on Seller’s premises including auditing and reviewing Seller’s facilities, equipment, books and records (electronic or otherwise), operational systems and such other audits as may be reasonably necessary to ensure Seller’s compliance with the terms and conditions of the Agreement, this Sale Supplement, the Deferred Servicing Agreements and Applicable Laws and to ensure Seller’s financial and operational viability with respect to the servicing under this Agreement. In addition, Seller will provide Purchaser and its accountants and advisors with the results of a security audit to be performed no less than annually. This security audit will be at no expense to Purchaser and will test the compliance with the agreed-upon security standards and procedures set forth in this Agreement. Purchaser will have the ability to bring in a third party (who may not be a competitor of Seller) or use its own staff for an independent security audit. If Purchaser chooses to conduct its own security audit, it will be at Purchaser’s expense. In addition, Seller shall give access to the Purchaser’s officers, employees, agents, attorneys, consultants, accountants and lenders (collectively, the “ Purchaser Parties ”) reasonable access to Seller’s financial reporting, internal accounting systems and other operational systems for purposes of obtaining information reasonably requested by such Purchaser Party. The Purchaser understands, and shall advise each Purchaser Party, that Nationstar Mortgage Holdings Inc. (the “Parent”), the ultimate parent of the Seller, is a publicly traded company and that and Purchaser Parties that obtain material non-public information concerning the Parent are prohibited from trading in the securities of the Parent for so long as they possess material non-public information. The Purchaser shall, and shall cause each of the Purchaser Parties that received information or access described in this section, to enter into reasonable and customary confidentiality agreements with the Seller and to comply with all confidentiality restrictions imposed by Applicable Requirements.
6.22 Funding of Servicing Advance Receivables . Purchaser and Seller agree to deliver the reports and other information specified on Schedule VI hereto at the times described on Schedule VI hereto in connection with origination of the Servicing Advance Receivables and the payment of the Servicing Advance Receivables Purchase Price on the related Servicing Advance Payment Dates.
ARTICLE 7
SELLER SERVICING FEES; COSTS AND EXPENSES
7.1 Seller Monthly Servicing Fee . As consideration for Seller servicing the Mortgage Loans pursuant to the Deferred Servicing Agreements during the applicable Consent Period, Purchaser shall pay to Seller, a monthly base servicing fee for each calendar month during such period during which Seller is servicing Mortgage Loans with respect to Deferred Servicing Agreements pursuant to this Sale Supplement equal to the Base Fee Percentage of the Specified Amounts with respect to such calendar month (the “ Seller Monthly Servicing Fee ”). The Seller Monthly Servicing Fee for any month is payable on the 2 nd Business Day following the Purchaser’s receipt of the Servicing Fee Collections for such month from the Seller pursuant to Section 2.5 hereof (and any delay in payment shall affect the calculation of the Targeted Return).
7.2 Costs and Expenses . Except as otherwise expressly provided in the Agreement or this Sale Supplement, each party hereto shall be responsible for its own costs and expenses incurred in connection with the negotiation and execution of the Agreement, this Sale Supplement and all documents relating thereto. Seller shall be required to pay all expenses incurred by it in connection with its obligations hereunder to the extent such expenses do not constitute Servicer Advances and shall not be entitled to reimbursement therefor except as specifically provided for herein or in the applicable Deferred Servicing Agreement. Seller shall reimburse Purchaser for any reasonable out-of-pocket costs, including legal fees, incurred by Purchaser in connection with obtaining any required Third Party Consents; provided , however , that Purchaser shall not incur such costs without the prior written approval of Seller.
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7.3 Ancillary Income . Seller shall be entitled to retain as additional compensation any Ancillary Income, investment income on amounts on deposit in the Custodial Accounts and Escrow Accounts and any Prepayment Interest Excess received by Seller with respect to the Deferred Mortgage Loans, to the extent such amounts are permitted to be retained by Seller pursuant to the related Deferred Servicing Agreement.
7.4 No Offset . Neither party shall have any right to offset against any amount payable hereunder or other agreement to the other party, or otherwise reduce any amount payable hereunder as a result of, any amount owing by the other party or any of its Affiliates to such party or any of its Affiliates.
ARTICLE 8
INDEMNIFICATION
8.1 Seller Indemnification of Purchaser . Seller agrees to indemnify and hold harmless Purchaser and each officer, director, agent, employee or Affiliate of Purchaser (each, a “ Seller Indemnified Party ”) from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, forfeitures, legal fees and expenses, and any and all related costs and/or expenses of litigation, administrative and/or regulatory agency proceedings, and any other costs, fees and expenses (each, a “ Liability ”) suffered or incurred by Purchaser or any such other Person (whether or not resulting from a third party claim) arising directly or indirectly out of or resulting from (a) any event relating to Transferred Assets occurring prior to the Closing Date, (b) a breach of any of Seller’s representations and warranties contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or Seller’s failure to observe and perform any of Seller’s duties, obligations, covenants or agreements contained in the Agreement, this Sale Supplement, the Sub-Administration Agreement or any other Related Agreement or any Servicing Advance Financing Agreements or any refinancings or replacements thereof, (c) acts or omissions of Seller, any other servicer of any Mortgage Loans, or any subservicer, contractor or agent engaged by Seller or any other servicer, in each case prior to the related Servicing Transfer Date, relating to the Transferred Assets, including any failure by Seller, any other servicer or any subservicer, contractor or agent engaged by Seller or any other servicer prior to the related Servicing Transfer Date to comply with the Applicable Requirements, (d) the Excluded Liabilities, (e) any acts or omissions by Seller or its employees or agents in performance of its duties or obligations pursuant to this Sale Supplement, (f) the failure of all Servicing Advances and/or DSF to be reimbursed or repaid, as applicable, in connection with the exercise of any optional termination or cleanup call under any Servicing Agreement except pursuant to an exercise of any optional termination or cleanup call made at the direction of New Residential Investment Corp., (g) any Event of Default, Facility Early Amortization Event or Target Amortization Event (or the equivalent of any of the foregoing, including any other event that causes or permits the early amortization or acceleration of any obligations, notes other instrument) under any Servicing Advance Financing Agreements or any refinancings or replacements thereof arising because of any actions or inactions of Seller or any of its agents (including, without limitation, any failure of any financial test, any judgment and/or any breach of any contractual obligation of the Seller) or (h) the exercise of “Control” by any Current Excess Servicing Spread Buyer pursuant to and in accordance with any Current Excess Servicing Spread Acquisition Agreement of the “Third Party Controlled Current Spread Custodial Account” maintained pursuant thereto.
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8.2 Purchaser Indemnification of Seller . Purchaser agrees to indemnify and hold harmless Seller and each officer, director, agent, employee or Affiliate of Seller (each, a “ Purchaser Indemnified Party ”) from and against any and all Liability suffered or incurred by Seller or any such other Person arising out of or resulting from (a) a breach of any of Purchaser’s representations and warranties or covenants contained in the Agreement, the Sale Supplement or any other Related Agreement, (b) acts or omissions of Purchaser or any subservicer, contractor or agent (other than Seller or any of Seller’s Affiliates) engaged by Purchaser relating to the Transferred Assets or (c) the Assumed Liabilities.
8.3 Indemnification Procedures .
(a) As promptly as is reasonably practicable after becoming aware of a claim for indemnification under the Agreement or this Sale Supplement not involving a Third-Party Claim, but in any event no later than fifteen (15) Business Days after first becoming aware of such claim, the Indemnified Person shall give notice to the Indemnifying Person of such claim, which notice shall specify the facts alleged to constitute the basis for such claim and the amount that the Indemnified Person seeks hereunder from the Indemnifying Person; provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby.
(b) The Indemnified Person shall give notice as promptly as is reasonably practicable, but in any event no later than ten (10) Business Days after receiving notice thereof, to the Indemnifying Person of the assertion of any claim, or the commencement of any action, suit, claim or proceeding, by any unaffiliated third Person (a “ Third-Party Claim ”) in respect of which indemnity may be sought under the Agreement or this Sale Supplement (which notice shall specify in reasonable detail the nature and amount of such claim); provided , however , that the failure of the Indemnified Person to give such notice shall not relieve the Indemnifying Person of its obligations under this Section 8.3 except to the extent (if any) that the Indemnifying Person shall have been prejudiced thereby. The Indemnifying Person may, at its own expense, (i) participate in the defense of any such Third-Party Claim, and (ii) upon notice to the Indemnified Person, at any time during the course of any such Third-Party Claim, assume the defense thereof with counsel of its own choice and, in the event of such assumption, shall have the exclusive right, subject to clause (i) in the proviso in Section 8.3(c) , to settle or compromise such Third-Party Claim. If the Indemnifying Person assumes such defense, the Indemnified Person shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Person. Whether or not the Indemnifying Person chooses to defend or prosecute any such Third-Party Claim, all of the parties hereto shall cooperate in the defense or prosecution thereof.
(c) Any settlement or compromise made or caused to be made by the Indemnified Person (unless the Indemnifying Person has the exclusive right to settle or compromise under clause (ii) of Section 8.3(b) or the Indemnifying Person, as the case may be), of any such Third-Party Claim shall also be binding upon the Indemnifying Person or the Indemnified Person, as the case may be, in the same manner as if a final judgment had been entered by a court of competent jurisdiction in the amount of such settlement or compromise; provided , however , that (i) no obligation, restriction, loss or admission of guilt or wrongdoing shall be imposed on the Indemnified Person as a result of such settlement or compromise without its prior written consent and (ii) the Indemnified Person will not compromise or settle any Third Party Claim without the prior written consent of the Indemnifying Person.
(d) Except as specifically provided for in the Agreement or this Sale Supplement, no claim may be made by an Indemnified Person for any special, indirect, punitive or consequential damages (“ Special Damages ”) in respect of any breach or wrongful conduct (whether the claim therefor is based on contract, tort or duty imposed by law) in connection with, arising out of, or in any way related to the transactions contemplated, or relationship established, by this Agreement or any Sale Supplement, or any act, omission or event occurring in connection herewith or therewith, and to the fullest extent permitted by law, each of Seller and Purchaser hereby waives, releases and agrees not to sue upon any such claim for Special Damages, whether or not accrued or whether or not known or suspected to exist in its favor.
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8.4 Tax Treatment . (a) Seller and Purchaser agree that all payments made by any of them to or for the benefit of the other under this Article 8 , under other indemnity provisions of the Agreement or this Sale Supplement and for any misrepresentations or breaches of warranties or covenants, shall be treated as adjustments to the Purchaser Price for tax purposes and that such treatment shall govern for purposes hereof except to the extent that the Applicable Laws of a particular jurisdiction provide otherwise.
(b) Seller, Purchaser and each of their respective Affiliates agree that entering into this Sale Supplement shall be treated for all tax purposes as a sale of the Servicing Rights Assets and the Purchaser shall be treated as the beneficial owner of the Servicing Rights Assets for tax purposes as a result of entering into this Sale Supplement. The parties covenant and agree to take no position for Tax purposes contrary to the foregoing tax treatment, and to prevent any Affiliate from taking such a contrary position.
(c) All payments made pursuant to this Agreement shall be made free and clear and without deductions of any kind for taxes.
8.5 Survival . The parties’ obligations under this Article 8 shall survive any termination of the Agreement and/or this Sale Supplement.
8.6 Additional Indemnification . (a) Without limiting Seller’s obligations under Article 8 of this Sale Supplement, it is agreed by the parties that if Seller is terminated as servicer under any Deferred Servicing Agreement as a result of any action described in clauses (a) through (e) of Section 8.1 above or pursuant to the penultimate sentence of Section 6.2 , Seller shall also pay to Purchaser, as reasonable and just compensation for such termination, an amount equal to the following as liquidated damages, and not as penalty, in the event of such a termination: the sum of (i) the outstanding amount of all Servicing Advance Receivables and DSF arising thereunder and (ii) the product of (I) the Servicing Fee Rate minus 0.02, (II) 1.5 and (II) the aggregate unpaid principal balance of the Mortgage Loans subject to such Servicing Agreement at the time of termination.
8.7 Specific Performance . Notwithstanding any other provision of the Agreement or this Sale Supplement, (i) it is understood and agreed that the remedy of indemnity payments pursuant to this Article 8 and other remedies at law would be inadequate in the case of any actual or threatened breach of the Agreement or this Sale Supplement by Seller and (ii) Purchaser shall be entitled, without limiting its other remedies and without the necessity of proving actual damages or posting any bond, to equitable relief, including the remedy of specific performance or injunction, with respect to any breach or threatened breach of such covenants. Such relief shall be in addition to, and not in lieu of, all other remedies available at law or in equity to such party under the Agreement and this Sale Supplement.
8.8 Current Excess Servicing Spread Acquisition Agreement . The Seller shall not amend, waive or otherwise modify any Current Excess Servicing Spread Acquisition Agreement related to any Servicing Agreement if such amendment, waiver or other modification could reasonably be expected to materially and adversely affect the Purchaser or delay the remittance of Servicing Fees pursuant to Section 2.5 .
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ARTICLE 9
GRANT OF SECURITY INTEREST
9.1 Granting Clause . Seller and Purchaser intend that the sale of the Transferred Assets pursuant to this Sale Supplement and the Agreement constitutes a valid sale of the Transferred Assets from Seller to Purchaser, conveying good title thereto free and clear of any Lien, and that the beneficial interest in and title to the Transferred Assets not be part of Seller’s estate in the event of the bankruptcy of Seller. Notwithstanding the foregoing, to secure its performance of its obligations under the Agreement and this Sale Supplement, Seller hereby grants to Purchaser a security interest in all of its right, title and interest in and to the following, whether now owned or hereafter acquired, and all monies “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property,” (each as defined in the applicable UCC) and other property consisting of, arising from or relating to any of the following:
(a) the Servicing Rights in respect of all of the Mortgage Loans and REO Properties related to the Servicing Agreements, in each case together with all related security, collections and payments thereon and proceeds of the conversion, voluntary or involuntary of the foregoing;
(b) the Rights to MSRs with respect to each Servicing Agreement;
(c) all Servicing Fees, Ancillary Income and Prepayment Interest Excess received under the Servicing Agreements and subject to Section 6.10 of this Sale Supplement;
(d) all income from amounts on deposit in Custodial Accounts and related Escrow Accounts related to the Servicing Agreements;
(e) all files and records in Seller’s possession or control, including the related Database, relating to the assets specified in clauses (a) through (d);
(f) all causes of action, lawsuits, judgments, claims, refunds, choses in action, rights of recovery, rights of set-off, rights of recoupment, demands and any other rights or claims of any nature, whether arising by way of counterclaim or otherwise, available to or being pursued by Seller to the extent related exclusively to any of the foregoing and/or the Assumed Liabilities;
(g) all Servicing Advance Receivables and DSF in respect of the Servicing Agreements and all monies due or to become due and all amounts received or receivable;
(h) any rights to exercise any optional termination or clean-up call provisions under such Servicing Agreements, other than any rights of Seller to exercise any optional termination or clean-up call provisions under a Servicing Agreements in its capacity as a master servicer (except to the extent that the Seller is identified as the “Master Servicer” but performs the primary servicing function with respect to the related Mortgage Loans); and
(i) any proceeds of any of the foregoing (collectively, the “ Collateral ”).
This Sale Supplement shall constitute a security agreement under applicable law. Seller agrees that from time to time it shall promptly execute and deliver all additional instruments and documents and take all additional action that Purchaser may reasonably request in order to perfect the interests of Purchaser in, to and under, or to protect, the Collateral or to enable Purchaser to exercise or enforce any of its rights or remedies hereunder. To the fullest extent permitted by applicable law, Seller hereby authorizes Purchaser
-28-
to file financing statements and amendments thereto in connection with the grant of a security interest pursuant to this Section 9.1 . Seller covenants and agrees to take all necessary action to prevent the creation or imposition of any Lien upon any of the Collateral, and to maintain the Collateral free and clear of all Liens, other than the Lien securing the obligations of Seller arising under this Sale Supplement.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 Further Assurances . Without limiting Section 5.7 of the Agreement, each party hereto shall execute and deliver in a reasonable timeframe such reasonable and appropriate additional documents, instruments or agreements and take such reasonable actions as may be necessary or appropriate to effectuate the purposes of this Sale Supplement at the request of the other party. Without limiting the foregoing, the Seller agrees that it will promptly at Purchaser’s request execute and deliver an one or more assignment and assumption agreements, in form mutually agreed to by the parties, one or more equity interest assignments, in form mutually agreed to by the parties, or such other documents, instruments or agreements as Purchaser may reasonably request to evidence the transfers of Rights to MSRs pursuant to Section 2.1 , Servicing Rights pursuant to Section 2.2 and Transferred Receivables Assets pursuant to Section 3.3 .
10.2 Compliance with Applicable Laws; Licenses . Seller will comply with all Applicable Laws in connection with the performance of its obligations under the Agreement and this Sale Supplement. Seller shall maintain all necessary licenses and approvals in each jurisdiction where the failure to do so would materially and adversely affect the ability of Seller to perform its obligations under the Agreement and this Sale Supplement.
10.3 Merger, Consolidation, Etc . Seller will keep in full effect its existence, rights and franchises as a limited liability company, and will obtain and preserve its qualification to do business as a foreign organization in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Agreement, this Sale Supplement, each Deferred Servicing Agreement or any of the Deferred Mortgage Loans, or to perform its duties under the Agreement or this Sale Supplement. Seller may be merged or consolidated with or into any Person, or transfer all or substantially all of its assets to any Person, in which case any Person resulting from any merger or consolidation to which Seller shall be a party or acquiring all or substantially all of the assets of Seller, or any Person succeeding to the business of Seller shall be the successor of Seller hereunder and under the Agreement, without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided , however , that the successor or surviving Person shall be an institution whose deposits are insured by FDIC or a company whose business includes the servicing of mortgage loans and shall have a tangible net worth not less than $25,000,000.
10.4 Annual Officer’s Certificate . Not later than March 15 of each calendar year commencing in 2014, Seller shall deliver to Purchaser an Officer’s Certificate stating, as to each signatory thereof, that (i) a review of the activities of Seller during the preceding year and of performance under the Agreement and this Sale Supplement has been made under such officers’ supervision and (ii) to the best of such officer’s knowledge, based on such review, Seller has fulfilled all of its obligations under the Agreement and this Sale Supplement in all material respects throughout such year, or, if there has been a default in the fulfillment of any such obligation in any material respect, specifying each such default known to such officer and the nature and status thereof.
-29-
10.5 Accounting Treatment . Notwithstanding Section 8.14 of the Agreement, the parties acknowledge that until such time as the Third Party Consents with respect to a Servicing Agreement are obtained, the parties shall treat the transaction hereunder with respect to the Servicing Rights as a financing for accounting purposes.
10.6 Incorporation . The provisions of Article 8 of the Agreement are hereby incorporated into this Sale Supplement by reference, mutatis mutandis , as if its provisions were fully set forth herein. To the extent that any provision of Article 8 of the Agreement conflicts with this Sale Supplement, the provisions of this Sale Supplement shall govern and control.
10.7 Third Party Beneficiaries . Seller and Purchaser each acknowledges and agrees that the indenture trustee, on behalf of the holders of related notes, with respect to any Servicing Advance Financing Agreements pursuant to which Purchaser has transferred Servicing Advance Receivables and DSF arising under a Deferred Servicing Agreement is an express third party beneficiary of this Sale Supplement and the Agreement solely with respect to the Deferred Servicing Agreements related to such Servicing Advance Financing Agreement.
10.8 Subservicing Supplement . The Seller and the Purchaser hereby covenant to use commercially reasonable efforts to enter into a Subservicing Supplement promptly following the execution hereof in order to evidence subservicing arrangements in respect of any Transferred Servicing Agreements. The Subservicing Supplement shall not conflict with the Subservicing Agreement. The fee allocation economics under such Subservicing Supplement shall be substantially identical to the fee allocation economics hereof with respect to the Deferred Servicing Agreements.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Sale Supplement to be executed and delivered by its respective officer thereunto duly authorized as of the date above written.
| NATIONSTAR MORTGAGE LLC | ||
| By: | /s/ Amar Patel | |
| Name: Amar Patel | ||
| Title: Executive Vice President | ||
| ADVANCE PURCHASER LLC | ||
| By: | /s/ Cameron MacDougall | |
| Name: Cameron MacDougall | ||
| Title: Secretary | ||
Signature Page to Sale Supplement
Exhibit A Form of Monthly Remittance Report
2
Exhibit 4.1
EXECUTION COPY
AMENDED AND RESTATED INDENTURE
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as a Subservicer (on and after the respective MSR Transfer Dates) and as Servicer (prior to the
respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
BARCLAYS BANK PLC,
as Administrative Agent
and consented to by
BARCLAYS BANK PLC
and
SHEFFIELD RECEIVABLES CORPORATION
Dated as of December 17, 2013
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, ISSUABLE IN SERIES
TABLE OF CONTENTS
| Page | ||||||
|
Article I |
||||||
|
Definitions and Other Provisions of General Application |
5 | |||||
|
Section 1.1. |
Definitions |
5 | ||||
|
Section 1.2. |
Interpretation |
48 | ||||
|
Section 1.3. |
Compliance Certificates and Opinions |
48 | ||||
|
Section 1.4. |
Form of Documents Delivered to Indenture Trustee |
49 | ||||
|
Section 1.5. |
Acts of Noteholders |
49 | ||||
|
Section 1.6. |
Notices, etc., to Indenture Trustee, Issuer, Administrator and the Administrative Agent |
50 | ||||
|
Section 1.7. |
Notices to Noteholders; Waiver |
51 | ||||
|
Section 1.8. |
Administrative Agent |
51 | ||||
|
Section 1.9. |
Effect of Headings and Table of Contents |
53 | ||||
|
Section 1.10. |
Successors and Assigns |
53 | ||||
|
Section 1.11. |
Severability of Provisions |
53 | ||||
|
Section 1.12. |
Benefits of Indenture |
53 | ||||
|
Section 1.13. |
Governing Law |
53 | ||||
|
Section 1.14. |
Counterparts |
53 | ||||
|
Section 1.15. |
Submission to Jurisdiction; Waivers |
53 | ||||
|
Article II |
||||||
|
The Trust Estate |
54 | |||||
|
Section 2.1. |
Contents of Trust Estate |
54 | ||||
|
Section 2.2. |
Receivable Files |
57 | ||||
|
Section 2.3. |
Indemnity Payments for Receivables Upon Breach |
58 | ||||
|
Section 2.4. |
Duties of Custodian with Respect to the Receivables Files |
59 | ||||
|
Section 2.5. |
Application of Trust Money |
59 | ||||
|
Article III |
||||||
|
Administration of Receivables; Reporting to Investors |
60 | |||||
|
Section 3.1. |
Duties of the Calculation Agent |
60 | ||||
|
Section 3.2. |
Reports by Administrator and Indenture Trustee |
63 | ||||
|
Section 3.3. |
Annual Statement as to Compliance; Notice of Default; Agreed Upon Procedures Reports |
67 | ||||
|
Section 3.4. |
Access to Certain Documentation and Information |
70 | ||||
|
Section 3.5. |
Indenture Trustee to Make Reports Available |
71 | ||||
|
Article IV |
||||||
|
The Trust Accounts; Payments |
72 | |||||
|
Section 4.1. |
Trust Accounts |
72 | ||||
|
Section 4.2. |
Collections and Disbursements of Advances by Servicer |
74 | ||||
|
Section 4.3. |
Funding of Additional Receivables |
75 | ||||
i
|
Section 4.4. |
Interim Payment Dates |
79 | ||||
|
Section 4.5. |
Payment Dates |
80 | ||||
|
Section 4.6. |
Series Reserve Account |
85 | ||||
|
Section 4.7. |
Collection and Funding Account, Interest Accumulation Account, Fee Accumulation Account, Target Amortization Principal Accumulation Account and Sinking Fund Accounts |
86 | ||||
|
Section 4.8. |
Note Payment Account |
87 | ||||
|
Section 4.9. |
Securities Accounts |
88 | ||||
|
Section 4.10. |
Notice of Adverse Claims |
90 | ||||
|
Section 4.11. |
No Gross Up |
90 | ||||
|
Section 4.12. |
Facility Early Amortization Events; Target Amortization Events |
90 | ||||
|
Article V |
||||||
| Note Forms | 91 | |||||
|
Section 5.1. |
Forms Generally |
91 | ||||
|
Section 5.2. |
Forms of Notes |
91 | ||||
|
Section 5.3. |
Form of Indenture Trustee’s Certificate of Authentication |
92 | ||||
|
Section 5.4. |
Book-Entry Notes |
92 | ||||
|
Section 5.5. |
Beneficial Ownership of Global Notes |
94 | ||||
|
Section 5.6. |
Notices to Depository |
94 | ||||
|
Article VI |
||||||
|
The Notes |
95 | |||||
|
Section 6.1. |
General Provisions; Notes Issuable in Series; Terms of a Series or Class Specified in an Indenture Supplement |
95 | ||||
|
Section 6.2. |
Denominations |
96 | ||||
|
Section 6.3. |
Execution, Authentication and Delivery and Dating |
97 | ||||
|
Section 6.4. |
Temporary Notes |
97 | ||||
|
Section 6.5. |
Registration, Transfer and Exchange |
98 | ||||
|
Section 6.6. |
Mutilated, Destroyed, Lost and Stolen Notes |
105 | ||||
|
Section 6.7. |
Payment of Interest; Interest Rights Preserved; Withholding Taxes |
106 | ||||
|
Section 6.8. |
Persons Deemed Owners |
106 | ||||
|
Section 6.9. |
Cancellation |
106 | ||||
|
Section 6.10. |
New Issuances of Notes |
107 | ||||
|
Article VII |
||||||
| Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or Depositor or the Receivables Seller | 109 | |||||
|
Section 7.1. |
Satisfaction and Discharge of Indenture |
109 | ||||
|
Section 7.2. |
Application of Trust Money |
110 | ||||
|
Section 7.3. |
Cancellation of Notes Held by the Issuer, the Depositor or the Receivables Seller |
110 | ||||
ii
|
Article VIII |
||||||
|
Events of Default and Remedies |
110 | |||||
|
Section 8.1. |
Events of Default |
110 | ||||
|
Section 8.2. |
Acceleration of Maturity; Rescission and Annulment |
112 | ||||
|
Section 8.3. |
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee |
113 | ||||
|
Section 8.4. |
Indenture Trustee May File Proofs of Claim |
113 | ||||
|
Section 8.5. |
Indenture Trustee May Enforce Claims Without Possession of Notes |
114 | ||||
|
Section 8.6. |
Application of Money Collected |
114 | ||||
|
Section 8.7. |
Sale of Collateral Requires Consent of Majority of All Noteholders |
114 | ||||
|
Section 8.8. |
Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture Trustee |
114 | ||||
|
Section 8.9. |
Limitation on Suits |
115 | ||||
|
Section 8.10. |
Unconditional Right of Noteholders to Receive Principal and Interest; Limited Recourse |
115 | ||||
|
Section 8.11. |
Restoration of Rights and Remedies |
116 | ||||
|
Section 8.12. |
Rights and Remedies Cumulative |
116 | ||||
|
Section 8.13. |
Delay or Omission Not Waiver |
116 | ||||
|
Section 8.14. |
Control by Noteholders |
116 | ||||
|
Section 8.15. |
Waiver of Past Defaults |
117 | ||||
|
Section 8.16. |
Sale of Trust Estate |
117 | ||||
|
Section 8.17. |
Undertaking for Costs |
118 | ||||
|
Section 8.18. |
Waiver of Stay or Extension Laws |
118 | ||||
|
Section 8.19. |
Notice of Waivers |
118 | ||||
|
Article IX |
||||||
|
The Issuer |
119 | |||||
|
Section 9.1. |
Representations and Warranties of Issuer |
119 | ||||
|
Section 9.2. |
Liability of Issuer; Indemnities |
122 | ||||
|
Section 9.3. |
Merger or Consolidation, or Assumption of the Obligations, of the Issuer |
123 | ||||
|
Section 9.4. |
Issuer May Not Own Notes |
124 | ||||
|
Section 9.5. |
Covenants of Issuer |
124 | ||||
|
Article X |
||||||
|
The Administrator and Servicer |
127 | |||||
|
Section 10.1. |
Representations and Warranties of Administrator |
127 | ||||
|
Section 10.2. |
Representations and Warranties of Nationstar |
129 | ||||
|
Section 10.3. |
Covenants of Administrator and Servicer |
130 | ||||
|
Section 10.4. |
Liability of Administrator; Indemnities |
133 | ||||
|
Section 10.5. |
Liability of Servicer; Indemnities |
134 | ||||
|
Section 10.6. |
Merger or Consolidation, or Assumption of the Obligations, of the Administrator or the Servicer |
135 | ||||
|
Section 10.7. |
Appointment of a Sub-Administrator |
136 | ||||
iii
|
Article XI |
||||||
|
The Indenture Trustee |
137 | |||||
|
Section 11.1. |
Certain Duties and Responsibilities |
137 | ||||
|
Section 11.2. |
Notice of Defaults |
138 | ||||
|
Section 11.3. |
Certain Rights of Indenture Trustee |
138 | ||||
|
Section 11.4. |
Not Responsible for Recitals or Issuance of Notes |
140 | ||||
|
Section 11.5. |
Money Held in Trust |
140 | ||||
|
Section 11.6. |
Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity |
140 | ||||
|
Section 11.7. |
Corporate Indenture Trustee Required; Eligibility |
141 | ||||
|
Section 11.8. |
Resignation and Removal; Appointment of Successor |
142 | ||||
|
Section 11.9. |
Acceptance of Appointment by Successor |
143 | ||||
|
Section 11.10. |
Merger, Conversion, Consolidation or Succession to Business |
144 | ||||
|
Section 11.11. |
Appointment of Authenticating Agent |
144 | ||||
|
Section 11.12. |
Representations and Covenants of the Indenture Trustee |
145 | ||||
|
Section 11.13. |
Indenture Trustee’s Application for Instructions from the Issuer |
146 | ||||
|
Article XII |
||||||
|
Amendments and Indenture Supplements |
146 | |||||
|
Section 12.1. |
Supplemental Indentures and Amendments Without Consent of Noteholders |
146 | ||||
|
Section 12.2. |
Supplemental Indentures and Amendments with Consent of Noteholders |
148 | ||||
|
Section 12.3. |
Execution of Amendments |
149 | ||||
|
Section 12.4. |
Effect of Amendments |
149 | ||||
|
Section 12.5. |
Reference in Notes to Indenture Supplements |
149 | ||||
|
Section 12.6. |
Amendments Requiring Consent of the Servicer |
150 | ||||
|
Article XIII |
||||||
|
Early Redemption of Notes |
150 | |||||
|
Section 13.1. |
Optional Redemption |
150 | ||||
|
Section 13.2. |
Notice. |
151 | ||||
|
Article XIV |
||||||
|
Miscellaneous |
151 | |||||
|
Section 14.1. |
No Petition |
151 | ||||
|
Section 14.2. |
No Recourse |
152 | ||||
|
Section 14.3. |
Tax Treatment |
152 | ||||
|
Section 14.4. |
Alternate Payment Provisions |
152 | ||||
|
Section 14.5. |
Termination of Obligations |
152 | ||||
|
Section 14.6. |
Final Distribution |
153 | ||||
|
Section 14.7. |
Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider as Third-Party Beneficiaries |
153 | ||||
|
Section 14.8. |
Owner Trustee Limitation of Liability |
153 | ||||
|
Section 14.9. |
Communications with Rating Agencies |
154 | ||||
|
Section 14.10. |
Authorized Representatives |
154 | ||||
|
Section 14.11. |
Consent and Acknowledgement of the Amendments |
154 | ||||
iv
SCHEDULES AND EXHIBITS
| Schedule 1 | Designated Servicing Agreement Schedule | |
| Schedule 2 | Designated Servicing Agreements under which the Servicer or servicers are required to consent to or initiate termination and have agreed to repay all unpaid and accrued servicing fees at the time of redemption in full or reimburse all Advances at the time of termination, as applicable | |
| Schedule 3 | Designated Servicing Agreements for which the related Receivables become ineligible upon the principal balance of the Mortgage Loans and REO Properties in the related securitization trust being reduced below the indicated threshold of the securitization trust’s cut-off date balance | |
| Schedule 4 | Servicing Agreements that are Facility Eligible Servicing Agreements only if the unpaid principal balance of the related Mortgage Loans that are 90 or more days delinquent or that are related to REO Properties or Mortgaged Properties in foreclosure is less than the overcollateralization that provides enhancement for the Senior Classes (as such term is defined in the related Servicing Agreement) identified in such Servicing Agreement | |
| Schedule 5 | Designated Servicing Agreements that are subserviced by Subservicers and other Servicing Agreements that may be subserviced by Subservicers | |
| Schedule 6 | Wire Instructions | |
| Schedule 7 | Ineligible Designated Servicing Agreements | |
| Exhibit A-1 | Form of Global Rule 144A Note | |
| Exhibit A-2 | Form of Definitive Rule 144A Note | |
| Exhibit A-3 | Form of Global Regulation S Note | |
| Exhibit A-4 | Form of Definitive Regulation S Note | |
| Exhibit B-1 | Form of Transferee Certificate for Transfers of Notes pursuant to Rule 144A | |
| Exhibit B-2 | Form of Transferee Certificate for Transfer of Notes pursuant to Regulation S | |
| Exhibit C | Form of Notice to MBS Trustee/Notice of Assignment of Receivables | |
| Exhibit D | Agreed Upon Procedures | |
| Exhibit E | Form of Additional Transferee Certification required under Section 6.5(m) of the Indenture | |
| Exhibit F | Form of Additional Transferee Certification required under Section 6.5(n) of the Indenture | |
| Exhibit G-1 | Authorized Representatives of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | |
| Exhibit G-2 | Authorized Representatives of the Servicer | |
| Exhibit G-3 | Authorized Representatives of the Administrative Agent | |
| Exhibit G-4 | Authorized Representatives of the Issuer | |
| Exhibit G-5 | Authorized Representatives of the Administrator | |
| Exhibit H | Disclaimer of Excess Spread Purchasers | |
| Exhibit I | MSR Transfer Notice | |
v
This AMENDED AND RESTATED INDENTURE (as amended, supplemented, restated, or otherwise modified from time to time, the “ Indenture ”), is made and entered into as of December 17, 2013 (the “ Effective Date ”) by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST BC (f/k/a NATIONSTAR SERVICER ADVANCE RECEIVABLES TRUST 2013-BC), a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, in its capacity as Indenture Trustee (the “ Indenture Trustee ”), and as Calculation Agent, Paying Agent and Securities Intermediary (in each case, as defined below), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware (“ Advance Purchaser ”), as Administrator (as defined below) on behalf of the Issuer, as owner of the rights to the servicing rights associated with the servicing under the Designated Servicing Agreements (as defined below), and, from and after the respective MSR Transfer Dates (as defined below), as Servicer (as defined below) under the Designated Servicing Agreements, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware (“ Nationstar ”), as a Subservicer from and after the respective MSR Transfer Dates, and as Servicer prior to the respective MSR Transfer Dates, and BARCLAYS BANK PLC, a public limited company formed under the laws of England and Wales, as Administrative Agent (as defined below), and consented to by 100% of the Noteholders.
RECITALS OF THE ISSUER
The Issuer entered into an Indenture, dated as of September 19, 2013 (the “ Original Indenture ”), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as Servicer, and Barclays Bank PLC, as Administrative Agent. Nationstar has sold (and will sell from time to time) certain rights to the servicing rights under the Designated Servicing Agreements to Advance Purchaser. When all required consents and ratings agency letters required for a formal change of the named servicer under a Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, Nationstar shall transfer to Advance Purchaser certain servicing rights and obligations under such Designated Servicing Agreement (the related “ MSR Transfer Date ”) pursuant to the Master Servicing Rights Purchase Agreement dated as of December 17, 2013 and any applicable related Sale Supplement entered into from time to time, in each case, by and between Nationstar and Advance Purchaser (in each case, as amended, restated, supplemented, or otherwise modified from time to time, the “ Purchase Agreement ”). Nationstar sold certain servicing fees accrued and accruing under the Designated Servicing Agreements, to Advance Purchaser pursuant to the Purchase Agreement. Until the MSR Transfer Date with respect to any Designated Servicing Agreement, Nationstar shall continue to be the “Servicer” and to make all required Advances under such Designated Servicing Agreement, and shall sell the related Nationstar Additional Advance Receivables to Advance Purchaser for cash purchase prices equal to 100% of their respective Receivable Balances, immediately upon their creation, pursuant to the Receivables Sale Agreement. Following the MSR Transfer Date for any Designated Servicing Agreement, Advance Purchaser shall be the “Servicer” under such Designated Servicing Agreements, and Advance Purchaser shall thereafter make all required Advances under such Designated Servicing Agreements.
On the Effective Date, Advance Purchaser shall acquire the ownership of 100% of the equity interests in the Depositor from Nationstar, and Advance Purchaser shall assume the role of Administrator of the facility and under the Indenture from Nationstar.
The Issuer’s prior legal name was “Nationstar Servicer Advance Receivables Trust 2013-BC”. On the date hereof, the Certificate of Trust was amended to change the name of the Issuer to “NRZ Servicer Advance Receivables Trust BC”.
Whereas, pursuant to Section 12.2 of the Original Indenture, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of 100% of the Noteholders, the Issuer, Nationstar, the Administrative Agent and the Indenture Trustee upon delivery of an Issuer Tax Opinion may enter into one or more amendments to the Original Indenture. As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
Whereas, pursuant to Section 12.3 of the Original Indenture, the Issuer shall also deliver to the Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “ Authorization Opinion ”). The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive, the Authorization Opinion and the certificate required by Section 1.3(1) of the Original Indenture and the conditions precedent opinion required by Section 1.3(2) of the Original Indenture, including the corresponding form of documents specified in Section 1.4 of the Original Indenture. The parties hereto have agreed to waive the requirements described in this paragraph.
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its Variable Funding and Term Notes to be issued in one or more Series and/or Classes.
All things necessary to make this Indenture a valid agreement of the Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee for the benefit and security of (a) the Noteholders, (b) each Derivative Counterparty, if any, and/or each Supplemental Credit Enhancement Provider, if any, and/or each Liquidity Provider, if any, that is a party to any Derivative Agreement, Supplemental Credit Enhancement Agreement or Liquidity Facility, as applicable, entered into in connection with the issuance of a Series of Notes, and (c) the Indenture Trustee, in its individual capacity (clauses (a), (b) and (c), each, a “ Secured Party ” and collectively, the “ Secured Parties ”), a security interest in all its right, title and interest in and to the following, whether now owned or hereafter acquired and wheresoever located (collectively, the “ Collateral ”), and all monies, “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property” (the terms in quotations are defined in the UCC) and other property consisting of, arising from or relating to any of the following:
(i) all right, title and interest of the Issuer (A) existing as of the Cut-off Date in, to and under the Initial Receivables, and (B) in, to and under any and all Additional Receivables created after the Cut-off Date and on and after the Effective Date, and (C) in the case of both Initial Receivables and Additional Receivables, all monies due or to become due thereon, and all amounts received or receivable with respect thereto, and all proceeds thereof (including “proceeds” as defined in the UCC in effect in all relevant jurisdictions (including, without limitation, any proceeds of any Sales)), together with all rights of the Issuer, as the assignee of the Receivables Seller, to enforce such Receivables (and including any Indemnity Payments made with respect to the Receivables for which a payment is made by the Issuer, the Depositor or the Receivables Seller as described in Section 2.3 );
(ii) all rights of the Issuer as Purchaser under the Receivables Pooling Agreement, including, without limitation, the Issuer’s rights as assignee of the Depositor’s rights under the Receivables Sale Agreement and of the Receivables Seller’s rights under the Receivables Sale Agreement, including, without limitation, the right to enforce the obligations of the Receivables Seller and the Servicer under the Receivables Sale Agreement with respect to the Receivables and the obligations of Nationstar under the Receivables Sale Agreement and any rights of Advance Purchaser against Nationstar with respect to any Nationstar Additional Advance Receivables sold by Nationstar to Advance Purchaser and Advance Purchaser’s rights under the Purchase Agreement with respect to the Additional Deferred Servicing Fees, including, without limitation, the right to enforce the obligations of Nationstar under the Purchase Agreement with respect to remitting collections of Deferred Servicing Fees;
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(iii) the Trust Accounts and the Initial Collection Account, and all amounts and property on deposit or credited to the Trust Accounts and the Initial Collection Account (excluding investment earnings thereon) from time to time (whether or not constituting or derived from payments, collections or recoveries received, made or realized in respect of the Receivables);
(iv) all rights of the Issuer under any Derivative Agreement or Supplemental Credit Enhancement Agreement;
(v) all right, title and interest of the Issuer as assignee of the Depositor, the Receivables Seller and the Servicer to rights to payment on the Receivables under each related Designated Servicing Agreement on the related Sale Dates of the Receivables, and under all related documents, instruments and agreements pursuant to which the Receivables Seller acquired, or acquired an interest in, any of the Receivables;
(vi) all other monies, securities, reserves and other property now or at any time in the possession of the Indenture Trustee or its bailee, agent or custodian and relating to any of the foregoing; and
(vii) all present and future claims, demands, causes and choses in action in respect of any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in respect of, any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, checks, deposit accounts, rights to payment of any and every kind, and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing.
The Security Interest in the Trust Estate is Granted to secure the Notes issued pursuant to this Indenture (and the obligations under this Indenture, any Indenture Supplement and any applicable Derivative Agreement, Supplemental Credit Enhancement Agreement and/or Liquidity Facility) equally and ratably without prejudice, priority or distinction between any Note and any other Note by reason of difference in time of issuance or otherwise, except as otherwise expressly provided in this Indenture or in any Indenture Supplement, and to secure (1) the payment of all amounts due on such Notes and the obligations under any applicable Derivative Agreement, Supplemental Credit Enhancement Agreement and/or Liquidity Facility in accordance with their terms, (2) the payment of all other sums payable by the Issuer under this Indenture or any Indenture Supplement and (3) compliance by the Issuer with the provisions of this Indenture or any Indenture Supplement. This Indenture, as it may be supplemented, including by each Indenture Supplement, is a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the Grant of such Security Interest, and agrees to perform the duties herein in accordance with the terms hereof. The Indenture Trustee also acknowledges that the Grant of any Security Interest in a Derivative Agreement or Derivative Collateral Account is solely for the purpose of securing the related Series of Notes (and the related obligations under this Indenture, any related Indenture Supplement, such Derivative Agreement and any related Supplemental Credit Enhancement Agreement). Although such Derivative Agreement, the Derivative Collateral Account and the amounts and property on deposit or credited to the Derivative Collateral Account may, in the exercise of remedies under this Indenture and any related Indenture Supplement, be disposed of as provided in this Indenture, any related Indenture Supplement and such Derivative Agreement, the exercise of remedies under such Derivative Agreement against any such amounts and property in the Derivative Collateral Account shall be strictly in accordance with the terms set forth in such Derivative Agreement.
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The Issuer hereby authorizes the Administrator, on behalf of the Issuer and the Indenture Trustee, and its assignees, successors and designees to file one or more UCC financing statements, financing statement amendments and continuation statements to perfect the security interest Granted above. In addition, the Issuer hereby consents to the filing of a financing statement describing the Collateral covered thereby as “all assets of the Debtor, now owned or hereafter acquired,” or such similar language as the Administrator, on behalf of the Indenture Trustee, and its assignees, successors and designees may deem appropriate.
The Issuer hereby irrevocably constitutes and appoints the Indenture Trustee and any officer or agent thereof, effective upon the occurrence and continuation of an Event of Default, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Issuer and in the name of the Issuer, for the purpose of carrying out the terms of this Indenture and each Indenture Supplement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Indenture, each Indenture Supplement, the Receivables Sale Agreement and the Receivables Pooling Agreement, and, without limiting the generality of the foregoing, the Issuer hereby gives the Indenture Trustee the power and right (1) to take possession of and endorse and collect any wired funds, checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable Granted by the Issuer to the Indenture Trustee from the related Mortgage Pool, the Obligors on underlying Mortgage Loans, the Receivables Seller or the Servicer, as the case may be, (2) to file any claim or proceeding in any court of law or equity or take any other action otherwise deemed appropriate by the Indenture Trustee for the purpose of collecting any and all such moneys due from the related Mortgage Pool, the Obligors on underlying Mortgage Loans, the Receivables Seller or the Servicer or the related Subservicer under such Receivable whenever payable and to enforce any other right in respect of any Receivable Granted by the Issuer or related to the Trust Estate, (3) to direct the related MBS Trustee or the Servicer or Subservicer to make payment of any and all moneys due or to become due under the Receivable Granted by the Issuer directly to the Indenture Trustee or as the Indenture Trustee shall direct, (4) to ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due from the related Mortgage Pool or the Servicer or Subservicer at any time in respect of or arising out of any Receivable Granted by the Issuer, (5) to sign and endorse any assignments, notices and other documents in connection with the Receivables Granted by the Issuer or the Trust Estate, and (6) to sell, transfer, pledge and make any agreement with respect to or otherwise deal with the Receivables Granted by the Issuer and the Trust Estate as fully and completely as though the Indenture Trustee were the absolute owner thereof for all purposes, and do, at the Indenture Trustee’s option and at the expense of the Issuer, at any time, or from time to time, all acts and things which the Indenture Trustee deems necessary to protect, preserve or realize upon the Receivable Granted by the Issuer or the Trust Estate and the Indenture Trustee’s and the Issuer’s respective security interests and ownership interests therein and to effect the intent of this Indenture, all as fully and effectively as the Issuer might do. Nothing contained herein shall in any way be deemed to be a grant of power or authority to the Indenture Trustee or any officer or agent thereof to take any of the actions described in this paragraph with respect to any underlying Obligor under any Mortgage Loan, for which an Advance was made or Deferred Servicing Fee was accrued.
The parties hereto intend that the Security Interest Granted under this Indenture shall give the Indenture Trustee on behalf of the Secured Parties a first priority perfected security interest in, to and under the Collateral, and all other property described in this Indenture as a part of the Trust Estate and all proceeds of any of the foregoing in order to secure the obligations of the Issuer to the Indenture Trustee, the Noteholders under the Notes, and to any Derivative Agreement, Supplement Credit Enhancement
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Provider and/or any Liquidity Provider under this Indenture, the related Indenture Supplement and all of the other Transaction Documents. The Indenture Trustee on behalf of the Secured Parties shall have all the rights, powers and privileges of a secured party under the UCC. The Issuer agrees to execute and file all filings (including filings under the UCC) and take all other actions reasonably necessary in any jurisdiction to provide third parties with notice of the Security Interest Granted pursuant to this Indenture and to perfect such Security Interest under the UCC.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and conditions upon which the Notes are to be authenticated, issued and delivered, and in consideration of the premises and the purchase of Notes by the Noteholders thereof, it is mutually covenanted and agreed as set forth in this Indenture, for the equal and proportionate benefit of all Noteholders of the Notes or of a Series or Class thereof, as the case may be.
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and other amounts on the Notes and to make payments in respect of any Derivative Agreements, Supplemental Credit Enhancement Agreements or Liquidity Facilities is limited in recourse as set forth in Section 8.10 .
Article I
Definitions and Other Provisions of General Application
Section 1.1. Definitions.
Act : When used with respect to any Noteholder, is defined in Section 1.5 .
Accumulation Account : Any of the Fee Accumulation Account, Interest Accumulation Account or Target Amortization Principal Accumulation Account, as applicable.
Accumulation Amount : Any of the Fee Accumulation Amount, Interest Accumulation Amount or Target Amortization Principal Accumulation Amount, as applicable.
Action : When used with respect to any Noteholder, is defined in Section 1.5 .
Additional Deferred Servicing Fee Receivables : Each Deferred Servicing Fee Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created.
Additional Receivables : All Receivables created or acquired on or after the Cut-off Date which are (i) the Nationstar Additional Advance Receivables sold by the Servicer to the Receivables Seller under the Receivables Sale Agreement and the Additional Deferred Servicing Fee Receivables that arise when servicing fees that were sold by Nationstar to Advance Purchaser under the Purchase Agreement become Deferred Servicing Fee Receivables and/or which are (ii) sold and/or contributed by (A) Advance Purchaser to the Depositor pursuant to the Receivables Sale Agreement, as described in Section 2(a) of the Receivables Sale Agreement and (B) the Depositor to the Issuer pursuant to the Receivables Pooling Agreement. Any Receivables (x) created at any time with respect to a Mortgage Pool or a Mortgage Loan with respect to which Nationstar no longer acts at such time as Servicer prior to the related MSR Transfer
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Date, or as to which Advance Purchaser no longer acts as Servicer from and after the related MSR Transfer Date or (y) sold and/or contributed to the Depositor or the Issuer on or after a Stop Date pursuant to Section 2(e) of the Receivables Sale Agreement or Section 2(d) the Receivables Pooling Agreement shall not constitute Additional Receivables.
Administration Agreement : The Amended and Restated Administration Agreement, dated as of the Effective Date, by and between the Issuer and the Administrator, as amended, supplemented, restated, or otherwise modified from time to time.
Administrative Agent : (a) initially, Barclays Bank PLC or any Affiliate thereof or any successor thereto in respect of the Series of Notes for which it is designated as an Administrative Agent therefor in the related Indenture Supplement, and (b) in respect of any Series, the Person(s) specified in the related Indenture Supplement. Unless the context indicates otherwise in any Indenture Supplement for such Indenture Supplement, each reference to the “Administrative Agent” herein or in any other Transaction Document shall be deemed to constitute a collective reference to each Person that is an Administrative Agent. If (x) any Person that is an Administrative Agent resigns as an Administrative Agent in respect of all Series for which it was designated as the Administrative Agent or (y) all of the Notes in respect of each Series for which any Person was designated as the Administrative Agent are repaid or redeemed in full, such Person shall cease to be an “Administrative Agent” for purposes hereof and each other Transaction Document.
Administrative Expenses : Any amounts due from or accrued for the account of the Issuer with respect to any period for any administrative expenses incurred by the Issuer, including without limitation (i) to any accountants, agents, counsel and other advisors of the Issuer (other than the Owner Trustee) for fees and expenses; (ii) to the rating agencies for fees and expenses in connection with any rating of the Notes; (iii) to any other person in respect of any governmental fee, charge or tax; (iv) to any other Person (other than the Owner Trustee) in respect of any other fees or expenses permitted under this Indenture (including indemnities) and the documents delivered pursuant to or in connection with this Indenture and the Notes; (v) any and all fees and expenses of the Issuer incurred in connection with its entry into and the performance of its obligations under any of the agreements contemplated by this Indenture; (vi) the orderly winding up of the Issuer following the cessation of the transactions contemplated by this Indenture; and (vii) any and all other fees and expenses properly incurred by the Issuer in connection with the transactions contemplated by this Indenture, but not in duplication of any amounts specifically provided for in respect of the Indenture Trustee, the Owner Trustee, the Administrator or any VFN Noteholder.
Administrator : Advance Purchaser in its capacity as the Administrator on behalf of the Issuer and any successor to Advance Purchaser in such capacity.
Advance : Any P&I Advance, Escrow Advance or Corporate Advance.
Advance Collection Period : (i) For the first Interim Payment Date or Payment Date, the period beginning on the Cut-off Date and ending at the end of the day before the Determination Date for such Interim Payment Date or Payment Date, and (ii) for each other Interim Payment Date and Payment Date, the period beginning at the opening of business on the most recent preceding Determination Date and ending as of the close of business on the day before the Determination Date for such Interim Payment Date or Payment Date.
Advance Purchaser : Has the meaning set forth in the Preamble.
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Advance Rate : With respect to any Series of Notes, and for any Class within such Series, if applicable, and with respect to any Receivables related to any particular Advance Type (and attributable to any particular Designated Servicing Agreement, if so specified in the related Indenture Supplement), the percentage specified for such Advance Type (and attributable to such Designated Servicing Agreement, if applicable) as its “Advance Rate” in the Indenture Supplement for such Series, as reduced by any applicable Advance Rate Reduction Factor.
Advance Rate Reduction Factor : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Advance Receivable : Any of a Corporate Advance Receivable, Escrow Advance Receivable or P&I Advance Receivable.
Advance Reimbursement Amount : (i) With respect to any Advance, any amount which the Servicer or the Indenture Trustee as the Servicer’s assignee, collects on a Mortgage Loan, withdraws from a Custodial Account or receives from an MBS Trustee or any successor servicer, to reimburse an Advance made by the Servicer or any predecessor servicer (including reimbursement of P&I Advances which were advanced using Amounts Held for Future Distribution) pursuant to a Designated Servicing Agreement; or (ii) with respect to any Deferred Servicing Fee Receivable, any amounts paid to (or retained by) the Servicer on account of the related Deferred Servicing Fees pursuant to a Designated Servicing Agreement.
Advance Type : Judicial P&I Advances (loan level), Judicial P&I Advances (non-loan level), Non-Judicial P&I Advances (loan level), Non-Judicial P&I Advances (non-loan level), Judicial Escrow Advances (loan level), Judicial Escrow Advances (non- loan level), Non-Judicial Escrow Advances (loan level), Non-Judicial Escrow Advances (non-loan level), Judicial Corporate Advances (loan level), Judicial Corporate Advances (non-loan level), Non-Judicial Corporate Advances (loan level), Non-Judicial Corporate Advances (non-loan level), Judicial Deferred Servicing Fees (loan level), Judicial Deferred Servicing Fees (non-loan level), Non-Judicial Deferred Servicing Fees (loan level) and Non-Judicial Deferred Servicing Fees (non-loan level).
Advance Type Allocation Percentage : In respect of any Advance Type of Receivables with a non-zero Advance Rate for such Series, a percentage equal to: (i) the Series Invested Amount for such Series divided by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Receivables of such Advance Type.
Advance Type Amount : For any Advance Type of Receivables for any Series that has a non-zero Advance Rate, an amount equal to the product of (a) the Advance Type Allocation Percentage for such Series for such Advance Type of Receivables and (b) the aggregate Receivable Balances of all Receivables of such Advance Type.
Adverse Claim : A lien, security interest, charge, encumbrance or other right or claim of any Person (other than the liens created in favor of the Secured Parties or assigned to the Secured Parties by (i) this Indenture, (ii) the Receivables Pooling Agreement, (iii) the Receivables Sale Agreement, (iv) the Purchase Agreement or (v) any other Transaction Document).
Adverse Effect : Whenever used in this Indenture with respect to any Series or Class of Notes and any event, means that such event is reasonably likely, at the time of its occurrence, to (i) result in the occurrence of a Facility Early Amortization Event, as applicable, or a Target Amortization Event relating to such Series or Class of Notes, (ii) adversely affect (A) the amount of funds available to be paid to the Noteholders of such Series or Class of Notes or any Derivative Counterparty pursuant to this Indenture,
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(B) the timing of such payments or (C) the rights or interests of the Noteholders of such Series or Class, any related Derivative Counterparty, any related Supplemental Credit Enhancement Provider or any related Liquidity Provider, (iii) adversely affect the Security Interest of the Indenture Trustee for the benefit of the Secured Parties in the Collateral unless otherwise permitted by this Indenture, or (iv) adversely affect the collectability of the Receivables.
Affiliate : With respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person.
Aggregate Receivables : As of any date of determination, all Initial Receivables and all Additional Receivables on such date, (a) which Initial Receivables were sold and/or contributed prior to the Effective Date by Nationstar, as Receivables Seller, to the Depositor under the Receivables Sale Agreement and sold and/or contributed by the Depositor to the Issuer under the Receivables Pooling Agreement, and (b) (1) which Nationstar Additional Advance Receivables are sold to Advance Purchaser by Nationstar under the Receivables Sale Agreement and (2) which Additional Deferred Servicing Fee Receivables arise when servicing fees that were sold to Advance Purchaser by Nationstar under the Purchase Agreement become Deferred Servicing Fee Receivables (or, after the related MSR Transfer Date, are earned by Advance Purchaser, as Servicer) and which aggregate Additional Receivables are sold and/or contributed by Advance Purchaser to the Depositor under the Receivables Sale Agreement and which aggregate Additional Receivables are sold and/or contributed by the Depositor to the Issuer under the Receivables Pooling Agreement.
Amounts Held for Future Distribution : As defined in Section 4.2(c) .
Applicable Law : As defined in Section 4.1 .
Applicable Rating : For each Class of Notes, the rating(s) specified as such for such Class in the related Indenture Supplement, if applicable.
Authenticating Agent : Any Person authorized by the Indenture Trustee to authenticate Notes under Section 11.11 .
Authorized Signatory : With respect to any entity, each Person duly authorized to act as a signatory of such entity at the time such Person signs on behalf of such entity.
Available Funds : (i) With respect to any Interim Payment Date, all Collections on the Receivables received during the related Advance Collection Period and deposited into the Collection and Funding Account and any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” for such Interim Payment Date, plus any amounts released from the Accumulation Accounts on such Interim Payment Date pursuant to Section 4.7(d) ; and (ii) with respect to any Payment Date, the sum of (A) all amounts on deposit in the Fee Accumulation Account, the Interest Accumulation Account and any Target Amortization Principal Accumulation Account ( provided that the amounts on deposit in the Target Amortization Principal Accumulation Account may only be used to pay the Target Amortization Amounts to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement) at the close of business on the last Interim Payment Date during the related Monthly Advance Collection Period plus (B) all Collections received during the final Advance Collection Period during the immediately preceding Monthly Advance Collection Period and deposited into the Collection and Funding Account (in each case, adjusted to reflect all deposits and payments on any Funding Date that may occur after the end of such Advance Collection Period, but prior to such Payment Date or Interim Payment Date, and not including any such funds required to be returned to a VFN Noteholder pursuant to this Indenture due to
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any failure to utilize amounts provided by such VFN Noteholder to use amounts drawn hereunder in a manner permitted hereby), plus (C) any proceeds received by the Issuer under any Supplemental Credit Enhancement Agreement for any Class of Notes ( provided that such proceeds may only be used to pay amounts due to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement), plus (D) any income from Permitted Investments in Trust Accounts that have been established for the benefit of all Series of Notes, plus (E) if such Payment Date occurs during the Full Amortization Period, the amounts on deposit in (or credited thereto) each Sinking Fund Account, plus (F) any proceeds received by the Issuer under any Derivative Agreement for any Class of Notes (provided that such proceeds may only be used to pay amounts due to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement and for so long as such Classes of Notes are not repaid in full or refinanced) plus (G) any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” for such Payment Date.
Bankruptcy Code : The Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et seq. , as amended.
Book-Entry Notes : A note registered in the name of the Depository or its nominee, ownership of which is reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly or as an indirect participant in accordance with the rules of such Depository); provided , that after the occurrence of a condition whereupon Definitive Notes are to be issued to Note Owners, such Book-Entry Notes shall no longer be “Book-Entry Notes.”
Borrowing Capacity : For any VFN on any date, the difference between (i) the related Maximum VFN Principal Balance on such date and (ii) the related VFN Principal Balance on such date.
Business Day : For any Class of Notes, any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, Kansas City, Missouri, Lewisville, Texas, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
Calculation Agent : The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as calculation agent pursuant to the terms of this Indenture.
Cease Pre-Funding Notice : As defined in Section 4.3(c) .
Certificate of Authentication : The certificate of the Indenture Trustee, the form of which is described in Section 5.3 , or the alternative certificate of the Authenticating Agent, the form of which is described in Section 11.11 .
Class : With respect to any Notes, the class designation assigned to such Note in the related Indenture Supplement. A Series issued in one class, with no class designation in the related Indenture Supplement, may be referred to herein as a “Class.”
Class 1 Specified Notes : Any Class of Note with respect to which the Issuer does not receive an opinion of nationally recognized tax counsel on the related Issuance Date that such Class of Notes “will” be treated as indebtedness for U.S. federal income tax purposes and that is designated as a Class 1 Specified Note in the related Indenture Supplement.
Class 2 Specified Notes : Any Class of Note with respect to which the Issuer does not receive an opinion of nationally recognized tax counsel on the related Issuance Date that such Class of Notes “will” be treated as indebtedness for U.S. federal income tax purposes and that is not designated as a Class 1 Specified Note in the related Indenture Supplement.
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Class Invested Amount : For any Class of Notes on any date, an amount equal to (i) the sum of (A) the outstanding Note Balance of such Class, plus (B) the aggregate outstanding Note Balances of all Classes within the same Series that are senior to or pari passu with such Class on such date, divided by (ii) the Weighted Average CV Adjusted Advance Rate in respect of such Class (after giving effect to amounts collected on the Receivables as of such date).
Clearing Corporation : As defined in Section 8-102(a)(5) of the UCC.
Closing Date : September 19, 2013.
Code : The Internal Revenue Code of 1986, as amended.
Collateral : As defined in the Granting Clause.
Collateral Performance Test : A collateral performance benchmark or similar test or “trigger” in a Designated Servicing Agreement, the failure of which results in the occurrence of a Servicer Termination Event pursuant to the terms of such Designated Servicing Agreement.
Collateral Test : A test designed to measure, on any date of determination, whether each Series of Notes is adequately collateralized on such date and the satisfaction of which is achieved on any date of determination if, with respect to each Series the sum of:
(1) the aggregate Advance Type Amounts for each Advance Type of Receivables for such Series that has a non-zero Advance Rate;
(2) the product of the Series Allocation Percentage and all Collections on deposit in the Trust Accounts (other than the Series Reserve Account for such Series and the Sinking Fund Account for such Series, if applicable) on such date (after giving effect to any required payments on such date, if any) and
(3) if such Series has any Sinking Fund Accounts, the aggregate amounts on deposit in such Sinking Fund Accounts shall be greater than or equal to the Series Invested Amount for such Series on such date (after giving effect to any required payments on such date, if any).
Collateral Value : For any Receivable and for any Series on any date, the product of (i) the Receivable Balance of such Receivable and (ii) the lesser of (A) the highest Advance Rate applicable to the Advance Type of such Receivable in respect of any Class within such Series, and (B) the highest Trigger Advance Rate (if any) for any Class within such Series; provided , that the Collateral Value shall be zero for any Receivable that is not a Facility Eligible Receivable, unless otherwise provided in the related Indenture Supplement.
Collection and Funding Account : The segregated trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee for the NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Collection and Funding Account.”
Collections : The amount of Advance Reimbursement Amounts, cash collected in reimbursement or payment of Receivables in the Trust Estate, during each Advance Collection Period, plus the proceeds of any Permitted Refinancing or of any Indemnity Payments.
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Control , Controlling or Controlled : The possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
Corporate Advance : Collectively, (i) any advance made by the Servicer (including any predecessor servicer) and reimbursable to the Servicer pursuant to a Designated Servicing Agreement, to inspect, protect, preserve or repair properties that secure Mortgage Loans or that have been acquired through foreclosure or deed in lieu of foreclosure or other similar action pending disposition thereof, or for similar or related purposes, including, but not limited to, necessary legal fees and costs expended or incurred by the Servicer (including any predecessor servicer) in connection with foreclosure, bankruptcy, eviction or litigation actions with or involving Obligors on Mortgage Loans, as well as costs to obtain clear title to such a property, to protect the priority of the lien created by a Mortgage Loan on such a property, and to dispose of properties taken through foreclosure or by deed in lieu thereof or other similar action, (ii) any advance made by the Servicer (including any predecessor servicer) pursuant to a Designated Servicing Agreement to foreclose or undertake similar action with respect to a Mortgage Loan, and (iii) any other out of pocket expenses incurred by the Servicer (including any predecessor servicer) pursuant to a Designated Servicing Agreement (including, for example, costs and expenses incurred in loss mitigation efforts and in processing assumptions of Mortgage Loans).
Corporate Advance Receivable : Any Receivable representing the right to be reimbursed for a Corporate Advance.
Corporate Advance Reimbursement Amount : Any amount collected under any Designated Servicing Agreement from Mortgage Loan Obligors or otherwise, which amount, by the terms of such Designated Servicing Agreement, is payable to the Servicer to reimburse Corporate Advances disbursed by the Servicer (or any predecessor servicer).
Corporate Trust Office : For each Series of Notes, as specified in the related Indenture Supplement.
Cumulative Interest Shortfall Amount : For any Payment Date and any Class of Notes, any portion of the Interest Payment Amount for that Class for a previous Payment Date that has not been paid, plus accrued and unpaid interest at the applicable Note Interest Rate on such shortfall from the Payment Date on which the shortfall first occurred through the current Payment Date.
Custodial Account : For each Mortgage Pool, the segregated, non-commingled account or accounts, specified in the related Designated Servicing Agreement, into which the Servicer is required to deposit Collections with respect to the Mortgage Loans serviced under that Designated Servicing Agreement, which may be called a “Certificate Account,” a “Custodial Account,” a “Custodial P&I Account,” a “Principal and Interest Account” or be known by another name specified in the related Designated Servicing Agreement.
Custodian : As defined in Section 2.4(a) .
Cut-off Date : September 19, 2013.
Default Rate : For any Series or Class of Notes, the sum (expressed as a percentage) of the Note Interest Rate for such Class and a per annum percentage specified in the related Indenture Supplement.
Defaulting Counterparty Termination Payments : Any Early Termination Amount payable to the Derivative Counterparty under the related Derivative Agreement as the result of the designation of an “Early Termination Date” under such Derivative Agreement due to either (x) the occurrence of an Event
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of Default with respect to which the related Derivative Counterparty is the Defaulting Party or (y) an Additional Termination Event with respect to which such Derivative Counterparty is the sole Affected Party. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the related Derivative Agreement.
Deferred Servicing Fee : The right to payment for accrued but unpaid servicing fees earned by the Servicer (or any predecessor servicer) that are accrued and unpaid on the related monthly remittance date following the related due date but not to exceed the pro rata portion of such servicing fees that have been sold by Nationstar to Advance Purchaser pursuant to the Purchase Agreement.
Deferred Servicing Fee Receivable : Any Receivable representing the right to receive payment for any Deferred Servicing Fee pursuant to the terms and provisions of a Designated Servicing Agreement.
Definitive Note : A Note issued in definitive, fully registered form evidenced by a physical Note.
Depositor : NRZ Servicer Advance Facility Transferor BC, LLC, a Delaware limited liability company, wholly owned by Advance Purchaser.
Depository : Initially, the Depository Trust Company, the nominee of which is Cede & Co., and any permitted successor depository. The Depository shall at all times be a Clearing Corporation.
Depository Agreement : For any Series or Class of Book-Entry Notes, the agreement among the Issuer, the Indenture Trustee and the Depository, dated as of the related Issuance Date, relating to such Notes.
Depository Participant : A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
Derivative Account : As defined in the related Indenture Supplement, if applicable.
Derivative Agreement : Any currency, interest rate or other swap, cap, collar, guaranteed investment contract or other derivative agreement entered into by the Issuer or the Indenture Trustee (at the direction of and on behalf of the Issuer) in connection with any Class or Series of Notes and identified in the related Indenture Supplement, if applicable.
Derivative Collateral Account : As defined in the related Indenture Supplement, if applicable.
Derivative Counterparty : Any party to any Derivative Agreement other than the Issuer or the Indenture Trustee, if applicable.
Designated Servicing Agreement : As of any date, any Servicing Agreement as to which the related Receivables have been sold and contributed prior to the Effective Date by Nationstar to Depositor, and as to which the related Nationstar Additional Advance Receivables are being sold by Nationstar to Advance Purchaser pursuant to the Receivables Sale Agreement and as to which the related Receivables are being sold and/or contributed by Advance Purchaser to the Depositor pursuant to the Receivables Sale Agreement and sold and/or contributed by the Depositor to the Issuer pursuant to the Receivables Pooling Agreement and pledged by the Issuer hereunder as part of the Trust Estate, which Servicing Agreement is listed on the Designated Servicing Agreement Schedule in accordance with Section 2.1(c) on such date.
Designated Servicing Agreement Schedule : As of any date, the list attached hereto as Schedule 1 , as it may be amended from time to time in accordance with Section 2.1(c) .
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Designation Date : The date that the Servicer (prior to the Effective Date) or the Administrator (after the Effective Date) designates a Facility Eligible Servicing Agreement as a Designated Servicing Agreement. Any Designated Servicing Agreement listed on any schedule hereto as of the initial Funding Date shall be deemed to have a “Designation Date” as of the initial Funding Date (or such other date as may be agreed to by the Administrative Agent).
Determination Date : In respect of any Payment Date or Interim Payment Date, the third Business Day before such Payment Date or Interim Payment Date.
Determination Date Report : A report delivered by the Administrator or the Sub-Administrator on behalf of the Administrator as described in Section 3.2(a) , which shall be delivered in the form of one or more electronic files.
Disbursement Report : As defined in Section 4.3(e) .
Distribution Compliance Period : In respect of any Regulation S Global Note or Regulation S Definitive Note, the forty (40) consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S under the Securities Act) pursuant to Regulation S and (b) the Issuance Date for such Notes.
Effective Date : Has the meaning set forth in the Preamble.
Eligible Account : Any of (a) an account or accounts maintained with a depository institution with a short-term rating of at least “A-1” by S&P, (or a long-term rating of at least “A” if the short-term rating is not available), and that is (i) a federal savings and loan association duly organized, validly existing and in good standing under the federal banking laws of the United States, (ii) a banking or savings and loan association duly organized, validly existing and in good standing under the applicable laws of any state, (iii) a national banking association duly organized, validly existing and in good standing under the federal banking laws of the United States, or (iv) a principal subsidiary of a bank holding company; or (b) a segregated trust account maintained in the trust department of a federal or state chartered depository institution or trust company in the United States, having capital and surplus of not less than $50,000,000, and meeting the rating requirements described in clause (a) above, acting in its fiduciary capacity.
Eligible Subservicer : An established mortgage servicer who (i) meets the criteria to be an eligible successor Servicer under the related Servicing Agreement(s), (ii) meets the minimum financial requirements of Fannie Mae and Freddie Mac approved servicers, (iii) with respect to any Subservicer other than in the case of Nationstar, has a servicer rating of at least “Average” from S&P, (iv) has been approved by the Administrative Agent in writing in its sole discretion (Nationstar having been so approved so long as it continues to meet the criteria in clauses (i) and (ii)) and (v) in the case of any Subservicer other than Nationstar, is subject to such financial tests and control tests and other ongoing tests for eligibility as are required by the Administrative Agent in its sole discretion.
Eligible Subservicing Agreement : A subservicing agreement that (i) has been approved by the Administrative Agent by signed instrument, (ii) that has not been assigned or amended without the Administrative Agent’s written consent, and (iii) is terminable only for cause. For the avoidance of doubt, any subservicing agreement documenting the division of servicing income, rights and responsibilities between Nationstar and Advance Purchaser before the related MSR Transfer Date shall be considered a Subservicing Agreement that is required to be an Eligible Subservicing Agreement, with Advance Purchaser as Servicer and Nationstar as Subservicer and reported as such, notwithstanding the fact that during this period Nationstar is the Servicer under the Designated Servicing Agreements; provided , that a written subservicing agreement which is an Eligible Subservicing Agreement with Nationstar as Subservicer is in place before the first MSR Transfer Date. The provisions in the Purchase Agreement that relate to servicing shall constitute an “Eligible Subservicing Agreement” as they are written as of the date hereof.
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Employee Benefit Plan : As defined in Section 6.5(k) .
Entitlement Order : As defined in Section 8-102(a)(8) of the UCC.
ERISA : The Employee Retirement Income Security Act of 1974, as amended.
Escrow Advance : An advance made by the Servicer (including any predecessor servicer) with respect to a Mortgage Loan pursuant to the Servicer’s obligation to do so under the related Designated Servicing Agreement, of real estate taxes and assessments, or of hazard, flood or primary mortgage insurance premiums, required to be paid (but not otherwise paid) by the related Obligor under the terms of the related Mortgage Loan.
Escrow Advance Receivable : Any Receivable representing the right to be reimbursed for an Escrow Advance.
Euroclear : Euroclear Bank S.A./N.V. as operator of the Euroclear System, and any successor thereto.
Event of Default : As defined in Section 8.1 .
Excess Cash Amount : On any Payment Date or Interim Payment Date, the amount of Available Funds remaining following the allocation and payments set forth pursuant to Sections 4.4(a) through (h) or Sections 4.5(a)(1)(i) through (x) , as applicable.
Excess Receivables Funding Amount : On any Funding Date, the amount that could be drawn on a VFN without violating the Collateral Test, after all the New Receivables Funding Amounts to be drawn on such VFN have been drawn.
Excess Servicing Fees : Current and future excess servicing compensation of Nationstar.
Excess Spread Purchasers : Collectively, certain affiliates of New Residential Investment Corp.
Exchange Act : The Securities Exchange Act of 1934, as amended.
Expected Repayment Date : For each Class of Notes, as specified in the related Indenture Supplement.
Expense Limit : With respect to expenses and indemnification amounts, for the Owner Trustee and the Indenture Trustee (in all its capacities), pro rata, $250,000 in any calendar year and $125,000 for any single Payment Date; and for other Administrative Expenses, $50,000 in any calendar year; provided that the Expense Limit shall only apply to distributions made pursuant to Section 4.5(a)(1)(i) and (ii) and Section 4.5(a)(2)(i) and (ii) ; and provided , further , that any amounts in excess of the Expense Limit that have not been paid pursuant to Section 4.5 may be applied toward and subject to the Expense Limit for the subsequent calendar year and payable in a subsequent calendar year.
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Facility Early Amortization Event : Any of the following conditions or events, which is not waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and 100% of the VFN Noteholders:
(i) the occurrence of any Event of Default;
(ii) following a Payment Date on which a draw is made on a Series Reserve Account, the amount on deposit in such Series Reserve Account is not increased back to the related Series Reserve Required Amount on or prior to the next Payment Date;
(iii) (A) any United States federal income tax is imposed on the Issuer as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes or any U.S. withholding tax is imposed on payments with respect to the Receivables or (B) a tax, ERISA, or other government lien, in any case, other than Permitted Liens, is imposed on the Receivables or any property of the Issuer or the Depositor;
(iv) failure of the Collateral Test at the end of any Advance Collection Period or at the close of business on the Determination Date for any Payment Date, Interim Payment Date or Funding Date (in each case assuming that all payments and fundings described in the reports delivered in respect of the related Determination Date are paid and funded), any date on which Additional Notes are issued, any date on which the VFN Principal Balance of any VFN is increased, any date on which a Designated Servicing Agreement is added to or removed from the Trust Estate, or any date on which a Receivable becomes ineligible by virtue of an Unmatured Default or notice of a threatened termination as described in clause (a)(A) of the definition of “Facility Eligible Servicing Agreement”, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of two (2) days; provided, however, that if such failure results solely (i) from Receivables no longer being Facility Eligible Receivables because of an Unmatured Default or a threatened termination, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of thirty (30) days following the Servicer’s Responsible Officer’s receipt of such notice of or obtaining such actual knowledge; (ii) from a reduction in aggregate Collateral Value as a result of the Weighted Average Advance Rate for such Series or Class being higher than the Trigger Advance Rate for such Series or Class, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of five (5) days; (iii) from the occurrence of a Ratings Reduction, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied ninety (90) days following the occurrence of such Ratings Reduction (provided, however, that if such failure results from the occurrence of a Ratings Reduction that causes Nationstar’s sub-prime servicer rating to be reduced below “Below Average” by S&P, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied thirty (30) days following the occurrence of such Ratings Reduction); (iv) from the occurrence of a Note Rating Reduction, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied thirty (30) days following the occurrence of such Note Rating Reduction; and (v) from an Other Advance Rate Reduction Event, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a number of days greater than or equal to the Other Advance Rate Reduction Event Cure Period following the occurrence of such Other Advance Rate Reduction Event;
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(v) the Receivables Seller fails to sell and/or contribute all Additional Receivables related to the Designated Servicing Agreements by the first Funding Date on or after the date that is thirty (30) days after the date upon which such Receivable was created ( provided that any Deferred Servicing Fee Receivable shall not be deemed “created” until the related servicing fee is accrued and unpaid on the related monthly remittance date following the related due date) and the Receivables Seller has actual knowledge of such failure;
(vi) the sale and/or contribution by the Servicer of Receivables in respect of any Mortgage Pool to any Person other than the Issuer other than pursuant to the terms and provisions of the Transaction Documents; or
(vii) the Receivables Seller’s status as an approved seller or the Servicer’s or the Subservicer’s status as an approved servicer of residential mortgages is terminated by either Fannie Mae or Freddie Mac; provided , however , that if the Receivables Seller, the Servicer or the Subservicer no longer sells or services mortgage loans, as the case may be, under the Fannie Mae or Freddie Mac loan programs, the Receivables Seller, the Servicer or the Subservicer, as applicable, is not required to maintain its status as an approved seller or approved servicer, respectively, of residential mortgage loans by Fannie Mae or Freddie Mac, as the case may be.
Facility Eligible Receivable : A Receivable which for the avoidance of doubt does not arise under an Ineligible Designated Servicing Agreement and which:
(i) which constitutes a “general intangible” or “payment intangible” within the meaning of Section 9-102(a)(42) or Section 9-102(a)(61) or, in the case of a Deferred Servicing Fee Receivable, an “account” within the meaning of Section 9-102(a)(2), as applicable (or the corresponding provision in effect in a particular jurisdiction) of the UCC as in effect in all applicable jurisdictions;
(ii) which is denominated and payable in United States dollars;
(iii) which arises under and pursuant to the terms of a Designated Servicing Agreement and, at the time the related Advance was made or the related Deferred Servicing Fee accrued, (A) was determined by the Servicer or Subservicer, as applicable, in good faith to (1) be ultimately recoverable from the proceeds of the related Mortgage Loan, related liquidation proceeds or otherwise from the proceeds of or collections on the related Mortgage Loan and (2) comply with all requirements for reimbursement or payment under, the related Servicing Agreement and as to which the Servicer has complied with all of the requirements for reimbursement under the related Servicing Agreement, and (B) was authorized pursuant to the terms of the related Designated Servicing Agreement;
(iv) as to which all right, title and interest in and to such Receivable (including good and marketable title) have been validly sold and/or contributed by the Receivables Seller to the Depositor, and validly sold and/or contributed by the Depositor to the Issuer and, prior to the related MSR Transfer Date, sold by the Servicer to the Receivables Seller;
(v) with respect to which no representation or warranty made by the Receivables Seller or the Servicer in the Receivables Sale Agreement has been breached, which breach has continued uncured past the time at which the Servicer or the Receivables Seller was required to pay the Indemnity Payment with respect thereto pursuant to the Receivables Sale Agreement;
(vi) with respect to which, as of the date such Receivable was acquired by the Issuer, none of the Receivables Seller, the Servicer, the Subservicer or the Depositor had (A) taken any action that would impair the right, title and interest of the Indenture Trustee therein, or (B) failed to take any action that was necessary to avoid impairing the Indenture Trustee’s right, title or interest therein;
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(vii) the Advance related to which either (A) has been fully funded by the Servicer (or any predecessor servicer) using its own funds and/or Amounts Held for Future Distribution (to the extent permitted under the related Designated Servicing Agreement) and/or Collections (as appropriate) in excess of the related Required Expense Reserve, and/or amounts drawn on Variable Funding Notes or out of funds in the Collection and Funding Account or Available Funds as provided herein, or (B) in the case of P&I Advances, will be funded on the related Funding Date and all amounts necessary to fund the related Advance are on deposit in an account under the exclusive control and direction of the Indenture Trustee pending remittance to the appropriate MBS Trustees;
(viii) Reserved .
(ix) in connection with any Deferred Servicing Fee Receivable, the provisions of the related Designated Servicing Agreement identified on Schedule 1 require that any unpaid and accrued servicing fees owed to the Servicer be repaid on or prior to the date of any redemption in full under the applicable Designated Servicing Agreement except to the extent the Servicer or servicers are required to consent to or initiate termination and have agreed to repay all unpaid and accrued servicing fees at the time of redemption in full (such securitization trusts related to such Designated Servicing Agreements listed on Schedule 2 (as the same may be updated from time to time pursuant to Section 2.2(c) ); provided , that the Receivables related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 3 (as the same may be updated from time to time pursuant to Section 2.2(c) ) shall not be Facility Eligible Receivables if the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 3 of such securitization trust’s cut-off date balance;
(x) any Deferred Servicing Fee Receivable relates to a Designated Servicing Agreement identified on Schedule 1 ;
(xi) the Servicing Agreement related to such Receivable (other than any Deferred Servicing Fee Receivable), unless arising under a Whole Loan Servicing Agreement, provides for reimbursement to the Servicer in respect of the related Advance upon termination of the related securitization trust ahead of (or simultaneously with) the related securityholders, except to the extent the Servicer or servicers are required to consent to or initiate termination and have agreed to reimburse all Advances at the time of termination (such securitization trusts related to such Designated Servicing Agreements listed on Schedule 2 (as the same may be updated from time to time pursuant to Section 2.2(c) ) and except that Receivables arising under the Designated Servicing Agreements listed on Schedule 3 shall be Facility Eligible Receivables subject to the limitations on their Collateral Value set forth in any Indenture Supplement;
(xii) such Receivable, if arising under a Whole Loan Servicing Agreement, provides for reimbursement or repayment to the Servicer in respect of the related Advance or Deferred Servicing Fee in full at the time the servicing of such Mortgage Loan is transferred out of such Servicing Agreement such that it is no longer subject to such Servicing Agreement;
(xiii) the Designated Servicing Agreement related to such Receivable provides that all Advances as to a Mortgage Loan are reimbursed on a “first-in, first out” or “FIFO” basis, such that the Advances of a particular type that were disbursed first in time will be reimbursed prior to Advances of the same type with respect to that Mortgage Loan that were disbursed later in time;
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(xiv) the Designated Servicing Agreement related to such Receivable includes an express provision for the assignment by the Servicer of its rights to be reimbursed for Advances; and, if such Receivable is a Deferred Servicing Fee Receivable, the related Designated Servicing Agreement does not prohibit the sale and/or contribution to the Issuer of, specifically, the rights to payment for the Deferred Servicing Fees with respect to the related Mortgage Pool (as determined in the sole and absolute discretion of the Administrative Agent); and
(xv) which arises in the Servicer’s capacity as a primary servicer of the related Mortgage Loan (regardless of whether the Servicer’s labeled capacity is “master servicer” or otherwise under the related Designated Servicing Agreement).
Facility Eligible Servicing Agreement : As of any date of determination, any Designated Servicing Agreement which meets the following criteria (and for the avoidance of doubt, which is not an Ineligible Designated Servicing Agreement):
(i) Nationstar (prior to the related MSR Transfer Date) and Advance Purchaser (from and after the related MSR Transfer Date) is the servicer (or, subject to satisfaction of the criteria below, subservicer) under such Servicing Agreement and has not resigned as Servicer hereunder, and a Responsible Officer of the Servicer has received neither of the following from any security holder or counterparty thereto or any person with, in any case, authority to terminate the Servicer thereunder (A) any notice, or otherwise obtained actual knowledge, of the occurrence of any Unmatured Default or Servicer Termination Event by or with respect to the Servicer under such Servicing Agreement except (i) to the extent that, in the case of an Unmatured Default, such Unmatured Default has been cured prior to its becoming a Servicer Termination Event, and (ii) any Unmatured Default or Servicer Termination Event caused solely by the failure of a Collateral Performance Test or a Servicer Ratings Downgrade for which the Servicer shall not have received a written notice of pending termination, nor (B) threatened termination of the Servicer in writing related to any default existing for thirty (30) or more days by the Servicer under such Servicing Agreement;
(ii) pursuant to the terms of such Servicing Agreement:
(A) under such agreement, the Servicer is permitted to reimburse itself for the related Advance or, solely with respect to Deferred Servicing Fee Receivables, pay itself for the related Deferred Servicing Fee out of late collections of the amounts advanced or fees deferred, including from insurance proceeds and liquidation proceeds from the Mortgage Loan with respect to which such Advance was made or Deferred Servicing Fee was accrued, prior to any holders of any notes, certificates or other securities backed by the related mortgage loan pool or any other owner of or investor in the Mortgage Loan, and prior to payment of any party subrogated to the rights of the holders of such securities (such as a reimbursement right of a credit enhancer) or any hedge or derivative termination fees, or to any related Mortgage Pool or any related trustee, custodian, hedge counterparty or credit enhancer; provided, that reimbursement of any Advance with respect to a Second-Lien Receivable shall be subject to any first lien on the related Mortgaged Property or REO Property, as applicable, under which such Advance arises;
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(B) under such agreement, if the Servicer determines that an Advance or Deferred Servicing Fee will not be recoverable out of late collections of the amounts advanced or, solely with respect to Deferred Servicing Fee Receivables, fees deferred or out of insurance proceeds or liquidation proceeds from the Mortgage Loan with respect to which the Advance was made or Deferred Servicing Fee was accrued, the Servicer has the right to reimburse or pay itself for such Advance or Deferred Servicing Fee out of any funds (other than prepayment charges) in the Custodial Account or out of general collections received by the Servicer with respect to any Mortgage Loans serviced under the same Designated Servicing Agreement, prior to any payment to any holders of any notes, certificates or other securities backed by the related mortgage loan pool or any other owner of or investor in the Mortgage Loan, and prior to payment of any party subrogated to the rights of the holders of such securities (such as a reimbursement right of a credit enhancer) or any hedge or derivative termination fees, or to the related Mortgage Pool or any related trustee, custodian or credit enhancer (a “ General Collections Backstop ”), except that this clause (ii)(B) shall not apply to Loan-Level Receivables;
(iii) all Receivables arising under such Servicing Agreement are free and clear of any Adverse Claim in favor of any Person (other than any Permitted Lien) and the related MBS Trustee or other owner or investor and, if required by the related Designated Servicing Agreement, any related monoline insurer or other credit enhancement provider shall have been delivered a notice substantially in the form of Exhibit C attached hereto signed by the Servicer;
(iv) the Designated Servicing Agreement is in full force and effect;
(v) if the Servicer (including for this purpose Nationstar prior to the MSR Transfer Date) engages a Subservicer (not including Nationstar prior to the related MSR Transfer Date) in connection with such Designated Servicing Agreement (whether in effect on the initial Issuance Date or arising or entered into thereafter) to perform collections on the Mortgage Loans and administer the making and reimbursement of the related Advances and various related tasks, (a) the Servicer continues to fund the Advances thereunder in a manner consistent herewith and the Servicer continues to account for the Advances in the same manner that the Servicer does under Designated Servicing Agreements where there are no Subservicers, (b) the Servicer shall have provided notice to the Note Rating Agencies of such subservicing agreement, (c) either such Subservicer is an Eligible Subservicer or no more than thirty (30) days have passed since such Subservicer ceased to be an Eligible Subservicer and (d) the Administrative Agent shall have provided written consent to the subservicing arrangement (which may withheld in its sole and absolute discretion) following which consent such Designated Servicing Agreement and such subservicing arrangement will be specified on Schedule 5 hereto;
(vi) an Eligible Subservicing Agreement is in full force and effect for all mortgage loans serviced by the Servicer under such Designated Servicing Agreement, and the related Subservicer is an Eligible Subservicer and is in compliance with such Subservicing Agreement and, from and after the related MSR Transfer Date, Nationstar or another servicer acceptable to the Administrative Agent, shall be serving as “hot back-up servicer” for Advance Purchaser under an agreement approved by the Administrative Agent; provided , that prior to the MSR Transfer Date for any Designated Servicing Agreement, this requirement is satisfied if Nationstar is the Servicer under such Designated Servicing Agreement and Nationstar meets the criteria of “Eligible Subservicer” as described herein that are required to be satisfied by Nationstar;
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(vii) the Servicing Agreement arises under and is governed by the laws of the United States or a State within the United States;
(viii) the Servicer has not voluntarily elected to change the reimbursement mechanics of Advances or payment mechanics for Deferred Servicing Fees under such Servicing Agreement from a pool-level reimbursement mechanic or payment mechanic to a loan-level reimbursement mechanic or payment mechanic or from a loan-level reimbursement mechanic or payment mechanic to a pool-level reimbursement mechanic or payment mechanic without consent of the Administrative Agent; and
(ix) in the case of Servicing Agreements identified on Schedule 4 hereto, a Servicing Agreement is a Facility Eligible Servicing Agreement only if the unpaid principal balance of the related Mortgage Loans that are 90 or more days delinquent or that are related to REO Properties or Mortgaged Properties in foreclosure is less than the overcollateralization that provides enhancement for the Senior Classes (as such term is defined in the related Servicing Agreement) identified in such Servicing Agreement.
In addition, for a subservicing agreement (pursuant to which the Servicer is acting as a subservicer) to be a Facility Eligible Servicing Agreement, the subservicing agreement and the related servicing or master servicing agreement must provide that: (1) the Servicer, as subservicer, under such agreement, is required to make all Advances or accrue Deferred Servicing Fees on Mortgage Loans subserviced by a Servicer; (2) the Servicer, as subservicer under such agreement, is entitled to reimbursement or payment from all permitted sources under the related Servicing Agreement; (3) the related primary or master servicer agrees to remit to the Servicer, as subservicer, within two (2) Business Days of receipt thereof, any collections and reimbursements of P&I Advances, Corporate Advances and Escrow Advances or payments for Deferred Servicing Fees it receives, without set-off; and (4) the related primary or master servicer agrees to reasonably cooperate with the Servicer, as subservicer, to obtain reimbursement or payment of P&I Advances, Deferred Servicing Fees, Corporate Advances and Escrow Advances including, if either of such primary or master servicer or the Servicer, as subservicer, is terminated, by seeking immediate reimbursement or payment therefor from the successor servicer or, failing that, on a first-in-first-out basis.
Facility Entity : As defined in Section 9.5(i) .
Facility Year : A period beginning on the Closing Date or any anniversary of the Closing Date, and ending on the next anniversary of the Closing Date.
Fannie Mae : The Federal National Mortgage Association (commonly known as Fannie Mae), and its successors.
FDIC : The Federal Deposit Insurance Corporation, and its successors.
Fee Accumulation Account : The segregated trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Fee Accumulation Account.”
Fee Accumulation Amount : With respect to each Interim Payment Date, the aggregate amount of Fees, plus any Series Fees, up to the Series Fee Limit, plus any Undrawn Fees, due and payable on the next Payment Date plus any expenses (including indemnities) payable on the next Payment Date pursuant to Section 4.5(a)(1)(i) or (ii) or Section 4.5(a)(2)(i) or (ii) that have been invoiced or noticed to the Indenture
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Trustee and the Administrator prior to the Determination Date for such Interim Payment Date, minus amounts already on deposit in the Fee Accumulation Account (assuming for this purpose that the aggregate VFN Principal Balance remains unchanged from the Determination Date for such Interim Payment Date through the end of the then-current Interest Accrual Period).
Fee Letter : For any Series, as defined in the related Indenture Supplement, if applicable.
Fees : Collectively, with respect to any Interest Accrual Period, the Indenture Trustee Fee, the Owner Trustee Fee and the Verification Agent Fee.
Final Payment Date : For any Class of Notes, the earliest of (i) the Stated Maturity Date for such Class, (ii) after the end of the related Revolving Period, the Payment Date on which the Note Balance of the Notes of such Class has been reduced to zero, and (iii) the Payment Date which follows the Payment Date on which all proceeds of the sale of the Trust Estate are distributed pursuant to Section 8.6 .
Financial Asset : As defined in Section 8-102(a)(9) of the UCC.
Fitch : Fitch Ratings, Inc., or any successor thereto.
Freddie Mac : The Federal Home Loan Mortgage Corporation (commonly known as Freddie Mac), and its successors.
Full Amortization Period : For all Series of Notes, the period that begins upon the occurrence of a Facility Early Amortization Event and ends on the date on which the Notes of all Series are paid in full.
Funded Advance Receivable Balance : On any date (i) for Facility Eligible Receivables included in the Trust Estate, the aggregate of the Receivable Balances of such Facility Eligible Receivables minus the portion of aggregate P&I Advances that were funded using Amounts Held for Future Distribution which have not yet been restored by the Servicer to the related Custodial Account and (ii) for any particular Designated Servicing Agreement on any date, the aggregate balance of all Facility Eligible Receivables outstanding under such Servicing Agreement minus the portion thereof that was funded using Amounts Held for Future Distribution which have not yet been restored by the Servicer to the related Custodial Account.
Funding Certification : A report delivered by the Administrator in respect of each Funding Date pursuant to Section 4.3(a) .
Funding Conditions : With respect to any proposed Funding Date, the following conditions:
(i) no breach of the Collateral Test shall exist following the proposed funding;
(ii) no breach of representation, warranty or covenant of the Receivables Seller, the Servicer, the Administrator, the Depositor or the Issuer, or with respect to the Receivables, hereunder or under any Transaction Document, shall exist;
(iii) no Funding Interruption Event or Facility Early Amortization Event shall have occurred and be continuing;
(iv) (A) with respect to any Funding Date which will be a VFN Draw Date, the Administrator or the Sub-Administrator on behalf of the Administrator shall have provided the Indenture Trustee, no later than 12:00 p.m. (noon) New York City time on the second (2 nd )
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Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Determination Date Report reporting information with respect to the Receivables in the Trust Estate and demonstrating the satisfaction of the Collateral Test, and no later than 1:00 p.m. New York City time on the second (2 nd ) Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Funding Certification certifying that all Funding Conditions have been satisfied and (B) with respect to any Funding Date which is not a VFN Draw Date, the Administrator or the Sub-Administrator on behalf of the Administrator shall have provided the Indenture Trustee, no later than 12:00 p.m. (noon) New York City time on the Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Determination Date Report reporting information with respect to the Receivables in the Trust Estate and demonstrating the satisfaction of the Collateral Test, and no later than 1:00 p.m. New York City time on the Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Funding Certification certifying that all Funding Conditions have been satisfied;
(v) the full amount of the Required Expense Reserve shall be on deposit in the Collection and Funding Account, before and after the release of cash from such account to fund the purchase price of Receivables;
(vi) no Servicer Termination Event shall have occurred with respect to the Servicing Agreement related to any Receivable to be funded and no Subservicer Termination Event shall have occurred with respect to any related Subservicing Agreement; provided , that the breach of a Collateral Performance Test as it relates to the performance of the related mortgage loans, shall not be considered a Servicer Termination Event or a Subservicer Termination Event for purposes of this clause (vi) unless the Servicer or Subservicer shall have received a written notice of pending termination; provided , further , that a Servicer Ratings Downgrade shall not be considered a Servicer Termination Event or a Subservicer Termination Event for purposes of this clause (vi) unless the Servicer or Subservicer shall have received a written notice of pending termination; provided, further, that the failure to satisfy this clause (vi) shall only affect the Receivables arising under the related Servicing Agreement and shall not result in a failure of the Funding Conditions generally;
(vii) on any Funding Date that is an Interim Payment Date or Limited Funding Date, after giving effect to the transfers on such Funding Date contemplated by Section 4.3(f) , the Interest Accumulation Amount is on deposit in the Interest Accumulation Account, the Fee Accumulation Amount is on deposit in the Fee Accumulation Account, the Target Amortization Principal Accumulation Amount, if any, is on deposit in the Target Amortization Principal Accumulation Account and the Series Reserve Required Amount is on deposit in the Series Reserve Account for each Series;
(viii) the payment of the New Receivables Funding Amount in connection with the related sale of Additional Receivables on such Funding Date or the drawing on any VFNs shall not result in a material adverse United States federal income tax consequence to the Trust Estate or any Noteholders;
(ix) the related Advances shall have been fully funded out of the Servicer’s own funds and/or Amounts Held for Future Distribution under the related Designated Servicing Agreement (if permitted under the related Designated Servicing Agreement), and, if a P&I
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Advance subject to same-day pre-funding, shall be on deposit in a disbursement account under the exclusive control and direction of the Indenture Trustee pending remittance to the related MBS Trustee; it being understood that the Indenture Supplement may specify conditions, in addition to the Funding Conditions, that must be met before draws may be made on a VFN issued under such Indenture Supplement;
(x) the Verification Agent is PricewaterhouseCoopers LLP, or if PricewaterhouseCoopers LLP (x) resigns as Verification Agent and not more than thirty (30) days have passed since such resignation, (y) resigns as Verification Agent and more than thirty (30) days have passed since such resignation and the Servicer is using commercially reasonable efforts to hire a replacement Verification Agent or (z) is terminated by the Receivables Seller, the Depositor or the Issuer, the Administrator has selected a successor verification agent and the Administrative Agent has approved such successor verification agent (such approval not to be unreasonably withheld or delayed) and such successor verification agent has assumed the Verification Agent’s duties;
(xi) in connection with any request for funding of Deferred Servicing Fee Receivables, the Servicer has paid to each Excess Spread Purchaser the amount of all accrued servicing fees under any Designated Servicing Agreements that have been sold to an Excess Spread Purchaser, and that, without duplication, the Servicer has paid all amounts required to be paid to any Excess Spread Purchasers, any assignee or any other party in connection with any Excess Servicing Fees that relate to any Designated Servicing Agreements under this Indenture and that any Deferred Servicing Fee Receivables arising under such Designated Servicing Agreements are not subject to any Adverse Claim other than Permitted Liens;
(xii) in connection with any request for funding of Deferred Servicing Fee Receivables, the Servicer has provided an updated, executed disclaimer substantially in the form of Exhibit H that has been agreed to and accepted by the related Excess Spread Purchasers or any other party that may have an interest in the Excess Servicing Fees that relate to any Deferred Servicing Fees arising under any Designated Servicing Agreements, which disclaimer shall be dated as of date no more than 30 days prior to the proposed Funding Date. Unless and until the Servicer delivers such a disclaimer to the Administrative Agent, no additional Deferred Servicing Fee Receivables shall be eligible for financing under this Indenture and accordingly, shall not (i) be transferred to the Depositor or (ii) constitute “Receivables” for purposes of the Receivables Sale Agreement and related Transaction Documents; and
(xiii) in connection with the initial Funding Date, the Administrative Agent shall have received (a) the initial schedules to this Indenture identifying (1) the initial Designated Servicing Agreements and (2) the categorization of such Designated Servicing Agreements (as approved by the Administrative Agent in its sole discretion), (b) the Assignment of Receivables documenting transfer of Receivables by the Receivables Seller to the Depositor substantially in the form set forth on Schedule 1 of the Receivables Sale Agreement and (c) the Assignment of Receivables documenting the transfer of Receivables by the Depositor to the Issuer substantially in the form set forth on Schedule 1 of the Receivables Pooling Agreement.
Funding Date : Any Payment Date, Interim Payment Date or Limited Funding Date during the Revolving Period for such Series occurring at a time when no Facility Early Amortization Event shall have occurred and shall be continuing; provided , that the Administrator or the Sub-Administrator on behalf of the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) for such date.
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Funding Interruption Event : The occurrence of an event which with the giving of notice or the passage of time, or both, would constitute a Facility Early Amortization Event.
GAAP : U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of Nationstar, Advance Purchaser and their respective subsidiaries; provided that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
Grant : Pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Indenture. A Grant of collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of such collateral or other agreement or instrument and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Increased Costs : The amounts described in the related Indenture Supplement, if applicable.
Increased Costs Limit : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Indemnity Payment : With respect to any Receivable in respect of which a payment is required to be made by the Issuer, the Depositor or the Receivables Seller under Section 2.3 of this Indenture, the Receivables Pooling Agreement or the Receivables Sale Agreement, and as of the Payment Date on which the “Indemnity Payment” must be made, the Receivable Balance of such Receivable as of such Payment Date.
Indenture : As defined in the Preamble.
Indenture Supplement : With respect to any Series of Notes, a supplement to this Indenture, executed and delivered in conjunction with the issuance of such Notes pursuant to Section 6.1 , together with any amendment to the Indenture Supplement executed pursuant to Section 12.1 or 12.2, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee : The Person named as the Indenture Trustee in the Preamble until a successor Indenture Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Indenture Trustee” means and includes each Person who is then an Indenture Trustee hereunder.
Indenture Trustee Authorized Officer : With respect to the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary, any officer of the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary assigned to its corporate trust services, including any vice president, assistant vice president, assistant treasurer or trust officer customarily performing functions with respect to corporate trust matters and, with respect to a particular corporate trust matter under this Indenture, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case, having direct responsibility for the administration of this Indenture.
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Indenture Trustee Fee : The fee payable to the Indenture Trustee hereunder on each Payment Date for services rendered under this Indenture, which shall be equal to $6,666.66 per month; provided, that (A) to the extent that there is more than one (1) Payment Date in any given month, the Indenture Trustee Fee in such month shall include an additional $2,000 for each such additional Payment Date and (B) to the extent that there are more than five (5) Funding Dates in any given month, the Indenture Trustee Fee in such month shall include an additional $1,500 for each such additional Funding Date over five (5); provided , further , that the Indenture Trustee shall also be entitled to receive payment of separate fees and expenses pursuant to Section 11.6 in connection with tax filings made by the Indenture Trustee. Reimbursement for expenses incurred by the Indenture Trustee in connection with tax filings made by the Indenture Trustee shall be subject to the Expense Limit.
Independent Manager : (i) A natural person and (ii) a Person who (A) shall not have been at the time of such Person’s appointment, and may not have been at any time during the preceding five (5) years and shall not be as long as such Person is an Independent Manager of the Depositor (1) a direct or indirect legal or beneficial owner in such entity or any of its Affiliates, (2) a member, officer, director, manager, partner, shareholder or employee of the Administrator or any of its managers, members, partners, subsidiaries, shareholders or Affiliates other than the Depositor or any Affiliate thereof that is intended to be structured as a “bankruptcy remote” entity (collectively, the “ Independent Parties ”), (3) a supplier to any of the Independent Parties, (4) a person controlling or under common control with any director, member, partner, shareholder or supplier of any of the Independent Parties or (5) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director or manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors or managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities; provided , that, notwithstanding the terms and provisions of clause (ii)(A)(1) immediately above, the indirect or beneficial ownership of membership interests of the Administrator through a mutual fund or similar diversified investment vehicle with respect to which the owner does not have discretion or control over the investments held by such diversified investment vehicle shall not preclude such owner from being an Independent Manager.
Index : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Ineligible Designated Servicing Agreement : Any Designated Servicing Agreement listed on Schedule 7 hereto.
Initial Collection Account : An Eligible Account in the name of the Indenture Trustee, in which no other amounts other than as set forth in Section 4.2(a) may be deposited, which amounts shall be transferred within one (1) Business Day of deposit to the Collection and Funding Account.
Initial Note Balance : For any Note or for any Class of Notes, the Note Balance of such Note upon the related Issuance Date as specified in the related Indenture Supplement.
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Initial Receivables : The Receivables sold and/or contributed by Nationstar, as Receivables Seller, to the Depositor on the Closing Date pursuant to the Receivables Sale Agreement, and further sold and/or contributed by the Depositor to the Issuer on the Closing Date pursuant to the Receivables Pooling Agreement, and Granted by the Issuer to the Indenture Trustee for inclusion in the Trust Estate, and which consist of Receivables arising from (i) the making by the Receivables Seller of Advances with respect to the Designated Servicing Agreements listed on the Designated Servicing Agreement Schedule or (ii) accrued Deferred Servicing Fees with respect to the Designated Servicing Agreements listed on the Designated Servicing Agreement Schedule as of the Closing Date.
Insolvency Event : With respect to a specified Person, (i) an involuntary case or other proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced against any Person or any substantial part of its property, or a petition shall be filed against such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the winding-up or liquidation of such Person’s business and (A) such case or proceeding shall continue undismissed and unstayed and in effect for a period of sixty (60) days or (B) an order for relief in respect of such Person shall be entered in such case or proceeding under such laws or a decree or order granting such other requested relief shall be granted; or (ii) the commencement by such Person of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due or the admission by such Person of its inability to pay its debts generally as they become due.
Insolvency Proceeding : Any proceeding of the sort described in the definition of Insolvency Event.
Interest Accrual Period : For any Class of Notes and any Payment Date, the period specified in the related Indenture Supplement.
Interest Accumulation Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Interest Accumulation Account.”
Interest Accumulation Amount : With respect to each Interim Payment Date, the sum of the Interest Payment Amount due and payable with respect to all Classes of Notes on the next succeeding Payment Date, plus all Cumulative Interest Shortfall Amounts as of the immediately preceding Payment Date, minus amounts then on deposit in the Interest Accumulation Account (assuming for this purpose that the aggregate VFN Principal Balance remains unchanged from the Determination Date for such Interim Payment Date through the end of its then-current Interest Accrual Period).
Interest Day Count Convention : For any Series or Class of Notes, the fraction specified in the related Indenture Supplement to indicate the number of days counted in an Interest Accrual Period divided by the number of days assumed in a year, for purposes of calculating the Interest Payment Amount for each Interest Accrual Period in respect of such Series or Class.
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Interest Payment Amount : For any Series or Class of Notes, as applicable and with respect to any Payment Date:
(i) for any Series or Class of Term Notes, the related Cumulative Interest Shortfall Amount plus the product of:
(A) the Note Balance as of the close of business on the preceding Payment Date;
(B) the related Note Interest Rate for such Series or Class and for the related Interest Accrual Period; and
(C) the Interest Day Count Convention specified in the related Indenture Supplement; and
(ii) for any Series or Class of Variable Funding Notes, the related Cumulative Interest Shortfall Amount plus the product of:
(A) the average daily aggregate VFN Principal Balance during the related Interest Accrual Period (calculated based on the average of the aggregate VFN Principal Balances on each day during the related Interest Accrual Period);
(B) the related Note Interest Rate for such Class during the related Interest Accrual Period; and
(C) the Interest Day Count Convention specified in the related Indenture Supplement.
Interested Noteholders : For any Class, any Noteholder or group of Noteholders holding Notes evidencing not less than 25% of the aggregate Voting Interests of such Class.
Interim Payment Date : With respect to any Series of Notes, up to ten (10) dates each calendar month that are agreed to between the Issuer and the Noteholders of the Variable Funding Notes, as specified in the Indenture Supplement. For the avoidance of doubt, no Interim Payment Dates shall occur during the continuance of a Facility Early Amortization Event.
Interim Payment Date Report : As defined in Section 3.2(c) .
Invested Amount : For any Series or Class of Notes, the related Series Invested Amount or Class Invested Amount, as applicable.
Investment Company Act : The Investment Company Act of 1940, as amended.
Issuance Date : For any Series of Notes, the date of issuance of such Series, as set forth in the related Indenture Supplement.
Issuer : Has the meaning set forth in the Preamble.
Issuer Affiliate : Any person involved in the organization or operation of the Issuer or an affiliate of such a person within the meaning of Rule 3a-7 promulgated under the Investment Company Act.
Issuer Amount : As defined in Section 4.3(e) .
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Issuer Authorized Officer : Any Director or any authorized officer of the Owner Trustee or the Administrator who may also be an officer or employee of Advance Purchaser, its managing member or an Affiliate of Advance Purchaser or its managing member.
Issuer Certificate : A certificate (including an Officer’s Certificate) signed in the name of an Issuer Authorized Officer, or signed in the name of the Issuer by an Issuer Authorized Officer. Wherever this Indenture requires that an Issuer Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be an employee of Advance Purchaser or an Affiliate.
Issuer Tax Opinion : With respect to any undertaking, an Opinion of Counsel to the effect that, for United States federal income tax purposes, (i) such undertaking will not result in the Issuer or the Trust Estate being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes, (ii) except in the case of Specified Notes, if any Notes are issued or deemed issued as a result of such undertaking, any Notes issued or deemed issued on such date that are outstanding for United States federal income tax purposes will be debt, and, if requested by the Administrative Agent, (iii) such undertaking will not cause the Noteholders or beneficial owners of Notes previously issued to be deemed to have sold or exchanged such Notes for federal income tax purposes under Section 1001 of the Code.
Judicial Corporate Advance : Any Corporate Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Corporate Receivable : Any Corporate Advance Receivable in respect of a Judicial Corporate Advance.
Judicial Deferred Servicing Fee : Any Deferred Servicing Fee in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Deferred Servicing Fee Receivable : Any Deferred Servicing Fee Receivable in respect of a Judicial Deferred Servicing Fee.
Judicial Escrow Advance : Any Escrow Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Escrow Receivable : Any Escrow Advance Receivable in respect of a Judicial Escrow Advance.
Judicial P&I Advance : Any P&I Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial P&I Receivable : Any P&I Advance Receivable in respect of a Judicial P&I Advance.
Judicial State : Each state or territory of the United States that is not a Non-Judicial State.
Limited Funding Date : With respect to any Series of Notes, up to ten (10) dates each calendar month that are agreed to between the Issuer and the Noteholders of the Variable Funding Notes, as specified in the Indenture Supplement.
Liquidity Facility : Any liquidity back-stop facility which may be utilized by a Noteholder of a Class to fund some or all of its disbursements on any such Class of the Notes.
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Liquidity Provider : With respect to any Series or Class of VFNs, any “Support Party” or similar entity as further described in the related Indenture Supplement and/or Note Purchase Agreement, as applicable.
Loan-Level Advance : An Advance that arises under a Designated Servicing Agreement that does not provide that the related Advance is reimbursable from general collections and proceeds of the entire related mortgage pool if such Advance is determined to be a Nonrecoverable Advance.
Loan-Level Deferred Servicing Fee : A Deferred Servicing Fee that arises under a Designated Servicing Agreement that does not provide that the related Deferred Servicing Fee is payable from general collections and proceeds of the entire related mortgage pool if such Deferred Servicing Fee is determined to be a Nonrecoverable Deferred Servicing Fee.
Loan-Level Receivable : A Receivable that is the right to reimbursement for a Loan-Level Advance or the right to payment for a Loan-Level Deferred Servicing Fee.
Majority Noteholders : With respect to any Series or Class of Notes or all Outstanding Notes, the Noteholders of greater than 50% of the Note Balance of the Outstanding Notes of such Series or Class or of Outstanding Notes, as the case may be, measured by Voting Interests in any case.
Margin : For any Class of Notes bearing interest at a floating rate, the fixed per annum rate that is added to the applicable Index to determine the Note Interest Rate for such Class for any Interest Accrual Period. The “Margin” for each Class of Notes is specified in the related Indenture Supplement.
Maximum VFN Principal Balance : For any VFN Class, the amount specified in the related Indenture Supplement.
MBS Trustee : A trustee or indenture trustee for a Mortgage Pool that is a securitization trust.
Monthly Advance Collection Period : With respect to any Payment Date, the period beginning on the Determination Date for the preceding Payment Date and ending at the close of business on the day before the Determination Date for the current Payment Date, except that, with respect to the initial Payment Date, the Monthly Advance Collection Period begins on the Cut-off Date and ends at the close of business on the day before the related Determination Date.
Monthly MBS Remittance Report : For any Mortgage Pool, the monthly report(s) prepared by the related servicer, master servicer, securities administrator or MBS Trustee and delivered to the related security holders detailing cash flows on the related Mortgage Loans and remittances to the related investors.
Month-to-Date Available Funds : With respect to any Interim Payment Date or any Payment Date, the aggregate amount of Collections deposited into the Collection and Funding Account during the period beginning on the day immediately succeeding the Payment Date prior to such Interim Payment Date or Payment Date and ending on such Interim Payment Date or Payment Date.
Moody’s : Moody’s Investors Service.
Mortgage : With respect to a Mortgage Loan, a mortgage, deed of trust or other instrument encumbering a fee simple interest in real property securing a Mortgage Note.
Mortgage Loan : A loan secured by a Mortgage on real property (including REO Property resulting from the foreclosure of the real property that had secured such loan), which loan has been transferred and assigned to an MBS Trustee and serviced by the Servicer for such MBS Trustee pursuant to a Servicing Agreement.
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Mortgage Note : The note or other evidence of the indebtedness of a mortgagor secured by a Mortgage under a Mortgage Loan and all amendments, modifications and attachments thereto.
Mortgage Pool : A trust or trust estate in which the Mortgage Loans being serviced by the Servicer pursuant to a Designated Servicing Agreement are held by the related MBS Trustee or a pool of Mortgage Loans being serviced under a Whole Loan Servicing Agreement that is a Facility Eligible Servicing Agreement.
Mortgaged Property : The interest in real property securing a Mortgage Loan as evidenced by the related Mortgage, together with improvements thereto securing a Mortgage Loan.
MSR : Mortgage Servicing Rights.
MSR Transfer Date : For any Designated Servicing Agreement, the date when all required consents and rating agency letters for a formal change of the named servicer under such Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, and Nationstar shall transfer to Advance Purchaser all of the servicing rights and obligations of Nationstar under such Designated Servicing Agreement, as evidenced by the related MSR Transfer Notice.
MSR Transfer Notice : A notice delivered by Advance Purchaser to the Indenture Trustee in the form attached hereto as Exhibit I .
Nationstar : Has the meaning set forth in the Preamble.
Nationstar Additional Advance Receivables : Each Advance Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created.
New Receivables Funding Amount : For any Funding Date and with respect to any amounts to be disbursed on any Funding Date, an amount equal to the sum of the Series New Receivables Funding Amounts for all Outstanding Series for all Additional Receivables to be funded on such Funding Date, subject to limitation by the amount of Available Funds and by the amount that may be drawn on any VFNs in respect of such Funding Date and subject to the satisfaction of all Funding Conditions; provided , however , that (1) in any event the aggregate New Receivables Funding Amount disbursed on any Funding Date shall be limited to an amount which may be disbursed without resulting in a violation of the Collateral Test, (2) no amounts may be drawn on VFNs on a Limited Funding Date, and (3) the New Receivables Funding Amount on a Limited Funding Date is limited to amounts then on deposit in the Collection and Funding Account minus the Required Expense Reserve.
Net Excess Cash Amount : On any Payment Date or Interim Payment Date, the amount of funds available to be distributed to the Depositor pursuant to Section 4.4(j) or Section 4.5(a)(1)(xii) or Section 4.5(a)(2)(vi) , as applicable.
New York UCC : The Uniform Commercial Code, as in effect in the State of New York.
Non-Judicial Corporate Advance : Any Corporate Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
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Non-Judicial Corporate Receivable : A Corporate Advance Receivable in respect of a Non-Judicial Corporate Advance.
Non-Judicial Deferred Servicing Fee : Any Deferred Servicing Fee in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial Deferred Servicing Fee Receivable : A Deferred Servicing Fee Receivable in respect of a Non-Judicial Deferred Servicing Fee.
Non-Judicial Escrow Advance : Any Escrow Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial Escrow Receivable : An Escrow Advance Receivable in respect of a Non-Judicial Escrow Advance.
Non-Judicial P&I Advance : Any P&I Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial P&I Receivable : A P&I Advance Receivable in respect of a Non Judicial P&I Advance.
Non-Judicial State : Each of the following: Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming. Additional Non-Judicial States may be designated from time to time pursuant to Section 12.1 .
Nonrecoverable Advance : An Advance that is determined to be “non-recoverable” from late collections or liquidation or other proceeds of the Mortgage Loan in respect of which such Advance was made.
Nonrecoverable Deferred Servicing Fee : A Deferred Servicing Fee that is determined to be “non-recoverable” from late collection or liquidation or other proceeds of the Mortgage Loan in respect of which such Deferred Servicing Fee was accrued.
Note or Notes : Any note or notes of any Class authenticated and delivered from time to time under this Indenture including, but not limited to, any Variable Funding Note.
Note Balance : On any date (i) for any Term Note, or for any Series or Class of Term Notes, as the context requires, the Initial Note Balance of such Term Note or the aggregate of the Initial Note Balances of the Term Notes of such Series or Class, as applicable, less all amounts paid to the Noteholder of such Term Note or Noteholders of such Term Notes with respect to principal, (ii) for any Variable Funding Note, its VFN Principal Balance on such date and (iii) for any other Note, as set forth in the related Indenture Supplement.
Note Interest Rate : For any Note, or for any Series or Class of Notes as the context requires, the interest rate specified, or calculated as provided in, the related Indenture Supplement; provided , that on any day on which a Facility Early Amortization Event shall have occurred and shall be continuing at the opening of business on such day, the Note Interest Rate for any Class of Notes shall equal the applicable Default Rate.
Note Owner : With respect to a Book Entry Note, the Person who is the owner of such Book Entry Note, as reflected on the books of the Depository, or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or as an indirect participant, in each case in accordance with the rules of such Depository) and with respect to any Definitive Notes, the Noteholder of such Note.
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Note Payment Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.8 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Note Payment Account.”
Note Purchase Agreement : An agreement with one or more initial purchasers or placement agents under which the Issuer will sell the Notes to such initial purchaser, or contract with such placement agent for the initial private placement of the Notes, in each case as further defined in the related Indenture Supplement.
Note Rating Agency : With respect to any Outstanding Class of Notes, each rating agency, if any, specified in the related Indenture Supplement. References to Note Rating Agencies or “each” or “any” Note Rating Agency in this Indenture refer to Note Rating Agencies that were engaged to rate any Notes issued under this Indenture, which Notes are still Outstanding.
Note Rating Reduction : As defined in the related Indenture Supplement, if applicable.
Note Register : As defined in Section 6.5 .
Note Registrar : The Person who keeps the Note Register specified in Section 6.5 .
Noteholder : The Person in whose name a Note is registered in the Note Register, except that, solely for the purposes of giving certain consents, waivers, requests or demands as may be specified in this Indenture, the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, the Receivables Seller or any Person that is an Affiliate of either or both of the Issuer and the Receivables Seller, shall not be taken into account in determining whether the requisite percentage necessary to effect any such consent, waiver, request or demand shall have been obtained. The Indenture Trustee shall have no responsibility to count any Person as a Noteholder who is not permitted to be so counted hereunder pursuant to the definition of “ Outstanding ” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is an Affiliate of either or both of the Issuer and Receivables Seller.
Noteholders’ Amount : As defined in Section 4.3(e) .
Obligor : Any Person who owes or may be liable for payments under a Mortgage Loan.
Officer’s Certificate : A certificate signed by an Issuer Authorized Officer and delivered to the Indenture Trustee. Wherever this Indenture requires that an Officer’s Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be an employee of the Receivables Seller or the Servicer.
Opinion of Counsel : A written opinion of counsel reasonably acceptable to the Indenture Trustee, which counsel may, without limitation, and except as otherwise expressly provided in this Indenture and except for any opinions related to tax matters or material adverse effects on Noteholders, be an employee of the Issuer, the Receivables Seller or any of their Affiliates.
Organizational Documents : The Issuer’s Trust Agreement (including the related Owner Trust Certificate).
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Original Indenture : Has the meaning set forth in the Recitals.
Other Advance Rate Reduction Event : As defined in the related Indenture Supplement, if applicable.
Other Advance Rate Reduction Event Cure Period : As defined in the related Indenture Supplement, if applicable.
Outstanding : With respect to all Notes and, with respect to a Note or with respect to Notes of any Series or Class means, as of the date of determination, all such Notes theretofore authenticated and delivered under this Indenture, except:
(i) any Notes theretofore canceled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation, or canceled by the Issuer and delivered to the Indenture Trustee pursuant to Section 6.9 ;
(ii) any Notes to be redeemed for whose full payment (including principal and interest) redemption money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Noteholders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given if required pursuant to this Indenture, or provision therefore satisfactory to the Indenture Trustee has been made;
(iii) any Notes which are canceled pursuant to Section 7.3 ; and
(iv) any Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture (except with respect to any such Note as to which proof satisfactory to the Indenture Trustee is presented that such Note is held by a person in whose hands such Note is a legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations, reallocations or payments to be made, unless the context clearly requires otherwise, references to “Notes” will be deemed to be references to “Outstanding Notes.” In determining whether the Noteholders of the requisite principal amount of such Outstanding Notes have taken any Action hereunder, Notes owned by the Issuer, the Receivables Seller, or any Affiliate of the Issuer or the Receivables Seller shall be disregarded. In determining whether the Indenture Trustee will be protected in relying upon any such Action, only Notes which an Indenture Trustee Authorized Officer has actual knowledge are owned by the Issuer or the Receivables Seller, or any Affiliate of the Issuer or the Receivables Seller, will be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee proves to the satisfaction of the Indenture Trustee the pledgee’s right to act as owner with respect to such Notes and that the pledgee is not the Issuer or the Receivables Seller or any Affiliate of the Issuer or the Receivables Seller.
Owner : When used with respect to a Note, any related Note Owner.
Owner Trust Certificate : A certificate evidencing a 100% undivided beneficial interest in the Issuer.
Owner Trustee : Wilmington Trust, National Association, a national association, not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
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Owner Trustee Fee : The annual fee payable as agreed upon by the Owner Trustee and Nationstar pursuant to the Owner Trustee Fee Letter.
Owner Trustee Fee Letter : The fee letter agreement between the Owner Trustee and Nationstar dated the Closing Date, as amended, supplemented, restated, or otherwise modified, setting forth the fees to be paid to the Owner Trustee for the performance of its duties as Owner Trustee of the Issuer.
P&I Advance : Any advance disbursed by the Servicer (including any predecessor servicer) pursuant to any Designated Servicing Agreement, of delinquent interest and/or principal that have not been timely paid by Obligors, including any amounts deposited by the Servicer into a Custodial Account in order to reimburse such Custodial Account for Amounts Held for Future Distribution previously on deposit therein which the Servicer (including any predecessor servicer) had used to make a previous P&I Advance in accordance with the related Designated Servicing Agreement.
P&I Advance Amount : As defined in Section 4.3(e)
P&I Advance Disbursement Account : The segregated trust account, which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.3(d) as a Trust Account and entitled “Wells Fargo Bank, N.A., as Indenture Trustee for the NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, P&I Advance Disbursement Account.”
P&I Advance Receivable : Any Receivable representing the right to be reimbursed for a P&I Advance.
P&I Advance Reimbursement Amount : Any amount collected under any Designated Servicing Agreement from Obligors or otherwise, which amount, by the terms of such Designated Servicing Agreement, is payable to the Servicer to reimburse P&I Advances disbursed by the Servicer.
Paying Agent : The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as paying agent pursuant to the terms of this Indenture.
Payment Date : In any month beginning in October 2013, the 20 th day of such month or, if such 20 th day is not a Business Day, the next Business Day following such 20 th day.
Payment Date Report : As defined in Section 3.2(b) .
Payment Default : An Event of Default of the type described in Section 8.1(a) .
Permitted Investments : At any time, any one or more of the following obligations and securities:
(i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; and provided further that the short-term debt obligations of such agency or instrumentality at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(ii) repurchase agreements on obligations specified in clause (a) maturing not more than three months from the date of acquisition thereof; provided that the short-term unsecured debt obligations of the party agreeing to repurchase such obligations are at the time rated “A-1+” by S&P;
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(iii) certificates of deposit, time deposits and bankers’ acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state thereof and subject to supervision and examination by a federal and/or state banking authority of the United States; provided that the unsecured short-term debt obligations of such depository institution or trust company at the date of acquisition thereof have been rated “A-1+” by S&P;
(iv) commercial paper of any entity organized under the laws of the United States or any state thereof which on the date of acquisition has been rated “A-1+” by S&P;
(v) interests in any U.S. money market fund which, at the date of acquisition of the interests in such fund (including any such fund that is managed by the Indenture Trustee or an Affiliate of the Indenture Trustee or for which the Indenture Trustee or an Affiliate acts as advisor) and throughout the time as the interest is held in such fund, has a rating of “AAAm” from S&P; or
(vi) other obligations or securities that are acceptable to S&P as Permitted Investments hereunder and if the investment of Account funds therein will not result in a reduction in the then current rating of the Notes, as evidenced by a letter to such effect from S&P;
provided , that each of the foregoing investments shall mature no later than the Business Day prior to the Payment Date immediately following the date of purchase thereof (other than in the case of the investment of monies in instruments of which the Indenture Trustee is the obligor, which may mature on the related Payment Date), and shall be required to be held to such maturity; and provided further , that each of the Permitted Investments may be purchased by the Indenture Trustee through an Affiliate of the Indenture Trustee.
Permitted Investments are only those which are acquired by the Indenture Trustee in its name and in its capacity as Indenture Trustee, and with respect to which (A) the Indenture Trustee has noted its interest therein on its books and records, and (B) the Indenture Trustee has purchased such investments for value without notice of any adverse claim thereto (and, if such investments are securities or other financial assets or interests therein, within the meaning of Section 8-102 of the UCC, without acting in collusion with a Securities Intermediary in violating such Securities Intermediary’s obligations to entitlement holders in such assets, under Section 8-504 of the UCC, to maintain a sufficient quantity of such assets in favor of such entitlement holders), and (C) either (i) such investments are in the possession of the Indenture Trustee or (ii) such investments, (x) if certificated securities and in bearer form, have been delivered to the Indenture Trustee, or if in registered form, have been delivered to the Indenture Trustee and either registered by the issuer in the name of the Indenture Trustee or endorsed by effective endorsement to the Indenture Trustee or in blank; (y) if uncertificated securities, ownership of such securities has been registered in the name of the Indenture Trustee on the books of the issuer thereof (or another person, other than a Securities Intermediary, either has become the registered owner of the uncertificated security on behalf of the Indenture Trustee or, having previously become the registered owner, acknowledges that it holds for the Indenture Trustee); or (z) if Securities Entitlements representing interests in securities or other financial assets (or interests therein) held by a Securities Intermediary, a Securities Intermediary indicates by book entry that a security or other financial asset has been credited to the Indenture Trustee’s Securities Account with such Securities Intermediary. No instrument described hereunder may be purchased at a price greater than par, if such instrument may be prepaid or called at a price less than its purchase price prior to its stated maturity.
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Permitted Lien : Any liens for taxes, assessments, or similar charges incurred in the ordinary course of business and which are not yet due or as to which the period of grace, if any, related thereto has not expired or which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP.
Permitted Refinancing : An assignment by the Issuer, subject to satisfaction of Section 2.1(c) , either (i) to a third party unaffiliated with the Servicer or (ii) to a special purpose, bankruptcy-remote entity (“ SPV ”), of all the Receivables and related assets attributable to one or more Designated Servicing Agreements, as a result of which assignment the assignee pays to the Issuer 100% of the Receivable Balances with respect to such Receivables; provided , that in the case of an assignment to an SPV pursuant to clause (ii) (a) such assignment may be effected by means of an initial sale, transfer, distribution or other transfer of the Receivables and related assets to Advance Purchaser so long as Advance Purchaser immediately sells and/or contributes the Receivables and related assets to the related SPV, if the SPV’s organizational documents and financing arrangements only permit acquisition of Receivables and similar assets from Advance Purchaser and its Affiliates, and (b) if requested by the Administrative Agent, an opinion of external legal counsel, reasonably satisfactory to the Administrative Agent, to the effect that the assignee would not be substantively consolidated with Advance Purchaser or any non-special purpose entity Affiliate of Advance Purchaser involved in the transactions contemplated herein, shall have been delivered to the Administrative Agent.
Person : Any individual, corporation, estate, partnership, limited liability company, limited liability partnership, joint venture, association, joint-stock company, business trust, trust, unincorporated organization, government or any agency or political subdivision thereof, or other entity of a similar nature.
Place of Payment : With respect to any Class of Notes issued hereunder, the city or political subdivision so designated with respect to such Class of Notes by the Indenture Trustee.
Predecessor Notes : Of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 6.6 in lieu of a mutilated, lost, destroyed or stolen Note will be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
PTCE : As defined in Section 6.5(k) .
Purchase Agreement : Has the meaning set forth in the Recitals.
Qualified Institutional Buyer : As defined in Rule 144A under the Securities Act.
Ratings Effect : A reduction, qualification with negative implications or withdrawal of any then current rating of any Outstanding Notes by an applicable Note Rating Agency (other than as a result of the termination of such Note Rating Agency).
Ratings Reduction : As defined in the related Indenture Supplement, if applicable.
Receivable : The contractual right (i) to reimbursement pursuant to the terms of a Designated Servicing Agreement for an Advance made by the Servicer (including any predecessor servicer) pursuant to such Designated Servicing Agreement, which Advance has not previously been reimbursed, or (B) to payment pursuant to the terms of a Designated Servicing Agreement listed on the Designated Servicing Agreement Schedule to the extent designated as being eligible for financing for a Deferred Servicing Fee owed the Servicer pursuant to such Designated Servicing Agreement which has been accrued by the Servicer (or
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any predecessor Servicer) but not paid and which contractual right to reimbursement or payment has been Granted to the Indenture Trustee for inclusion in the Trust Estate by the Issuer hereunder, and including in either case all rights of the Servicer (including any predecessor servicer) to enforce payment of such obligation under the related Servicing Agreement, consisting of the Initial Receivables and all Additional Receivables and (ii) to amounts to be paid as consideration for any purchase of the contractual right to reimbursement described in clause (i) or to servicing fees has been Granted to the Indenture Trustee for inclusion in the Trust Estate by the Issuer hereunder. A “Receivable” remains a “Receivable,” and is not deemed to have been converted into cash, except to the extent that cash in respect of a reimbursement of that Receivable has been deposited into the Collection and Funding Account. A “Receivable” is originated when the Servicer makes the related Advance (or the Advance is made on its behalf in the case of P&I Advances that may be pre-funded same day pursuant to Section 4.3 hereof) or, with respect to Advances made by a predecessor servicer, when the Servicer reimburses the predecessor servicer for such Advance when the Servicer assumes servicing of the related Mortgage Loan or, with respect to Deferred Servicing Fees when the related servicing fee shall be accrued and unpaid on the related monthly remittance date following the related due date. Receivables for Deferred Servicing Fees that are ineligible for financing will not be sold or transferred by the Servicer and are not a part of the Trust Estate.
Receivable Balance : As of any date of determination and with respect to any Receivable, the outstanding amount of such Receivable, which shall only be reduced to the extent that cash in respect of reimbursement of that Receivable has been deposited into the Collection and Funding Account.
Receivable File : The documents described in Section 2.2 pertaining to a particular Receivable.
Receivables Pooling Agreement : The Amended and Restated Receivables Pooling Agreement, dated as of the Effective Date, between the Depositor, as seller, and the Issuer, as purchaser, as amended, supplemented, restated, or otherwise modified from time to time.
Receivables Sale Agreement : The Amended and Restated Receivables Sale Agreement, dated as of the Effective Date, among Nationstar, Advance Purchaser and the Depositor, as purchaser, as amended, supplemented, restated, or otherwise modified from time to time.
Receivables Sale Termination Date : The date, after the conclusion of the Revolving Period for all Series and Classes of Notes, on which all amounts due on all Series and Classes of Notes issued by the Issuer pursuant to this Indenture, and all other amounts payable to any party pursuant to this Indenture, shall have been paid in full.
Receivables Seller : Nationstar, as the entity that sold and contributed, prior to the Effective Date, and as the entity that sells to Advance Purchaser, on and after the Effective Date but before the related MSR Transfer Date, and Advance Purchaser, as the entity that shall, on and after the Effective Date, and both before and after the related MSR Transfer Date, sell and contribute to the Depositor all Receivables that it either acquires from Nationstar (before the related MSR Transfer Date) or creates as a result of making Advances (on or after the related MSR Transfer Date) under the Designated Servicing Agreements.
Record Date : For the interest or principal payable on any Note on any applicable Payment Date or Interim Payment Date, (i) for a Book Entry Note, the last Business Day before such Payment Date or Interim Payment Date, as applicable, and (ii) for a Definitive Note, the last day of the calendar month preceding such Payment Date or Interim Payment Date, as applicable, unless otherwise specified in the related Indenture Supplement.
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Redemption Amount : With respect to a redemption of any Series or Class of Notes by the Issuer pursuant to Section 13.1 , an amount, which when applied together with other Available Funds pursuant to Section 4.5 , shall be sufficient to pay an amount equal to the sum of (i) the Note Balance of all Outstanding Notes of such Series or Class as of the applicable Redemption Payment Date or Redemption Date, (ii) all accrued and unpaid interest on the Notes of such Series or Class through the day prior to such Redemption Payment Date or Redemption Date, (iii) any and all amounts allocable to such Series or Class and then owing or owing in connection with such redemption to the Indenture Trustee, the Securities Intermediary, any Derivative Counterparty, Liquidity Provider or Supplemental Credit Enhancement Provider, from the Issuer pursuant to the terms hereof, and (iv) any and all other amounts allocable to such Series or Class then due and payable hereunder and sufficient to authorize the satisfaction and discharge of this Indenture pursuant to Section 2.1 .
Redemption Date : As defined in Section 13.1 .
Redemption Notice : As defined in Section 13.2 .
Redemption Payment Date : As defined in Section 13.1 .
Redemption Percentage : For any Class, 10% or such other percentage set forth in the related Indenture Supplement.
Regulation S : Regulation S promulgated under the Securities Act or any successor provision thereto, in each case as the same may be amended from time to time; and all references to any rule, section or subsection of, or definition contained in, Regulation S means such rule, section, subsection, definition or term, as the case may be, or any successor thereto, in each case as the same may be amended from time to time.
Regulation S Definitive Note : As defined in Section 5.2(c)(ii) .
Regulation S Global Note : As defined in Section 5.2(c)(ii) .
Regulation S Note : As defined in Section 5.2(c)(ii) .
Regulation S Note Transfer Certificate : As defined in Section 6.5(i)(ii) .
REO Property : A Mortgaged Property in which a Mortgage Pool or owner has acquired title to such Mortgaged Property through foreclosure or by deed in lieu of foreclosure.
Required Expense Reserve : An amount that, following any Funding Date, shall remain on deposit in the Collection and Funding Account, which amount shall equal (i) the amounts payable in respect of Fees and invoiced or regularly occurring expenses payable from Available Funds on the next Payment Date, plus (ii) all accrued and unpaid interest due on the Notes on the next Payment Date following such Funding Date, plus (iii) all amounts required to be deposited into each Series Reserve Account on the next Payment Date, plus (iv) the aggregate of all Target Amortization Amounts payable on the next Payment Date, except with respect to any Classes of Notes for which the related Indenture Supplement provides that Target Amortization Amounts shall not be reserved as part of the Required Expense Reserve minus (v) the amounts then on deposit in the Accumulation Accounts.
Reserve Interest Rate : As defined in the related Indenture Supplement for any Series or Class of Notes.
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Responsible Officer :
(i) When used with respect to the Indenture Trustee, the Calculation Agent, the Note Registrar, the Securities Intermediary or the Paying Agent, an Indenture Trustee Authorized Officer; and
(ii) when used with respect to the Issuer, any Issuer Authorized Officer who is an officer of the Issuer or is an officer of the Administrator of the type referred to in clause (iii) below; and
(iii) when used with respect to the Servicer, the Subservicer or the Administrator, the chief executive officer, the chief financial officer or any vice president of the Servicer or the Administrator, as the case may be.
Revolving Period : For any Series or Class of Notes, the period of time which begins on the related Issuance Date and ends on the earlier to occur of (i) a Target Amortization Event for such Series or Class of Notes and (ii) a Facility Early Amortization Event.
Rule 144A : Rule 144A promulgated under the Securities Act.
Rule 144A Definitive Note : As defined in Section 5.2(c)(i) .
Rule 144A Global Note : As defined in Section 5.2(c)(i) .
Rule 144A Note : As defined in Section 5.2(c)(i) .
Rule 144A Note Transfer Certificate : As defined in Section 6.5(i)(iii) .
S&P : Standard and Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc.
Sale : Any sale of any portion of the Trust Estate pursuant to Section 8.16 .
Sale Date : As defined in the Receivables Sale Agreement.
Schedule of Receivables : On any date, a schedule, which shall be delivered by the Administrator to the Indenture Trustee, and maintained by the Indenture Trustee, in an electronic form, listing the outstanding Receivables sold and/or contributed to the Depositor under the Receivables Sale Agreement and sold and/or contributed to the Issuer under the Receivables Pooling Agreement and Granted to the Indenture Trustee pursuant to this Indenture, as updated from time to time to list Additional Receivables Granted to the Indenture Trustee and deducting any amounts paid against the Receivables as of such date, identifying such Receivables by Designated Servicing Agreement, dollar amount of the related Advance or Deferred Servicing Fee, identifying the Advance Type for such Receivable and identifying the related Mortgage Loan number and date of the related Advance or Deferred Servicing Fee. The Indenture Trustee shall be entitled to rely conclusively on the then current Schedule of Receivables until receipt of a superseding schedule.
Secured Party : As defined in the Granting Clause.
Securities Account : As defined in Section 8-501(a) of the UCC.
Securities Act : The Securities Act of 1933, as amended.
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Securities Intermediary : As defined in Section 8-102(a)(14) of the UCC, and where appropriate, shall mean Wells Fargo Bank, N.A. or its successor, in its capacity as securities intermediary pursuant to Section 4.9 .
Security Entitlement : As defined in Section 8-102(a)(17) of the UCC.
Security Interest : The security interest in the Collateral Granted to the Indenture Trustee pursuant to the Granting Clause.
Senior Cumulative Interest Shortfall Amount : Any Cumulative Interest Shortfall Amount attributable to any Senior Interest Amount that is unpaid.
Senior Interest Amount : For any Interest Accrual Period and any Class of Notes, interest accrued on such Class during such period, up to an amount equal to interest on such Class’s Note Balance at the applicable Senior Rate.
Senior Margin : For each Class of Notes, as specified in the related Indenture Supplement.
Senior Rate : For each Class of Notes, as specified in the related Indenture Supplement, if any.
Series Advance Receivable Allocation Percentage : For any Series that provides a non-zero Advance Rate for Advances, on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Advances.
Series Allocation Percentage : For any Series on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series.
Series Available Funds : As defined in Section 4.5(a)(2)(iii) hereof.
Series Deferred Servicing Fee Receivable Allocation Percentage : For any Series that provides a non-zero Advance Rate for Deferred Servicing Fee Receivables, on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Deferred Servicing Fee Receivables.
Series Fee Limit : For any Series, as specified in the related Indenture Supplement, if applicable.
Series Fees : For any Series, as specified in the related Indenture Supplement, which shall include any amounts payable to any Derivative Counterparty, Supplemental Credit Enhancement Provider or other similar amount payable in respect of a particular Series.
Series Invested Amount : For any Series on any date is the largest Class Invested Amount for all Outstanding Classes of Notes included in such Series.
Series New Receivables Funding Amount : (A) For any Funding Date in respect of Receivables related to Advances, for any Series that provides a non-zero Advance Rate for Advances and any Additional Receivable related to Advances proposed to be funded on such Funding Date, the product of (i) the applicable Weighted Average CV Adjusted Advance Rate for such Series (calculated without regard to the existence of any Deferred Servicing Fee Receivables and taking into account the inclusion of the new
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Additional Receivables related to Advances) and (ii) the related Series Advance Receivable Allocation Percentage of the aggregate Receivable Balance of all Receivables related to Advances under all Designated Servicing Agreements, including all Receivables related to Advances conveyed to the Issuer since the previous Funding Date (including P&I Advance Receivables to be so conveyed on such Funding Date, but not including any portion thereof relating to P&I Advances to the extent such P&I Advances were funded using Amounts Held for Future Distribution) and (B) For any Funding Date in respect of Receivables related to Deferred Servicing Fees for any Series that provides a non-zero Advance Rate for Deferred Servicing Fees and any Additional Receivable related to Deferred Servicing Fees proposed to be funded on such Funding Date, the product of (i) the applicable Weighted Average CV Adjusted Advance Rate for such Series (calculated without regard to the existence of any Receivables related to Advances and taking into account the inclusion of the new Additional Receivables related to Deferred Servicing Fees) and (ii) the related Series Deferred Servicing Fee Receivable Allocation Percentage of (A) the aggregate Receivable Balance of all Receivables related to Deferred Servicing Fees under all Designated Servicing Agreements, including all Receivables related to Deferred Servicing Fees conveyed to the Issuer since the previous Funding Date.
Series Required Noteholders : Noteholders of any Series constituting both (i) the Majority Noteholders of such Series and (ii) the Majority Noteholders of the most senior Class of Outstanding Notes of such Series.
Series Reserve Account : An account established for each Series which shall be a segregated trust account which is an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.6 , and in the name of the Indenture Trustee and identified by each relevant Series.
Series Reserve Required Amount : For each Series, the amount calculated as described in the related Indenture Supplement.
Servicer : For any Designated Servicing Agreement, (i) prior to the related MSR Transfer Date, Nationstar in its capacity as the Servicer under such Designated Servicing Agreement in servicing the related Mortgage Loans for and on behalf of the respective MBS Trustees or other owner(s), and any successor named servicer appointed under such Designated Servicing Agreement; (ii) on and after the related MSR Transfer Date, Advance Purchaser in its capacity as the Servicer under such Designated Servicing Agreement in servicing the related Mortgage Loans for and on behalf of the respective MBS Trustees or other owner(s), and any successor named servicer appointed under such Designated Servicing Agreement.
Servicer Ratings Downgrade : A downgrade by any rating agency of the servicer ratings of the Servicer or the Subservicer that results in the occurrence of a Servicer Termination Event with respect to the Servicer or a Subservicer Termination Event with respect to the Subservicer pursuant to the terms of a Designated Servicing Agreement or Subservicing Agreement.
Servicer Termination Event : With respect to any Designated Servicing Agreement, the occurrence of any events or conditions, and the passage of any cure periods and giving to and receipt by the Servicer of any required notices, as a result of which any Person has the current right to terminate the Servicer as servicer, subservicer or master servicer, as applicable, (and any Subservicer that may be acting on behalf of the Servicer) under such Designated Servicing Agreement.
Servicing Agreement : Any pooling and servicing agreement, sale and servicing agreement, or servicing agreement pursuant to which the Servicer is servicing Mortgage Loans for and on behalf of a Mortgage Pool or other owner, each as amended, supplemented, restated, or otherwise modified from time to time.
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Servicing Standards : As defined in Section 10.3(k) .
Sinking Fund Account : An account established for any Series which shall be a segregated trust account which is an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 , and in the name of the Indenture Trustee and identified by each relevant Series; provided , that, if more than one Sinking Fund Account is to be established for any Series, such accounts may be established as a single Eligible Account with sub-accounts thereof related to specified Classes within such Series as to which Classes a “Sinking Fund Account” has been created and the Sinking Fund Account for a particular Class of such Series shall refer to the sub- account of the related Eligible Account related to such Class.
Sinking Fund Permitted Investments : At any time, any one or more of the following obligations and securities:
(i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; and provided further that such obligations shall have a maturity of no more than three hundred and sixty five (365) days after the date of acquisition and further the short-term debt obligations of such agency or instrumentality at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(ii) repurchase agreements on obligations specified in clause (a) maturing not more than twelve months from the date of acquisition thereof and in any event not later than the Business Day immediately preceding the Expected Repayment Date of the Class of Notes related to the Sinking Fund Account in which such Sinking Fund Permitted Investment is held; provided that the short-term unsecured debt obligations of the party agreeing to repurchase such obligations are at the time rated “A-1+” by S&P;
(iii) certificates of deposit, time deposits and bankers’ acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state thereof and subject to supervision and examination by a federal and/or state banking authority of the United States; provided that such obligations shall have a maturity of not more than three hundred and sixty five (365) days after the date of acquisition and further the unsecured short-term debt obligations of such depository institution at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(iv) commercial paper of any entity organized under the laws of the United States or any state thereof which on the date of acquisition has been rated “A-1+” by S&P; provided that such commercial paper shall have a maturity of no more than three hundred and sixty five (365) days after the date of acquisition;
(v) interests in any U.S. money market fund which, at the date of acquisition of the interests in such fund (including any such fund that is managed by the Indenture Trustee or an Affiliate of the Indenture Trustee or for which the Indenture Trustee or an Affiliate acts as advisor) and throughout the time as the interest is held in such fund, has a rating of “AAAm” from S&P; or
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(vi) other obligations or securities that are acceptable to S&P as Permitted Investments hereunder and if the investment of Account funds therein will not result in a reduction of the then current rating of the Notes, as evidenced by a letter to such effect from S&P;
provided , that each of the foregoing investments shall mature no later than the Business Day prior to the immediately preceding the Expected Repayment Date of the Class of Notes related to the Sinking Fund Account in which such Sinking Fund Permitted Investment is held (other than in the case of the investment of monies in instruments of which the Indenture Trustee is the obligor, which may mature on the related Expected Repayment Date), and shall be required to be held to such maturity; and provided further , that each of the Sinking Fund Permitted Investments may be purchased by the Indenture Trustee through an Affiliate of the Indenture Trustee.
Sinking Fund Permitted Investments are only those which are acquired by the Indenture Trustee in its name and in its capacity as Indenture Trustee, and with respect to which (A) the Indenture Trustee has noted its interest therein on its books and records, and (B) the Indenture Trustee has purchased such investments for value without notice of any adverse claim thereto (and, if such investments are securities or other financial assets or interests therein, within the meaning of Section 8-102 of the UCC, without acting in collusion with a Securities Intermediary in violating such Securities Intermediary’s obligations to entitlement holders in such assets, under Section 8-504 of the UCC, to maintain a sufficient quantity of such assets in favor of such entitlement holders), and (C) either (i) such investments are in the possession of the Indenture Trustee or (ii) such investments, (x) if certificated securities and in bearer form, have been delivered to the Indenture Trustee, or if in registered form, have been delivered to the Indenture Trustee and either registered by the issuer in the name of the Indenture Trustee or endorsed by effective endorsement to the Indenture Trustee or in blank; (y) if uncertificated securities, ownership of such securities has been registered in the name of the Indenture Trustee on the books of the issuer thereof (or another person, other than a Securities Intermediary, either has become the registered owner of the uncertificated security on behalf of the Indenture Trustee or, having previously become the registered owner, acknowledges that it holds for the Indenture Trustee); or (z) if Securities Entitlements representing interests in securities or other financial assets (or interests therein) held by a Securities Intermediary, a Securities Intermediary indicates by book entry that a security or other financial asset has been credited to the Indenture Trustee’s Securities Account with such Securities Intermediary. No instrument described hereunder may be purchased at a price greater than par.
Specified Notes : The Class 1 Specified Notes and the Class 2 Specified Notes.
STAMP : As defined in Section 6.1(d) .
Stated Maturity Date : For each Class of Notes, the date specified in the Indenture Supplement for such Note as the fixed date on which the outstanding principal and all accrued interest for such Series or Class of Notes is due and payable.
Stop Date : As defined in the Receivables Sale Agreement.
Sub-Administrator : Nationstar or any other entity appointed by Administrator to perform certain of its duties hereunder or under the Transaction Documents with the prior written approval of the Administrative Agent.
Subordinated Cumulative Interest Shortfall Amount : Any Cumulative Interest Shortfall Amount attributable to any Subordinated Interest Amount that is unpaid.
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Subordinated Interest Amount : For any Class of Notes and any Interest Accrual Period, the positive difference, if any, between the amount of interest accrued in such Interest Accrual Period on the related Note Balance at the related Note Interest Rate on such Class and the related Senior Interest Amount.
Subservicer : For any Designated Servicing Agreement on and after the related MSR Transfer Date, Nationstar in its capacity as the Subservicer for such Designated Servicing Agreement under the Nationstar Subservicing Agreement, and any other subservicer as may be appointed from time to time for such Designated Servicing Agreement pursuant to an Eligible Subservicing Agreement. For any Designated Servicing Agreement prior to the related MSR Transfer Date, Nationstar or any successor named servicer pursuant thereto shall be referred to as the Subservicer for such Designated Servicing Agreement for all purposes under this Indenture for purposes of convenience of reference. “Subservicer” also includes a subservicer subservicing for Nationstar only if (i) such subservicer is subservicing under an Eligible Subservicing Agreement for which the related subservicing arrangement shall have been consented to by the Administrative Agent in writing in its sole and absolute discretion and (ii) the Administrator or Servicer shall have given notice of such subservicing arrangement to each Note Rating Agency.
Subservicer Termination Event : With respect to any Subservicing Agreement, the occurrence of any events or conditions, and the passage of any cure periods and giving to and receipt by the Subservicer of any required notices, as a result of which the Servicer has the current right to terminate the Subservicer under such Subservicing Agreement.
Subservicing Agreement : A subservicing agreement entered into by Advance Purchaser, as servicer, and a Subservicer for some or all of the Designated Servicing Agreements that must be an Eligible Subservicing Agreement including, without limitation, the economic agreement as to the Designated Servicing Agreements between Advance Purchaser and Nationstar prior to the related MSR Transfer Date.
Subsidiary : With respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
Supplemental Credit Enhancement Agreement : A letter of credit, cash collateral account or surety bond or other similar arrangement with any credit enhancement provider which provides the benefit of one or more forms of credit enhancement which is referenced in the applicable Indenture Supplement for any Series or Class of Notes.
Supplemental Credit Enhancement Provider : Any party to any Supplemental Credit Enhancement Agreement other than the Issuer or the Indenture Trustee on behalf of the Issuer.
Target Amortization Amount : For any Interim Payment Date or any Payment Date, as the case may be, for each Class of Notes then in its Target Amortization Period, the monthly amount specified in, or calculated as described in, the related Indenture Supplement; provided , that such monthly amount must be either a fixed dollar amount or a fixed percentage of the Note Balance of such Class.
Target Amortization Class : Any Class of Notes that is in its Target Amortization Period at a time when no Facility Early Amortization Event shall have occurred and be continuing unwaived.
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Target Amortization Event : For any Series or Class of Notes, the earlier of (i) the related Expected Repayment Date and (ii) the occurrence of any of the events designated as such in the related Indenture Supplement; provided , that if any Target Amortization Event occurs with respect to any VFN, it shall constitute a Target Amortization Event for all Classes of VFNs.
Target Amortization Period : For any Class of Notes, the period that begins upon the termination of the related Revolving Period and ends upon the earlier of (i) a Facility Early Amortization Event and (ii) the date on which the Notes of such Class are paid in full, in accordance with the related Indenture Supplement.
Target Amortization Principal Accumulation Account : The segregated trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the Nationstar Servicer Advance Receivables Backed Notes, Target Amortization Principal Accumulation Account.”
Target Amortization Principal Accumulation Amount : For any Target Amortization Class on any date, the Target Amortization Amount for the next Payment Date.
Term Note : Notes of any Series or Class designated as “Term Notes” in the related Indenture Supplement.
Transaction Documents : Collectively, this Indenture, each Note Purchase Agreement, the Receivables Sale Agreement, the Receivables Pooling Agreement, the Fee Letter, the Owner Trustee Fee Letter, the Derivative Agreements, Supplemental Credit Enhancement Agreements, the Schedule of Receivables and the Designated Servicing Agreement Schedule, all Notes, the Trust Agreement, the Administration Agreement, the Subservicing Agreement, the Purchase Agreement, each Indenture Supplement and each of the other documents, instruments and agreements entered into on the date hereof and thereafter in connection with any of the foregoing or the transactions contemplated thereby, each as amended, supplemented, restated, or otherwise modified from time to time.
Transfer : As defined in Section 6.5(h) . It is expressly provided that the term “Transfer” in the context of the Notes includes, without limitation, any distribution of the Notes by (i) a corporation to its shareholders, (ii) a partnership to its partners, (iii) a limited liability company to its members, (iv) a trust to its beneficiaries or (v) any other business entity to the owners of the beneficial interests in such entity.
Trigger Advance Rate : For any Class or Series of Notes, as defined in the related Indenture Supplement. If an Indenture Supplement does not define a “Trigger Advance Rate,” the related Series and Classes shall have no Trigger Advance Rate.
Trust Account or Trust Accounts : Individually, any of the Collection and Funding Account, the Initial Collection Account, the Note Payment Account, the Series Reserve Account, the Interest Accumulation Account, the Target Amortization Principal Accumulation Account, the Fee Accumulation Account or the P&I Advance Disbursement Account or any Sinking Fund Account and any other account required under any Indenture Supplement, and collectively, all of the foregoing.
Trust Agreement : The Amended and Restated Trust Agreement, dated the Closing Date, by and between the Depositor and Owner Trustee, as amended, supplemented, restated, or otherwise modified from time to time.
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Trust Estate : The trust estate established under this Indenture for the benefit of the Noteholders, which consists of the property described in the Granting Clause, to the extent not released pursuant to Section 7.1 .
Trust Property : The property, or interests in property, constituting the Trust Estate from time to time.
UCC : The Uniform Commercial Code, as in effect in the relevant jurisdiction.
Undrawn Fees : With respect to any Payment Date during the related Revolving Period, an amount equal to the aggregate of the accrued and unpaid Undrawn Fee Amounts for each day of the Monthly Advance Collection Period immediately preceding such Payment Date, plus any unpaid Undrawn Fees from prior Payment Dates.
Undrawn Fee Amount : For any Series of VFNs as specified in the related Indenture Supplement, for each day during the related Revolving Period, an amount equal to the product of (i) the aggregate of the related Maximum VFN Principal Balance for each Class of VFNs less the aggregate of the VFN Principal Balance of each Class of VFNs as of the close of business on such day, and (ii) the Undrawn Fee Rate divided by 360.
Undrawn Fee Rate : For any VFN Class, the rate set forth or described in the related Indenture Supplement, if any.
United States and U.S. : The United States of America.
United States Person : (i) A citizen or resident of the United States, (ii) a corporation or partnership (or entity treated as a corporation or partnership for United States federal income tax purposes) created or organized in or under the laws of the United States, any one of the states thereof or the District of Columbia, (iii) an estate the income of which is subject to United States federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 which are eligible to elect to be treated as United States Persons).
Unmatured Default : With respect to any Designated Servicing Agreement, the occurrence of any event or condition which, with notice and/or the passage of any applicable cure period, will result in a Servicer Termination Event or Subservicer Termination Event.
Variable Funding Note or VFN : Any Note of a Series or Class designated as “Variable Funding Notes” in the related Indenture Supplement.
Verification Agent : As defined in Section 3.3(d) .
Verification Agent Fee : The amount payable to the Verification Agent following completion of its annual report under Section 3.3(d) in an amount to be determined by the Administrative Agent after consultation with the Servicer.
VFN Draw : For any Interim Payment Date or Payment Date, the amount to be borrowed on such date in relation to any VFNs pursuant to Section 4.3(b) .
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VFN Draw Date : Any Interim Payment Date or Payment Date on which a VFN Draw is to be made pursuant to Section 4.3(b) .
VFN Noteholder : The Noteholder of a VFN.
VFN Note Balance Adjustment Request : As defined in Section 4.3(b)(i) .
VFN Principal Balance : On any date, for any VFN or for any Series or Class of VFNs, as the context requires, the Note Balance thereof as of the opening of business on the first day of the then-current Interest Accrual Period for such Series or Class less (i) all amounts previously paid during such Interest Accrual Period on such Note with respect to principal plus (ii) the amount of any increase in the Note Balance of such Note during such Interest Accrual Period prior to such date, which amount shall not exceed the Maximum VFN Principal Balance.
Voting Interests : The aggregate voting power evidenced by the Notes, and each Outstanding Note’s Voting Interest within its Series equals the percentage equivalent of the fraction obtained by dividing that Note’s Note Balance by the aggregate Note Balance of all Outstanding Notes within such Series; provided , however , that where the Voting Interests are relevant in determining whether the vote of the requisite percentage of Noteholders necessary to effect any consent, waiver, request or demand shall have been obtained, the Voting Interests shall be deemed to be reduced by the amount equal to the Voting Interests (without giving effect to this provision) represented by the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, the Depositor, the Receivables Seller or any Person that is an Affiliate of any of the Issuer, the Depositor or the Receivables Seller. The Indenture Trustee shall have no liability for counting a Voting Interest of any Person that is not permitted to be so counted hereunder pursuant to the definition of “Outstanding” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is the Issuer or the Receivables Seller or an Affiliate of either or both of the Issuer and the Receivables Seller.
For the avoidance of doubt, all actions, consents and votes under the terms and provisions of this Indenture (other than under any Indenture Supplement related to a specific Series) that require a certain percentage of Voting Interests of all Notes shall be deemed by each of the parties hereto and the Noteholders to require such designated percentage of Voting Interests of each Outstanding Series and, in the event any one Series fails to provide the required percentage of Voting Interests with respect to any such action, consent or vote, then such action, consent or vote shall be deemed by the parties hereto and the Noteholders to be not approved.
Weighted Average Advance Rate : With respect to any Class of Notes on any date of determination, a percentage equal to the weighted average of the non-zero Advance Rates applicable to the Receivables in the case of such Class (weighted based on the Receivable Balances of all Facility Eligible Receivables that have a positive Collateral Value attributable to each separate Advance Type on such date). With respect to a Series of Notes, the “Weighted Average Advance Rate” shall equal the Weighted Average Advance Rate with respect to the Class within such Series with the highest Advance Rates.
Weighted Average CV Adjusted Advance Rate : With respect to any Class or Series on any date of determination, the lesser of (i) the product of (A) the Weighted Average Advance Rate, for such Class or Series on that date, and (B) a fraction, (1) the numerator of which equals the aggregate Receivable Balances of all Facility Eligible Receivables that have a positive Collateral Value with respect to such Class or Series on such date and (2) the denominator of which equals the aggregate Receivable Balances of all Receivables with non-zero Advance Rates attributable to all Designated Servicing Agreements and (ii) the related Trigger Advance Rate (or, when determined for a Series, the highest Trigger Advance Rate for any Class within such Series).
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Whole Loan Servicing Agreement : A Servicing Agreement related to a Mortgage Pool that is not included in a closed-end securitization trust.
Section 1.2. Interpretation.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) reference to and the definition of any document (including this Indenture) shall be deemed a reference to such document as it may be amended or modified from time to time;
(b) all references to an “Article,” “Section,” “Schedule” or “Exhibit” are to an Article or Section hereof or to a Schedule or an Exhibit attached hereto;
(c) defined terms in the singular shall include the plural and vice versa and the masculine, feminine or neuter gender shall include all genders;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Indenture shall refer to this Indenture as a whole and not to any particular provision of this Indenture;
(e) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;
(f) periods of days referred to in this Indenture shall be counted in calendar days unless Business Days are expressly prescribed and references in this Indenture to months and years shall be to calendar months and calendar years unless otherwise specified;
(g) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under GAAP;
(h) “including” and words of similar import will be deemed to be followed by “without limitation”;
(i) references to any Transaction Document (including this Indenture) and any other agreement shall be deemed a reference to such Transaction Document or agreement as it may be amended or modified from time to time; and
(j) references to any statute, law, rule or regulation shall be deemed a reference to such statute, law, rule or regulation as it may be amended or modified from time to time.
Section 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer will furnish to the Indenture Trustee (1) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and (2) unless the Indenture Trustee waives the requirement of delivery, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
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Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture will include:
(a) a statement to the effect that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement to the effect that such individual has made such examination or investigation as is necessary to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.4. Form of Documents Delivered to Indenture Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, one or more specified Persons, one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to the other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless the Issuer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous. Any such certificate or opinion of, or representation by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.5. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action (each, an “ Action ”) provided by this Indenture to be given or taken by Noteholders of any Class may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such Action will become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments and any such record (and the Action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Noteholders signing such instrument or instruments and so voting at any meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, will be sufficient for any purpose of this Indenture and (subject to Section 11.1 ) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 1.5 .
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(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness to such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit will also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes will be proved by the Note Register.
(d) Any Action by a Noteholder will bind all subsequent Noteholders of such Noteholder’s Note, in respect of anything done or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon whether or not notation of such Action is made upon such Note.
(e) Without limiting the foregoing, a Noteholder entitled hereunder to take any Action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or Action taken by a Noteholder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Noteholders of each such different part.
(f) Without limiting the generality of the foregoing, unless otherwise specified pursuant to one or more Indenture Supplements, a Noteholder, including a Depository that is the Noteholder of a Global Note representing Book-Entry Notes, may make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Indenture to be made, given or taken by a Noteholder, and a Depository that is the Noteholder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in or security entitlements to any such Global Note through such Depository’s standing instructions and customary practices.
(g) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in or security entitlements to any Global Note held by a Depository entitled under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Indenture to be made, given or taken by Noteholders. If such a record date is fixed, the Noteholders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such Action, whether or not such Noteholders remain Noteholders after such record date. No such Action shall be valid or effective if made, given or taken more than ninety (90) days after such record date.
Section 1.6. Notices, etc., to Indenture Trustee, Issuer, Administrator and the Administrative Agent.
Any Action of Noteholders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Indenture Trustee by any Noteholder or by the Issuer will be sufficient for every purpose hereunder if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail to the Indenture Trustee (or Wells Fargo Bank, N.A. in any of its capacities) at its Corporate Trust Office, or the Issuer or the Administrator by the Indenture Trustee or by any Noteholder will be sufficient for every purpose hereunder (except with respect to notices to the Indenture Trustee of an Event of Default as provided in Section 8.1 ) if in writing (which shall include electronic transmission) and personally
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delivered, express couriered, electronically transmitted or mailed by registered or certified mail, addressed to it at (i) the Corporate Trust Office in the case of the Indenture Trustee or Wells Fargo Bank, N.A. in any of its capacities, (ii) 350 Highland Drive, Lewisville, TX 75067, in the case of Nationstar, (iii) c/o Wilmington Trust, National Association, as Owner Trustee, Rodney Square North, 1100 North Market Street, Wilmington, DE, 19890, in the case of the Issuer, (iv) 745 Seventh Avenue, New York, NY, 10019, in the case of the Administrative Agent, and (v) Advance Purchaser LLC, c/o New Residential Investment Corp., 1345 Avenue of the Americas, New York, NY 10105, Attention: Susan Givens, Chief Financial Officer, in the case of Advance Purchaser, or, in any case at any other address previously furnished in writing by any such party to the other parties hereto.
Section 1.7. Notices to Noteholders; Waiver.
(a) Where this Indenture, any Indenture Supplement or any Note provides for notice to registered Noteholders of any event, such notice will be sufficiently given (unless expressly provided otherwise herein, in such Indenture Supplement or in such Note) if in writing and mailed, first-class postage prepaid, sent by facsimile, sent by electronic transmission or personally delivered to each Noteholder of a Note affected by such event, at such Noteholder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, facsimile, electronic transmission or delivery, none of the failure to mail, send by facsimile, send by electronic transmission or deliver such notice, or any defect in any notice so mailed, to any particular Noteholders will affect the sufficiency of such notice with respect to other Noteholders and any notice that is mailed, sent by facsimile, sent by electronic transmission or delivered in the manner herein provided shall conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any Note provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver will be the equivalent of such notice. Waivers of notice by Noteholders will be filed with the Indenture Trustee, but such filing will not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it will be impractical to mail notice of any event to any Noteholder of a Note when such notice is required to be given pursuant to any provision of this Indenture, then any method of notification as will be satisfactory to the Indenture Trustee and the Issuer will be deemed to be a sufficient giving of such notice.
(c) Where this Indenture provides for notice to each Note Rating Agency, failure to give such notice will not affect any other rights or obligations created hereunder and will not under any circumstance constitute an Adverse Effect.
Section 1.8. Administrative Agent.
(a) Discretion of Administrative Agent. Any provision providing for the exercise of discretion of the Administrative Agent means that such discretion may be executed in the sole and absolute discretion of the Administrative Agent. In addition, for the avoidance of doubt, as further provided in the definition of “Administrative Agent” herein and notwithstanding any other provision in this Indenture to the contrary, any approvals, consents, votes or other rights exercisable by the Administrative Agent under this Indenture (other than any Indenture Supplement related to a specific Series) shall require the approval, consent, vote or other exercise of rights of each Person specified by name under the definition of “Administrative Agent” or in its stead its Affiliate or successor as noticed to the Indenture Trustee.
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(b) Nature of Duties. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Indenture, a related Indenture Supplement or in the other Transaction Documents. The Administrative Agent shall not have by reason of this Indenture or any Transaction Document a fiduciary relationship in respect of any Noteholder. Nothing in this Indenture or any of the Transaction Documents, express or implied, is intended to or shall be construed to impose upon the Administrative Agent any obligations in respect of this Indenture or any of the other Transaction Documents except as expressly set forth herein or therein. Each Noteholder shall make its own independent investigation of the financial condition and affairs of the Issuer in connection with the purchase of any Note and shall make its own appraisal of the creditworthiness of the Issuer and the value of the Collateral, and the Administrative Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Noteholder with any credit or other information with respect thereto, whether coming into its possession before the Closing Date, as applicable, or at any time or times thereafter.
(c) Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or in connection with this Indenture or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including, without limitation, counsel to the Administrative Agent or counsel to the Issuer), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Noteholder and shall not be responsible to any Noteholder for any statements, certificates, warranties or representations made in or in connection with this Indenture or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Indenture or the other Transaction Documents on the part of any Person, the existence or possible existence of any default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (iv) shall not be responsible to any Noteholder for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Indenture or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Indenture Trustee’s Adverse Claim thereon, or any certificate prepared by the Issuer in connection therewith, nor shall the Administrative Agent be responsible or liable to the Noteholders for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Noteholder shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Indenture, the Notes or any of the other Transaction Documents in its own interests as a Noteholder or otherwise.
(d) Reliance. The Administrative Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Indenture or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.
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Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and will not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer will bind its successors and assigns, whether so expressed or not. All covenants and agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents of the Indenture Trustee.
Section 1.11. Severability of Provisions.
In case any provision in this Indenture or in the Notes will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Except as otherwise provided in Section 14.7 hereof, nothing in this Indenture or in any Notes, express or implied, will give to any Person, other than the parties hereto and their successors hereunder, any Authenticating Agent or Paying Agent, the Note Registrar, the Securities Intermediary, the Calculation Agent, any Secured Party and the Noteholders of Notes (or such of them as may be affected thereby), any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.13. Governing Law.
THIS INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS INDENTURE, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS .
Section 1.14. Counterparts.
This Indenture may be executed in any number of counterparts, each of which so executed will be deemed to be an original, but all such counterparts will together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Indenture by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
Section 1.15. Submission to Jurisdiction; Waivers.
EACH OF THE PARTIES HERETO AND THE NOTEHOLDERS, BY THEIR ACCEPTANCE OF THE NOTES, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
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(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OTHER PARTY HERETO SHALL HAVE BEEN NOTIFIED IN WRITING;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Article II
The Trust Estate
Section 2.1. Contents of Trust Estate.
(a) Grant of Trust Estate . The Issuer has Granted the Trust Estate to the Indenture Trustee, and the Indenture Trustee has accepted this Grant, pursuant to the Granting Clause.
(b) Notification of MBS Trustees . The Servicer hereby represents and warrants that it has notified the related MBS Trustees with respect to the Designated Servicing Agreements as of the initial date of the assignment, transfer of ownership and pledge of Receivables related to such Servicing Agreements, including the related Advance Reimbursement Amounts, and that each related Receivable is subject to the Indenture Trustee’s Security Interest, pursuant to a notice, substantially in the form of Exhibit C attached hereto. The notices indicating the Security Interest of the Indenture Trustee in the Receivables relating to a particular Designated Servicing Agreement shall be deleted, rescinded or modified when, and only when, all related Receivables have been paid in full or have been released from such Security Interest pursuant to this Indenture. In addition, each Determination Date Report shall include a list of the Receivables, and any such list or related trial balance or Schedule of Receivables, and any other list of the Receivables provided by the Servicer, the Receivables Seller or the Issuer to any third party shall include language indicating that the Receivables identified therein are subject to the Indenture Trustee’s Security Interest.
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(c) Addition and Removal of Designated Servicing Agreements .
(i) Addition of Designated Servicing Agreements .
(A) Advance Purchaser may at any time designate any Facility Eligible Servicing Agreement as a Designated Servicing Agreement under the Receivables Sale Agreement, whereupon such Servicing Agreement shall become a “Designated Servicing Agreement” for purposes of this Indenture with respect to the Advance Types of Receivables that are designated as eligible pursuant to such Servicing Agreement if (1) the Administrator has certified in writing to the Indenture Trustee that such Servicing Agreement is a Facility Eligible Servicing Agreement, (2) the Administrative Agent (in its sole discretion) has approved such Servicing Agreement for addition and approved the designation of the Advance Types of Receivables that are eligible and (3) written notice of such addition has been provided to the Note Rating Agencies for Outstanding Notes. Prior to the addition of any Designated Servicing Agreement, as provided in this Section 2.1(c) , the Administrator must certify to the Indenture Trustee in writing that it has filed all financing statements or amendments to financing statements to ensure that the Indenture Trustee’s Security Interest in any Receivables related to any additional Designated Servicing Agreements is perfected and of first priority.
(B) If any Servicing Agreements are added as Designated Servicing Agreements, the Administrator shall update the Designated Servicing Agreement Schedule which shall specifically designate the Advance type of Receivables that are eligible and furnish it to the Indenture Trustee, and the most recently furnished schedule shall be maintained by the Indenture Trustee as the definitive Designated Servicing Agreement Schedule.
(C) Notwithstanding anything herein to the contrary, the Issuer may acquire existing Receivables under Servicing Agreements to be added as Designated Servicing Agreements directly from another special purpose financing subsidiary of Advance Purchaser, the Receivables from which are at the time of transfer financed in another facility and such Receivables may constitute Facility Eligible Receivables notwithstanding that such Receivables were not transferred by the Receivables Seller to the Depositor and then by the Depositor to the Issuer.
(ii) Removal of Designated Servicing Agreements .
(A) Advance Purchaser may remove any Servicing Agreement as a Designated Servicing Agreement under Section 2(e) of the Receivables Sale Agreement and/or change any Advance Types of Receivables that are designated as eligible or ineligible pursuant to such Servicing Agreement, whereupon such agreement shall no longer constitute a “Designated Servicing Agreement” or the Advance Types of Receivables shall no longer be designated as eligible or no longer be designated as ineligible (as the case may be, with respect to changes in categorization of certain Advance Types from the date on which they were originally designated with approval of the Administrative Agent) pursuant to such Servicing Agreement for purposes of this Indenture (except that, unless the Issuer conducts a Permitted Refinancing, Receivables related to Advances made by or Deferred Servicing Fees accrued by the Servicer pursuant to that agreement prior to its removal shall continue to be part of the Trust Estate, in which case Advance Purchaser may not assign to another Person any Receivables arising under
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that Servicing Agreement until all Receivables that arose under that Servicing Agreement that are included in the Trust Estate shall have been paid in full or sold or otherwise transferred in a Permitted Refinancing). Prior to removing any Designated Servicing Agreement or designating such Advance Types of Receivables as no longer eligible or no longer ineligible pursuant to such Servicing Agreement as provided in this Section 2.1(c) , the Issuer must (1) receive prior written approval from the Administrative Agent, which may be given or withheld in its sole and absolute discretion and (2) send prior written notice of such removal to each Note Rating Agency.
(B) If any Servicing Agreements are removed as Designated Servicing Agreements or any Advance Types of Receivables with respect to a Designated Servicing Agreement are no longer designated as eligible or no longer designated as ineligible as the case may be, with respect to changes in categorization of certain Advance Types from the date on which they were originally designated with approval of the Administrative Agent, the Administrator shall update the Designated Servicing Agreement Schedule, which shall specifically designate the Advance type of Receivables that are eligible and furnish it to the Indenture Trustee, and the most recently furnished schedule shall be maintained by the Indenture Trustee as the definitive Designated Servicing Agreement Schedule.
If one or more Designated Servicing Agreements is removed as described in this Section 2.1(c) during any Facility Year, the Administrative Agent shall have the right to require the Servicer to obtain written affirmation from each applicable Note Rating Agency of its continued rating of the Notes, as applicable, at the Servicer’s expense, once in respect of each Facility Year in which such a removal shall have occurred and the Servicer shall obtain such Note Rating Agency’s written affirmation of ratings if so requested in writing by the Administrative Agent, at the Servicer’s sole cost and expense.
(d) Protection of Transfers to, and Back-up Security Interests of Depositor and Issuer . The Administrator shall take all actions as may be necessary to ensure that the Trust Estate is Granted to the Indenture Trustee pursuant to this Indenture. The Administrator, at its own expense, shall make all initial filings on or about the Closing Date hereunder and shall forward a copy of such filing or filings to the Indenture Trustee. In addition, and without limiting the generality of the foregoing, the Administrator, at its own expense at the reasonable request of the Administrative Agent, shall prepare and forward for filing, or shall cause to be forwarded for filing, all filings necessary to maintain the effectiveness of any original filings necessary under the relevant UCC to perfect and maintain the first priority status of the Indenture Trustee’s security interest in the Trust Estate, including without limitation (i) continuation statements, and (ii) such other statements as may be occasioned by (A) any change of name of any of the Receivables Seller, the Servicer, the Depositor or the Issuer, (B) any change of location of the jurisdiction of any of the Receivables Seller, the Servicer, the Depositor or the Issuer, (C) any transfer of any interest of the Receivables Seller, the Depositor or the Issuer in any item in the Trust Estate or (D) any change under the applicable UCC or other applicable laws. The Administrator shall enforce the Depositor’s obligations pursuant to the Receivables Pooling Agreement, and the Receivables Seller’s and the Servicer’s obligations pursuant to the Receivables Sale Agreement, on behalf of the Issuer and the Indenture Trustee.
(e) Release of Receivables Following Receivables Sale Termination Date . The Indenture Trustee shall release to the Issuer all Receivables in the Trust Estate upon the occurrence of the Receivables Sale Termination Date, and shall execute all instruments of assignment, release or conveyance, prepared by the Issuer or the Receivables Seller, and delivered to the Indenture Trustee, as reasonably requested by the Issuer or the Receivables Seller.
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Section 2.2. Receivable Files.
(a) Indenture Trustee . The Indenture Trustee agrees to hold, in trust on behalf of the Noteholders, upon the execution and delivery of this Indenture, the following documents relating to each Receivable:
(i) a copy of each Determination Date Report in electronic form listing each Receivable Granted to the Trust Estate, the applicable Advance Type for such Receivable and the corresponding Receivable Balance for such Receivable and demonstrating the profitability or loss of each Subservicing Agreement for the immediately preceding calendar quarter in detail reasonably acceptable to the Administrative Agent no later than forty-five (45) days after the end of such quarter, and any other information required in any related Indenture Supplement;
(ii) a copy of each Funding Certification delivered by the Administrator, which shall be maintained in electronic format;
(iii) the current Designated Servicing Agreement Schedule;
(iv) the current Schedule of Receivables; and
(v) and any other documentation provided for in any Indenture Supplement
provided that the Indenture Trustee shall have no responsibility to ensure the validity or sufficiency of the Receivables.
(b) Administrator as Custodian . To reduce administrative costs, the Administrator will act as custodian for the benefit of the Noteholders of the following documents relating to each Receivable:
(i) a copy of the related Designated Servicing Agreement and each amendment and modification thereto;
(ii) any documents other than those identified in Section 2.2(a) received from or made available by the related MBS Trustee, Servicer, securities administrator or other similar party in respect of such Receivable; and
(iii) any and all other documents that the Issuer, the Servicer or the Receivables Seller, as the case may be, shall keep on file, in accordance with its customary procedures, relating to such Receivable or the related Mortgage Pool or Servicing Agreement.
(c) Delivery of Updated Designated Servicing Agreement Schedule . The Administrator shall deliver to the Indenture Trustee an updated Schedule 1 , prior to the addition or deletion of any Servicing Agreement as a Designated Servicing Agreement or modification to the eligibility status of any Advance Type of Receivables arising under such Servicing Agreement and the Indenture Trustee shall hold the most recently delivered version as the definitive Schedule 1 . The Administrator represents and warrants, as of the date hereof and as of the date any new Servicing Agreement is added as a Designated Servicing Agreement, that Schedule 1 , as it may be updated by the Administrator from time to time and delivered to the Indenture Trustee, is a true, complete and accurate list of all Designated Servicing Agreements.
In addition, the Administrator shall furnish to the Indenture Trustee an updated Schedule of Receivables on each Funding Date in electronic form, and the Indenture Trustee shall maintain the most recent Schedule of Receivables it receives, and send a copy to any Noteholder upon request.
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In addition, in connection with the delivery of each updated Schedule 1 pursuant to this Section 2.2(c) , the Administrator shall furnish to the Indenture Trustee an updated Schedule 2 , Schedule 3 or Schedule 4 as necessary to reflect any updates upon the addition or removal of Designated Servicing Agreements or designation or modification of eligibility status for any Advance Type of Receivables pursuant to Section 2.1(c) .
(d) Marking of Records . The Administrator or the Sub-Administrator on behalf of the Administrator shall ensure that, from and after the time of the sale and/or contribution of the Initial Receivables and all Additional Receivables to the Depositor under the Receivables Sale Agreement and to the Issuer under the Receivables Pooling Agreement, and the Grant thereof to the Indenture Trustee pursuant to this Indenture, any records (including any computer records and back-up archives) maintained by or on behalf of the Servicer that refer to any Receivable indicate clearly the interest of the Issuer and the Security Interest of the Indenture Trustee in such Receivable and that such Receivable is owned by the Issuer and subject to the Indenture Trustee’s Security Interest. Indication of the Issuer’s ownership of a Receivable and the Security Interest of the Indenture Trustee shall be deleted from or modified on such records when, and only when, such Receivable has been paid in full, repurchased, or assigned by the Issuer and released by the Indenture Trustee from its Security Interest.
Section 2.3. Indemnity Payments for Receivables Upon Breach.
(a) Upon discovery by the Issuer or the Administrator, or upon the actual knowledge of a Responsible Officer of the Indenture Trustee, of a breach of any of the representations and warranties of the Receivables Seller as to any Receivable set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement, the party discovering such breach shall give prompt written notice to the other parties hereto. Upon notice of such a breach, the Administrator shall enforce the Issuer’s rights to require the Receivables Seller to deposit the Indemnity Payment with respect to the affected Receivable(s) into the Collection and Funding Account. This obligation shall pertain to all representations and warranties of the Receivables Seller as to the Receivables set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement, whether or not the Receivables Seller has knowledge of the breach at the time of the breach or at the time the representations and warranties were made.
(b) Unless repurchased by the Receivables Seller in a transaction contemplated by Section 2.1 hereof, the Receivables shall remain in the Trust Estate, regardless of any receipt of an Indemnity Payment in the Collection and Funding Account. The sole remedies of the Indenture Trustee and the Noteholders with respect to a breach of any of the representations and warranties of the Receivables Seller as to any Receivable set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement shall be to enforce the obligation of the Issuer hereunder and the remedies of the Issuer (as assignee of the Depositor) against the Receivables Seller under the Receivables Sale Agreement. The Indenture Trustee shall have no duty to conduct any affirmative investigation as to the occurrence of any condition requiring the payment of any Indemnity Payment for any Receivable pursuant to this Section 2.3 , except as otherwise provided in Section 11.2 .
(c) To the extent not prohibited by Applicable Law, the Administrator and solely during the continuation of a Facility Early Amortization Event, the Indenture Trustee, are authorized to commence at the written direction of the Administrative Agent or Majority Noteholders of all Outstanding Notes, in its own name or in the name of the Issuer, legal proceedings to enforce any Receivable against the related MBS Trustee or any successor servicer or other appropriate party or to commence or participate in a legal proceeding (including without limitation a bankruptcy proceeding) relating to or involving a Receivable, the Receivables Seller or the Servicer; provided , however , that nothing contained herein shall obligate the Indenture Trustee to take or initiate such action or legal proceeding, unless indemnity reasonably satisfactory to it shall have been provided. The Administrator or the Sub-Administrator on behalf of the Administrator shall deposit or cause to be deposited into the Collection and Funding Account, on behalf of the Indenture Trustee and the Noteholders, all amounts realized in connection with any such action.
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Section 2.4. Duties of Custodian with Respect to the Receivables Files.
(a) Safekeeping . The Indenture Trustee or the Administrator (or a Sub-Administrator acting on the Administrator’s behalf), in its capacity as custodian (each, a “ Custodian ”) pursuant to Section 2.2(c) , shall hold the portion of the Receivable Files that it is required to maintain under Section 2.2 in its possession from time to time for the use and benefit of all present and future Noteholders, and maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the Calculation Agent and the Indenture Trustee to comply with this Indenture. Each Custodian shall act with reasonable care, using that degree of skill and attention that it would exercise if it owned the Receivables itself. Each Custodian shall promptly report to the Issuer any failure on its part to hold the Receivable Files and maintain its accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. The Indenture Trustee shall have no responsibility or liability for any actions or omissions of the Administrator in its capacity as Custodian or otherwise.
(b) Maintenance of and Access to Records . Each Custodian shall maintain each portion of the Receivable File that it is required to maintain under this Indenture at its offices at the Corporate Trust Office (in the case of the Indenture Trustee) or 350 Highland Drive, Lewisville, TX 75067 (in the case of the Servicer) as the case may be, or at such other office as shall be specified to the Indenture Trustee and the Issuer by thirty (30) days’ prior written notice. The Administrator (or a Sub-Administrator acting on the Administrator’s behalf) shall take all actions necessary, or reasonably requested by the Administrative Agent, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee, to amend any existing financing statements and continuation statements, and file additional financing statements to further perfect or evidence the rights, claims or security interests of the Indenture Trustee under any of the Transaction Documents (including the rights, claims or security interests of the Depositor and the Issuer under the Receivables Sale Agreement and the Receivables Pooling Agreement, respectively, which have been assigned to the Indenture Trustee). The Indenture Trustee and the Administrator, in their capacities as Custodian(s), shall make available to the Issuer, the Calculation Agent, any group of Interested Noteholders and the Indenture Trustee (in the case of the Administrator) or their duly authorized representatives, attorneys or auditors the portion of the Receivable Files that it is required to maintain under this Indenture and the accounts, books and records maintained by the Indenture Trustee or the Administrator with respect thereto as promptly as reasonably practicable following not less than two (2) Business Days’ prior written notice for examination during normal business hours and in a manner that does not unreasonably interfere with such Person’s ordinary conduct of business.
Section 2.5. Application of Trust Money.
All money deposited with the Indenture Trustee or the Paying Agent pursuant to Section 4.2 shall be held in trust and applied by the Indenture Trustee or the Paying Agent, as the case may be, in accordance with the provisions of the Notes and this Indenture, to the payment to the Persons entitled thereto, of the principal, interest, fees, costs and expenses (or payments in respect of the New Receivables Funding Amount or other amount) for whose payment such money has been deposited with the Indenture Trustee or the Paying Agent.
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Article III
Administration of Receivables; Reporting to Investors
Section 3.1. Duties of the Calculation Agent.
(a) General . The Calculation Agent shall initially be Wells Fargo Bank, N.A. The Calculation Agent is appointed for the purpose of making calculations and verifications as provided in this Section 3.1(a) . The Calculation Agent, as agent for the Noteholders, shall provide all services necessary to fulfill the role of Calculation Agent as set forth in this Indenture.
By 2:00 p.m. New York City time on each Payment Date (or such other time as may be agreed to from time to time by the Servicer, the Administrator, the Indenture Trustee and the Administrative Agent), based upon information provided to the Indenture Trustee and the Calculation Agent by the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to the Designated Servicing Agreements and the Transaction Documents, as well as each applicable Determination Date Report and all available reports issued by the MBS Trustee or Servicer for the applicable Mortgage Pool, the Calculation Agent shall prepare, or cause to be prepared, and deliver by first class mail or electronic means (including on the website pursuant to Section 3.5(a) ) to Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency, a report setting forth the information set forth below plus a Series-specific Calculation Agent Report reporting the items for each Series that are specified in the related Indenture Supplement (collectively for each Series, the “ Calculation Agent Report ” to the extent such information is received from the Administrator or the Sub-Administrator on behalf of the Administrator):
(i) The aggregate unpaid principal balance of the Mortgage Loans subject to each separate Designated Servicing Agreement as reported in MBS Trustee reports for the previous calendar month;
(ii) (A) The aggregate Month-to-Date Available Funds collected, (B) the aggregate Advance Reimbursement Amounts, (C) the aggregate amount of Indemnity Payments and (D) the aggregate amount of proceeds collected during the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date for all Designated Servicing Agreements;
(iii) The aggregate of the Funded Advance Receivable Balances of the Additional Receivables funded during the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date for all Designated Servicing Agreements;
(iv) The aggregate of the Funded Advance Receivable Balances for each of the P&I Advances, Judicial P&I Advances, Non-Judicial P&I Advances, Escrow Advances, Judicial Escrow Advances, Non-Judicial Escrow Advances, Corporate Advances, Judicial Corporate Advances, Non-Judicial Corporate Advances, Servicing Fee Advances, Judicial Deferred Servicing Fees and Non-Judicial Deferred Servicing Fees attributable to each Designated Servicing Agreement, as of the close of business on the day before the related Determination Date, plus the Funded Advance Receivable Balances for each of the P&I Advances, Judicial P&I Advances and Non-Judicial P&I Advances to be funded on the upcoming Funding Date;
(v) For each Designated Servicing Agreement, the percentage equivalent of the quotient of (A) the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement divided by (B) the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
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(vi) The identification of the related Derivative Counterparty, if any, for any Series, the current debt rating for such Derivative Counterparty, the notional amount for the Derivative Agreement and the applicable rate payable in respect of the Derivative Agreement;
(vii) An indication (yes or no) as to whether the Collateral Test is satisfied for each Class and Series, and for the facility as a whole as of the close of business on the last day of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(viii) A list of each Facility Early Amortization Event and presenting a yes or no answer beside each indicating whether each possible Facility Early Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(ix) If required by any VFN Noteholder, the aggregate New Receivables Funding Amount to be paid on the upcoming Funding Date, and the amount to be drawn on each Class of VFNs Outstanding in respect of such New Receivables Funding Amount, and the portion of such New Receivables Funding Amount that is to be paid using Available Funds pursuant to Section 4.5(a)(1)(vii) or Section 4.4(e) , as applicable and the amount to be drawn on each Class of VFNs Outstanding in respect of Excess Receivables Funding Amounts;
(x) If any Note is Outstanding, the amount, if any, to be paid on each such Class in reduction of the aggregate Principal Balance on the upcoming Payment Date or Interim Payment Date;
(xi) The amount of Fees to be paid on the upcoming Payment Date;
(xii) A list of each Receivable Granted to the Trust Estate, the applicable Advance Type for such Receivable and the corresponding Receivable Balance for such Receivable;
(xiii) The Required Expense Reserve and Series Reserve Required Amount for each Series of Notes for the upcoming Payment Date or Interim Payment Date;
(xiv) The Fee Accumulation Amount, the Interest Accumulation Amount and the Target Amortization Principal Accumulation Amount for the upcoming Interim Payment Date;
(xv) The Weighted Average Advance Rate and Weighted Average CV Adjusted Advance Rate for each Series and Class of the Notes and the Trigger Advance Rate for each Series and Class of the Notes, if any;
(xvi) The Class Invested Amount and, if applicable, the Series Invested Amount for each Series and Class for the upcoming Payment Date or Interim Payment Date;
(xvii) The Interest Payment Amount and the Target Amortization Amount for each Class of Outstanding Notes for the upcoming Payment Date, and the Senior Interest Amount, the Senior Cumulative Interest Shortfall Amount and the Subordinated Cumulative Interest Shortfall Amount for each Class of Notes for the Interest Accrual Period related to the upcoming Payment Date; and
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(xviii) The aggregate Collateral Value of all Facility Eligible Receivables for each Outstanding Series and the sum for all Outstanding Series as of the close of business on the day before the related Determination Date, pro forma Collateral Value of Facility Eligible Receivables for each Outstanding Series and the sum for all Outstanding Series that will be created upon the funding of P&I Advances to be funded on the related Funding Date.
(b) Termination of Calculation Agent . The Issuer (with the consent of the Majority Noteholders of all Outstanding Notes) or the Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series (in each case, measured by Voting Interests) may at any time terminate the Calculation Agent without cause upon sixty (60) days’ prior notice. If at any time the Calculation Agent shall fail to resign after written request therefor as set forth in this Section 3.1(b) , or if at any time the Calculation Agent shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Calculation Agent or of its property shall be appointed, or if any public officer shall take charge or Control of the Calculation Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Majority Noteholders of all Outstanding Notes may remove the Calculation Agent and such Noteholders shall also remove the Indenture Trustee as provided in Section 11.8(c) . If the Calculation Agent resigns or is removed under the authority of the immediately preceding sentence, then a successor Calculation Agent shall be appointed pursuant to Section 11.8 . The Issuer shall give each Note Rating Agency, each Derivative Counterparty and the Noteholders notice of any such resignation or removal of the Calculation Agent and appointment and acceptance of a successor Calculation Agent. Notwithstanding the foregoing, no resignation, removal or termination of the Calculation Agent shall be effective until the resignation, removal or termination of the predecessor Calculation Agent and until the acceptance of appointment by the successor Calculation Agent as provided herein. Any successor Indenture Trustee appointed shall also be the successor Calculation Agent hereunder, if the predecessor Indenture Trustee served as Calculation Agent and no separate Calculation Agent is appointed. Notwithstanding anything to the contrary herein, the Indenture Trustee may not resign as Calculation Agent unless it also resigns as Indenture Trustee pursuant to Section 11.8(b) .
(c) Successor Calculation Agents . Any successor Calculation Agent appointed hereunder shall execute, acknowledge and deliver to the Issuer and to its predecessor Calculation Agent an instrument accepting such appointment under this Indenture, and thereupon the resignation or removal of the predecessor Calculation Agent shall become effective and such successor Calculation Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Indenture, with like effect as if originally named as Calculation Agent. The predecessor Calculation Agent shall deliver to the successor Calculation Agent all documents and statements held by it under this Indenture. The Issuer and the predecessor Calculation Agent shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Calculation Agent all such rights, powers, duties and obligations. Upon acceptance of appointment by a successor Calculation Agent as provided in this Section 3.1 , the Issuer shall mail notice of the succession of such successor Calculation Agent under this Indenture to all Noteholders at their addresses as shown in the Note Register and shall give notice by mail to each Derivative Counterparty and each applicable Note Rating Agency. If the Issuer fails to mail such notice within ten (10) days after acceptance of appointment by the successor Calculation Agent, the successor Calculation Agent shall cause such notice to be mailed at the expense of the Administrator.
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Section 3.2. Reports by Administrator and Indenture Trustee.
(a) Determination Dates; Determination Date Reports . The Indenture Trustee shall report to the Administrator, by no later than 2:00 p.m. New York City time on the second (2 nd ) Business Day before each Funding Date (or such other time as may be agreed to from time to time by Administrator, the Indenture Trustee and the Administrative Agent), the amount of Available Funds that will be available to be applied toward New Receivables Funding Amounts or to pay principal on any applicable Notes on the upcoming Payment Date or Interim Payment Date. If the Administrator or the Sub-Administrator on behalf of the Administrator supplies no information to the Indenture Trustee in its Determination Date Report concerning New Receivables Funding Amounts or payments on any Variable Funding Note in respect of an Interim Payment Date, then the Indenture Trustee shall apply no Available Funds to pay New Receivables Funding Amounts or to make payment on any Note on such Interim Payment Date.
By no later than 12:00 p.m. (noon) New York City time on the second (2 nd ) Business Day prior to each Funding Date that is a VFN Draw Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent) or the first (1 st ) Business Day prior to each Funding Date that is not a VFN Draw Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator or the Sub-Administrator on behalf of the Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent, the Administrative Agent, each VFN Noteholder, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Paying Agent a report (the “ Determination Date Report ”) (in electronic form) setting forth each data item required to be reported by the Calculation Agent to Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency in its Calculation Agent Report pursuant to Section 3.1 .
(b) Payment Date Report . By no later than 3:00 p.m. New York City time on each Payment Date, the Indenture Trustee shall prepare and deliver to the Issuer, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent, each VFN Noteholder, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency a report (the “ Payment Date Report ”) reporting the following for such Payment Date and the Monthly Advance Collection Period preceding such Payment Date:
(i) the amount on deposit in the Collection and Funding Account as of the opening of business on the first (1 st ) day of such Monthly Advance Collection Period;
(ii) the aggregate amount of all Collections deposited into the Collection and Funding Account during such Monthly Advance Collection Period;
(iii) the aggregate amount of Indemnity Payments deposited into the Collection and Funding Account during such Monthly Advance Collection Period;
(iv) the total of all (A) payments in respect of each Class of Notes (separately identifying interest and principal paid on each Class) made on the Payment Date and each Interim Payment Date that occurred during the Monthly Advance Collection Period, (B) all New Receivables Funding Amounts paid in respect of Additional Receivables during such Monthly Advance Collection Period separately identifying the portion thereof paid from funds in the Collection and Funding Account and the portion thereof paid using proceeds of fundings of an increase in VFN Principal Balance(s) for each Class of VFNs, and (C) all Excess Cash Amounts paid to the Depositor as holder of the Owner Trust Certificate on the Payment Date and each Interim Payment Date that occurred during such Monthly Advance Collection Period;
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(v) the amount transferred from the Collection and Funding Account to the Note Payment Account in respect of the Payment Date that occurred during such Monthly Advance Collection Period;
(vi) the amount on deposit in each of the Interest Accumulation Account, Target Amortization Principal Accumulation Account, the Fee Accumulation Account and any other Trust Accounts set forth under any Indenture Supplement as of the close of business on the last Interim Payment Date before such Payment Date;
(vii) the aggregate amount of Collections received during the Monthly Advance Collection Period;
(viii) the amount of Available Funds for such Payment Date (the sum of the items reported in clause (vi) , plus the items reported in clause (vii) );
(ix) the amount on deposit in the Series Reserve Account for each Series, and, if applicable, the amount the Indenture Trustee is to withdraw from each such Series Reserve Account and deposit into the Note Payment Account on such Payment Date for application to the related Series of Notes;
(x) the amount of each payment required to be made by the Indenture Trustee or the Paying Agent pursuant to Section 4.5 on such Payment Date, including an identification, for each Class of Notes, as applicable, and for all Outstanding Notes in the aggregate, of
(A) any Cumulative Interest Shortfall Amount for each Class of Notes and for all Outstanding Notes of each Series in the aggregate;
(B) the Senior Interest Amount for each Class of Notes for the Interest Accrual Period related to such Payment Date;
(C) the Interest Payment Amount for each Class of Notes and for all Outstanding Notes of each Series in the aggregate;
(D) the Series Reserve Required Amount for each Series of Notes then Outstanding;
(E) the Target Amortization Amount to be paid on such Payment Date on each Class of Outstanding Notes that is in its Target Amortization Period; and
(F) the unpaid Note Balance for each Class and Series of Notes and for all Outstanding Notes in the aggregate (before and after giving effect to any principal payments to be made on such Payment Date);
(xi) the amount of Fees to be paid on such Payment Date;
(xii) (A) the Collateral Value of all Facility Eligible Receivables, as of the close of business on the last day of such Monthly Advance Collection Period and as of the close of business on such Payment Date for each Outstanding Series of Notes, (B) the amount on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account, the Target Amortization Principal Accumulation Account, any other
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Trust Accounts set forth in any related Indenture Supplement and the Note Payment Account as of the close of business on the last day of such Monthly Advance Collection Period and as of the close of business on such Payment Date, and (C) a calculation demonstrating whether the Collateral Test was satisfied at such time and whether it will be satisfied as of the close of business on such Payment Date after all payments and distributions described in Section 4.5(a) ; and
(xiii) the Senior Interest Amount, the Senior Cumulative Interest Shortfall Amount and the Subordinated Cumulative Interest Shortfall Amount for each Series and Class of Notes for the Interest Accrual Period related to the upcoming Payment Date.
The Payment Date Report shall also state any other information required pursuant to any related Indenture Supplement necessary for the Paying Agent and the Indenture Trustee to make the payments required by Section 4.5(a) and all information necessary for the Indenture Trustee to make available to Noteholders pursuant to Section 3.5 .
(c) Interim Payment Date Reports . By no later than 3:00 p.m. New York City time on each Interim Payment Date on which there is a VFN Outstanding and on which the Full Amortization Periods have not yet begun, the Indenture Trustee shall prepare and deliver to the Issuer, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each VFN Noteholder a report (an “ Interim Payment Date Report ”) reporting the following for such Interim Payment Date and the Advance Collection Period preceding such Interim Payment Date:
(i) (A) the amount on deposit in the Collection and Funding Account as of the close of business on the last day before the beginning of such Advance Collection Period and (B) the amounts on deposit in the Interest Accumulation Account, the Target Amortization Principal Accumulation Account, the Fee Accumulation Account and any other Trust Accounts set forth in any Indenture Supplement, as of the close of business on the immediately preceding Payment Date or Interim Payment Date;
(ii) the amount of all Collections deposited into the Collection and Funding Account during such Advance Collection Period;
(iii) the aggregate amount of Indemnity Payments deposited into the Collection and Funding Account during such Advance Collection Period;
(iv) the aggregate amount of deposits into the Collection and Funding Account from the Note Payment Account in respect of the Payment Date, if any, that occurred during such Advance Collection Period;
(v) the total of all (A) payments in respect of each Class of Notes (separately identifying interest and principal paid on each Class of Variable Funding Notes) made on the Payment Date or Interim Payment Date that occurred during such Advance Collection Period, (B) all New Receivables Funding Amounts that were paid in respect of Additional Receivables during such Advance Collection Period, separately identifying the portion thereof paid from funds on deposit in the Collection and Funding Account and the portion thereof paid using proceeds of an increase in VFN Principal Balance(s) for each Class of VFNs, and (C) all Excess Cash Amounts paid to the Depositor as holder of the Owner Trust Certificate on the Payment Date or Interim Payment Date that occurred during such Advance Collection Period;
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(vi) the amount transferred from the Collection and Funding Account to the Note Payment Account in respect of the Payment Date, if any, that occurred during such Advance Collection Period;
(vii) the amount of Available Funds for such Interim Payment Date (calculated as the sum of the items reported in clauses (i)(B) and (vi) );
(viii) the amount on deposit in the Series Reserve Account for each Series and the Series Reserve Required Amount for such Series Reserve Account, and the amount to be deposited into each Series Reserve Account on such Interim Payment Date;
(ix) the amounts required to be deposited on such Interim Payment Date into the Interest Accumulation Account, Target Amortization Principal Accumulation Account, Fee Accumulation Account and any other Trust Account referenced in any related Indenture Supplement, respectively;
(x) the amount of Available Funds to be applied toward the New Receivables Funding Amount of Additional Receivables on the upcoming Interim Payment Date pursuant to Section 4.4(e) ;
(xi) the amount to be applied to reduce the aggregate VFN Principal Balance of each Class of VFNs on such Interim Payment Date (as reported to the Indenture Trustee by the Administrator);
(xii) the amount of any Excess Cash Amount paid to the Depositor as holder of the Owner Trust Certificate on such Interim Payment Date;
(xiii) the Collateral Value of all Facility Eligible Receivables as of the end of such Advance Collection Period and as of the close of business on such Interim Payment Date for each Outstanding Series of Notes and the amount on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account, the Target Amortization Principal Accumulation Account, the Note Payment Account and any other Trust Account referenced in a related Indenture Supplement as of the end of business on the last day of such Advance Collection Period and as of the close of business on such Interim Payment Date;
(xiv) a calculation demonstrating whether the Collateral Test was satisfied as of the end of business on the last day of such Advance Collection Period and whether it will be satisfied at such time after effecting the payments described in Section 4.4 ; and
(xv) any other amounts specified in an Indenture Supplement.
(d) No Duty to Verify or Recalculate . Notwithstanding anything contained herein to the contrary, none of the Calculation Agent (except as described in Section 3.1(a) ), the Indenture Trustee or the Paying Agent shall have any obligation to verify or recalculate any information provided to them by the Administrator, and may rely on such information in making the allocations and payments to be made pursuant to Article IV .
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Section 3.3. Annual Statement as to Compliance; Notice of Default; Agreed Upon Procedures Reports.
(a) Annual Officer’s Certificates .
(i) The Servicer and the Receivables Seller shall each deliver to each Note Rating Agency and the Indenture Trustee, on or before March 31 of each calendar year, beginning on March 31, 2014, an Officer’s Certificate of the Servicer and the Receivables Seller, executed by the chief financial officer, with respect to Nationstar, and by the chief financial officer, with respect to Advance Purchaser, stating that (A) a review of the activities of the Servicer (and any related Subservicer) or the Receivables Seller, as the case may be, during the preceding 12-month period ended December 31 and of its performance under this Indenture and the Receivables Sale Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Receivables Seller has fulfilled all its obligations under this Indenture and the Receivables Sale Agreement in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof. For purposes of the Officer’s Certificate that will be delivered on March 31, 2014, Nationstar, in its capacity as Servicer and Receivables Seller, shall deliver such Officer’s Certificate covering the reporting period from January 1, 2013 through the Effective Date and Advance Purchaser, in its capacity as Servicer, shall deliver such Officer’s Certificate covering the reporting period from the Effective Date and thereafter.
(ii) The Administrator shall deliver to each Note Rating Agency and the Indenture Trustee, on or before March 31 of each calendar year, beginning on March 31, 2014, an Officer’s Certificate executed by the chief financial officer of the Administrator, stating that (A) a review of the activities of the Issuer, the Depositor and the Administrator during the preceding 12-month period ended December 31 and of its performance under this Indenture, the Receivables Sale Agreement and the Receivables Pooling Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Administrator has fulfilled all its obligations under this Indenture in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof. For purposes of the Officer’s Certificate that will be delivered on March 31, 2014, Nationstar, in its capacity as administrator prior to the Effective Date, shall deliver such Officer’s Certificate covering the reporting period from January 1, 2013 through the Effective Date and Advance Purchaser, in its capacity as Administrator, shall deliver such Officer’s Certificate covering the reporting period from the Effective Date and thereafter.
(b) Notice of Default . The Indenture Trustee shall deliver to the Noteholders, the Issuer, each Derivative Counterparty (as applicable, in the case of any Target Amortization Event, with respect to the related Series of Notes) and each Note Rating Agency promptly after a Responsible Officer has obtained actual knowledge thereof, but in no event later than five (5) Business Days thereafter or such shorter time period as may be required by any Note Rating Agency, written notice specifying the nature and status of any Target Amortization Event, Event of Default or Facility Early Amortization Event.
(c) Annual Regulation AB/USAP Report . The Servicer shall, on or before the last Business Day of the fifth month following the end of each of the Servicer’s fiscal years (December 31), beginning in 2014, deliver to the Indenture Trustee who shall forward to each Noteholder a copy of the results of any Regulation AB required attestation report or Uniform Single Attestation Program for Mortgage Bankers or similar review conducted on the Servicer by its accountants and any other reports reasonably requested by the Administrative Agent.
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(d) Agreed Upon Procedures Report . Within forty five (45) days of the end of each calendar month beginning with the calendar month ending October 31, 2013 and up to and including the calendar month ending November 30, 2013, and within forty five (45) days of the end of each calendar quarter of the Servicer, beginning with the quarter ending December 31, 2013, the Servicer shall cause PricewaterhouseCoopers LLP (who may also render other services to the Servicer, the Receivables Seller or the Depositor) (or any replacement therefor approved by the Administrative Agent, the “ Verification Agent ”) to furnish, at the Servicer’s or the Subservicer’s expense, a report to the Servicer and the Administrative Agent with respect to the prior calendar quarter, (i) to the effect that the Verification Agent has applied certain procedures, to be determined at the discretion of the Administrative Agent after consultation with the Servicer and shall be incorporated as Exhibit D hereto after the Closing Date, including re-performance of certain accounting procedures performed by the Servicer and the Subservicer pursuant to Designated Servicing Agreements and examination of certain documents and records related to the disbursement and reimbursement of Advances and accrual and payment of Deferred Servicing Fees under the related Designated Servicing Agreements and this Indenture and that, on the basis of such agreed-upon procedures, the Verification Agent confirms that the servicing (including the allocation of collections) has been conducted in compliance with the terms and conditions set forth in Article IV, except for such exceptions as it believes to be immaterial and such other exceptions as shall be set forth in such statement, and (ii) detailing the following items for such calendar quarter:
(A) For a sample of Designated Servicing Agreements for at least three dates during the applicable quarter, a reconciliation of the expected total principal and interest payments in respect of the Mortgage Loans to the amounts on deposit in the related Custodial Accounts;
(B) Daily receipt clearing reconciliation (three (3) days at a minimum) with respect to a sample of Custodial Accounts;
(C) A reconciliation of the monthly disbursement clearing account with respect to at least two (2) dates per calendar quarter;
(D) “Flow of funds” testing for all of P&I Advances, Escrow Advances, Corporate Advances and Deferred Servicing Fees relating to the tracking of funds from clearing account receipt through to deposit into the Collection and Funding Account (three (3) days minimum);
(E) A reconciliation of the servicing system Escrow Advance balance (including all suspense and advance balances) to the balances on deposit in the escrow accounts maintained by the Servicer for a sample of the Designated Servicing Agreements;
(F) Analysis of recoverable Advances and Receivables and aging of these items;
(G) Analysis of whether the thresholds with respect to the Designated Servicing Agreements listed on Schedule 3 , and as specified in clause (ix) of the definition of “Facility Eligible Receivable” and in any related Indenture Supplement including any Collateral Value exclusions provided for therein, respectively, have been met and whether the thresholds with respect to the Servicing Agreements listed on Schedule 4 and as specified in the definition of “Facility Eligible Servicing Agreement” have been met; and
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(H) A comparison of the amounts and percentages set forth in four of the Determination Date Reports forwarded by the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to Section 3.2(a) during the period covered by such report with the computer reports (which may include personal computer generated reports that summarize data from the computer reports generated by the Administrator or the Sub-Administrator which are used to prepare the Determination Date Reports) which were the source of such amounts and percentages and that on the basis of such comparison; and
(I) Any other data reasonably requested by the Administrative Agent.
For purposes of this section, items performed by the Subservicer on behalf of the Servicer will be deemed to have been verified as to the Servicer if such verification procedures have been performed with respect to the Subservicer.
In addition, each report shall set forth the agreed upon procedures performed and the results of such procedures. A copy of such report will be sent by the Verification Agent or the Indenture Trustee to each Noteholder upon receipt of a written request of the Noteholder. In the event the Verification Agent requires the Indenture Trustee to agree to the procedures performed by the Verification Agent, the Issuer shall direct the Indenture Trustee in writing to so agree; it being understood and agreed that the Indenture Trustee will deliver such letter of agreement in conclusive reliance upon the direction of the Issuer, and the Indenture Trustee makes no independent inquiry or investigation as to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures. Furthermore, in the event that the Verification Agent’s expense in producing a report as required hereunder exceeds the amount reimbursable to it pursuant to Section 4.5 , such excess shall be payable by the Administrator, at the Administrator’s own expense, upon receipt by the Administrator of written notification of, and request for, such amount from the Verification Agent.
(e) Reserved.
(f) Annual Lien Opinion . Within one hundred (100) days after the end of each fiscal year of the Administrator, beginning with the fiscal year ending in 2014, the Administrator shall deliver to the Indenture Trustee an Opinion of Counsel from outside counsel to the effect that the Indenture Trustee has a perfected security interest in the Aggregate Receivables attributable to the Servicing Agreements identified in an exhibit to such opinion as Designated Servicing Agreements, and that, based on a review of UCC search reports (copies of which shall be attached thereto) and review of other certifications and other materials, there are no UCC1 filings indicating an Adverse Claim with respect to such Receivables that has not been released.
(g) Other Information . In addition, the Administrator shall forward to the Administrative Agent, upon its reasonable request, such other information, documents, records or reports respecting (i) Advance Purchaser, Nationstar or any of their respective Affiliates party to the Transaction Documents, (ii) the condition or operations, financial or otherwise, of Advance Purchaser, Nationstar or any of their respective Affiliates party to the Transaction Documents, (iii) the Designated Servicing Agreements, the related Mortgage Loans and the Receivables or (iv) the transactions contemplated by the Transaction Documents, including access to the Servicer’s and each Subservicer’s management and records. In addition, Nationstar shall forward to the Administrative Agent, upon its reasonably request, such other information, documents, records or reports respecting (i) Nationstar or any of its Affiliates party to the Transaction Documents, (ii) the condition or operations, financial or otherwise, of Nationstar or any of its Affiliates party to the Transaction Documents, (iii) Designated Servicing Agreements, the related Mortgage Loans and the Receivables or (iv) the transactions contemplated by the Transaction Documents.
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The Administrative Agent shall and shall cause its respective representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or the Administrative Agent may reasonably determine that such disclosure is consistent with its obligations hereunder; provided , however , that the Administrative Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder.
Section 3.4. Access to Certain Documentation and Information.
(a) Access to Receivables Information . The Custodians shall provide the Noteholders with access to the documentation relating to the Receivables as provided in Section 2.4(b) . In each case, access to documentation relating to the Receivables shall be afforded without charge but only upon reasonable request and during normal business hours at the offices of the Custodians and in a manner that does not unreasonably interfere with a Custodian’s conduct of its regular business. Nothing in this Section 3.4 shall impair the obligation of the Custodians to observe any Applicable Law prohibiting disclosure of information regarding the Trust Estate and the failure of the Custodians to provide access as provided in this Section 3.4 as a result of such obligation shall not constitute a breach of this Section.
Notwithstanding anything to the contrary contained in this Section 3.4 , Section 2.4 , or in any other Section hereof, the Servicer and the Subservicer, on reasonable prior notice, shall permit the Administrative Agent, the Verification Agent, the Indenture Trustee or any agent or independent certified public accountants selected by the Indenture Trustee, during the Servicer’s or the Subservicer’s, as applicable, normal business hours, and in a manner that does not unreasonably interfere with the Servicer’s or the Subservicer’s, as applicable, conduct of its regular business, to examine all the books of account, records, reports and other papers of the Servicer or the Subservicer, as applicable, relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables, to make copies and extracts therefrom, and to discuss the Servicer’s or the Subservicer’s, as applicable, affairs, finances and accounts relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables with the Servicer’s officers, employees and independent public accountants (and by this provision the Servicer hereby authorizes the Servicer’s accountants to discuss with such representatives such affairs, finances and accounts), all at such times and as often as reasonably may be requested; provided that the Servicer shall be given reasonable prior notice of any meeting with its accountants and shall have the right to have its representatives present at any such meeting. The Servicer shall at all times have equivalent access rights to the Subservicer. Unless a related Target Amortization Event, an Event of Default that has not been waived by Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent or a Facility Early Amortization Event that has not been waived by Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent shall have occurred, or the Notes of any rated Class have been downgraded below “investment grade” by each related Note Rating Agency or any related Note Rating Agency shall have withdrawn its rating of any Class of Notes, any out-of-pocket costs and expenses incident to the exercise by the Indenture Trustee or any Noteholder of any right under this Section 3.4 shall be borne by the requesting Noteholder(s). The parties hereto acknowledge that the Indenture Trustee shall not exercise any right pursuant to this Section 3.4 prior to any event set forth in the preceding sentence unless directed to do so by a group of Interested Noteholders, and the Indenture Trustee has been provided with indemnity satisfactory to it by such Interested Noteholders. The Indenture Trustee shall have no liability for action in accordance with the preceding sentence.
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In the event that such rights are exercised (i) following a related Target Amortization Event, (ii) following the occurrence of a Facility Early Amortization Event that has not been waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent, (iii) following the occurrence of an Event of Default that has not been waived by Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent, or (iv) after a related Note Rating Agency has withdrawn its rating of any Class of Notes or (iv) while the Notes of any rated Class have a rating below “investment grade” by such Note Rating Agency, all out-of-pocket costs and expenses incurred by the Indenture Trustee shall be borne by Advance Purchaser. Prior to any such payment, Advance Purchaser shall be provided with commercially reasonable documentation of such costs and expenses. Notwithstanding anything contained in this Section 3.4 to the contrary, in no event shall the books of account, records, reports and other papers of the Servicer, the Receivables Seller, the Depositor or the Issuer relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables be examined by independent certified public accountants at the direction of the Indenture Trustee or any Interested Noteholder pursuant to the exercise of any right under this Section 3.4 more than two times during any 12-month period, unless (A) a Target Amortization Event, (B) a Facility Early Amortization Event that has not been waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent has occurred during such twelve-month period, (C) an Event of Default has occurred that has not been waived by Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent during such twelve-month period, or (D) the Notes of any rated Class have been downgraded below “investment grade” by a related Note Rating Agency (without regard to any supplemental credit enhancement) or such Note Rating Agency shall have withdrawn its rating of any rated Class of Notes, in which case more than two examinations may be conducted during a twelve-month period, but such extra audits shall be at the sole expense of the Noteholder(s) requesting such audit(s).
(b) Access to Issuer . The Issuer agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, Verification Agent or the Administrative Agent, to examine all of its books of account, records, reports, and other papers, to make copies and extracts therefrom, to cause such books to be audited by independent certified public accountants, and to discuss its affairs, finances and accounts its officers, employees, and independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee, the Verification Agent and the Administrative Agent shall and shall cause their respective representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or the Indenture Trustee, the Verification Agent or the Administrative Agent, as applicable, may reasonably determine that such disclosure is consistent with its obligations hereunder; provided , however , that the Indenture Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder. Without limiting the generality of the foregoing, neither the Indenture Trustee, the Verification Agent or the Administrative Agent shall disclose information to any of its Affiliates or any of their respective directors, officers, employees and agents, that may provide any servicer advance financing to Nationstar, Advance Purchaser, the Depositor, the Issuer or any of their Affiliates, except in such Affiliate’s capacity as Noteholder.
Section 3.5. Indenture Trustee to Make Reports Available.
(a) Monthly Reports on Indenture Trustee’s Website . The Indenture Trustee will make each Determination Date Report, Payment Date Report and Interim Payment Date Report (and, at its option, any additional files containing the same information in an alternative format) available each month to any interested parties via the Indenture Trustee’s internet website and such other information as the Indenture Trustee may have in its possession, but only with the use of a password provided by the Indenture Trustee. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee’s internet
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website shall initially be located at www.ctslink.com. Assistance in using the Indenture Trustee’s website can be obtained by calling the Indenture Trustee’s investor relations desk at 1-866-846-4576. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the investor relations desk and requesting a copy. The Indenture Trustee shall have the right to change the way the Determination Date Reports, Payment Date Reports and Interim Payment Date Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Indenture Trustee shall provide timely and adequate notification to all above parties regarding any such changes.
All Noteholders are advised (and have been advised pursuant to any related offering document) to review any distribution statement, financial information and disbursements provided to them, and to bring any errors or omissions to the Indenture Trustee’s attention within ninety (90) days of receipt of such distribution statement, financial information or disbursement. If any errors or omissions are brought to the Indenture Trustee’s attention subsequent to such time period, the Indenture Trustee shall use good faith efforts to make the correction as requested; provided, however, such corrections shall be made in accordance with the Depository’s policies and procedures then in effect.
(b) Annual Reports . Within sixty (60) days after the end of each calendar year, the Indenture Trustee shall furnish to each Person (upon the written request of such Person), who at any time during the calendar year was a Noteholder a statement containing (i) information regarding payments of principal, interest and other amounts on such Person’s Notes, aggregated for such calendar year or the applicable portion thereof during which such person was a Noteholder and (ii) such other customary information as may be deemed necessary or desirable for Noteholders to prepare their tax returns. Such obligation shall be deemed to have been satisfied to the extent that substantially comparable information is provided pursuant to any requirements of the Code as are from time to time in force. The Indenture Trustee shall prepare and provide to the Internal Revenue Service and to each Noteholder any information reports required to be provided under federal income tax law, including without limitation IRS Form 1099.
Article IV
The Trust Accounts; Payments
Section 4.1. Trust Accounts.
The Indenture Trustee shall establish and maintain, or cause to be established and maintained, the Trust Accounts, each of which shall be an Eligible Account, for the benefit of the Secured Parties. All amounts held in the Trust Accounts (other than any Sinking Fund Account) shall, to the extent permitted by this Indenture and applicable laws, rules and regulations, be invested in Permitted Investments by the depository institution or trust company then maintaining such Account only upon written direction of the Administrator to the Indenture Trustee; provided , however , that in the event the Administrator fails to provide such written direction to the Indenture Trustee, and until the Administrator provides such written direction, the Indenture Trustee shall not invest funds on deposit in any Trust Account (other than any Sinking Fund Account). Funds deposited into a Trust Account on a Business Day after 1:30 p.m. New York City time will not be invested until the following Business Day. Investments held in Permitted Investments in the Trust Accounts (other than any Sinking Fund Account) shall not be sold or disposed of prior to their maturity (unless a Facility Early Amortization Event has occurred). Earnings on investment of funds in any Trust Account (other than any Sinking Fund Account) shall be remitted by the Indenture Trustee upon the Administrator’s request to the account or other location of the Administrator’s designation on the first (1 st ) Business Day
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of the month following the month in which such earnings on investment of funds is received; provided , that the Indenture Trustee shall be entitled to the benefit of any income or gain in the Trust Accounts (other than any Sinking Fund Account) for the Business Day immediately preceding each Interim Payment Date or Payment Date, as applicable. Any losses and investment expenses relating to any investment of funds in any Trust Account (other than any Sinking Fund Account) shall be for the account of the Administrator, which shall deposit or cause to be deposited the amount of such loss (to the extent not offset by income from other investments of funds in the related Trust Account) in the related Trust Account promptly upon the realization of such loss. The taxpayer identification number associated with each of the Trust Accounts (other than any Sinking Fund Account) shall be that of the Issuer, and the Issuer shall report for federal, state and local income tax purposes their respective portions of the income, if any, earned on funds in the relevant Trust Account (other than any Sinking Fund Account). The Administrator hereby acknowledges that all amounts on deposit in each Trust Account (excluding investment earnings on deposit in the Trust Accounts), other than any Sinking Fund Account, are held in trust by the Indenture Trustee for the benefit of the Secured Parties, subject to any express rights of the Issuer set forth herein, and shall remain at all times during the term of this Indenture under the sole dominion and control of the Indenture Trustee.
All amounts held in any Sinking Fund Account shall, to the extent permitted by this Indenture and applicable laws, rules and regulations, be invested in Sinking Fund Permitted Investments by the depository institution or trust company then maintaining such Sinking Fund Account only upon written direction of the Administrator to the Indenture Trustee; provided , however , that in the event the Administrator fails to provide such written direction to the Indenture Trustee, and until the Administrator provides such written direction, the Indenture Trustee shall not invest funds on deposit in any Sinking Fund Account. Funds deposited into a Sinking Fund Account on a Business Day after 1:30 p.m. New York City time will not be invested until the following Business Day. Investments held in Sinking Fund Permitted Investments in any Sinking Fund Account shall not be sold or disposed of prior to their maturity (unless a Facility Early Amortization Event has occurred). Earnings on investment of funds in any Sinking Fund Account shall be remitted by the Indenture Trustee upon the Administrator’s request to the account or other location of the Administrator’s designation on the first (1 st ) Business Day of the month following the month in which such earnings on investment of funds is received; provided , that the Indenture Trustee shall be entitled to the benefit of any income or gain in the Sinking Fund Accounts for the Business Day immediately preceding each Interim Payment Date or Payment Date, as applicable. Any losses and investment expenses relating to any investment of funds in any Sinking Fund Account shall be for the account of the Administrator, which shall deposit or cause to be deposited the amount of such loss (to the extent not offset by income from other investments of funds in the related Sinking Fund Account) in the related Sinking Fund Account promptly upon the realization of such loss. The taxpayer identification number associated with each of the Sinking Fund Accounts shall be that of the Issuer, and the Issuer shall report for federal, state and local income tax purposes their respective portions of the income, if any, earned on funds in the relevant Sinking Fund Account. The Administrator hereby acknowledges that all amounts on deposit in each Sinking Fund Account (excluding investment earnings on deposit in the Sinking Fund Accounts) are held in trust by the Indenture Trustee for the benefit of the Noteholders, subject to any express rights of the Issuer set forth herein, and shall remain at all times during the term of this Indenture under the sole dominion and control of the Indenture Trustee.
So long as the Indenture Trustee complies with the provisions of this Section 4.1 , the Indenture Trustee shall not be liable for the selection of investments or for investment losses incurred thereon by reason of investment performance, liquidation prior to stated maturity or otherwise. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure to be provided with timely written investment direction.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“ Applicable Law ”), the Indenture Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee. Accordingly, each of the parties agrees to provide to the Indenture Trustee upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with Applicable Law.
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All parties to this Indenture agree, and each Noteholder of each Series by its acceptance of the related Note will be deemed to have agreed, that such Noteholder shall have no claim or interest in the amounts on deposit in any Trust Account created under this Indenture or any related Indenture Supplement related to an unrelated Series except as expressly provided herein or therein.
The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be for the Indenture Trustee’s economic self-interest for (a) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments and Sinking Fund Permitted Investments, (b) using Affiliates to effect transactions in certain Permitted Investments and Sinking Fund Permitted Investments and (c) effecting transactions in certain Permitted Investments and Sinking Fund Permitted Investments. Such compensation is not payable or reimbursable under this Indenture.
Section 4.2. Collections and Disbursements of Advances by Servicer.
(a) Daily Deposits of Net Proceeds . The Servicer shall deposit all Advance Reimbursement Amounts to its clearing account, and shall cause any Subservicer to deposit any Advance Reimbursement Amounts it collects to the Subservicer’s clearing account, within one (1) Business Day after its receipt thereof. The Servicer, for and on behalf of the Indenture Trustee and the Noteholders, shall remit or cause the Subservicer to remit, into the Collection and Funding Account all Advance Reimbursement Amounts collected by the Servicer pursuant to any Designated Servicing Agreement, no later than two (2) Business Days after the Servicer’s or Subservicer’s deposit thereof into its clearing account, and shall, no later than two (2) Business Days thereafter, remit all such Advance Reimbursement Amounts received on or after the Cut-off Date to the Indenture Trustee for deposit into the Collection and Funding Account; provided , however , that if a Designated Servicing Agreement requires the related Servicer to remit such amounts to a Custodial Account, the Servicer or the Subservicer shall deposit such collections to such Custodial Account no later than two (2) Business Days after collection thereof by the Servicer or the Subservicer, and shall cause such amounts to be remitted directly (unless the Servicer has provided notice to the Administrative Agent as contemplated in the immediately following sentence) from such Custodial Account(s) to the Initial Collection Account (which amounts shall afterwards be deposited into the Collection and Funding Account within one (1) Business Day of deposit into the Initial Collection Account) or to the Collection and Funding Account no later than two (2) Business Days after such amounts are deposited into the clearing account. If the Servicer or Subservicer, as applicable, remits Collections through one or more intermediate steps in the course of transfer from its clearing account to the related Custodial Account, or from the related Custodial Account to the Collection and Funding Account, the Servicer shall identify each such account in writing to the Administrative Agent. The Indenture Trustee shall deposit to the Collection and Funding Account all Advance Reimbursement Amounts it receives from the Servicer daily. To the extent the Indenture Trustee receives for deposit Advance Reimbursement Amounts in the Collection and Funding Account later than 2:00 p.m. New York City Time on a Business Day, such funds shall be deemed to have been received on the following Business Day. Notwithstanding the foregoing, after the Servicer shall have remitted to the Collection and Funding Account, Advance Reimbursement Amounts in respect of P&I Advances made under a Designated Servicing Agreement in an amount sufficient to reimburse all P&I Advances that were made under such Designated Servicing Agreement using funds other than Amounts Held for Future Distribution, the Servicer may leave additional Advance Reimbursement Amounts collected with respect to such Designated Servicing Agreement in the related Custodial Account and use such funds to reimburse Amounts Held for Future Distribution as required pursuant to Section 4.2(c) .
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(b) Payment Dates . On each Payment Date, the Indenture Trustee shall transfer from the Collection and Funding Account to the Note Payment Account all Available Funds then on deposit in the Collection and Funding Account. Except in the case of Redemption Amounts, which may be remitted by the Issuer directly to the Note Payment Account, none of the Servicer, the Subservicer, the Administrator, the Issuer, the Calculation Agent nor the Indenture Trustee shall remit to the Note Payment Account, and each shall take all reasonable actions to prevent other Persons from remitting to the Note Payment Account, amounts which do not constitute payments, collections or recoveries received, made or realized in respect of the Receivables or the initial cash deposited by the Noteholders with the Indenture Trustee on the date hereof, and the Indenture Trustee will return to the Issuer or the Servicer any such amounts upon receiving written evidence reasonably satisfactory to the Indenture Trustee that such amounts are not a part of the Trust Estate.
(c) Restoration of Amounts Held for Future Distribution . The Servicer generally has the right to remit amounts held for distribution to the MBS Trustee in a future month (“ Amounts Held for Future Distribution ”) on deposit in each Custodial Account, to the related MBS Trustee as part of the Servicer’s monthly P&I Advances required under the related Designated Servicing Agreement. The Servicer shall deposit the full amount of any Amount Held for Future Distribution with respect to each Designated Servicing Agreement that were so used by the Servicer, in any month, back into the related Custodial Account, to the extent not restored already out of Advance Reimbursement Amounts, by no later than the date on which the Servicer would have been required to remit such amount to the related MBS Trustee as a current monthly Mortgage Loan collection, or earlier if so required under the related Servicing Agreement. If the Servicer fails to restore any such Amount Held for Future Distribution at the time when it is required to do so pursuant to this Section 4.2(c) , and does not correct such failure within one (1) Business Day, then the Servicer covenants hereunder that it shall no longer use any Amounts Held for Future Distribution in making any of its P&I Advances at any time on or after such failure.
(d) Delegated Authority to Make P&I Advances . The Receivables Seller and the Servicer hereby irrevocably appoint the Noteholder(s) of any Outstanding VFN with the authority (but no obligation) to make any P&I Advance on the Servicer’s behalf to the extent the Servicer fails to make such P&I Advance when required to do so pursuant to the related Designated Servicing Agreement.
Section 4.3. Funding of Additional Receivables.
(a) Funding Certifications . By no later than 1:00 p.m. New York City time on the second (2 nd ) Business Day prior to each Funding Date that is a VFN Draw Date (or such other time as may be agreed to from time to time by the Servicer, the Indenture Trustee and the Administrative Agent) or on the first (1 st ) Business Day prior to each Funding Date that is not a VFN Draw Date (or such other time as may be agreed to from time to time by the Servicer, the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator or the Sub-Administrator on behalf of the Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent and the Administrative Agent (and, on any Interim Payment Date, each applicable VFN Noteholder) a certification (each, a “ Funding Certification ”) containing a list of each Funding Condition and presenting a yes or no answer beside each indicating whether such Funding Condition has been satisfied and shall state in writing the amount to be funded on that Funding Date.
(b) VFN Draws, Discretionary Paydowns and Permanent Reductions .
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With respect to each VFN:
(i) By no later than 1:00 p.m. New York City time on the Business Day prior to any Interim Payment Date or Payment Date during the Revolving Period for such VFN on which any applicable Variable Funding Note Class is Outstanding, the Issuer may deliver, or cause to be delivered, to each Noteholder of such Variable Funding Notes and to the Indenture Trustee a report (a “ VFN Note Balance Adjustment Request ”) for such upcoming Funding Date, requesting such Noteholders to fund a VFN Principal Balance increase on any Class or Classes of VFNs in the amount(s) specified in such request, which request shall instruct the Indenture Trustee to recognize an increase in the related VFN Principal Balance, but not in excess of the lesser of (x) the related Maximum VFN Principal Balance or (y) the amount that would cause the Collateral Test to be violated. The VFN Note Balance Adjustment Request shall also state the amount, if any, of any principal payment to be made on each Outstanding Class of VFNs on the upcoming Interim Payment Date or Payment Date.
(ii) From time to time, but not exceeding once per calendar month, during the Revolving Period for such VFN, the Issuer may notify the Administrative Agent of a permanent reduction in the Maximum VFN Principal Balance by indicating such reduction on the VFN Note Balance Adjustment Request. Following such permanent reduction, the applicable VFN Noteholders shall only be required to fund increases in the VFN Principal Balance up to such reduced Maximum VFN Principal Balance. Furthermore, following a reduction in the Maximum VFN Principal Balance pursuant to this clause (ii) , the Issuer shall not at any time be permitted to request an increase in the Maximum VFN Principal Balance.
(iii) If the related Funding Certification indicates that all Funding Conditions have been met, the applicable VFN Noteholders shall fund the VFN Principal Balance increase by remitting pro rata (based on such Noteholder’s percentage of the Maximum VFN Principal Balance) the amount stated in the request to the Indenture Trustee by 12:00 p.m. (noon) New York City time on the related Funding Date, whereupon the Indenture Trustee shall adjust its records to reflect the increase of the VFN Principal Balance (which increase shall be the aggregate of the amounts received by the Indenture Trustee from the applicable VFN Noteholders) by the later of (i) 2:00 p.m. New York City time on such Funding Date or (ii) two hours after the receipt by the Indenture Trustee of such funds from the VFN Noteholders, so long as, after such increase and after giving effect any Receivables to be purchased, the Collateral Test will continue to be satisfied, determined based on the VFN Note Balance Adjustment Request and Determination Date Report. The Indenture Trustee shall be entitled to rely conclusively on any VFN Note Balance Adjustment Request and the related Determination Date Report and Funding Certification. The Indenture Trustee shall make available on its website to the Issuer or its designee and each applicable VFN Noteholder, notice on such Funding Date as reasonably requested by the Issuer of any increase in the VFN Principal Balance. The Indenture Trustee shall apply and remit any such payment by the VFN Noteholders toward the payment of the related New Receivables Funding Amounts and (if applicable) Excess Receivables Funding Amounts as described in Section 4.3(c) . If on any Funding Date there is more than one Series with Outstanding Variable Funding Notes, VFN draws on such Funding Date shall be made on a pro rata basis among all applicable Outstanding Series of VFNs in their Revolving Periods based on their respective available Borrowing Capacities, unless otherwise provided in the related Indenture Supplement and Note Purchase Agreement. If any VFN Noteholder does not fund its share of a requested VFN draw, one or more other VFN Noteholders may fund all or a portion of such draw, but no other VFN Noteholder shall have any obligation to do so. Draws on VFNs of different Classes within the same Series need not be drawn pro rata relative to each other. Any draws under any VFNs shall be used only (i) to purchase new Receivables pursuant to the Receivables Pooling Agreement and (ii) to provide funding in respect of Excess Receivables Funding Amounts, in each case, in a manner that would not be in violation of any term hereof (including, without limitation, in a manner that would result in a material adverse United States federal income tax consequence to the Trust Estate or any Noteholders).
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(c) Payment of New Receivables Funding Amounts .
(i) Subject to its receipt of a duly executed Funding Certification from the Administrator pursuant to Section 4.3(a) stating that all Funding Conditions have been satisfied, the Indenture Trustee shall remit to the Issuer (or the Issuer’s designee), by the close of business New York City time on each Funding Date, the amount of (x) the aggregate New Receivables Funding Amount for Additional Receivables to be funded on such Funding Date and (y) any other amounts to be drawn on the VFNs on such date in respect of Excess Receivables Funding Amounts without causing the related VFN Principal Balance to exceed either (I) the related Maximum VFN Principal Balance or (II) the amount that would cause the Collateral Test not be satisfied, using the following sources of funding in the following order:
(A) any funds on deposit in the Collection and Funding Account minus the Required Expense Reserve,
(B) if such Funding Date is a Payment Date, Available Funds allocated for such purpose pursuant to Section 4.5(a)(1)(vii) ,
(C) if such Funding Date is an Interim Payment Date, Available Funds allocated for such purpose pursuant to Section 4.4(e) ; and
(D) any amounts paid by VFN Noteholders as described in Section 4.3(b) ;
(ii) Subject to its receipt of a duly executed Funding Certification from the Administrator pursuant to Section 4.3(a) indicating that all Funding Conditions have been satisfied, the Indenture Trustee shall remit to the Issuer (or the Issuer’s designee) by the close of business on each Interim Payment Date or Payment Date occurring at any time when not all Outstanding Notes are in Full Amortization Periods, (A) the amount of the aggregate New Receivables Funding Amount for Additional Receivables to be funded on such Interim Payment Date or Payment Date, using (1) Available Funds allocated for such purpose pursuant to Section 4.4(e) or Section 4.5(a)(1)(vii) , and (2) any amounts funded by VFN Noteholders in respect of such New Receivables Funding Amount as described in Section 4.3(b) and (B) any amounts funded by VFN Noteholders in respect of Excess Receivables Funding Amounts as described in Section 4.3(b) .
(iii) Except with respect to P&I Advance Receivables eligible for funding on a Funding Date prior to disbursement of the related P&I Advances pursuant to Section 4.3(e) and except for Deferred Servicing Fee Receivables, the Administrator shall not and shall not permit the Issuer or the Depositor to, request funding for any Receivables except to the extent that the related Advances shall have been disbursed to the related MBS Trustees, prior to the receipt of the related New Receivables Funding Amount. Unless and until (i) a Facility Early Amortization Event shall have occurred which has not been waived or (ii) a VFN Noteholder or the Majority Noteholders of all the Notes instruct the Indenture Trustee by a written notice that no portion of the New Receivables Funding Amount may be paid by the Indenture Trustee without first receiving a written certification that all of the related P&I Advances have been previously disbursed by the Receivables Seller (a “ Cease Pre-Funding Notice ”), which may be delivered at any time as deemed necessary by such Noteholder(s) in the exercise of its or their sole and absolute discretion, the Indenture Trustee may pay the New Receivables Funding Amount for P&I Advances on any Funding Date. If a Cease Pre-Funding Notice has been delivered, then no P&I Advance Receivables may be funded until all the related P&I Advances have been disbursed and the Receivables Seller shall have delivered a written certification to such effect to the Indenture Trustee with respect to all related Advances.
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(d) P&I Advance Disbursement Account . Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain an Eligible Account in the name of the Issuer as the P&I Advance Disbursement Account. The taxpayer identification number associated with the P&I Advance Disbursement Account shall be that of the Issuer and the Receivables Seller will report for Federal, state and local income tax purposes, the income, if any, on funds on deposit in the P&I Advance Disbursement Account. Subject to Section 4.1 , funds on deposit from time to time in the P&I Advance Disbursement Account shall remain uninvested. The Indenture Trustee shall have and is hereby directed by the Issuer to exercise the sole and exclusive right to disburse funds from the P&I Advance Disbursement Account and each of the Servicer, Administrator and Issuer hereby acknowledges and agrees that it shall have no right to provide payment or withdrawal instructions with respect to the P&I Advance Disbursement Account or to otherwise direct the disposition of funds from time to time on deposit in the P&I Advance Disbursement Account.
(e) Pre-Funding of P&I Advances . On any Funding Date during the Revolving Period for any Series or Class of Notes, the Issuer (or the Servicer on its behalf) may request that all or a portion of the New Receivables Funding Amount be applied in satisfaction of the Servicer’s obligation to make P&I Advances under one or more Designated Servicing Agreements. Prior to (i) the occurrence of a Facility Early Amortization Event or (ii) the receipt by the Indenture Trustee of a Cease Pre-Funding Notice, the Indenture Trustee shall apply the portion of the New Receivables Funding Amount requested by the Issuer (or the Servicer on its behalf) to “Noteholders’ Amounts” (as defined below) in accordance with this Section 4.3(e) . Not later than 12:00 p.m. (noon) New York City time on the Business Day preceding each Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Issuer (or the Administrator (or the Sub-Administrator on the Administrator’s behalf) on its behalf) shall deliver a disbursement report (the “ Disbursement Report ”) to the Indenture Trustee and the Administrative Agent setting forth in reasonable detail (A) the aggregate amount of P&I Advances required to be advanced by the Servicer under each Designated Servicing Agreement on such Funding Date for which Advance Purchaser desires pre-funding in accordance with this Section 4.3(e) (each such amount, a “ P&I Advance Amount ”), (B) the payment or wiring instructions for the Custodial Account or accounts relating to each Designated Servicing Agreement with respect to which the Servicer is obligated to disburse a P&I Advance Amount on such Funding Date, (C) the Series New Receivables Funding Amount for each Series and the full New Receivables Funding Amount, that would apply to each P&I Advance Amount if such P&I Advance Amount were a P&I Advance Receivable (such Collateral Value, the “ Noteholders’ Amount ”), and (D) a calculation for each P&I Advance Amount of the excess of such P&I Advance Amount over the Noteholders’ Amount (such excess, the “ Issuer Amount ”). Not later than 12:00 p.m. (noon) New York City time on each Funding Date, (x) the Issuer (or the Administrator (or the Sub-Administrator on the Administrator’s behalf) on its behalf) shall deposit to the P&I Advance Disbursement Account in cash or immediately available funds, an amount equal to the sum of the Issuer Amounts with respect to each Designated Servicing Agreement and (y) the Indenture Trustee shall transfer to the P&I Advance Disbursement Account, out of the proceeds of the New Receivables Funding Amount, an amount equal to the sum of the Noteholders’ Amounts with respect to each Designated Servicing Agreement. Not later than 2:00 p.m. New York City time on each Funding Date, the Indenture Trustee will, solely from funds on deposit in the P&I Advance Disbursement Account, remit the P&I Advance Amount with respect to each Designated Servicing Agreement to the applicable custodial accounts listed in the related Disbursement Report. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall not transfer any funds from the Collection and Funding Account to the P&I Advance Disbursement Account or disburse any P&I Advance Amount on any Funding Date unless it shall have confirmed receipt of the sum of the Issuer Amounts described on the related Disbursement Report.
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(f) Limited Funding Dates . On any Limited Funding Date, subject to its receipt of a duly executed Funding Certification from the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to Section 4.3(a) stating that all Funding Conditions have been satisfied, the Indenture Trustee shall, by the close of business New York City time on each Limited Funding Date occurring during the Revolving Period for any Series or Class of Notes, (i) remit to the Issuer (or the Issuer’s designee) the amount of the aggregate New Receivables Funding Amount for Additional Receivables to be funded on such Limited Funding Date, using only funds on deposit in the Collection and Funding Account minus the Required Expense Reserve, and (ii) thereafter, release any Excess Cash Amount to the Depositor as holder of the Owner Trust Certificate it being understood that no such Excess Cash Amounts may be paid to the Depositor under this clause (f) if, after the payment of such cash amounts, the Collateral Test would no longer be satisfied. Notwithstanding anything to the contrary herein, no draws on Variable Funding Notes may be made on a Limited Funding Date, and no payments on any Notes shall be made on a Limited Funding Date, as Limited Funding Dates shall not be treated as Interim Payment Dates but instead shall be for the sole purpose of funding new Receivables, funding the Accumulation Accounts and the Series Reserve Account for each Series as described in the following sentence and releasing Excess Cash Amounts to the extent permissible under the terms of this Indenture. On each Limited Funding Date, prior to amounts being released for the purchase of new Receivables in accordance with the first sentence of this Section 4.3(f) , the Indenture Trustee shall release from the Collection and Funding Account to each of the Fee Accumulation Account, Interest Accumulation Account, Target Amortization Principal Accumulation Account and the Series Reserve Account for each Series, the amounts required to be deposited therein for such Limited Funding Date in order for the Funding Conditions to be satisfied on such date.
Section 4.4. Interim Payment Dates.
On each Interim Payment Date, the Indenture Trustee shall allocate and pay or deposit (as specified below) all Available Funds held in the Collection and Funding Account as set forth below, in the following order of priority and in the amounts set forth in the Interim Payment Date Report for such Interim Payment Date:
(a) to the Fee Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Fee Accumulation Amount for such Interim Payment Date (other than any amounts that constitute Defaulting Counterparty Termination Payments);
(b) to the Interest Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Interest Accumulation Amount for such Interim Payment Date;
(c) to the Series Reserve Account for each Series, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of such Series Reserve Account shall be equal to the related Series Reserve Required Amount;
(d) if a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived, to the Target Amortization Principal Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Target Amortization Amount for the next Payment Date in respect of each Class of Notes that is in its Target Amortization Period, not including any such Class for which the related Indenture Supplement provides that there will be no intra-month reservation of Target Amortization Principal Accumulation Amounts;
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(e) to be retained in the Collection and Funding Account, the aggregate New Receivables Funding Amount for any Facility Eligible Receivables to be funded on such Interim Payment Date (without duplicating any portion of such New Receivables Funding Amount to be paid using the proceeds of a borrowing on any Class of VFN) and the aggregate Excess Receivables Funding Amount to be funded on such Interim Payment Date; provided that no New Receivables Funding Amounts will be released to fund new Receivables and no Excess Receivables Funding Amounts will be released under this clause (e) unless the Funding Conditions have been met;
(f) if a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived, to pay down the VFN Principal Balance of each Outstanding Class of VFNs, the amount necessary to satisfy the Collateral Test after giving effect to the allocations, payments and distributions in clauses (a) through (e) above;
(g) to pay any Series Fees payable to any Person in excess of the Series Fee Limit (including any Defaulting Counterparty Termination Payments);
(h) to pay down the VFN Principal Balance of each Outstanding Class of VFNs pro rata, based on their respective Note Balances, such amount as may be designated by the Administrator;
(i) as directed by the Administrator on behalf of Issuer, to pay any portion or all of any Excess Cash Amount to any Sinking Fund Account or Sinking Fund Accounts; and
(j) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate, it being understood that no such Net Excess Cash Amounts may be paid to the Depositor under this clause (j) if, after the payment of such cash amounts, the Collateral Test would no longer be satisfied.
Section 4.5. Payment Dates.
(a) On each Payment Date, the Indenture Trustee shall transfer the related Available Funds on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account and the Target Amortization Principal Accumulation Account for such Payment Date to the Note Payment Account. On each Payment Date, the Paying Agent shall apply such Available Funds (and other amounts as specifically noted in clause (1)(v) below) in the following order of priority and in the amounts set forth in the Payment Date Report for such Payment Date ( provided that amounts on deposit in the Target Amortization Principal Accumulation Account may only be used to pay the Target Amortization Amounts of the Classes for which the related Indenture Supplement provides that there will be intra-month reservation of Target Amortization Principal Accumulation Amounts (pro rata based on their respective Target Amortization Principal Accumulation Amounts)):
(1) If a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, and to the Owner Trustee (to the extent not otherwise paid pursuant to the Trust Agreement or the Administration Agreement), the Owner Trustee Fee payable on such Payment Date, plus , (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit) all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities) and Wells Fargo Bank, N.A. (in all capacities) and the Owner Trustee on such Payment Date, from funds in the Fee Accumulation Account, with respect to expenses and
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indemnification amounts to the extent such expenses and indemnification amounts have been invoiced or noticed to the Administrator, first, out of amounts on deposit in the Fee Accumulation Account which were deposited into the Fee Accumulation Account on an Interim Payment Date specifically for such items and then, any remaining unpaid amounts out of other Available Funds;
(ii) to each Person (other than the Indenture Trustee or the Owner Trustee) entitled to receive Fees or Series Fees or Undrawn Fees on such date, the Fees or Series Fees (other than Defaulting Counterparty Termination Payments) or Undrawn Fees payable to any such Person with respect to the related Monthly Advance Collection Period or Interest Accrual Period, as applicable, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit or Increased Costs Limit, as appropriate, and allocated pro rata based on the amounts due to each such Person and subject in the case of Series Fees to the applicable Series Fee Limit) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer and for Increased Costs or any other amounts (including Undrawn Fees) due to any Noteholder and any Series Fees due as specified in an Indenture Supplement (other than Defaulting Counterparty Termination Payments), subject to the related Series Fee Limit, pursuant to the Transaction Documents with respect to expenses, indemnification amounts, Increased Costs, Undrawn Fees, Series Fees and other amounts to the extent such expenses, indemnification amounts, Increased Costs, Undrawn Fees, Series Fees and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee and to the extent such amounts were deposited into the Fee Accumulation Account on a preceding Interim Payment Date, and thereafter from other Available Funds, if necessary;
(iii) to the Noteholders of each Series of Notes, pro rata based on their respective interest entitlement amounts, the related Cumulative Interest Shortfall Amounts attributable to unpaid Senior Interest Amounts from prior Payment Dates, and the Senior Interest Amount for the current Payment Date, for each such Class; provided that if the amount of Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay any amounts in respect of any Class pursuant to this clause (iii) , the Indenture Trustee shall withdraw from the Series Reserve Account for such Class an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Class in reduction of such shortfall, with all such amounts paid to a Series under this clause (iii) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(iv) to the Series Reserve Account for each Series, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in such Series Reserve Account on such day equals the related Series Reserve Required Amount;
(v) to the Noteholders of each Class of Notes for which the Target Amortization Period has commenced, the Target Amortization Amount for such Class on such Payment Date, first payable from any amounts on deposit in the Target Amortization Principal Accumulation Account in respect of such Class, allocated pro rata among any such Classes based on their respective Target Amortization Amounts, and thereafter payable from other Available Funds or proceeds of draws on VFNs or other companion Notes described in the related Indenture Supplement, pro rata based on their respective Target Amortization Amounts;
(vi) to the extent necessary to satisfy the Collateral Test, (1) to pay down the respective VFN Principal Balances of each Outstanding Class of VFNs, until the earlier of satisfaction of the Collateral Test or reduction of all VFN Principal Balances to zero, and thereafter (2) to reserve cash in the Collection and Funding Account to the extent necessary to satisfy the Collateral Test;
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(vii) to the Collection and Funding Account, for disbursement to the Issuer (or the Issuer’s designee), the aggregate New Receivables Funding Amount for any Facility Eligible Receivables to be funded on such Payment Date (without duplicating any portion of such New Receivables Funding Amount to be paid using the proceeds of an increase in any VFN Principal Balance) and the aggregate Excess Receivables Funding Amount to be funded on such Payment Date;
(viii) to the Noteholders of each Series of Notes and pro rata based on their respective Note Balances, the amount necessary to reduce the accrued and unpaid Subordinated Interest Amounts and Subordinated Cumulative Interest Shortfall Amounts for each such Series to zero, with amounts paid on a Series pursuant to this clause being allocated among the Classes within such Series as specified in the related Indenture Supplement;
(ix) pro rata, based on their respective invoiced or reimbursable amounts and without regard to the applicable Expense Limit or Series Fee Limit, (A) to the Indenture Trustee (in all its capacities) and the Owner Trustee for any amounts payable to the Indenture Trustee and the Owner Trustee pursuant to this Indenture or the Trust Agreement to the extent not paid under clause (i) above, (B) to the Verification Agent for any amounts payable to the Verification Agent pursuant to this Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9 ; (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; (E) to the Noteholders of any Notes to cover Increased Costs, pro rata among multiple Series based on their respective Increased Costs amounts (and among multiple Classes, allocated within any Series as described in the related Indenture Supplement); (F) any Series Fees (including any Defaulting Counterparty Termination Payments) due pursuant to Indenture Supplement in excess of the applicable Series Fee Limit; or (G) any other amounts payable pursuant to this Indenture or any other Transaction Document and not paid under clause (ii) above;
(x) if and to the extent so directed by the Administrator on behalf of the Issuer, to the Noteholders of each Class of VFNs, an amount to be applied to pay down the respective VFN Principal Balances equal to the lesser of (A) the amount specified by the Administrator and (B) the amount necessary to reduce the VFN Principal Balances to zero, paid pro rata among each VFN Classes based on their respective Note Balances;
(xi) as directed by the Administrator on behalf of the Issuer, to pay any portion or all of any Excess Cash Amount to any Sinking Fund Account or Sinking Fund Accounts; and
(xii) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate, to the extent that the Collateral Test would not, following any such payment, be breached; provided that amounts due and owing to the Owner Trustee and not previously paid hereunder or under any other Transaction Document shall be paid prior to such payment.
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(2) If a Facility Early Amortization Event has occurred and is continuing unwaived, the Available Funds shall be allocated in the following order of priority:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, and to the Owner Trustee (to the extent not otherwise paid pursuant to the Trust Agreement or the Administration Agreement), the Owner Trustee Fee payable on such Payment Date, plus all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities) and the Owner Trustee on such Payment Date, from funds in the Fee Accumulation Account, with respect to expenses and indemnification amounts to the extent such expenses and indemnification amounts have been invoiced or noticed to the Administrator and to the extent of amounts on deposit in the Fee Accumulation Account which were deposited into the Fee Accumulation Account on an Interim Payment Date specifically for such items and thereafter from other Available Funds, if necessary;
(ii) to each Person (other than the Indenture Trustee or the Owner Trustee) entitled to receive Fees or Series Fees on such date, the Fees or Series Fees (other than Defaulting Counterparty Termination Payments) payable to any such Person with respect to the related Monthly Advance Collection Period or Interest Accrual Period, as applicable, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit and allocated pro rata based on the amounts due to each such Person) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer with respect to expenses, indemnification amounts and other amounts to the extent such expenses, indemnification amounts and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee and Series Fees (other than Defaulting Counterparty Termination Payments), subject to the related Series Fee Limit and to the extent such amounts were deposited into the Fee Accumulation Account on a preceding Interim Payment Date, but not including any Undrawn Fees and thereafter from other Available Funds, if necessary;
(iii) thereafter, all remaining Available Funds shall (x) first, be allocated to any specific Series or Classes as contemplated by the definition of “Available Funds” and (y) thereafter, be allocated among all Outstanding Series based on their respective Series Invested Amounts as of the date the Full Amortization Period commenced, and the amount so allocated to each Series (each the related “ Series Available Funds ”) shall be allocated in the following order of priority:
(A) any Undrawn Fees payable to any VFNs included in the related Series;
(B) to the Noteholders of the related Series of Notes, the related Cumulative Interest Shortfall Amounts attributable to unpaid Senior Interest Amounts from prior Payment Dates and the Senior Interest Amount for the current Payment Date, for each related Class; provided that if the amount of Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay any amounts in respect of any related Class pursuant to this clause (iii)(B) the Indenture Trustee shall withdraw from the Series Reserve Account for such Class an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Class in reduction of such shortfall, with all such amounts paid to a Series under this clause (iii)(B) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(C) to the Noteholders of the related Series of Notes, remaining Series Available Funds up to the aggregate unpaid Note Balances to reduce Note Balances in the order specified in the related Indenture Supplement, until all such Note Balances have been reduced to zero;
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(D) to the Noteholders of the related Series of Notes, the amount necessary to reduce the accrued and unpaid Subordinated Interest Amounts and Subordinated Cumulative Interest Shortfall Amounts for such Series to zero, with amounts paid on a Series pursuant to this clause being allocated among the Classes within such Series as specified in the related Indenture Supplement; and
(E) to be allocated to other Series to run steps (A) through (D) above for such other Series, to the extent the Series Available Funds for such other Series were insufficient to make such payments, allocated among such other Series pro rata based on the amounts of their respective shortfalls.
(iv) out of all remaining Available Funds, pro rata, based on their respective invoiced or reimbursable amounts and without regard to the applicable Expense Limit, (A) to the Indenture Trustee (in all its capacities) and the Owner Trustee for any amounts payable to the Indenture Trustee and the Owner Trustee pursuant to this Indenture or the Trust Agreement to the extent not paid under clause (i) above, (B) to the Verification Agent for any amounts payable to the Verification Agent pursuant to this Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9 ; (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; (E) any Series Fees (including any Defaulting Counterparty Termination Payments) due to any Derivative Counterparty in excess of the applicable Series Fee Limit; and (F) to the Noteholders of any Notes to cover Increased Costs, pro rata among multiple Classes based on their respective Increased Costs amounts or any other amounts payable pursuant to this Indenture or any other Transaction Document and not paid under clause (ii) above;
(v) to pay any other amounts required to be paid before Net Excess Cash Amounts pursuant to one or more Indenture Supplements; and
(vi) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate.
(b) Any proceeds received by the Issuer under a Derivative Agreement or Supplemental Credit Enhancement Agreement for a Series or Class shall be applied to supplement amounts payable with respect to such Series under Section 4.5(a) , as set forth in the related Indenture Supplement. Amounts payable to any Derivative Counterparty or Supplemental Credit Enhancement Provider with respect to any Series or Class shall be designated as “Series Fees” for purposes of this Indenture and the related Indenture Supplement, and particularly, Sections 4.4 and 4.5 hereof.
(c) On each Payment Date, the Indenture Trustee shall instruct the Paying Agent to pay to each Noteholder of record on the related Record Date the amount to be paid to such Noteholder in respect of the related Note on such Payment Date by wire transfer if appropriate instructions are provided to the Indenture Trustee in writing no later than five (5) Business Days prior to the related Record Date, or, if a wire transfer cannot be effected, by check delivered to each Noteholder of record on the related Record Date at the address listed on the records of the Note Registrar.
(d) Notwithstanding anything to the contrary in this Indenture, the Indenture Supplement providing for the issuance of any Series of Notes within which there are one or more Classes of Notes may specify the allocation of payments among such Classes payable pursuant to Sections 4.4 and 4.5 hereof, providing for the subordination of such payments on the subordinated Series or Class, and any such provision in such an Indenture Supplement shall have the same effect as if set forth in this Indenture and any related Indenture Supplement, all to the extent an Issuer Tax Opinion is delivered as to such Series at its issuance.
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(e) On each Payment Date, the Indenture Trustee shall make available, in the same manner as described in Section 3.5 , a report stating all amounts paid to the Indenture Trustee (in all its capacities) or Wells Fargo Bank, N.A. (in all its capacities) pursuant to this Section 4.5 on such Payment Date.
(f) The Indenture Trustee shall withdraw, on each Payment Date and Funding Date and use as Available Funds, the amount by which (i) the amount then on deposit in the Fee Accumulation Account exceeds the Fee Accumulation Amount, (ii) the amount then on deposit in the Interest Accumulation Account exceeds the Interest Accumulation Amount and (iii) the amount then on deposit in the Target Amortization Principal Accumulation Account exceeds the Target Amortization Amount, in each case, after giving effect to all payments required to be made from such Trust Accounts and the Note Payment Account on such date.
(g) On the Expected Repayment Date (unless such Expected Repayment Date shall occur during the Full Amortization Period) for any Class of Notes with respect to which a Sinking Fund Account has been established, the Indenture Trustee shall transfer all amounts on deposit in such Sinking Fund Account to the Note Payment Account for the repayment of the Note Balance of such Class of Notes. During the Full Amortization Period all amounts on deposit in the Sinking Fund Accounts with respect to Sinking Fund Classes will be included in the Available Funds and such amounts will be available for the benefit of all Outstanding Notes.
Section 4.6. Series Reserve Account.
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain a Series Reserve Account or Accounts for each Series, each of which shall be an Eligible Account, for the benefit of the Secured Parties of such Series. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. On or prior to the Issuance Date for each Series, the Issuer shall cause an amount equal to the related Series Reserve Required Amount(s) to be deposited into the related Series Reserve Account(s). Thereafter, on each Payment Date and Interim Payment Date, the Indenture Trustee shall withdraw Available Funds from the Note Payment Account and deposit them into each such Series Reserve Account pursuant to, and to the extent required by, Section 4.5(a) and the related Indenture Supplement.
(b) On each Payment Date, an amount equal to the aggregate of amounts described in clauses (i) , (ii) and (iii) of Section 4.5(a)(1) or clauses (i) , (ii) and (iii)(A) and (B) of Section 4.5(a)(2) allocable to the related Series, as appropriate, and which is not payable out of Available Funds due to an insufficiency of Available Funds, shall be withdrawn from such Series Reserve Account by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a) or the related Indenture Supplement. On any Payment Date on which amounts are withdrawn from such Series Reserve Account pursuant to Section 4.5(a) , no funds shall be withdrawn from the Collection and Funding Account (or from the Note Payment Account for deposit into the Collection and Funding Account) to pay New Receivables Funding Amounts or amounts to the Issuer pursuant to Section 4.3 if, after giving effect to the withdrawals described in the preceding sentences, the amount then standing to the credit of such Series Reserve Account is less than the related Series Reserve Required Amount. All Collections received in the Collection and Funding Account shall be deposited into the related Series Reserve Accounts until the amount on deposit in each Series Reserve Account equals the related Series Reserve Required Amount, as described in Section 4.5 and the related Indenture Supplement. For purposes of the foregoing the portion of any such fees and expenses payable under clause (i) or (ii) shall equal the related Series Allocation Percentage of the amounts payable under such clause.
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(c) If on any Payment Date the amount on deposit in a Series Reserve Account is equal to or greater than the aggregate Note Balance for the related Series (after payment on such Payment Date of the amounts described in Section 4.5 ) the Indenture Trustee will withdraw from such Series Reserve Account the aggregate Note Balance amount and remit it to the Noteholders of the Notes in reduction of the aggregate Note Balance for all Classes of Notes Outstanding. On the Stated Maturity Date for the latest maturing Class in a Series, the balance on deposit in the related Series Reserve Account shall be applied as a principal payment on the Notes of that Series to the extent necessary to reduce the aggregate Note Balance for that Series to zero. On any Payment Date after payment of principal on the Notes and when no Facility Early Amortization Event has occurred, the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the balance of the Series Reserve Account exceeds the related Series Reserve Required Amount and pay such amount to the Depositor as holder of the Owner Trust Certificate.
(d) Amounts held in a Series Reserve Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1 .
(e) On any Payment Date, after payment of all amounts pursuant to Section 4.5(a) , if the Collateral Test is not satisfied or if a Facility Early Amortization Event shall have occurred (unless such Facility Early Amortization Event shall have been waived), the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the amount standing to the credit of such Series Reserve Account exceeds the related Series Reserve Required Amount, and shall apply such excess to reduce the Note Balances of the Notes of the related Series, pursuant to Section 4.5 . Such principal payments shall be made pro rata based on Note Balances to multiple Classes within a Series, except that in a Full Amortization Period such principal payment shall be made in accordance with the terms and provisions of the related Indenture Supplement. On any Payment Date following the payment in full of all principal payable in respect of the related Series or Class of Notes, the Indenture Trustee shall withdraw any remaining amounts from the related Series Reserve Account and distribute it to the Depositor as holder of the Owner Trust Certificate. Amounts paid to the Depositor or its designee pursuant to the preceding sentence shall be released from the Security Interest.
(f) If on any Funding Date, the amount on deposit in one or more Series Reserve Accounts is less than the related Series Reserve Required Amounts, then the Administrator may direct the Indenture Trustee to transfer from the Collection and Funding Account to such Series Reserve Accounts an amount equal to the amount by which the respective Series Reserve Required Amounts exceed the respective amounts then on deposit in the related Series Reserve Accounts.
| Section 4.7. | Collection and Funding Account, Interest Accumulation Account, Fee Accumulation Account, Target Amortization Principal Accumulation Account and Sinking Fund Accounts. |
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Collection and Funding Account, which shall be an Eligible Account, for the benefit of the Secured Parties. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall deposit and withdraw Available Funds from the Collection and Funding Account pursuant to, and to the extent required by, Section 4.4 and Section 4.5 .
(b) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Fee Accumulation Account the Interest Accumulation Account and the Target Amortization Principal Accumulation Account, each of which shall be an Eligible Account, for the benefit of the Noteholders. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall withdraw Available Funds from the Collection and Funding Account and deposit them into each such Trust Account pursuant to, and to the extent required by, Section 4.5 .
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(c) On each Payment Date, an amount equal to the aggregate of amounts described in Section 4.5(a) shall be withdrawn from each Fee Accumulation Account, Interest Accumulation Account and Target Amortization Principal Accumulation Account by the Indenture Trustee and remitted for payments as described therein.
(d) The Indenture Trustee shall withdraw, on each Payment Date and Interim Payment Date and use as Available Funds, the amount by which (i) the amount then on deposit in the Fee Accumulation Account exceeds the Fee Accumulation Amount, (ii) the amount then on deposit in the Interest Accumulation Account exceeds the Interest Accumulation Amount, and (iii) the amount by which the amount then on deposit in the Target Amortization Principal Accumulation Account exceeds the Target Amortization Amount of all Target Amortization Classes, in each case, after giving effect to all payments required to be made from such Trust Accounts and the Note Payment Account on such date.
(e) The Administrator on behalf of the Issuer may, in its sole and absolute discretion, from time to time on or after the Closing Date, direct the Indenture Trustee pursuant to an Issuer Certificate to establish a Sinking Fund Account for any Class of Notes and upon receipt by the Indenture Trustee of such direction, the Indenture Trustee shall establish and maintain each such Sinking Fund Account specified by the Administrator on behalf of the Issuer in its direction to the Indenture Trustee, which shall be an Eligible Account, for the benefit of the Secured Parties. Any direction by the Administrator on behalf of the Issuer to the Indenture Trustee pursuant to an Issuer Certificate to establish a Sinking Fund Account shall include a specification by the Issuer of the Class to which such Sinking Fund Account shall relate. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall deposit and withdraw Available Funds from a Sinking Fund Account pursuant to, and to the extent required by, Section 4.5 .
Section 4.8. Note Payment Account.
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Note Payment Account, which shall be an Eligible Account, for the benefit of the Secured Parties. If the Note Payment Account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Note Payment Account shall be funded to the extent that (i) the Issuer shall remit to the Indenture Trustee the Redemption Amount for a Class of Notes pursuant to Section 13.1 , (ii) the Indenture Trustee shall remit thereto any Available Funds from the Collection and Funding Account pursuant to Section 4.2(b) , (iii) the Indenture Trustee shall remit thereto any Available Funds from the Interest Accumulation Account, the Target Amortization Principal Accumulation Account and the Fee Accumulation Account pursuant to Section 4.5 and (iv) the Indenture Trustee shall transfer amounts from an applicable Series Reserve Account pursuant to, and to the extent required by, Section 4.6 .
(b) On each Payment Date, an amount equal to the aggregate of amounts described in Section 4.5(a) shall be withdrawn from the Note Payment Account by the Indenture Trustee and remitted to the Noteholders and other Persons or accounts described therein for payment as described in that Section, and upon payments of all sums payable hereunder as described in Section 4.5(a) , as applicable, any remaining amounts then on deposit in the Note Payment Account shall be released from the Security Interest and paid to Depositor or its designee.
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(c) Amounts held in the Note Payment Account may be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1 .
Section 4.9. Securities Accounts.
(a) Securities Intermediary . The Issuer and the Indenture Trustee hereby appoint Wells Fargo Bank, N.A., as Securities Intermediary with respect to the Trust Accounts. The Security Entitlements and all Financial Assets credited to the Trust Accounts, including without limitation all amounts, securities, investments, Financial Assets, investment property and other property from time to time deposited in or credited to such account and all proceeds thereof, held from time to time in the Trust Accounts will continue to be held by the Securities Intermediary for the Indenture Trustee for the benefit of the Secured Parties. Upon the termination of this Indenture, the Indenture Trustee shall inform the Securities Intermediary of such termination. By acceptance of their Notes or interests therein, the Noteholders and all beneficial owners of Notes shall be deemed to have appointed Wells Fargo Bank, N.A., as Securities Intermediary. Wells Fargo Bank, N.A. hereby accepts such appointment as Securities Intermediary.
(i) With respect to any portion of the Trust Estate that is credited to the Trust Accounts, the Securities Intermediary agrees that:
(A) with respect to any portion of the Trust Estate that is held in deposit accounts, each such deposit account shall be subject to the security interest granted pursuant to this Indenture, and the Securities Intermediary shall comply with instructions originated by the Indenture Trustee directing dispositions of funds in the deposit accounts without further consent of the Issuer and otherwise shall be subject to the exclusive custody and control of the Securities Intermediary, and the Securities Intermediary shall have sole signature authority with respect thereto;
(B) any and all property credited to the Trust Accounts shall be treated by the Securities Intermediary as Financial Assets;
(C) any portion of the Trust Estate that is, or is treated as, a Financial Asset shall be physically delivered (accompanied by any required endorsements) to, or credited to an account in the name of, the Securities Intermediary or other eligible institution maintaining any Trust Account in accordance with the Securities Intermediary’s customary procedures such that the Securities Intermediary or such other institution establishes a Security Entitlement in favor of the Indenture Trustee with respect thereto over which the Securities Intermediary or such other institution has “control” (as defined in the UCC); and
(D) it will use reasonable efforts to promptly notify the Indenture Trustee and the Issuer if any other Person claims that it has a property interest in a Financial Asset in any Trust Account and that it is a violation of that Person’s rights for anyone else to hold, transfer or deal with such Financial Asset.
(ii) The Securities Intermediary hereby confirms that (A) each Trust Account is an account to which Financial Assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Indenture treat the Indenture Trustee as entitled to exercise the rights that comprise any Financial Asset credited to any Trust Account, (B) any portion of the Trust Estate in respect of any Trust Account will be promptly credited by the Securities Intermediary to
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such account, and (C) all securities or other property underlying any Financial Assets credited to any Trust Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any Financial Asset credited to any Trust Account be registered in the name of the Issuer or the Administrator, payable to the order of the Issuer or the Administrator or specially endorsed to any of such Persons.
(iii) If at any time the Securities Intermediary shall receive an Entitlement Order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Issuer or the Administrator or any other Person. If at any time the Indenture Trustee notifies the Securities Intermediary in writing that this Indenture has been discharged in accordance herewith, then thereafter if the Securities Intermediary shall receive any order from the Issuer directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Indenture Trustee or any other Person.
(iv) In the event that the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any Financial Asset or Security Entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Indenture Trustee. The Financial Assets and Security Entitlements credited to the Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Indenture Trustee in the case of the Trust Accounts.
(v) There are no other agreements entered into between the Securities Intermediary in such capacity, and the Securities Intermediary agrees that it will not enter into any agreement with, the Issuer, the Administrator, or any other Person (other than the Indenture Trustee) with respect to any Trust Account. In the event of any conflict between this Indenture (or any provision of this Indenture) and any other agreement now existing or hereafter entered into, the terms of this Indenture shall prevail.
(vi) The rights and powers granted herein to the Indenture Trustee have been granted in order to perfect its interest in the Trust Accounts and the Security Entitlements to the Financial Assets credited thereto, and are powers coupled with an interest and will not be affected by the bankruptcy of the Issuer, the Administrator or the Receivables Seller nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect until the interest of the Indenture Trustee in the Trust Accounts and in such Security Entitlements, has been terminated pursuant to the terms of this Indenture and the Indenture Trustee has notified the Securities Intermediary of such termination in writing.
(b) Definitions; Choice of Law . Capitalized terms used in this Section 4.9 and not defined herein shall have the meanings assigned to such terms in the New York UCC. For purposes of Section 8-110(e) of the New York UCC, the “securities intermediary’s jurisdiction” shall be the State of New York.
(c) Limitation on Liability . None of the Securities Intermediary or any director, officer, employee or agent of the Securities Intermediary shall be under any liability to the Indenture Trustee or the Noteholders for any action taken, or not taken, in good faith pursuant to this Indenture, or for errors in judgment; provided , however , that this provision shall not protect the Securities Intermediary against any liability to the Indenture Trustee or the Noteholders which would otherwise be imposed by reason of the
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Securities Intermediary’s willful misconduct, bad faith or negligence in the performance of its obligations or duties hereunder. The Securities Intermediary and any director, officer, employee or agent of the Securities Intermediary may rely in good faith on any document of any kind which, on its face, is properly executed and submitted by any Person respecting any matters arising hereunder. The Securities Intermediary shall be under no duty to inquire into or investigate the validity, accuracy or content of such document.
Section 4.10. Notice of Adverse Claims.
Except for the claims and interests of the Secured Parties in the Trust Accounts, the Securities Intermediary has no actual knowledge of any claim to, or interest in, any Trust Account or in any financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Trust Account or in any financial asset carried therein of which a Responsible Officer of the Securities Intermediary has actual knowledge, the Securities Intermediary will promptly notify the Noteholders, the Indenture Trustee and the Issuer thereof.
Section 4.11. No Gross Up.
No Person, including the Issuer, shall be obligated to pay any additional amounts to the Noteholders or Note Owners as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges. In addition, the Indenture Trustee will withhold on payments of Undrawn Fees to Non-U.S. Noteholders unless such Noteholder provides a correct, complete and executed U.S. Internal Revenue Service Form W-8ECI or is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation on U.S. source Undrawn Fees and such Non-U.S. Noteholder provides a correct, complete and executed U.S. Internal Revenue Service Form W-8BEN. The Indenture Trustee may rely on such U.S. Internal Revenue Service Form W-8ECI or W-8BEN to evidence the Noteholders’ eligibility.
Section 4.12. Facility Early Amortization Events; Target Amortization Events.
Upon the occurrence of a Facility Early Amortization Event, the Revolving Period or Target Amortization Period for all Classes and Series of the Notes shall automatically terminate and the Full Amortization Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and 100% of the VFN Noteholders, notify the Indenture Trustee, as soon as reasonably practicable, that they have waived the occurrence of such Facility Early Amortization Event and consent to the continuation of the Revolving Period or Target Amortization Periods (in the case of any Notes still in their Revolving Periods or Target Amortization Periods). Upon the occurrence of a Target Amortization Event with respect to a Class or Series, the Notes of such Class or Series shall enter their Target Amortization Periods and as a result shall be paid principal in Target Amortization Amounts under Section 4.5(a)(1)(v) on subsequent Payment Dates, unless the requisite parties pursuant to the Indenture Supplement related to that Series notify the Indenture Trustee that they have waived the occurrence of such Target Amortization Event and consent to the continuation of the Revolving Periods (in the case of any Notes still in their Revolving Periods). The Administrator shall notify the Indenture Trustee and the Administrative Agent immediately upon the occurrence of any Facility Early Amortization Event or Target Amortization Event. The Administrative Agent shall use commercially reasonable efforts to notify the Indenture Trustee and each Derivative Counterparty (as applicable in the case of any Target Amortization Event, with respect to the related Series of Notes) promptly upon becoming aware of the occurrence of any Facility Early Amortization Event or Target Amortization Event.
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Article V
Note Forms
Section 5.1. Forms Generally.
The Notes will have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or the applicable Indenture Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with applicable laws or regulations or with the rules of any securities exchange, or as may, consistently herewith, be determined by the Issuer, as evidenced by the Issuer’s execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes and the Global Notes representing the Book-Entry Notes will be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders) or may be produced in any other manner, all as determined by the Issuer, as evidenced by the Issuer’s execution of such Notes.
Section 5.2. Forms of Notes.
(a) Forms Generally . Subject to Section 5.2(b) , each Note will be in one of the forms approved from time to time by or pursuant to an Indenture Supplement. Without limiting the generality of the foregoing, the Indenture Supplement for any Series of Notes shall specify whether the Notes of such Series, or of any Class within such Series, shall be issuable as Definitive Notes or as Book-Entry Notes.
(b) Issuer Certificate . Before the delivery of a Note to the Indenture Trustee for authentication in any form approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the Indenture Trustee the Issuer Certificate by or pursuant to which such form of Note has been approved, which Issuer Certificate will have attached thereto a true and correct copy of the form of Note which has been approved thereby. Any form of Note approved by or pursuant to an Issuer Certificate must be acceptable as to form to the Indenture Trustee, such acceptance to be evidenced by the Indenture Trustee’s authentication of Notes in that form or a Certificate of Authentication signed by an Indenture Trustee Authorized Officer and delivered to the Issuer.
(c) (i) Rule 144A Notes . Notes offered and sold in reliance on the exemption from registration under Rule 144A (each, a “ Rule 144A Note ”) shall be issued initially in the form of (A) one or more permanent Global Notes in fully registered form (each, a “ Rule 144A Global Note ”), substantially in the form attached hereto as Exhibit A-1 or (B) one or more permanent Definitive Notes in fully registered form (each, a “ Rule 144A Definitive Note ”), substantially in the form attached hereto as Exhibit A-2 . The aggregate principal amounts of the Rule 144A Global Notes or Rule 144A Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee, or the Depository or its nominee, as the case may be, as hereinafter provided.
(ii) Regulation S Notes. Notes sold in offshore transactions in reliance on Regulation S (each, a “ Regulation S Note ”) shall be issued in the form of (A) one or more permanent Global Notes in fully registered form (each, a “ Regulation S Global Note ”), substantially in the form attached hereto as Exhibit A-3 or (B) one or more permanent Definitive Notes in fully registered form (each, a “ Regulation S Definitive Note ”), substantially in the form attached hereto as Exhibit
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A-4 . The aggregate principal amounts of the Regulation S Global Notes or the Regulation S Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
Section 5.3. Form of Indenture Trustee’s Certificate of Authentication.
The form of Indenture Trustee’s Certificate of Authentication for any Note issued pursuant to this Indenture will be substantially as follows:
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series or Class designated herein referred to in the within-mentioned Indenture and Indenture Supplement.
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WELLS FARGO BANK, N.A., as Indenture Trustee, |
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| By: |
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| Authorized Signatory | ||
| Dated: |
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Section 5.4. Book-Entry Notes.
(a) Issuance of Book-Entry Notes . If the Issuer establishes pursuant to Sections 5.2 and 6.1 that the Notes of a particular Series or Class are to be issued as Book-Entry Notes, then the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver, one or more definitive Global Notes, which, unless otherwise provided in the applicable Indenture Supplement (1) will represent, and will be denominated in an amount equal to the aggregate, Initial Note Balance of the Outstanding Notes of such Series or Class to be represented by such Global Note or Notes, or such portion thereof as the Issuer will specify in an Issuer Certificate, (2) will be registered in the name of the Depository for such Global Note or Notes or its nominee, (3) will be delivered by the Indenture Trustee or its agent to the Depository or pursuant to the Depository’s instruction (and which may be held by the Indenture Trustee as custodian for the Depository, if so specified in the related Indenture Supplement or Depository Agreement), (4) if applicable, will bear a legend substantially to the following effect: “Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“ DTC ”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein” and (5) may bear such other legend as the Issuer, upon advice of counsel, deems to be applicable. The Specified Notes may not be issued as Book-Entry Notes.
(b) Transfers of Global Notes only to Depository Nominees . Notwithstanding any other provisions of this Section 5.4 or of Section 6.5 , and subject to the provisions of paragraph (c) below, unless the terms of a Global Note or the applicable Indenture Supplement expressly permit such Global Note to be exchanged in whole or in part for individual Notes, a Global Note may be transferred, in whole but not in part and in the manner provided in Section 6.5 , only to a nominee of the Depository for such Global Note, or to the Depository, or a successor Depository for such Global Note selected or approved by the Issuer, or to a nominee of such successor Depository.
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(c) Limited Right to Receive Definitive Notes . Except under the limited circumstances described below, Note Owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. With respect to Notes issued within the United States, unless otherwise specified in the applicable Indenture Supplement, or with respect to Notes issued outside the United States, if specified in the applicable Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies the Issuer that it is unwilling or unable to continue to act as Depository for such Global Note or if at any time the Depository for the Notes for such Series or Class ceases to be a Clearing Corporation, the Issuer will appoint a successor Depository with respect to such Global Note. If a successor Depository for such Global Note is not appointed by the Issuer within ninety (90) days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 requesting the authentication and delivery of individual Notes of such Series or Class in exchange for such Global Note, will authenticate and deliver, individual Notes of such Series or Class of like tenor and terms in an aggregate Initial Note Balance equal to the Initial Note Balance of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion determine that the Notes of any Series or Class or portion thereof issued or issuable in the form of one or more Global Notes will no longer be represented by such Global Note or Notes. In such event the Issuer will execute, and the Indenture Trustee or its agent in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 for the authentication and delivery of individual Notes of such Series or Class in exchange in whole or in part for such Global Note, will authenticate and deliver individual Notes of such Series or Class of like tenor and terms in definitive form in an aggregate Initial Note Balance equal to the Initial Note Balance of such Global Note or Notes representing such Series or Class or portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 5.2 and 6.1 with respect to Notes issued or issuable in the form of a Global Note, the Depository for such Global Note may surrender such Global Note in exchange in whole or in part for individual Notes of such Series or Class of like tenor and terms in definitive form on such terms as are acceptable to the Issuer and such Depository. Thereupon the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver, without service charge, (A) to each Person specified by such Depository a new Note or Notes of the same Series or Class of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate Initial Note Balance equal to the Initial Note Balance of the portion of the Global Note or Notes specified by the Depository and in exchange for such Person’s beneficial interest in the Global Note; and (B) to such Depository a new Global Note of like tenor and terms and in an authorized denomination equal to the difference, if any, between the Initial Note Balance of the surrendered Global Note and the aggregate Initial Note Balance of Notes delivered to the Noteholders thereof.
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(iv) If any Event of Default has occurred with respect to such Global Notes, and Owners of Notes evidencing more than 50% of the Global Notes of that Series or Class (measured by Voting Interests) advise the Indenture Trustee and the Depository that a Global Note is no longer in the best interest of the Note Owners, the Owners of Global Notes of that Series or Class may exchange their beneficial interests in such Notes for Definitive Notes in accordance with the exchange provisions herein.
(v) In any exchange provided for in any of the preceding four paragraphs, the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver Definitive Notes in definitive registered form in authorized denominations. Upon the exchange of the entire Initial Note Balance of a Global Note for Definitive Notes, such Global Note will be canceled by the Indenture Trustee or its agent. Except as provided in the preceding paragraphs, Notes issued in exchange for a Global Note pursuant to this Section will be registered in such names and in such authorized denominations as the Depository for such Global Note, pursuant to instructions from its direct or indirect participants or otherwise, will instruct the Indenture Trustee or the Note Registrar. The Indenture Trustee or the Note Registrar will deliver such Notes to the Persons in whose names such Notes are so registered.
Section 5.5. Beneficial Ownership of Global Notes.
Until Definitive Notes have been issued to the applicable Noteholders to replace any Global Notes with respect to a Series or Class pursuant to Section 5.4 or as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal with the applicable clearing agency or Depository and the Depository Participants for all purposes (including the making of distributions) as the authorized representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only through the applicable Depository and the Depository Participants and will be limited to those established by law and agreements between such Note Owners and the Depository and/or the Depository Participants. Pursuant to the operating rules of the applicable Depository, unless and until Definitive Notes are issued pursuant to Section 5.4 , the Depository will make book-entry transfers among the Depository Participants and receive and transmit distributions of principal and interest on the related Notes to such Depository Participants.
For purposes of any provision of this Indenture requiring or permitting actions with the consent of, or at the direction of, Noteholders evidencing a specified percentage of the Note Balance of Outstanding Notes, such direction or consent may be given by Note Owners (acting through the Depository and the Depository Participants) owning interests in or security entitlements to Notes evidencing the requisite percentage of principal amount of Notes.
Section 5.6. Notices to Depository.
Whenever any notice or other communication is required to be given to Noteholders with respect to which Book-Entry Notes have been issued, unless and until Definitive Notes will have been issued to the related Note Owners, the Indenture Trustee will give all such notices and communications to the applicable Depository, and shall have no obligation to report directly to such Note Owners.
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Article VI
The Notes
| Section 6.1. | General Provisions; Notes Issuable in Series; Terms of a Series or Class Specified in an Indenture Supplement. |
(a) Amount Unlimited . The aggregate Initial Note Balance of Notes which may be authenticated and delivered and Outstanding under this Indenture is not limited.
(b) Series and Classes . The Notes may be issued in one or more Series or Classes up to an aggregate Note Balance for such Series or Class as from time to time may be authorized by the Issuer. All Notes of each Series or Class under this Indenture will in all respects be equally and ratably entitled to the benefits hereof with respect to such Series or Class without preference, priority or distinction on account of (1) the actual time of the authentication and delivery, or (2) Stated Maturity Date of the Notes of such Series or Class, except as specified in the applicable Indenture Supplement for such Series or Class of Notes.
Each Note issued must be part of a Series of Notes for purposes of allocations pursuant to the related Indenture Supplement. A Series of Notes is created pursuant to an Indenture Supplement. A Class of Notes is created pursuant to an Indenture Supplement for the applicable Series.
Each Series and Class of Notes will be secured by the Trust Estate.
Each Series of Notes may, but need not be, subdivided into multiple Classes. Notes belonging to a Class in any Series may be entitled to specified payment priorities over other Classes of Notes in that Series.
(c) Provisions Required in Indenture Supplement . Before the initial issuance of Notes of each Series, there shall also be established in or pursuant to an Indenture Supplement provision for:
(i) the Series designation;
(ii) the Initial Note Balance of such Series of Notes and of each Class, if any, within such Series, and the Maximum VFN Principal Balance for such Series (if it is a Series or Class of Variable Funding Notes);
(iii) whether such Notes are subdivided into Classes;
(iv) whether such Series of Notes are Term Notes, Variable Funding Notes or a combination thereof;
(v) the Note Interest Rate at which such Series of Notes or each related Class of Notes will bear interest, if any, or the formula or index on which such rate will be determined, including all relevant definitions, and the date from which interest will accrue;
(vi) the Expected Repayment Date and the Stated Maturity Date for such Series of Notes or each related Class of Notes;
(vii) if applicable, any Target Amortization Events with respect to such Series of Notes or any related Class;
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(viii) if applicable, the Target Amortization Amount for each related Class of such Series of Notes;
(ix) if applicable, the appointment by the Indenture Trustee of an Authenticating Agent in one or more places other than the location of the office of the Indenture Trustee with power to act on behalf of the Indenture Trustee and subject to its direction in the authentication and delivery of such Notes in connection with such transactions as will be specified in the provisions of this Indenture or in or pursuant to the applicable Indenture Supplement creating such Series;
(x) if such Series of Notes or any related Class will be issued in whole or in part in the form of a Global Note or Global Notes, the terms and conditions, if any, in addition to those set forth in Section 5.4 , upon which such Global Note or Global Notes may be exchanged in whole or in part for other Definitive Notes; and the Depository for such Global Note or Global Notes (if other than the Depository specified in Section 1.1 );
(xi) the subordination, if any, of such Series of Notes or any related Class(es) to any other Notes of any other Series or of any other Class within the same Series;
(xii) if such Series of Notes or any related Class is to have the benefit of any Derivative Agreement, the terms and provisions of such agreement;
(xiii) if such Series of Notes or any related Class is to have the benefit of any Supplemental Credit Enhancement Agreement or Liquidity Facility, the terms and provisions of the applicable agreement;
(xiv) the Record Date for any Payment Date of such Series of Notes or any related Class, if different from the last day of the month before the related Payment Date;
(xv) if applicable, under what conditions any additional amounts will be payable to Noteholders of the Notes of such Series; and
(xvi) any other terms of such Notes as stated in the related Indenture Supplement;
all upon such terms as may be determined in or pursuant to an Indenture Supplement with respect to such Series or Class of Notes.
(d) Forms of Series or Classes of Notes . The form of the Notes of each Series or Class will be established pursuant to the provisions of this Indenture and the related Indenture Supplement creating such Series or Class. The Notes of each Series or Class will be distinguished from the Notes of each other Series or Class in such manner, reasonably satisfactory to the Indenture Trustee, as the Issuer may determine.
Section 6.2. Denominations.
(a) Except as provided in Section 6.2(b) , the Notes of each Series or Class will be issuable in such denominations and currency as will be provided in the provisions of this Indenture or in or pursuant to the applicable Indenture Supplement. In the absence of any such provisions with respect to the Notes of any Series or Class, the Notes of that Series or Class will be issued in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
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(b) The minimum denomination established for each class of Specified Notes issued on any particular date, shall be determined in a manner so that the total number of Specified Notes that could be outstanding immediately after such issuance (including all classes of Specified Notes issued on such date) shall not reduce the Remaining Specified Note Capacity below zero. On any particular issue date, the Remaining Specified Note Capacity shall be equal to (a) 90 less (b) the sum of, for each class of Specified Note outstanding immediately after such issuance (including all classes of Specified Notes issued on such date but excluding any Specified Notes beneficially owned by the beneficial owner of the Trust Certificate), the quotient, rounded downwards to the nearest whole number, of the principal amount of such class of Specified Note on its date of issuance divided by the minimum denomination established for such class of Specified Note on its date of issuance (or as later revised).
Section 6.3. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer Authorized Officer, by manual or facsimile signature.
(b) Notes bearing the manual or facsimile signatures of individuals who were at any time an Issuer Authorized Officer will bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices before the authentication and delivery of such Notes or did not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication; and the Indenture Trustee will, upon delivery of an Issuer Certificate, authenticate and deliver such Notes as provided in this Indenture and not otherwise.
(d) Before any such authentication and delivery, the Indenture Trustee will be entitled to receive, in addition to any Officer’s Certificate and Opinion of Counsel required to be furnished to the Indenture Trustee pursuant to Section 1.3 , the Issuer Certificate and any other opinion or certificate relating to the issuance of the Series or Class of Notes required to be furnished pursuant to Section 5.2 or Section 6.10 .
(e) The Indenture Trustee will not be required to authenticate such Notes if the issue thereof will adversely affect the Indenture Trustee’s own rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any Series or Class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a Certificate of Authentication substantially in the form provided for herein executed by the Indenture Trustee by manual signature of an authorized signatory, and such certificate upon any Note will be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Section 6.4. Temporary Notes.
(a) Pending the preparation of definitive Notes of any Series or Class, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 , together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Issuer may determine, as evidenced by the Issuer’s execution of such Notes.
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(b) If temporary Notes of any Series or Class are issued, the Issuer will cause permanent Notes of such Series or Class to be prepared without unreasonable delay. After the preparation of permanent Notes, the temporary Notes of such Series or Class will be exchangeable for permanent Notes of such Series or Class upon surrender of the temporary Notes of such Series or Class at the office or agency of the Issuer in a Place of Payment, without charge to the Noteholder; and upon surrender for cancellation of any one or more temporary Notes the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver in exchange therefore a like Initial Note Balance of permanent Notes of such Series or Class of authorized denominations and of like tenor and terms. Until so exchanged the temporary Notes of such Series or Class will in all respects be entitled to the same benefits under this Indenture as permanent Notes of such Series or Class.
Section 6.5. Registration, Transfer and Exchange.
(a) Note Register . The Indenture Trustee, acting as Note Registrar (in such capacity, the “ Note Registrar ”), shall keep or cause to be kept a register (herein sometimes referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Notes, or of Notes of a particular Series or Class, and for transfers of Notes. Any such register will be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers will be available for inspection by the Issuer or the Indenture Trustee at the Corporate Trust Office. The Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agents of any of them, may treat a Person in whose name a Note is registered as the owner of such Note for the purpose of receiving payments in respect of such Note and for all other purposes, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any agent of any of them, shall be affected by notice to the contrary. None of the Issuer, the Indenture Trustee, any agent of the Indenture Trustee, any Paying Agent or the Note Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership of a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership.
(b) Exchange of Notes . Subject to Section 5.4 , upon surrender for transfer of any Note of any Series or Class at the Place of Payment, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 and such surrendered Note, together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms. Subject to Section 5.4 , Notes of any Series or Class may be exchanged for other Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms, upon surrender of the Notes to be exchanged at the Place of Payment. Whenever any Notes are so surrendered for exchange, the Issuer will execute, and the Indenture Trustee or the related Authenticating Agent will authenticate and deliver the Notes which the Noteholders making the exchange are entitled to receive.
(c) Issuer Obligations . All Notes issued upon any transfer or exchange of Notes will be the valid and legally binding obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such transfer or exchange.
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(d) Endorsement of Notes to be Transferred or Exchanged . Every Note presented or surrendered for transfer or exchange will (if so required by the Issuer, the Note Registrar or the Indenture Trustee) be duly indorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Indenture Trustee, and the Note Registrar duly executed, by the Noteholder thereof or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”).
(e) No Service Charge . Unless otherwise provided in the Note to be transferred or exchanged, no service charge will be assessed against any Noteholder for any transfer or exchange of Notes, but the Issuer, the Indenture Trustee, and the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Notes before the transfer or exchange will be complete, other than exchanges pursuant to Section 5.4 not involving any transfer.
(f) Deemed Representations by Transferees of Rule 144A Notes . Each transferee (including the Initial Noteholder or Owner) of a Rule 144A Note or of a beneficial interest therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Transferee Certificate attached to Exhibit B-1 attached hereto.
(g) Deemed Representations by Transferees of Regulation S Notes . Each transferee (including the initial Noteholder or Owner) of a Regulation S Note or of a beneficial therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Transferee Certificate attached to Exhibit B-2 attached hereto.
(h) Conditions to Transfer . No sale, pledge or other transfer (a “ Transfer ”) of any Notes shall be made unless that Transfer is made pursuant to an effective registration statement under the Securities Act and effective registration or qualification under applicable state securities laws or is made in a transaction that does not require such registration or qualification. If a Transfer is made without registration under the Securities Act (other than in connection with the initial issuance thereof by the Issuer), then the Note Registrar, the Indenture Trustee, Administrator, on behalf of the Issuer, shall refuse to register such Transfer unless the Note Registrar receives either:
(i) the Regulation S Note Transfer Certificate or Rule 144A Note Transfer Certificate and such other information as may be required pursuant to this Section 6.5 ; or
(ii) if the Transfer is to be made to an Issuer Affiliate in a transaction that is exempt from registration under the Securities Act, an Opinion of Counsel reasonably satisfactory to the Issuer and the Note Registrar to the effect that such Transfer may be made without registration under the Securities Act (which Opinion of Counsel shall not be an expense of the Trust Estate or of the Issuer, the Indenture Trustee or the Note Registrar in their respective capacities as such).
None of the Administrator, the Issuer, the Indenture Trustee or the Note Registrar is obligated to register or qualify the Notes under the Securities Act or any other securities law or to take any action not otherwise required under this Indenture to permit the transfer of any Note without registration or qualification. Any Noteholder of a Note desiring to effect such a Transfer shall, and upon acquisition of such a Note shall be deemed to have agreed to, indemnify the Indenture Trustee, the Note Registrar, the Administrator, the Servicer and the Issuer against any liability that may result if the Transfer is not so exempt or is not made in accordance with the Securities Act and applicable state securities laws.
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In connection with any Transfer of Notes in reliance on Rule 144A, the Administrator shall furnish upon request of a Noteholder to such Noteholder and any prospective purchaser designated by such Noteholder the information required to be delivered under paragraph (d)(4) of Rule 144A.
In the event that a Note is transferred to a Person that does not meet the requirements of this Section 6.5 and/or the requirements of the related Indenture Supplement, such transfer will be of no force and effect, will be void ab initio , and will not operate to transfer any right to such Person, notwithstanding any instructions to the contrary to the Issuer, the Indenture Trustee or any intermediary; and the Indenture Trustee shall not make any payment on such Note for as long as such Person is the Noteholder of such Note and the Indenture Trustee shall have the right to compel such Person to transfer such Note to a Person who does meet the requirements of this Section 6.5 .
(i) Transfers of Ownership Interests in Global Notes . Transfers of beneficial interests in a Global Note representing Book-Entry Notes may be made only in accordance with the rules and regulations of the Depository (and, in the case of a Regulation S Global Note, prior to the end of the Distribution Compliance Period, only to beneficial owners who are not U.S. Persons in accordance with the rules and regulations of Euroclear or Clearstream) and the transfer restrictions contained in the legend on such Global Note and exchanges or transfers of interests in a Global Note may be made only in accordance with the following:
(i) General Rules Regarding Transfers of Global Notes. Subject to clauses (ii) through (vi) of this Section 6.5(i) , Transfers of a Global Note representing Book-Entry Notes shall be limited to Transfers of such Global Note in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successor’s nominee.
(ii) Rule 144A Global Note to Regulation S Global Note. If an owner of a beneficial interest in a Rule 144A Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note for that Series and/or Class, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Regulation S Global Note for that Series and/or Class, such Note Owner (or transferee), provided such Note Owner (or transferee) is not a U.S. Person, may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest in such Rule 144A Global Note for a beneficial interest in the Regulation S Global Note for that Series and/or Class. Upon the receipt by the Indenture Trustee of (A) instructions from the Depository directing the Indenture Trustee to cause to be credited a beneficial interest in a Regulation S Global Note in an amount equal to the beneficial interest in such Rule 144A Global Note to be exchanged but not less than the minimum denomination applicable to the owner’s Notes held through a Regulation S Global Note, (B) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository and, in the case of a transfer pursuant to and in accordance with Regulation S, the Euroclear or Clearstream account to be credited with such increase and (C) a certificate (each, a “ Regulation S Note Transfer Certificate ”) in the form of Exhibit B-2 hereto given by the Note Owner or its transferee stating that the exchange or transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes, including the requirements that the Note Owner or its transferee is not a U.S. Person and the transfer is made pursuant to and in accordance with Regulation S, then the Indenture Trustee and the Note Registrar, shall reduce the principal amount of the Rule 144A Global Note for the related Series and/or Class and increase the principal amount of the Regulation S Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note to be exchanged, and shall instruct Euroclear or Clearstream, as applicable,
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concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Rule 144A Global Note for the related Series and/or Class.
(iii) Regulation S Global Note to Rule 144A Global Note. If an owner of a beneficial interest in a Regulation S Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Rule 144A Global Note for such Series and/or Class, such owner’s transferee may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Rule 144A Global Note for such Series and/or Class. Upon the receipt by the Indenture Trustee and the Note Registrar, of (A) instructions from the Depository directing the Indenture Trustee and the Note Registrar, to cause to be credited a beneficial interest in a Rule 144A Global Note in an amount equal to the beneficial interest in such Regulation S Global Note to be exchanged but not less than the minimum denomination applicable to such owner’s Notes held through a Rule 144A Global Note, to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, and (B) a certificate (each, a “ Rule 144A Note Transfer Certificate ”) in the form of Exhibit B-1 hereto given by the transferee of such beneficial interest, then the Indenture Trustee will reduce the principal amount of the Regulation S Global Note and increase the principal amount of the Rule 144A Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Regulation S Global Note for the related Series and/or Class to be transferred and the Indenture Trustee and the Note Registrar, shall instruct the Depository, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Regulation S Global Note for the related Series and/or Class.
(iv) Transfers of Interests in Rule 144A Global Note. An owner of a beneficial interest in a Rule 144A Global Note may transfer such interest in the form of a beneficial interest in such Rule 144A Global Note in accordance with the procedures of the Depository without the provision of written certification.
(v) Transfers of Interests in Regulation S Global Note. An owner of a beneficial interest in a Regulation S Global Note may transfer such interest in the form of a beneficial interest in such Regulation S Global Note in accordance with the applicable procedures of Euroclear and Clearstream without the provision of written certification.
(vi) Regulation S Global Note to Regulation S Definitive Note. Subject to Section 5.4(c) hereof, an owner of a beneficial interest in a Regulation S Global Note for the related Series and/or Class deposited with or on behalf of a Depository may at any time transfer such interest for a Regulation S Definitive Note upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Regulation S Note Transfer Certificate.
(vii) Rule 144A Global Note to Rule 144A Definitive Note. Subject to Section 5.4(c) hereof, an owner of a beneficial interest in a Rule 144A Global Note deposited with or on behalf of a Depository may at any time transfer such interest for a Rule 144A Definitive Note, upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Rule 144A Note Transfer Certificate.
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(j) Transfers of Definitive Notes . In the event of any Transfer of a Regulation S Definitive Note, a Regulation S Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer. In the event of any Transfer of a Rule 144A Definitive Note, a Rule 144A Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer.
(k) ERISA Restrictions . Neither the Note Registrar nor the Indenture Trustee shall register the Transfer of any Definitive Note (other than a Specified Note, unless otherwise provided in the related Indenture Supplement) unless the prospective transferee has delivered to the Indenture Trustee and the Note Registrar a certification to the effect that either (i) it is not, and is not acquiring the Notes or any interest therein on behalf of, or using assets of, an “employee benefit plan” as defined in Section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA (the “ Plan Asset Regulations ”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code (“ Similar Law ”), or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code (collectively, an “ Employee Benefit Plan ”), or (ii) (A) as of the date of transfer or purchase, the Notes are rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (B) the Transferee’s acquisition and holding of the Notes or any interest therein will satisfy the requirements of Prohibited Transaction Class Exemption (“ PTCE ”) 84-14 (relating to transactions effected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under Section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan subject to Similar Law, will not violate any such Similar Law). In the case of any Book-Entry Note, each transferee of such Note or any beneficial interest therein by virtue of its acquisition of such Note will be deemed to represent either (i) or (ii) above. Neither the Note Registrar nor the Indenture Trustee shall register the transfer of any Specified Note unless the prospective transferee has delivered to the Indenture Trustee and the Note Registrar a certification to the effect that it is not, and is not acquiring the Notes or any interest therein on behalf of, or with assets of, an Employee Benefit Plan.
(l) Each prospective owner of a beneficial interest in a Specified Note shall, upon accepting a beneficial interest in the Specified Note, be deemed to make all of the certifications, representations and warranties set forth in the Transferee Certification attached hereto as Exhibit E (in the case of the Class 1 Specified Notes) or Exhibit F (in the case of the Class 2 Specified Notes), as the case may be.
(m) Tax Representation on Class 1 Specified Notes . Notwithstanding anything to the contrary herein, no transfer of a beneficial interest in a Class 1 Specified Note shall be effective, and any attempted transfer shall be void ab initio , unless, prior to and as a condition of such transfer, the prospective transferee of the beneficial interest (including the initial transferee of the beneficial interest) and any subsequent transferee of the beneficial interest in a Class 1 Specified Note, represent and warrant, in writing, substantially in the form of the Transferee Certification set forth in Exhibit E, to the Indenture Trustee and the Note Registrar and any of their respective successors or assigns that:
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(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under this Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 1 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 1 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note, and it will not cause any beneficial interest in the Class 1 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 1 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture, and it does not and will not hold any beneficial interest in the Class 1 Specified Note on behalf of any Person whose beneficial interest in the Class 1 Specified Note is in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note, or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 1 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in the Class 1 Specified Note would be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture.
(iv) It will not transfer any beneficial interest in the Class 1 Specified Note (directly, through a participation thereof or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit E of this Indenture.
(v) It will not use any Class 1 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is the Class 1 Specified Note provided the terms of such repurchase transaction are generally consistent with prevailing market practice,
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(n) Tax Representation on Class 2 Specified Notes . Notwithstanding anything to the contrary herein, no transfer of a beneficial interest in a Class 2 Specified Note shall be effective, and any attempted transfer shall be void ab initio , unless, prior to and as a condition of such transfer, the prospective transferee of the beneficial interest (including the initial transferee of the beneficial interest) and any subsequent transferee of the beneficial interest in a Class 2 Specified Note, represent and warrant, in writing, substantially in the form of the Transferee Certification set forth in Exhibit F, to the Indenture Trustee and the Note Registrar and any of their respective successors or assigns that:
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(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under this Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 2 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 2 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note, and it will not cause any beneficial interest in the Class 2 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 2 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture, and it does not and will not hold any beneficial interest in the Class 2 Specified Note on behalf of any Person whose beneficial interest in the Class 2 Specified Note is in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note, or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 2 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in the Class 2 Specified Note would be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture.
(iv) It will not transfer any beneficial interest in the Class 2 Specified Note ( directly, through a participation thereof or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit F of the Indenture.
(v) It will not use any Class 2 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is the Class 2 Specified Note provided the terms of such repurchase transaction are generally consistent with prevailing market practice,
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(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) It is a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code and will not transfer to, or cause such Class 2 Specified Note to be transferred to, any person other than a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code.
(o) No Liability of Indenture Trustee for Transfers . To the extent permitted under applicable law, the Indenture Trustee (in any of its capacities) shall be under no liability to any Person for any registration of transfer of any Note that is in fact not permitted by this Section 6.5 or for making any payments due to the Noteholder thereof or taking any other action with respect to such Noteholder under the provisions of this Indenture so long as the transfer was registered by the Indenture Trustee and the Note Registrar in accordance with the requirements of this Indenture.
Section 6.6. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (1) any mutilated Note is surrendered to the Indenture Trustee or the Note Registrar, or the Issuer, the Note Registrar or the Indenture Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and (2) there is delivered to the Issuer, the Note Registrar or the Indenture Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 , together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor, Series or Class, Stated Maturity Date and Initial Note Balance, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note on a Payment Date in accordance with Section 4.5 .
(c) Upon the issuance of any new Note under this Section, the Issuer, the Indenture Trustee, or the Note Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note will constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of the same Series or Class duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
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Section 6.7. Payment of Interest; Interest Rights Preserved; Withholding Taxes.
(a) Unless otherwise provided with respect to such Note pursuant to Section 6.1 , interest payable on any Note will be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the most recent Record Date.
(b) Subject to Section 6.7(a) , each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note will carry the rights to interest accrued or principal accreted and unpaid, and to accrue or accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest on or principal of any Note shall be subject to any applicable withholding or deduction imposed pursuant to the Code or other applicable tax law, including foreign withholding and deduction. Any amounts properly so withheld or deducted shall be treated as actually paid to the appropriate Noteholder. In addition, in order to receive payments on its Notes free of U.S. federal withholding and backup withholding tax, each Noteholder shall timely furnish the Indenture Trustee on behalf of the Issuer, (1) any applicable IRS Form W-9, W-8BEN, W-8ECI or W-8IMY (with any applicable attachments) and (2) any documentation that is required under Section 1471 or 1472 of the Code to enable the Issuer, the Indenture Trustee and any other agent of the Issuer to determine their duties and liabilities with respect to any taxes they may be required to withhold in respect of such Note or the Noteholder of such Note or beneficial interest therein, in each case, prior to the first Payment Date after such Noteholder’s acquisition of Notes and at such time or times required by law or that the Indenture Trustee on behalf of the Issuer or their respective agents may reasonably request, and shall update or replace such IRS form or documentation in accordance with its terms or its subsequent amendments. Each Noteholder will provide the applicable replacement IRS form or documentation every three (3) years (or sooner if there is a transfer to a new Noteholder or if required by applicable law). In each case above, the applicable IRS form or documentation shall be properly completed and signed under penalty of perjury.
Section 6.8. Persons Deemed Owners.
The Issuer, the Indenture Trustee, the Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note Registrar may treat the Person in whose name the Note is registered in the Note Registrar as the owner of such Note for the purpose of receiving payment of principal of and (subject to Section 6.7 ) interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and neither the Issuer, the Indenture Trustee, the Note Registrar, nor any agent of the Issuer, the Indenture Trustee, or the Note Registrar will be affected by notice to the contrary.
Section 6.9. Cancellation.
All Notes surrendered for payment, redemption, transfer, conversion or exchange will, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and, if not already canceled, will be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered will be promptly canceled by the Indenture Trustee. No Note will be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Indenture. The Indenture Trustee will dispose of all canceled Notes in accordance with its customary procedures.
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Section 6.10. New Issuances of Notes.
(a) Issuance of New Notes . The Issuer may, from time to time, direct the Indenture Trustee, on behalf of the Issuer, to issue new Notes of any Series or Class, so long as the conditions precedent set forth in Section 6.10(b) are satisfied if, at the time of issuance, other Notes have already been issued and remain Outstanding. On or before the Issuance Date of new Notes of any Series or Class of Notes, the Issuer shall execute and deliver the required Indenture Supplement which shall incorporate the principal terms with respect to such additional Series or Class of Notes. The Indenture Trustee shall execute the Indenture Supplement without the consent of any Noteholders, the Issuer shall execute the Notes of such Series or Class and the Notes of such Series or Class shall be delivered to the Indenture Trustee (along with the other deliverables required hereunder) for authentication and delivery.
(b) Conditions to Issuance of New Notes . The issuance of the Notes of any Series or Class after the Closing Date pursuant to this Section 6.10 shall be subject to the satisfaction of the following conditions:
(i) no later than ten (10) Business Days before the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee, each VFN Noteholder, each Derivative Counterparty and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, notice of such new issuance;
(ii) on or prior to the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, an Issuer Certificate to the effect that the Issuer reasonably believes that the new issuance will not cause an Adverse Effect on any Outstanding Notes or a Secured Party, and an Issuer Tax Opinion with respect to such proposed issuance, and an Opinion of Counsel:
(A) to the effect that all instruments furnished to the Indenture Trustee conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Indenture Trustee to authenticate and deliver such Notes;
(B) to the effect that the form and terms of such Notes have been established in conformity with the provisions of this Indenture;
(C) to the effect that all conditions precedent set forth in this Indenture to the issuance of such Notes have been met; and
(D) covering such other matters as the Indenture Trustee may reasonably request;
(iii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee and each Note Rating Agency that is at that time rating Outstanding Notes that will remain Outstanding after the new issuance, an Opinion of Counsel to the effect that the Issuer has the requisite power and authority to issue such Notes and such Notes have been duly authorized and delivered by the Issuer and, assuming due authentication and delivery by the Indenture Trustee, constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws and legal principles affecting creditors’ rights generally from time to time in effect and to general equitable principles, whether applied in an action at law or in equity) and are entitled to the benefits of this Indenture, equally and ratably with all other Outstanding Notes, if any, of such Series or Class subject to the terms of this Indenture and each Indenture Supplement;
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(iv) if any additional conditions to the new issuance are specified in writing to the Issuer by a Note Rating Agency that is at that time rating any Outstanding Note that will remain Outstanding after the new issuance, the Issuer satisfies such conditions;
(v) the Issuer obtains written confirmation from each Note Rating Agency that is at that time rating any Outstanding Note at the request of the Issuer that will remain Outstanding after the new issuance that the new issuance will not have a Ratings Effect on any Outstanding Notes that are rated by such Note Rating Agency at the request of the Issuer;
(vi) a Facility Early Amortization Event shall not have occurred and be continuing, as evidenced by an Issuer’s Certificate;
(vii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee an Indenture Supplement and, if applicable, the Issuer Certificate;
(viii) any Class of VFN must have the same Stated Maturity Date, Expected Repayment Date and the same method of calculation of its Target Amortization Amount as any and all other Outstanding Classes of VFNs;
(ix) for any new Series with respect to which there is a new Administrative Agent not currently set forth under the terms of the definition of “Administrative Agent,” the Administrative Agent shall have consented to the issuance of such Series, unless the Notes in respect of which the existing Administrative Agent’s consent is required, are paid in full and all related commitments terminated in writing by the Issuer and any remaining accrued commitment fees have been paid in full to such terminated Administrative Agent, in connection with the issuance of the new Series with the different Administrative Agent; and
(x) any other conditions specified in the applicable Indenture Supplement; provided , however , that any one of the aforementioned conditions may be eliminated (other than clause (v) and the requirement for an Issuer Tax Opinion) or modified as a condition precedent to any new issuance of a Series or Class of Notes if the Issuer has obtained approval from each Note Rating Agency that is at that time rating any Outstanding Notes that will remain Outstanding after the new issuance.
(c) No Notice or Consent Required to or from Existing Noteholders and Owners . Except as provided in Section 6.10(a) above, the Issuer and the Indenture Trustee will not be required to provide prior notice to or to obtain the consent of any Noteholder or Note Owner of Notes of any Outstanding Series or Class to issue any additional Notes of any Series or Class.
(d) Other Provisions . There are no restrictions on the timing or amount of any additional issuance of Notes of an Outstanding Series or Class within a Series, of Notes, so long as the conditions described in Section 6.10(a) are met or waived. If the additional Notes are in a Series or Class of Notes that has the benefit of a Derivative Agreement, the Issuer will enter into a Derivative Agreement for the benefit of the additional Notes. In addition, if the additional Notes are a Series or Class of Notes that has the benefit of any Supplemental Credit Enhancement Agreement or any Liquidity Facility, the Issuer will enter into a Supplemental Credit Enhancement Agreement or Liquidity Facility, as applicable, for the benefit of the additional Notes.
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(e) Sale Proceeds . The proceeds of sale of any new Series of Notes shall be wired to the Collection and Funding Account, and the Indenture Trustee shall disburse such sale proceeds at the direction of the Administrator on behalf of the Issuer, except to the extent such funds are needed to satisfy the Collateral Test. The Administrator on behalf of the Issuer may direct the Issuer to apply such proceeds to reduce pro rata based on Invested Amounts, the VFN Principal Balance of any Classes of Variable Funding Notes, or to redeem any Series of Notes in accordance with Section 13.1 . In the absence of any such direction, the proceeds of such sale shall be distributed to the Depositor or at the Depositor’s direction on the Issuance Date for the newly issued Notes. The Administrator shall deliver to the Indenture Trustee a report demonstrating that the release of sale proceeds pursuant to the Issuer’s direction will not cause a failure of the Collateral Test, as a precondition to the Indenture Trustee releasing such proceeds.
(f) Increase or Reduction in Maximum VFN Principal Balance and/or the Extension of any Expected Repayment Dat e. For the avoidance of doubt, the increase or reduction in the Maximum VFN Principal Balance and/or the extension of the Expected Repayment Date in respect of any outstanding Class of Notes shall not constitute an issuance of “new Notes” for purpose of this Section 6.10 .
Article VII
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or Depositor or the
Receivables Seller
Section 7.1. Satisfaction and Discharge of Indenture.
This Indenture will cease to be of further effect with respect to any Series or Class of Notes (except as to any surviving rights of transfer or exchange of Notes of that Series or Class expressly provided for herein or in the form of Note for that Series or Class), and the Indenture Trustee, on demand of and at the expense of the Issuer, will execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) all Notes of that Series or Class theretofore authenticated and delivered (other than (i) Notes of that Series or Class which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 6.6 , and (ii) Notes of that Series or Class for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from that trust) have been delivered to the Indenture Trustee canceled or for cancellation;
(b) with respect to the discharge of this Indenture for each Series or Class the Issuer has paid or caused to be paid all sums payable hereunder (including payments to the Indenture Trustee (in all its capacities) and Wells Fargo Bank, N.A. (in all its capacities) pursuant to Section 11.6 with respect to the Notes or in respect of Fees, any and all amounts payable to each Derivative Counterparty in accordance with the terms of the related Derivative Agreement and any and all other amounts due and payable pursuant to this Indenture (including any payments to Wells Fargo Bank, N.A. (in any of its capacities); and
(c) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Notes of that Series or Class have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture with respect to any Series or Class of Notes, the obligations of the Administrator to the Indenture Trustee with respect to any Series or Class of Notes under Section 11.6 and of the Issuer to the Securities Intermediary under Section 4.9 and the obligations and rights of the Indenture Trustee under Section 7.2 and Section 11.3 , respectively, will survive such satisfaction and discharge.
Section 7.2. Application of Trust Money.
All money and obligations deposited with the Indenture Trustee pursuant to Section 7.1 and all money received by the Indenture Trustee in respect of such obligations will be held in trust and applied by it or the Paying Agent, in accordance with the provisions of the Class of Notes in respect of which it was deposited and this Indenture and the related Indenture Supplement, to the payment to the Persons entitled thereto, of the principal and interest for whose payment that money and obligations have been deposited with or received by the Indenture Trustee or the Paying Agent.
Section 7.3. Cancellation of Notes Held by the Issuer, the Depositor or the Receivables Seller.
If the Issuer, the Receivables Seller, the Depositor or any of their respective Affiliates holds any Notes, that Noteholder may, subject to any provision of a related Indenture Supplement limiting the repayment of such Notes by notice from that Noteholder to the Indenture Trustee, cause the Notes to be repaid and canceled, whereupon the Notes will no longer be Outstanding.
Article VIII
Events of Default and Remedies
Section 8.1. Events of Default.
“ Event of Default ” means, any one of the following events (whatever the reason for such Event of Default and whether it is voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default (which default continues for a period of two (2) Business Days following written or electronic notice from the Indenture Trustee or the Administrative Agent), in the payment (i) of any principal, interest or any Fees due and owing on any Payment Date (including without limitation the full aggregate amount of any Target Amortization Amounts due on such Payment Date) or the full aggregate amount of any Target Amortization Amount due on any other date or (ii) in full of all accrued and unpaid interest and the Outstanding Note Balance of the Notes of any Series or Class on or before the applicable Stated Maturity Date;
(b) the Servicer or a Subservicer shall fail to comply with the deposit and remittance requirements set forth in any Designated Servicing Agreement (subject to any cure period provided therein) or Section 4.2(a) (and such failure under Section 4.2(a) continues unremedied for a period of two (2) Business Days after a Responsible Officer of the Servicer or a Subservicer obtains actual knowledge of such failure, or receives written notice from the Indenture Trustee or any Noteholder of such failure);
(c) any failure of the Receivables Seller to pay the related Indemnity Payment which continues unremedied for a period of ten (10) days after the earlier to occur of (x) actual discovery by a Responsible Officer of the Receivables Seller or (y) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Receivables Seller, the Administrator, the Servicer, the Subservicer or the Depositor, respectively;
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(d) the occurrence of an Insolvency Event as to the Issuer, the Administrator, the Receivables Seller, the Servicer, a Subservicer or the Depositor;
(e) the Issuer or the Trust Estate shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act as determined by a court of competent jurisdiction in a final and non-appealable order;
(f) the Depositor sells, transfers, pledges or otherwise disposes of the Owner Trust Certificate (except to a wholly-owned subsidiary of Advance Purchaser), whether voluntarily or by operation of law, foreclosure or other enforcement by a Person of its remedies against the Receivables Seller, the Servicer or the Depositor, except with the consent of the Administrative Agent;
(g) (i) any material provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the Issuer, the Depositor, the Administrator, a Subservicer, the Receivables Seller or any of their respective Affiliates intended to be a party thereto, (ii) the validity or enforceability of any Transaction Document shall be contested by the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates, (iii) a proceeding shall be commenced by the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates or any governmental body having jurisdiction over the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates, seeking to establish the invalidity or unenforceability of any Transaction Document, or (iv) the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates shall deny in writing that it has any liability or obligation purported to be created under any Transaction Document;
(h) the Administrator or any Affiliate thereof has taken any action, or failed to take any action, the omission of which could reasonably be expected to impair the interests of the Issuer in the Receivables or the security interest or rights of the Indenture Trustee in the Trust Estate, or to cause or permit the transactions contemplated by the Receivables Sale Agreement to be characterized as a financing rather than a true sale for purposes of bankruptcy or similar laws; provided , however, that if the event is capable of being cured in all respects by corrective action and has not resulted in a material adverse effect on the Noteholders’ interests in the Trust Estate, such event shall not become an Event of Default unless it remains uncured for two (2) Business Days following its occurrence.
Upon the occurrence of any such event none of the Administrator, the Servicer, the Subservicer nor the Depositor shall be relieved from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Indenture, and each of the Administrator, the Servicer, the Subservicer and the Depositor shall provide the Indenture Trustee, each Note Rating Agency for each Note then Outstanding, each Derivative Counterparty and the Noteholders prompt notice of such failure or delay by it, together with a description of its effort to perform its obligations. Each of the Administrator, the Servicer, each Subservicer and the Depositor shall notify the Indenture Trustee in writing of any Event of Default or an event which with notice, the passage of time or both would become an Event of Default that it discovers, within one (1) Business Day of such discovery. For purposes of this Section 8.1 , the Indenture Trustee shall not be deemed to have knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Indenture Trustee and such notice references the Notes, the Trust Estate or this Indenture. The Indenture Trustee shall provide notice of defaults in accordance with Section 3.3(b) and Section 11.2 .
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Any determination pursuant to this Section 8.1 as to whether any event would have a material adverse effect on the rights or interests of the Noteholders shall be made without regard to any Derivative Agreement, Supplemental Credit Enhancement Agreement or Liquidity Facility.
Section 8.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 occurs, the unpaid principal amount of all of the Notes shall automatically become immediately due and payable without notice, presentment or demand of any kind. If any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee, at the written direction of either 100% of the VFN Noteholders or the Majority Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Noteholders), may declare the Note Balance of all the Outstanding Notes and all interest and principal accrued and unpaid (if any) thereon to be due and payable immediately, and upon any such declaration each Note will become and will be immediately due and payable, anything in this Indenture, the related Indenture Supplement(s) or in the Notes to the contrary notwithstanding. Such payments are subject to the allocation, deposits and payment sections of this Indenture and of the related Indenture Supplement(s).
(b) If a Payment Default occurs with respect to any Series or Class and is continuing, then and in each and every such case, unless the principal of all the Notes shall have already become due and payable, the Indenture Trustee, at the written direction of either the Administrative Agent or the Majority Noteholders of all Outstanding Notes, by notice in writing to the Issuer (and to the Indenture Trustee if given by Noteholders), may declare the Note Balance of all the Notes then Outstanding and all interest and principal accrued and unpaid (if any) thereon and all other amounts due and payable under any Transaction Document to be due and payable immediately, and upon any such declaration the same will become and will be immediately due and payable, and the Revolving Period with respect to such Series or Class shall immediately terminate notwithstanding anything in this Indenture, the related Indenture Supplement(s) or the Notes to the contrary.
(c) At any time after such a declaration of acceleration has been made or an automatic acceleration has occurred with respect to the Notes of any Series or Class and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereafter provided in this Article VIII , the Majority Noteholders of all Outstanding Notes, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay (A) all overdue installments of interest on such Notes, (B) the principal of such Notes which has become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor by the terms of such Notes, to the extent that payment of such interest is lawful, (C) interest upon overdue installments of interest at the rate or rates prescribed therefore by the terms of such Notes to the extent that payment of such interest is lawful, (D) all sums paid by the Indenture Trustee hereunder and the reasonable compensation, expenses and disbursements of the Indenture Trustee or Wells Fargo Bank, N.A. (in any of its capacities), their agents and counsel, all other amounts due to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 and (E) all amounts due and payable to each Derivative Counterparty in accordance with the terms of any applicable Derivative Agreement; and
(ii) all Events of Default, other than the nonpayment of the principal of such Notes which has become due solely by such acceleration, have been cured or waived as provided in Section 8.15 .
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No such rescission will affect any subsequent default or impair any right consequent thereon.
Section 8.3. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any Notes when such interest becomes due and payable and such default continues for a period of thirty-five (35) days following the date on which such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any Series or Class of Notes on the Stated Maturity Date thereof; then
the Issuer will, upon demand of the Indenture Trustee, pay (subject to the allocation provided in Section 4.5(a)(2) hereof and any related Indenture Supplement) to the Indenture Trustee, for the benefit of the Noteholders of any such Notes, the whole amount then due and payable on any such Notes for principal and interest, with interest, to the extent that payment of such interest will be legally enforceable, upon the overdue principal and upon overdue installments of interest, at the Default Rate applicable to the Note Balance thereof, unless otherwise specified in the applicable Indenture Supplement, and in addition thereto, will pay such further amount as will be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and Wells Fargo Bank, N.A. (in any of its capacities), their agents and counsel and all other amounts due to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 .
If the Issuer fails to pay such amounts forthwith upon such demand, the Indenture Trustee may, in its own name and as trustee of an express trust, institute a judicial proceeding for the collection of the sums so due and unpaid, and may directly prosecute such proceeding to judgment or final decree, and the Indenture Trustee may enforce the same against the Issuer or any other obligor upon the Notes and collect the money adjudged or decreed to be payable in the manner provided by law and this Indenture.
Section 8.4. Indenture Trustee May File Proofs of Claim.
In case of the pendency of any Insolvency Event or other similar proceeding or event relative to the Issuer or any other obligor upon the Notes or the property of the Issuer or of such other obligor, the Indenture Trustee (irrespective of whether the principal of the Notes will then be due and payable as therein expressed or by declaration or otherwise) will be entitled and empowered by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel and all other amounts due the Indenture Trustee under Section 4.5 ) and of the Noteholders allowed in such judicial proceeding, and
(b) to collect and receive any funds or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator or other similar official in any such proceeding is hereby authorized by each Noteholder to make such payment to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities), and in the event that the Indenture Trustee consents to the making of such payments directly to the Noteholders, to pay to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities), their agents and counsel, and any other amounts due the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 .
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Nothing herein contained will be deemed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding.
| Section 8.5. | Indenture Trustee May Enforce Claims Without Possession of Notes. |
All rights of action and claims under this Indenture or the Notes of any Series or Class may be prosecuted and enforced by the Indenture Trustee, without the possession of any of the Notes of such Series or Class or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Indenture Trustee, will be brought in its own name as trustee of an express trust, and any recovery of judgment will, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its respective agents and counsel, be for the ratable benefit of the Noteholders of the Notes of such Series or Class in respect of which such judgment has been recovered.
| Section 8.6. | Application of Money Collected. |
Any money or other property collected by the Indenture Trustee pursuant to this Article VIII will be applied in accordance with Sections 4.5(a)(2) , at the Final Payment Date fixed by the Indenture Trustee and, in case of the payment of such money on account of principal or interest, upon presentation of the Notes of the related Series or Class and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid.
| Section 8.7. | Sale of Collateral Requires Consent of Majority of All Noteholders. |
The Indenture Trustee shall not sell Collateral or cause the Issuer to sell Collateral following any Event of Default, except with the written consent, or at the direction of, the Majority Noteholders of the Outstanding Notes of each Series; provided , that the consent of 100% of the Noteholders of the Outstanding Notes of each Series and any applicable Derivative Counterparties shall be required for any sale that does not generate sufficient proceeds to pay the Note Balance of all such Notes plus all accrued and unpaid interest and other amounts owed in respect of such Notes and the Transaction Documents. If such direction has been given by the Noteholders of the requisite percentage of all Outstanding Notes, the Indenture Trustee shall cause the Issuer to sell Collateral pursuant to Section 8.16 , and shall provide notice of this to each Note Rating Agency of then Outstanding Notes.
| Section 8.8. | Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture Trustee. |
Subject to Section 8.7 and Section 8.14 , the Majority Noteholders of all Outstanding Notes have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee. This right may be exercised only if the direction provided by the Noteholders does not conflict with Applicable Law or this Indenture and does not have a substantial likelihood of involving the Indenture Trustee in personal liability and the Indenture Trustee has received indemnity satisfactory to it from such Noteholders.
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Section 8.9. Limitation on Suits.
No Noteholder will have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee or similar official, or for any other remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default with respect to Notes of such Noteholder’s Notes’ Series or Class;
(b) the Noteholders of more than 25% of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, have made written request to the Indenture Trustee to institute proceedings in respect of such Event of Default in the name of the Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; and
(d) the Indenture Trustee, for sixty (60) days after the Indenture Trustee has received such notice, request and offer of indemnity, has failed to institute any such proceeding; it being understood and intended that no one or more Noteholders of Notes of such Series or Class will have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders of Notes, or to obtain or to seek to obtain priority or preference over any other such Noteholders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate benefit of all the Noteholders of all Notes.
Section 8.10. Unconditional Right of Noteholders to Receive Principal and Interest; Limited Recourse.
Notwithstanding any other provisions in this Indenture, the Noteholder will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on such Note on the Stated Maturity Date expressed in the related Indenture Supplement and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of such Noteholder; provided , however , that notwithstanding any other provision of this Indenture to the contrary, the obligation to pay principal of or interest on the Notes or any other amount payable to any Noteholder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee, or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on the Notes or any other amount payable to any Noteholder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in this Indenture. Notwithstanding any other terms of this Indenture, the Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Notes, this Indenture and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture, none of the Noteholders, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Notes or this Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Notes or this Indenture. It is understood that the foregoing provisions of this Section 8.10 shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (ii) save
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as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Indenture. It is further understood that the foregoing provisions of this Section 8.10 shall not limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 8.11. Restoration of Rights and Remedies.
If the Indenture Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Issuer, the Indenture Trustee and the Noteholders will, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders will continue as though no such proceeding had been instituted.
Section 8.12. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy will, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 8.13. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 8.14. Control by Noteholders.
Either 100% of the VFN Noteholders or the Majority Noteholders of all Outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee with respect to such Notes; provided that:
(a) the Indenture Trustee will have the right to decline to follow any such direction if the Indenture Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Indenture Trustee in good faith determines that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Noteholders not taking part in such direction, unless the Indenture Trustee has received indemnity satisfactory to it from the Noteholders; and
(b) the Indenture Trustee may take any other action permitted hereunder deemed proper by the Indenture Trustee which is not inconsistent with such direction.
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Section 8.15. Waiver of Past Defaults.
Together, Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent may on behalf of the Noteholders of all such Notes waive any past default hereunder and its consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note, or
(b) in respect of a covenant or provision hereof which under Article XIII cannot be modified or amended without the consent of the Noteholder of each Outstanding Note.
Upon any such waiver, such default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, for every purpose of this Indenture; but no such waiver will extend to any subsequent or other default or impair any right consequent thereon.
Section 8.16. Sale of Trust Estate.
(a) The power to effect any Sale of any portion of the Trust Estate shall not be exhausted by any one or more Sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold or all amounts payable on the Notes and under this Indenture with respect thereto shall have been paid. The Indenture Trustee may from time to time postpone any public Sale by public announcement made at the time and place of such Sale.
(b) Unless the Majority Noteholders of all Outstanding Notes have otherwise provided its written consent to the Indenture Trustee and the Indenture Trustee has provided prior notice of such Sale as soon as is reasonably practicable to each Derivative Counterparty, at any public Sale of all or any portion of the Trust Estate at which a minimum bid equal to or greater than all amounts due to the Indenture Trustee hereunder and the entire amount which would be payable to the Noteholders in full payment thereof in accordance with Section 8.6 , on the Payment Date next succeeding the date of such sale, has not been received, the Indenture Trustee shall prevent such sale by bidding an amount at least $1.00 more than the highest other bid in order to preserve the Trust Estate.
(c) In connection with a Sale of all or any portion of the Trust Estate:
(i) any of the Noteholders may bid for and purchase the property offered for Sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability;
(ii) the Indenture Trustee may bid for and acquire the property offered for Sale in connection with any Sale thereof;
(iii) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Trust Estate in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Trust Estate in connection with a Sale thereof, and to take all action necessary to effect such Sale; and
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(v) no purchaser or transferee at such a Sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(d) Notwithstanding anything to the contrary in this Indenture, if an Event of Default has occurred and is continuing and the Notes have become due and payable or have been declared due and payable and such declaration and its consequences have not been rescinded and annulled, any proceeds received by the Indenture Trustee with respect to a foreclosure, sale or other realization resulting from a transfer of the assets of the Trust Estate shall be allocated in accordance with Section 4.5(a)(2) hereof. The amount, if any, so allocated to the Issuer shall be paid by the Indenture Trustee to or to the order of the Issuer free and clear of the Adverse Claim of this Indenture and the Noteholders shall have no claim or rights to the amount so allocated.
Section 8.17. Undertaking for Costs.
All parties to this Indenture agree, and each Noteholder by its acceptance thereof will be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section will not apply to any suit instituted by the Indenture Trustee, to any suit instituted by any Noteholder or group of Noteholders holding in the aggregate more than 25% of the Note Balance of the Outstanding Notes of each Series (measured by Voting Interests) to which the suit relates, or to any suit instituted by any Noteholders for the enforcement of the payment of the principal of or interest on any Note on or after the applicable Stated Maturity Date expressed in such Note.
Section 8.18. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 8.19. Notice of Waivers.
Promptly after any waiver of a Facility Early Amortization Event pursuant to Section 4.12 , or any rescission or annulment of a declaration of acceleration pursuant to Section 8.2(c) , or any waiver of past default pursuant to Section 8.15 , the Issuer will notify all related Note Rating Agencies in writing.
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Article IX
The Issuer
Section 9.1. Representations and Warranties of Issuer.
The Issuer hereby makes the following representations and warranties for the benefit of the Servicer, the Indenture Trustee, the Noteholders, any Derivative Counterparty, any Supplemental Credit Enhancement Provider and any Liquidity Provider. The representations shall be made as of the execution and delivery of this Indenture and of each Indenture Supplement, and as of each Funding Date and as of each date of Grant and shall survive the Grant of a Security Interest in the Receivables to the Indenture Trustee. Notwithstanding the foregoing, the breach of any representation or warranty in this Section 9.1 shall not be waived without the consent of the Majority Noteholders of all Outstanding Notes.
(a) Organization and Good Standing . The Issuer is duly organized and validly existing as a statutory trust and is in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. The Issuer has appointed the Administrator as the Issuer’s agent where notices and demands to or upon the Issuer in respect of the Notes of this Indenture may be served.
(b) Power and Authority . The Issuer has and will continue to have the power and authority to execute and deliver this Indenture and the other Transaction Documents to which it is or will be a party, and to carry out their respective terms; the Issuer had and has had at all relevant times and now has full power, authority and legal right to acquire, own, hold and Grant a Security Interest in the Trust Estate and has duly authorized such Grant to the Indenture Trustee by all necessary action; and the execution, delivery and performance by the Issuer of this Indenture and each of the other Transaction Documents to which it is a party has been duly authorized by all necessary action of the Issuer.
(c) Valid Transfers; Binding Obligations . This Indenture creates a valid Grant of a Security Interest in the Receivables which has been validly perfected and is a first priority Security Interest under the UCC, and such other portion of the Collateral as to which a Security Interest may be granted under the UCC, which security interest is enforceable against creditors of and purchasers from the Issuer, subject to Applicable Law. Each of the Transaction Documents to which the Issuer is a party constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally or by general equity principles.
(d) No Violation . The execution and delivery by the Issuer of this Indenture and each other Transaction Document to which it is a party and the consummation of the transactions contemplated by this Indenture and the other Transaction Documents and the fulfillment of the terms of this Indenture and the other Transaction Documents do not conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under the Organizational Documents of the Issuer or any indenture, agreement or other material instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Indenture), or violate any law, order, judgment, decree, writ, injunction, award, determination, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer or its properties, which breach, default, conflict, Adverse Claim or violation could reasonably be expected to have an Adverse Effect.
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(e) No Proceedings . There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to the Issuer’s knowledge, threatened, against or affecting the Issuer: (i) asserting the invalidity of this Indenture, the Notes or any of the other Transaction Documents to which the Issuer is a party, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Indenture, or any of the other Transaction Documents, (iii) seeking any determination or ruling which could reasonably be expected to have an Adverse Effect or could reasonably be expected to materially and adversely affect the condition (financial or otherwise), business or operations of the Issuer, or (iv) relating to the Issuer and which could reasonably be expected to adversely affect the United States federal income tax attributes of the Notes.
(f) No Subsidiaries . The Issuer has no subsidiaries.
(g) All Tax Returns True, Correct and Timely Filed . All tax returns required to be filed by the Issuer in any jurisdiction have in fact been filed and all taxes, assessments, fees and other governmental charges upon the Issuer or upon any of its properties, and all income of franchises, shown to be due and payable on such returns have been paid except for any such taxes, assessments, fees and charges the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Issuer had established adequate reserves in accordance with GAAP. All such tax returns were true and correct in all material respects and the Issuer knows of no proposed additional tax assessment against it that could reasonably be expected to have a material adverse effect upon the ability of the Issuer to perform its obligations hereunder nor of any basis therefor. The provisions for taxes on the books of the Issuer are in accordance with GAAP.
(h) No Restriction on Issuer Affecting its Business . The Issuer is not a party to any contract or agreement, or subject to any charter or other restriction, which materially and adversely affects its business, and the Issuer has not agreed or consented to cause any of its assets or properties to become subject to any Adverse Claim other than the Security Interest or any Permitted Liens.
(i) Title to Receivables . As represented by the Depositor in the Receivables Pooling Agreement, immediately prior to the Grant thereof to the Indenture Trustee as contemplated by this Indenture, the Issuer had good and marketable title to each Receivable, free and clear of all Adverse Claims other than any Permitted Liens and rights of others.
(j) Perfection of Security Interest . All filings and recordings that are necessary to perfect the interest of the Issuer in the Receivables and such other portion of the Trust Estate as to which a sale or security interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect. All filings and recordings against the Issuer required to perfect the Security Interest of the Indenture Trustee in such Receivables and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect. Other than the Security Interest granted to the Indenture Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a Security Interest in, or otherwise conveyed any of the Receivables or any other Collateral. The Issuer has not authorized the filing of and is not aware of any financing statement filed against the Issuer that includes a description of collateral covering the Receivables other than (1) any financing statement related to the Security Interest granted to the Indenture Trustee hereunder or (2) that has been terminated.
(k) Notes Authorized, Executed, Authenticated, Validly Issued and Outstanding . The Notes have been duly and validly authorized and, when duly and validly executed and authenticated by the Indenture Trustee in accordance with the terms of this Indenture and delivered to and paid for by each purchaser as provided herein, will be validly issued and outstanding and entitled to the benefits hereof.
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(l) Location of Chief Executive Office and Records . The principal place of business and chief executive office of the Issuer, and the office where Issuer maintains all of its corporate records, is located at the offices of the Administrator at 1345 Avenue of the Americas, New York, NY 10105, provided that, at any time after the Closing Date, upon thirty (30) days’ prior written notice to the Indenture Trustee and the Noteholders, the Issuer may relocate its jurisdiction of formation, and/or its principal place of business and chief executive office, and/or the office where it maintains all of its records, to another location or jurisdiction, as the case may be, within the United States to the extent that the Issuer shall have taken all actions necessary or reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to further perfect or evidence the rights, claims or security interests of the Indenture Trustee and the Noteholders under any of the Transaction Documents.
(m) Solvency . The Issuer (i) is not insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code); (ii) is able to pay its debts as they become due; and (iii) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage. The Issuer is not Granting the Trust Estate to the Indenture Trustee with the intent to defraud, delay or hinder any of its creditors.
(n) Separate Identity . The Issuer is operated as an entity separate from the Receivables Seller, the Depositor and the Servicer. The Issuer has complied with all covenants set forth in its Organizational Documents.
(o) Name . The legal name of the Issuer is as set forth in this Indenture and the Issuer does not use and has not used any other trade names, fictitious names, assumed names or “doing business as” names, other than “Nationstar Servicer Advance Receivables Trust 2013-BC”.
(p) Governmental Authorization . Other than the filing of the financing statements (or financing statement amendments) required hereunder or under any other Transaction Document, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for (i) the due execution and delivery by Issuer of this Indenture and each other Transaction Document to which it is a party and (ii) the performance of its obligations hereunder and thereunder.
(q) Accuracy of Information . All information heretofore furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders for purposes of or in connection with this Indenture, any of the other Transaction Documents or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders will be, true and accurate in every material respect on the date such information is stated or certified and does not and will not contain any material misstatement of fact or omit, taking into account all other information provided, to state a material fact or any fact necessary to make the statements contained therein not misleading.
(r) Use of Proceeds . No proceeds of any issuance of Notes or funding under a VFN hereunder will be used for a purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(s) Investment Company . The Issuer is not required to be registered as an “investment company” within the meaning of the Investment Company Act, or any successor statute.
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(t) Compliance with Law . The Issuer has complied in all material respects with all Applicable Laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject.
(u) Investments . The Issuer does not own or hold, directly or indirectly (i) any capital stock or equity security of, or any equity interest in, any Person or (ii) any debt security or other evidence of indebtedness of any Person.
(v) Transaction Documents . The Receivables Pooling Agreement is the only agreement pursuant to which the Issuer directly or indirectly purchases and receives contributions of Receivables from the Depositor and the Receivables Pooling Agreement represents the only agreement between the Depositor and the Issuer relating to the transfer of the Receivables.
(w) Limited Business . Since its formation the Issuer has conducted no business other than entering into and performing its obligations under the Transaction Documents to which it is a party, and such other activities as are incidental to the foregoing. The Transaction Documents to which it is a party, and any agreements entered into in connection with the transactions that are permitted thereby, are the only agreements to which the Issuer is a party.
Section 9.2. Liability of Issuer; Indemnities.
(a) Obligations . The Issuer shall be liable in accordance with this Indenture only to the extent of the obligations in this Indenture specifically undertaken by the Issuer in such capacity under this Indenture and shall have no other obligations or liabilities hereunder. The Issuer shall indemnify, defend and hold harmless the Indenture Trustee (in all its capacities), the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar, the Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Trust Estate (each an “ Indemnified Party ”) from and against any taxes that may at any time be asserted against the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar or the Trust Estate with respect to the transactions contemplated in this Indenture or any of the other Transaction Documents, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege or license taxes (but not including any taxes asserted with respect to, and as of the date of, the transfer of the Receivables to the Trust Estate, the issuance and original sale of the Notes of any Class, or asserted with respect to ownership of the Receivables, or federal, state or local income or franchise taxes or any other tax, or other income taxes arising out of payments on the Notes of any Class, or any interest or penalties with respect thereto or arising from a failure to comply therewith) and costs and expenses in defending against the same.
(b) Notification and Defense . Promptly after any Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Issuer under this Section 9.2 , the Indemnified Party shall notify the Issuer and the Administrator in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Issuer shall not relieve the Issuer from any liability which it may have hereunder or otherwise, except to the extent that the Issuer is prejudiced by such failure so to notify the Issuer. The Issuer will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, and, after notice from the Issuer to such Indemnified Party that the Issuer wishes to assume the defense of any such action, the Issuer will not be liable to such Indemnified Party under this Section 9.2 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both
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the Indemnified Party and the Issuer, and the Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Issuer, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Issuer and such Indemnified Party, (ii) the Issuer shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Issuer has authorized the employment of counsel for the Indemnified Party at the expense of the Issuer; then, in any such event, such Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Issuer; provided , however , that the Issuer shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Issuer in the defense of any such action or claim. The Issuer shall not, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Issuer has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Issuer, without interest.
Section 9.3. Merger or Consolidation, or Assumption of the Obligations, of the Issuer.
Any Person (a) into which the Issuer may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which the Issuer shall be a party, or (c) which may succeed to all or substantially all of the business or assets of the Issuer, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Issuer under this Indenture, shall be the successor to the Issuer under this Indenture without the execution or filing of any document or any further act on the part of any of the parties to this Indenture, except that if the Issuer in any of the foregoing cases is not the surviving entity, then the surviving entity shall execute an agreement of assumption to perform every obligation of the Issuer under the Transaction Documents, including Derivative Agreements entered into by the Issuer or the Indenture Trustee on its behalf, and the surviving entity shall have taken all actions necessary or reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to further perfect or evidence the rights, claims or security interests of the Issuer, the Noteholders or the Indenture Trustee under any of the Transaction Documents. The Issuer (i) shall provide notice of any merger, consolidation or succession pursuant to this Section to each Note Rating Agency that has rated any then-Outstanding Notes, the Indenture Trustee, each Derivative Counterparty and the Noteholders, (ii) for so long as the Notes are outstanding, shall receive from each Note Rating Agency rating Outstanding Notes a letter to the effect that such merger, consolidation or succession will not result in a qualification, downgrading or withdrawal of the then current ratings assigned by such Note Rating Agency to any Outstanding Notes, (iii) shall obtain an Opinion of Counsel addressed to the Indenture Trustee and reasonably satisfactory to the Indenture Trustee, that such merger, consolidation or succession complies with the terms hereof and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Indenture with respect to corporate matters, enforceability of
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Transaction Documents against the Issuer, and the grant by the Issuer of a valid security interest in the Aggregate Receivables to the Indenture Trustee and the perfection of such security interest and related matters, (iv) shall receive from the Majority Noteholders of all Outstanding Notes and each Derivative Counterparty their prior written consent to such merger, consolidation or succession, absent which consent, which may not be unreasonably withheld or delayed, the Issuer shall not become a party to such merger, consolidation or succession and (v) shall obtain an Issuer Tax Opinion.
Section 9.4. Issuer May Not Own Notes.
The Issuer may not become the owner or pledgee of one or more of the Notes (other than any “Retained Notes” (as defined in any Indenture Supplement)). Any Person Controlling, Controlled by or under common Control with the Issuer may, in its individual or any other capacity, become the owner or pledgee of one or more Notes with the same rights as it would have if it were not an Affiliate of the Issuer, except as otherwise specifically provided in the definition of the term “Noteholder.” The Notes so owned by or pledged to such Controlling, Controlled or commonly Controlled Person shall have an equal and proportionate benefit under the provisions of this Indenture, without preference, priority or distinction as among any of the Notes, except as set forth herein with respect to, among other things, rights to vote, consent or give directions to the Indenture Trustee as a Noteholder.
Section 9.5. Covenants of Issuer.
(a) Organizational Documents; Unanimous Consent . The Issuer hereby covenants that its Organizational Documents provide that they may not be amended or modified without (i) notice to the Indenture Trustee and each Note Rating Agency that is at that time rating any Outstanding Notes, and (ii) the prior written consent of the Administrative Agent, unless and until this Indenture shall have been satisfied, discharged and terminated. The Issuer will at all times comply with the terms of its Organizational Documents. In addition, notwithstanding any other provision of this Section and any provision of law, the Issuer shall not do any of the following without the affirmative vote of its Independent Manager as such term is defined in the Issuer’s Organizational Documents: (A) dissolve or liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to the institution of bankruptcy or insolvency proceedings against it, (C) file a petition seeking, or consent to, reorganization or relief under any applicable federal, state or foreign law relating to bankruptcy or similar matters, (D) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or a substantial part of its property, (E) make any assignment for the benefit of creditors, (F) admit in writing its inability to pay its debts generally as they become due, or (G) take any action in furtherance of the actions set forth in clauses (A) through (F) above; or (1) merge or consolidate with or into any other person or entity or sell or lease its property or all or substantially all of its assets to any person or entity; or (2) modify any provision of its Organizational Documents.
(b) Preservation of Existence . The Issuer hereby covenants to do or cause to be done all things necessary on its part to preserve and keep in full force and effect its rights and franchises as a statutory trust under the laws of the State of Delaware, and to maintain each of its licenses, approvals, permits, registrations or qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which, individually or in the aggregate, would not have an Adverse Effect.
(c) Compliance with Laws . The Issuer hereby covenants to comply in all material respects with all applicable laws, rules and regulations and orders of any governmental authority, the noncompliance with which would have an Adverse Effect or a material adverse effect on the business, financial condition or results of operations of the Issuer.
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(d) Payment of Taxes . The Issuer hereby covenants to pay and discharge promptly or cause to be paid and discharged promptly all taxes, assessments and governmental charges or levies imposed upon the Issuer or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default, provided that the Issuer shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Issuer shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(e) Investments . The Issuer hereby covenants that it will not, without the prior written consent of the Majority Noteholders of all Outstanding Notes, acquire or hold any indebtedness for borrowed money of another person, or any capital stock, debentures, partnership interests or other ownership interests or other securities of any Person, other than Permitted Investments and Sinking Fund Permitted Investments as provided hereunder and the Receivables acquired under, the Purchase Agreement, the Receivables Sale Agreement and the Receivables Pooling Agreement.
(f) Keeping Records and Books of Account . The Issuer hereby covenants and agrees to maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Receivables in the event of the destruction or loss of the originals thereof) and keep and maintain, all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of all collections with respect to, and adjustments of amounts payable under, each Receivable). The Administrator or a Sub-Administrator on behalf of the Administrator shall ensure compliance with this Section 9.5(f) .
(g) Employee Benefit Plans . The Issuer hereby covenants and agrees to comply in all material respects with the provisions of ERISA, the Code, and all other applicable laws, and the regulations and interpretations thereunder to the extent applicable, with respect to each Employee Benefit Plan.
(h) No Release . The Issuer shall not take any action and shall use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s covenants or obligations under any Transaction Document, Designated Servicing Agreement or other document, instrument or agreement included in the Trust Estate, or which would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such document, instrument or agreement.
(i) Separate Identity . The Issuer acknowledges that the Secured Parties are entering into the transactions contemplated by this Indenture in reliance upon the Issuer’s identity as a legal entity that is separate from the Receivables Seller, the Depositor or the Servicer (each, a “ Facility Entity ”). Therefore, from and after the date of execution and delivery of this Indenture, the Issuer shall take all reasonable steps to maintain the Issuer’s identity as a separate legal entity and to make it manifest to third parties that the Issuer is an entity with assets and liabilities distinct from those of each Facility Entity and not a division of a Facility Entity.
(j) Compliance with and Enforcement of Transaction Documents . The Issuer hereby covenants and agrees to comply in all respects with the terms of, employ the procedures outlined in and enforce the obligations of the parties to all of the Transaction Documents to which the Issuer is a party, and take all such action to such end as may be from time to time reasonably requested by the Indenture Trustee, and/or the Majority Noteholders of all Outstanding Notes, maintain all such Transaction Documents in full force and effect and make to the parties thereto such reasonable demands and requests for information and reports or for action as the Issuer is entitled to make thereunder and as may be from time to time reasonably requested by the Indenture Trustee.
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(k) No Sales, Liens, Etc. Against Receivables and Trust Property . The Issuer hereby covenants and agrees, except for releases specifically permitted hereunder, not to sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist, any Adverse Claim (other than the Security Interest created hereby or any Permitted Liens) upon or with respect to, any Receivables or Trust Property, or any interest in either thereof, or upon or with respect to any Trust Account, or assign any right to receive income in respect thereof. The Issuer shall promptly, but in no event later than two (2) Business Days after a Responsible Officer has obtained actual knowledge thereof, notify the Indenture Trustee of the existence of any Adverse Claim on any Receivables or Trust Estate, and the Issuer shall defend the right, title and interest of each of the Issuer and the Indenture Trustee in, to and under the Receivables and Trust Estate, against all claims of third parties.
(l) No Change in Business . The Issuer covenants that it shall not make any change in the character of its business.
(m) No Change in Name, Etc.; Preservation of Security Interests The Issuer covenants that it shall not make any change to its company name, or use any trade names, fictitious names, assumed names or “doing business as” names. The Issuer will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the interest of the Issuer in all of the Receivables and such other portion of the Trust Estate as to which a sale or Security Interest may be perfected by filing under the UCC, and the Security Interest of the Indenture Trustee in all of the Receivables and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, are fully protected.
(n) No Institution of Insolvency Proceedings . The Issuer covenants that it shall not institute Insolvency Proceedings with respect to the Issuer or any Affiliate thereof or consent to the institution of Insolvency Proceedings against the Issuer or any Affiliate thereof or take any action in furtherance of any such action, or seek dissolution or liquidation in whole or in part of the Issuer or any Affiliate thereof.
(o) Money for Note Payments To Be Held in Trust . The Indenture Trustee shall cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(i) hold all sums held by it in respect of payments on Notes in trust for the benefit of the Noteholders entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment; and
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any Paying Agent to pay, to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
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(p) Protection of Trust Estate . The Issuer shall from time to time execute and deliver to the Indenture Trustee and the Administrative Agent all such supplements and amendments hereto (a copy of which shall be provided to the Noteholders) and all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as is necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the Security Interest or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of, or protect the validity of any Grant made or to be made by this Indenture;
(iv) enforce any of the Receivables or, where appropriate, any Security Interest in the Trust Estate and the proceeds thereof, or
(v) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders therein against the claims of all persons and parties.
(q) Investment Company Act . The Issuer shall conduct its operations in a manner which shall not subject it to registration as an “investment company” under the Investment Company Act.
(r) Payment of Review and Renewal Fees . The Issuer shall pay or cause to be paid to each Note Rating Agency that has rated Outstanding Notes, the annual rating review and renewal fee in respect of such Notes, if any.
(s) No Subsidiaries . The Issuer shall not form or hold interests in any subsidiaries.
(t) No Indebtedness . The Issuer shall not incur any indebtedness other than the Notes, and shall not guarantee any other Person’s indebtedness or incur any capital expenditures.
Article X
The Administrator and Servicer
Section 10.1. Representations and Warranties of Administrator.
The Administrator hereby makes the following representations and warranties for the benefit of the Indenture Trustee, as of the Closing Date, and as of the date of each Grant of Receivables to the Indenture Trustee pursuant to this Indenture.
(a) Organization and Good Standing . The Administrator is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. The Administrator is duly qualified to do business and is in good standing (or is exempt from such requirements) and has obtained all necessary licenses and approvals in each jurisdiction in which the failure so to qualify, or to obtain such licenses or approvals, would have an Adverse Effect.
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(b) Power and Authority; Binding Obligation . The Administrator has the power and authority to make, execute, deliver and perform its obligations under this Indenture and any related Indenture Supplement and each other Transaction Document to which it is a party and all of the transactions contemplated hereunder and thereunder, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party; this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of the Administrator, enforceable against the Administrator in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws.
(c) No Violation . The execution and delivery of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party by the Administrator and its performance and compliance with the terms of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party will not violate (i) the Administrator’s Charter, Bylaws or other organizational documents or (ii) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which the Administrator is a party or which may be applicable to the Administrator or any of its assets or (iii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to the Administrator or their respective properties.
(d) No Proceedings . No proceedings, investigations or litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of the Administrator is threatened against the Administrator, nor is there any such proceeding, investigation or litigation currently pending, nor, to the knowledge of the Administrator, is any such proceeding, investigation or litigation threatened against the Administrator with respect to this Indenture, any Indenture Supplement or any other Transaction Document or the transactions contemplated hereby or thereby that could reasonably be expected to have an Adverse Effect.
(e) No Consents Required . No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Administrator of or compliance by the Administrator with this Indenture, any Indenture Supplement or the consummation of the transactions contemplated by this Indenture, any Indenture Supplement except for consents, approvals, authorizations and orders which have been obtained.
(f) Information . No written statement, report or other document furnished or to be furnished pursuant to this Indenture or any other Transaction Document to which it is a party by the Administrator contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
(g) Default . The Administrator is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
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Section 10.2. Representations and Warranties of Nationstar.
Nationstar, as Servicer and as a Subservicer, hereby makes the following representations and warranties for the benefit of the Indenture Trustee, the Issuer and the Administrator as of the Closing Date, and as of the date of each Grant of Receivables to the Indenture Trustee, the Issuer and the Administrator pursuant to this Indenture.
(a) Organization and Good Standing . Nationstar is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. Nationstar is duly qualified to do business and is in good standing (or is exempt from such requirements) and has obtained all necessary licenses and approvals in each jurisdiction in which the failure so to qualify, or to obtain such licenses or approvals, would have an Adverse Effect.
(b) Power and Authority; Binding Obligation . Nationstar has the power and authority to make, execute, deliver and perform its obligations under this Indenture and any related Indenture Supplement and each other Transaction Document to which it is a party and all of the transactions contemplated hereunder and thereunder, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party; this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of Nationstar, enforceable against Nationstar in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws.
(c) No Violation . The execution and delivery of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party by Nationstar and its performance and compliance with the terms of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party will not violate (i) Nationstar’s Charter, Bylaws or other organizational documents or (ii) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which Nationstar is a party or which may be applicable to Nationstar or any of its assets or (iii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to the Servicer or their respective properties.
(d) No Proceedings . No proceedings, investigations or litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of Nationstar is threatened against Nationstar, nor is there any such proceeding, investigation or litigation currently pending, nor, to the knowledge of Nationstar, is any such proceeding, investigation or litigation threatened against Nationstar with respect to this Indenture, any Indenture Supplement or any other Transaction Document or the transactions contemplated hereby or thereby that could reasonably be expected to have an Adverse Effect.
(e) No Consents Required . No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by Nationstar of or compliance by Nationstar with this Indenture, any Indenture Supplement or the consummation of the transactions contemplated by this Indenture, any Indenture Supplement except for consents, approvals, authorizations and orders which have been obtained.
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(f) Information . No written statement, report or other document furnished or to be furnished pursuant to this Indenture or any other Transaction Document to which it is a party by Nationstar contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
(g) Default . Nationstar is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of Nationstar to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
Section 10.3. Covenants of Administrator and Servicer.
(a) Amendments to Designated Servicing Agreements . Each Servicer hereby covenants and agrees not to amend any Designated Servicing Agreements under which it is Servicer except for such amendments that would have no adverse effect upon the collectability or timing of payment of any of the Aggregate Receivables or the performance of its, the Depositor’s or the Issuer’s obligations under the Transaction Documents or otherwise adversely affect the interest of the Noteholders, any Derivative Counterparty, any Supplement Credit Enhancement Provider or any Liquidity Provider, without the prior written consent of the Majority Noteholders of all Outstanding Notes, each Derivative Counterparty and of each Supplemental Credit Enhancement Provider and each Liquidity Provider (to the extent the Issuer has knowledge of such Liquidity Provider). The Administrator or the Sub-Administrator on behalf of the Administrator shall, within five (5) Business Days following the effectiveness of such amendments, deliver to the Indenture Trustee copies of all such amendments.
(b) Maintenance of Security Interest . The Administrator shall from time to time, at its own expense, file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the Security Interest of the Indenture Trustee (on behalf of itself, the Noteholders, any Derivative Counterparty, any Supplemental Credit Enhancement Provider and any Liquidity Provider) in all of the Aggregate Receivables and the other Collateral is fully protected in accordance with the UCC and that the Security Interest of the Indenture Trustee in the Receivables and the rest of the Trust Estate remains perfected and of first priority. The Administrator shall take all steps necessary to ensure compliance with Section 9.5(m) .
(c) Regulatory Reporting Compliance . The Servicer shall, on or before the last Business Day of the fifth month following the end of each of the Servicer’s fiscal years (December 31), beginning with the fiscal year ending in 2013, deliver to the Indenture Trustee and the Interested Noteholders, as applicable, a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers, an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB or similar review conducted on the Servicer by its accountants and such other reports as the Servicer may prepare relating to its servicing functions as the Servicer.
(d) Compliance with Designated Servicing Agreements . The Servicer shall not fail to comply with its obligations as the servicer under each of the Designated Servicing Agreements, which failure would have a material adverse effect on the interests of the Noteholders under this Indenture. The Servicer shall immediately notify the Indenture Trustee of any Event of Default or its receipt of a notice of termination under any Designated Servicing Agreement. The Indenture Trustee shall forward any such notification to each Noteholder.
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(e) Compliance with Obligations . Each of the Administrator and the Servicer shall comply with all their other obligations and duties set forth in this Indenture and any other Transaction Document. The Administrator shall not permit the Issuer to engage in activities that could violate its covenants in this Indenture. Notwithstanding any Subservicing Agreement, any of the provisions of this Indenture relating to agreements or arrangements between the Servicer and a Subservicer or reference to actions taken through a Subservicer or otherwise, the Servicer shall remain obligated and primarily liable to the Indenture Trustee and the Noteholders for the servicing and administering of the Mortgage Loans in accordance with the provisions of this Indenture without diminution of such obligation or liability by virtue of such Subservicing Agreements or arrangements or by virtue of indemnification from a Subservicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Mortgage Loans. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer by such Subservicer and nothing contained in this Indenture shall be deemed to limit or modify such indemnification.
(f) Reimbursement of Advances and Payment of Deferred Servicing Fees upon Transfer of Servicing; Clean-up Calls . In connection with any sale or transfer of servicing, in whole or in part, under any Designated Servicing Agreement, the Servicer shall cause the Subservicer to collect reimbursement of all outstanding Advances and payment of all outstanding Deferred Servicing Fees under such Designated Servicing Agreement prior to transferring the servicing under such Designated Servicing Agreement. The Servicer agrees that prior to or concurrently with its exercise of any clean-up call, redemption or repurchase right under the related Designated Servicing Agreement it shall ensure that all outstanding Advances and unpaid Deferred Servicing Fees due and owing under the related Designated Servicing Agreement shall be paid in full, as certified to the Indenture Trustee.
(g) Notice of Unmatured Defaults, Servicer Termination Events and Subservicer Termination Events . The Servicer shall provide written notice to the Indenture Trustee and each VFN Noteholder of any Unmatured Default, Servicer Termination Event or Subservicer Termination Event, immediately following the receipt by a Responsible Officer of the Servicer of notice, or the obtaining by a Responsible Officer of the Servicer of actual knowledge, of such Unmatured Default, Servicer Termination Event or Subservicer Termination Event.
(h) Reimbursement of Nonrecoverable Advances and Nonrecoverable Deferred Servicing Fees for Receivables other than Loan-Level Receivables . The Servicer shall cause the Subservicer to withdraw Advance Reimbursement Amounts related to Receivables other than Loan-Level Receivables from the appropriate Custodial Account to reimburse any Advance or pay any Deferred Servicing Fee which the Subservicer shall have determined will not be recoverable from proceeds of the related Mortgage Loan, promptly after making such determination of non-recoverability.
(i) Administrator Instructions and Functions Performed by Issuer . The Administrator shall perform the administrative or ministerial functions specifically required of the Issuer pursuant to this Indenture and any other Transaction Document.
(j) Reserved .
(k) Adherence to Servicing Standards . Unless otherwise consented to by the Administrative Agent and the Administrator (the following collectively, the “ Servicing Standards ”):
(i) the Servicer shall continue to make Advances and seek reimbursement of Advances and payment of Deferred Servicing Fees in accordance with the terms of the related Designated Servicing Agreement;
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(ii) to the extent permitted by the related Designated Servicing Agreement, the Servicer shall apply all Advance Reimbursement Amounts on a “first-in, first out” or “FIFO” basis such that the Advances of a particular type that were disbursed first in time or the Deferred Servicing Fees of a particular type that were accrued first in time will be reimbursed or paid prior to the Advances of the same type with respect to that Mortgage Loan that were disbursed later in time or the Deferred Servicing Fees with respect to that Mortgage Loan that were accrued later in time;
(iii) the Servicer shall identify on its systems and in its records that the Issuer is the owner of each Receivable and that such Receivable has been pledged to the Indenture Trustee;
(iv) the Servicer shall maintain systems and operating procedures necessary to comply with all of the terms of the Transaction Documents;
(v) the Servicer shall cooperate with the Indenture Trustee acting as Calculation Agent in its duties set forth in the Transaction Documents;
(vi) the Servicer shall cooperate with the Verification Agent in its duties set forth in the Transaction Documents;
(vii) the Servicer shall maintain, or cause to be maintained, accurate records with respect to the Mortgage Loans in each Mortgage Pool reflecting the status of all Judicial P&I Advances, Non-Judicial P&I Advances, Judicial Corporate Advances, Non-Judicial Corporate Advances, Judicial Escrow Advances, Non-Judicial Escrow Advances, Judicial Deferred Servicing Fees and Non-Judicial Deferred Servicing Fees for such Mortgage Pool, including the cumulative recoveries related to such P&I Advances, Corporate Advances, Escrow Advances and Deferred Servicing Fees; and
(viii) the Servicer shall service all Mortgage Loans related to all Mortgage Pools in accordance with the terms of the related Servicing Agreement without regard to any ownership of any securities issued by the related Mortgage Pool.
Notwithstanding the foregoing or anything otherwise herein to the contrary, any Subservicer may perform any of the tasks or duties described above, herein or otherwise under any applicable Designated Servicing Agreement so long as the Administrative Agent shall have consented to the related subservicing arrangement in its sole and absolute discretion.
(l) Loan-Level Receivables . For Loan-Level Receivables, the Servicer shall institute and implement a policy of reimbursing Escrow Advances and Corporate Advances before P&I Advances upon liquidation of the related Mortgage Loan, under each related Designated Servicing Agreement to the extent permitted by the related Designated Servicing Agreement. If Receivables attributable to P&I Advances or Deferred Servicing Fees are Loan-Level Receivables under a Designated Servicing Agreement but Corporate Advances and Escrow Advances are not, the Servicer shall effect reimbursement for Loan-Level Receivables before Receivables that are not Loan-Level Receivables to the extent permitted by the related Designated Servicing Agreement.
(m) Notice of Termination Event under any Derivative Agreement . The Administrator shall provide notice to the Indenture Trustee (which shall provide notice to any applicable Noteholders as soon as reasonably practicable) of any termination event under any Derivative Agreement.
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Section 10.4. Liability of Administrator; Indemnities.
(a) Obligations . The Administrator shall indemnify, defend and hold harmless the Indenture Trustee, the Note Registrar, the Custodian, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, the Owner Trustee, each Derivative Counterparty and the Noteholders (each an “ Administrator Indemnified Party ”) from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability (“ Administrator Indemnified Losses ”) arose out of, and was imposed upon, the Indenture Trustee, the Note Registrar, the Custodian, the Owner Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, each Derivative Counterparty or any Noteholder (by reason of a violation of law, negligence, willful misfeasance or bad faith of the Administrator (or of the Receivables Seller, the Depositor or of the Issuer as a result of a direction, act or omission by the Administrator), in the performance of their respective obligations under this Indenture and the other Transaction Documents; provided that any indemnification amounts payable by the Administrator, as the case may be, to the Owner Trustee hereunder shall not be duplicative of any indemnification amount paid by the Administrator to the Owner Trustee in accordance with the Trust Agreement or under the Administration Agreement. Nationstar shall be responsible for all Administrator Indemnified Losses arising from the Closing Date through the Effective Date that are the obligation of Nationstar, as administrator prior to the Effective Date. Advance Purchaser shall be responsible for all Administrator Indemnified Losses arising on and after the Effective Date that are the obligation of the Administrator.
(b) Notification and Defense . Promptly after any Administrator Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Administrator (such party, as the case may be, being referred to herein as the “ Administrator Indemnifying Party ”) under this Section 10.4 , the Administrator Indemnified Party shall notify the Administrator Indemnifying Party in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Administrator Indemnifying Party shall not relieve the Administrator Indemnifying Party from any liability which it may have hereunder or otherwise, except to the extent that the Administrator Indemnifying Party is prejudiced by such failure so to notify the Administrator Indemnifying Party. The Administrator Indemnifying Party will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Administrator Indemnified Party, and, after notice from the Administrator Indemnifying Party to such Administrator Indemnified Party that the Administrator Indemnifying Party wishes to assume the defense of any such action, the Administrator Indemnifying Party will not be liable to such Administrator Indemnified Party under this Section 10.4 for any legal or other expenses subsequently incurred by such Administrator Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Administrator Indemnified Party and the Administrator Indemnifying Party, and the Administrator Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Administrator Indemnifying Party, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Administrator Indemnifying Party and such Administrator Indemnified Party, (ii) the Administrator Indemnifying Party shall not have employed counsel reasonably satisfactory to the Administrator Indemnified Party to represent the Administrator Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Administrator Indemnifying Party has authorized the employment of counsel for the Administrator Indemnified Party at the expense of the Administrator Indemnifying Party; then, in any such event, such Administrator Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Administrator Indemnifying Party; provided , however , that the
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Administrator Indemnifying Party shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Administrator Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Administrator Indemnifying Party in the defense of any such action or claim. The Administrator Indemnifying Party shall not, without the prior written consent of any Administrator Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Administrator Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Administrator Indemnified Party, unless such settlement includes an unconditional release of such Administrator Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Administrator Indemnifying Party has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Administrator Indemnifying Party, without interest.
(d) Survival . The provisions of this Section shall survive the resignation or removal of the Indenture Trustee (in any of its capacities), the Calculation Agent, the Securities Intermediary and the Paying Agent and the termination of this Indenture.
Section 10.5. Liability of Servicer; Indemnities.
(a) Obligations . The Servicer shall indemnify, defend and hold harmless the Indenture Trustee, the Note Registrar, the Custodian, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, the Owner Trustee, each Derivative Counterparty and the Noteholders and in the case of Nationstar as Servicer, the Issuer and the Administrator (each a “ Servicer Indemnified Party ”) from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability (“ Servicer Indemnified Losses ”) arose out of, and was imposed upon, the Indenture Trustee, the Note Registrar, the Custodian, the Owner Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, each Derivative Counterparty or any Noteholder by reason of a violation of law, negligence, willful misfeasance or bad faith of the Servicer or Subservicer, in the performance of their respective obligations under this Indenture and the other Transaction Documents or as servicer, subservicer or master servicer under the Designated Servicing Agreements, or by reason of the breach by the Servicer or Subservicer of any of its representations, warranties or covenants hereunder or under the Designated Servicing Agreements. Nationstar, in its capacity as Servicer, shall be responsible for all Servicer Indemnified Losses arising with respect to any Servicing Agreement from the Closing Date through the related MSR Transfer Date. Advance Purchaser, in its capacity as Servicer, shall be responsible for all Servicer Indemnified Losses arising with respect to any Servicing Agreement on and after the related MSR Transfer Date.
(b) Notification and Defense . Promptly after any Servicer Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Servicer (such party, as the case may be, being referred to herein as the “ Servicer Indemnifying Party ”) under this Section 10.4 , the Servicer Indemnified Party shall notify the Servicer Indemnifying Party in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Servicer Indemnifying Party shall not relieve the Servicer Indemnifying Party from any liability which it may have hereunder or otherwise, except to the extent that the Servicer Indemnifying Party is prejudiced by such failure so to notify the Servicer Indemnifying
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Party. The Servicer Indemnifying Party will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Servicer Indemnified Party, and, after notice from the Servicer Indemnifying Party to such Servicer Indemnified Party that the Servicer Indemnifying Party wishes to assume the defense of any such action, the Servicer Indemnifying Party will not be liable to such Servicer Indemnified Party under this Section 10.4 for any legal or other expenses subsequently incurred by such Servicer Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Servicer Indemnified Party and the Servicer Indemnifying Party, and the Servicer Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Servicer Indemnifying Party, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Servicer Indemnifying Party and such Servicer Indemnified Party, (ii) the Servicer Indemnifying Party shall not have employed counsel reasonably satisfactory to the Servicer Indemnified Party to represent the Servicer Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Servicer Indemnifying Party has authorized the employment of counsel for the Servicer Indemnified Party at the expense of the Servicer Indemnifying Party; then, in any such event, such Servicer Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Servicer Indemnifying Party; provided , however , that the Servicer Indemnifying Party shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Servicer Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Servicer Indemnifying Party in the defense of any such action or claim. The Servicer Indemnifying Party shall not, without the prior written consent of any Servicer Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Servicer Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Servicer Indemnified Party, unless such settlement includes an unconditional release of such Servicer Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Servicer Indemnifying Party has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Servicer Indemnifying Party, without interest.
(d) Survival . The provisions of this Section shall survive the resignation or removal of the Indenture Trustee (in any of its capacities), the Calculation Agent, the Securities Intermediary and the Paying Agent and the termination of this Indenture.
Section 10.6. Merger or Consolidation, or Assumption of the Obligations, of the Administrator or the Servicer.
Any Person (a) into which the Administrator or the Servicer may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which the Administrator or the Servicer shall be a party, or (c) which may succeed to all or substantially all of the business or assets of the Administrator or the Servicer, as the case may be, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Administrator or the Servicer, as applicable, under this Indenture, shall be the successor to the Administrator or the Servicer, as applicable, under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties to
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this Indenture; provided , however , that (i) such merger, consolidation or conversion shall not cause a Target Amortization Event for any Series or a Facility Early Amortization Event, or an event which with notice, the passage of time or both would become a Target Amortization Event for any Series or a Facility Early Amortization Event, (ii) prior to any such merger, consolidation or conversion, the Administrator or the Servicer, as the case may be, shall have provided to the Indenture Trustee and the Noteholders a letter from each Note Rating Agency that rated Outstanding Notes indicating that such merger, consolidation or conversion will not result in the qualification, reduction or withdrawal of the then current ratings of the Outstanding Notes, and (iii) prior to any such merger, consolidation or conversion the Administrator shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that such merger, consolidation or conversion complies with the terms of this Indenture and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Indenture with respect to corporate matters and the enforceability of Transaction Documents against the Administrator or the Servicer, as the case may be, true sale as to the transfers of the Aggregate Receivables from the Servicer as Receivables Seller to the Depositor and non-consolidation of the Servicer with the Depositor and security interest and tax and any additional opinions required under any related Indenture Supplement; provided , further , that the conditions specified in clauses Error! Reference source not found. and Error! Reference source not found . shall not apply to any transaction (i) in which an Affiliate of the Receivables Seller assumes the obligations of the Receivables Seller and otherwise satisfies the eligibility criteria applicable to the Servicer under the Designated Servicing Agreements or (ii) in which an Affiliate of the Receivables Seller is merged into or is otherwise combined with the Receivables Seller and the Receivables Seller is the sole survivor of such merger or other combination. The Administrator or the Servicer, as the case may be, shall provide notice of any merger, consolidation or succession pursuant to this Section to the Indenture Trustee, the Noteholders and each Note Rating Agency.
Except (i) as described in the preceding paragraph or with respect to the transactions contemplated on the MSR Transfer Date, and (ii) the delegation by the Administrator of rights and obligations as Administrator to a Sub-Administrator from time to time in accordance with the terms of this Indenture, none of the Administrator, the Servicer or the Subservicer may assign or delegate any of its rights or obligations under this Indenture or any other Transaction Document.
On any MSR Transfer Date, Advance Purchaser shall deliver to the Indenture Trustee an MSR Transfer Notice signed by Nationstar and Advance Purchaser.
Section 10.7. Appointment of a Sub-Administrator.
The Administrator may appoint a Sub-Administrator that meets the qualifications of the definition of “ Sub-Administrator ” hereunder. Notwithstanding the appointment of a Sub-Administrator, the Administrator shall remain responsible for the performance of its duties and obligations pursuant to this Indenture and any other Transaction Document. In addition, any Sub-Administrator shall be responsible for the performance of any duties so delegated to the same extent if such Sub-Administrator were the named Administrator under this Indenture and to meet any standards and fulfill any new requirements applicable to the Administrator under this Indenture and any other Transaction Documents.
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Article XI
The Indenture Trustee
Section 11.1. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Notes, and no implied covenants or obligations will be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee may, with respect to Notes, conclusively rely upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture, as to the truth of the statements and the correctness of the opinions expressed therein; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee will be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein.
(c) If an Event of Default has occurred and is continuing, the Indenture Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(d) No provision of this Indenture will be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection (d) will not be construed to limit the effect of subsection (a) of this Section 11.1 ;
(ii) the Indenture Trustee will not be liable for any error of judgment made in good faith by an Indenture Trustee Authorized Officer, unless it will be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Majority Noteholders or the Administrative Agent relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture with respect to the Notes of any Class, to the extent consistent with Sections 8.7 and 8.8 ;
(iv) no provision of this Indenture will require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it has reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the Indenture Trustee against such risk or liability is not reasonably assured to it; and
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(v) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee will be subject to the provisions of this Section.
Section 11.2. Notice of Defaults.
Except as otherwise provided in Section 3.3(b) , within ninety (90) days after the occurrence of any Event of Default hereunder,
(a) the Indenture Trustee will transmit by mail to all registered Noteholders, as their names and addresses appear in the Note Register, notice of such default hereunder known to the Indenture Trustee, and
(b) the Indenture Trustee will give prompt written notification thereof to each Note Rating Agency, unless such default shall have been cured or waived; provided , however , that, except in the case of a default in the payment of the principal of or interest on any Note of any Series or Class, the Indenture Trustee will be protected in withholding such notice if and so long as an Indenture Trustee Responsible Officer in good faith determines that the withholding of such notice is in the interests of the Noteholders of such Series or Class. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 11.3. Certain Rights of Indenture Trustee.
Except as otherwise provided in Section 11.1 :
(a) the Indenture Trustee may conclusively rely and will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Indenture Trustee deems it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(c) the Indenture Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the Indenture Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(e) the Indenture Trustee will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, unless requested in writing to do so by the Majority Noteholders; provided , however , that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require indemnity satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to taking any such action;
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(f) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Indenture Trustee will not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(g) the Indenture Trustee will not be responsible for filing any financing statements or continuation statements in connection with the Notes, but will cooperate with the Issuer in connection with the filing of such financing statements or continuation statements;
(h) the Indenture Trustee shall not be deemed to have notice of any default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event unless an Indenture Trustee Responsible Officer has actual knowledge thereof or unless written notice of any event which is in fact such a default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event is received by the Indenture Trustee at the Corporate Trust Office of the Indenture Trustee, and such notice references the Notes and this Indenture; in the absence of receipt of such notice or actual knowledge, the Indenture Trustee may conclusively assume that there is no default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event;
(i) the rights, privileges, protections, immunities and benefits given to the Indenture Trustee hereunder and under each Transaction Document, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable (without duplication) by, the Indenture Trustee or Wells Fargo Bank, N.A., as applicable, in each of its capacities hereunder and thereunder (including, without limitation, Calculation Agent, Paying Agent, Custodian, Securities Intermediary and Note Registrar), and each agent, custodian and other person employed to act hereunder and thereunder.
(j) none of the provisions contained in this Indenture shall in any event require the Indenture Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Indenture;
(k) the Indenture Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Trust Accounts or (D) to confirm or verify the contents of any reports or certificates of the Servicer or the Administrator delivered to the Indenture Trustee pursuant to this Indenture believed by the Indenture Trustee to be genuine and to have been signed or presented by the proper party or parties;
(l) the Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
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(m) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(n) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Fund created hereby or the powers granted hereunder;
(o) in making or disposing of any investment permitted by this Indenture, the Indenture Trustee is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis and on standard market terms, whether it or such Affiliate is acting as a subagent of the Indenture Trustee or for any third Person or dealing as principal for its own account; and
(p) the Indenture Trustee shall not be responsible for delays or failures in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts or God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
Section 11.4. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the certificates of authentication, will be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for their correctness. The Indenture Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Indenture Trustee will not be accountable for the use or application by the Issuer of Notes or the proceeds thereof, or for the use or application of any funds paid to the Servicer in respect of any amounts deposited in or withdrawn from the Trust Accounts or the Custodial Accounts by the Servicer. The Indenture Trustee shall not be responsible for the legality or validity of this Indenture or the validity, priority, perfection or sufficiency of the security for the Notes issued or intended to be issued hereunder.
Section 11.5. Money Held in Trust.
The Indenture Trustee will be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
Section 11.6. Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity.
Except as otherwise provided in this Indenture:
(a) The Indenture Trustee (including in all of its capacities) will be paid the Indenture Trustee Fee on each Payment Date pursuant to Section 4.5 as compensation for its services (in all capacities hereunder).
(b) The Indenture Trustee (including in all of its capacities) shall be indemnified and held harmless by the Trust Estate as set forth in Section 4.5 and Section 8.6 , and shall be secondarily indemnified and held harmless by the Administrator for, from and against, as the case may be, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of, or in connection with, the acceptance and administration of the Trust Estate, including, in the case of the Indenture Trustee, without limitation, the costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties under this Indenture, provided that:
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(i) with respect to any such claim, the Indenture Trustee shall have given the Administrator written notice thereof promptly after a Responsible Officer of the Indenture Trustee shall have actual knowledge thereof; provided , however that failure to give such written notice shall not affect the Trust Estate’s or the Administrator’s obligation to indemnify the Indenture Trustee, unless such failure materially prejudices the Trust Estate’s or the Administrator’s rights;
(ii) the Administrator may, at its option, assume the defense of any such claim using counsel reasonably satisfactory to the Indenture Trustee; and
(iii) notwithstanding anything in this Indenture to the contrary, the Administrator shall not be liable for settlement of any claim by the Indenture Trustee, as the case may be, entered into without the prior consent of the Administrator, which consent shall not be unreasonably withheld.
No termination of this Indenture, or the resignation or removal of the Indenture Trustee, shall affect the obligations created by this Section 11.6(b) of the Administrator to indemnify the Indenture Trustee under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided in this Section 11.6(b) with respect to the Administrator shall not pertain to any loss, liability or expense of the Indenture Trustee, including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture Trustee at the direction of the Noteholders pursuant to the terms of this Indenture.
The Indenture Trustee agrees fully to perform its duties under this Indenture notwithstanding its failure to receive any payments, reimbursements or indemnifications to the Indenture Trustee pursuant to this Section 11.6(b) subject to its rights to resign in accordance with the terms of this Indenture.
The Securities Intermediary, the Paying Agent, and the Calculation Agent shall be indemnified by the Trust Estate pursuant to Section 4.5 and Section 8.6 , and secondarily by the Administrator, in respect of the matters described in Section 4.9 to the same extent as the Indenture Trustee.
Neither of the Indenture Trustee nor the Securities Intermediary will have any recourse to any asset of the Issuer or the Trust Estate other than funds available pursuant to Section 4.5 and Section 8.6 or to any Person other than the Issuer (or the Administrator pursuant to this Section 11.6 ). Except as specified in Section 4.5 and Section 8.6 , any such payment to the Indenture Trustee shall be subordinate to payments to be made to Noteholders.
Anything in this Indenture to the contrary notwithstanding, in no event shall the Indenture Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
Section 11.7. Corporate Indenture Trustee Required; Eligibility.
There will at all times be an Indenture Trustee hereunder with respect to all Classes of Notes, which will be either a bank or a corporation organized and doing business under the laws of the United States or of any state, authorized under such laws to exercise corporate trust powers, having a combined
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capital and surplus of at least $50,000,000, subject to supervision or examination by a federal or state authority of the United States, and the long-term unsecured debt obligations of which are rated in the third highest applicable rating category from each Note Rating Agency then rating Outstanding Notes if such institution is rated by such Note Rating Agency, as applicable. If such bank or corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such bank or corporation will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Issuer may not, nor may any Person directly or indirectly Controlling, Controlled by, or under common Control with the Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee ceases to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 11.8. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee pursuant to this Article will become effective until the acceptance of appointment by the successor Indenture Trustee under Section 11.9 .
(b) The Indenture Trustee (in all capacities) and Wells Fargo Bank, N.A. (in all capacities) may resign with respect to all, but not less than all, such capacities and all, but not less than all of the Outstanding Notes at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Indenture Trustee, Calculation Agent, Paying Agent or Securities Intermediary shall not have been delivered to the Indenture Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Indenture Trustee, Calculation Agent, Paying Agent or Securities Intermediary may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary. Written notice of resignation by the Indenture Trustee under this Indenture shall also constitute notice of resignation as Calculation Agent, Securities Intermediary, Paying Agent, Note Registrar and Custodian hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such resignation.
(c) The Indenture Trustee or Calculation Agent may be removed with respect to all Outstanding Notes at any time by Action of the Majority Noteholders of all Outstanding Notes, delivered to the Indenture Trustee and to the Issuer. Removal of the Indenture Trustee shall also constitute removal of the Calculation Agent, Securities Intermediary and Paying Agent hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such resignation. If an instrument of acceptance by a successor Indenture Trustee or Calculation Agent shall not have been delivered to the Indenture Trustee within thirty (30) days after the giving of such notice of removal, the Indenture Trustee or Calculation Agent being removed may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(d) If at any time:
(i) the Indenture Trustee ceases to be eligible under Section 11.7 and fails to resign after written request therefore by the Issuer or by any Noteholder; or
(ii) the Indenture Trustee becomes incapable of acting with respect to any Series or Class of Notes; or
(iii) the Indenture Trustee is adjudged bankrupt or insolvent or a receiver of the Indenture Trustee or of its property is appointed or any public officer takes charge or Control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (A) the Issuer may remove the Indenture Trustee, or (B) subject to Section 8.9 , any Noteholder who has been a bona fide Noteholder of a Note for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee or Calculation Agent resigns, is removed or becomes incapable of acting with respect to any Notes, or if a vacancy shall occur in the office of the Indenture Trustee or Calculation Agent for any cause, the Issuer, subject to the Administrative Agent’s consent, will promptly appoint a successor Indenture Trustee or Calculation Agent. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Indenture Trustee or Calculation Agent is appointed by Act of the Majority Noteholders of all Outstanding Notes, delivered to the Issuer and the retiring Indenture Trustee or Calculation Agent, the successor Indenture Trustee or Calculation Agent so appointed will, forthwith upon its acceptance of such appointment, become the successor Indenture Trustee or Calculation Agent and supersede the successor Indenture Trustee or Calculation Agent appointed by the Issuer. If no successor Indenture Trustee or Calculation Agent shall have been so appointed by the Issuer or the Noteholders and accepted appointment in the manner hereinafter provided, any Noteholder who has been a bona fide Noteholder of a Note for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(f) The Issuer will give written notice of each resignation and each removal of the Indenture Trustee and each appointment of a successor Indenture Trustee to each Noteholder as provided in Section 1.7 and to each Note Rating Agency that is then rating Outstanding Notes. To facilitate delivery of such notice, upon request by the Issuer, the Note Registrar shall provide to the Issuer a list of the relevant registered Noteholders. Each notice will include the name of the successor Indenture Trustee and the address of its principal Corporate Trust Office.
Section 11.9. Acceptance of Appointment by Successor.
Every successor Indenture Trustee appointed hereunder will execute, acknowledge and deliver to the Issuer and to the predecessor Indenture Trustee an instrument accepting such appointment, with a copy to each Note Rating Agency then rating any Outstanding Notes, and thereupon the resignation or removal of the predecessor Indenture Trustee will become effective, and such successor Indenture Trustee, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the predecessor Indenture Trustee, Calculation Agent and Paying Agent; but, on request of the Issuer or the successor Indenture Trustee, such predecessor Indenture Trustee will, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Indenture Trustee all the rights, powers and trusts of the predecessor Indenture Trustee, Calculation Agent and Paying Agent, and will duly assign, transfer and deliver to such successor Indenture Trustee all property and money held by such predecessor Indenture Trustee hereunder, subject nevertheless to its rights to payment pursuant to Section 11.6 . Upon request of any such successor Indenture Trustee, the Issuer will execute any and all instruments for more fully and certainly vesting in and confirming to such successor Indenture Trustee all such rights, powers and trusts.
No successor Indenture Trustee will accept its appointment unless at the time of such acceptance such successor Indenture Trustee will be qualified and eligible under this Article.
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Section 11.10. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, will be the successor of the Indenture Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. The Indenture Trustee will give prompt written notice of such merger, conversion, consolidation or succession to the Issuer and each Note Rating Agency that is then rating Outstanding Notes. If any Notes shall have been authenticated, but not delivered, by the Indenture Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Indenture Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Indenture Trustee had itself authenticated such Notes.
Section 11.11. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding the Indenture Trustee, with the approval of the Issuer, may appoint an Authenticating Agent with respect to one or more Series or Classes of Notes which will be authorized to act on behalf of the Indenture Trustee to authenticate Notes of such Series or Classes issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 6.6 , and Notes so authenticated will be entitled to the benefits of this Indenture and will be valid and obligatory for all purposes as if authenticated by the Indenture Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Indenture Trustee or an Indenture Trustee Authorized Signatory or to the Indenture Trustee’s Certificate of Authentication, such reference will be deemed to include authentication and delivery on behalf of the Indenture Trustee by an Authenticating Agent and a Certificate of Authentication executed on behalf of the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent will be acceptable to the Issuer and will at all times be a Person organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Issuer itself, subject to supervision or examination by a federal or state authority of the United States. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent will cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent will resign immediately in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent will be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, will continue to be an Authenticating Agent, provided that such Person will be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or if at any time such Authenticating Agent ceases to be eligible in accordance with the provisions of this Section, the Indenture
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Trustee, with the approval of the Issuer, may appoint a successor Authenticating Agent which will be acceptable to the Issuer and will give notice to each Noteholder as provided in Section 1.7 . Any successor Authenticating Agent upon acceptance of its appointment hereunder will become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent will be appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent (other than an Authenticating Agent appointed at the request of the Issuer, the Noteholders or the Administrator from time to time or appointed due to a change in law or other circumstance beyond the Indenture Trustee’s control) reasonable compensation for its services under this Section, out of the Indenture Trustee’s own funds without reimbursement pursuant to this Indenture.
If an appointment with respect to one or more Classes is made pursuant to this Section, the Notes of such Series or Classes may have endorsed thereon an alternate Certificate of Authentication in the following form:
AUTHENTICATING AGENT’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Classes designated herein and referred to in the within-mentioned Indenture and Indenture Supplement.
|
Dated: , 20[ ] |
WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee, | |||||
| By: | ||||||
| as Authenticating Agent | ||||||
| By: | ||||||
| Authorized Officer of Wells Fargo Bank, N.A. | ||||||
Section 11.12. Representations and Covenants of the Indenture Trustee.
The Indenture Trustee, in its individual capacity and not as Indenture Trustee, represents, warrants and covenants that:
(a) Wells Fargo Bank, N.A. is a national banking association duly organized and validly existing under the laws of the United States;
(b) Wells Fargo Bank, N.A. has full power and authority to deliver and perform this Indenture and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture and other documents to which it is a party; and
(c) each of this Indenture and other Transaction Documents to which Wells Fargo Bank, N.A. is a party has been duly executed and delivered by Wells Fargo Bank, N.A. and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.
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Section 11.13. Indenture Trustee’s Application for Instructions from the Issuer.
Any application by the Indenture Trustee for written instructions from the Issuer may, at the option of the Indenture Trustee, set forth in writing any action proposed to be taken or omitted by the Indenture Trustee under and in accordance with this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective, provided that such application shall make specific reference to this Section 11.13 . The Indenture Trustee shall not be liable for any action taken by, or omission of, the Indenture Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date the Issuer actually receives such application, unless the Issuer shall have consented in writing to any earlier date) unless prior to taking any such action (or the Closing Date in the case of an omission), the Indenture Trustee shall have received written instructions in response to such application specifying the action be taken or omitted.
Article XII
Amendments and Indenture Supplements
Section 12.1. Supplemental Indentures and Amendments Without Consent of Noteholders.
(a) Unless otherwise provided in the related Indenture Supplement with respect to any amendment to this Indenture or such Indenture Supplement, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent that such amendment would materially affect the Subservicer) and the Administrative Agent, and any applicable Derivative Counterparty and with prior notice to each Note Rating Agency that is then rating any Outstanding Notes, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have an Adverse Effect and is not reasonably expected to have a material Adverse Effect on the Noteholders of the Notes at any time in the future, may amend this Indenture for any of the following purposes:
(i) to evidence the succession of another Person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Notes; or
(ii) to add to the covenants of the Issuer, or to surrender any right or power herein conferred upon the Issuer, for the benefit of the Noteholders of the Notes of any or all Series or Classes (and if such covenants or the surrender of such right or power are to be for the benefit of less than all Series or Classes of Notes, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of one or more specified Series or Classes); or
(iii) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; or
(iv) to establish any form of Note as provided in Article V, and to provide for the issuance of any Series or Class of Notes as provided in Article VI and to set forth the terms thereof, and/or to add to the rights of the Noteholders of the Notes of any Series or Class; or
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(v) to evidence and provide for the acceptance of appointment by another corporation as a successor Indenture Trustee hereunder; or
(vi) to provide for additional or alternative forms of credit enhancement for any Series or Class of Notes; or
(vii) to comply with any regulatory, accounting or tax laws; or
(viii) to qualify for “off-balance sheet” treatment under GAAP, or to permit the Depositor to repurchase a specified percentage (not to exceed 2.50%) of the Receivables from the Issuer in order to achieve “on-balance sheet” treatment under GAAP (if such amendment is supported by a true sale opinion from external counsel to the Receivables Seller satisfactory to each Note Rating Agency rating Outstanding Notes and to each Noteholder of a Variable Funding Note); or
(ix) to prevent the Issuer from being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes; or
(x) as otherwise provided in the related Indenture Supplement.
(b) In the event a material change occurs in Applicable Law, or in applicable foreclosure procedures used by prudent mortgage servicers generally, that requires or justifies, in the Administrator’s reasonable judgment, that a state currently categorized as a “Judicial State” be categorized as a “Non-Judicial State,” or vice versa, the Administrator will certify to the Indenture Trustee to such effect, supported by an opinion of counsel (or other form of assurance acceptable to the Indenture Trustee) in the case of a change in Applicable Law, and the categorization of the affected state or states will change from “Judicial State” to “Non-Judicial State,” or vice versa, for purposes of calculating Advance Rates applicable to Receivables.
(c) Additionally, subject to the terms and conditions of Section 12.2 , unless otherwise provided in the related Indenture Supplement with respect to any amendment of this Indenture or an Indenture Supplement, and in addition to clauses (i) through (ix) above, this Indenture or an Indenture Supplement may also be amended by the Issuer, the Indenture Trustee, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent that such amendment would materially affect the Subservicer) and the Administrative Agent (in its sole and absolute discretion) without the consent of any of the Noteholders or any other Person, upon delivery of an Issuer Tax Opinion for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or modifying in any manner the rights of the Noteholders of the Notes under this Indenture; provided , however , that (i) the Issuer shall deliver to the Indenture Trustee an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future, (ii) each Note Rating Agency currently rating the Outstanding Notes confirms in writing to the Indenture Trustee that such amendment will not cause a Ratings Effect on any Outstanding Notes and (iii) each Derivative Counterparty shall have consented to such amendment.
Except as permitted expressly by the Receivables Purchase Agreement or the Receivables Sale Agreement, as applicable, the Servicer shall not enter into any amendment of the Receivables Sale Agreement, and the Issuer shall not enter into any amendment of the Receivables Pooling Agreement without the consent of the Administrative Agent and, except for amendments meeting the same criteria, and supported by the same Issuer Tax Opinion and Officer’s Certificate, as amendments to the Indenture entered into under this Section 12.1 , without the consent of the Series Required Noteholders of each Series.
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Section 12.2. Supplemental Indentures and Amendments with Consent of Noteholders.
In addition to any amendment permitted pursuant to Section 12.1 , and subject to the terms and provisions of each Indenture Supplement with respect to any amendment to this Indenture or such Indenture Supplement, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment of this Indenture, including any Indenture Supplement, by Act of said Noteholders delivered to the Issuer and the Indenture Trustee, the Issuer, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent that such amendment would materially affect the Subservicer), the Administrative Agent and the Indenture Trustee upon delivery of an Issuer Tax Opinion (unless the Noteholders unanimously consent to waive such opinion), may enter into an amendment of this Indenture for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture of modifying in any manner the rights of the Noteholders of the Notes of each such Series or Class under this Indenture or any Indenture Supplement; provided , however , that no such amendment will, without the consent of the Noteholder of each Outstanding Note materially and adversely affected thereby:
(a) change the scheduled payment date of any payment of interest on any Note held by such Noteholder, or change a Payment Date or Stated Maturity Date of any Note held by such Noteholder;
(b) reduce the Note Balance of, or the Note Interest Rate on any Note held by such Noteholder, or change the method of computing the Note Balance or Note Interest Rate in a manner that is adverse to such Noteholder;
(c) impair the right to institute suit for the enforcement of any payment on any Note held by such Noteholder;
(d) reduce the percentage in the Class Invested Amount or Invested Amount of the Outstanding Notes (or of the Outstanding Notes of any Series or Class), the consent of whose Noteholders is required for any such Amendment, or the consent of whose Noteholders is required for any waiver of compliance with the provisions of this Indenture or any Indenture Supplement or of defaults hereunder or thereunder and their consequences, provided for in this Indenture or any Indenture Supplement;
(e) modify any of the provisions of this Section or Section 8.15 , except to increase any percentage of Noteholders required to consent to any such amendment or to provide that other provisions of this Indenture or any Indenture Supplement cannot be modified or waived without the consent of the Noteholder of each Outstanding Note adversely affected thereby;
(f) permit the creation of any lien or other encumbrance on the Collateral that is prior to the lien in favor of the Indenture Trustee for the benefit of the Noteholders of the Notes;
(g) change the method of computing the amount of principal of, or interest on, any Note held by such Noteholder on any date;
(h) increase any Advance Rates in respect of Notes held by such Noteholder or eliminate or decrease any collateral value exclusions in respect of Notes held by such Noteholder; or
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(i) reduce the Target Amortization Amount in respect of any Target Amortization Event applicable to Notes held by such Noteholder.
In addition, any Indenture Supplement may be amended, supplemented or otherwise modified with the consent of each of the Noteholders of the Notes of the related Series or as otherwise specified in the applicable Indenture Supplement. The consent of a Person that is an Administrative Agent or a Derivative Counterparty for one or more Series but is not an Administrative Agent or a Derivative Counterparty, as applicable, for any other Series is not required for any amendment, supplement or modification to any such other Series.
An amendment of this Indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular Series or Class of Notes, or which modifies the rights of the Noteholders of Notes of such Series or Class with respect to such covenant or other provision, will be deemed not to affect the rights under this Indenture of the Noteholders of Notes of any other Series or Class.
It will not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed amendment, but it will be sufficient if such Act will approve the substance thereof.
Section 12.3. Execution of Amendments.
In executing or accepting the additional trusts created by any amendment or Indenture Supplement of this Indenture permitted by this Article XII or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 ) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized or permitted by this Indenture and that all conditions precedent thereto have been satisfied. The Indenture Trustee may, but will not be obligated to, enter into any such amendment or Indenture Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 12.4. Effect of Amendments.
Upon the execution of any amendment of this Indenture or any Indenture Supplement, or any Supplemental indentures under this Article XII , this Indenture and the related Indenture Supplement will be modified in accordance therewith with respect to each Series and Class of Notes affected thereby, or all Notes, as the case may be, and such amendment will form a part of this Indenture and the related Indenture Supplement for all purposes; and every Noteholder of Notes theretofore or thereafter authenticated and delivered hereunder will be bound thereby to the extent provided therein.
Section 12.5. Reference in Notes to Indenture Supplements.
Notes authenticated and delivered after the execution of any amendment of this Indenture or any Indenture Supplement or any supplemental indenture pursuant to this Article may, and will if required by the Indenture Trustee, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such amendment or supplemental indenture. If the Issuer so determines, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such amendment or supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
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Section 12.6. Amendments Requiring Consent of the Servicer.
Without limiting the other provisions of this Article XII, this Indenture may not be amended in a manner that is adverse to the rights, interests or obligations of the Servicer, including increasing the obligations of the Servicer, without the written consent of the Servicer. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
Article XIII
Early Redemption of Notes
Section 13.1. Optional Redemption.
(a) Unless otherwise provided in the applicable Indenture Supplement for a Series or Class of Notes, the Issuer has the right, but not the obligation, to redeem a Series or Class of Notes in whole but not in part on any Payment Date (a “ Redemption Payment Date ”) on or after the Payment Date on which the aggregate Note Balance (after giving effect to all payments, if any, on that day) of such Series or Class is reduced to less than the percentage of the Initial Note Balance specified in the related Indenture Supplement (the “ Redemption Percentage ”).
If the Issuer, at the direction of the Administrator, elects to redeem a Series or Class of Notes pursuant to this Section 13.1(a) , it will cause the Issuer to notify the Indenture Trustee, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Noteholders of such redemption at least ten (10) days prior to the Redemption Payment Date. Unless otherwise specified in the Indenture Supplement applicable to the Notes to be so redeemed, the redemption price of a Series or Class so redeemed will equal the Redemption Amount, the payment of which will be subject to the allocations, deposits and payments sections of the related Indenture Supplement, if any.
If the Issuer is unable to pay the Redemption Amount in full on the Redemption Payment Date, such redemption shall be cancelled, notice of such cancelled redemption shall be sent to all Secured Parties and payments on such Series or Class of Notes will thereafter continue to be made in accordance with this Indenture and the related Indenture Supplement, and the Noteholders of such Series or Class of Notes and the related Administrative Agent shall continue to hold all rights, powers and options as set forth under this Indenture, until the Outstanding Note Balance of such Series or Class, plus all accrued and unpaid interest, is paid in full or the Stated Maturity Date occurs, whichever is earlier, subject to Article VII , Article VIII and the allocations, deposits and payments sections of this Indenture and the related Indenture Supplement.
(b) Unless otherwise specified in the related Indenture Supplement, if the VFN Principal Balance of any Class of VFN Notes has been reduced to zero, then, upon five (5) Business Days’ prior written notice to the Noteholder thereof, the Issuer may declare such Class no longer Outstanding, in which case the Noteholder thereof shall submit such Class of Note to the Indenture Trustee for cancellation.
(c) The Notes of any Series or Class of Notes shall be subject to optional redemption under this Article XIII , in whole but not in part, by the Issuer, through a Permitted Refinancing or using the proceeds of issuance and sale of a new Series of Notes issued hereunder or, on any Business Day after the date on which the related Revolving Period ends, and on any Business Day within ten (10) days prior to
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the end of such Revolving Period or at other times specified in the related Indenture Supplement upon ten (10) days’ prior notice to the Indenture Trustee, the Noteholders and any related Derivative Counterparty. Following issuance of the Redemption Notice by the Issuer pursuant to Section 13.2 below, the Issuer shall be required to purchase the entire aggregate Note Balance of such Series or Class of Term Notes for the Redemption Amount on the date set for such redemption (the “ Redemption Date ”).
(d) If necessary to satisfy the Collateral Test, the Notes of any Series or Class of Variable Funding Notes shall be subject to repayment by the Issuer, in whole or in part, up to the amount necessary to satisfy the Collateral Test, using any other cash or funds of the Issuer other than Collections on the Receivables, upon one (1) Business Day’s prior notice from the Issuer to the Indenture Trustee, each Derivative Counterparty and the related VFN Noteholders. Any such repayment pursuant to this Section 13.1(d) shall reduce the principal balance of such Variable Funding Notes but shall not result in a reduction of any funding commitments related thereto or the Maximum VFN Principal Balance thereof (unless otherwise agreed between the Noteholders of such Variable Funding Notes and the Issuer) and (ii) may be made on a non-pro rata basis with other Series of Variable Funding Notes.
Section 13.2. Notice.
(a) Promptly after the occurrence of any optional redemption pursuant to Section 13.1 , the Issuer will notify the Indenture Trustee, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each related Note Rating Agency in writing of the identity and Note Balance of the affected Series or Class of Notes to be redeemed.
(b) Notice of redemption (each a “ Redemption Notice ”) will promptly be given as provided in Section 1.7 . All notices of redemption will state (i) the Series or Class of Notes to be redeemed pursuant to this Article XIII , (ii) the date on which the redemption of the Series or Class of Notes to be redeemed pursuant to this Article will begin, which will be the Redemption Payment Date, and (iii) the redemption price for such Series or Class of Notes. Following delivery of a Redemption Notice by the Issuer, the Issuer shall be required to purchase the entire aggregate Note Balance of such Series or Class of Notes for the related Redemption Amount on the Redemption Date.
Article XIV
Miscellaneous
Section 14.1. No Petition.
Each of the Indenture Trustee, the Administrative Agent, the Servicer and the Administrator, by entering into this Indenture, each Derivative Counterparty, each Supplemental Credit Enhancement Provider or Liquidity Provider, as applicable, by accepting its rights as a third party beneficiary hereunder, each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against the Depositor or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Derivative Counterparty, any Supplemental Credit Enhancement Agreement and any Liquidity Facility; provided , however , that nothing contained herein shall prohibit or otherwise prevent the Indenture Trustee from filing proofs of claim in any such proceeding.
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Section 14.2. No Recourse.
No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the Securities Act and the Exchange Act of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Section 14.3. Tax Treatment.
Notwithstanding anything to the contrary set forth herein, the Issuer has entered into this Indenture with the intention that for United States federal, state and local income and franchise tax purposes the Notes will qualify as indebtedness secured by the Receivables. The Issuer, by entering into this Indenture, each Noteholder, by its acceptance of a Note and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agree to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination. The Indenture Trustee shall treat the Trust Estate as a security device only. The provisions of this Indenture shall be construed in furtherance of the foregoing intended tax treatment.
Section 14.4. Alternate Payment Provisions.
Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer, with the written consent of the Indenture Trustee and the Paying Agent, may enter into any agreement with any Noteholder of a Note providing for a method of payment or notice that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee and the Paying Agent a copy of each such agreement and the Indenture Trustee and the Paying Agent will cause payments or notices, as applicable, to be made in accordance with such agreements.
Section 14.5. Termination of Obligations.
The respective obligations and responsibilities of the Indenture Trustee created hereby (other than the obligation of the Indenture Trustee to make payments to Noteholders as hereinafter set forth) shall terminate upon satisfaction and discharge of this Indenture as set forth in Article VII , except with respect to the payment obligations described in Section 14.6(b) . Upon this event, the Indenture Trustee shall release, assign and convey to the Issuer or any of its designees, without recourse, representation or warranty, all of its right, title and interest in the Collateral, whether then existing or thereafter created, all monies due or to become due and all amounts received or receivable with respect thereto (including all moneys then held in any Trust Account) and all proceeds thereof, except for amounts held by the Indenture Trustee pursuant to Section 14.6(b) . The Indenture Trustee shall execute and deliver such instruments of transfer and assignment as shall be provided to it, in each case without recourse, as shall be reasonably requested by the Issuer to vest in the Issuer or any of its designees all right, title and interest which the Indenture Trustee had in the Collateral.
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Section 14.6. Final Distribution.
(a) The Issuer shall give the Indenture Trustee at least thirty (30) days’ prior written notice of the Payment Date on which the Noteholders of any Series or Class may surrender their Notes for payment of the final distribution on and cancellation of such Notes. Not later than the fifth day of the month in which the final distribution in respect of such Series or Class is payable to Noteholders, the Indenture Trustee or the Paying Agent shall provide notice to Noteholders of such Series or Class and each Derivative Counterparty (if applicable) specifying (i) the date upon which final payment of such Series or Class will be made upon presentation and surrender of Notes of such Series or Class at the office or offices therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such payment date is not applicable, payments being made only upon presentation and surrender of such Notes at the office or offices therein specified. The Indenture Trustee shall give such notice to the Note Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any Series or Class (or the termination of the Issuer), except as otherwise provided in this paragraph, all funds then on deposit in any Account allocated to such Noteholders shall continue to be held in trust for the benefit of such Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds to such Noteholders upon surrender of their Notes, if such Notes are Definitive Notes. In the event that all such Noteholders shall not surrender their Notes for cancellation within six (6) months after the date specified in the notice from the Indenture Trustee described in clause (a) , the Indenture Trustee shall give a second (2 nd ) notice to the remaining such Noteholders to surrender their Notes for cancellation and receive the final distribution with respect thereto. If within one year after the second (2 nd ) notice all such Notes shall not have been surrendered for cancellation, the Indenture Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining such Noteholders concerning surrender of their Notes, and the cost thereof (including costs related to giving the second (2 nd ) notice) shall be paid out of the funds in the Collection and Funding Account. The Indenture Trustee and the Paying Agent shall pay to the Issuer any monies held by them for the payment of principal or interest that remains unclaimed for two (2) years. After payment to the Issuer, Noteholders entitled to the money must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another Person.
| Section 14.7. | Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider as Third-Party Beneficiaries. |
Each Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider is a third-party beneficiary of this Indenture.
Section 14.8. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture or the other Transaction Documents.
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Section 14.9. Communications with Rating Agencies.
If the Servicer, the Administrative Agent or the Indenture Trustee shall receive any written or oral communication from any Note Rating Agency (or any of the respective officers, directors or employees of any Note Rating Agency) with respect to the transactions contemplated hereby or under the Transaction Documents or in any way relating to the Notes, the Servicer, the Administrative Agent and the Indenture Trustee agree to refrain from communicating with such Note Rating Agency and to promptly notify the Administrator of such communication; provided, however, that if the Servicer, the Administrative Agent or the Indenture Trustee receives an oral communication from a Note Rating Agency, the Servicer, the Administrative Agent or the Indenture Trustee, as the case may be, is authorized to refer such Note Rating Agency to the Administrator, who will respond to such oral communication. At the written request of the Administrator, the Servicer, the Administrative Agent and the Indenture Trustee agree to cooperate with the Administrator to provide certain information to the Administrator that may be reasonably required by a Note Rating Agency to rate or to perform ratings surveillance on the Notes, and acknowledge and agree that the Administrator shall be permitted, in turn, to provide such information to the Note Rating Agencies via the internet address identified therefor by the Administrator; provided , that the Servicer, the Administrative Agent and the Indenture Trustee shall only be required to provide such information that is reasonably available to such party at the time of request. Notwithstanding any other provision of this Agreement or the other Transaction Documents, under no circumstances shall the Servicer, the Administrative Agent or the Indenture Trustee be required to participate in telephone conversations or other oral communications with a Note Rating Agency, nor shall the Servicer, the Administrative Agent or the Indenture Trustee be prohibited from communicating with any nationally recognized statistical rating organization about matters other than the Notes or the transactions contemplated hereby or by the Transaction Documents. Furthermore for the avoidance of doubt, the Indenture Trustee may make statements to Noteholders available on its website (as contemplated by Section 3.5(a) hereof), and such action is not prohibited by this Section 14.9 .
Section 14.10. Authorized Representatives.
Each individual designated as an authorized representative of the Indenture Trustee, Calculation Agent, Paying Agent, and Securities Intermediary, Administrator, Administrative Agent and Issuer (each, an “ Authorized Representative ”), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on behalf of each of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Administrative Agent and Issuer, respectively, and the specimen signature for each such Authorized Representative of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Servicer, Administrative Agents and Issuer initially authorized hereunder is set forth on Exhibits G-1, G-2, G-3 and G-4 , respectively. From time to time, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Administrative Agent and Issuer may, by delivering to the others a revised exhibit, change the information previously given pursuant to this Section 14.10 , but each of the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit.
Section 14.11. Consent and Acknowledgement of the Amendments.
100% of the Noteholders of each Series have consented to this Indenture and each such Noteholder confirms that (i) it is the sole Noteholder of all the Outstanding Notes related to such Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Indenture, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture shall become effective on the Effective Date.
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It is expressly understood and agreed by the parties hereto that on the Effective Date, Advance Purchaser shall acquire the ownership of 100% of the equity interests in the Depositor from Nationstar, and Advance Purchaser shall assume the role of Administrator of the facility and under the Indenture from Nationstar and all requirements, as applicable, under Section 10.6 are waived.
By its signature to this Indenture, each of the parties hereto (other than the Indenture Trustee) hereby waives and directs the Indenture Trustee to waive, the delivery of the Authorization Opinion in connection with the execution and delivery of this Indenture.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC, as Issuer | ||||
|
By: |
Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | |||
|
By: |
/s/ Erwin M. Soriano | |||
|
Name: |
Erwin M. Soriano | |||
|
Title: |
Assistant Vice President | |||
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
| WELLS FARGO BANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | ||
|
By: |
/s/ Mark DeFabio | |
|
Name: |
Mark DeFabio | |
|
Title: |
Vice President |
|
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
| NATIONSTAR MORTGAGE LLC | ||
|
By: |
/s/ Ellen Coleman | |
|
Name: |
Ellen Coleman | |
|
Title: |
Executive Vice President | |
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
| ADVANCE PURCHASER LLC | ||
|
By: |
/s/ Cameron MacDougall | |
|
Name: |
Cameron MacDougall | |
|
Title: |
Secretary | |
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
|
BARCLAYS BANK PLC, as Administrative Agent |
||
|
By: |
/s/ Joseph O’Doherty | |
|
Name: |
Joseph O’Doherty | |
|
Title: |
Managing Director | |
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
|
CONSENTED TO BY:
BARCLAYS BANK PLC, as Committed Purchaser, Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF1 Notes |
||
|
By: |
/s/ Joseph O’Doherty | |
|
Name: |
Joseph O’Doherty | |
|
Title: |
Managing Director | |
[Signatures continue]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
|
CONSENTED TO BY:
SHEFFIELD RECEIVABLES CORPORATION, as Conduit Holder of the Series 2013-VF1 Notes |
||
|
By: Barclays Bank PLC as attorney-in-fact |
||
|
By: |
/s/ Joseph O’Doherty | |
|
Name: |
Joseph O’Doherty | |
|
Title: |
Managing Director | |
[End of signatures]
[NRZ Servicer Advance Receivables Trust BC – Signature Page to Amended and Restated Indenture]
Schedule 1
List of Designated Servicing Agreements
Schedule 1-1
Schedule 2
Designated Servicing Agreements under which the Servicer or servicers are required to consent to or initiate termination and have agreed to repay all unpaid and accrued servicing fees at the time of redemption in full or reimburse all Advances at the time of termination, as applicable
Schedule 2-1
Schedule 3
Designated Servicing Agreements for which the related Receivables become ineligible upon the principal balance of the Mortgage Loans and REO Properties in the related securitization trust being reduced below the indicated threshold of the securitization trust’s cut-off date balance
Schedule 3-1
Schedule 4
Servicing Agreements that are Facility Eligible Servicing Agreements only if the unpaid principal balance of the related Mortgage Loans that are 90 or more days delinquent or that are related to REO Properties or Mortgaged Properties in foreclosure is less than the overcollateralization that provides enhancement for the Senior Classes (as such term is defined in the related Servicing Agreement) identified in such Servicing Agreement
Schedule 4-1
Schedule 5
Designated Servicing Agreements that are subserviced by Subservicers and other Servicing Agreements that may be subserviced by Subservicers
Schedule 5-1
Schedule 6
Wire Instructions
Schedule 6-1
Schedule 6-2
Schedule 6-3
Schedule 7
Schedule 7-1
Exhibit A-1
FORM OF GLOBAL RULE 144A NOTE
| Class [ ] Note | ||||
| Note Number: [ ] | Initial Note Balance: | $[ ] | ||
| [Maximum VFN Principal Balance: | $[ ]] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE [MAXIMUM VFN PRINCIPAL BALANCE] [INITIAL NOTE BALANCE] SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR ANY NOTE THAT IS NOT A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS OF, ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF
Exhibit A-1-1
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “ CODE ”), AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW. A PURCHASER OR TRANSFEREE OF ANY NOTE HELD IN BOOK ENTRY FORM, SHALL, BY VIRTUE OF ITS ACQUISITION OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN BE DEEMED TO HAVE MADE THE REPRESENTATIONS PROVIDED IN CLAUSES (I) OR (II) ABOVE.] [FOR A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-1-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE [AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT] UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY] [AND SECTION 6.5(m) OF THE BASE INDENTURE AND THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED IN AN OFF-SHORE TRANSACTION AS DEFINED IN REGULATION S OF THE 1933 ACT TO A PERSON WHO IS NOT ANY TIME A U.S. PERSON AS DEFINED BY REGULATION S OF THE 1933 ACT AND WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S NOTE OR (IN CERTAIN LIMITED CIRCUMSTANCES) A DEFINITIVE NOTE ONLY (IN THE CASE OF AN INTEREST IN A REGULATION S GLOBAL NOTE) IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND (IN THE CASE OF A DEFINITIVE NOTE) UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE NOTE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Exhibit A-1-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust BC, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Barclays Bank PLC, as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20[ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].]
Exhibit A-1-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
This Note is a Rule 144A Global Note deposited with DTC acting as Depository, and registered in the name of Cede & Co., a nominee of DTC, and Cede & Co., as holder of record of this Note, shall be entitled to receive payments of principal and interest, other than principal and interest due at the maturity date, by wire transfer of immediately available funds.
The statements in the legend relating to DTC set forth above are an integral part of the terms of this Note and by acceptance thereof each holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend, if any.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-1-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
|
By: |
||
| Issuer Authorized Officer | ||
Exhibit A-1-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: | ||||||
| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-1-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-1-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-1-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor BC, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
Exhibit A-1-10
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-1-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: | ||||
| Signature Guaranteed: | ||||
| */ | ||||
*/NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP.
Exhibit A-1-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust BC
|
[Interim Payment Date] [Payment Date]
[Payment Date of
Additional
|
Aggregate Amount of
|
[Percentage Interest in]
|
[Percentage of Interest in]
|
Note Balance of Note
|
Exhibit A-1-13
Exhibit A-2
FORM OF DEFINITIVE NOTE RULE 144A
| Class [ ] Note | [Initial Note Balance: $[ ]] | |
| Note Number: [ ] | Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE [MAXIMUM VFN PRINCIPAL BALANCE] [INITIAL NOTE] BALANCE SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON THAT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A [FOR CLASS 2 SPECIFIED NOTES ONLY] [, OR AN “ACCREDITED INVESTOR” AS DEFINED IN PARAGRAPHS (1), (2) (3) OR (7) OF RULE 501 UNDER THE 1933 ACT] OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTIONS 6.5(M) OR (N) OF THE INDENTURE, AS APPLICABLE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR ANY NOTE THAT IS NOT A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR
Exhibit A-2-1
ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS OF, (I) ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE CODE, AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW.] [FOR A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-2-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION[S] REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY][AND SECTION 6.5(m)] [FOR CLASS 2 SPECIFIED NOTES ONLY][AND SECTION 6.5(n)] OF THE BASE INDENTURE AND THIS NOTE MAY BE TRANSFERRED ONLY UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
Exhibit A-2-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust BC, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Barclays Bank PLC, as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20[ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].
Exhibit A-2-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-2-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: | ||
| Issuer Authorized Officer | ||
Exhibit A-2-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: | ||||||
| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-2-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-2-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-2-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor BC, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
[For Class 2 Specified Notes or any Note issued in definitive form] [This Note is issuable only in definitive form in denominations as provided in the [Series Name] Indenture Supplement, subject to certain limitations therein set forth.]
Exhibit A-2-10
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-2-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: | ||||
| Signature Guaranteed: | ||||
| */ | ||||
*/NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP.
Exhibit A-2-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust BC
|
[Interim Payment Date] [Payment Date]
[Payment Date of
Additional
|
Aggregate Amount of
|
[Percentage Interest in]
|
[Percentage of Interest in]
|
Note Balance of Note
|
Exhibit A-2-13
Exhibit A-3
FORM OF GLOBAL REGULATION S NOTE
| Class [ ] Note | [Initial Note Balance: $[ ]] | |
| Note Number: [ ] | Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTE BALANCE SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) PURSUANT TO REGULATION S OF THE 1933 ACT IN AN OFF-SHORE TRANSACTION AS DEFINED IN REGULATION S OF THE 1933 ACT TO A PERSON THAT IS NOT A U.S. PERSON AS DEFINED IN REGULATION S OF THE 1933 ACT [FOR CLASS 1 SPECIFIED NOTES ONLY] [THAT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED UNDER RULE 144A UNDER THE 1933 ACT)] OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE, AS APPLICABLE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR A NOTE THAT IS NOT A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE
Exhibit A-3-1
ASSETS OF, ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “ CODE ”), AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW. A PURCHASER OR TRANSFEREE OF ANY NOTE HELD IN BOOK ENTRY FORM, SHALL, BY VIRTUE OF ITS ACQUISITION OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN BE DEEMED TO HAVE MADE THE REPRESENTATIONS PROVIDED IN CLAUSES (I) OR (II) ABOVE.] [FOR CLASS 1 SPECIFIED NOTES ONLY UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-3-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY] [AND SECTION 6.5(m)] OF THE BASE INDENTURE AND THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED IN AN OFF-SHORE TRANSACTION AS DEFINED IN THE 1933 ACT TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A NOTE OR (IN CERTAIN LIMITED CIRCUMSTANCES) A DEFINITIVE NOTE ONLY (IN THE CASE OF AN INTEREST IN A RULE 144A GLOBAL NOTE) IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND (IN THE CASE OF A DEFINITIVE NOTE) UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE NOTE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Exhibit A-3-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust BC, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Barclays Bank PLC, as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20[ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].
Exhibit A-3-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
This Note is a Regulation S Global Note deposited with DTC acting as Depository, and registered in the name of Cede & Co., a nominee of DTC, and Cede & Co., as holder of record of this Note, shall be entitled to receive payments of principal and interest, other than principal and interest due at the maturity date, by wire transfer of immediately available funds.
The statements in the legend relating to DTC set forth above are an integral part of the terms of this Note and by acceptance thereof each holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend, if any.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-3-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
|
By: |
||
| Issuer Authorized Officer | ||
Exhibit A-3-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: | ||||||
| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-3-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-3-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-3-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor BC, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement
Exhibit A-3-10
of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-3-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: | ||||
| Signature Guaranteed: | ||||
| */ | ||||
*/NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP.
Exhibit A-3-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust BC
|
[Interim Payment Date] [Payment Date]
[Payment Date of
Additional
|
Aggregate Amount of
|
[Percentage Interest in]
|
[Percentage of Interest in]
|
Note Balance of Note
|
Exhibit A-3-13
Exhibit A-4
FORM OF DEFINITIVE REGULATION S NOTE
| Class [ ] Note | [Initial Note Balance: $[ ]] | |
| Note Number: [ ] | Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTE BALANCE SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) PURSUANT TO REGULATION S OF THE 1933 ACT IN AN OFF-SHORE TRANSACTION AS DEFINED IN THE 1933 ACT TO A PERSON THAT IS NOT A U.S. PERSON AS DEFINED IN REGULATION S OF THE 1933 ACT [FOR CLASS 1 SPECIFIED NOTES ONLY] [IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE 1933 ACT) OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR A NOTE THAT IS NOT A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS
Exhibit A-4-1
OF, (I) ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE CODE, AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW.] [FOR CLASS 1 SPECIFIED NOTES ONLY UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-4-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION[S] REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY][AND SECTION 6.5(m)] OF THE BASE INDENTURE AND THIS NOTE MAY BE TRANSFERRED ONLY UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
Exhibit A-4-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust BC, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Barclays Bank PLC, as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20[ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].
Exhibit A-4-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-4-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: | ||
| Issuer Authorized Officer | ||
Exhibit A-4-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: | ||||||
| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: | ||||||
| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-4-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-4-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-4-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor BC, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
[For any Note issued in definitive form] [This Note is issuable only in definitive form in denominations as provided in the [Series Name] Indenture Supplement, subject to certain limitations therein set forth.]
Exhibit A-4-10
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-4-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: | ||||
| Signature Guaranteed: | ||||
| */ | ||||
*/NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP.
Exhibit A-4-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust BC
|
[Interim Payment Date] [Payment Date]
[Payment Date of
Additional
|
Aggregate Amount of
|
[Percentage Interest in]
|
[Percentage of Interest in]
|
Note Balance of Note
|
Exhibit A-4-13
Exhibit B-1
FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF NOTES PURSUANT
TO RULE 144A
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
| Re: | $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class |
Exhibit B-1-1
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[NOTE: COMPLETE [A] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE DURING THE DISTRIBUTION COMPLIANCE PERIOD. COMPLETE [B] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE. COMPLETE [C] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE. COMPLETE [D] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A RULE 144A DEFINITIVE NOTE. COMPLETE [E] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE. COMPLETE [F] FOR A TRANSFER OF AN INTEREST IN RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE. COMPLETE [G] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A RULE 144A DEFINITIVE NOTE.]
[A] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through [Euroclear] [Clearstream], which in turn holds through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[B] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through [Euroclear] [Clearstream], which in turn holds through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”), pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
Exhibit B-1-2
[C] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[D] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[E] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith in a Transferee Certification completed by the Transferee.
[F] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[G] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Notes for another Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture and the Notes and (ii) Rule 144A under the Securities Act to a Transferee that the Transferor reasonably believes is purchasing the Notes for its own account and the Transferor reasonably believes that the Transferee is a “qualified institutional buyer” within the meaning of Rule 144A, and such Transferee is aware that the sale to it is being made in reliance upon Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
If the Transferor is the Noteholder of a Regulation S Note (or an interest therein) and intends to transfer such Note (or such interest) to the Transferee taking delivery of such Note (or such interest) in the form of a Restricted Note (or interest therein), the Transferor hereby certifies that the transfer is being made after the end of the Distribution Compliance Period.
Exhibit B-1-3
The certificate and the statements contained herein are made for your benefit.
| [INSERT NAME OF TRANSFEROR] | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Dated: | ||||
Exhibit B-1-4
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit B-1-5
The undersigned (the “Transferee”) intends to purchase $ Note Balance of Class Notes (the “Notes”) from the Transferor named in the Transfer Certificate to which this Transferee Certification is attached. In connection with the registration of the transfer of such Notes, the Transferee hereby executes and delivers to each of you this “Transferee Certification” in which the Transferee certifies to each of you the information set forth herein.
1. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”) and has completed the form of certification to that effect attached hereto as Annex A1 (if the Transferee is not a registered investment company) or Annex A2 (if the Transferee is a registered investment company). The Transferee is aware that the sale to it is being made in reliance on Rule 144A.
2. The Transferee understands that the Notes have not been registered under the 1933 Act or registered or qualified under any state securities laws and that no transfer may be made unless the Notes are registered under the 1933 Act and under applicable state law or unless the transfer complies with Section 6.5 of the Indenture and any provision in any applicable Indenture Supplement. The Transferee further understands that neither the Transferor, the Administrator, the Servicer, the Indenture Trustee nor the Note Registrar is under any obligation to register the Notes or make an exemption from such registration available.
3. The Transferee is acquiring the Notes for its own account or for the account of a “qualified institutional buyer” (as defined in Rule 144A, a “QIB”), and understands that such Notes may be resold, pledged or transferred only (a) to a person reasonably believed to be such a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (b) to a transferee that is a non-U.S. Person acquiring such interest in an “offshore transaction” (as defined in Regulation S) in compliance with the provisions of Regulation S, if the transfer is otherwise made in accordance with any applicable securities laws of any state of the United States or any other relevant jurisdiction. In addition, such transfer may be subject to additional restrictions and is subject to compliance with certain procedures, as set forth in Section 6.5 of the Indenture referred to below and any provision in any applicable Indenture Supplement. By its execution of this agreement, the Transferee agrees that it will not resell, pledge or transfer any of the Notes to anyone otherwise than in strict compliance with Rule 144A, or pursuant to another exemption from registration under the 1933 Act and all applicable state securities laws, and in strict compliance with the transfer restrictions set forth in Section 6.5 of the Indenture. The Transferee will not attempt to transfer any or all of the Notes pursuant to Rule 144A unless the Transferee offers and sells such Certificates only to QIBs or to offerees or purchasers that the Transferee and any person acting on behalf of the Transferee reasonably believe (as described in paragraph (d)(l) of Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it requested regarding (a) the Notes and distributions thereon and (b) the Indenture.
Exhibit B-1-6
5. The Transferee has knowledge in financial and business matters and is capable of evaluating the merits and risks of an investment in the Notes; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee (or any account or which it is pursuing) is able to bear the economic risk of an investment in the Notes and can afford a complete loss of such investment.
6. The Transferee is an “accredited investor” as defined in paragraph (1), (2), (3) or (7) of Rule 501(a) under the 1933 Act.
7. Either (i) the Transferee is not, and is not acquiring the Notes on behalf of or using assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. section 2510.3-101 as modified by section 3(42) of ERISA (the “Plan Asset Regulations”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code, or (ii) (A) the Transferee is acquiring a Note other than a Specified Note, (B) as of the date of the transfer or purchase, the Note is rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (C) the Transferee’s acquisition and holding of the Notes will satisfy the requirements of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (relating to transactions affected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan, will not violate any such similar U.S. federal, state or local law).
8. If the Transferee is acquiring the Notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations, warranties and agreements on behalf of each such account.
All capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Indenture, pursuant to which the Notes were issued.
IN WITNESS WHEREOF, the undersigned has caused this Transferee Certification to be executed by its duly authorized representative as of the day and year first above written.
| [TRANSFEREE] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit B-1-7
Annex A1 to Exhibit B-1
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”), because (a) the Transferee owned and/or invested on a discretionary basis at least $ in securities [Note to reviewer - the amount in the previous blank must be at least $100,000,000 unless the Transferee is a dealer, in which case the amount filled in the previous blank must be at least $10,000,000.] (except for the excluded securities referred to in paragraph 3 below) as of [specify a date on or since the end of the Transferee’s most recently ended fiscal year] (such amount being calculated in accordance with Rule 144A) and (b) the Transferee meets the criteria listed in the category marked below.
| ¨ | Corporation, etc. The Transferee is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, a corporation (other than a bank as defined in Section 3(a)(2) of the 1933 Act or a savings and loan association or other similar institution referenced in Section 3(a)(5)(A) of the Act), a partnership, or a Massachusetts or similar business trust. |
| ¨ | Bank. The Transferee (a) is a national bank or banking institution as defined in Section 3(a)(2) of the 1933 Act and is organized under the laws of a state, territory or the District of Columbia. The business of the Transferee is substantially confined to banking and is supervised by the appropriate state or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements as of a date not more than 16 months preceding the date of this certification in the case of a U.S. bank, and not more than 18 months preceding the date of this certification in the case of a foreign bank or equivalent institution, a copy of which financial statements is attached hereto. |
| ¨ | Savings and Loan. The Transferee is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution referenced in Section 3(a)(5)(A) of the 1933 Act. The Transferee is supervised and examined by a state or federal authority having supervisory authority over any such institutions or is a foreign savings and loan association or equivalent institution and has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements as of a date not more than 16 months preceding the date of this certification in the case of a U.S. savings and loan association or similar institution, and not more than 18 months preceding the date of this certification in the case of a foreign savings and loan association or equivalent institution, a copy of which financial statements is attached hereto. |
Exhibit B-1-8
| ¨ | Broker-dealer. The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “1934 Act”). |
| ¨ | Insurance Company. The Transferee is an insurance company as defined in Section 2(13) of the 1933 Act, whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a state, territory or the District of Columbia. |
| ¨ | State or Local Plan. The Transferee is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees. |
| ¨ | ERISA Plan. The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended. |
| ¨ | Investment Adviser. The Transferee is an investment adviser registered under the Investment Advisers Act of 1940, as amended. |
| ¨ | Other. The Transferee qualifies as a “qualified institutional buyer” as defined in Rule 144A on the basis of facts other than those listed in any of the entries above. If this response is marked, the Transferee must certify on additional pages, to be attached to this certification, to facts that satisfy the Servicer that the Transferee is a “qualified institutional buyer” as defined in Rule 144A. |
3. The term “securities” as used herein does not include (a) securities of issuers that are affiliated with the Transferee, (b) securities constituting the whole or part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (c) bank deposit notes and certificates of deposit, (d) loan participations, (e) repurchase agreements, (f) securities owned but subject to a repurchase agreement and (g) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of such securities to the Transferee and did not include any of the securities referred to in the preceding paragraph. Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction. However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Notes are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be made in reliance on Rule 144A.
Exhibit B-1-9
| ¨ | ¨ | |||||
| 6. | Will the Transferee be purchasing the Notes only for the Transferee’s own account? | YES | NO |
If the answer to the foregoing question is “NO”, the Transferee agrees that, in connection with any purchase of securities sold to the Transferee for the account of a third party (including any separate account) in reliance on Rule 144A, the Transferee will only purchase for the account of a third party that at the time is a “qualified institutional buyer” within the meaning of Rule 144A. In addition, the Transferee agrees that the Transferee will not purchase securities for a third party unless the Transferee has obtained a current representation letter from such third party or taken other appropriate steps contemplated by Rule 144A to conclude that such third party independently meets the definition of “qualified institutional buyer” set forth in Rule 144A.
The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Transferee’s purchase of the Notes will constitute a reaffirmation of this certification as of the date of such purchase. In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties updated annual financial statements promptly after they become available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed by its duly authorized representative this day of , .
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| Date: |
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Exhibit B-1-10
Annex A2 to Exhibit B-1
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial Officer or Senior Vice President of the entity purchasing the Notes (the “Transferee”) or, if the Transferee is part of a Family of Investment Companies (as defined in paragraph 3 below), is an officer of the related investment adviser (the “Adviser”).
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”), because (a) the Transferee is an investment company (a “Registered Investment Company”) registered under the Investment Company Act of 1940, as amended (the “1940 Act”) and (b) as marked below, the Transferee alone, or the Transferee’s Family of Investment Companies, owned at least $ [Note to reviewer - the amount in the previous blank must be at least $100,000,000] in securities (other than the excluded securities referred to in paragraph 4 below) as of [specify a date on or since the end of the Transferee’s most recently ended fiscal year]. For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities to the Transferee or the Transferee’s Family of Investment Companies was used.
| ¨ | The Transferee owned $ in securities (other than the excluded securities referred to in paragraph 4 below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
| ¨ | The Transferee is part of a Family of Investment Companies which owned in the aggregate $ in securities (other than the excluded securities referred to in paragraph 4 below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
3. The term “Family of Investment Companies” as used herein means two or more Registered Investment Companies except for a unit investment trust whose assets consist solely of shares of one or more Registered Investment Companies (provided that each series of a “series company,” as defined in Rule 18f-2 under the 1940 Act, shall be deemed to be a separate investment company) that have the same investment adviser (or, in the case of a unit investment trust, the same depositor) or investment advisers (or depositors) that are affiliated (by virtue of being majority-owned subsidiaries of the same parent or because one investment adviser is a majority-owned subsidiary of the other).
4. The term “securities” as used herein does not include (a) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (b) bank deposit notes and certificates of deposit, (c) loan participations, (d) repurchase agreements, (e) securities owned but subject to a repurchase agreement and (f) currency, interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A. In addition, the Transferee will only purchase for the Transferee’s own account.
Exhibit B-1-11
6. The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice, the Transferee’s purchase of the Purchased Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed by its duly authorized representative this of , .
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[Print Name of Transferee] |
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Date:
Exhibit B-1-12
Exhibit B-2
FORM OF TRANSFEREE CERTIFICATE FOR TRANSFER OF NOTES PURSUANT
TO REGULATION S
[Transferee to Receive Regulation S Note]
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
Re: $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class
Exhibit B-2-1
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[NOTE: COMPLETE [A] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE DURING THE DISTRIBUTION COMPLIANCE PERIOD. COMPLETE [B] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE. COMPLETE [C] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE. COMPLETE [D] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A REGULATION S DEFINITIVE NOTE. COMPLETE [E] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE. COMPLETE [F] FOR A TRANSFER OF AN INTEREST IN REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE. COMPLETE [G] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A REGULATION S DEFINITIVE NOTE.]
[A] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[B] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
Exhibit B-2-2
[C] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”) . The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee” ) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[D] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[E] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[F] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[G] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested of such beneficial interest in the Notes for Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture and the Notes, and that:
(i) the offer of the Notes was not made to a person in the United States;
(ii) at the time the buy order was originated, the Transferee was outside the United States or the Transfer and any person acting on its behalf reasonably believed that the Transferee was outside the United States
(iii) no directed selling efforts have been made in contravention of the requirements of Rule 903 or 904 of Regulation S, as applicable;
Exhibit B-2-3
(iv) the transaction is not part of a plan or scheme to evade the registration requirements of the United States Securities Act of 1933, as amended (the “Securities Act”); and
(v) the Transferee is not a U.S. Person.
If the Transferor is the Noteholder of a Regulation S Note (or an interest therein) and intends to transfer such Note (or such interest) to the Transferee taking delivery of such Note (or such interest) in the form of a Restricted Note (or interest therein), the Transferor hereby certifies that the transfer is being made after the end of the Distribution Compliance Period.
Exhibit B-2-4
The certificate and the statements contained herein are made for your benefit.
[INSERT NAME OF TRANSFEROR]
| By: |
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| Name: | ||
| Title: |
Dated:
Exhibit B-2-5
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
Re: $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit B-2-6
The undersigned (the “Transferee”) intends to purchase $ Note Balance of Class Notes (the “Notes”) from the Transferor named in the Transfer Certificate to which this Transferee Certification is attached. In connection with the registration of the transfer of such Notes, the Transferee hereby executes and delivers to each of you this “Transferee Certification” in which the Transferee certifies to each of you the information set forth herein.
1. The Transferee (i) is acquiring such Notes in an offshore transaction in accordance with Rule 904 of Regulation S, (ii) is acquiring such Notes for its own account, (iii) is not acquiring, and has not entered into any discussions regarding its acquisition of, such Notes while it is in the United States of America or any of its territories or possessions, (iv) understands that such Notes are being sold without registration under the Securities Act by reason of an exemption that depends, in part, on the accuracy of these representations, (v) understands that such Notes may not, absent an applicable exemption, be transferred without registration and/or qualification under the Securities Act and applicable state securities laws and the laws of any other applicable jurisdiction and (vi) understands that prior to the end of the Distribution Compliance Period, interests in a Regulation S Note may only be held through Euroclear or Clearstream.
2. The Transferee understands that the Notes have not been registered under the Securities Act and, therefore, cannot be offered or sold in the United States or to U.S. Persons (as defined in Rule 902(k) promulgated under the Securities Act) unless they are registered under the Securities Act or unless an exemption from registration is available. Accordingly, the certificates representing the Notes will bear a legend stating that the Notes have not been registered under the Securities Act and setting forth certain of the restrictions on transfer of the Notes. The Transferee understands that the Issuer has no obligation to register the Notes under the Securities Act or to comply with the requirements for any exemption from the registration requirements of the Securities Act.
3. The Transferee understands that the Notes (or any interest therein) may be resold, pledged or transferred only (a) to a person whom the Transferee reasonably believes after due inquiry is, and who has certified that it is, a “qualified institutional buyer” (a “QIB”) that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (b) to a transferee that is a non-U.S. Person acquiring such interest in an “offshore transaction” (as defined in Regulation S) in compliance with the provisions of Regulation S, if the transfer is otherwise made in accordance with any applicable securities laws of any state of the United States or any other relevant jurisdiction. In addition, such transfer may be subject to additional restrictions and is subject to compliance with certain procedures, as set forth in Section 6.5 of the Indenture referred to above.
4. The Transferee has been furnished with all information that it requested regarding (a) the Notes and distributions thereon and (b) the Indenture.
Exhibit B-2-7
5. The Transferee has knowledge in financial and business matters and is capable of evaluating the merits and risks of an investment in the Notes; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee (or any account or which it is pursuing) is able to bear the economic risk of an investment in the Notes and can afford a complete loss of such investment.
6. [For Notes other than Specified Notes (unless otherwise specified in the related Supplement)] Either (i) the Transferee is not, and is not acquiring the Notes on behalf of or with assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by section 3(42) of ERISA (the “Plan Asset Regulations”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code, or (ii) (A) as of the date of the transfer or purchase, the Note is rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (B) the Transferee’s acquisition and holding of the Notes will satisfy the requirements of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (relating to transactions affected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan, will not violate any such similar U.S. federal, state or local law). [For Specified Notes (unless otherwise specified in the related Supplement)] The Transferee is not, and is not acquiring the Notes on behalf of or with assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by section 3(42) of ERISA, which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code.
All capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Indenture, pursuant to which the Notes were issued.
Exhibit B-2-8
IN WITNESS WHEREOF, the undersigned has caused this Transferee Certification to be executed by its duly authorized representative as of the day and year first above written.
| [TRANSFEREE] | ||||
| By: | ||||
| Name: |
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| Title: |
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Exhibit B-2-9
Exhibit C
Form of Notice to MBS Trustee/Notice of Assignment of Receivables
Exhibit C-1
Exhibit D
AGREED UPON PROCEDURES
Please see Exhibit 1 to the Verification Agent Engagement Letter, dated as of December 17,
2013 among PricewaterhouseCoopers LLP and Nationstar Mortgage LLC and acknowledged by
the Administrative Agent in a related Acknowledgement Letter
Exhibit D-1
Exhibit E
FORM OF ADDITIONAL TRANSFEREE CERTIFICATION REQUIRED UNDER
SECTION 6.5(M) OF THE INDENTURE
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the
Exhibit E-1
respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned (the “Transferee”) intends to purchase a beneficial interest in a Class 1 Specified Note representing $ principal balance of a Class 1 Specified Note from [the Transferor named in the Transfer Certificate to which this Transferee Certification is attached]. In connection with the transfer of such beneficial interest in a Class 1 Specified Note (the “Transfer”), the Transferee does hereby certify that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under the Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 1 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 1 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any or beneficial interest in the Class 1 Specified Note and it will not cause any beneficial interest in the Class 1 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof),” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 1 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture, and it does not and will not hold any beneficial interest in the Class 1 Specified Note on behalf of any Person whose beneficial interest in the Class 1 Specified Note is in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 1 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in a Class 1 Specified Note would be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture.
Exhibit E-2
(iv) It will not transfer any beneficial interest in the Class 1 Specified Note ( directly, through a participation thereof, or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit E of the Indenture.
(v) It will not use the Class 1 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is a Class 1 Specified Note, provided the terms of such repurchase transaction are generally consistent with prevailing market practice.
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) The Transferee understands that tax counsel to the Trust has provided an opinion substantially to the effect that the Trust will not be taxable as a corporation for U.S. federal income tax purposes and that the validity of such opinion is dependent in part on the accuracy of the representations herein.
(viii) This Transferee Certification has been duly executed and delivered and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the enforcement of creditors’ rights generally and general principles of equity, and indemnification sought in respect of securities laws violations may be limited by public policy.
(ix) It acknowledges that the Depositor, the Issuer, the Trustee, the Note Registrar and others will rely on the truth and accuracy of the foregoing representations and warranties, and agrees that if it becomes aware that any of the foregoing made by it or deemed to have been made by it are no longer accurate, it shall promptly notify the Issuer.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT ANY TRANSFER TO OR BY THE UNDERSIGNED IN VIOLATION OF ANY OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO OR BY THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, THE NOTE REGISTRAR OR ANY OTHER PERSON.
Exhibit E-3
| [TRANSFEREE] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit E-4
Exhibit F
FORM OF ADDITIONAL TRANSFEREE CERTIFICATION REQUIRED UNDER
SECTION 6.5(N) OF THE INDENTURE
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust BC | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | ||
| Subservicer | Nationstar Mortgage LLC | |
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | ||
| Administrator | Advance Purchaser LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor BC, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC | ||
Reference is hereby made to the Amended and Restated Indenture (as may be amended from time to time, the “Indenture”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on
Exhibit F-1
and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and Barclays Bank PLC, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned (the “Transferee”) intends to purchase a beneficial interest in a Class 2 Specified Note representing $ principal balance of a Class 2 Specified Note from [the Transferor named in the Transfer Certificate to which this Transferee Certification is attached]. In connection with the transfer of such beneficial interest in a Class 2 Specified Note (the “Transfer”), the Transferee does hereby certify that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under the Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 2 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 2 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any or beneficial interest in the Class 2 Specified Note and it will not cause any beneficial interest in the Class 2 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof),” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 2 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture, and it does not and will not hold any beneficial interest in the Class 2 Specified Note on behalf of any Person whose beneficial interest in the Class 2 Specified Note is in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 2 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in a Class 2 Specified Note would be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture.
Exhibit F-2
(iv) It will not transfer any beneficial interest in the Class 2 Specified Note ( directly, through a participation thereof, or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit F of the Indenture.
(v) It will not use the Class 2 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is a Class 2 Specified Note, provided the terms of such repurchase transaction are generally consistent with prevailing market practice.
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) It is a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code and will not transfer to, or cause such Class 2 Specified Note to be transferred to, any person other than a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code.
(viii) The Transferee understands that tax counsel to the Trust has provided an opinion substantially to the effect that the Trust will not be taxable as a corporation for U.S. federal income tax purposes and that the validity of such opinion is dependent in part on the accuracy of the representations herein.
(ix) This Transferee Certification has been duly executed and delivered and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the enforcement of creditors’ rights generally and general principles of equity, and indemnification sought in respect of securities laws violations may be limited by public policy.
(x) It acknowledges that the Depositor, the Issuer, the Trustee, the Note Registrar and others will rely on the truth and accuracy of the foregoing representations and warranties, and agrees that if it becomes aware that any of the foregoing made by it or deemed to have been made by it are no longer accurate, it shall promptly notify the Issuer.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT ANY TRANSFER TO OR BY THE UNDERSIGNED IN VIOLATION OF ANY OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO OR BY THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, THE NOTE REGISTRAR OR ANY OTHER PERSON.
Exhibit F-3
| [TRANSFEREE] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit F-4
Exhibit G-1
Authorized Representatives of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
|
Mark DeFabio, |
/s/ Mark DeFabio |
|
|
Vice President |
||
|
Leon Costello, |
/s/ Leon Costello |
|
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Assistant Vice President |
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Kristen Ann Cronin, |
/s/ Kristen Ann Cronin |
|
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Vice President |
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Exhibit G-1
Exhibit G-2
Authorized Representatives of the Servicer
Authorized Representatives of Nationstar Mortgage LLC
|
Name: |
Title: |
Signature: |
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| Ellen Coleman | Executive Vice President |
/s/ Ellen Coleman |
Exhibit G-2
Exhibit G-3
Authorized Representatives of the Administrative Agent
Authorized Representatives of Barclays Bank PLC
|
Name: |
Title: |
Signature: |
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| Martin Attea | Managing Director |
/s/ Martin Attea |
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| Joseph O’Doherty | Managing Director | /s/ Joseph O’Doherty |
Exhibit G-3
Exhibit G-4
Authorized Representatives of the Issuer
EXHIBIT A
|
Name |
Office |
Signature |
||
| William J. Farrell |
Executive Vice President |
/s/ William J. Farrell |
||
| John M. Beeson, Jr. |
Senior Vice President |
/s/ John M. Beeson, Jr. |
||
| Cynthia L. Corliss |
Senior Vice President |
/s/ Cynthia L. Corliss |
||
| Patrick Trainor |
Senior Vice President |
/s/ Patrick Trainor |
||
| Daniel R. Fisher |
Group Vice President |
/s/ Daniel R. Fisher |
||
| Stefanie A. Armijo |
Administrative Vice President |
/s/ Stefanie A. Armijo |
||
| Nadine L. Black |
Administrative Vice President |
/s/ Nadine L. Black |
||
| Robert D. Brown |
Administrative Vice President |
/s/ Robert D. Brown |
||
| John A. Hayes, III |
Administrative Vice President |
/s/ John A. Hayes, III |
||
| Timothy Mowdy |
Administrative Vice President |
/s/ Timothy Mowdy |
||
| Joseph L. Nardi |
Administrative Vice President |
/s/ Joseph L. Nardi |
||
| Sandra R. Ortiz |
Administrative Vice President |
/s/ Sandra R. Ortiz |
||
| Mary Kay Pupillo |
Administrative Vice President |
/s/ Mary Kay Pupillo |
||
| Nicholas D. Tally |
Administrative Vice President |
/s/ Nicholas D. Tally |
||
| Nicholas A. Adams |
Vice President |
/s/ Nicholas A. Adams |
||
| Adnan Ahmad |
Vice President |
/s/ Adnan Ahmad |
Exhibit G-4-1
|
Mary Alice Avery |
Vice President | /s/ Mary Alice Avery | ||
|
Joseph Baker |
Vice President | /s/ Joseph Baker | ||
|
Adam K. Berman |
Vice President | /s/ Adam K. Berman | ||
|
Robert H. Bockrath, II |
Vice President | /s/ Robert H. Bockrath, II | ||
|
Brian Buchanan |
Vice President | /s/ Brian Buchanan | ||
|
Steven M. Cimalore |
Vice President | /s/ Steven M. Cimalore | ||
|
Joseph Clark |
Vice President | /s/ Joseph Clark | ||
|
James C. Deitrick |
Vice President | /s/ James C. Deitrick | ||
|
Patrick J. Donahue |
Vice President | /s/ Patrick J. Donahue | ||
|
Robert J. Donaldson |
Vice President | /s/ Robert J. Donaldson | ||
|
Patricia A. Evans |
Vice President | /s/ Patricia A. Evans | ||
|
Joseph B. Feil |
Vice President | /s/ Joseph B. Feil | ||
|
Kenneth A. Feinfield |
Vice President | /s/ Kenneth A. Feinfield | ||
|
Robert C. Fiedler |
Vice President | /s/ Robert C. Fiedler | ||
|
Peter F. Finkel |
Vice President | /s/ Peter F. Finkel | ||
|
Nancy L. George |
Vice President | /s/ Nancy L. George | ||
|
Nancy D. Gray |
Vice President | /s/ Nancy D. Gray |
Exhibit G-4-2
|
Douglas Grochowski |
Vice President | /s/ Douglas Grochowski | ||
|
Jared J. Grunig |
Vice President | /s/ Jared J. Grunig | ||
|
Daniel G. Hamilton |
Vice President | /s/ Daniel G. Hamilton | ||
|
Donald C. Hargadon |
Vice President | /s/ Donald C. Hargadon | ||
|
Gregory Hasty |
Vice President | /s/ Gregory Hasty | ||
|
Pamela Hazelip |
Vice President | /s/ Pamela Hazelip | ||
|
Charles Hicks |
Vice President | /s/ Charles Hicks | ||
|
Garry Hills |
Vice President | /s/ Garry Hills | ||
|
Rex F. Hood |
Vice President | /s/ Rex F. Hood | ||
|
Rebecca L. Howell |
Vice President | /s/ Rebecca L. Howell | ||
|
Nancy James |
Vice President | /s/ Nancy James | ||
|
Tira L. Johnson |
Vice President | /s/ Tira L. Johnson | ||
|
Jeffrey Kassels |
Vice President | /s/ Jeffrey Kassels | ||
|
Eleanor D. Kress |
Vice President | /s/ Eleanor D. Kress | ||
|
Renee A. Kuhl |
Vice President | /s/ Renee A. Kuhl | ||
|
Richard F. Klumpp |
Vice President | /s/ Richard F. Klumpp | ||
|
Ronald J. Kruppa |
Vice President | /s/ Ronald J. Kruppa |
Exhibit G-4-3
| Baron W. Legault | Vice President |
/s/ Baron W. Legault |
||
| Camilla J. Lindsey | Vice President |
/s/ Camilla J. Lindsey |
||
| Larry R. Long | Vice President |
/s/ Larry R. Long |
||
| Jennifer A. Luce | Vice President |
/s/ Jennifer A. Luce |
||
| Roseline K. Maney | Vice President |
/s/ Roseline K. Maney |
||
| Victoria L. Manrique | Vice President |
/s/ Victoria L. Manrique |
||
| Jeanie Mar | Vice President |
/s/ Jeanie Mar |
||
| Jennifer E. Matz | Vice President |
/s/ Jennifer E. Matz |
||
| Frank W. McDonald | Vice President |
/s/ Frank W. McDonald |
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| Aaron G. McManus | Vice President |
/s/ Aaron G. McManus |
||
| Alphonse C. Miller | Vice President |
/s/ Alphonse C. Miller |
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| Boyd S. Minnix | Vice President |
/s/ Boyd S. Minnix |
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| Dante M. Monakil | Vice President |
/s/ Dante M. Monakil |
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| Christopher J. Monigle | Vice President |
/s/ Christopher J. Monigle |
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| Kimberlee A. Montana | Vice President |
/s/ Kimberlee A. Montana |
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| W. Thomas Morris, II | Vice President |
/s/ W. Thomas Morris, II |
||
| John Mulvena | Vice President |
/s/ John Mulvena |
Exhibit G-4-4
| Joseph P. O’Donnell | Vice President | /s/ Joseph P. O’Donnell | ||
| Jeanne M. Oller | Vice President | /s/ Jeanne M. Oller | ||
| Michael W. Orendorf | Vice President | /s/ Michael W. Orendorf | ||
| Robert J. Perkins | Vice President | /s/ Robert J. Perkins | ||
| Jolene Perry | Vice President | /s/ Jolene Perry | ||
| Margaret Pulgini | Vice President | /s/ Margaret Pulgini | ||
| Miguel Rodriguez | Vice President | /s/ Miguel Rodriguez | ||
| Jeffery Rose | Vice President | /s/ Jeffery Rose | ||
| Joann A. Rozell | Vice President | /s/ Joann A. Rozell | ||
| Erik L. Saville | Vice President | /s/ Erik L. Saville | ||
| Robert Sher | Vice President | /s/ Robert Sher | ||
| Jane Y. Schweiger | Vice President | /s/ Jane Y. Schweiger | ||
| W. Chris Sponenberg | Vice President | /s/ W. Chris Sponenberg | ||
| Christopher J. Slaybaugh | Vice President | /s/ Christopher J. Slaybaugh | ||
| Jay Smith IV | Vice President | /s/ Jay Smith IV | ||
| Aaron Soper | Vice President | /s/ Aaron Soper | ||
| Mary C. St. Amand | Vice President | /s/ Mary C. St. Amand |
Exhibit G-4-5
| Lynn Mary Steiner | Vice President |
/s/ Lynn Mary Steiner |
||
| Mary Alice Stopyra | Vice President |
/s/ Mary Alice Stopyra |
||
| Boris Treyger | Vice President |
/s/ Boris Treyger |
||
| David A. Vanaskey, Jr. | Vice President |
/s/ David A. Vanaskey, Jr. |
||
| Heather K. Vander Linden | Vice President |
/s/ Heather K. Vander Linden |
||
| Mindy Walser | Vice President |
/s/ Mindy Walser |
||
| Andrew Wassing | Vice President |
/s/ Andrew Wassing |
||
| Steven J. Wattie | Vice President |
/s/ Steven J. Wattie |
||
| Raymond H. Werkmeister, III | Vice President |
/s/ Raymond H. Werkmeister, III |
||
| Michelle M. Wojciechowicz | Vice President |
/s/ Michelle M. Wojciechowicz |
||
| Anita R. Woolery | Vice President |
/s/ Anita R. Woolery |
||
| Patrick J. Wood | Vice President |
/s/ Patrick J. Wood |
||
| Brooks Von Arx, Jr. | Vice President |
/s/ Brooks Von Arx, Jr. |
||
| David B. Young | Vice President |
/s/ David B. Young |
||
| M. Anthony Argenio | Assistant Vice President |
/s/ M. Anthony Argenio |
||
| Maureen A. Auld | Assistant Vice President |
/s/ Maureen A. Auld |
Exhibit G-4-6
| Steven M. Barone | Assistant Vice President | /s/ Steven M. Barone | ||
| Julie Ann Black | Assistant Vice President | /s/ Julie Ann Black | ||
| Mark H. Brzoska | Assistant Vice President | /s/ Mark H. Brzoska | ||
| Drew H. Davis | Assistant Vice President | /s/ Drew H. Davis | ||
| Colin M. Casner | Assistant Vice President | /s/ Colin M. Casner | ||
| Dorri Costello | Assistant Vice President | /s/ Dorri Costello | ||
| Karin W. Cranz | Assistant Vice President | /s/ Karin W. Cranz | ||
| Sandra V. Ferreyra | Assistant Vice President | /s/ Sandra V. Ferreyra | ||
| Diane C. Gibellino | Assistant Vice President | /s/ Diane C. Gibellino | ||
| Gregory Golden | Assistant Vice President | /s/ Gregory Golden | ||
| Bethany L. Gould | Assistant Vice President | /s/ Bethany L. Gould | ||
| Michael J. Grillo | Assistant Vice President | /s/ Michael J. Grillo | ||
| Robert P. Hines, Jr. | Assistant Vice President | /s/ Robert P. Hines, Jr. | ||
| Yvette L. Howell | Assistant Vice President | /s/ Yvette L. Howell | ||
| Joshua G. James | Assistant Vice President | /s/ Joshua G. James |
Exhibit G-4-7
| Jason Johnson | Assistant Vice President | /s/ Jason Johnson | ||
| June T. Jones | Assistant Vice President | /s/ June T. Jones | ||
| Geoffrey J. Lewis | Assistant Vice President | /s/ Geoffrey J. Lewis | ||
| Virginia Machamer | Assistant Vice President | /s/ Virginia Machamer | ||
| Melissa A. Marion | Assistant Vice President | /s/ Melissa A. Marion | ||
| Venus L. Matson | Assistant Vice President | /s/ Venus L. Matson | ||
| Chad May | Assistant Vice President | /s/ Chad May | ||
| Michael G. Oller, Jr. | Assistant Vice President | /s/ Michael G. Oller, Jr. | ||
| Erik Overcash | Assistant Vice President | /s/ Erik Overcash | ||
| Jose L. Paredes | Assistant Vice President | /s/ Jose L. Paredes | ||
| Prital K. Patel | Assistant Vice President | /s/ Prital K. Patel | ||
| Rita Marie Ritrovato | Assistant Vice President | /s/ Rita Marie Ritrovato | ||
| Kristin L. Schillinger | Assistant Vice President | /s/ Kristin L. Schillinger | ||
| Adam Scozzafava | Assistant Vice President | /s/ Adam Scozzafava | ||
| Rachel L. Simpson | Assistant Vice President | /s/ Rachel L. Simpson | ||
| David W. Snyder | Assistant Vice President | /s/ David W. Snyder |
Exhibit G-4-8
| Jacqueline E. Solone | Assistant Vice President | /s/ Jacqueline E. Solone | ||
| Erwin Soriano | Assistant Vice President | /s/ Erwin Soriano | ||
| Dara L. Sowden | Assistant Vice President | /s/ Dara L. Sowden | ||
| Joan H. Stapley | Assistant Vice President | /s/ Joan H. Stapley | ||
| Joseph M. Still | Assistant Vice President | /s/ Joseph M. Still | ||
| Stephen R. Sturgeon | Assistant Vice President | /s/ Stephen R. Sturgeon | ||
| Adam R. Vogelsong | Assistant Vice President | /s/ Adam R. Vogelsong | ||
| Michael H. Wass | Assistant Vice President | /s/ Michael H. Wass | ||
| Farrah F. Welsh | Assistant Vice President | /s/ Farrah F. Welsh | ||
| Russell T. Whitley | Assistant Vice President | /s/ Russell T. Whitley | ||
| Alecia Anderson | Banking Officer | /s/ Alecia Anderson | ||
| Jennifer K. Anderson | Banking Officer | /s/ Jennifer K. Anderson | ||
| Mark E. Bermingham | Banking Officer | /s/ Mark E. Bermingham | ||
| Stevie Blackston | Banking Officer | /s/ Stevie Blackston | ||
| Alisha M. Clendaniel | Banking Officer | /s/ Alisha M. Clendaniel |
Exhibit G-4-9
| Artis B. Cummings | Banking Officer | /s/ Artis B. Cummings | ||
| Kevin M. Ebert | Banking Officer | /s/ Kevin M. Ebert | ||
| Hallie Field | Banking Officer | /s/ Hallie Field | ||
| Nancy E. Hagner | Banking Officer | /s/ Nancy E. Hagner | ||
| Donald Haverstick | Banking Officer | /s/ Donald Haverstick | ||
| Robin D. Henry | Banking Officer | /s/ Robin D. Henry | ||
| Joshua C. Jones | Banking Officer | /s/ Joshua C. Jones | ||
| Irene A. Lennon | Banking Officer | /s/ Irene A. Lennon | ||
| Meghan H. McCauley | Banking Officer | /s/ Meghan H. McCauley | ||
| Jon M. McDowell | Banking Officer | /s/ Jon M. McDowell | ||
| Marco Medina | Banking Officer | /s/ Marco Medina | ||
| Sally M. Molina | Banking Officer | /s/ Sally M. Molina | ||
| Melinda Morales | Banking Officer | /s/ Melinda Morales | ||
| J. Christopher Murphy | Banking Officer | /s/ J. Christopher Murphy | ||
| Susan T. O’Neal | Banking Officer | /s/ Susan T. O’Neal |
Exhibit G-4-10
| Zdravka S. Panchev | Banking Officer | /s/ Zdravka S. Panchev | ||
| Ruth K. Shiffler | Banking Officer | /s/ Ruth K. Shiffler | ||
| Jennifer L. Wieszcholek | Banking Officer | /s/ Jennifer L. Wieszcholek |
Exhibit G-4-11
Exhibit G-5
Authorized Representatives of the Administrator
Authorized Representatives of Advance Purchaser LLC
|
Name: |
Title: |
Signature: |
||
| Cameron MacDougall | Secretary |
/s/ Cameron MacDougall |
Exhibit G-5
Exhibit H
Disclaimer
[INSERT DATE NO LATER THAN 30 DAYS PRIOR TO THE PROPOSED FUNDING DATE WITH RESPECT TO ANY DEFERRED SERVICING FEE RECEIVABLES]
Re: Nationstar Mortgage LLC - Current and Future Excess Spread Agreements
Reference is hereby made to: (i) the Current Excess Spread Agreements listed on Schedule I hereto (the “ Current Spread Agreements ”), between Nationstar Mortgage LLC (“ Nationstar ”) and the Purchasers listed on Schedule I (each, a “ Purchaser ”), (ii) the Future Spread Agreements listed on Schedule I hereto (the “ Future Spread Agreements ” and together with the Current Spread Agreements, the “ Spread Agreements ”), between Nationstar and the Purchasers and (iii) the Receivables Sale Agreement listed on Schedule II hereto (the “Sale Agreement”) between Nationstar, Advance Purchaser LLC (“ Advance Purchaser ”) and the Depositor listed on Schedule II hereto. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Sale Agreement.
Pursuant to the Spread Agreements, Nationstar has sold the Current Excess Servicing Spread (as defined therein) and has sold and will sell on an ongoing basis Future Excess Servicing Spread (as defined therein and, together with the Current Excess Servicing Spread, the “Excess Spread”) relating to the Mortgage Loans (as defined therein) to the applicable Purchaser.
Pursuant to the Sale Agreement, Nationstar (prior to the Effective Date) and Advance Purchaser (on or after the Effective Date) has sold and/or contributed and will continue to sell and/or contribute on an ongoing basis, among other things, rights to reimbursement for P&I Advances and payment for Deferred Servicing Fee Receivables (as defined in the Sale Agreement) to the applicable Depositor, which has sold and/or contributed and will continue to sell and/or contribute on an ongoing basis such rights to reimbursement for P&I Advances and Deferred Servicing Fee Receivables to the “Issuer” referenced in the Sale Agreement (the “Issuer”). The Issuer has pledged such rights to reimbursement for P&I Advances and Deferred Servicing Fee Receivables to an Indenture Trustee on behalf of certain noteholders.
Exhibit H-1
Pursuant to the Spread Agreements, the monthly servicing fees received by Nationstar with respect to the Mortgage Loans (the “Servicing Fees”) are deposited into custodial accounts (the “Spread Accounts”) for the purpose of distributing the Excess Spread to the Purchasers and the Base Fees and Retained Servicing Spread (as defined in the Purchase Agreements) to Nationstar. The Servicing Fees deposited into the Spread Accounts are received either from (i) interest payments on the Mortgage Loans or (ii) interest advances made by Nationstar in its capacity as servicer of the Mortgage Loans . Upon deposit into the Spread Account of monthly Servicing Fees that are received from interest advances made by Nationstar, such Servicing Fee is converted into a P&I Advance (which may be accounted for, for administrative convenience for Nationstar, as a Deferred Servicing Fee Receivable and not a P&I Advance in connection with any reporting with any applicable counterparty to any applicable Designated Servicing Agreement). Pursuant to the applicable Designated Servicing Agreement, Nationstar is entitled to reimbursement of such P&I Advance and/or payment of such Deferred Servicing Fee Receivable from subsequent payments on the related Mortgage Loan or, subject to certain exceptions, from payments on other Mortgage Loans.
For the avoidance of doubt, Nationstar, each Purchaser and the Depositor hereby acknowledge and agree (on behalf of themselves and their assignees and successors in interest) that the Purchaser has no right, title or interest in any P&I Advances or Deferred Servicing Fee Receivables that have been sold and/or contributed to the Depositor on or prior to the date hereof.
This Side Letter may not be amended, nor may any provision hereof be waived or modified, except by an instrument in writing signed by each signatory hereto. This Side Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Side Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
THIS SIDE LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each party hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Side Letter or the transactions contemplated hereby or the actions of the parties hereto in the negotiation, performance or enforcement hereof.
[Signature Pages Follow]
Exhibit H-2
Agreed and Accepted as of the Date First Above Written:
Exhibit H-3
Schedule I
[PURCHASE AGREEMENTS]
Exhibit H-4
SCHEDULE II
SALE AGREEMENT(S)
Amended and Restated Receivables Sale Agreement dated as of December 17, 2013 between Nationstar Mortgage LLC, as initial receivables seller (prior to the respective MSR Transfer Dates) and as servicer (prior to the respective MSR Transfer Dates), [ ], as receivables seller (on and after the respective MSR Transfer Dates) and as servicer (on and after the respective MSR Transfer Dates), and NRZ Servicer Advance Facility Transferor BC, LLC, as depositor.
Exhibit H-5
Exhibit I
NOTICE OF TRANSFER OF MORTGAGE SERVICING RIGHTS
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services, Nationstar Servicer Advances Receivables Trust 2013-BC
Re: NATIONSTAR SERVICER ADVANCES RECEIVABLES TRUST 2013-BC
On , 20 (the “ MSR Transfer Date ”), Nationstar Mortgage LLC (“ Nationstar ”) sold to Advance Purchaser LLC (“ Advance Purchaser ”) all of the servicing rights and obligations of Nationstar under the Designated Servicing Agreements set forth on Schedule A attached hereto (the “ MSR Transfer ”).
All required consents and rating agency letters required under such Designated Servicing Agreements for the MSR Transfer were obtained on or before the MSR Transfer Date.
| NATIONSTAR MORTGAGE LLC | ||
|
By: |
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|
Name: |
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|
Title: |
||
|
[_________________________] |
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By: |
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|
Name: |
||
|
Title: |
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Exhibit I-1
Schedule A to Notice of Transfer of Mortgage Servicing Rights
Exhibit I-2
Exhibit 4.2
EXECUTION COPY
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as a Subservicer and as Servicer (prior to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
and
BARCLAYS BANK PLC,
as Administrative Agent
and consented to by
BARCLAYS BANK PLC
and
SHEFFIELD RECEIVABLES CORPORATION
SERIES 2013-VF1
AMENDED AND RESTATED INDENTURE SUPPLEMENT
Dated as of December 17, 2013
to
AMENDED AND RESTATED INDENTURE
Dated as of December 17, 2013
ADVANCE RECEIVABLES BACKED NOTES,
SERIES 2013-VF1
T ABLE OF C ONTENTS
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P AGE |
||||||
| S ECTION 1. |
C REATION OF S ERIES 2013-VF1 N OTES . |
2 | ||||
| S ECTION 2. |
D EFINED T ERMS . |
2 | ||||
| S ECTION 3. |
F ORMS OF S ERIES 2013-VF1 N OTES . |
15 | ||||
| S ECTION 4. |
S ERIES R ESERVE A CCOUNT . |
16 | ||||
| S ECTION 5. |
C OLLATERAL V ALUE E XCLUSIONS . |
16 | ||||
| S ECTION 6. |
P AYMENTS ; N OTE B ALANCE I NCREASES ; E ARLY M ATURITY ; O THER A DVANCE R ATE R EDUCTION E VENTS . |
18 | ||||
| S ECTION 7. |
[RESERVED]. |
20 | ||||
| S ECTION 8. |
D ETERMINATION OF N OTE I NTEREST R ATE AND LIBOR. |
20 | ||||
| S ECTION 9. |
I NCREASED C OSTS . |
21 | ||||
| S ECTION 10. |
S ERIES R EPORTS . |
23 | ||||
| S ECTION 11. |
C ONDITIONS P RECEDENT S ATISFIED . |
25 | ||||
| S ECTION 12. |
R EPRESENTATIONS AND W ARRANTIES . |
25 | ||||
| S ECTION 13. |
A MENDMENTS . |
26 | ||||
| S ECTION 14. |
C OUNTERPARTS . |
26 | ||||
| S ECTION 15. |
E NTIRE A GREEMENT . |
26 | ||||
| S ECTION 16. |
L IMITED R ECOURSE . |
26 | ||||
| S ECTION 17. |
O WNER T RUSTEE L IMITATION OF L IABILITY . |
27 | ||||
| S ECTION 18. |
C ONSENT AND A CKNOWLEDGMENT OF A MENDMENTS . |
27 | ||||
- i -
This AMENDED AND RESTATED SERIES 2013-VF1 INDENTURE SUPPLEMENT (this “ Indenture Supplement ”), dated as of December 17, 2013, is made by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST BC, a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, as trustee (the “ Indenture Trustee ”), as calculation agent (the “ Calculation Agent ”), as paying agent (the “ Paying Agent ”) and as securities intermediary (the “ Securities Intermediary ”), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware (“ Advance Purchaser ”), as Administrator on behalf of the Issuer, as owner of the rights associated with the servicing rights under the Designated Servicing Agreements, and, from and after the respective MSR Transfer Dates for each Designated Servicing Agreement, as servicer under such Designated Servicing Agreement, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware (“ Nationstar ”), as a Subservicer, and as servicer for each Designated Servicing Agreement prior to the respective MSR Transfer Dates, and BARCLAYS BANK PLC, a public limited company formed under the laws of England and Wales (“ Barclays ”), as Administrative Agent (as defined below); and consented to by 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes. This Indenture Supplement relates to and is executed pursuant to that certain Amended and Restated Indenture (as amended, supplemented, restated or otherwise modified from time to time, the “ Base Indenture ”) supplemented hereby, dated as of December 17, 2013, among the Issuer, Nationstar, Advance Purchaser, the Administrator, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, and Barclays, as Administrative Agent; and consented to by 100% of the Outstanding Noteholders, all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement being referred to as the “ Indenture ”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture.
PRELIMINARY STATEMENT
The Issuer entered into an Indenture Supplement, dated as of September 19, 2013 (as amended, restated, supplemented or otherwise modified from time to time prior to the Effective Date, the “ Original Supplement ”), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as servicer, and Barclays, as Administrative Agent. Under the Original Supplement, the Issuer duly authorized the issuance of a Series of Notes, the Series 2013-VF1 Notes (the “ Series 2013-VF1 Notes ”).
Pursuant to Section 12.2 of the Base Indenture and Section 13(b) of the Original Supplement, the Issuer, Indenture Trustee, Nationstar and the Administrative Agent, with the prior consent of 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment, at any time and from time to time, upon delivery of an Issuer Tax Opinion, may amend the Original Supplement to amend any provision of the Original Supplement. Pursuant to Section 12.3 of the Base Indenture, the Issuer shall also deliver to the Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “Authorization Opinion”).
As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive the Authorization Opinion and the certificate required by Section 1.3(1) of the Base Indenture and the conditions precedent opinion required by Section 1.3(2) of the Base Indenture, including the corresponding form of documents specified in Section 1.4 of the Base Indenture.
The parties are entering this Indenture Supplement to document the terms of the issuance of the Series 2013-VF1 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time.
Section 1. Creation of Series 2013-VF1 Notes.
The Series 2013-VF1 Notes are known as “NRZ Servicer Advance Receivables Trust BC Advance Receivables Backed Notes, Series 2013-VF1 Notes” and were issued pursuant to the Original Supplement. The Series 2013-VF1 Notes shall not be subordinated to any other Series of Notes. The Series 2013-VF1 Notes were issued in four (4) Classes of Variable Funding Notes (Class A-VF1, Class B-VF1, Class C-VF1 and Class D-VF1) (the “ Series 2013-VF1 Variable Funding Notes ”), with the Initial Note Balances, Maximum VFN Principal Balances, Stated Maturity Dates, Revolving Period, Note Interest Rates, Expected Repayment Dates and other terms as specified in this Indenture Supplement. The Series 2013-VF1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2013-VF1 Notes and all other Series of Notes issued under the Indenture as described therein. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2. Defined Terms.
With respect to the Series 2013-VF1 Notes and in addition to or in replacement for the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“ Acquisition of a Mortgage Originator ” shall mean an acquisition, merger or other business combination of Nationstar resulting in either Nationstar, for so long as Nationstar is the Servicer or the Subservicer, or a Subsidiary of Nationstar, for so long as Nationstar is the Servicer or the Subservicer, (i) becoming affiliated with an originator or servicer of Mortgage Loans or (ii) acquiring a substantial portion of the assets of an originator or servicer of Mortgage Loans, in any case, that, with the passage of time or otherwise (including the incurrence of indebtedness in connection with such acquisition, merger or other business combination), in the reasonable determination of the Administrator (as supported by financial projections and other material information that the Administrative Agent may request in connection with such acquisition, merger or other business combination), would cause any of the following: (x) the Tangible Net Worth of Nationstar to be at any time less than or equal to $400,000,000; or (y) the ratio of the Servicer’s Net Total Indebtedness to Tangible Net Worth at any time to exceed 9:1.
2
“ Administrative Agent ” means, for so long as the Series 2013-VF1 Notes have not been paid in full: (i) with respect to the provisions of this Indenture Supplement, Barclays, or an Affiliate or successor thereto; and (ii) with respect to the provisions of the Base Indenture, and notwithstanding the terms and provisions of any other Indenture Supplement, Barclays, and such other parties as set forth in any other Indenture Supplement, or a respective Affiliate or any respective successor thereto. For the avoidance of doubt, reference to “it” or “its” with respect to the Administrative Agent in the Base Indenture shall mean “them” and “their,” and reference to the singular therein in relation to the Administrative Agent shall be construed as if plural.
“ Advance Rates ” has the meaning assigned to such term in the Pricing Side Letter.
“ Advance Ratio ” means, as of any date of determination with respect to any Designated Servicing Agreement, the ratio (expressed as a percentage), calculated as of the last day of the calendar month immediately preceding the calendar month in which such date occurs, of (i) the Stressed Nonrecoverable Advance Amount of all Mortgage Loans (other than any Mortgage Loans that generate Receivables that are Loan-Level Receivables, any Mortgage Loans that generate Receivables that are Second-Lien Receivables or any Mortgage Loans that are attributable to Small Threshold Servicing Agreements) serviced pursuant to the related Designated Servicing Agreement on such date over (ii) the aggregate monthly scheduled principal and interest payments for the calendar month immediately preceding the calendar month in which such date occurs with respect to all non-delinquent Mortgage Loans serviced pursuant to the related Designated Servicing Agreement.
“ Advance to UPB Ratio ” means, as of any date of determination with respect to any Designated Servicing Agreement, the ratio (expressed as a percentage), of (i) the aggregate dollar amount of Advances as of such date that have not been reimbursed to the Servicer arising under the related Designated Servicing Agreement over (ii) the aggregate unpaid principal balance of all Mortgage Loans that are not Delinquent serviced pursuant to the related Designated Servicing Agreement as of such date.
“ Base Indenture ” has the meaning assigned to such term in the Preamble.
“ Base Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Indenture Supplement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“ Cash Equivalents ” means (a) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of ninety (90) days or less from the date of acquisition and overnight bank deposits of any
3
commercial bank having capital and surplus in excess of $500,000,000 unless otherwise approved by the Administrative Agent in writing in its sole discretion, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven (7) days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within ninety (90) days after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s, (f) securities with maturities of ninety (90) days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or, (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
“ Change of Control ” occurs as to Advance Purchaser if any of the following occur (x) New Residential Investment Corp. (or any Affiliate thereof) or funds under management of Fortress Investment Group Inc. or an Affiliate thereof shall cease to beneficially own and control, directly or indirectly through one or more other intermediate entities, more than 20%, on a fully diluted basis, of the economic and voting interest in the equity interests of Advance Purchaser, (y) New Residential Investment Corp., Fortress Investment Group Inc. or an Affiliate thereof shall cease to be the managing member of Advance Purchaser or (z) Fortress Investment Group Inc. or an Affiliate thereof is no longer the manager of New Residential Investment Corp.
“ Class A-VF1 Variable Funding Notes ” means, the Variable Funding Notes, Class A-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ Class B-VF1 Variable Funding Notes ” means, the Variable Funding Notes, Class B-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ Class C-VF1 Variable Funding Notes ” means, the Variable Funding Notes, Class C-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ Class D-VF1 Variable Funding Notes ” means, the Variable Funding Notes, Class D-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ Commercial Paper Notes ” means the promissory notes issued or to be issued by a Conduit Holder in the United States commercial paper market.
“ Committed Purchaser ” means Barclays Bank PLC, and any successors and assigns in such capacity.
4
“ Conduit Holder ” means Sheffield Receivables Corporation or any other asset-backed commercial paper conduit administered by the Administrative Agent.
“ Corporate Trust Office ” means the principal corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Closing Date are located at (i) for Note transfer purposes, Wells Fargo Center, Sixth and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC, and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust BC.
“ Cost of Funds Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ CRD ” means the Capital Requirements Directive, as amended by Article 122a (effective as of January 1, 2011) and as the same may be further amended, restated or otherwise modified.
“ DBRS ” means DBRS, Inc.
“ Default Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ Delinquent ” means for any Mortgage Loan, any Monthly Payment due thereon is not made by the close of business on the day such Monthly Payment is required to be paid and remains unpaid for more than thirty (30) days.
“ Effective Date ” means December 17, 2013.
“ Eurodollar Disruption Event ” means, with respect to any of the Series 2013-VF1 Variable Funding Notes, any of the following: (i) a good faith determination by any Noteholder of the Series 2013-VF1 Variable Funding Notes that it would be contrary to law or to the directive of any central bank or other Governmental Authority (whether or not having the force of law) for such Noteholder to obtain United States dollars in the London interbank market to fund or maintain any portion of the Note Balances of such Notes during any Interest Accrual Period, (ii) a good faith determination by any Noteholder of the Series 2013-VF1 Variable Funding Notes that the interest rates offered on deposits of United States dollars to such Noteholder in the London interbank market does not accurately reflect the cost to such Noteholder of purchasing, funding or maintaining any portion of the Note Balances of such Notes during any Interest Accrual Period, or (iii) the inability of any Noteholder of the Series 2013-VF1 Variable Funding Notes to obtain United States dollars in the London interbank market to fund or maintain any portion of the Note Balances of such Notes for such Interest Accrual Period.
“ Expected Repayment Date ” has the meaning assigned to such term in the Pricing Side Letter.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the federal funds rates as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H. 15 (519) or any successor or substitute publication selected by the Administrative Agent (or, if such
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day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the rate determined, in the sole opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. (New York City time).
“ Final Judgment Amounts ” means the aggregate dollar amount of any final judgment or judgments for the payment of money in the aggregate that have been rendered against Nationstar by one or more courts, administrative tribunals or other bodies having jurisdiction over them that, in the sole determination of the Administrative Agent, shall have a material adverse effect on Nationstar’s business or operations, and the same has not been discharged (or provision has not been made for such discharge) or bonded, or a stay of execution thereof has not been procured, within sixty (60) days from the date of entry thereof and Nationstar has not, within said period of sixty (60) days, or such longer period during which execution of the same has not been stayed or bonded, appealed therefrom and caused the execution thereof to be stayed during such appeal.
“ Governmental Authority ” means the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the applicable Person.
“ Increased Costs Limit ” means for each Noteholder of a Series 2013-VF1 Variable Funding Note, such Noteholder’s pro rata percentage (based on the Note Balance of such Noteholder’s Series 2013-VF1 Variable Funding Notes) of 0.10% of the average aggregate Note Balance for all Classes of Series 2013-VF1 Variable Funding Notes Outstanding for any twelve-month period.
“ Indebtedness ” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (c) indebtedness of others secured by an Adverse Claim on the Property of such person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such person; (e) obligations of such Person under Capital Lease Obligations; (f) obligations of such Person under repurchase agreements or like arrangements; (g) indebtedness of others guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) indebtedness of general partnerships of which such Person is a general partner; and (j) any other indebtedness of such Person by a note, bond, debenture or similar instrument.
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“ Index ” means, for any Class of the Series 2013-VF1 Notes, One-Month LIBOR, the Cost of Funds Rate or the Base Rate, as specified for such Class in the definition of “Note Interest Rate.”
“ Initial Note Balance ” has the meaning assigned to such term in the Pricing Side Letter.
“ Initial Payment Date ” means October 21, 2013.
“ Interest Accrual Period ” means, for the Series 2013-VF1 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date with respect to any Class, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2013-VF1 Notes on any Payment Date shall be determined based on the actual number of days in the Interest Accrual Period.
“ Interest Day Count Convention ” means with respect the Series 2013-VF1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“ Interim Payment Date ” means, with respect to the Series 2013-VF1 Notes, up to six (6) dates each calendar month provided that the Issuer provides the Noteholders of the Series 2013-VF1 Notes and the Indenture Trustee at least two (2) Business Days’ prior notice, or if any such date is not a Business Day, the next succeeding Business Day to the extent any such day occurs during the Revolving Period, and any other date otherwise agreed to between the Issuer and the Noteholders of the Series 2013-VF1 Notes.
“ Issuance Date ” means September 19, 2013.
“ LIBOR ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
“ LIBOR Determination Date ” means for each Interest Accrual Period, the second London Banking Day prior to the commencement of such Interest Accrual Period.
“ Limited Funding Date ” means any Business Day that is not a Payment Date or Interim Payment Date, at a time when no Facility Early Amortization Event shall have occurred and shall be continuing, which date is designated by the Administrator on behalf of the Issuer to the Indenture Trustee and the Administrative Agent in writing no later than 9:00 a.m. Eastern Time two (2) Business Days prior to such date; provided, that the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) of the Indenture for such date, and provided, further that no fundings may be made under a Variable Funding Note on such date and no payments on any Notes shall be made on such date; provided, further, that no more than five (5) Limited Funding Dates may be designated by the Administrator on behalf of the Issuer in any calendar month.
“ Liquidity ” means, as to any entity, as of the last day of any calendar month, (i) the sum of (a) such entity’s Unrestricted Cash and (b) the aggregate amount of unused committed capacity available to such entity (taking into account applicable haircuts) under mortgage loan warehouse and servicer advance facilities for which such entity has unencumbered collateral eligible to be pledged thereunder minus (ii) solely in the case of Nationstar, any Final Judgment Amounts.
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“ London Banking Day ” means any day on which commercial banks and foreign exchange markets settle payment in both London and New York City.
“ Low Threshold Servicing Agreement ” has the meaning assigned to such term in the Pricing Side Letter.
“ Margin ” has the meaning assigned to such term in the Pricing Side Letter.
“ Market Value ” means, with respect to the Mortgaged Property securing a Mortgage Loan or any REO Property, the market value of such property (determined by the Servicer in its reasonable good faith discretion, which shall be by reference to the most recent value received by the related Subservicer (or by Nationstar as Servicer prior to the related MSR Transfer Date) with respect to such Mortgaged Property or REO Property in accordance with its servicing policies, if available) or the appraised value of the Mortgaged Property obtained in connection with the origination of the related Mortgage Loan, if no updated valuation has been required under the related Servicer’s or Subservicer’s, as the case may be, servicing policies; provided , that
(i) the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is related to a Designated Servicing Agreement for which ninety (90) days have passed since the related Designation Date without a valuation of the related Mortgaged Property that is less than six (6) months old;
(ii) at any time after the 90 th day following the related Designation Date, the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is 60 or more days delinquent and the related valuation is more than six (6) months old; and
(iii) the Market Value for any Mortgaged Property or REO Property shall be deemed equal to the outstanding principal balance of the related Mortgage Loan if (x) ninety days or less have passed since the Designation Date for the Designation Date for such Mortage Loan and (y) the servicer does not otherwise determined the market value of such property in accordance with this definition.
Any valuation for purposes of this definition shall be established by the lesser of either an appraisal, broker’s price opinion, the related Subservicer’s (or Nationstar as Servicer prior to the related MSR Transfer Date) automated valuation model or any other internal valuation methodology (including but not limited to HPI indexing utilized by the related Subservicer (or Nationstar as Servicer prior to the related MSR Transfer Date), which is consistent with the related Servicer’s or Subservicer’s, as the case may be, servicing policies with respect to such Mortgaged Property or REO Property.
“ Market Value Ratio ” means, as of any date of determination with respect to a Designated Servicing Agreement, the ratio (expressed as a percentage) of (i) the lesser of (A) the Funded Advance Receivable Balance for such Designated Servicing Agreement on such date and
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(B) the aggregate of the Receivable Balances of all Facility Eligible Receivables under such Designated Servicing Agreement on such date over (ii) the aggregate Market Value of the Mortgaged Properties and REO Properties for the Mortgage Loans serviced under such Designated Servicing Agreement on such date.
“ Maximum VFN Principal Balance ” has the meaning assigned to such term in the Pricing Side Letter.
“ Middle Threshold Servicing Agreement ” has the meaning assigned to such term in the Pricing Side Letter.
“ Monthly Payment ” means, with respect to any Mortgage Loan, the monthly scheduled principal and interest payments required to be paid by the mortgagor on any due date with respect to such Mortgage Loan.
“ Monthly Reimbursement Rate ” means, as of any date of determination, the arithmetic average of the fractions (expressed as percentages), determined for each of the three (3) most recently concluded calendar months, obtained by dividing (i) the aggregate Advance Reimbursement Amounts collected by the Servicer and deposited into the Trust Accounts during such calendar month by (ii) the Funded Advance Receivable Balance as of the close of business on the last day of such calendar month.
“ Moody’s ” means Moody’s Investors Service, Inc.
“ Mortgage Loan-Level Market Value Ratio ” means, as of any date of determination with respect to a Mortgage Loan or REO Property that is secured by a first lien on the related Mortgaged Property or REO Property, the ratio (expressed as a percentage) of (x) (i) with respect to Section 5(viii)(a) hereof, the aggregate Receivable Balance of all Loan-Level Receivables outstanding with respect to such Mortgage Loan or REO Property on such date or (ii) with respect to Section 5(viii)(b) hereof, the aggregate Receivable Balance of all Receivables outstanding with respect to such Mortgage Loan or REO Property on such date over (y) the Market Value of such Mortgaged Property or REO Property on such date.
“ Net Proceeds Coverage Percentage ” means, for any Payment Date, the percentage equivalent of a fraction, (i) the numerator of which equals the amount of Collections on Receivables deposited into the Collection and Funding Account during the related Monthly Advance Collection Period, and (ii) the denominator of which equals the aggregate average outstanding Note Balances of all Outstanding Notes during such Monthly Advance Collection Period.
“ Net Total Indebtedness ” means, with respect to any Person, for any period, (i) the aggregate Indebtedness of such Person and its Subsidiaries during such period minus (ii) the amount of any non-recourse debt (including any securitization debt).
“ Net Worth ” means, with respect to any Person, such Person’s assets minus such Person’s liabilities, each determined in accordance with GAAP.
“ Note Interest Rate ” has the meaning assigned to such term in the Pricing Side Letter.
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“ Note Rating Agency ” means, for the Series 2013-VF1 Notes, S&P, Moody’s or DBRS, as applicable. For the avoidance of doubt, S&P, Moody’s or DBRS shall only constitute “Note Rating Agencies” at any time that any such rating agency has issued a rating in respect of the Series 2013-VF1 Notes at the request of the Issuer or the Administrator.
“ Note Rating Reduction ” has the meaning assigned to such term in the Pricing Side Letter.
“ One-Month LIBOR ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
“ Pricing Side Letter ” means that certain Amended and Restated Pricing Side Letter, dated the date hereof, by and among the Issuer, Advance Purchaser, the Administrative Agent, the Indenture Trustee and acknowledged by Nationstar.
“ Prime Rate ” means the rate announced by the Administrative Agent from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors.
“ Program Support Agreement ” means any agreement entered into by any Program Support Provider providing for the issuance of one or more letters of credit for the account of such Conduit Holder, the issuance of one or more surety bonds for which a Conduit Holder is obligated to reimburse the applicable Program Support Provider for any drawings thereunder, the sale by such Conduit Holder to any Program Support Provider of the aggregate outstanding Note Balance (or portions thereof or participations therein) and/or the making of loans and/or other extensions of credit to such Conduit Holder in connection with such Conduit Holder’s commercial paper program, together with any letter of credit, surety bond or other instrument issued thereunder.
“ Program Support Provider ” means any Person now or hereafter extending credit or having a commitment to extend credit to or for the account of, or to make purchases from, a Conduit Holder or issuing a letter of credit, surety bond or other instrument to support any obligations arising under or in connection with such Conduit Holder’s commercial paper program.
“ Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“ Ratings Reduction ” has the meaning assigned to such term in the Pricing Side Letter.
“ Redemption Percentage ” means, for the Series 2013-VF1 Notes, 10%.
“ Reference Banks ” has the meaning assigned to such term in Section 8(b) of this Indenture Supplement.
“ Regulatory Change ” means (a) the adoption of any law, rule or regulation after the date hereof, (b) any change in any law, rule or regulation or in the interpretation or application thereof
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by any Governmental Authority after the date hereof or (c) compliance by any Noteholder (or, for purposes of Section 9(a)(3) , by any lending office of such Noteholder or by such Noteholder’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date hereof.
“ Reserve Interest Rate ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
“ S&P ” means Standard & Poor’s Ratings Services, a division of the McGraw-Hill Company, Inc.
“ Second-Lien Receivable ” means a Receivable that arises under a Designated Servicing Agreement for which the related Advance or Deferred Servicing Fee relates to a Mortgage Loan or REO Property secured by a second lien.
“ Senior Margin ” has the meaning assigned to such term in the Pricing Side Letter.
“ Senior Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ Series 2013-VF1 Note Balance ” means the aggregate Note Balance of the Series 2013-VF1 Notes.
“ Series Reserve Required Amount ” has the meaning assigned to such term in the Pricing Side Letter.
“ Small Threshold Servicing Agreement ” has the meaning assigned to such term in the Pricing Side Letter.
“ Stated Maturity Date ” means, for each Class of the Series 2013-VF1 Variable Funding Notes, thirty (30) years following the end of the related Revolving Period.
“ Stressed Nonrecoverable Advance Amount ” has the meaning assigned to such term in the Pricing Side Letter.
“ Stressed Time Percentage ” has the meaning assigned to such term in the Pricing Side Letter.
“ Tangible Net Worth ” means, with respect to any Person at any date of determination, (i) the Net Worth of such Person and its consolidated Subsidiaries, determined in accordance with GAAP, minus (ii) all intangibles determined in accordance with GAAP (including, without limitation, goodwill, capitalized financing costs and capitalized administration costs but excluding originated and purchased mortgage servicing rights and retained residual securities) and any and all advances to, investments in and receivables held from Affiliates minus (iii) solely in the case of Nationstar, any Final Judgment Amounts; provided , however , that the non-cash effect (gain or loss) or any mark-to-market adjustments made directly to stockholders’ equity for fluctuation of the value of financial instruments as mandated under the Statement of Financial Accounting Standards No. 133 (or any successor statement) shall be excluded from the calculation of Tangible Net Worth.
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“ Target Amortization Amounts ” means, for each Class of the Series 2013-VF1 Notes, (i) if a Target Amortization Event occurs that is described in the definition thereof in clauses (B)(i), (B)(ii), (B)(xii)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) or (B)(xvi) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(i), (B)(ii) or (B)(xii)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-twelfth (1/12) of the Notes Balance of such Class at the close of business on the last day of its Revolving Period), one-twelfth (1/12) of the Note Balance of such Class at the close of business on the last day of its Revolving Period; (ii) if a Target Amortization Event described in clause (B)(xiii) or (B)(xvi) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(xiii) of the definition thereof and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-third (1/3) of the Note Balance of such Class at the close of business on the last day of its Revolving Period) in the definition thereof occurs, one-third (1/3) of the Note Balance of such Class at the close of business on the last day of its Revolving Period and (iii) if any other Target Amortization Event described in the definition thereof occurs (including B(xii)(b) or B(xvi), except as covered above), 100% of the Note Balance of such Class at the close of business on the last day of its Revolving Period; provided , however , regardless of whether another Target Amortization Event has previously occurred, if the Target Amortization Event described in clause (A) of the definition thereof occurs, the Target Amortization Amount shall be the remaining Note Balance outstanding upon the occurrence of the Expected Repayment Date, payable on the next succeeding Business Day.
“ Target Amortization Event ” for the Series 2013-VF1 Notes, means the earlier of (A) the related Expected Repayment Date or (B) the occurrence of any of the following conditions or events, which is not waived by 100% of the Noteholders of the Series 2013-VF1 Notes:
(i) on any Payment Date, the arithmetic average of the Net Proceeds Coverage Percentage determined for such Payment Date and the two preceding Payment Dates (or no preceding Payment Dates in the case of the determination on the first Payment Date, or the one preceding Payment Date, in the case of the determination on the second Payment Date) is less than five (5) times the percentage equivalent of a fraction (A) the numerator of which equals the sum of the accrued Interest Payment Amounts for each Class of Outstanding Notes on such date and (B) the denominator of which equals the aggregate average Note Balances of each Class of all Outstanding Notes during the related Monthly Advance Collection Period;
(ii) the occurrence of one or more Servicer Termination Events with respect to Designated Servicing Agreements representing 15% or more (by Mortgage Loan balance as of the date of termination) of all the Designated Servicing Agreements then included in
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the Trust Estate, but not including any Servicer Termination Events that are solely due to the breach of one or more Collateral Performance Tests or a Servicer Ratings Downgrade;
(iii) at any time after the date on which the Servicer shall first have sufficient data (i.e. three months’ worth) on recoveries of Advances under the Designated Servicing Agreements, the Monthly Reimbursement Rate is less than 3.00%;
(iv) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the Tangible Net Worth of Nationstar is less than or equal to $350,000,000 as of the last day of any quarter or (B) at any other time, the Tangible Net Worth of Nationstar is less than or equal to $400,000,000 as of the last day of any quarter;
(v) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270 th day following the consummation thereof, the ratio of Nationstar’s Net Total Indebtedness to Tangible Net Worth exceeds 12:1 as of the last day of any quarter, or (B) at any time other than the time described in clause (A), Nationstar’s Net Total Indebtedness to Tangible Net Worth at any time exceeds 9:1 as of the last day of any quarter;
(vi) for so long as Nationstar is the Servicer or the Subservicer, as of the close of business on the last Business Day of December 2013 and of each calendar month thereafter, Nationstar’s Liquidity is less than $80,000,000;
(vii) [RESERVED];
(viii) the occurrence of a Change of Control;
(ix) any failure by the Servicer to deliver any Determination Date Servicer Report pursuant to Section 3.2 of the Base Indenture which continues unremedied for a period of five (5) Business Days after a Responsible Officer of the Servicer shall have obtained actual knowledge of such failure, or shall have received written or electronic notice from the Indenture Trustee or any Noteholder of such failure;
(x) the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator shall breach or default in the due observance or performance of any of its covenants or agreements in this Indenture Supplement, the Base Indenture, or any other Transaction Document in any material respect (subject to any cure period provided therein), other than an obligation of the Receivables Seller to make an Indemnity Payment following a breach of a representation or warranty with respect to such Receivable pursuant to Section 4(b) of the Receivables Sale Agreement or any payment default described in Section 8.1 of the Base Indenture, and any such default shall continue for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have
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been given from the Indenture Trustee or any Noteholder to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator; provided , that a breach of Section 6(b) of the Receivables Sale Agreement, or Section 7(b) of the Receivables Pooling Agreement (prohibiting the Receivables Seller, the Servicer, the Subservicer or the Depositor, as applicable, from causing or permitting Insolvency Proceedings with respect to the Depositor or the Issuer, as applicable) shall constitute an automatic Target Amortization Event;
(xi) if any representation or warranty of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator made in this Indenture Supplement, the Base Indenture, or any other Transaction Document (other than under Section 4(b) of the Receivables Sale Agreement) shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, and would have a material adverse effect on the rights or interests of the Noteholders;
(xii) (a) a final judgment or judgments for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Depositor or the Issuer by one or more courts, administrative tribunals or other bodies having jurisdiction over them, or (b) a final judgment or judgments for the payment of money in excess of $35,000,000 in the aggregate shall be rendered against Advance Purchaser by one or more courts, administrative tribunals or other bodies having jurisdiction over them that, in the sole determination of the Administrative Agent, shall have a material adverse effect on Advance Purchaser’s business or operations, and the same shall not be discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and Advance Purchaser shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(xiii) any person shall be appointed as Independent Manager of the Depositor without prior notice having been given to and without the written acknowledgement by the Administrative Agent that such person conforms, to the satisfaction of the Administrative Agent in its reasonable discretion, to the criteria set forth herein in the definition of “Independent Manager”;
(xiv) Advance Purchaser shall fail to make any payment (whether of principal or interest or otherwise) in respect of any other indebtedness with an amount in excess of $15,000,000, when and as the same shall become due and payable (including the passage of any applicable grace period);
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(xv) any event or condition occurs and, while continuing, results in any indebtedness of Advance Purchaser with an amount in excess of $15,000,000 becoming due prior to its scheduled maturity or that enables or permits (including the passage of any applicable grace period) the holder or holders of any such indebtedness or any trustee or agent on its or their behalf to cause any such indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(xvi) any Series or Class of Variable Funding Notes other than the Series 2013-VF1 Notes enters into a Target Amortization Period;
(xvii) the Tangible Net Worth of Advance Purchaser is less than the greater of (a) 3% of the aggregate Receivables Balances of all servicer advance receivables and deferred servicing fee receivables held by Advance Purchaser or a subsidiary of Advance Purchaser as of the last day of any fiscal quarter of Advance Purchaser or (b) $75,000,000;
(xviii) Advance Purchaser’s Net Total Indebtedness to Tangible Net Worth at any time exceeds 4:1 as of the last day of any quarter; or
(xix) Advance Purchaser shall fail to have Liquidity of at least $25,000,000 as of the last day of any calendar month.
“ Transaction Documents ” means, in addition to the documents set forth in the definition thereof in the Base Indenture, this Indenture Supplement, the Pricing Side Letter and the VF1 Note Purchase Agreement, each as amended, supplemented, restated or otherwise modified from time to time.
“ Trigger Advance Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ Undrawn Fee Rate ” has the meaning assigned to such term in the Pricing Side Letter.
“ Unrestricted Cash ” means, as of any date of determination, the sum of (i) the Receivables Seller’s cash, (ii) the Receivables Seller’s Cash Equivalents that are not, in either case, subject to an Adverse Claim in favor of any Person or that are not required to be reserved by the Receivables Seller in a restricted escrow arrangement or other similarly restricted arrangement pursuant to a contractual agreement or requirement of law.
“ VF1 Note Purchase Agreement ” means that certain Note Purchase Agreement, dated as of September 19, 2013, by and among the Issuer, Barclays Bank PLC, as the Administrative Agent and Committed Purchaser and the Conduit Holder, that relates to the purchase of the Series 2013-VF1 Notes, as amended, supplemented, restated or otherwise modified from time to time.
Section 3. Forms of Series 2013-VF1 Notes.
The form of the Rule 144A Definitive Note and of the Regulation S Definitive Notes that may be used to evidence the Series 2013-VF1 Variable Funding Notes in the circumstances described in Section 5.4(c) of the Base Indenture are attached to the Base Indenture as Exhibits A-2 and A-4 , respectively.
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In addition to any provisions set forth in Section 6.5 of the Base Indenture, with respect to the Series 2013-VF1 Notes, the Noteholder of any Class of such Notes shall only transfer its beneficial interest therein to another potential investor in accordance with the applicable Note Purchase Agreement. The Indenture Trustee (in all of its capacities) shall not be responsible to monitor, and shall not have any liability, for any such transfers of beneficial interests of participation interests.
Section 4. Series Reserve Account.
In accordance with the terms and provisions of this Section 4 and Section 4.6 of the Base Indenture, the Indenture Trustee shall establish and maintain a Series Reserve Account with respect to the Series 2013-VF1 Notes, which shall be an Eligible Account, for the benefit of the Series 2013-VF1 Noteholders.
Section 5. Collateral Value Exclusions.
For purposes of calculating “Collateral Value” in respect of the Series 2013-VF1 Notes, the Collateral Value shall be zero for any Receivable that:
(i) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Advance Ratio to be equal to or greater than 100.0%; provided , that this clause (i) shall not apply to any Receivable (x) that is (a) attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement or (b) a Loan-Level Receivable or (y) in respect of which ninety (90) days or fewer have passed since the Designation Date in respect of the related Designated Servicing Agreement;
(ii) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Market Value Ratio to exceed 25%; provided , that this clause (ii) shall not apply to any Receivable in respect of which ninety (90) days or fewer have passed since the Designation Date in respect of the related Designated Servicing Agreement;
(iii) [RESERVED];
(iv) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements to exceed 2.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
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(v) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements to exceed 7.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(vi) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement, a Low Threshold Servicing Agreement or a Middle Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements to exceed 15.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(vii) is attributable to a Designated Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances outstanding with respect to that same Designated Servicing Agreement, would cause the total Receivable Balances attributable to such Designated Servicing Agreement to exceed 15.0% of the aggregate of the Receivable Balances of the Aggregate Receivables;
(viii) if on any date that is ninety (90) days after the Designation Date in respect of the related Designated Servicing Agreement, (a) if it is a Loan-Level Receivable, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables with respect to the related Mortgage Loan or REO Property, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0% or (b) if it is a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables related to the Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0%;
(ix) is a Loan-Level Receivable, to the extent the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Loan-Level Receivables, would cause the total Receivable Balances attributable to Loan-Level Receivables to exceed 20.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(x) has a zero Advance Rate;
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(xi) is a Second-Lien Receivable unless the following criteria are satisfied:
(1) the related Servicing Agreement must have a General Collections Backstop;
(2) the related Servicing Agreement may not be a Small Threshold Servicing Agreement; and
(3) the Advance to UPB Ratio in respect of the related Servicing Agreement must be less than 25%;
(xii) relates to a Mortgage Loan or REO Property which is subject to a lease or rental agreement entered into by the Servicer in accordance with the terms and provisions of the applicable Servicing Agreement in lieu of foreclosure;
(xiii) if more than ninety (90) days have passed since the Designation Date in respect of the related Designated Servicing Agreement, relates to an Advance that has not been reimbursed in full or a Deferred Servicing Fee that has not been paid in full within forty-five (45) days following the date of a permanent modification of the related Mortgage Loan that becomes effective subsequent to the creation of such Receivable (for purposes of this clause, a modification becomes “permanent” following any trial period or satisfaction of conditions precedent or subsequent); or
(xiv) is a Receivable related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 3 to the Base Indenture (as the same may be updated from time to time pursuant to Section 2.2(c) of the Base Indenture) and the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 3 of such securitization trust’s cut-off date balance.
For purposes of each of the foregoing, (i) if any Facility Eligible Receivable has a Collateral Value equal to zero pursuant to any Collateral Value exclusion test, the portion of the Receivables Balance thereof with a Collateral Value of zero shall be disregarded for all other purposes of this Section 5, in each case as determined by the Administrator in a manner that maximizes the Collateral Value and (ii) if any Facility Eligible Receivable has an Advance Rate of zero, such Facility Eligible Receivable shall be disregarded for all other purposes of this Section 5.
Section 6. Payments; Note Balance Increases; Early Maturity; Other Advance Rate Reduction Events.
The Paying Agent shall make payments of interest on the Series 2013-VF1 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture and any payments of interest (including unrated interest amounts), Cumulative Interest Shortfall Amounts, Fees or Increased Costs allocated to the Series 2013-VF1 Notes shall be paid first to the Class A-VF1 Variable Funding Notes, thereafter to the Class B-VF1 Variable Funding Notes, thereafter to the Class C-VF1 Variable Funding Notes and thereafter to the Class D-VF1 Variable Funding Notes. The Paying Agent shall make payments of principal on the Series 2013-VF1 Variable Funding Notes
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on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5, respectively, of the Base Indenture (at the option of the Issuer in the case of requests during the Revolving Period for the Series 2013-VF1 Variable Funding Notes). The Note Balance of each Class of the Series 2013-VF1 Variable Funding Notes may be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the related Maximum VFN Principal Balance.
The parties hereto agree that the failure to pay any portion of any related Undrawn Fee Amount on any Payment Date shall constitute an Event of Default under Section 8.1(a)(i) of the Base Indenture.
Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Issuer may, upon at least five Business Days’ prior written notice to the Administrative Agent, redeem in whole or in part, and/or terminate and cause retirement of any of the Series 2013-VF1 Variable Funding Notes at any time using proceeds of issuance of new Notes.
The Series 2013-VF1 Notes are also subject to optional redemption in accordance with the terms of Section 13.1 of the Base Indenture.
Any payments of principal allocated to the Series 2013-VF1 Notes during a Full Amortization Period shall be applied in the following order of priority, first, to the Class A-VF1 Variable Funding Notes, until their Note Balance has been reduced to zero, second, to the Class B-VF1 Variable Funding Notes until their Note Balance has been reduced to zero, third , to the Class C-VF1 Variable Funding Notes, until their Note Balance has been reduced to zero and fourth , to the Class D-VF1 Variable Funding Notes, until their Note Balance has been reduced to zero.
Barclays confirms that the Series 2013-VF1 Notes issued on the Issuance Date pursuant to this Indenture Supplement shall be issued in the name of “Barclays Bank PLC, as Administrative Agent,” and Barclays hereby directs the Indenture Trustee to issue the Series 2013-VF1 Notes in the name of “BARCLAYS BANK PLC, solely in its capacity as Administrative Agent on behalf of BARCLAYS BANK PLC, as Committed Purchaser and SHEFFIELD RECEIVABLES CORPORATION, as Conduit Holder, or registered assigns.” For the avoidance of doubt, the parties hereto hereby agree that, in accordance with the terms and provisions of the VF1 Note Purchase Agreement, the Administrative Agent shall act as agent of each Noteholder of a Series 2013-VF1 Note and shall determine the allocation of “Additional Note Balances” (as such term is defined in the VF1 Note Purchase Agreement) to be purchased by each such Noteholder.
For the avoidance of doubt, the failure pay any Target Amortization Amount when due, as described in the definition thereof, shall constitute an Event of Default.
There are no “Other Advance Rate Reduction Events” or “Other Advance Rate Reduction Event Cure Periods” in respect of the Series 2013-VF1 Notes. If any Other Advance Rate Reduction Event in respect of any other Series of Notes is the same as any reduction event specified in clause (iv) of the definition of “Facility Early Amortization Event,” and the related Other Advance Rate Reduction Event Cure Period is shorter than the applicable grace period for
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the same event specified in clause (iv) of the definition of “Facility Early Amortization Event”, then solely for purposes of the Series 2013-VF1 Notes, the applicable grace period specified in clause (iv) of the definition of “Facility Early Amortization Event” shall be reduced to the Other Advance Rate Reduction Event Cure Period.
Section 7. [RESERVED].
Section 8. Determination of Note Interest Rate and LIBOR.
(a) At least one (1) Business Day prior to each Determination Date, the Administrator (after consultation with the Administrative Agent) shall calculate the Note Interest Rate for the related Interest Accrual Period and the Interest Payment Amount for the Series 2013-VF1 Notes for the upcoming Payment Date, and include a report of such amount in the related Payment Date Report.
(b) On each LIBOR Determination Date, the Administrative Agent will determine the arithmetic mean of the London Interbank Offered Rate (“ LIBOR ”) quotations for one-month Eurodollar deposits (“ One-Month LIBOR ”) for the succeeding Interest Accrual Period for the Series 2013-VF1 Notes on the basis of the Reference Banks’ offered LIBOR quotations provided to the Calculation Agent as of 11:00 a.m. (London time) on such LIBOR Determination Date. As used herein with respect to a LIBOR Determination Date, “ Reference Banks ” means leading banks engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) whose quotations appear on the Bloomberg Screen US0001M Index Page for the LIBOR Determination Date in question and (iii) which have been designated as such by the Calculation Agent (after consultation with the Administrative Agent) and are able and willing to provide such quotations to the Calculation Agent for each LIBOR Determination Date; and “ Bloomberg Screen US0001M Index Page ” means the display designated as page US0001M Index Page on the Bloomberg Financial Markets Commodities News (or such other pages as may replace such page on that service for the purpose of displaying LIBOR quotations of major banks). If any Reference Bank should be removed from the Bloomberg Screen US0001M Index Page or in any other way fails to meet the qualifications of a Reference Bank, the Administrative Agent may, in its sole discretion, designate an alternative Reference Bank.
If, for any LIBOR Determination Date, two or more of the Reference Banks provide offered One-Month LIBOR quotations on the Bloomberg Screen US0001M Index Page, One-Month LIBOR for the next succeeding Interest Accrual Period for the Series 2013-VF1 Notes will be the arithmetic mean of such offered quotations (rounding such arithmetic mean if necessary to the nearest five decimal places).
If, for any LIBOR Determination Date, only one or none of the Reference Banks provides such offered One-Month LIBOR quotations for the next applicable Interest Accrual Period, One-Month LIBOR for the next Interest Accrual Period for the applicable Classes of Series 2013-VF1 Notes will be the higher of (x) One-Month LIBOR as determined for the previous LIBOR Determination Date and (y) the Reserve Interest Rate. The “ Reserve Interest Rate ” on any date of determination will be the rate per annum that the Administrative Agent determines to be either (A) the arithmetic mean (rounding such arithmetic mean if necessary to the nearest five decimal
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places) of the one-month Eurodollar lending rate that New York City banks selected by the Administrative Agent are quoting, on the relevant LIBOR Determination Date, to the principal London offices of at least two leading banks in the London Interbank market or (B) in the event that the Administrative Agent is unable to determine such arithmetic mean, the lowest one-month Eurodollar lending rate that the New York City banks so selected by the Administrative Agent are quoting on such LIBOR Determination Date to leading European banks.
If, on any LIBOR Determination Date, the Administrative Agent is required but is unable to determine the Reserve Interest Rate in the manner provided in the preceding paragraph, One-Month LIBOR for the next applicable Interest Accrual Period will be One-Month LIBOR as determined for the previous LIBOR Determination Date.
Notwithstanding the foregoing, One-Month LIBOR for an Interest Accrual Period shall not be based on One-Month LIBOR for the previous Interest Accrual Period on the Series 2013-VF1 Notes for two consecutive LIBOR Determination Dates. If, under the priorities described above, One-Month LIBOR for an Interest Accrual Period on the Series 2013-VF1 Notes would be based on One-Month LIBOR for the previous LIBOR Determination Date for the second consecutive LIBOR Determination Date, the Administrative Agent shall select an alternative index (over which the Administrative Agent has no control) used for determining one-month Eurodollar lending rates that is calculated and published (or otherwise made available) by an independent third party, and this alternative index shall constitute One-Month LIBOR for all purposes under this Indenture Supplement in that event.
(c) The establishment of One-Month LIBOR by the Administrative Agent and the Administrator’s subsequent calculation of the Note Interest Rate (after consultation with the Administrative Agent) on the Series 2013-VF1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 9. Increased Costs.
(a) If any Regulatory Change or other requirement of any law, rule, regulation or order applicable to a Noteholder of a Series 2013-VF1 Variable Funding Note (a “ Requirement of Law ”) or any change in the interpretation or application thereof or compliance by such Noteholder with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(1) shall subject such Noteholder to any tax of any kind whatsoever with respect to its Series 2013-VF1 Variable Funding Note (excluding income taxes, branch profits taxes, franchise taxes or similar taxes imposed on such Noteholder as a result of any present or former connection between such Noteholder and the United States, other than any such connection arising solely from such Noteholder having executed, delivered or performed its obligations or received a payment under, or enforced, this Indenture Supplement or any U.S. federal withholding taxes imposed under Code sections 1471 through 1474 as of the date of this Indenture Supplement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereunder and any agreements entered into
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under section 1471(b) of the Code) or change the basis of taxation of payments to such Noteholder in respect thereof; shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(2) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or credit extended or participated by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(3) shall have the effect of reducing the rate of return on such Noteholder’s capital or on the capital of such Noteholder’s holding company, if any, as a consequence of this Indenture Supplement, in the case of the Series 2013-VF1 Variable Funding Notes, the VF1 Note Purchase Agreement, or the Series 2013-VF1 Variable Funding Notes to a level below that which such Noteholder or such Noteholder’s holding company could have achieved but for such Requirements of Law (other than any Regulatory Change, Requirement of Law, interpretation or application thereof, request or directive with respect to taxes) (taking into consideration such Noteholder’s policies and the policies of such Noteholder’s holding company with respect to capital adequacy); or
(4) shall impose on such Noteholder or the London interbank market any other condition, cost or expense (other than with respect to taxes) affecting this Indenture Supplement, in the case of the Series 2013-VF1 Variable Funding Notes, the VF1 Note Purchase Agreement or the Series 2013-VF1 Variable Funding Notes or any participation therein; or
(5) shall impose on such Noteholder any other condition;
and the result of any of the foregoing is to increase the cost to such Noteholder, by an amount which such Noteholder deems to be material, of continuing to hold its Series 2013-VF1 Variable Funding Note, of maintaining its obligations with respect thereto, or to reduce any amount due or owing hereunder in respect thereof, or to reduce the amount of any sum received or receivable by such Noteholder (whether of principal, interest or any other amount) or (in the case of any change in a Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Noteholder or any Person controlling such Noteholder with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental or quasi-Governmental Authority made subsequent to the date hereof) shall have the effect of reducing the rate of return on such Noteholder’s or such controlling Person’s capital as a consequence of its obligations as a Noteholder of a Variable Funding Note to a level below that which such Noteholder or such controlling Person could have achieved but for such adoption, change or
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compliance (taking into consideration such Noteholder’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Noteholder to be material, then, in any such case, such Noteholder shall invoice the Administrator for such additional amount or amounts as calculated by such Noteholder in good faith as will compensate such Noteholder for such increased cost or reduced amount, and such invoiced amount shall be payable to such Noteholder on the Payment Date following the next Determination Date following such invoice, in accordance with Section 4.5(a)(1)(ii) or Section 4.5(a)(2)(ii) of the Base Indenture, as applicable; provided , however , that any amount of Increased Costs in excess of the Increased Costs Limit shall be payable to such Noteholder in accordance with Section 4.5(a)(1)(ix) or Section 4.5(a)(2)(iv) of the Base Indenture, as applicable.
(b) Each Program Support Provider shall be entitled to receive additional payments and indemnification pursuant to this Section 9 as though it were a Committed Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Series 2013-VF1 Variable Funding Notes; provided, that such Program Support Provider shall not be entitled to additional payments pursuant to this Section 9 by reason of Requirements of Law which occurred prior to the date it became a Program Support Provider; provided, further, that such Program Support Provider shall be entitled to receive additional amounts pursuant to this Section 9 only to the extent that its related Conduit Holder would have been entitled to receive such amounts in the absence of extensions of credit from such Program Support Provider. The provisions of this Section 9 shall apply to the Administrative Agent and to such of its Affiliates as may from time to time administer, make referrals to or otherwise provide services or support to the Conduit Holders (in each case as though such Administrative Agent or Affiliate were a Committed Purchaser and such Section applied to its administration of or other provisions of services or support to such Conduit Holder in connection with the transactions contemplated by this Indenture Supplement), whether as an administrator, administrative agent, referral agent, managing agent or otherwise.
(c) Increased Costs payable under this Section 9 shall be payable on a Payment Date only to the extent invoiced to the Indenture Trustee prior to the related Determination Date.
Section 10. Series Reports.
(a) Series Calculation Agent Report . The Calculation Agent shall deliver a report of the following items together with each Calculation Agent Report pursuant to Section 3.1 of the Base Indenture to the extent received from the Servicer, with respect to the Series 2013-VF1 Notes:
(i) the unpaid principal balance of the Mortgage Loans subject to any Small Threshold Servicing Agreement, Low Threshold Servicing Agreement and Middle Threshold Servicing Agreement;
(ii) the Advance Ratio for each Designated Servicing Agreement in respect of which more than ninety (90) days have passed since the related Designation Date, and whether the Advance Ratio for such Designated Servicing Agreement exceeds 100.0%;
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(iii) the Market Value Ratio for each Designated Servicing Agreement in respect of which more than ninety (90) days have passed since the related Designation Date, and whether the Market Value Ratio for such Designated Servicing Agreement exceeds 25.0%;
(iv) for each Middle Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(v) for each Low Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vi) for each Small Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vii) a list of each Target Amortization Event for the Series 2013-VF1 Notes and presenting a yes or no answer beside each indicating whether each such Target Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(viii) the Mortgage Loan-Level Market Value Ratio for each Mortgage Loan related to a Loan-Level Receivable or a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, and if such Mortgage Loan-Level Market Value Ratio exceeds 50%;
(ix) whether any Receivable, or any portion of the Receivables, attributable to a Designated Servicing Agreement, has a Collateral Value of zero by virtue of the definition of “Collateral Value” or Section 5 of this Indenture Supplement;
(x) a calculation of the Net Proceeds Coverage Percentage in respect of each of the three preceding Monthly Advance Collection Periods (or each that has occurred since the date of this Indenture Supplement, if less than three), and the arithmetic average of the three;
(xi) the Monthly Reimbursement Rate for the upcoming Payment Date or Interim Payment Date;
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(xii) whether any Target Amortization Amount that has become due and payable has been paid;
(xiii) the Stressed Nonrecoverable Advance Amount for the upcoming Payment Date or Interim Payment Date; and
(xiv) the Trigger Advance Rate for each Class.
In addition to the information provided in the above Calculation Agent Report, to the extent the following information is specifically provided to the Calculation Agent by the Servicer, the Calculation Agent shall promptly, from time to time, provide such other financial or non-financial information, documents, records or reports with respect to the Receivables or the condition or operations, financial or otherwise, of the Servicer, including any information available to the Servicer, as the Administrator or any Noteholder of a Series 2013-VF1 Note may from time to time reasonably request in order to assist the Administrative Agent or such Noteholder in complying with the requirements of Article 122a(4) and (5) of the CRD as may be applicable to the Administrative Agent or such Noteholder of a Series 2013-VF1 Note.
(b) Series Payment Date Report . In conjunction with each Payment Date Report, the Indenture Trustee shall also report the Stressed Time Percentage.
(c) Limitation on Indenture Trustee Duties . The Indenture Trustee shall have no independent duty to verify: (1) Tangible Net Worth, (2) the occurrence of any of the events described in clauses (ii), (iii), (iv), (v), (vi), (viii), (ix), (x), (xi), (xvii), (xviii) or (xix) of the definition of “Target Amortization Event,” or (3) compliance with clause (vi) of the definition of “Facility Eligible Servicing Agreement.”
Section 11. Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2013-VF1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) and Article XII thereof and Section 12 hereof, as applicable, have been satisfied.
Section 12. Representations and Warranties.
(a) The Issuer, the Administrator and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
(b) Neither the Administrator nor any of its Subsidiaries shall make any material change in the nature of its business as carried on at the date hereof.
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Section 13. Amendments.
(a) Notwithstanding any provisions to the contrary in Article XII of the Base Indenture, and in addition to and otherwise subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, and with prior notice to the applicable Note Rating Agency, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have an Adverse Effect, may amend this Indenture Supplement for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or any other Transaction Document; (ii) to take any action necessary to maintain the rating currently assigned by the applicable Note Rating Agency and/or to avoid such Class of Notes being placed on negative watch by such Note Rating Agency; or (iii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
(b) Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
Section 14. Counterparts.
This Indenture Supplement may be executed in any number of counterparts, by manual or facsimile signature, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 15. Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 16. Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2013-VF1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2013-VF1 Notes, this Indenture Supplement and each other Transaction Document to
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which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2013-VF1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2013-VF1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2013-VF1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 16 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2013-VF1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 16 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2013-VF1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 17. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association, be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or the other Transaction Documents.
Section 18. Consent and Acknowledgment of Amendments.
Each of Barclays, in its capacity as committed purchaser (together with its successors and permitted assigns, the “ Committed Purchaser ”), and Sheffield Receivables Corporation, in its capacity as conduit holder (together with its successors and permitted assigns, the “ Conduit Holder ”) has consented to this Indenture Supplement and each of the Committed Purchaser and the Conduit Holder confirms that (i) together they are the sole Noteholders of all the Outstanding Notes related to this Series with the right to instruct the Indenture Trustee, (ii) it is authorized to
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deliver this Indenture Supplement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date. By its signature to this Indenture Supplement, each of the parties hereto (other than the Indenture Trustee), hereby waives and directs the Indenture Trustee to waive, the delivery of an Authorization Opinion in connection with the execution and delivery of this Indenture Supplement.
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IN WITNESS WHEREOF , NRZ Servicer Advance Receivables Trust BC, as Issuer, Advance Purchaser LLC, as Administrator and as Servicer (on and after the respective MSR Transfer Dates), Nationstar Mortgage LLC, as Administrator (prior to the Effective Date) and as Servicer (prior to the respective MSR Transfer Dates), Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, Barclays Bank PLC, as Administrative Agent and as Committed Purchaser, and Sheffield Receivables Corporation, as Conduit Holder, have caused this Indenture Supplement relating to the Series 2013-VF1 Notes, to be duly executed by their respective officers thereunto duly authorized and their respective signatures duly attested all as of the day and year first above written.
| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC, as Issuer | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: | /s/ Erwin M. Soriano | |
| Name: | Erwin M. Soriano | |
| Title: | Assistant Vice President | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| WELLS FARGO BANK, N.A. , as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | ||
| By: | /s/ Mark DeFabio | |
| Name: | Mark DeFabio | |
| Title: | Vice President | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| NATIONSTAR MORTGAGE LLC | ||
| By: | /s/ Ellen Coleman | |
| Name: | Ellen Coleman | |
| Title: | Executive Vice President | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| ADVANCE PURCHASER LLC | ||
| By: | /s/ Cameron MacDougall | |
| Name: | Cameron MacDougall | |
| Title: | Secretary | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| BARCLAYS BANK PLC , as Administrative Agent | ||
| By: | /s/ Joseph O’Doherty | |
| Name: | Joseph O’Doherty | |
| Title: | Managing Director | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| CONSENTED TO BY: | ||
| BARCLAYS BANK PLC, as Committed Purchaser, Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF1 Notes | ||
| By: | /s/ Joseph O’Doherty | |
| Name: | Joseph O’Doherty | |
| Title: | Managing Director | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
| CONSENTED TO BY: | ||
| SHEFFIELD RECEIVABLES CORPORATION, as Conduit Holder of the Series 2013-VF1 Notes | ||
| By: Barclays Bank PLC, as its attorney-in-fact | ||
| By: | /s/ Joseph O’Doherty | |
| Name: | Joseph O’Doherty | |
| Title: | Managing Director | |
[Signature Page – NRZ Servicer Advance Receivables Trust BC Amended and Restated Indenture Supplement, Series 2013-VF1]
Exhibit 4.3
EXECUTION COPY
AMENDED AND RESTATED INDENTURE
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as a Subservicer (on and after the respective MSR Transfer Dates) and as Servicer (prior
to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
and
CREDIT SUISSE AG, NEW YORK BRANCH,
as Administrative Agent
and consented to by
CREDIT SUISSE AG, NEW YORK BRANCH
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
ALPINE SECURITIZATION CORP.
NATIXIS, NEW YORK BRANCH
BLEACHERS FINANCE 1 LIMITED
MORGAN STANLEY BANK, N.A.
Dated as of December 17, 2013
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
ADVANCE RECEIVABLES BACKED NOTES, ISSUABLE IN SERIES
TABLE OF CONTENTS
| Page | ||||||
|
Article I |
||||||
|
Definitions and Other Provisions of General Application |
6 | |||||
|
Section 1.1. |
Definitions | 6 | ||||
|
Section 1.2. |
Interpretation | 54 | ||||
|
Section 1.3. |
Compliance Certificates and Opinions | 55 | ||||
|
Section 1.4. |
Form of Documents Delivered to Indenture Trustee | 55 | ||||
|
Section 1.5. |
Acts of Noteholders | 56 | ||||
|
Section 1.6. |
Notices, etc., to Indenture Trustee, Issuer, Administrator and the Administrative Agent | 57 | ||||
|
Section 1.7. |
Notices to Noteholders; Waiver | 57 | ||||
|
Section 1.8. |
Administrative Agent | 58 | ||||
|
Section 1.9. |
Effect of Headings and Table of Contents | 59 | ||||
|
Section 1.10. |
Successors and Assigns | 60 | ||||
|
Section 1.11. |
Severability of Provisions | 60 | ||||
|
Section 1.12. |
Benefits of Indenture | 60 | ||||
|
Section 1.13. |
Governing Law | 60 | ||||
|
Section 1.14. |
Counterparts | 60 | ||||
|
Section 1.15. |
Submission to Jurisdiction; Waivers | 61 | ||||
|
Article II |
||||||
|
The Trust Estate |
61 | |||||
|
Section 2.1. |
Contents of Trust Estate | 61 | ||||
|
Section 2.2. |
Receivable Files | 64 | ||||
|
Section 2.3. |
Indemnity Payments for Receivables Upon Breach | 66 | ||||
|
Section 2.4. |
Duties of Custodian with Respect to the Receivables Files | 67 | ||||
|
Section 2.5. |
Application of Trust Money | 67 | ||||
|
Article III |
||||||
|
Administration of Receivables; Reporting to Investors |
68 | |||||
|
Section 3.1. |
Duties of the Calculation Agent | 68 | ||||
|
Section 3.2. |
Reports by Administrator and Indenture Trustee | 71 | ||||
|
Section 3.3. |
Annual Statement as to Compliance; Notice of Default; Agreed Upon Procedures Reports | 76 | ||||
|
Section 3.4. |
Access to Certain Documentation and Information | 79 | ||||
|
Section 3.5. |
Indenture Trustee to Make Reports Available | 81 | ||||
i
|
Article IV |
||||||
|
The Trust Accounts; Payments |
82 | |||||
|
Section 4.1. |
Trust Accounts | 82 | ||||
|
Section 4.2. |
Collections and Disbursements of Advances by Servicer | 84 | ||||
|
Section 4.3. |
Funding of Additional Receivables | 86 | ||||
|
Section 4.4. |
Interim Payment Dates | 90 | ||||
|
Section 4.5. |
Payment Dates | 92 | ||||
|
Section 4.6. |
Series Reserve Account | 97 | ||||
|
Section 4.7. |
Collection and Funding Account, Interest Accumulation Account, Fee Accumulation Account, Target Amortization Principal Accumulation Account and Sinking Fund Accounts | 99 | ||||
|
Section 4.8. |
Note Payment Account | 100 | ||||
|
Section 4.9. |
Securities Accounts | 100 | ||||
|
Section 4.10. |
Notice of Adverse Claims | 103 | ||||
|
Section 4.11. |
No Gross Up | 103 | ||||
|
Section 4.12. |
Facility Early Amortization Events; Target Amortization Events | 103 | ||||
|
Article V |
||||||
|
Note Forms |
104 | |||||
|
Section 5.1. |
Forms Generally | 104 | ||||
|
Section 5.2. |
Forms of Notes | 104 | ||||
|
Section 5.3. |
Form of Indenture Trustee’s Certificate of Authentication | 105 | ||||
|
Section 5.4. |
Book-Entry Notes | 105 | ||||
|
Section 5.5. |
Beneficial Ownership of Global Notes | 108 | ||||
|
Section 5.6. |
Notices to Depository | 108 | ||||
|
Article VI |
||||||
|
The Notes |
108 | |||||
|
Section 6.1. |
General Provisions; Notes Issuable in Series; Terms of a Series or Class Specified in an Indenture Supplement | 108 | ||||
|
Section 6.2. |
Denominations | 110 | ||||
|
Section 6.3. |
Execution, Authentication and Delivery and Dating | 111 | ||||
|
Section 6.4. |
Temporary Notes | 112 | ||||
|
Section 6.5. |
Registration, Transfer and Exchange | 112 | ||||
|
Section 6.6. |
Mutilated, Destroyed, Lost and Stolen Notes | 120 | ||||
|
Section 6.7. |
Payment of Interest; Interest Rights Preserved; Withholding Taxes | 121 | ||||
|
Section 6.8. |
Persons Deemed Owners | 121 | ||||
|
Section 6.9. |
Cancellation | 122 | ||||
|
Section 6.10. |
New Issuances of Notes | 122 | ||||
ii
|
Article VII |
||||||
|
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or Depositor or the Receivables Seller |
125 | |||||
|
Section 7.1. |
Satisfaction and Discharge of Indenture | 125 | ||||
|
Section 7.2. |
Application of Trust Money | 125 | ||||
|
Section 7.3. |
Cancellation of Notes Held by the Issuer, the Depositor or the Receivables Seller | 126 | ||||
|
Article VIII |
||||||
|
Events of Default and Remedies |
126 | |||||
|
Section 8.1. |
Events of Default | 126 | ||||
|
Section 8.2. |
Acceleration of Maturity; Rescission and Annulment | 128 | ||||
|
Section 8.3. |
Collection of Indebtedness and Suits for Enforcement by Indenture Trustee | 129 | ||||
|
Section 8.4. |
Indenture Trustee May File Proofs of Claim | 129 | ||||
|
Section 8.5. |
Indenture Trustee May Enforce Claims Without Possession of Notes | 130 | ||||
|
Section 8.6. |
Application of Money Collected | 130 | ||||
|
Section 8.7. |
Sale of Collateral Requires Consent of Majority of All Noteholders | 131 | ||||
|
Section 8.8. |
Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture Trustee | 131 | ||||
|
Section 8.9. |
Limitation on Suits | 131 | ||||
|
Section 8.10. |
Unconditional Right of Noteholders to Receive Principal and Interest; Limited Recourse | 132 | ||||
|
Section 8.11. |
Restoration of Rights and Remedies | 132 | ||||
|
Section 8.12. |
Rights and Remedies Cumulative | 133 | ||||
|
Section 8.13. |
Delay or Omission Not Waiver | 133 | ||||
|
Section 8.14. |
Control by Noteholders | 133 | ||||
|
Section 8.15. |
Waiver of Past Defaults | 133 | ||||
|
Section 8.16. |
Sale of Trust Estate | 134 | ||||
|
Section 8.17. |
Undertaking for Costs | 135 | ||||
|
Section 8.18. |
Waiver of Stay or Extension Laws | 135 | ||||
|
Section 8.19. |
Notice of Waivers | 135 | ||||
|
Article IX |
||||||
|
The Issuer |
136 | |||||
|
Section 9.1. |
Representations and Warranties of Issuer | 136 | ||||
|
Section 9.2. |
Liability of Issuer; Indemnities | 140 | ||||
|
Section 9.3. |
Merger or Consolidation, or Assumption of the Obligations, of the Issuer | 141 | ||||
|
Section 9.4. |
Issuer May Not Own Notes | 142 | ||||
|
Section 9.5. |
Covenants of Issuer | 142 | ||||
iii
|
Article X |
||||||
|
The Administrator and Servicer |
146 | |||||
|
Section 10.1. |
Representations and Warranties of Administrator | 146 | ||||
|
Section 10.2. |
Representations and Warranties of Nationstar | 147 | ||||
|
Section 10.3. |
Covenants of Administrator and Servicer | 149 | ||||
|
Section 10.4. |
Liability of Administrator; Indemnities | 152 | ||||
|
Section 10.5. |
Liability of Servicer; Indemnities | 154 | ||||
|
Section 10.6. |
Merger or Consolidation, or Assumption of the Obligations, of the Administrator or the Servicer | 155 | ||||
|
Section 10.7. |
Appointment of a Sub-Administrator | 156 | ||||
|
Article XI |
||||||
|
The Indenture Trustee |
157 | |||||
|
Section 11.1. |
Certain Duties and Responsibilities | 157 | ||||
|
Section 11.2. |
Notice of Defaults | 158 | ||||
|
Section 11.3. |
Certain Rights of Indenture Trustee | 158 | ||||
|
Section 11.4. |
Not Responsible for Recitals or Issuance of Notes | 160 | ||||
|
Section 11.5. |
Reserved | 161 | ||||
|
Section 11.6. |
Money Held in Trust | 161 | ||||
|
Section 11.7. |
Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity | 161 | ||||
|
Section 11.8. |
Corporate Indenture Trustee Required; Eligibility | 162 | ||||
|
Section 11.9. |
Resignation and Removal; Appointment of Successor | 162 | ||||
|
Section 11.10. |
Acceptance of Appointment by Successor | 164 | ||||
|
Section 11.11. |
Merger, Conversion, Consolidation or Succession to Business | 164 | ||||
|
Section 11.12. |
Appointment of Authenticating Agent | 165 | ||||
|
Section 11.13. |
Reserved | 166 | ||||
|
Section 11.14. |
Representations and Covenants of the Indenture Trustee | 166 | ||||
|
Section 11.15. |
Indenture Trustee’s Application for Instructions from the Issuer | 167 | ||||
|
Article XII |
||||||
|
Amendments and Indenture Supplements |
167 | |||||
|
Section 12.1. |
Supplemental Indentures and Amendments Without Consent of Noteholders | 167 | ||||
|
Section 12.2. |
Supplemental Indentures and Amendments with Consent of Noteholders | 169 | ||||
|
Section 12.3. |
Execution of Amendments | 171 | ||||
|
Section 12.4. |
Effect of Amendments | 171 | ||||
|
Section 12.5. |
Reference in Notes to Indenture Supplements | 171 | ||||
|
Section 12.6. |
Amendments Requiring Consent of the Servicer | 171 | ||||
iv
|
Article XIII |
||||||
|
Early Redemption of Notes |
172 | |||||
|
Section 13.1. |
Optional Redemption | 172 | ||||
|
Section 13.2. |
Notice | 173 | ||||
|
Article XIV |
||||||
|
Miscellaneous |
173 | |||||
|
Section 14.1. |
No Petition | 173 | ||||
|
Section 14.2. |
No Recourse | 174 | ||||
|
Section 14.3. |
Tax Treatment | 174 | ||||
|
Section 14.4. |
Alternate Payment Provisions | 174 | ||||
|
Section 14.5. |
Termination of Obligations | 174 | ||||
|
Section 14.6. |
Final Distribution | 175 | ||||
|
Section 14.7. |
Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider as Third-Party Beneficiaries | 175 | ||||
|
Section 14.8. |
Owner Trustee Limitation of Liability | 176 | ||||
|
Section 14.9. |
Communications with Rating Agencies | 176 | ||||
|
Section 14.10. |
Authorized Representatives | 177 | ||||
|
Section 14.11. |
Consent and Acknowledgement of the Amendments | 177 | ||||
v
SCHEDULES AND EXHIBITS
| Schedule 1 | Designated Servicing Agreement Schedule | |
| Schedule 2 | Designated Servicing Agreements that are subserviced by Subservicers and other Servicing Agreements that may be subserviced by Subservicers | |
| Schedule 3 | Designated Servicing Agreements under which the Servicer or servicers are required to consent to or initiate termination and have agreed to repay all unpaid and accrued servicing fees at the time of redemption in full or reimburse all Advances at the time of termination, as applicable | |
| Schedule 4 | Designated Servicing Agreements for which the related Receivables become ineligible upon the principal balance of the Mortgage Loans and REO Properties in the related securitization trust being reduced below the indicated threshold of the securitization trust’s cut-off date balance | |
| Schedule 5 | Wire Instructions | |
| Schedule 6 | Ineligible Designated Servicing Agreements | |
| Exhibit A-1 | Form of Global Rule 144A Note | |
| Exhibit A-2 | Form of Definitive Rule 144A Note | |
| Exhibit A-3 | Form of Global Regulation S Note | |
| Exhibit A-4 | Form of Definitive Regulation S Note | |
| Exhibit B-1 | Form of Transferee Certificate for Transfers of Notes pursuant to Rule 144A | |
| Exhibit B-2 | Form of Transferee Certificate for Transfer of Notes pursuant to Regulation S | |
| Exhibit C | Form of Notice to MBS Trustee/Notice of Assignment of Receivables | |
| Exhibit D | Agreed Upon Procedures | |
| Exhibit E | Form of Additional Transferee Certification required under Section 6.5(m) of the Indenture | |
| Exhibit F | Form of Additional Transferee Certification required under Section 6.5(n) of the Indenture | |
| Exhibit G-1 | Authorized Representatives of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | |
| Exhibit G-2 | Authorized Representatives of the Servicer | |
| Exhibit G-3 | Authorized Representatives of the Administrative Agent | |
| Exhibit G-4 | Authorized Representatives of the Issuer | |
| Exhibit G-5 | Authorized Representatives of the Administrator | |
| Exhibit H | Disclaimer of Excess Spread Purchasers | |
| Exhibit I | Notice of Transfer of Mortgage Servicing Rights | |
vi
EXECUTION COPY
This AMENDED AND RESTATED INDENTURE (as amended, supplemented, restated, or otherwise modified from time to time, the “ Indenture ”), is made and entered into as of December 17, 2013 (the “ Effective Date ”) by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST CS (f/k/a NATIONSTAR SERVICER ADVANCE RECEIVABLES TRUST 2013-CS), a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, in its capacity as Indenture Trustee (the “ Indenture Trustee ” ), and as Calculation Agent, Paying Agent and Securities Intermediary (in each case, as defined below), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware ( “ Advance Purchaser ” ), as Administrator (as defined below) on behalf of the Issuer, as owner of the rights to the servicing rights associated with the servicing under the Designated Servicing Agreements (as defined below), and from and after the respective MSR Transfer Dates (as defined below), as Servicer (as defined below) under the Designated Servicing Agreements, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware ( “ Nationstar ” ), as a Subservicer from and after the respective MSR Transfer Dates, and as Servicer prior to the respective MSR Transfer Dates, and CREDIT SUISSE AG, NEW YORK BRANCH, as Administrative Agent (as defined below), and consented to by 100% of the Noteholders.
RECITALS OF THE ISSUER
The Issuer entered into an Indenture, dated as of July 1, 2013 (the “ Original Indenture ” ), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as Servicer, and Credit Suisse AG, New York Branch, as Administrative Agent. Nationstar has sold (and will sell from time to time) certain rights to the servicing rights under the Designated Servicing Agreements to Advance Purchaser. When all required consents and ratings agency letters required for a formal change of the named servicer under a Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, Nationstar shall transfer to Advance Purchaser certain servicing rights and obligations under such Designated Servicing Agreement (the related “ MSR Transfer Date ”) pursuant to the Master Servicing Rights Purchase Agreement dated as of December 17, 2013 and any applicable related Sale Supplement entered into from time to time, in each case, by and between Nationstar and Advance Purchaser (in each case, as amended, restated, supplemented, or otherwise modified from time to time, the “ Purchase Agreement ”). Nationstar sold certain servicing fees accrued and accruing under the Designated Servicing Agreements to Advance Purchaser pursuant to the Purchase Agreement. Until the MSR Transfer Date with respect to any Designated Servicing Agreement, Nationstar shall continue to be the “Servicer” and to make all required Advances under such Designated Servicing Agreement, and shall sell the related Nationstar Additional Advance Receivables to Advance Purchaser for cash purchase prices equal to 100% of their respective Receivable Balances, immediately upon their creation, pursuant to the Receivables Sale Agreement. Following the MSR Transfer Date for any Designated Servicing Agreement, Advance Purchaser shall be the “Servicer” under such Designated Servicing Agreements, and Advance Purchaser shall thereafter make all required Advances under such Designated Servicing Agreements.
On the Effective Date, Advance Purchaser shall acquire the ownership of 100% of the equity interests in the Depositor from Nationstar, and Advance Purchaser shall assume the role of Administrator of the facility and under the Indenture from Nationstar.
The Issuer’s prior legal name was “Nationstar Servicer Advance Receivables Trust 2013-CS. On the date hereof, the Certificate of Trust was amended to change the name of the Issuer to “NRZ Servicer Advance Receivables Trust CS”.
Whereas, pursuant to Section 12.2 of the Original Indenture, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of 100% of the Noteholders, the Issuer, Nationstar, the Administrative Agent and the Indenture Trustee upon delivery of an Issuer Tax Opinion may enter into one or more amendments to the Original Indenture. As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
Whereas, pursuant to Section 12.3 of the Original Indenture, the Issuer shall also deliver to the Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “ Authorization Opinion ”). The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive the Authorization Opinion and the certificate required by Section 1.3(1) of the Original Indenture and the conditions precedent opinion required by Section 1.3(2) of the Original Indenture, including the corresponding form of documents specified in Section 1.4 of the Original Indenture. The parties hereto have agreed to waive the requirements described in this paragraph.
All defined terms used herein but not otherwise defined shall have the meaning assigned to such term in the Transaction Documents.
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of its Variable Funding and Term Notes to be issued in one or more Series and/or Classes.
All things necessary to make this Indenture a valid agreement of the Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee for the benefit and security of (a) the Noteholders, (b) each Derivative Counterparty, if any, and/or each Supplemental Credit Enhancement Provider, if any, and/or each Liquidity Provider, if any, that is a party to any Derivative Agreement, Supplemental Credit Enhancement Agreement or Liquidity Facility, as applicable, entered into in connection with the issuance of a Series of Notes, and (c) the Indenture Trustee, in its individual capacity (clauses (a), (b) and (c), each, a “ Secured Party ” and collectively, the “ Secured Parties ”), a security interest in all its right, title and interest in and to the following, whether now owned or hereafter acquired and wheresoever located (collectively, the “ Collateral ”), and all monies, “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property” (the terms in quotations are defined in the UCC) and other property consisting of, arising from or relating to any of the following:
(i) all right, title and interest of the Issuer (A) existing as of the Cut-off Date in, to and under the Initial Receivables, and (B) in, to and under any and all Additional Receivables
2
created after the Cut-off Date and on and after the Effective Date, and (C) in the case of both Initial Receivables and Additional Receivables, all monies due or to become due thereon, and all amounts received or receivable with respect thereto, and all proceeds thereof (including “proceeds” as defined in the UCC in effect in all relevant jurisdictions (including, without limitation, any proceeds of any Sales)), together with all rights of the Issuer, as the assignee of the Receivables Seller, to enforce such Receivables (and including any Indemnity Payments made with respect to the Receivables for which a payment is made by the Issuer, the Depositor or the Receivables Seller as described in Section 2.3 );
(ii) all rights of the Issuer as Purchaser under the Receivables Pooling Agreement, including, without limitation, the Issuer’s rights as assignee of the Depositor’s rights under the Receivables Sale Agreement and of the Receivables Seller’s rights under the Receivables Sale Agreement, including, without limitation, the right to enforce the obligations of the Receivables Seller and the Servicer under the Receivables Sale Agreement with respect to the Receivables and the obligations of Nationstar under the Receivables Sale Agreement and any rights of Advance Purchaser against Nationstar with respect to any Nationstar Additional Advance Receivables sold by Nationstar to Advance Purchaser and Advance Purchaser’s rights under the Purchase Agreement with respect to the Additional Deferred Servicing Fees, including, without limitation, the right to enforce the obligations of Nationstar under the Purchase Agreement with respect to remitting collections of Deferred Servicing Fees;
(iii) the Trust Accounts and the Initial Collection Account, and all amounts and property on deposit or credited to the Trust Accounts and the Initial Collection Account (excluding investment earnings thereon) from time to time (whether or not constituting or derived from payments, collections or recoveries received, made or realized in respect of the Receivables);
(iv) all rights of the Issuer under any Derivative Agreement or Supplemental Credit Enhancement Agreement;
(v) all right, title and interest of the Issuer as assignee of the Depositor, the Receivables Seller and the Servicer to rights to payment on the Receivables under each related Designated Servicing Agreement on the related Sale Dates of the Receivables, and under all related documents, instruments and agreements pursuant to which the Receivables Seller acquired, or acquired an interest in, any of the Receivables;
(vi) all other monies, securities, reserves and other property now or at any time in the possession of the Indenture Trustee or its bailee, agent or custodian and relating to any of the foregoing; and
(vii) all present and future claims, demands, causes and choses in action in respect of any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in respect of, any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, checks, deposit accounts, rights to payment of any and every kind, and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing.
3
The Security Interest in the Trust Estate is Granted to secure the Notes issued pursuant to this Indenture (and the obligations under this Indenture, any Indenture Supplement and any applicable Derivative Agreement, Supplemental Credit Enhancement Agreement and/or Liquidity Facility) equally and ratably without prejudice, priority or distinction between any Note and any other Note by reason of difference in time of issuance or otherwise, except as otherwise expressly provided in this Indenture or in any Indenture Supplement, and to secure (1) the payment of all amounts due on such Notes and the obligations under any applicable Derivative Agreement, Supplemental Credit Enhancement Agreement and/or Liquidity Facility in accordance with their terms, (2) the payment of all other sums payable by the Issuer under this Indenture or any Indenture Supplement and (3) compliance by the Issuer with the provisions of this Indenture or any Indenture Supplement. This Indenture, as it may be supplemented, including by each Indenture Supplement, is a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the Grant of such Security Interest, and agrees to perform the duties herein in accordance with the terms hereof. The Indenture Trustee also acknowledges that the Grant of any Security Interest in a Derivative Agreement or Derivative Collateral Account is solely for the purpose of securing the related Series of Notes (and the related obligations under this Indenture, any related Indenture Supplement, such Derivative Agreement and any related Supplemental Credit Enhancement Agreement). Although such Derivative Agreement, the Derivative Collateral Account and the amounts and property on deposit or credited to the Derivative Collateral Account may, in the exercise of remedies under this Indenture and any related Indenture Supplement, be disposed of as provided in this Indenture, any related Indenture Supplement and such Derivative Agreement, the exercise of remedies under such Derivative Agreement against any such amounts and property in the Derivative Collateral Account shall be strictly in accordance with the terms set forth in such Derivative Agreement.
The Issuer hereby authorizes the Administrator, on behalf of the Issuer and the Indenture Trustee, and its assignees, successors and designees to file one or more UCC financing statements, financing statement amendments and continuation statements to perfect the security interest Granted above. In addition, the Issuer hereby consents to the filing of a financing statement describing the Collateral covered thereby as “all assets of the Debtor, now owned or hereafter acquired,” or such similar language as the Administrator, on behalf of the Indenture Trustee, and its assignees, successors and designees may deem appropriate.
The Issuer hereby irrevocably constitutes and appoints the Indenture Trustee and any officer or agent thereof, effective upon the occurrence and continuation of an Event of Default, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Issuer and in the name of the Issuer, for the purpose of carrying out the terms of this Indenture and each Indenture Supplement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Indenture, each Indenture Supplement, the Receivables Sale Agreement and the Receivables Pooling Agreement, and, without limiting the generality of the foregoing, the Issuer hereby gives the Indenture Trustee the power and right
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(1) to take possession of and endorse and collect any wired funds, checks, drafts, notes, acceptances or other instruments for the payment of moneys due under any Receivable Granted by the Issuer to the Indenture Trustee from the related Mortgage Pool, the Obligors on underlying Mortgage Loans, the Receivables Seller or the Servicer, as the case may be, (2) to file any claim or proceeding in any court of law or equity or take any other action otherwise deemed appropriate by the Indenture Trustee for the purpose of collecting any and all such moneys due from the related Mortgage Pool, the Obligors on underlying Mortgage Loans, the Receivables Seller or the Servicer or the related Subservicer under such Receivable whenever payable and to enforce any other right in respect of any Receivable Granted by the Issuer or related to the Trust Estate, (3) to direct the related MBS Trustee or the Servicer or Subservicer to make payment of any and all moneys due or to become due under the Receivable Granted by the Issuer directly to the Indenture Trustee or as the Indenture Trustee shall direct, (4) to ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due from the related Mortgage Pool or the Servicer or Subservicer at any time in respect of or arising out of any Receivable Granted by the Issuer, (5) to sign and endorse any assignments, notices and other documents in connection with the Receivables Granted by the Issuer or the Trust Estate, and (6) to sell, transfer, pledge and make any agreement with respect to or otherwise deal with the Receivables Granted by the Issuer and the Trust Estate as fully and completely as though the Indenture Trustee were the absolute owner thereof for all purposes, and do, at the Indenture Trustee’s option and at the expense of the Issuer, at any time, or from time to time, all acts and things which the Indenture Trustee deems necessary to protect, preserve or realize upon the Receivable Granted by the Issuer or the Trust Estate and the Indenture Trustee’s and the Issuer’s respective security interests and ownership interests therein and to effect the intent of this Indenture, all as fully and effectively as the Issuer might do. Nothing contained herein shall in any way be deemed to be a grant of power or authority to the Indenture Trustee or any officer or agent thereof to take any of the actions described in this paragraph with respect to any underlying Obligor under any Mortgage Loan, for which an Advance was made or Deferred Servicing Fee was accrued.
The parties hereto intend that the Security Interest Granted under this Indenture shall give the Indenture Trustee on behalf of the Secured Parties a first priority perfected security interest in, to and under the Collateral, and all other property described in this Indenture as a part of the Trust Estate and all proceeds of any of the foregoing in order to secure the obligations of the Issuer to the Indenture Trustee, the Noteholders under the Notes, and to any Derivative Agreement, Supplement Credit Enhancement Provider and/or any Liquidity Provider under this Indenture, the related Indenture Supplement and all of the other Transaction Documents. The Indenture Trustee on behalf of the Secured Parties shall have all the rights, powers and privileges of a secured party under the UCC. The Issuer agrees to execute and file all filings (including filings under the UCC) and take all other actions reasonably necessary in any jurisdiction to provide third parties with notice of the Security Interest Granted pursuant to this Indenture and to perfect such Security Interest under the UCC.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and conditions upon which the Notes are to be authenticated, issued and delivered, and in consideration of the premises and the purchase of Notes by the Noteholders thereof, it is mutually covenanted and agreed as set forth in this Indenture, for the equal and proportionate benefit of all Noteholders of the Notes or of a Series or Class thereof, as the case may be.
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LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and other amounts on the Notes and to make payments in respect of any Derivative Agreements, Supplemental Credit Enhancement Agreements or Liquidity Facilities is limited in recourse as set forth in Section 8.10 .
Article I
Definitions and Other Provisions of General Application
| Section 1.1. | Definitions. |
Act : When used with respect to any Noteholder, is defined in Section 1.5 .
Accumulation Account : Any of the Fee Accumulation Account, Interest Accumulation Account or Target Amortization Principal Accumulation Account, as applicable.
Accumulation Amount : Any of the Fee Accumulation Amount, Interest Accumulation Amount or Target Amortization Principal Accumulation Amount, as applicable.
Action : When used with respect to any Noteholder, is defined in Section 1.5 .
Additional Deferred Servicing Fee Receivables : Each Deferred Servicing Fee Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created.
Additional Receivables : All Receivables created or acquired on or after the Cut-off Date which are (i) the Nationstar Additional Advance Receivables sold by the Servicer to the Receivables Seller under the Receivables Sale Agreement and the Additional Deferred Servicing Fee Receivables that arise when servicing fees that were sold by Nationstar to Advance Purchaser under the Purchase Agreement become Deferred Servicing Fee Receivables and/or which are (ii) sold and/or contributed by (A) Advance Purchaser to the Depositor pursuant to the Receivables Sale Agreement, as described in Section 2(a) of the Receivables Sale Agreement and (B) the Depositor to the Issuer pursuant to the Receivables Pooling Agreement. Any Receivables (x) created at any time with respect to a Mortgage Pool or a Mortgage Loan with respect to which Nationstar no longer acts at such time as Servicer prior to the related MSR Transfer Date, or as to which Advance Purchaser no longer acts as Servicer from and after the related MSR Transfer Date or (y) sold and/or contributed to the Depositor or the Issuer on or after a Stop Date pursuant to Section 2(e) of the Receivables Sale Agreement or Section 2(d) the Receivables Pooling Agreement shall not constitute Additional Receivables.
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Administration Agreement : The Amended and Restated Administration Agreement, dated as of the Effective Date, by and between the Issuer and the Administrator, as amended, supplemented, restated, or otherwise modified from time to time.
Administrative Agent : (a) initially, Credit Suisse AG, New York Branch or any Affiliate of the foregoing or any successor thereto in respect of the Series of Notes for which it is designated as an Administrative Agent therefor in the related Indenture Supplement, and (b) in respect of any Series, the Person(s) specified in the related Indenture Supplement. Unless the context indicates otherwise in any Indenture Supplement for such Indenture Supplement, each reference to the “Administrative Agent” herein or in any other Transaction Document shall be deemed to constitute a collective reference to each Person that is an Administrative Agent. If (x) any Person that is an Administrative Agent resigns as an Administrative Agent in respect of all Series for which it was designated as the Administrative Agent or (y) all of the Notes in respect of each Series for which any Person was designated as the Administrative Agent are repaid or redeemed in full, such Person shall cease to be an “Administrative Agent” for purposes hereof and each other Transaction Document.
Administrative Expenses : Any amounts due from or accrued for the account of the Issuer with respect to any period for any administrative expenses incurred by the Issuer, including without limitation (i) to any accountants, agents, counsel and other advisors of the Issuer (other than the Owner Trustee) for fees and expenses; (ii) to the rating agencies for fees and expenses in connection with any rating of the Notes; (iii) to any other person in respect of any governmental fee, charge or tax; (iv) to any other Person (other than the Owner Trustee) in respect of any other fees or expenses permitted under this Indenture (including indemnities) and the documents delivered pursuant to or in connection with this Indenture and the Notes; (v) any and all fees and expenses of the Issuer incurred in connection with its entry into and the performance of its obligations under any of the agreements contemplated by this Indenture; (vi) the orderly winding up of the Issuer following the cessation of the transactions contemplated by this Indenture; and (vii) any and all other fees and expenses properly incurred by the Issuer in connection with the transactions contemplated by this Indenture, but not in duplication of any amounts specifically provided for in respect of the Indenture Trustee, the Owner Trustee, the Administrator or any VFN Noteholder.
Administrator : Advance Purchaser in its capacity as the Administrator on behalf of the Issuer and any successor to Advance Purchaser in such capacity.
Advance : Any P&I Advance, Escrow Advance or Corporate Advance.
Advance Collection Period : (i) For the first Interim Payment Date or Payment Date, the period beginning on the Cut-off Date and ending at the end of the day before the Determination Date for such Interim Payment Date or Payment Date, and (ii) for each other Interim Payment Date and Payment Date, the period beginning at the opening of business on the most recent preceding Determination Date and ending as of the close of business on the day before the Determination Date for such Interim Payment Date or Payment Date.
Advance Purchaser : Has the meaning set forth in the Preamble.
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Advance Rate : With respect to any Series of Notes, and for any Class within such Series, if applicable, and with respect to any Receivables related to any particular Advance Type (and attributable to any particular Designated Servicing Agreement, if so specified in the related Indenture Supplement), the percentage specified for such Advance Type (and attributable to such Designated Servicing Agreement, if applicable) as its “Advance Rate” in the Indenture Supplement for such Series, as reduced by any applicable Advance Rate Reduction Factor.
Advance Rate Reduction Factor : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Advance Receivable : Any of a Corporate Advance Receivable, Escrow Advance Receivable or P&I Advance Receivable.
Advance Reimbursement Amount : (i) With respect to any Advance, any amount which the Servicer or the Indenture Trustee as the Servicer’s assignee, collects on a Mortgage Loan, withdraws from a Custodial Account or receives from an MBS Trustee or any successor servicer, to reimburse an Advance made by the Servicer or any predecessor servicer (including reimbursement of P&I Advances which were advanced using Amounts Held for Future Distribution) pursuant to a Designated Servicing Agreement; or (ii) with respect to any Deferred Servicing Fee Receivable, any amounts paid to (or retained by) the Servicer on account of the related Deferred Servicing Fees pursuant to a Designated Servicing Agreement.
Advance Type : Judicial P&I Advances (loan level), Judicial P&I Advances (non-loan level), Non-Judicial P&I Advances (loan level), Non-Judicial P&I Advances (non-loan level), Judicial Escrow Advances (loan level), Judicial Escrow Advances (non- loan level), Non-Judicial Escrow Advances (loan level), Non-Judicial Escrow Advances (non-loan level), Judicial Corporate Advances (loan level), Judicial Corporate Advances (non-loan level), Non-Judicial Corporate Advances (loan level), Non-Judicial Corporate Advances (non-loan level), Judicial Deferred Servicing Fees (loan level), Judicial Deferred Servicing Fees (non-loan level), Non-Judicial Deferred Servicing Fees (loan level) and Non-Judicial Deferred Servicing Fees (non-loan level).
Advance Type Allocation Percentage : In respect of any Advance Type of Receivables with a non-zero Advance Rate for such Series, a percentage equal to: (i) the Series Invested Amount for such Series divided by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Receivables of such Advance Type.
Advance Type Amount : For any Advance Type of Receivables for any Series that has a non-zero Advance Rate, an amount equal to the product of (a) the Advance Type Allocation Percentage for such Series for such Advance Type of Receivables and (b) the aggregate Receivable Balances of all Receivables of such Advance Type.
Adverse Claim : A lien, security interest, charge, encumbrance or other right or claim of any Person (other than the liens created in favor of the Secured Parties or assigned to the Secured Parties by (i) this Indenture, (ii) the Receivables Pooling Agreement, (iii) the Receivables Sale Agreement, (iv) the Purchase Agreement or (v) any other Transaction Document).
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Adverse Effect : Whenever used in this Indenture with respect to any Series or Class of Notes and any event, means that such event is reasonably likely, at the time of its occurrence, to (i) result in the occurrence of a Facility Early Amortization Event, as applicable, or a Target Amortization Event relating to such Series or Class of Notes, (ii) adversely affect (A) the amount of funds available to be paid to the Noteholders of such Series or Class of Notes or any Derivative Counterparty pursuant to this Indenture, (B) the timing of such payments or (C) the rights or interests of the Noteholders of such Series or Class, any related Derivative Counterparty, any related Supplemental Credit Enhancement Provider or any related Liquidity Provider, (iii) adversely affect the Security Interest of the Indenture Trustee for the benefit of the Secured Parties in the Collateral unless otherwise permitted by this Indenture, or (iv) adversely affect the collectability of the Receivables.
Affiliate : With respect to any specified Person, any other Person directly or indirectly Controlling or Controlled by or under direct or indirect common Control with such specified Person.
Aggregate Receivables : As of any date of determination, all Initial Receivables and all Additional Receivables on such date, (a) which Initial Receivables were sold and/or contributed prior to the Effective Date by Nationstar, as Receivables Seller, to the Depositor under the Receivables Sale Agreement and sold and/or contributed by the Depositor to the Issuer under the Receivables Pooling Agreement, and (b) (1) which Nationstar Additional Advance Receivables are sold to Advance Purchaser by Nationstar under the Receivables Sale Agreement and (2) which Additional Deferred Servicing Fee Receivables arise when servicing fees that were sold to Advance Purchaser by Nationstar under the Purchase Agreement become Deferred Servicing Fee Receivables (or, after the related MSR Transfer Date, are earned by Advance Purchaser, as Servicer) and which aggregate Additional Receivables are sold and/or contributed by Advance Purchaser to the Depositor under the Receivables Sale Agreement and which aggregate Additional Receivables are sold and/or contributed by the Depositor to the Issuer under the Receivables Pooling Agreement.
Amounts Held for Future Distribution : As defined in Section 4.2(c) .
Applicable Law : As defined in Section 4.1 .
Applicable Rating : For each Class of Notes, the rating(s) specified as such for such Class in the related Indenture Supplement, if applicable.
Authenticating Agent : Any Person authorized by the Indenture Trustee to authenticate Notes under Section 11.12 .
Authorized Signatory : With respect to any entity, each Person duly authorized to act as a signatory of such entity at the time such Person signs on behalf of such entity.
Available Funds : (i) With respect to any Interim Payment Date, all Collections on the Receivables received during the related Advance Collection Period and deposited into the Collection and Funding Account and any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” for such Interim Payment Date, plus any amounts released from the Accumulation Accounts on such Interim Payment Date pursuant to Section 4.7(d) ; and (ii) with respect to any Payment Date, the sum of (A) all amounts on deposit in the Fee Accumulation
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Account, the Interest Accumulation Account and any Target Amortization Principal Accumulation Account ( provided that the amounts on deposit in the Target Amortization Principal Accumulation Account may only be used to pay the Target Amortization Amounts to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement) at the close of business on the last Interim Payment Date during the related Monthly Advance Collection Period plus (B) all Collections received during the final Advance Collection Period during the immediately preceding Monthly Advance Collection Period and deposited into the Collection and Funding Account (in each case, adjusted to reflect all deposits and payments on any Funding Date that may occur after the end of such Advance Collection Period, but prior to such Payment Date or Interim Payment Date, and not including any such funds required to be returned to a VFN Noteholder pursuant to this Indenture due to any failure to utilize amounts provided by such VFN Noteholder to use amounts drawn hereunder in a manner permitted hereby), plus (C) any proceeds received by the Issuer under any Supplemental Credit Enhancement Agreement for any Class of Notes ( provided that such proceeds may only be used to pay amounts due to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement), plus (D) any income from Permitted Investments in Trust Accounts that have been established for the benefit of all Series of Notes, plus (E) if such Payment Date occurs during the Full Amortization Period, the amounts on deposit in (or credited thereto) each Sinking Fund Account, plus (F) any proceeds received by the Issuer under any Derivative Agreement for any Class of Notes (provided that such proceeds may only be used to pay amounts due to those Classes that are entitled to receive those amounts in accordance with the related Indenture Supplement and for so long as such Classes of Notes are not repaid in full or refinanced) plus (G) any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” for such Payment Date.
Bankruptcy Code : The Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et seq. , as amended.
Book-Entry Notes : A note registered in the name of the Depository or its nominee, ownership of which is reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly or as an indirect participant in accordance with the rules of such Depository); provided , that after the occurrence of a condition whereupon Definitive Notes are to be issued to Note Owners, such Book-Entry Notes shall no longer be “Book-Entry Notes.”
Borrowing Capacity : For any VFN on any date, the difference between (i) the related Maximum VFN Principal Balance on such date and (ii) the related VFN Principal Balance on such date.
Business Day : For any Class of Notes, any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, Kansas City, Missouri, Lewisville, Texas, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
Calculation Agent : The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as calculation agent pursuant to the terms of this Indenture.
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Cease Pre-Funding Notice : As defined in Section 4.3(c) .
Certificate of Authentication : The certificate of the Indenture Trustee, the form of which is described in Section 5.3 , or the alternative certificate of the Authenticating Agent, the form of which is described in Section 11.11 .
Class : With respect to any Notes, the class designation assigned to such Note in the related Indenture Supplement. A Series issued in one class, with no class designation in the related Indenture Supplement, may be referred to herein as a “Class.”
Class 1 Specified Notes : Any Class of Note with respect to which the Issuer does not receive an opinion of nationally recognized tax counsel on the related Issuance Date that such Class of Notes “will” be treated as indebtedness for U.S. federal income tax purposes and that is designated as a Class 1 Specified Note in the related Indenture Supplement.
Class 2 Specified Notes : Any Class of Note with respect to which the Issuer does not receive an opinion of nationally recognized tax counsel on the related Issuance Date that such Class of Notes “will” be treated as indebtedness for U.S. federal income tax purposes and that is not designated as a Class 1 Specified Note in the related Indenture Supplement.
Class Invested Amount : For any Class of Notes on any date, an amount equal to (i) the sum of (A) the outstanding Note Balance of such Class, plus (B) the aggregate outstanding Note Balances of all Classes within the same Series that are senior to or pari passu with such Class on such date, divided by (ii) the Weighted Average CV Adjusted Advance Rate in respect of such Class (after giving effect to amounts collected on the Receivables as of such date).
Clearing Corporation : As defined in Section 8-102(a)(5) of the UCC.
Closing Date : July 1, 2013.
Code : The Internal Revenue Code of 1986, as amended.
Collateral : As defined in the Granting Clause.
Collateral Performance Test : A collateral performance benchmark or similar test or “trigger” in a Designated Servicing Agreement, the failure of which results in the occurrence of a Servicer Termination Event pursuant to the terms of such Designated Servicing Agreement.
Collateral Test : A test designed to measure, on any date of determination, whether each Series of Notes is adequately collateralized on such date and the satisfaction of which is achieved on any date of determination if, with respect to each Series the sum of:
(1) the aggregate Advance Type Amounts for each Advance Type of Receivables for such Series that has a non-zero Advance Rate;
(2) the product of the Series Allocation Percentage and all Collections on deposit in the Trust Accounts (other than the Series Reserve Account for such Series and the Sinking Fund Account for such Series, if applicable) on such date (after giving effect to any required payments on such date, if any) and
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(3) if such Series has any Sinking Fund Accounts, the aggregate amounts on deposit in such Sinking Fund Accounts,
shall be greater than or equal to the Series Invested Amount for such Series on such date (after giving effect to any required payments on such date, if any).
Collateral Value : For any Receivable and for any Series on any date, the product of (i) the Receivable Balance of such Receivable and (ii) the lesser of (A) the highest Advance Rate applicable to the Advance Type of such Receivable in respect of any Class within such Series, and (B) the highest Trigger Advance Rate (if any) for any Class within such Series; provided , that the Collateral Value shall be zero for any Receivable that is not a Facility Eligible Receivable, unless otherwise provided in the related Indenture Supplement.
Collection and Funding Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee for the NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Collection and Funding Account.”
Collections : The amount of Advance Reimbursement Amounts, cash collected in reimbursement or payment of Receivables in the Trust Estate, during each Advance Collection Period, plus the proceeds of any Permitted Refinancing or of any Indemnity Payments.
Control , Controlling or Controlled : The possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
Corporate Advance : Collectively, (i) any advance made by the Servicer (including any predecessor servicer) and reimbursable to the Servicer pursuant to a Designated Servicing Agreement, to inspect, protect, preserve or repair properties that secure Mortgage Loans or that have been acquired through foreclosure or deed in lieu of foreclosure or other similar action pending disposition thereof, or for similar or related purposes, including, but not limited to, necessary legal fees and costs expended or incurred by the Servicer (including any predecessor servicer) in connection with foreclosure, bankruptcy, eviction or litigation actions with or involving Obligors on Mortgage Loans, as well as costs to obtain clear title to such a property, to protect the priority of the lien created by a Mortgage Loan on such a property, and to dispose of properties taken through foreclosure or by deed in lieu thereof or other similar action, (ii) any advance made by the Servicer (including any predecessor servicer) pursuant to a Designated Servicing Agreement to foreclose or undertake similar action with respect to a Mortgage Loan, and (iii) any other out of pocket expenses incurred by the Servicer (including any predecessor servicer) pursuant to a Designated Servicing Agreement (including, for example, costs and expenses incurred in loss mitigation efforts and in processing assumptions of Mortgage Loans).
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Corporate Advance Receivable : Any Receivable representing the right to be reimbursed for a Corporate Advance.
Corporate Advance Reimbursement Amount : Any amount collected under any Designated Servicing Agreement from Mortgage Loan Obligors or otherwise, which amount, by the terms of such Designated Servicing Agreement, is payable to the Servicer to reimburse Corporate Advances disbursed by the Servicer (or any predecessor servicer).
Corporate Trust Office : For each Series of Notes, as specified in the related Indenture Supplement.
Cumulative Interest Shortfall Amount : For any Payment Date and any Class of Notes, any portion of the Interest Payment Amount for that Class for a previous Payment Date that has not been paid, plus accrued and unpaid interest at the applicable Note Interest Rate on such shortfall from the Payment Date on which the shortfall first occurred through the current Payment Date.
Custodial Account : For each Mortgage Pool, the segregated, non-commingled account or accounts, specified in the related Designated Servicing Agreement, into which the Servicer is required to deposit Collections with respect to the Mortgage Loans serviced under that Designated Servicing Agreement, which may be called a “Certificate Account,” a “Custodial Account,” a “Custodial P&I Account,” a “Principal and Interest Account” or be known by another name specified in the related Designated Servicing Agreement.
Custodian : As defined in Section 2.4(a) .
Cut-off Date : Two (2) Business Days before the initial Funding Date.
Default Rate : For any Series or Class of Notes, the sum (expressed as a percentage) of the Note Interest Rate for such Class and a per annum percentage specified in the related Indenture Supplement.
Defaulting Counterparty Termination Payments : Any Early Termination Amount payable to the Derivative Counterparty under the related Derivative Agreement as the result of the designation of an “Early Termination Date” under such Derivative Agreement due to either (x) the occurrence of an Event of Default with respect to which the related Derivative Counterparty is the Defaulting Party or (y) an Additional Termination Event with respect to which such Derivative Counterparty is the sole Affected Party. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the related Derivative Agreement.
Deferred Servicing Fee : The right to payment for accrued but unpaid servicing fees earned by the Servicer (or any predecessor servicer) that are accrued and unpaid on the related monthly remittance date following the related due date but not to exceed the pro rata portion of such servicing fees that have been sold by Nationstar to Advance Purchaser pursuant to the Purchase Agreement.
Deferred Servicing Fee Receivable : Any Receivable representing the right to receive payment for any Deferred Servicing Fee pursuant to the terms and provisions of a Designated Servicing Agreement.
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Definitive Note : A Note issued in definitive, fully registered form evidenced by a physical Note.
Depositor : NRZ Servicer Advance Facility Transferor CS, LLC, a Delaware limited liability company, wholly owned by Advance Purchaser.
Depository : Initially, the Depository Trust Company, the nominee of which is Cede & Co., and any permitted successor depository. The Depository shall at all times be a Clearing Corporation.
Depository Agreement : For any Series or Class of Book-Entry Notes, the agreement among the Issuer, the Indenture Trustee and the Depository, dated as of the related Issuance Date, relating to such Notes.
Depository Participant : A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
Derivative Account : As defined in the related Indenture Supplement, if applicable.
Derivative Agreement : Any currency, interest rate or other swap, cap, collar, guaranteed investment contract or other derivative agreement entered into by the Issuer or the Indenture Trustee (at the direction of and on behalf of the Issuer) in connection with any Class or Series of Notes and identified in the related Indenture Supplement, if applicable.
Derivative Collateral Account : As defined in the related Indenture Supplement, if applicable.
Derivative Counterparty : Any party to any Derivative Agreement other than the Issuer or the Indenture Trustee, if applicable.
Designated Servicing Agreement : As of any date, any Servicing Agreement as to which the related Receivables have been sold and contributed prior to the Effective Date by Nationstar to Depositor, and as to which the related Nationstar Additional Advance Receivables are being sold by Nationstar to Advance Purchaser pursuant to the Receivables Sale Agreement and as to which the related Receivables are being sold and/or contributed by Advance Purchaser to the Depositor pursuant to the Receivables Sale Agreement and sold and/or contributed by the Depositor to the Issuer pursuant to the Receivables Pooling Agreement and pledged by the Issuer hereunder as part of the Trust Estate, which Servicing Agreement is listed on the Designated Servicing Agreement Schedule in accordance with Section 2.1(c) on such date.
Designated Servicing Agreement Schedule : As of any date, the list attached hereto as Schedule 1 , as it may be amended from time to time in accordance with Section 2.1(c) .
Designation Date : The date that the Servicer (prior to the Effective Date) or the Administrator (after the Effective Date) designates a Facility Eligible Servicing Agreement as a Designated Servicing Agreement. Any Designated Servicing Agreement listed on any schedule hereto as of the initial Funding Date shall be deemed to have a “Designation Date” as of the initial Funding Date (or such other date as may be agreed to by the Administrative Agent).
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Determination Date : In respect of any Payment Date or Interim Payment Date, the third Business Day before such Payment Date or Interim Payment Date.
Determination Date Report : A report delivered by the Administrator or the Sub-Administrator on behalf of the Administrator as described in Section 3.2(a) , which shall be delivered in the form of one or more electronic files.
Disbursement Report : As defined in Section 4.3(e) .
Distribution Compliance Period : In respect of any Regulation S Global Note or Regulation S Definitive Note, the forty (40) consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S under the Securities Act) pursuant to Regulation S and (b) the Issuance Date for such Notes.
Effective Date : Has the meaning set forth in the Preamble.
Eligible Account : Any of (a) an account or accounts maintained with a depository institution with a short-term rating of at least “A-1” by S&P, (or a long-term rating of at least “A” if the short-term rating is not available), and that is (i) a federal savings and loan association duly organized, validly existing and in good standing under the federal banking laws of the United States, (ii) a banking or savings and loan association duly organized, validly existing and in good standing under the applicable laws of any state, (iii) a national banking association duly organized, validly existing and in good standing under the federal banking laws of the United States, or (iv) a principal subsidiary of a bank holding company; or (b) a segregated trust account maintained in the trust department of a federal or state chartered depository institution or trust company in the United States, having capital and surplus of not less than $50,000,000, and meeting the rating requirements described in clause (a) above, acting in its fiduciary capacity.
Eligible Non-FIFO Receivable : Any Non-FIFO Receivable that is not a Loan-Level Receivable; provided , that six (6) months after the related Designation Date of the related Designated Servicing Agreement such Non-FIFO Receivable shall no longer be an Eligible Non-FIFO Receivable to the extent that such Designated Servicing Agreement has not been amended previously such that the related Receivables are no longer Non-FIFO Receivables.
Eligible Subservicer : (A) Select Portfolio Servicing, Inc. (“ SPS ”) for so long as it is under the “control” (as defined in the Exchange Act) of the Administrative Agent or one of its affiliates or (B) otherwise, an established mortgage servicer who (i) meets the criteria to be an eligible successor Servicer under the related Servicing Agreement(s), (ii) meets the minimum financial requirements of Fannie Mae and Freddie Mac approved servicers, (iii) with respect to a Subservicer other than in the case of Nationstar, has a servicer rating of at least “Average” from S&P, (iv) has been approved by the Administrative Agent in writing in its sole discretion (Nationstar having been so approved so long as it continues to meet the criteria in clauses (i) and (ii)) and (v) in the case of any Subservicer other than Nationstar or SPS, is subject to such financial tests and control tests and other ongoing tests for eligibility as are required by the Administrative Agent in its sole discretion. SPS is controlled by the Administrative Agent or an affiliate thereof on the date hereof and is therefore an Eligible Subservicer on the date hereof.
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Eligible Subservicing Agreement : A subservicing agreement that (i) has been approved by the Administrative Agent by signed instrument (the SPS Subservicing Agreement having been so approved), (ii) that has not been assigned or amended without the Administrative Agent’s written consent, and (iii) is terminable only for cause. For the avoidance of doubt, any subservicing agreement documenting the division of servicing income, rights and responsibilities between Nationstar and Advance Purchaser before the related MSR Transfer Date shall be considered a Subservicing Agreement that is required to be an Eligible Subservicing Agreement, with Advance Purchaser as Servicer and Nationstar as Subservicer and reported as such, notwithstanding the fact that during this period Nationstar is the Servicer under the Designated Servicing Agreements; provided, that a written subservicing agreement which is an Eligible Subservicing Agreement with Nationstar as Subservicer is in place before the first MSR Transfer Date. The provisions in the Purchase Agreement that relate to servicing shall constitute an “Eligible Subservicing Agreement” as they are written as of the date hereof.
Employee Benefit Plan : As defined in Section 6.5(k) .
Entitlement Order : As defined in Section 8-102(a)(8) of the UCC.
ERISA : The Employee Retirement Income Security Act of 1974, as amended.
Escrow Advance : An advance made by the Servicer (including any predecessor servicer) with respect to a Mortgage Loan pursuant to the Servicer’s obligation to do so under the related Designated Servicing Agreement, of real estate taxes and assessments, or of hazard, flood or primary mortgage insurance premiums, required to be paid (but not otherwise paid) by the related Obligor under the terms of the related Mortgage Loan.
Escrow Advance Receivable : Any Receivable representing the right to be reimbursed for an Escrow Advance.
Euroclear : Euroclear Bank S.A./N.V. as operator of the Euroclear System, and any successor thereto.
Event of Default : As defined in Section 8.1 .
Excess Cash Amount : On any Payment Date or Interim Payment Date, the amount of Available Funds remaining following the allocation and payments set forth pursuant to Sections 4.4(a) through (h) or Sections 4.5(a)(1)(i) through (x) , as applicable.
Excess Receivables Funding Amount : On any Funding Date, the amount that could be drawn on a VFN without violating the Collateral Test, after all the New Receivables Funding Amounts to be drawn on such VFN have been drawn.
Excess Servicing Fees : Current and future excess servicing compensation of Nationstar.
Excess Spread Purchasers : Collectively, certain affiliates of New Residential Investment Corp.
Exchange Act : The Securities Exchange Act of 1934, as amended.
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Expected Repayment Date : For each Class of Notes, as specified in the related Indenture Supplement.
Expense Limit : With respect to expenses and indemnification amounts, for the Owner Trustee and the Indenture Trustee (in all its capacities), pro rata, $250,000 in any calendar year and $125,000 for any single Payment Date; and for other Administrative Expenses, $50,000 in any calendar year; provided that the Expense Limit shall only apply to distributions made pursuant to Section 4.5(a)(1)(i) and (ii) and Section 4.5(a)(2)(i) and (ii) ; and provided , further , that any amounts in excess of the Expense Limit that have not been paid pursuant to Section 4.5 may be applied toward and subject to the Expense Limit for the subsequent calendar year and payable in a subsequent calendar year.
Facility Early Amortization Event : Any of the following conditions or events, which is not waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and 100% of the VFN Noteholders:
(i) the occurrence of any Event of Default;
(ii) following a Payment Date on which a draw is made on a Series Reserve Account, the amount on deposit in such Series Reserve Account is not increased back to the related Series Reserve Required Amount on or prior to the next Payment Date;
(iii) (A) any United States federal income tax is imposed on the Issuer as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes or any U.S. withholding tax is imposed on payments with respect to the Receivables or (B) a tax, ERISA, or other government lien, in any case, other than Permitted Liens, is imposed on the Receivables or any property of the Issuer or the Depositor;
(iv) failure of the Collateral Test at the end of any Advance Collection Period or at the close of business on the Determination Date for any Payment Date, Interim Payment Date or Funding Date (in each case assuming that all payments and fundings described in the reports delivered in respect of the related Determination Date are paid and funded), any date on which Additional Notes are issued, any date on which the VFN Principal Balance of any VFN is increased, any date on which a Designated Servicing Agreement is added to or removed from the Trust Estate, or any date on which a Receivable becomes ineligible by virtue of an Unmatured Default or notice of a threatened termination as described in clause (a)(A) of the definition of “Facility Eligible Servicing Agreement”, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of two (2) days; provided, however, that if such failure results solely (i) from Receivables no longer being Facility Eligible Receivables because of an Unmatured Default or a threatened termination, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of thirty (30) days following the Servicer’s Responsible Officer’s receipt of such notice of or obtaining such actual knowledge; (ii) from a reduction in aggregate Collateral Value as a result of the Weighted Average Advance Rate for such Series or Class being higher than the Trigger Advance Rate for such Series
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or Class, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a period of five (5) days; (iii) from the occurrence of a Ratings Reduction, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied ninety (90) days following the occurrence of such Ratings Reduction (provided, however, that if such failure results from the occurrence of a Ratings Reduction that causes Nationstar’s sub-prime servicer rating to be reduced below “Below Average” by S&P, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied thirty (30) days following the occurrence of such Ratings Reduction); and (iv) from an Other Advance Rate Reduction Event, such failure shall become a Facility Early Amortization Event only if such failure continues unremedied for a number of days greater than or equal to the Other Advance Rate Reduction Event Cure Period following the occurrence of such Other Advance Rate Reduction Event;
(v) the Receivables Seller fails to sell and/or contribute all Additional Receivables related to the Designated Servicing Agreements by the first Funding Date on or after the date that is thirty (30) days after the date upon which such Receivable was created ( provided that any Deferred Servicing Fee Receivable shall not be deemed “created” until the related servicing fee is accrued and unpaid on the related monthly remittance date following the related due date) and the Receivables Seller has actual knowledge of such failure;
(vi) the sale and/or contribution by the Servicer of Receivables in respect of any Mortgage Pool to any Person other than the Issuer other than pursuant to the terms and provisions of the Transaction Documents; or
(vii) the Receivables Seller’s status as an approved seller or the Servicer’s or the Subservicer’s status as an approved servicer of residential mortgages is terminated by either Fannie Mae or Freddie Mac; provided , however , that if the Receivables Seller, the Servicer or the Subservicer no longer sells or services mortgage loans, as the case may be, under the Fannie Mae or Freddie Mac loan programs, the Receivables Seller, the Servicer or the Subservicer, as applicable, is not required to maintain its status as an approved seller or approved servicer, respectively, of residential mortgage loans by Fannie Mae or Freddie Mac, as the case may be.
Facility Eligible Receivable : A Receivable which for the avoidance of doubt does not arise under an Ineligible Designated Servicing Agreement and which:
(i) which constitutes a “general intangible” or “payment intangible” within the meaning of Section 9-102(a)(42) or Section 9-102(a)(61) or, in the case of a Deferred Servicing Fee Receivable, an “account” within the meaning of Section 9-102(a)(2), as applicable (or the corresponding provision in effect in a particular jurisdiction) of the UCC as in effect in all applicable jurisdictions;
(ii) which is denominated and payable in United States dollars;
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(iii) which arises under and pursuant to the terms of a Designated Servicing Agreement and, at the time the related Advance was made or the related Deferred Servicing Fee accrued, (A) was determined by the Servicer or Subservicer, as applicable, in good faith to (1) be ultimately recoverable from the proceeds of the related Mortgage Loan, related liquidation proceeds or otherwise from the proceeds of or collections on the related Mortgage Loan and (2) comply with all requirements for reimbursement or payment under, the related Servicing Agreement and as to which the Servicer has complied with all of the requirements for reimbursement under the related Servicing Agreement, and (B) was authorized pursuant to the terms of the related Designated Servicing Agreement;
(iv) as to which all right, title and interest in and to such Receivable (including good and marketable title) have been validly sold and/or contributed by the Receivables Seller to the Depositor, and validly sold and/or contributed by the Depositor to the Issuer and, prior to the related MSR Transfer Date, sold by the Servicer to the Receivables Seller;
(v) with respect to which no representation or warranty made by the Receivables Seller or the Servicer in the Receivables Sale Agreement has been breached, which breach has continued uncured past the time at which the Servicer or the Receivables Seller was required to pay the Indemnity Payment with respect thereto pursuant to the Receivables Sale Agreement;
(vi) with respect to which, as of the date such Receivable was acquired by the Issuer, none of the Receivables Seller, the Servicer, the Subservicer or the Depositor had (A) taken any action that would impair the right, title and interest of the Indenture Trustee therein, or (B) failed to take any action that was necessary to avoid impairing the Indenture Trustee’s right, title or interest therein;
(vii) the Advance related to which either (A) has been fully funded by the Servicer (or any predecessor servicer) using its own funds and/or Amounts Held for Future Distribution (to the extent permitted under the related Designated Servicing Agreement) and/or Collections (as appropriate) in excess of the related Required Expense Reserve, and/or amounts drawn on Variable Funding Notes or out of funds in the Collection and Funding Account or Available Funds as provided herein, or (B) in the case of P&I Advances, will be funded on the related Funding Date and all amounts necessary to fund the related Advance are on deposit in an account under the exclusive control and direction of the Indenture Trustee pending remittance to the appropriate MBS Trustees;
(viii) Reserved ;
(ix) in connection with any Deferred Servicing Fee Receivable, the provisions of the related Designated Servicing Agreement identified on Schedule 1 require that any unpaid and accrued servicing fees owed to the Servicer be repaid on or prior to the date of any redemption in full under the applicable Designated Servicing Agreement except to the extent the Servicer or servicers are required to consent to or initiate termination and
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have agreed to repay all unpaid and accrued servicing fees at the time of redemption in full (such securitization trusts related to such Designated Servicing Agreements listed on Schedule 3 (as the same may be updated from time to time pursuant to Section 2.2(c) ); provided , that the Receivables related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 4 (as the same may be updated from time to time pursuant to Section 2.2(c) ) shall not be Facility Eligible Receivables if the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 4 of such securitization trust’s cut-off date balance;
(x) any Deferred Servicing Fee Receivable relates to a Designated Servicing Agreement identified on Schedule 1 ;
(xi) Reserved ;
(xii) such Receivable, if arising under a Whole Loan Servicing Agreement, provides for reimbursement or repayment to the Servicer in respect of the related Advance or Deferred Servicing Fee in full at the time the servicing of such Mortgage Loan is transferred out of such Servicing Agreement such that it is no longer subject to such Servicing Agreement;
(xiii) the Designated Servicing Agreement related to such Receivable, except with respect to an Eligible Non-FIFO Receivable, provides that all Advances as to a Mortgage Loan are reimbursed on a “first-in, first out” or “FIFO” basis, such that the Advances of a particular type that were disbursed first in time will be reimbursed prior to Advances of the same type with respect to that Mortgage Loan that were disbursed later in time;
(xiv) the Designated Servicing Agreement related to such Receivable, except with respect to an Eligible Non-FIFO Receivable, includes an express provision for the assignment by the Servicer of its rights to be reimbursed for Advances; and, if such Receivable is a Deferred Servicing Fee Receivable, the related Designated Servicing Agreement does not prohibit the sale and/or contribution to the Issuer of, specifically, the rights to payment for the Deferred Servicing Fees with respect to the related Mortgage Pool (as determined in the sole and absolute discretion of the Administrative Agent); and
(xv) if the Servicer (including for this purpose Nationstar prior to the MSR Transfer Date) engages a Subservicer (not including Nationstar prior to the related MSR Transfer Date) in connection with the related Designated Servicing Agreement (whether in effect on the initial Issuance Date or arising or entered into thereafter) to perform the collections on the Mortgage Loan related to such Receivable and administer the making and reimbursement of the related Advances and various related tasks, (a) the Servicer (x) continues to fund the Advances under such Designated Servicing Agreement in a manner consistent herewith and the Servicer continues to account for the Advances in the same manner that the Servicer does under Designated Servicing Agreements where there are no Subservicers and (y) continues to have the contractual rights to be reimbursed for any such Advances made thereunder pursuant to the terms of such Servicing Agreement, and
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the subservicer does not have contractual rights to such Receivables but merely remits the related Advance Reimbursement Amounts to the Collection Account within two Business Days of receipt thereof, (b) the Servicer shall have provided notice to the Note Rating Agencies of such subservicing agreement, (c) either such Subservicer is an Eligible Subservicer or no more than ninety (90) days have passed since such Subservicer ceased to be an Eligible Subservicer and (d) the Administrative Agent shall have provided prior written consent to the subservicing arrangement (which may be withheld in its sole and absolute discretion) following which consent such Designated Servicing Agreement and such subservicing arrangement will be specified on Schedule 2 hereto.
Facility Eligible Servicing Agreement : As of any date of determination, any Designated Servicing Agreement which meets the following criteria (and for the avoidance of doubt, which is not an Ineligible Designated Servicing Agreement):
(i) Nationstar (prior to the related MSR Transfer Date) and Advance Purchaser (from and after the related MSR Transfer Date) is the servicer (or, subject to satisfaction of the criteria below, subservicer) under such Servicing Agreement and has not resigned as Servicer hereunder, and a Responsible Officer of the Servicer has received neither of the following from any security holder or counterparty thereto or any person with, in any case, authority to terminate the Servicer thereunder (A) any notice, or otherwise obtained actual knowledge, of the occurrence of any Unmatured Default or Servicer Termination Event by or with respect to the Servicer under such Servicing Agreement except (i) to the extent that, in the case of an Unmatured Default, such Unmatured Default has been cured prior to its becoming a Servicer Termination Event, and (ii) any Unmatured Default or Servicer Termination Event caused solely by the failure of a Collateral Performance Test or a Servicer Ratings Downgrade for which the Servicer shall not have received a written notice of pending termination, nor (B) threatened termination of the Servicer in writing related to any default existing for thirty (30) or more days by the Servicer under such Servicing Agreement;
(ii) pursuant to the terms of such Servicing Agreement:
(A) under such agreement, the Servicer is permitted to reimburse itself for the related Advance or, solely with respect to Deferred Servicing Fee Receivables, pay itself for the related Deferred Servicing Fee out of late collections of the amounts advanced or fees deferred, including from insurance proceeds and liquidation proceeds from the Mortgage Loan with respect to which such Advance was made or Deferred Servicing Fee was accrued, prior to any holders of any notes, certificates or other securities backed by the related mortgage loan pool or any other owner of or investor in the Mortgage Loan, and prior to payment of any party subrogated to the rights of the holders of such securities (such as a reimbursement right of a credit enhancer) or any hedge or derivative termination fees, or to any related Mortgage Pool or any related trustee, custodian, hedge counterparty or credit enhancer; provided, that reimbursement of any Advance with respect to a Second-Lien Receivable shall be subject to any first lien on the related Mortgaged Property or REO Property, as applicable, under which such Advance arises;
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(B) under such agreement, if the Servicer determines that an Advance or Deferred Servicing Fee will not be recoverable out of late collections of the amounts advanced or, solely with respect to Deferred Servicing Fee Receivables, fees deferred or out of insurance proceeds or liquidation proceeds from the Mortgage Loan with respect to which the Advance was made or Deferred Servicing Fee was accrued, the Servicer has the right to reimburse or pay itself for such Advance or Deferred Servicing Fee out of any funds (other than prepayment charges) in the Custodial Account or out of general collections received by the Servicer with respect to any Mortgage Loans serviced under the same Designated Servicing Agreement, prior to any payment to any holders of any notes, certificates or other securities backed by the related mortgage loan pool or any other owner of or investor in the Mortgage Loan, and prior to payment of any party subrogated to the rights of the holders of such securities (such as a reimbursement right of a credit enhancer) or any hedge or derivative termination fees, or to the related Mortgage Pool or any related trustee, custodian or credit enhancer (a “General Collections Backstop” ), except that this clause (ii)(B) shall not apply to Loan-Level Receivables;
(iii) [RESERVED];
(iv) all Receivables arising under such Servicing Agreement are free and clear of any Adverse Claim in favor of any Person (other than any Permitted Lien) and the related MBS Trustee or other owner or investor and, if required by the related Designated Servicing Agreement, any related monoline insurer or other credit enhancement provider shall have been delivered a notice substantially in the form of Exhibit C attached hereto signed by the Servicer;
(v) the Designated Servicing Agreement is in full force and effect;
(vi) [RESERVED];
(vii) an Eligible Subservicing Agreement is in full force and effect for all mortgage loans serviced by the Servicer under such Designated Servicing Agreement, and the related Subservicer is an Eligible Subservicer and is in compliance with such Subservicing Agreement and, from and after the related MSR Transfer Date, Nationstar or another servicer acceptable to the Administrative Agent, shall be serving as “hot back-up servicer” for Advance Purchaser under an agreement approved by the Administrative Agent; provided that prior to each MSR Transfer Date for any Designated Servicing Agreement, this requirement is satisfied if Nationstar is the Servicer under such Designated Servicing Agreement and Nationstar meets the criteria of an “Eligible Subservicer” as described herein that are required to be satisfied by Nationstar;
(viii) the Servicing Agreement arises under and is governed by the laws of the United States or a State within the United States; and
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(ix) the Servicer has not voluntarily elected to change the reimbursement mechanics of Advances or payment mechanics for Deferred Servicing Fees under such Servicing Agreement from a pool-level reimbursement mechanic or payment mechanic to a loan-level reimbursement mechanic or payment mechanic or from a loan-level reimbursement mechanic or payment mechanic to a pool-level reimbursement mechanic or payment mechanic without consent of the Administrative Agent.
In addition, for a subservicing agreement (pursuant to which the Servicer is acting as a subservicer) to be a Facility Eligible Servicing Agreement, the subservicing agreement and the related servicing or master servicing agreement must provide that: (1) the Servicer, as subservicer, under such agreement, is required to make all Advances or accrue Deferred Servicing Fees on Mortgage Loans subserviced by a Servicer; (2) the Servicer, as subservicer under such agreement, is entitled to reimbursement or payment from all permitted sources under the related Servicing Agreement; (3) the related primary or master servicer agrees to remit to the Servicer, as subservicer, within two (2) Business Days of receipt thereof, any collections and reimbursements of P&I Advances, Corporate Advances and Escrow Advances or payments for Deferred Servicing Fees it receives, without set-off; and (4) the related primary or master servicer agrees to reasonably cooperate with the Servicer, as subservicer, to obtain reimbursement or payment of P&I Advances, Deferred Servicing Fees, Corporate Advances and Escrow Advances including, if either of such primary or master servicer or the Servicer, as subservicer, is terminated, by seeking immediate reimbursement or payment therefor from the successor servicer or, failing that, on a first-in-first-out basis.
Facility Entity : As defined in Section 9.5(i) .
Facility Year : A period beginning on the Closing Date or any anniversary of the Closing Date, and ending on the next anniversary of the Closing Date.
Fannie Mae : The Federal National Mortgage Association (commonly known as Fannie Mae), and its successors.
FDIC : The Federal Deposit Insurance Corporation, and its successors.
Fee Accumulation Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.01 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Fee Accumulation Account.”
Fee Accumulation Amount : With respect to each Interim Payment Date, the aggregate amount of Fees, plus any Series Fees, up to the Series Fee Limit, plus any Undrawn Fees, due and payable on the next Payment Date plus any expenses (including indemnities) payable on the next Payment Date pursuant to Section 4.5(a)(1)(i) or (ii) or Section 4.5(a)(2)(i) or (ii) that have been invoiced or noticed to the Indenture Trustee and the Administrator prior to the Determination Date for such Interim Payment Date, minus amounts already on deposit in the Fee Accumulation Account (assuming for this purpose that the aggregate VFN Principal Balance remains unchanged from the Determination Date for such Interim Payment Date through the end of the then-current Interest Accrual Period).
Fee Letter : For any Series, as defined in the related Indenture Supplement, if applicable.
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Fees : Collectively, with respect to any Interest Accrual Period, the Indenture Trustee Fee, the Owner Trustee Fee and the Verification Agent Fee.
Final Payment Date : For any Class of Notes, the earliest of (i) the Stated Maturity Date for such Class, (ii) after the end of the related Revolving Period, the Payment Date on which the Note Balance of the Notes of such Class has been reduced to zero, and (iii) the Payment Date which follows the Payment Date on which all proceeds of the sale of the Trust Estate are distributed pursuant to Section 8.6 .
Financial Asset : As defined in Section 8-102(a)(9) of the UCC.
Fitch : Fitch Ratings, Inc., or any successor thereto.
Freddie Mac : The Federal Home Loan Mortgage Corporation (commonly known as Freddie Mac), and its successors.
Full Amortization Period : For all Series of Notes, the period that begins upon the occurrence of a Facility Early Amortization Event and ends on the date on which the Notes of all Series are paid in full.
Funded Advance Receivable Balance : On any date (i) for Facility Eligible Receivables included in the Trust Estate, the aggregate of the Receivable Balances of such Facility Eligible Receivables minus the portion of aggregate P&I Advances that were funded using Amounts Held for Future Distribution which have not yet been restored by the Servicer to the related Custodial Account and (ii) for any particular Designated Servicing Agreement on any date, the aggregate balance of all Facility Eligible Receivables outstanding under such Servicing Agreement minus the portion thereof that was funded using Amounts Held for Future Distribution which have not yet been restored by the Servicer to the related Custodial Account.
Funding Certification : A report delivered by the Administrator in respect of each Funding Date pursuant to Section 4.3(a) .
Funding Conditions : With respect to any proposed Funding Date, the following conditions:
(i) no breach of the Collateral Test shall exist following the proposed funding;
(ii) no breach of representation, warranty or covenant of the Receivables Seller, the Servicer, the Administrator, the Depositor or the Issuer, or with respect to the Receivables, hereunder or under any Transaction Document, shall exist;
(iii) no Funding Interruption Event or Facility Early Amortization Event shall have occurred and be continuing;
(iv) (A) with respect to any Funding Date which will be a VFN Draw Date, the Administrator or the Sub-Administrator on behalf of the Administrator shall have provided the Indenture Trustee, no later than 12:00 p.m. (noon) New York City time on the second (2 nd ) Business Day preceding such Funding Date (or such other time as may
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be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Determination Date Report reporting information with respect to the Receivables in the Trust Estate and demonstrating the satisfaction of the Collateral Test, and no later than 1:00 p.m. New York City time on the second (2 nd ) Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Funding Certification certifying that all Funding Conditions have been satisfied and (B) with respect to any Funding Date which is not a VFN Draw Date, the Administrator or the Sub-Administrator on behalf of the Administrator shall have provided the Indenture Trustee, no later than 12:00 p.m. (noon) New York City time on the Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Determination Date Report reporting information with respect to the Receivables in the Trust Estate and demonstrating the satisfaction of the Collateral Test, and no later than 1:00 p.m. New York City time on the Business Day preceding such Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Funding Certification certifying that all Funding Conditions have been satisfied;
(v) the full amount of the Required Expense Reserve shall be on deposit in the Collection and Funding Account, before and after the release of cash from such account to fund the purchase price of Receivables;
(vi) no Servicer Termination Event shall have occurred with respect to the Servicing Agreement related to any Receivable to be funded and no Subservicer Termination Event shall have occurred with respect to any related Subservicing Agreement; provided , that the breach of a Collateral Performance Test as it relates to the performance of the related mortgage loans, shall not be considered a Servicer Termination Event or a Subservicer Termination Event for purposes of this clause (vi) unless the Servicer or Subservicer shall have received a written notice of pending termination; provided , further , that a Servicer Ratings Downgrade shall not be considered a Servicer Termination Event or a Subservicer Termination Event for purposes of this clause (vi) unless the Servicer or Subservicer shall have received a written notice of pending termination; provided, further, that the failure to satisfy this clause (vi) shall only affect the Receivables arising under the related Servicing Agreement and shall not result in a failure of the Funding Conditions generally;
(vii) on any Funding Date that is an Interim Payment Date or Limited Funding Date, after giving effect to the transfers on such Funding Date contemplated by Section 4.3(f), the Interest Accumulation Amount is on deposit in the Interest Accumulation Account, the Fee Accumulation Amount is on deposit in the Fee Accumulation Account, the Target Amortization Principal Accumulation Amount, if any, is on deposit in the Target Amortization Principal Accumulation Account and the Series Reserve Required Amount is on deposit in the Series Reserve Account for each Series;
(viii) the payment of the New Receivables Funding Amount in connection with the related sale of Additional Receivables on such Funding Date or the drawing on any VFNs shall not result in a material adverse United States federal income tax consequence to the Trust Estate or any Noteholders;
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(ix) the related Advances shall have been fully funded out of the Servicer’s own funds and/or Amounts Held for Future Distribution under the related Designated Servicing Agreement (if permitted under the related Designated Servicing Agreement), and, if a P&I Advance subject to same-day pre-funding, shall be on deposit in a disbursement account under the exclusive control and direction of the Indenture Trustee pending remittance to the related MBS Trustee; it being understood that the Indenture Supplement may specify conditions, in addition to the Funding Conditions, that must be met before draws may be made on a VFN issued under such Indenture Supplement;
(x) the Verification Agent is PricewaterhouseCoopers LLP, or if PricewaterhouseCoopers LLP (x) resigns as Verification Agent and not more than thirty (30) days have passed since such resignation, (y) resigns as Verification Agent and more than thirty (30) days have passed since such resignation and the Servicer is using commercially reasonable efforts to hire a replacement Verification Agent or (z) is terminated by the Receivables Seller, the Depositor or the Issuer, the Administrator has selected a successor verification agent and the Administrative Agent has approved such successor verification agent (such approval not to be unreasonably withheld or delayed) and such successor verification agent has assumed the Verification Agent’s duties;
(xi) in connection with any request for funding of Deferred Servicing Fee Receivables, the Servicer has paid to each Excess Spread Purchaser the amount of all accrued servicing fees under any Designated Servicing Agreements that have been sold to an Excess Spread Purchaser, and that, without duplication, the Servicer has paid all amounts required to be paid to any Excess Spread Purchasers, any assignee or any other party in connection with any Excess Servicing Fees that relate to any Designated Servicing Agreements under this Indenture and that any Deferred Servicing Fee Receivables arising under such Designated Servicing Agreements are not subject to any Adverse Claim other than Permitted Liens; and
(xii) in connection with any request for funding of Deferred Servicing Fee Receivables, the Servicer has provided an updated, executed disclaimer substantially in the form of Exhibit H that has been agreed to and accepted by the related Excess Spread Purchasers or any other party that may have an interest in the Excess Servicing Fees that relate to any Deferred Servicing Fees arising under any Designated Servicing Agreements, which disclaimer shall be dated as of date no more than 30 days prior to the proposed Funding Date. Unless and until the Servicer delivers such a disclaimer to the Administrative Agent, no additional Deferred Servicing Fee Receivables shall be eligible for financing under this Indenture and accordingly, shall not (i) be transferred to the Depositor or (ii) constitute “Receivables” for purposes of the Receivables Sale Agreement and related Transaction Documents.
Funding Date : Any Payment Date, Interim Payment Date or Limited Funding Date during the Revolving Period for such Series occurring at a time when no Facility Early Amortization Event shall have occurred and shall be continuing; provided , that the Administrator or the Sub-Administrator on behalf of the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) for such date.
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Funding Interruption Event : The occurrence of an event which with the giving of notice or the passage of time, or both, would constitute a Facility Early Amortization Event.
GAAP : U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of Nationstar, Advance Purchaser and their respective subsidiaries; provided that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
Grant : Pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Indenture. A Grant of collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of such collateral or other agreement or instrument and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Increased Costs : The amounts described in the related Indenture Supplement, if applicable.
Increased Costs Limit : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Indemnity Payment : With respect to any Receivable in respect of which a payment is required to be made by the Issuer, the Depositor or the Receivables Seller under Section 2.3 of this Indenture, the Receivables Pooling Agreement or the Receivables Sale Agreement, and as of the Payment Date on which the “Indemnity Payment” must be made, the Receivable Balance of such Receivable as of such Payment Date.
Indenture : As defined in the Preamble.
Indenture Supplement : With respect to any Series of Notes, a supplement to this Indenture, executed and delivered in conjunction with the issuance of such Notes pursuant to Section 6.1 , together with any amendment to the Indenture Supplement executed pursuant to Section 12.1 or 12.2, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee : The Person named as the Indenture Trustee in the Preamble until a successor Indenture Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Indenture Trustee” means and includes each Person who is then an Indenture Trustee hereunder.
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Indenture Trustee Authorized Officer : With respect to the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary, any officer of the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary assigned to its corporate trust services, including any vice president, assistant vice president, assistant treasurer or trust officer customarily performing functions with respect to corporate trust matters and, with respect to a particular corporate trust matter under this Indenture, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case, having direct responsibility for the administration of this Indenture.
Indenture Trustee Fee : The fee payable to the Indenture Trustee hereunder on each Payment Date for services rendered under this Indenture, which shall be equal to $6,666.66 per month; provided, that (A) to the extent that there is more than one (1) Payment Date in any given month, the Indenture Trustee Fee in such month shall include an additional $2,000 for each such additional Payment Date and (B) to the extent that there are more than five (5) Funding Dates in any given month, the Indenture Trustee Fee in such month shall include an additional $1,500 for each such additional Funding Date over five (5); provided , further , that the Indenture Trustee shall also be entitled to receive payment of separate fees and expenses pursuant to Section 11.7 in connection with tax filings made by the Indenture Trustee. Reimbursement for expenses incurred by the Indenture Trustee in connection with tax filings made by the Indenture Trustee shall be subject to the Expense Limit.
Independent Manager : (i) A natural person and (ii) a Person who (A) shall not have been at the time of such Person’s appointment, and may not have been at any time during the preceding five (5) years and shall not be as long as such Person is an Independent Manager of the Depositor (1) a direct or indirect legal or beneficial owner in such entity or any of its Affiliates, (2) a member, officer, director, manager, partner, shareholder or employee of the Administrator or any of its managers, members, partners, subsidiaries, shareholders or Affiliates other than the Depositor or any Affiliate thereof that is intended to be structured as a “bankruptcy remote” entity (collectively, the “ Independent Parties ”), (3) a supplier to any of the Independent Parties, (4) a person controlling or under common control with any director, member, partner, shareholder or supplier of any of the Independent Parties or (5) a member of the immediate family of any director, member, partner, shareholder, officer, manager, employee or supplier of the Independent Parties, (B) has prior experience as an independent director or manager for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors or managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (C) has at least three (3) years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities; provided , that, notwithstanding the terms and provisions of clause (ii)(A)(1) immediately above, the indirect or beneficial ownership of membership interests of the Administrator through a mutual fund or similar diversified investment vehicle with respect to which the owner does not have discretion or control over the investments held by such diversified investment vehicle shall not preclude such owner from being an Independent Manager.
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Index : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Ineligible Designated Servicing Agreement : Any Designated Servicing Agreement listed on Schedule 6 hereto.
Initial Collection Account : An Eligible Account in the name of the Indenture Trustee, in which no other amounts other than as set forth in Section 4.2(a) may be deposited, which amounts shall be transferred within one (1) Business Day of deposit to the Collection and Funding Account.
Initial Note Balance : For any Note or for any Class of Notes, the Note Balance of such Note upon the related Issuance Date as specified in the related Indenture Supplement.
Initial Receivables : The Receivables sold and/or contributed by Nationstar, as Receivables Seller, to the Depositor on the Closing Date pursuant to the Receivables Sale Agreement, and further sold and/or contributed by the Depositor to the Issuer on the Closing Date pursuant to the Receivables Pooling Agreement, and Granted by the Issuer to the Indenture Trustee for inclusion in the Trust Estate, and which consist of Receivables arising from (i) the making by the Receivables Seller of Advances with respect to the Designated Servicing Agreements listed on the Designated Servicing Agreement Schedule or (ii) accrued Deferred Servicing Fees with respect to the Designated Servicing Agreements listed on the Designated Servicing Agreement Schedule as of the Closing Date.
Insolvency Event : With respect to a specified Person, (i) an involuntary case or other proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced against any Person or any substantial part of its property, or a petition shall be filed against such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the winding-up or liquidation of such Person’s business and (A) such case or proceeding shall continue undismissed and unstayed and in effect for a period of sixty (60) days or (B) an order for relief in respect of such Person shall be entered in such case or proceeding under such laws or a decree or order granting such other requested relief shall be granted; or (ii) the commencement by such Person of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due or the admission by such Person of its inability to pay its debts generally as they become due.
Insolvency Proceeding : Any proceeding of the sort described in the definition of Insolvency Event.
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Interest Accrual Period : For any Class of Notes and any Payment Date, the period specified in the related Indenture Supplement.
Interest Accumulation Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Interest Accumulation Account.”
Interest Accumulation Amount : With respect to each Interim Payment Date, the sum of the Interest Payment Amount due and payable with respect to all Classes of Notes on the next succeeding Payment Date, plus all Cumulative Interest Shortfall Amounts as of the immediately preceding Payment Date, minus amounts then on deposit in the Interest Accumulation Account (assuming for this purpose that the aggregate VFN Principal Balance remains unchanged from the Determination Date for such Interim Payment Date through the end of its then-current Interest Accrual Period).
Interest Day Count Convention : For any Series or Class of Notes, the fraction specified in the related Indenture Supplement to indicate the number of days counted in an Interest Accrual Period divided by the number of days assumed in a year, for purposes of calculating the Interest Payment Amount for each Interest Accrual Period in respect of such Series or Class.
Interest Payment Amount : For any Series or Class of Notes, as applicable and with respect to any Payment Date:
(i) for any Series or Class of Term Notes, the related Cumulative Interest Shortfall Amount plus the product of:
(A) the Note Balance as of the close of business on the preceding Payment Date;
(B) the related Note Interest Rate for such Series or Class and for the related Interest Accrual Period; and
(C) the Interest Day Count Convention specified in the related Indenture Supplement; and
(ii) for any Series or Class of Variable Funding Notes, the related Cumulative Interest Shortfall Amount plus the product of:
(A) the average daily aggregate VFN Principal Balance during the related Interest Accrual Period (calculated based on the average of the aggregate VFN Principal Balances on each day during the related Interest Accrual Period);
(B) the related Note Interest Rate for such Class during the related Interest Accrual Period; and
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(C) the Interest Day Count Convention specified in the related Indenture Supplement.
Interested Noteholders : For any Class, any Noteholder or group of Noteholders holding Notes evidencing not less than 25% of the aggregate Voting Interests of such Class.
Interim Payment Date : With respect to any Series of Notes, up to six (6) dates each calendar month that are agreed to between the Issuer and the Noteholders of the Variable Funding Notes, as specified in the Indenture Supplement. For the avoidance of doubt, no Interim Payment Dates shall occur during the continuance of a Facility Early Amortization Event.
Interim Payment Date Report : As defined in Section 3.2(c) .
Invested Amount : For any Series or Class of Notes, the related Series Invested Amount or Class Invested Amount, as applicable.
Investment Company Act : The Investment Company Act of 1940, as amended.
Issuance Date : For any Series of Notes, the date of issuance of such Series, as set forth in the related Indenture Supplement.
Issuer : Has the meaning set forth in the Preamble.
Issuer Affiliate : Any person involved in the organization or operation of the Issuer or an affiliate of such a person within the meaning of Rule 3a-7 promulgated under the Investment Company Act.
Issuer Amount : As defined in Section 4.3(e) .
Issuer Authorized Officer : Any Director or any authorized officer of the Owner Trustee or the Administrator who may also be an officer or employee of Advance Purchaser, its managing member or an Affiliate of Advance Purchaser or its managing member.
Issuer Certificate : A certificate (including an Officer’s Certificate) signed in the name of an Issuer Authorized Officer, or signed in the name of the Issuer by an Issuer Authorized Officer. Wherever this Indenture requires that an Issuer Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be an employee of Advance Purchaser or an Affiliate.
Issuer Tax Opinion : With respect to any undertaking, an Opinion of Counsel to the effect that, for United States federal income tax purposes, (i) such undertaking will not result in the Issuer or the Trust Estate being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes, (ii) except in the case of Specified Notes, if any Notes are issued or deemed issued as a result of such undertaking, any Notes issued or deemed issued on such date that are outstanding for United States federal income tax purposes will be debt, and, if requested by the Administrative Agent, (iii) such undertaking will not cause the Noteholders or beneficial owners of Notes previously issued to be deemed to have sold or exchanged such Notes for federal income tax purposes under Section 1001 of the Code.
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Judicial Corporate Advance : Any Corporate Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Corporate Receivable : Any Corporate Advance Receivable in respect of a Judicial Corporate Advance.
Judicial Deferred Servicing Fee : Any Deferred Servicing Fee in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Deferred Servicing Fee Receivable : Any Deferred Servicing Fee Receivable in respect of a Judicial Deferred Servicing Fee.
Judicial Escrow Advance : Any Escrow Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial Escrow Receivable : Any Escrow Advance Receivable in respect of a Judicial Escrow Advance.
Judicial P&I Advance : Any P&I Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Judicial State.
Judicial P&I Receivable : Any P&I Advance Receivable in respect of a Judicial P&I Advance.
Judicial State : Each state or territory of the United States that is not a Non-Judicial State.
Limited Funding Date : For any Series or Class of Notes, as defined in the related Indenture Supplement, if applicable.
Liquidity Facility : Any liquidity back-stop facility which may be utilized by a Noteholder of a Class to fund some or all of its disbursements on any such Class of the Notes.
Liquidity Provider : With respect to any Series or Class of VFNs, any “Support Party” or similar entity as further described in the related Indenture Supplement and/or Note Purchase Agreement, as applicable.
Loan-Level Advance : An Advance that arises under a Designated Servicing Agreement that does not provide that the related Advance is reimbursable from general collections and proceeds of the entire related mortgage pool if such Advance is determined to be a Nonrecoverable Advance.
Loan-Level Deferred Servicing Fee : A Deferred Servicing Fee that arises under a Designated Servicing Agreement that does not provide that the related Deferred Servicing Fee is payable from general collections and proceeds of the entire related mortgage pool if such Deferred Servicing Fee is determined to be a Nonrecoverable Deferred Servicing Fee.
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Loan-Level Receivable : A Receivable that is the right to reimbursement for a Loan-Level Advance or the right to payment for a Loan-Level Deferred Servicing Fee.
Majority Noteholders : With respect to any Series or Class of Notes or all Outstanding Notes, the Noteholders of greater than 50% of the Note Balance of the Outstanding Notes of such Series or Class or of Outstanding Notes, as the case may be, measured by Voting Interests in any case.
Margin : For any Class of Notes bearing interest at a floating rate, the fixed per annum rate that is added to the applicable Index to determine the Note Interest Rate for such Class for any Interest Accrual Period. The “Margin” for each Class of Notes is specified in the related Indenture Supplement.
Maximum VFN Principal Balance : For any VFN Class, the amount specified in the related Indenture Supplement.
MBS Trustee : A trustee or indenture trustee for a Mortgage Pool that is a securitization trust.
Monthly Advance Collection Period : With respect to any Payment Date, the period beginning on the Determination Date for the preceding Payment Date and ending at the close of business on the day before the Determination Date for the current Payment Date, except that, with respect to the initial Payment Date, the Monthly Advance Collection Period begins on the Cut-off Date and ends at the close of business on the day before the related Determination Date.
Monthly MBS Remittance Report : For any Mortgage Pool, the monthly report(s) prepared by the related servicer, master servicer, securities administrator or MBS Trustee and delivered to the related security holders detailing cash flows on the related Mortgage Loans and remittances to the related investors.
Month-to-Date Available Funds : With respect to any Interim Payment Date or any Payment Date, the aggregate amount of Collections deposited into the Collection and Funding Account during the period beginning on the day immediately succeeding the Payment Date prior to such Interim Payment Date or Payment Date and ending on such Interim Payment Date or Payment Date.
Moody’s : Moody’s Investors Service.
Mortgage : With respect to a Mortgage Loan, a mortgage, deed of trust or other instrument encumbering a fee simple interest in real property securing a Mortgage Note.
Mortgage Loan : A loan secured by a Mortgage on real property (including REO Property resulting from the foreclosure of the real property that had secured such loan), which loan has been transferred and assigned to an MBS Trustee and serviced by the Servicer for such MBS Trustee pursuant to a Servicing Agreement.
Mortgage Note : The note or other evidence of the indebtedness of a mortgagor secured by a Mortgage under a Mortgage Loan and all amendments, modifications and attachments thereto.
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Mortgage Pool : A trust or trust estate in which the Mortgage Loans being serviced by the Servicer pursuant to a Designated Servicing Agreement are held by the related MBS Trustee or a pool of Mortgage Loans being serviced under a Whole Loan Servicing Agreement that is a Facility Eligible Servicing Agreement.
Mortgaged Property : The interest in real property securing a Mortgage Loan as evidenced by the related Mortgage, together with improvements thereto securing a Mortgage Loan.
MSR : Mortgage Servicing Rights.
MSR Transfer Date : For any Designated Servicing Agreement, the date when all required consents and rating agency letters for a formal change of the named servicer under such Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, and Nationstar shall transfer to Advance Purchaser all of the servicing rights and obligations of Nationstar under such Designated Servicing Agreement, as evidenced by the related MSR Transfer Notice.
MSR Transfer Notice : A notice delivered by Advance Purchaser to the Indenture Trustee in the form attached hereto as Exhibit I .
Nationstar : Has the meaning set forth in the Preamble.
Nationstar Additional Advance Receivables : Each Advance Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created.
New Receivables Funding Amount : For any Funding Date and with respect to any amounts to be disbursed on any Funding Date, an amount equal to the sum of the Series New Receivables Funding Amounts for all Outstanding Series for all Additional Receivables to be funded on such Funding Date, subject to limitation by the amount of Available Funds and by the amount that may be drawn on any VFNs in respect of such Funding Date and subject to the satisfaction of all Funding Conditions; provided , however , that (1) in any event the aggregate New Receivables Funding Amount disbursed on any Funding Date shall be limited to an amount which may be disbursed without resulting in a violation of the Collateral Test, (2) no amounts may be drawn on VFNs on a Limited Funding Date, and (3) the New Receivables Funding Amount on a Limited Funding Date is limited to amounts then on deposit in the Collection and Funding Account minus the Required Expense Reserve.
Net Excess Cash Amount : On any Payment Date or Interim Payment Date, the amount of funds available to be distributed to the Depositor pursuant to Section 4.4(j) or Section 4.5(a)(1)(xii) or Section 4.5(a)(2)(vi) , as applicable.
Non-FIFO Receivable : A Receivable attributable to a Designated Servicing Agreement that does not include an express provision (i) permitting the Servicer to assign its rights to be reimbursed for Advances or (ii) to the effect that Advances are to be reimbursed on a “first-in first-out,” or FIFO basis.
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Non-Judicial Corporate Advance : Any Corporate Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial Corporate Receivable : A Corporate Advance Receivable in respect of a Non-Judicial Corporate Advance.
Non-Judicial Deferred Servicing Fee : Any Deferred Servicing Fee in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial Deferred Servicing Fee Receivable : A Deferred Servicing Fee Receivable in respect of a Non-Judicial Deferred Servicing Fee.
Non-Judicial Escrow Advance : Any Escrow Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial Escrow Receivable : An Escrow Advance Receivable in respect of a Non-Judicial Escrow Advance.
Non-Judicial P&I Advance : Any P&I Advance in respect of a Mortgage Loan secured by a Mortgaged Property located in a Non-Judicial State.
Non-Judicial P&I Receivable : A P&I Advance Receivable in respect of a Non Judicial P&I Advance.
Non-Judicial State : Each of the following: Alabama, Alaska, Arizona, Arkansas, California, Colorado, District of Columbia, Georgia, Hawaii, Idaho, Maryland, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Oregon, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming. Additional Non-Judicial States may be designated from time to time pursuant to Section 12.1 .
Nonrecoverable Advance : An Advance that is determined to be “non-recoverable” from late collections or liquidation or other proceeds of the Mortgage Loan in respect of which such Advance was made.
Nonrecoverable Deferred Servicing Fee : A Deferred Servicing Fee that is determined to be “non-recoverable” from late collection or liquidation or other proceeds of the Mortgage Loan in respect of which such Deferred Servicing Fee was accrued.
Note or Notes : Any note or notes of any Class authenticated and delivered from time to time under this Indenture including, but not limited to, any Variable Funding Note.
Note Balance : On any date (i) for any Term Note, or for any Series or Class of Term Notes, as the context requires, the Initial Note Balance of such Term Note or the aggregate of the Initial Note Balances of the Term Notes of such Series or Class, as applicable, less all amounts paid to the Noteholder of such Term Note or Noteholders of such Term Notes with respect to principal, (ii) for any Variable Funding Note, its VFN Principal Balance on such date and (iii) for any other Note, as set forth in the related Indenture Supplement.
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Note Interest Rate : For any Note, or for any Series or Class of Notes as the context requires, the interest rate specified, or calculated as provided in, the related Indenture Supplement; provided , that on any day on which a Facility Early Amortization Event shall have occurred and shall be continuing at the opening of business on such day, the Note Interest Rate for any Class of Notes shall equal the applicable Default Rate.
Note Owner : With respect to a Book Entry Note, the Person who is the owner of such Book Entry Note, as reflected on the books of the Depository, or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or as an indirect participant, in each case in accordance with the rules of such Depository) and with respect to any Definitive Notes, the Noteholder of such Note.
Note Payment Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.8 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Note Payment Account.”
Note Purchase Agreement : An agreement with one or more initial purchasers or placement agents under which the Issuer will sell the Notes to such initial purchaser, or contract with such placement agent for the initial private placement of the Notes, in each case as further defined in the related Indenture Supplement.
Note Rating Agency : With respect to any Outstanding Class of Notes, each rating agency, if any, specified in the related Indenture Supplement. References to Note Rating Agencies or “each” or “any” Note Rating Agency in this Indenture refer to Note Rating Agencies that were engaged to rate any Notes issued under this Indenture, which Notes are still Outstanding.
Note Rating Reduction : As defined in the related Indenture Supplement, if applicable.
Note Register : As defined in Section 6.5 .
Note Registrar : The Person who keeps the Note Register specified in Section 6.5 .
Noteholder : The Person in whose name a Note is registered in the Note Register, except that, solely for the purposes of giving certain consents, waivers, requests or demands as may be specified in this Indenture, the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, the Receivables Seller or any Person that is an Affiliate of either or both of the Issuer and the Receivables Seller, shall not be taken into account in determining whether the requisite percentage necessary to effect any such consent, waiver, request or demand shall have been obtained. The Indenture Trustee shall have no responsibility to count any Person as a Noteholder who is not permitted to be so counted hereunder pursuant to the definition of “ Outstanding ” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is an Affiliate of either or both of the Issuer and Receivables Seller.
Noteholders’ Amount : As defined in Section 4.3(e) .
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Obligor : Any Person who owes or may be liable for payments under a Mortgage Loan.
Officer’s Certificate : A certificate signed by an Issuer Authorized Officer and delivered to the Indenture Trustee. Wherever this Indenture requires that an Officer’s Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Indenture) may be an employee of the Receivables Seller or the Servicer.
Opinion of Counsel : A written opinion of counsel reasonably acceptable to the Indenture Trustee, which counsel may, without limitation, and except as otherwise expressly provided in this Indenture and except for any opinions related to tax matters or material adverse effects on Noteholders, be an employee of the Issuer, the Receivables Seller or any of their Affiliates.
Organizational Documents : The Issuer’s Trust Agreement (including the related Owner Trust Certificate).
Original Indenture : Has the meaning set forth in the Recitals.
Other Advance Rate Reduction Event : As defined in the related Indenture Supplement, if applicable.
Other Advance Rate Reduction Event Cure Period : As defined in the related Indenture Supplement, if applicable.
Outstanding : With respect to all Notes and, with respect to a Note or with respect to Notes of any Series or Class means, as of the date of determination, all such Notes theretofore authenticated and delivered under this Indenture, except:
(i) any Notes theretofore canceled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation, or canceled by the Issuer and delivered to the Indenture Trustee pursuant to Section 6.9 ;
(ii) any Notes to be redeemed for whose full payment (including principal and interest) redemption money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Noteholders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given if required pursuant to this Indenture, or provision therefore satisfactory to the Indenture Trustee has been made;
(iii) any Notes which are canceled pursuant to Section 7.3 ; and
(iv) any Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture (except with respect to any such Note as to which proof satisfactory to the Indenture Trustee is presented that such Note is held by a person in whose hands such Note is a legal, valid and binding obligation of the Issuer).
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For purposes of determining the amounts of deposits, allocations, reallocations or payments to be made, unless the context clearly requires otherwise, references to “Notes” will be deemed to be references to “Outstanding Notes.” In determining whether the Noteholders of the requisite principal amount of such Outstanding Notes have taken any Action hereunder, Notes owned by the Issuer, the Receivables Seller, or any Affiliate of the Issuer or the Receivables Seller shall be disregarded. In determining whether the Indenture Trustee will be protected in relying upon any such Action, only Notes which an Indenture Trustee Authorized Officer has actual knowledge are owned by the Issuer or the Receivables Seller, or any Affiliate of the Issuer or the Receivables Seller, will be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee proves to the satisfaction of the Indenture Trustee the pledgee’s right to act as owner with respect to such Notes and that the pledgee is not the Issuer or the Receivables Seller or any Affiliate of the Issuer or the Receivables Seller.
Owner : When used with respect to a Note, any related Note Owner.
Owner Trust Certificate : A certificate evidencing a 100% undivided beneficial interest in the Issuer.
Owner Trustee : Wilmington Trust, National Association, a national association, not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
Owner Trustee Fee : The annual fee payable as agreed upon by the Owner Trustee and Nationstar pursuant to the Owner Trustee Fee Letter.
Owner Trustee Fee Letter : The fee letter agreement between the Owner Trustee and Nationstar dated the Closing Date, as amended, supplemented, restated, or otherwise modified, setting forth the fees to be paid to the Owner Trustee for the performance of its duties as Owner Trustee of the Issuer.
P&I Advance : Any advance disbursed by the Servicer (including any predecessor servicer) pursuant to any Designated Servicing Agreement, of delinquent interest and/or principal that have not been timely paid by Obligors, including any amounts deposited by the Servicer into a Custodial Account in order to reimburse such Custodial Account for Amounts Held for Future Distribution previously on deposit therein which the Servicer (including any predecessor servicer) had used to make a previous P&I Advance in accordance with the related Designated Servicing Agreement.
P&I Advance Amount : As defined in Section 4.3(e)
P&I Advance Disbursement Account : The segregated non-interest bearing trust account, which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.3(d) as a Trust Account and entitled “Wells Fargo Bank, N.A., as Indenture Trustee for the NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, P&I Advance Disbursement Account.”
P&I Advance Receivable : Any Receivable representing the right to be reimbursed for a P&I Advance.
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P&I Advance Reimbursement Amount : Any amount collected under any Designated Servicing Agreement from Obligors or otherwise, which amount, by the terms of such Designated Servicing Agreement, is payable to the Servicer to reimburse P&I Advances disbursed by the Servicer.
Paying Agent : The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as paying agent pursuant to the terms of this Indenture.
Payment Date : In any month beginning in August 2013, the 20 th day of such month or, if such 20 th day is not a Business Day, the next Business Day following such 20 th day.
Payment Date Report : As defined in Section 3.2(b) .
Payment Default : An Event of Default of the type described in Section 8.1(a) .
Permitted Investments : At any time, any one or more of the following obligations and securities:
(i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; and provided further that the short-term debt obligations of such agency or instrumentality at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(ii) repurchase agreements on obligations specified in clause (a) maturing not more than three months from the date of acquisition thereof; provided that the short-term unsecured debt obligations of the party agreeing to repurchase such obligations are at the time rated “A-1+” by S&P;
(iii) certificates of deposit, time deposits and bankers’ acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state thereof and subject to supervision and examination by a federal and/or state banking authority of the United States; provided that the unsecured short-term debt obligations of such depository institution or trust company at the date of acquisition thereof have been rated “A-1+” by S&P;
(iv) commercial paper of any entity organized under the laws of the United States or any state thereof which on the date of acquisition has been rated “A-1+” by S&P;
(v) interests in any U.S. money market fund which, at the date of acquisition of the interests in such fund (including any such fund that is managed by the Indenture Trustee or an Affiliate of the Indenture Trustee or for which the Indenture Trustee or an Affiliate acts as advisor) and throughout the time as the interest is held in such fund, has a rating of “AAAm” from S&P; or
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(vi) other obligations or securities that are acceptable to S&P as Permitted Investments hereunder and if the investment of Account funds therein will not result in a reduction in the then current rating of the Notes, as evidenced by a letter to such effect from S&P;
provided , that each of the foregoing investments shall mature no later than the Business Day prior to the Payment Date immediately following the date of purchase thereof (other than in the case of the investment of monies in instruments of which the Indenture Trustee is the obligor, which may mature on the related Payment Date), and shall be required to be held to such maturity; and provided further , that each of the Permitted Investments may be purchased by the Indenture Trustee through an Affiliate of the Indenture Trustee.
Permitted Investments are only those which are acquired by the Indenture Trustee in its name and in its capacity as Indenture Trustee, and with respect to which (A) the Indenture Trustee has noted its interest therein on its books and records, and (B) the Indenture Trustee has purchased such investments for value without notice of any adverse claim thereto (and, if such investments are securities or other financial assets or interests therein, within the meaning of Section 8-102 of the UCC, without acting in collusion with a Securities Intermediary in violating such Securities Intermediary’s obligations to entitlement holders in such assets, under Section 8-504 of the UCC, to maintain a sufficient quantity of such assets in favor of such entitlement holders), and (C) either (i) such investments are in the possession of the Indenture Trustee or (ii) such investments, (x) if certificated securities and in bearer form, have been delivered to the Indenture Trustee, or if in registered form, have been delivered to the Indenture Trustee and either registered by the issuer in the name of the Indenture Trustee or endorsed by effective endorsement to the Indenture Trustee or in blank; (y) if uncertificated securities, ownership of such securities has been registered in the name of the Indenture Trustee on the books of the issuer thereof (or another person, other than a Securities Intermediary, either has become the registered owner of the uncertificated security on behalf of the Indenture Trustee or, having previously become the registered owner, acknowledges that it holds for the Indenture Trustee); or (z) if Securities Entitlements representing interests in securities or other financial assets (or interests therein) held by a Securities Intermediary, a Securities Intermediary indicates by book entry that a security or other financial asset has been credited to the Indenture Trustee’s Securities Account with such Securities Intermediary. No instrument described hereunder may be purchased at a price greater than par, if such instrument may be prepaid or called at a price less than its purchase price prior to its stated maturity.
Permitted Lien : Any liens for taxes, assessments, or similar charges incurred in the ordinary course of business and which are not yet due or as to which the period of grace, if any, related thereto has not expired or which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP.
Permitted Refinancing : An assignment by the Issuer, subject to satisfaction of Section 2.1(c) , either (i) to a third party unaffiliated with the Servicer or (ii) to a special purpose, bankruptcy-remote entity (“SPV”), of all the Receivables and related assets attributable to one or more Designated Servicing Agreements, as a result of which assignment the assignee pays to the Issuer 100% of the Receivable Balances with respect to such Receivables; provided , that in the case of an assignment to an SPV pursuant to clause (ii) (a) such assignment may be effected by
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means of an initial sale, transfer, distribution or other transfer of the Receivables and related assets to Advance Purchaser so long as Advance Purchaser immediately sells and/or contributes the Receivables and related assets to the related SPV, if the SPV’s organizational documents and financing arrangements only permit acquisition of Receivables and similar assets from Advance Purchaser and its Affiliates, and (b) if requested by the Administrative Agent, an opinion of external legal counsel, reasonably satisfactory to the Administrative Agent, to the effect that the assignee would not be substantively consolidated with Advance Purchaser or any non-special purpose entity Affiliate of Advance Purchaser involved in the transactions contemplated herein, shall have been delivered to the Administrative Agent.
Person : Any individual, corporation, estate, partnership, limited liability company, limited liability partnership, joint venture, association, joint-stock company, business trust, trust, unincorporated organization, government or any agency or political subdivision thereof, or other entity of a similar nature.
Place of Payment : With respect to any Class of Notes issued hereunder, the city or political subdivision so designated with respect to such Class of Notes by the Indenture Trustee.
Predecessor Notes : Of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 6.6 in lieu of a mutilated, lost, destroyed or stolen Note will be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
PTCE : As defined in Section 6.5(k) .
Purchase Agreement : Has the meaning set forth in the Recitals.
Qualified Institutional Buyer : As defined in Rule 144A under the Securities Act.
Ratings Effect : A reduction, qualification with negative implications or withdrawal of any then current rating of any Outstanding Notes by an applicable Note Rating Agency (other than as a result of the termination of such Note Rating Agency).
Ratings Reduction : As defined in the related Indenture Supplement, if applicable.
Receivable : The contractual right (i) to reimbursement pursuant to the terms of a Designated Servicing Agreement for an Advance made by the Servicer (including any predecessor servicer) pursuant to such Designated Servicing Agreement, which Advance has not previously been reimbursed, or (B) to payment pursuant to the terms of a Designated Servicing Agreement listed on the Designated Servicing Agreement Schedule to the extent designated as being eligible for financing for a Deferred Servicing Fee owed the Servicer pursuant to such Designated Servicing Agreement which has been accrued by the Servicer (or any predecessor Servicer) but not paid and which contractual right to reimbursement or payment has been Granted to the Indenture Trustee for inclusion in the Trust Estate by the Issuer hereunder, and including in either case all rights of the Servicer (including any predecessor servicer) to enforce payment of such obligation under the related Servicing Agreement, consisting of the Initial Receivables and all Additional Receivables and (ii) to amounts to be paid as consideration for any purchase of the contractual
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right to reimbursement described in clause (i) or to servicing fees has been Granted to the Indenture Trustee for inclusion in the Trust Estate by the Issuer hereunder. A “Receivable” remains a “Receivable,” and is not deemed to have been converted into cash, except to the extent that cash in respect of a reimbursement of that Receivable has been deposited into the Collection and Funding Account. A “Receivable” is originated when the Servicer makes the related Advance (or the Advance is made on its behalf in the case of P&I Advances that may be pre-funded same day pursuant to Section 4.3 hereof) or, with respect to Advances made by a predecessor servicer, when the Servicer reimburses the predecessor servicer for such Advance when the Servicer assumes servicing of the related Mortgage Loan or, with respect to Deferred Servicing Fees when the related servicing fee shall be accrued and unpaid on the related monthly remittance date following the related due date. Receivables for Deferred Servicing Fees that are ineligible for financing will not be sold or transferred by the Servicer and are not a part of the Trust Estate.
Receivable Balance : As of any date of determination and with respect to any Receivable, the outstanding amount of such Receivable, which shall only be reduced to the extent that cash in respect of reimbursement of that Receivable has been deposited into the Collection and Funding Account.
Receivable File : The documents described in Section 2.2 pertaining to a particular Receivable.
Receivables Pooling Agreement : The Amended and Restated Receivables Pooling Agreement, dated as of the Effective Date, between the Depositor, as seller, and the Issuer, as purchaser, as amended, supplemented, restated, or otherwise modified from time to time.
Receivables Sale Agreement : The Amended and Restated Receivables Sale Agreement, dated as of the Effective Date, among Nationstar, Advance Purchaser, and the Depositor, as purchaser, as amended, supplemented, restated, or otherwise modified from time to time.
Receivables Sale Termination Date : The date, after the conclusion of the Revolving Period for all Series and Classes of Notes, on which all amounts due on all Series and Classes of Notes issued by the Issuer pursuant to this Indenture, and all other amounts payable to any party pursuant to this Indenture, shall have been paid in full.
Receivables Seller : Nationstar, as the entity that sold and contributed, prior to the Effective Date and as the entity that sells to Advance Purchaser, on and after the Effective Date but before the related MSR Transfer Date, and Advance Purchaser, as the entity that shall, on and after the Effective Date, and both before and after the related MSR Transfer Date, sell and contribute to the Depositor all Receivables that it either acquires from Nationstar (before the related MSR Transfer Date) or creates as a result of making Advances (on or after the related MSR Transfer Date) under the Designated Servicing Agreements.
Record Date : For the interest or principal payable on any Note on any applicable Payment Date or Interim Payment Date, (i) for a Book Entry Note, the last Business Day before such Payment Date or Interim Payment Date, as applicable, and (ii) for a Definitive Note, the last day of the calendar month preceding such Payment Date or Interim Payment Date, as applicable, unless otherwise specified in the related Indenture Supplement.
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Redemption Amount : With respect to a redemption of any Series or Class of Notes by the Issuer pursuant to Section 13.1 , an amount, which when applied together with other Available Funds pursuant to Section 4.5 , shall be sufficient to pay an amount equal to the sum of (i) the Note Balance of all Outstanding Notes of such Series or Class as of the applicable Redemption Payment Date or Redemption Date, (ii) all accrued and unpaid interest on the Notes of such Series or Class through the day prior to such Redemption Payment Date or Redemption Date, (iii) any and all amounts allocable to such Series or Class and then owing or owing in connection with such redemption to the Indenture Trustee, the Securities Intermediary, any Derivative Counterparty, Liquidity Provider or Supplemental Credit Enhancement Provider, from the Issuer pursuant to the terms hereof, and (iv) any and all other amounts allocable to such Series or Class then due and payable hereunder and sufficient to authorize the satisfaction and discharge of this Indenture pursuant to Section 2.1 .
Redemption Date : As defined in Section 13.1 .
Redemption Notice : As defined in Section 13.2 .
Redemption Payment Date : As defined in Section 13.1 .
Redemption Percentage : For any Class, 10% or such other percentage set forth in the related Indenture Supplement.
Regulation S : Regulation S promulgated under the Securities Act or any successor provision thereto, in each case as the same may be amended from time to time; and all references to any rule, section or subsection of, or definition contained in, Regulation S means such rule, section, subsection, definition or term, as the case may be, or any successor thereto, in each case as the same may be amended from time to time.
Regulation S Definitive Note : As defined in Section 5.2(c)(ii) .
Regulation S Global Note : As defined in Section 5.2(c)(ii) .
Regulation S Note : As defined in Section 5.2(c)(ii) .
Regulation S Note Transfer Certificate : As defined in Section 6.5(i)(ii) .
REO Property : A Mortgaged Property in which a Mortgage Pool or owner has acquired title to such Mortgaged Property through foreclosure or by deed in lieu of foreclosure.
Required Expense Reserve : An amount that, following any Funding Date, shall remain on deposit in the Collection and Funding Account, which amount shall equal (i) the amounts payable in respect of Fees and invoiced or regularly occurring expenses payable from Available Funds on the next Payment Date, plus (ii) all accrued and unpaid interest due on the Notes on the next Payment Date following such Funding Date, plus (iii) all amounts required to be deposited into each Series Reserve Account on the next Payment Date, plus (iv) the aggregate of all Target Amortization Amounts payable on the next Payment Date, except with respect to any Classes of Notes for which the related Indenture Supplement provides that Target Amortization Amounts shall not be reserved as part of the Required Expense Reserve minus (v) the amounts then on deposit in the Accumulation Accounts.
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Reserve Interest Rate : As defined in the related Indenture Supplement for any Series or Class of Notes.
Responsible Officer :
(i) When used with respect to the Indenture Trustee, the Calculation Agent, the Note Registrar, the Securities Intermediary or the Paying Agent, an Indenture Trustee Authorized Officer; and
(ii) when used with respect to the Issuer, any Issuer Authorized Officer who is an officer of the Issuer or is an officer of the Administrator of the type referred to in clause (iii) below; and
(iii) when used with respect to the Servicer, the Subservicer, or the Administrator, the chief executive officer, the chief financial officer or any vice president of the Servicer or the Administrator, as the case may be.
Revolving Period : For any Series or Class of Notes, the period of time which begins on the related Issuance Date and ends on the earlier to occur of (i) a Target Amortization Event for such Series or Class of Notes and (ii) a Facility Early Amortization Event.
Rule 144A : Rule 144A promulgated under the Securities Act.
Rule 144A Definitive Note : As defined in Section 5.2(c)(i) .
Rule 144A Global Note : As defined in Section 5.2(c)(i) .
Rule 144A Note : As defined in Section 5.2(c)(i) .
Rule 144A Note Transfer Certificate : As defined in Section 6.5(i)(iii) .
S&P : Standard and Poor’s Ratings Services, a division of the McGraw-Hill Companies, Inc.
Sale : Any sale of any portion of the Trust Estate pursuant to Section 8.16 .
Sale Date : As defined in the Receivables Sale Agreement.
Schedule of Receivables : On any date, a schedule, which shall be delivered by the Administrator to the Indenture Trustee, and maintained by the Indenture Trustee, in an electronic form, listing the outstanding Receivables sold and/or contributed to the Depositor under the Receivables Sale Agreement and sold and/or contributed to the Issuer under the Receivables Pooling Agreement and Granted to the Indenture Trustee pursuant to this Indenture, as updated from time to time to list Additional Receivables Granted to the Indenture Trustee and deducting any amounts paid against the Receivables as of such date, identifying such Receivables by Designated Servicing Agreement, dollar amount of the related Advance or Deferred Servicing Fee, identifying the
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Advance Type for such Receivable and identifying the related Mortgage Loan number and date of the related Advance or Deferred Servicing Fee. The Indenture Trustee shall be entitled to rely conclusively on the then current Schedule of Receivables until receipt of a superseding schedule.
Secured Party : As defined in the Granting Clause.
Securities Account : As defined in Section 8-501(a) of the UCC.
Securities Act : The Securities Act of 1933, as amended.
Securities Intermediary : As defined in Section 8-102(a)(14) of the UCC, and where appropriate, shall mean Wells Fargo Bank, N.A. or its successor, in its capacity as securities intermediary pursuant to Section 4.9 .
Security Entitlement : As defined in Section 8-102(a)(17) of the UCC.
Security Interest : The security interest in the Collateral Granted to the Indenture Trustee pursuant to the Granting Clause.
Senior Cumulative Interest Shortfall Amount : Any Cumulative Interest Shortfall Amount attributable to any Senior Interest Amount that is unpaid.
Senior Interest Amount : For any Interest Accrual Period and any Class of Notes, interest accrued on such Class during such period, up to an amount equal to interest on such Class’s Note Balance at the applicable Senior Rate.
Senior Margin : For each Class of Notes, as specified in the related Indenture Supplement.
Senior Rate : For each Class of Notes, as specified in the related Indenture Supplement, if any.
Series Advance Receivable Allocation Percentage : For any Series that provides a non-zero Advance Rate for Advances, on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Advances.
Series Allocation Percentage : For any Series on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series.
Series Available Funds : As defined in Section 4.5(a)(2)(iii) hereof.
Series Deferred Servicing Fee Receivable Allocation Percentage: For any Series that provides a non-zero Advance Rate for Deferred Servicing Fee Receivables, on any date of determination, the percentage obtained by dividing (i) the Series Invested Amount for such Series by (ii) the aggregate of the Series Invested Amounts for all Outstanding Series that provide a non-zero Advance Rate for Deferred Servicing Fee Receivables.
Series Fee Limit : For any Series, as specified in the related Indenture Supplement, if applicable.
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Series Fees : For any Series, as specified in the related Indenture Supplement, which shall include any amounts payable to any Derivative Counterparty, Supplemental Credit Enhancement Provider or other similar amount payable in respect of a particular Series.
Series Invested Amount : For any Series on any date is the largest Class Invested Amount for all Outstanding Classes of Notes included in such Series.
Series New Receivables Funding Amount : (A) For any Funding Date in respect of Receivables related to Advances, for any Series that provides a non-zero Advance Rate for Advances and any Additional Receivable related to Advances proposed to be funded on such Funding Date, the product of (i) the applicable Weighted Average CV Adjusted Advance Rate for such Series (calculated without regard to the existence of any Deferred Servicing Fee Receivables and taking into account the inclusion of the new Additional Receivables related to Advances) and (ii) the related Series Advance Receivable Allocation Percentage of the aggregate Receivable Balance of all Receivables related to Advances under all Designated Servicing Agreements, including all Receivables related to Advances conveyed to the Issuer since the previous Funding Date (including P&I Advance Receivables to be so conveyed on such Funding Date, but not including any portion thereof relating to P&I Advances to the extent such P&I Advances were funded using Amounts Held for Future Distribution) and (B) For any Funding Date in respect of Receivables related to Deferred Servicing Fees for any Series that provides a non-zero Advance Rate for Deferred Servicing Fees and any Additional Receivable related to Deferred Servicing Fees proposed to be funded on such Funding Date, the product of (i) the applicable Weighted Average CV Adjusted Advance Rate for such Series (calculated without regard to the existence of any Receivables related to Advances and taking into account the inclusion of the new Additional Receivables related to Deferred Servicing Fees) and (ii) the related Series Deferred Servicing Fee Receivable Allocation Percentage of (A) the aggregate Receivable Balance of all Receivables related to Deferred Servicing Fees under all Designated Servicing Agreements, including all Receivables related to Deferred Servicing Fees conveyed to the Issuer since the previous Funding Date.
Series Required Noteholders : Noteholders of any Series constituting both (i) the Majority Noteholders of such Series and (ii) the Majority Noteholders of the most senior Class of Outstanding Notes of such Series.
Series Reserve Account : An account established for each Series which shall be a segregated non-interest bearing trust account which is an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.6 , and in the name of the Indenture Trustee and identified by each relevant Series.
Series Reserve Required Amount : For each Series, the amount calculated as described in the related Indenture Supplement.
Servicer : For any Designated Servicing Agreement, (i) prior to the related MSR Transfer Date, Nationstar in its capacity as the Servicer under such Designated Servicing Agreement in servicing the related Mortgage Loans for and on behalf of the respective MBS Trustees or other owner(s), and any successor named servicer appointed under such Designated Servicing Agreement; (ii) on and after the related MSR Transfer Date, Advance Purchaser in its capacity as the Servicer under such Designated Servicing Agreement in servicing the related Mortgage Loans for and on behalf of the respective MBS Trustees or other owner(s), and any successor named servicer appointed under such Designated Servicing Agreement.
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Servicer Ratings Downgrade : A downgrade by any rating agency of the servicer ratings of the Servicer or the Subservicer that results in the occurrence of a Servicer Termination Event with respect to the Servicer or a Subservicer Termination Event with respect to the Subservicer pursuant to the terms of a Designated Servicing Agreement or Subservicing Agreement.
Servicer Termination Event : With respect to any Designated Servicing Agreement, the occurrence of any events or conditions, and the passage of any cure periods and giving to and receipt by the Servicer of any required notices, as a result of which any Person has the current right to terminate the Servicer as servicer, subservicer, or master servicer, as applicable, (and any Subservicer that may be acting on behalf of the Servicer) under such Designated Servicing Agreement.
Servicing Agreement : Any pooling and servicing agreement, sale and servicing agreement, or servicing agreement pursuant to which the Servicer is servicing Mortgage Loans for and on behalf of a Mortgage Pool or other owner, each as amended, supplemented, restated, or otherwise modified from time to time.
Servicing Standards : As defined in Section 10.3(k) .
Sinking Fund Account : An account established for any Series which shall be a segregated non-interest bearing trust account which is an Eligible Account, established and maintained pursuant to Section 4.1 and 4.7 , and in the name of the Indenture Trustee and identified by each relevant Series; provided , that, if more than one Sinking Fund Account is to be established for any Series, such accounts may be established as a single Eligible Account with sub-accounts thereof related to specified Classes within such Series as to which Classes a “Sinking Fund Account” has been created and the Sinking Fund Account for a particular Class of such Series shall refer to the sub- account of the related Eligible Account related to such Class.
Sinking Fund Permitted Investments : At any time, any one or more of the following obligations and securities:
(i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; and provided further that such obligations shall have a maturity of no more than three hundred and sixty five (365) days after the date of acquisition and further the short-term debt obligations of such agency or instrumentality at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
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(ii) repurchase agreements on obligations specified in clause (a) maturing not more than twelve months from the date of acquisition thereof and in any event not later than the Business Day immediately preceding the Expected Repayment Date of the Class of Notes related to the Sinking Fund Account in which such Sinking Fund Permitted Investment is held; provided that the short-term unsecured debt obligations of the party agreeing to repurchase such obligations are at the time rated “A-1+” by S&P;
(iii) certificates of deposit, time deposits and bankers’ acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state thereof and subject to supervision and examination by a federal and/or state banking authority of the United States; provided that such obligations shall have a maturity of not more than three hundred and sixty five (365) days after the date of acquisition and further the unsecured short-term debt obligations of such depository institution at the date of acquisition thereof have been rated (x) “A-1” by S&P if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” by S&P if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(iv) commercial paper of any entity organized under the laws of the United States or any state thereof which on the date of acquisition has been rated “A-1+” by S&P; provided that such commercial paper shall have a maturity of no more than three hundred and sixty five (365) days after the date of acquisition;
(v) interests in any U.S. money market fund which, at the date of acquisition of the interests in such fund (including any such fund that is managed by the Indenture Trustee or an Affiliate of the Indenture Trustee or for which the Indenture Trustee or an Affiliate acts as advisor) and throughout the time as the interest is held in such fund, has a rating of “AAAm” from S&P; or
(vi) other obligations or securities that are acceptable to S&P as Permitted Investments hereunder and if the investment of Account funds therein will not result in a reduction of the then current rating of the Notes, as evidenced by a letter to such effect from S&P;
provided , that each of the foregoing investments shall mature no later than the Business Day prior to the immediately preceding the Expected Repayment Date of the Class of Notes related to the Sinking Fund Account in which such Sinking Fund Permitted Investment is held (other than in the case of the investment of monies in instruments of which the Indenture Trustee is the obligor, which may mature on the related Expected Repayment Date), and shall be required to be held to such maturity; and provided further , that each of the Sinking Fund Permitted Investments may be purchased by the Indenture Trustee through an Affiliate of the Indenture Trustee.
Sinking Fund Permitted Investments are only those which are acquired by the Indenture Trustee in its name and in its capacity as Indenture Trustee, and with respect to which (A) the Indenture Trustee has noted its interest therein on its books and records, and (B) the Indenture Trustee has purchased such investments for value without notice of any adverse claim thereto (and, if such investments are securities or other financial assets or interests therein, within the
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meaning of Section 8-102 of the UCC, without acting in collusion with a Securities Intermediary in violating such Securities Intermediary’s obligations to entitlement holders in such assets, under Section 8-504 of the UCC, to maintain a sufficient quantity of such assets in favor of such entitlement holders), and (C) either (i) such investments are in the possession of the Indenture Trustee or (ii) such investments, (x) if certificated securities and in bearer form, have been delivered to the Indenture Trustee, or if in registered form, have been delivered to the Indenture Trustee and either registered by the issuer in the name of the Indenture Trustee or endorsed by effective endorsement to the Indenture Trustee or in blank; (y) if uncertificated securities, ownership of such securities has been registered in the name of the Indenture Trustee on the books of the issuer thereof (or another person, other than a Securities Intermediary, either has become the registered owner of the uncertificated security on behalf of the Indenture Trustee or, having previously become the registered owner, acknowledges that it holds for the Indenture Trustee); or (z) if Securities Entitlements representing interests in securities or other financial assets (or interests therein) held by a Securities Intermediary, a Securities Intermediary indicates by book entry that a security or other financial asset has been credited to the Indenture Trustee’s Securities Account with such Securities Intermediary. No instrument described hereunder may be purchased at a price greater than par.
Specified Notes : The Class 1 Specified Notes and the Class 2 Specified Notes.
STAMP : As defined in Section 6.1(d) .
Stated Maturity Date : For each Class of Notes, the date specified in the Indenture Supplement for such Note as the fixed date on which the outstanding principal and all accrued interest for such Series or Class of Notes is due and payable.
Stop Date : As defined in the Receivables Sale Agreement.
Sub-Administrator : Nationstar or any other entity appointed by Administrator to perform certain of its duties hereunder or under the Transaction Documents with the prior written approval of the Administrative Agent.
Subordinated Cumulative Interest Shortfall Amount : Any Cumulative Interest Shortfall Amount attributable to any Subordinated Interest Amount that is unpaid.
Subordinated Interest Amount : For any Class of Notes and any Interest Accrual Period, the positive difference, if any, between the amount of interest accrued in such Interest Accrual Period on the related Note Balance at the related Note Interest Rate on such Class and the related Senior Interest Amount.
Subservicer : For any Designated Servicing Agreement, on and after the related MSR Transfer Date, Nationstar in its capacity as the Subservicer for such Designated Servicing Agreement under the Nationstar Subservicing Agreement, and any other subservicer as may be appointed from time to time for such Designated Servicing Agreement pursuant to an Eligible Subservicing Agreement. For any Designated Servicing Agreement prior to the related MSR Transfer Date, Nationstar or any successor named servicer pursuant thereto shall be referred to as the Subservicer for such Designated Servicing Agreement for all purposes under this Indenture for purposes of convenience of reference. “Subservicer” also includes a subservicer subservicing for
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Nationstar, only if (i) such subservicer is subservicing under an Eligible Subservicing Agreement for which the related subservicing arrangement shall have been consented to by the Administrative Agent in writing in its sole and absolute discretion and (ii) the Administrator or Servicer shall have given notice of such subservicing arrangement to each Note Rating Agency.
Subservicer Termination Event : With respect to any Subservicing Agreement, the occurrence of any events or conditions, and the passage of any cure periods and giving to and receipt by the Subservicer of any required notices, as a result of which the Servicer has the current right to terminate the Subservicer under such Subservicing Agreement.
Subservicing Agreement : A subservicing agreement entered into by Advance Purchaser, as servicer, and a Subservicer for some or all of the Designated Servicing Agreements that must be an Eligible Subservicing Agreement including, without limitation, the economic agreement as to the Designated Servicing Agreements between Advance Purchaser and Nationstar prior to the related MSR Transfer Date.
Subsidiary : With respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.
Supplemental Credit Enhancement Agreement : A letter of credit, cash collateral account or surety bond or other similar arrangement with any credit enhancement provider which provides the benefit of one or more forms of credit enhancement which is referenced in the applicable Indenture Supplement for any Series or Class of Notes.
Supplemental Credit Enhancement Provider : Any party to any Supplemental Credit Enhancement Agreement other than the Issuer or the Indenture Trustee on behalf of the Issuer.
Target Amortization Amount : For any Interim Payment Date or any Payment Date, as the case may be, for each Class of Notes then in its Target Amortization Period, the monthly amount specified in, or calculated as described in, the related Indenture Supplement; provided , that such monthly amount must be either a fixed dollar amount or a fixed percentage of the Note Balance of such Class.
Target Amortization Class : Any Class of Notes that is in its Target Amortization Period at a time when no Facility Early Amortization Event shall have occurred and be continuing unwaived.
Target Amortization Event : For any Series or Class of Notes, the earlier of (i) the related Expected Repayment Date and (ii) the occurrence of any of the events designated as such in the related Indenture Supplement; provided , that if any Target Amortization Event occurs with respect to any VFN, it shall constitute a Target Amortization Event for all Classes of VFNs.
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Target Amortization Period : For any Class of Notes, the period that begins upon the termination of the related Revolving Period and ends upon the earlier of (i) a Facility Early Amortization Event and (ii) the date on which the Notes of such Class are paid in full, in accordance with the related Indenture Supplement.
Target Amortization Principal Accumulation Account : The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “Wells Fargo Bank, N.A., as Indenture Trustee in trust for the Noteholders of the Nationstar Servicer Advance Receivables Backed Notes, Target Amortization Principal Accumulation Account.”
Target Amortization Principal Accumulation Amount : For any Target Amortization Class on any date, the Target Amortization Amount for the next Payment Date.
Term Note : Notes of any Series or Class designated as “Term Notes” in the related Indenture Supplement.
Transaction Documents : Collectively, this Indenture, each Note Purchase Agreement, the Receivables Sale Agreement, the Receivables Pooling Agreement, the Fee Letter, the Owner Trustee Fee Letter, the Derivative Agreements, Supplemental Credit Enhancement Agreements, the Schedule of Receivables and the Designated Servicing Agreement Schedule, all Notes, the Trust Agreement, the Administration Agreement, the Subservicing Agreement, the Purchase Agreement, each Indenture Supplement and each of the other documents, instruments and agreements entered into on the date hereof and thereafter in connection with any of the foregoing or the transactions contemplated thereby, each as amended, supplemented, restated, or otherwise modified from time to time.
Transfer : As defined in Section 6.5(h) . It is expressly provided that the term “Transfer” in the context of the Notes includes, without limitation, any distribution of the Notes by (i) a corporation to its shareholders, (ii) a partnership to its partners, (iii) a limited liability company to its members, (iv) a trust to its beneficiaries or (v) any other business entity to the owners of the beneficial interests in such entity.
Trigger Advance Rate : For any Class or Series of Notes, as defined in the related Indenture Supplement. If an Indenture Supplement does not define a “Trigger Advance Rate,” the related Series and Classes shall have no Trigger Advance Rate.
Trust Account or Trust Accounts : Individually, any of the Collection and Funding Account, the Initial Collection Account, the Note Payment Account, the Series Reserve Account, the Interest Accumulation Account, the Target Amortization Principal Accumulation Account, the Fee Accumulation Account or the P&I Advance Disbursement Account or any Sinking Fund Account and any other account required under any Indenture Supplement, and collectively, all of the foregoing.
Trust Agreement : The Amended and Restated Trust Agreement, dated the Closing Date, by and between the Depositor and Owner Trustee, as amended, supplemented, restated, or otherwise modified from time to time.
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Trust Estate : The trust estate established under this Indenture for the benefit of the Noteholders, which consists of the property described in the Granting Clause, to the extent not released pursuant to Section 7.1 .
Trust Property : The property, or interests in property, constituting the Trust Estate from time to time.
UCC : The Uniform Commercial Code, as in effect in the relevant jurisdiction.
Undrawn Fees : With respect to any Payment Date during the related Revolving Period, an amount equal to the aggregate of the accrued and unpaid Undrawn Fee Amounts for each day of the Monthly Advance Collection Period immediately preceding such Payment Date, plus any unpaid Undrawn Fees from prior Payment Dates.
Undrawn Fee Amount : For any Series of VFNs as specified in the related Indenture Supplement, for each day during the related Revolving Period, an amount equal to the product of (i) the aggregate of the related Maximum VFN Principal Balance for each Class of VFNs less the aggregate of the VFN Principal Balance of each Class of VFNs as of the close of business on such day, and (ii) the Undrawn Fee Rate divided by 360.
Undrawn Fee Rate : For any VFN Class, the rate set forth or described in the related Indenture Supplement, if any.
United States and U.S. : The United States of America.
United States Person : (i) A citizen or resident of the United States, (ii) a corporation or partnership (or entity treated as a corporation or partnership for United States federal income tax purposes) created or organized in or under the laws of the United States, any one of the states thereof or the District of Columbia, (iii) an estate the income of which is subject to United States federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 which are eligible to elect to be treated as United States Persons).
Unmatured Default : With respect to any Designated Servicing Agreement, the occurrence of any event or condition which, with notice and/or the passage of any applicable cure period, will result in a Servicer Termination Event or Subservicer Termination Event.
Variable Funding Note or VFN : Any Note of a Series or Class designated as “Variable Funding Notes” in the related Indenture Supplement.
Verification Agent : As defined in Section 3.3(d) .
Verification Agent Fee : The amount payable to the Verification Agent following completion of its annual report under Section 3.3(d) in an amount to be determined by the Administrative Agent after consultation with the Servicer.
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VFN Draw : For any Interim Payment Date or Payment Date, the amount to be borrowed on such date in relation to any VFNs pursuant to Section 4.3(b) .
VFN Draw Date : Any Interim Payment Date or Payment Date on which a VFN Draw is to be made pursuant to Section 4.3(b) .
VFN Noteholder : The Noteholder of a VFN.
VFN Note Balance Adjustment Request : As defined in Section 4.3(b)(i) .
VFN Principal Balance : On any date, for any VFN or for any Series or Class of VFNs, as the context requires, the Note Balance thereof as of the opening of business on the first day of the then-current Interest Accrual Period for such Series or Class less (i) all amounts previously paid during such Interest Accrual Period on such Note with respect to principal plus (ii) the amount of any increase in the Note Balance of such Note during such Interest Accrual Period prior to such date, which amount shall not exceed the Maximum VFN Principal Balance.
Voting Interests : The aggregate voting power evidenced by the Notes, and each Outstanding Note’s Voting Interest within its Series equals the percentage equivalent of the fraction obtained by dividing that Note’s Note Balance by the aggregate Note Balance of all Outstanding Notes within such Series; provided , however , that where the Voting Interests are relevant in determining whether the vote of the requisite percentage of Noteholders necessary to effect any consent, waiver, request or demand shall have been obtained, the Voting Interests shall be deemed to be reduced by the amount equal to the Voting Interests (without giving effect to this provision) represented by the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, the Depositor, the Receivables Seller or any Person that is an Affiliate of any of the Issuer, the Depositor or the Receivables Seller. The Indenture Trustee shall have no liability for counting a Voting Interest of any Person that is not permitted to be so counted hereunder pursuant to the definition of “Outstanding” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is the Issuer or the Receivables Seller or an Affiliate of either or both of the Issuer and the Receivables Seller.
For the avoidance of doubt, all actions, consents and votes under the terms and provisions of this Indenture (other than under any Indenture Supplement related to a specific Series) that require a certain percentage of Voting Interests of all Notes shall be deemed by each of the parties hereto and the Noteholders to require such designated percentage of Voting Interests of each Outstanding Series and, in the event any one Series fails to provide the required percentage of Voting Interests with respect to any such action, consent or vote, then such action, consent or vote shall be deemed by the parties hereto and the Noteholders to be not approved.
Weighted Average Advance Rate : With respect to any Class of Notes on any date of determination, a percentage equal to the weighted average of the non-zero Advance Rates applicable to the Receivables in the case of such Class (weighted based on the Receivable Balances of all Facility Eligible Receivables that have a positive Collateral Value attributable to each separate Advance Type on such date). With respect to a Series of Notes, the “Weighted Average Advance Rate” shall equal the Weighted Average Advance Rate with respect to the Class within such Series with the highest Advance Rates.
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Weighted Average CV Adjusted Advance Rate : With respect to any Class or Series on any date of determination, the lesser of (i) the product of (A) the Weighted Average Advance Rate, for such Class or Series on that date, and (B) a fraction, (1) the numerator of which equals the aggregate Receivable Balances of all Facility Eligible Receivables that have a positive Collateral Value with respect to such Class or Series on such date and (2) the denominator of which equals the aggregate Receivable Balances of all Receivables with non-zero Advance Rates attributable to all Designated Servicing Agreements and (ii) the related Trigger Advance Rate (or, when determined for a Series, the highest Trigger Advance Rate for any Class within such Series).
Whole Loan Servicing Agreement : A Servicing Agreement related to a Mortgage Pool that is not included in a closed-end securitization trust.
| Section 1.2. | Interpretation. |
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) reference to and the definition of any document (including this Indenture) shall be deemed a reference to such document as it may be amended or modified from time to time;
(b) all references to an “Article,” “Section,” “Schedule” or “Exhibit” are to an Article or Section hereof or to a Schedule or an Exhibit attached hereto;
(c) defined terms in the singular shall include the plural and vice versa and the masculine, feminine or neuter gender shall include all genders;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Indenture shall refer to this Indenture as a whole and not to any particular provision of this Indenture;
(e) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;
(f) periods of days referred to in this Indenture shall be counted in calendar days unless Business Days are expressly prescribed and references in this Indenture to months and years shall be to calendar months and calendar years unless otherwise specified;
(g) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under GAAP;
(h) “including” and words of similar import will be deemed to be followed by “without limitation”;
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(i) references to any Transaction Document (including this Indenture) and any other agreement shall be deemed a reference to such Transaction Document or agreement as it may be amended or modified from time to time; and
(j) references to any statute, law, rule or regulation shall be deemed a reference to such statute, law, rule or regulation as it may be amended or modified from time to time.
| Section 1.3. | Compliance Certificates and Opinions. |
Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer will furnish to the Indenture Trustee (1) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and (2) unless the Indenture Trustee waives the requirement of delivery, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture will include:
(a) a statement to the effect that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement to the effect that such individual has made such examination or investigation as is necessary to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
| Section 1.4. | Form of Documents Delivered to Indenture Trustee. |
In any case where several matters are required to be certified by, or covered by an opinion of, one or more specified Persons, one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to the other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless the Issuer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous. Any such certificate or opinion of, or representation by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous.
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
| Section 1.5. | Acts of Noteholders. |
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action (each, an “ Action ”) provided by this Indenture to be given or taken by Noteholders of any Class may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such Action will become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments and any such record (and the Action embodied therein and evidenced thereby) are herein sometimes referred to as the “ Act ” of the Noteholders signing such instrument or instruments and so voting at any meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, will be sufficient for any purpose of this Indenture and (subject to Section 11.1 ) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 1.5 .
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness to such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit will also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes will be proved by the Note Register.
(d) Any Action by a Noteholder will bind all subsequent Noteholders of such Noteholder’s Note, in respect of anything done or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon whether or not notation of such Action is made upon such Note.
(e) Without limiting the foregoing, a Noteholder entitled hereunder to take any Action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or Action taken by a Noteholder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Noteholders of each such different part.
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(f) Without limiting the generality of the foregoing, unless otherwise specified pursuant to one or more Indenture Supplements, a Noteholder, including a Depository that is the Noteholder of a Global Note representing Book-Entry Notes, may make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Indenture to be made, given or taken by a Noteholder, and a Depository that is the Noteholder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in or security entitlements to any such Global Note through such Depository’s standing instructions and customary practices.
(g) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in or security entitlements to any Global Note held by a Depository entitled under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Indenture to be made, given or taken by Noteholders. If such a record date is fixed, the Noteholders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such Action, whether or not such Noteholders remain Noteholders after such record date. No such Action shall be valid or effective if made, given or taken more than ninety (90) days after such record date.
| Section 1.6. | Notices, etc., to Indenture Trustee, Issuer, Administrator and the Administrative Agent. |
Any Action of Noteholders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Indenture Trustee by any Noteholder or by the Issuer will be sufficient for every purpose hereunder if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail to the Indenture Trustee (or Wells Fargo Bank, N.A. in any of its capacities) at its Corporate Trust Office, or the Issuer or the Administrator by the Indenture Trustee or by any Noteholder will be sufficient for every purpose hereunder (except with respect to notices to the Indenture Trustee of an Event of Default as provided in Section 8.1 ) if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail, addressed to it at (i) the Corporate Trust Office in the case of the Indenture Trustee or Wells Fargo Bank, N.A. in any of its capacities, (ii) 350 Highland Drive, Lewisville, TX 75067, in the case of Nationstar, (iii) c/o Wilmington Trust, National Association, as Owner Trustee, Rodney Square North, 1100 North Market Street, Wilmington, DE, 19890, in the case of the Issuer, (iv) Eleven Madison Avenue, New York, New York 10010, in the case of the Administrative Agent, and (v) Advance Purchaser LLC, c/o New Residential Investment Corp., 1345 Avenue of the Americas, New York, NY 10105, Attention: Susan Givens, Chief Financial Officer, in the case of Advance Purchaser, or, in any case at any other address previously furnished in writing by any such party to the other parties hereto.
| Section 1.7. | Notices to Noteholders; Waiver. |
(a) Where this Indenture, any Indenture Supplement or any Note provides for notice to registered Noteholders of any event, such notice will be sufficiently given (unless expressly provided otherwise herein, in such Indenture Supplement or in such Note) if in writing and mailed, first-class postage prepaid, sent by facsimile, sent by electronic transmission or
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personally delivered to each Noteholder of a Note affected by such event, at such Noteholder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, facsimile, electronic transmission or delivery, none of the failure to mail, send by facsimile, send by electronic transmission or deliver such notice, or any defect in any notice so mailed, to any particular Noteholders will affect the sufficiency of such notice with respect to other Noteholders and any notice that is mailed, sent by facsimile, sent by electronic transmission or delivered in the manner herein provided shall conclusively have been presumed to have been duly given.
Where this Indenture, any Indenture Supplement or any Note provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver will be the equivalent of such notice. Waivers of notice by Noteholders will be filed with the Indenture Trustee, but such filing will not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it will be impractical to mail notice of any event to any Noteholder of a Note when such notice is required to be given pursuant to any provision of this Indenture, then any method of notification as will be satisfactory to the Indenture Trustee and the Issuer will be deemed to be a sufficient giving of such notice.
(c) Where this Indenture provides for notice to each Note Rating Agency, failure to give such notice will not affect any other rights or obligations created hereunder and will not under any circumstance constitute an Adverse Effect.
| Section 1.8. | Administrative Agent. |
(a) Discretion of Administrative Agent. Any provision providing for the exercise of discretion of the Administrative Agent means that such discretion may be executed in the sole and absolute discretion of the Administrative Agent. In addition, for the avoidance of doubt, as further provided in the definition of “Administrative Agent” herein and notwithstanding any other provision in this Indenture to the contrary, any approvals, consents, votes or other rights exercisable by the Administrative Agent under this Indenture (other than any Indenture Supplement related to a specific Series) shall require the approval, consent, vote or other exercise of rights of each Person specified by name under the definition of “Administrative Agent” or in its stead its Affiliate or successor as noticed to the Indenture Trustee.
(b) Nature of Duties. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Indenture, a related Indenture Supplement or in the other Transaction Documents. The Administrative Agent shall not have by reason of this Indenture or any Transaction Document a fiduciary relationship in respect of any Noteholder. Nothing in this Indenture or any of the Transaction Documents, express or implied, is intended to or shall be construed to impose upon the Administrative Agent any obligations in respect of this Indenture or any of the other Transaction Documents except as expressly set forth herein or therein. Each Noteholder shall make its own independent investigation of the financial condition and affairs of the Issuer in connection with the purchase of any Note and shall make its
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own appraisal of the creditworthiness of the Issuer and the value of the Collateral, and the Administrative Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Noteholder with any credit or other information with respect thereto, whether coming into its possession before the Closing Date, as applicable, or at any time or times thereafter.
(c) Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or in connection with this Indenture or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including, without limitation, counsel to the Administrative Agent or counsel to the Issuer), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Noteholder and shall not be responsible to any Noteholder for any statements, certificates, warranties or representations made in or in connection with this Indenture or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Indenture or the other Transaction Documents on the part of any Person, the existence or possible existence of any default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (iv) shall not be responsible to any Noteholder for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Indenture or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Indenture Trustee’s Adverse Claim thereon, or any certificate prepared by the Issuer in connection therewith, nor shall the Administrative Agent be responsible or liable to the Noteholders for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Noteholder shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Indenture, the Notes or any of the other Transaction Documents in its own interests as a Noteholder or otherwise.
(d) Reliance. The Administrative Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Indenture or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.
| Section 1.9. | Effect of Headings and Table of Contents. |
The Article and Section headings herein and the Table of Contents are for convenience only and will not affect the construction hereof.
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| Section 1.10. | Successors and Assigns. |
All covenants and agreements in this Indenture by the Issuer will bind its successors and assigns, whether so expressed or not. All covenants and agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents of the Indenture Trustee.
| Section 1.11. | Severability of Provisions. |
In case any provision in this Indenture or in the Notes will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
| Section 1.12. | Benefits of Indenture. |
Except as otherwise provided in Section 14.7 hereof, nothing in this Indenture or in any Notes, express or implied, will give to any Person, other than the parties hereto and their successors hereunder, any Authenticating Agent or Paying Agent, the Note Registrar, the Securities Intermediary, the Calculation Agent, any Secured Party and the Noteholders of Notes (or such of them as may be affected thereby), any benefit or any legal or equitable right, remedy or claim under this Indenture.
| Section 1.13. | Governing Law. |
THIS INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS INDENTURE, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS .
| Section 1.14. | Counterparts. |
This Indenture may be executed in any number of counterparts, each of which so executed will be deemed to be an original, but all such counterparts will together constitute but one and the same instrument. Delivery of an executed counterpart of a signature page to this Indenture by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
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| Section 1.15. | Submission to Jurisdiction; Waivers. |
EACH OF THE PARTIES HERETO AND THE NOTEHOLDERS, BY THEIR ACCEPTANCE OF THE NOTES, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS INDENTURE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OTHER PARTY HERETO SHALL HAVE BEEN NOTIFIED IN WRITING;
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(e) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Article II
The Trust Estate
| Section 2.1. | Contents of Trust Estate. |
(a) Grant of Trust Estate . The Issuer has Granted the Trust Estate to the Indenture Trustee, and the Indenture Trustee has accepted this Grant, pursuant to the Granting Clause.
(b) Notification of MBS Trustees . The Servicer hereby represents and warrants that it has notified the related MBS Trustees with respect to the Designated Servicing Agreements as of the initial date of the assignment, transfer of ownership and pledge of Receivables related to
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such Servicing Agreements, including the related Advance Reimbursement Amounts, and that each related Receivable is subject to the Indenture Trustee’s Security Interest, pursuant to a notice, substantially in the form of Exhibit C attached hereto. The notices indicating the Security Interest of the Indenture Trustee in the Receivables relating to a particular Designated Servicing Agreement shall be deleted, rescinded or modified when, and only when, all related Receivables have been paid in full or have been released from such Security Interest pursuant to this Indenture. In addition, each Determination Date Report shall include a list of the Receivables, and any such list or related trial balance or Schedule of Receivables, and any other list of the Receivables provided by the Servicer, the Receivables Seller or the Issuer to any third party shall include language indicating that the Receivables identified therein are subject to the Indenture Trustee’s Security Interest.
(c) Addition and Removal of Designated Servicing Agreements .
(i) Addition of Designated Servicing Agreements .
(A) Advance Purchaser may at any time designate any Facility Eligible Servicing Agreement as a Designated Servicing Agreement under the Receivables Sale Agreement, whereupon such Servicing Agreement shall become a “Designated Servicing Agreement” for purposes of this Indenture with respect to the Advance Types of Receivables that are designated as eligible pursuant to such Servicing Agreement if (1) the Administrator has certified in writing to the Indenture Trustee that such Servicing Agreement is a Facility Eligible Servicing Agreement, (2) the Administrative Agent (in its sole discretion) has approved such Servicing Agreement for addition and approved the designation of the Advance Types of Receivables that are eligible and (3) written notice of such addition has been provided to the Note Rating Agencies for Outstanding Notes. Prior to the addition of any Designated Servicing Agreement, as provided in this Section 2.1(c) , the Administrator must certify to the Indenture Trustee in writing that it has filed all financing statements or amendments to financing statements to ensure that the Indenture Trustee’s Security Interest in any Receivables related to any additional Designated Servicing Agreements is perfected and of first priority.
(B) If any Servicing Agreements are added as Designated Servicing Agreements, the Administrator shall update the Designated Servicing Agreement Schedule which shall specifically designate the Advance type of Receivables that are eligible and furnish it to the Indenture Trustee, and the most recently furnished schedule shall be maintained by the Indenture Trustee as the definitive Designated Servicing Agreement Schedule.
(C) Notwithstanding anything herein to the contrary, the Issuer may acquire existing Receivables under Servicing Agreements to be added as Designated Servicing Agreements directly from another special purpose financing subsidiary of Advance Purchaser, the Receivables from which are at the time of transfer financed in another facility and such Receivables may constitute Facility Eligible Receivables notwithstanding that such Receivables were not transferred by the Receivables Seller to the Depositor and then by the Depositor to the Issuer.
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(ii) Removal of Designated Servicing Agreements .
(A) Advance Purchaser may remove any Servicing Agreement as a Designated Servicing Agreement under Section 2(e) of the Receivables Sale Agreement and/or change any Advance Types of Receivables that are designated as eligible or ineligible pursuant to such Servicing Agreement, whereupon such agreement shall no longer constitute a “Designated Servicing Agreement” or the Advance Types of Receivables shall no longer be designated as eligible or no longer be designated as ineligible (as the case may be, with respect to changes in categorization of certain Advance Types from the date on which they were originally designated with approval of the Administrative Agent) pursuant to such Servicing Agreement for purposes of this Indenture (except that, unless the Issuer conducts a Permitted Refinancing, Receivables related to Advances made by or Deferred Servicing Fees accrued by the Servicer pursuant to that agreement prior to its removal shall continue to be part of the Trust Estate, in which case Advance Purchaser may not assign to another Person any Receivables arising under that Servicing Agreement until all Receivables that arose under that Servicing Agreement that are included in the Trust Estate shall have been paid in full or sold or otherwise transferred in a Permitted Refinancing). Prior to removing any Designated Servicing Agreement or designating such Advance Types of Receivables as no longer eligible or no longer ineligible pursuant to such Servicing Agreement as provided in this Section 2.1(c) , the Issuer must (1) receive prior written approval from the Administrative Agent, which may be given or withheld in its sole and absolute discretion and (2) send prior written notice of such removal to each Note Rating Agency.
(B) If any Servicing Agreements are removed as Designated Servicing Agreements or any Advance Types of Receivables with respect to a Designated Servicing Agreement are no longer designated as eligible or no longer designated as ineligible as the case may be, with respect to changes in categorization of certain Advance Types from the date on which they were originally designated with the approval of the Administrative Agent, the Administrator shall update the Designated Servicing Agreement Schedule, which shall specifically designate the Advance type of Receivables that are eligible and furnish it to the Indenture Trustee, and the most recently furnished schedule shall be maintained by the Indenture Trustee as the definitive Designated Servicing Agreement Schedule.
If one or more Designated Servicing Agreements is removed as described in this Section 2.1(c) during any Facility Year, the Administrative Agent shall have the right to require the Servicer to obtain written affirmation from each applicable Note Rating Agency of its continued rating of the Notes, as applicable, at the Servicer’s expense, once in respect of each Facility Year in which such a removal shall have occurred and the Servicer shall obtain such Note Rating Agency’s written affirmation of ratings if so requested in writing by the Administrative Agent, at the Servicer’s sole cost and expense.
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(d) Protection of Transfers to, and Back-up Security Interests of Depositor and Issuer . The Administrator shall take all actions as may be necessary to ensure that the Trust Estate is Granted to the Indenture Trustee pursuant to this Indenture. The Administrator, at its own expense, shall make all initial filings on or about the Closing Date hereunder and shall forward a copy of such filing or filings to the Indenture Trustee. In addition, and without limiting the generality of the foregoing, the Administrator, at its own expense at the reasonable request of the Administrative Agent, shall prepare and forward for filing, or shall cause to be forwarded for filing, all filings necessary to maintain the effectiveness of any original filings necessary under the relevant UCC to perfect and maintain the first priority status of the Indenture Trustee’s security interest in the Trust Estate, including without limitation (i) continuation statements, and (ii) such other statements as may be occasioned by (A) any change of name of any of the Receivables Seller, the Servicer, the Depositor or the Issuer, (B) any change of location of the jurisdiction of any of the Receivables Seller, the Servicer, the Depositor or the Issuer, (C) any transfer of any interest of the Receivables Seller, the Depositor or the Issuer in any item in the Trust Estate or (D) any change under the applicable UCC or other applicable laws. The Administrator shall enforce the Depositor’s obligations pursuant to the Receivables Pooling Agreement, and the Receivables Seller’s and the Servicer’s obligations pursuant to the Receivables Sale Agreement, on behalf of the Issuer and the Indenture Trustee.
(e) Release of Receivables Following Receivables Sale Termination Date . The Indenture Trustee shall release to the Issuer all Receivables in the Trust Estate upon the occurrence of the Receivables Sale Termination Date, and shall execute all instruments of assignment, release or conveyance, prepared by the Issuer or the Receivables Seller, and delivered to the Indenture Trustee, as reasonably requested by the Issuer or the Receivables Seller.
| Section 2.2. | Receivable Files. |
(a) Indenture Trustee . The Indenture Trustee agrees to hold, in trust on behalf of the Noteholders, upon the execution and delivery of this Indenture, the following documents relating to each Receivable:
(i) a copy of each Determination Date Report in electronic form listing each Receivable Granted to the Trust Estate, the applicable Advance Type for such Receivable and the corresponding Receivable Balance for such Receivable and demonstrating the profitability or loss of each Subservicing Agreement for the immediately preceding calendar quarter, and any other information required in any related Indenture Supplement;
(ii) a copy of each Funding Certification delivered by the Administrator, which shall be maintained in electronic format;
(iii) the current Designated Servicing Agreement Schedule;
(iv) the current Schedule of Receivables; and
(v) and any other documentation provided for in any Indenture Supplement
provided that the Indenture Trustee shall have no responsibility to ensure the validity or sufficiency of the Receivables.
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(b) Administrator as Custodian . To reduce administrative costs, the Administrator will act as custodian for the benefit of the Noteholders of the following documents relating to each Receivable:
(i) a copy of the related Designated Servicing Agreement and each amendment and modification thereto;
(ii) any documents other than those identified in Section 2.2(a) received from or made available by the related MBS Trustee, Servicer, securities administrator or other similar party in respect of such Receivable; and
(iii) any and all other documents that the Issuer, the Servicer or the Receivables Seller, as the case may be, shall keep on file, in accordance with its customary procedures, relating to such Receivable or the related Mortgage Pool or Servicing Agreement.
(c) Delivery of Updated Designated Servicing Agreement Schedule . The Administrator shall deliver to the Indenture Trustee an updated Schedule 1 prior to the addition or deletion of any Servicing Agreement as a Designated Servicing Agreement or modification to the eligibility status of any Advance Type of Receivables arising under such Servicing Agreement and the Indenture Trustee shall hold the most recently delivered version as the definitive Schedule 1 . The Administrator represents and warrants, as of the date hereof and as of the date any new Servicing Agreement is added as a Designated Servicing Agreement, that Schedule 1 , as it may be updated by the Administrator from time to time and delivered to the Indenture Trustee, is a true, complete and accurate list of all Designated Servicing Agreements.
In addition, the Administrator shall furnish to the Indenture Trustee an updated Schedule of Receivables on each Funding Date in electronic form, and the Indenture Trustee shall maintain the most recent Schedule of Receivables it receives, and send a copy to any Noteholder upon request.
In addition, in connection with the delivery of each updated Schedule 1 pursuant to this Section 2.2(c), the Administrator shall furnish to the Indenture Trustee an updated Schedule 3 or Schedule 4 , as necessary to reflect any updates upon the addition or removal of Designated Servicing Agreements or designation or modification of eligibility status for any Advance Type of Receivables pursuant to Section 2.1(c) .
(d) Marking of Records . The Administrator or the Sub-Administrator on behalf of the Administrator shall ensure that, from and after the time of the sale and/or contribution of the Initial Receivables and all Additional Receivables to the Depositor under the Receivables Sale Agreement and to the Issuer under the Receivables Pooling Agreement, and the Grant thereof to the Indenture Trustee pursuant to this Indenture, any records (including any computer records and back-up archives) maintained by or on behalf of the Servicer that refer to any Receivable indicate clearly the interest of the Issuer and the Security Interest of the Indenture Trustee in such Receivable and that such Receivable is owned by the Issuer and subject to the Indenture Trustee’s Security Interest. Indication of the Issuer’s ownership of a Receivable and the Security Interest of the Indenture Trustee shall be deleted from or modified on such records when, and only when, such Receivable has been paid in full, repurchased, or assigned by the Issuer and released by the Indenture Trustee from its Security Interest.
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| Section 2.3. | Indemnity Payments for Receivables Upon Breach. |
(a) Upon discovery by the Issuer or the Administrator, or upon the actual knowledge of a Responsible Officer of the Indenture Trustee, of a breach of any of the representations and warranties of the Receivables Seller as to any Receivable set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement, the party discovering such breach shall give prompt written notice to the other parties hereto. Upon notice of such a breach, the Administrator shall enforce the Issuer’s rights to require the Receivables Seller to deposit the Indemnity Payment with respect to the affected Receivable(s) into the Collection and Funding Account. This obligation shall pertain to all representations and warranties of the Receivables Seller as to the Receivables set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement, whether or not the Receivables Seller has knowledge of the breach at the time of the breach or at the time the representations and warranties were made.
(b) Unless repurchased by the Receivables Seller in a transaction contemplated by Section 2.1 hereof, the Receivables shall remain in the Trust Estate, regardless of any receipt of an Indemnity Payment in the Collection and Funding Account. The sole remedies of the Indenture Trustee and the Noteholders with respect to a breach of any of the representations and warranties of the Receivables Seller as to any Receivable set forth in Section 4(b) or Section 5(b), as applicable, of the Receivables Sale Agreement shall be to enforce the obligation of the Issuer hereunder and the remedies of the Issuer (as assignee of the Depositor) against the Receivables Seller under the Receivables Sale Agreement. The Indenture Trustee shall have no duty to conduct any affirmative investigation as to the occurrence of any condition requiring the payment of any Indemnity Payment for any Receivable pursuant to this Section 2.3 , except as otherwise provided in Section 11.2 .
(c) To the extent not prohibited by Applicable Law, the Administrator and solely during the continuation of a Facility Early Amortization Event, the Indenture Trustee, are authorized to commence at the written direction of the Administrative Agent or Majority Noteholders of all Outstanding Notes, in its own name or in the name of the Issuer, legal proceedings to enforce any Receivable against the related MBS Trustee or any successor servicer or other appropriate party or to commence or participate in a legal proceeding (including without limitation a bankruptcy proceeding) relating to or involving a Receivable, the Receivables Seller or the Servicer; provided , however , that nothing contained herein shall obligate the Indenture Trustee to take or initiate such action or legal proceeding, unless indemnity reasonably satisfactory to it shall have been provided. The Administrator or the Sub-Administrator on behalf of the Administrator shall deposit or cause to be deposited into the Collection and Funding Account, on behalf of the Indenture Trustee and the Noteholders, all amounts realized in connection with any such action.
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| Section 2.4. | Duties of Custodian with Respect to the Receivables Files. |
(a) Safekeeping . The Indenture Trustee or the Administrator (or a Sub-Administrator acting on the Administrator’s behalf), in its capacity as custodian (each, a “ Custodian ”) pursuant to Section 2.2(c) , shall hold the portion of the Receivable Files that it is required to maintain under Section 2.2 in its possession from time to time for the use and benefit of all present and future Noteholders, and maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the Calculation Agent and the Indenture Trustee to comply with this Indenture. Each Custodian shall act with reasonable care, using that degree of skill and attention that it would exercise if it owned the Receivables itself. Each Custodian shall promptly report to the Issuer any failure on its part to hold the Receivable Files and maintain its accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. The Indenture Trustee shall have no responsibility or liability for any actions or omissions of the Administrator in its capacity as Custodian or otherwise.
(b) Maintenance of and Access to Records . Each Custodian shall maintain each portion of the Receivable File that it is required to maintain under this Indenture at its offices at the Corporate Trust Office (in the case of the Indenture Trustee) or 350 Highland Drive, Lewisville, TX 75067 (in the case of the Servicer) as the case may be, or at such other office as shall be specified to the Indenture Trustee and the Issuer by thirty (30) days’ prior written notice. The Administrator (or a Sub-Administrator acting on the Administrator’s behalf) shall take all actions necessary, or reasonably requested by the Administrative Agent, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee, to amend any existing financing statements and continuation statements, and file additional financing statements to further perfect or evidence the rights, claims or security interests of the Indenture Trustee under any of the Transaction Documents (including the rights, claims or security interests of the Depositor and the Issuer under the Receivables Sale Agreement and the Receivables Pooling Agreement, respectively, which have been assigned to the Indenture Trustee). The Indenture Trustee and the Administrator, in their capacities as Custodian(s), shall make available to the Issuer, the Calculation Agent, any group of Interested Noteholders and the Indenture Trustee (in the case of the Administrator) or their duly authorized representatives, attorneys or auditors the portion of the Receivable Files that it is required to maintain under this Indenture and the accounts, books and records maintained by the Indenture Trustee or the Administrator with respect thereto as promptly as reasonably practicable following not less than two (2) Business Days’ prior written notice for examination during normal business hours and in a manner that does not unreasonably interfere with such Person’s ordinary conduct of business.
| Section 2.5. | Application of Trust Money. |
All money deposited with the Indenture Trustee or the Paying Agent pursuant to Section 4.2 shall be held in trust and applied by the Indenture Trustee or the Paying Agent, as the case may be, in accordance with the provisions of the Notes and this Indenture, to the payment to the Persons entitled thereto, of the principal, interest, fees, costs and expenses (or payments in respect of the New Receivables Funding Amount or other amount) for whose payment such money has been deposited with the Indenture Trustee or the Paying Agent.
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Article III
Administration of Receivables; Reporting to Investors
| Section 3.1. | Duties of the Calculation Agent. |
(a) General . The Calculation Agent shall initially be Wells Fargo Bank, N.A.. The Calculation Agent is appointed for the purpose of making calculations and verifications as provided in this Section 3.1(a) . The Calculation Agent, as agent for the Noteholders, shall provide all services necessary to fulfill the role of Calculation Agent as set forth in this Indenture.
By 2:00 p.m. New York City time on each Payment Date (or such other time as may be agreed to from time to time by the Servicer, the Administrator, the Indenture Trustee and the Administrative Agent), based upon information provided to the Indenture Trustee and the Calculation Agent by the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to the Designated Servicing Agreements and the Transaction Documents, as well as each applicable Determination Date Report and all available reports issued by the MBS Trustee or Servicer for the applicable Mortgage Pool, the Calculation Agent shall prepare, or cause to be prepared, and deliver by first class mail or electronic means (including on the website pursuant to Section 3.5(a) ) to Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency, a report setting forth the information set forth below plus a Series-specific Calculation Agent Report reporting the items for each Series that are specified in the related Indenture Supplement (collectively for each Series, the “ Calculation Agent Report ” to the extent such information is received from the Administrator or the Sub-Administrator on behalf of the Administrator):
(i) The aggregate unpaid principal balance of the Mortgage Loans subject to each separate Designated Servicing Agreement as reported in MBS Trustee reports for the previous calendar month;
(ii) (A) The aggregate Month-to-Date Available Funds collected, (B) the aggregate Advance Reimbursement Amounts, (C) the aggregate amount of Indemnity Payments and (D) the aggregate amount of proceeds collected during the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date for all Designated Servicing Agreements;
(iii) The aggregate of the Funded Advance Receivable Balances of the Additional Receivables funded during the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date for all Designated Servicing Agreements;
(iv) The aggregate of the Funded Advance Receivable Balances for each of the P&I Advances, Judicial P&I Advances, Non-Judicial P&I Advances, Escrow Advances, Judicial Escrow Advances, Non-Judicial Escrow Advances, Corporate Advances, Judicial Corporate Advances, Non-Judicial Corporate Advances, Servicing Fee Advances,
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Judicial Deferred Servicing Fees and Non-Judicial Deferred Servicing Fees attributable to each Designated Servicing Agreement, as of the close of business on the day before the related Determination Date, plus the Funded Advance Receivable Balances for each of the P&I Advances, Judicial P&I Advances and Non-Judicial P&I Advances to be funded on the upcoming Funding Date;
(v) For each Designated Servicing Agreement, the percentage equivalent of the quotient of (A) the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement divided by (B) the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vi) The identification of the related Derivative Counterparty, if any, for any Series, the current debt rating for such Derivative Counterparty, the notional amount for the Derivative Agreement and the applicable rate payable in respect of the Derivative Agreement;
(vii) [RESERVED];
(viii) An indication (yes or no) as to whether the Collateral Test is satisfied for each Class and Series, and for the facility as a whole as of the close of business on the last day of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(ix) [RESERVED];
(x) A list of each Facility Early Amortization Event and presenting a yes or no answer beside each indicating whether each possible Facility Early Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(xi) If required by any VFN Noteholder, the aggregate New Receivables Funding Amount to be paid on the upcoming Funding Date, and the amount to be drawn on each Class of VFNs Outstanding in respect of such New Receivables Funding Amount, and the portion of such New Receivables Funding Amount that is to be paid using Available Funds pursuant to Section 4.5(a)(1)(vii) or Section 4.4(e), as applicable and the amount to be drawn on each Class of VFNs Outstanding in respect of Excess Receivables Funding Amounts;
(xii) If any Note is Outstanding, the amount, if any, to be paid on each such Class in reduction of the aggregate Principal Balance on the upcoming Payment Date or Interim Payment Date;
(xiii) The amount of Fees to be paid on the upcoming Payment Date;
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(xiv) A list of each Receivable Granted to the Trust Estate, the applicable Advance Type for such Receivable and the corresponding Receivable Balance for such Receivable;
(xv) The Required Expense Reserve and Series Reserve Required Amount for each Series of Notes for the upcoming Payment Date or Interim Payment Date;
(xvi) The Fee Accumulation Amount, the Interest Accumulation Amount and the Target Amortization Principal Accumulation Amount for the upcoming Interim Payment Date;
(xvii) The Weighted Average Advance Rate and Weighted Average CV Adjusted Advance Rate for each Series and Class of the Notes and the Trigger Advance Rate for each Series and Class of the Notes, if any;
(xviii) The Class Invested Amount and, if applicable, the Series Invested Amount for each Series and Class for the upcoming Payment Date or Interim Payment Date;
(xix) The Interest Payment Amount and the Target Amortization Amount for each Class of Outstanding Notes for the upcoming Payment Date, and the Senior Interest Amount, the Senior Cumulative Interest Shortfall Amount and the Subordinated Cumulative Interest Shortfall Amount for each Class of Notes for the Interest Accrual Period related to the upcoming Payment Date; and
(xx) The aggregate Collateral Value of all Facility Eligible Receivables for each Outstanding Series and the sum for all Outstanding Series as of the close of business on the day before the related Determination Date, pro forma Collateral Value of Facility Eligible Receivables for each Outstanding Series and the sum for all Outstanding Series that will be created upon the funding of P&I Advances to be funded on the related Funding Date.
(b) Termination of Calculation Agent . The Issuer (with the consent of the Majority Noteholders of all Outstanding Notes) or the Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series (in each case, measured by Voting Interests) may at any time terminate the Calculation Agent without cause upon sixty (60) days’ prior notice. If at any time the Calculation Agent shall fail to resign after written request therefor as set forth in this Section 3.1(b) , or if at any time the Calculation Agent shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Calculation Agent or of its property shall be appointed, or if any public officer shall take charge or Control of the Calculation Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Majority Noteholders of all Outstanding Notes may remove the Calculation Agent and such Noteholders shall also remove the Indenture Trustee as provided in Section 11.9(c) . If the Calculation Agent resigns or is removed under the authority of the immediately preceding sentence, then a successor Calculation Agent shall be appointed pursuant to Section 11.9 . The Issuer shall give each Note Rating Agency, each Derivative Counterparty and the Noteholders notice of any such resignation or removal of the Calculation Agent and appointment and acceptance of a successor Calculation Agent. Notwithstanding the foregoing, no resignation, removal or termination of the
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Calculation Agent shall be effective until the resignation, removal or termination of the predecessor Calculation Agent and until the acceptance of appointment by the successor Calculation Agent as provided herein. Any successor Indenture Trustee appointed shall also be the successor Calculation Agent hereunder, if the predecessor Indenture Trustee served as Calculation Agent and no separate Calculation Agent is appointed. Notwithstanding anything to the contrary herein, the Indenture Trustee may not resign as Calculation Agent unless it also resigns as Indenture Trustee pursuant to Section 11.9(b) .
(c) Successor Calculation Agents . Any successor Calculation Agent appointed hereunder shall execute, acknowledge and deliver to the Issuer and to its predecessor Calculation Agent an instrument accepting such appointment under this Indenture, and thereupon the resignation or removal of the predecessor Calculation Agent shall become effective and such successor Calculation Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Indenture, with like effect as if originally named as Calculation Agent. The predecessor Calculation Agent shall deliver to the successor Calculation Agent all documents and statements held by it under this Indenture. The Issuer and the predecessor Calculation Agent shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Calculation Agent all such rights, powers, duties and obligations. Upon acceptance of appointment by a successor Calculation Agent as provided in this Section 3.1 , the Issuer shall mail notice of the succession of such successor Calculation Agent under this Indenture to all Noteholders at their addresses as shown in the Note Register and shall give notice by mail to each Derivative Counterparty and each applicable Note Rating Agency. If the Issuer fails to mail such notice within ten (10) days after acceptance of appointment by the successor Calculation Agent, the successor Calculation Agent shall cause such notice to be mailed at the expense of the Administrator.
| Section 3.2. | Reports by Administrator and Indenture Trustee. |
(a) Determination Dates; Determination Date Reports . The Indenture Trustee shall report to the Administrator, by no later than 2:00 p.m. New York City time on the second (2 nd ) Business Day before each Funding Date (or such other time as may be agreed to from time to time by Administrator, the Indenture Trustee and the Administrative Agent), the amount of Available Funds that will be available to be applied toward New Receivables Funding Amounts or to pay principal on any applicable Notes on the upcoming Payment Date or Interim Payment Date. If the Administrator or the Sub-Administrator on behalf of the Administrator supplies no information to the Indenture Trustee in its Determination Date Report concerning New Receivables Funding Amounts or payments on any Variable Funding Note in respect of an Interim Payment Date, then the Indenture Trustee shall apply no Available Funds to pay New Receivables Funding Amounts or to make payment on any Note on such Interim Payment Date.
By no later than 12:00 p.m. (noon) New York City time on the second (2 nd ) Business Day prior to each Funding Date that is a VFN Draw Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent) or the first (1 st ) Business Day prior to each Funding Date that is not a VFN Draw Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator or the Sub-Administrator on behalf of the
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Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent, the Administrative Agent, each VFN Noteholder, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Paying Agent a report (the “ Determination Date Report ”) (in electronic form) setting forth each data item required to be reported by the Calculation Agent to Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency in its Calculation Agent Report pursuant to Section 3.1 .
(b) Payment Date Report . By no later than 3:00 p.m. New York City time on each Payment Date, the Indenture Trustee shall prepare and deliver to the Issuer, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent, each VFN Noteholder, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each Note Rating Agency a report (the “ Payment Date Report ”) reporting the following for such Payment Date and the Monthly Advance Collection Period preceding such Payment Date:
(i) the amount on deposit in the Collection and Funding Account as of the opening of business on the first (1 st ) day of such Monthly Advance Collection Period;
(ii) the aggregate amount of all Collections deposited into the Collection and Funding Account during such Monthly Advance Collection Period;
(iii) the aggregate amount of Indemnity Payments deposited into the Collection and Funding Account during such Monthly Advance Collection Period;
(iv) the total of all (A) payments in respect of each Class of Notes (separately identifying interest and principal paid on each Class) made on the Payment Date and each Interim Payment Date that occurred during the Monthly Advance Collection Period, (B) all New Receivables Funding Amounts paid in respect of Additional Receivables during such Monthly Advance Collection Period separately identifying the portion thereof paid from funds in the Collection and Funding Account and the portion thereof paid using proceeds of fundings of an increase in VFN Principal Balance(s) for each Class of VFNs, and (C) all Excess Cash Amounts paid to the Depositor as holder of the Owner Trust Certificate on the Payment Date and each Interim Payment Date that occurred during such Monthly Advance Collection Period;
(v) the amount transferred from the Collection and Funding Account to the Note Payment Account in respect of the Payment Date that occurred during such Monthly Advance Collection Period;
(vi) the amount on deposit in each of the Interest Accumulation Account, Target Amortization Principal Accumulation Account, the Fee Accumulation Account and any other Trust Accounts set forth under any Indenture Supplement as of the close of business on the last Interim Payment Date before such Payment Date;
(vii) the aggregate amount of Collections received during the Monthly Advance Collection Period;
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(viii) the amount of Available Funds for such Payment Date (the sum of the items reported in clause (vi) , plus the items reported in clause (vii) );
(ix) the amount on deposit in the Series Reserve Account for each Series, and, if applicable, the amount the Indenture Trustee is to withdraw from each such Series Reserve Account and deposit into the Note Payment Account on such Payment Date for application to the related Series of Notes;
(x) the amount of each payment required to be made by the Indenture Trustee or the Paying Agent pursuant to Section 4.5 on such Payment Date, including an identification, for each Class of Notes, as applicable, and for all Outstanding Notes in the aggregate, of
(A) any Cumulative Interest Shortfall Amount for each Class of Notes and for all Outstanding Notes of each Series in the aggregate;
(B) the Senior Interest Amount for each Class of Notes for the Interest Accrual Period related to such Payment Date;
(C) the Interest Payment Amount for each Class of Notes and for all Outstanding Notes of each Series in the aggregate;
(D) the Series Reserve Required Amount for each Series of Notes then Outstanding;
(E) the Target Amortization Amount to be paid on such Payment Date on each Class of Outstanding Notes that is in its Target Amortization Period; and
(F) the unpaid Note Balance for each Class and Series of Notes and for all Outstanding Notes in the aggregate (before and after giving effect to any principal payments to be made on such Payment Date);
(xi) the amount of Fees to be paid on such Payment Date;
(xii) (A) the Collateral Value of all Facility Eligible Receivables, as of the close of business on the last day of such Monthly Advance Collection Period and as of the close of business on such Payment Date for each Outstanding Series of Notes, (B) the amount on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account, the Target Amortization Principal Accumulation Account, any other Trust Accounts set forth in any related Indenture Supplement and the Note Payment Account as of the close of business on the last day of such Monthly Advance Collection Period and as of the close of business on such Payment Date, and (C) a calculation demonstrating whether the Collateral Test was satisfied at such time and whether it will be satisfied as of the close of business on such Payment Date after all payments and distributions described in Section 4.5(a) ; and
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(xiii) the Senior Interest Amount, the Senior Cumulative Interest Shortfall Amount and the Subordinated Cumulative Interest Shortfall Amount for each Series and Class of Notes for the Interest Accrual Period related to the upcoming Payment Date.
The Payment Date Report shall also state any other information required pursuant to any related Indenture Supplement necessary for the Paying Agent and the Indenture Trustee to make the payments required by Section 4.5(a) and all information necessary for the Indenture Trustee to make available to Noteholders pursuant to Section 3.5 .
(c) Interim Payment Date Reports . By no later than 3:00 p.m. New York City time on each Interim Payment Date on which there is a VFN Outstanding and on which the Full Amortization Periods have not yet begun, the Indenture Trustee shall prepare and deliver to the Issuer, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each VFN Noteholder a report (an “ Interim Payment Date Report ”) reporting the following for such Interim Payment Date and the Advance Collection Period preceding such Interim Payment Date:
(i) (A) the amount on deposit in the Collection and Funding Account as of the close of business on the last day before the beginning of such Advance Collection Period and (B) the amounts on deposit in the Interest Accumulation Account, the Target Amortization Principal Accumulation Account, the Fee Accumulation Account and any other Trust Accounts set forth in any Indenture Supplement, as of the close of business on the immediately preceding Payment Date or Interim Payment Date;
(ii) the amount of all Collections deposited into the Collection and Funding Account during such Advance Collection Period;
(iii) the aggregate amount of Indemnity Payments deposited into the Collection and Funding Account during such Advance Collection Period;
(iv) the aggregate amount of deposits into the Collection and Funding Account from the Note Payment Account in respect of the Payment Date, if any, that occurred during such Advance Collection Period;
(v) the total of all (A) payments in respect of each Class of Notes (separately identifying interest and principal paid on each Class of Variable Funding Notes) made on the Payment Date or Interim Payment Date that occurred during such Advance Collection Period, (B) all New Receivables Funding Amounts that were paid in respect of Additional Receivables during such Advance Collection Period, separately identifying the portion thereof paid from funds on deposit in the Collection and Funding Account and the portion thereof paid using proceeds of an increase in VFN Principal Balance(s) for each Class of VFNs, and (C) all Excess Cash Amounts paid to the Depositor as holder of the Owner Trust Certificate on the Payment Date or Interim Payment Date that occurred during such Advance Collection Period;
(vi) the amount transferred from the Collection and Funding Account to the Note Payment Account in respect of the Payment Date, if any, that occurred during such Advance Collection Period;
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(vii) the amount of Available Funds for such Interim Payment Date (calculated as the sum of the items reported in clauses (i)(B) and (vi) );
(viii) the amount on deposit in the Series Reserve Account for each Series and the Series Reserve Required Amount for such Series Reserve Account, and the amount to be deposited into each Series Reserve Account on such Interim Payment Date;
(ix) the amounts required to be deposited on such Interim Payment Date into the Interest Accumulation Account, Target Amortization Principal Accumulation Account, Fee Accumulation Account and any other Trust Account referenced in any related Indenture Supplement, respectively;
(x) the amount of Available Funds to be applied toward the New Receivables Funding Amount of Additional Receivables on the upcoming Interim Payment Date pursuant to Section 4.4(e) ;
(xi) the amount to be applied to reduce the aggregate VFN Principal Balance of each Class of VFNs on such Interim Payment Date (as reported to the Indenture Trustee by the Administrator);
(xii) the amount of any Excess Cash Amount paid to the Depositor as holder of the Owner Trust Certificate on such Interim Payment Date;
(xiii) the Collateral Value of all Facility Eligible Receivables as of the end of such Advance Collection Period and as of the close of business on such Interim Payment Date for each Outstanding Series of Notes and the amount on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account, the Target Amortization Principal Accumulation Account, the Note Payment Account and any other Trust Account referenced in a related Indenture Supplement as of the end of business on the last day of such Advance Collection Period and as of the close of business on such Interim Payment Date;
(xiv) a calculation demonstrating whether the Collateral Test was satisfied as of the end of business on the last day of such Advance Collection Period and whether it will be satisfied at such time after effecting the payments described in Section 4.4 ; and
(xv) any other amounts specified in an Indenture Supplement.
(d) No Duty to Verify or Recalculate . Notwithstanding anything contained herein to the contrary, none of the Calculation Agent (except as described in Section 3.1(a) ), the Indenture Trustee or the Paying Agent shall have any obligation to verify or recalculate any information provided to them by the Administrator, and may rely on such information in making the allocations and payments to be made pursuant to Article IV .
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| Section 3.3. | Annual Statement as to Compliance; Notice of Default; Agreed Upon Procedures Reports. |
(a) Annual Officer’s Certificates .
(i) The Servicer and the Receivables Seller shall each deliver to each Note Rating Agency and the Indenture Trustee, on or before March 31 of each calendar year, beginning on March 31, 2014, an Officer’s Certificate of the Servicer and the Receivables Seller, executed by the chief financial officer, with respect to Nationstar, and by the chief financial officer, with respect to Advance Purchaser, stating that (A) a review of the activities of the Servicer (and any related Subservicer) or the Receivables Seller, as the case may be, during the preceding 12-month period ended December 31 and of its performance under this Indenture and the Receivables Sale Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Receivables Seller has fulfilled all its obligations under this Indenture and the Receivables Sale Agreement in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof. For purposes of the Officer’s Certificate that will be delivered on March 31, 2014, Nationstar, in its capacity as Servicer and Receivables Seller, shall deliver such Officer’s Certificate covering the reporting period from January 1, 2013 through the Effective Date and Advance Purchaser, in its capacity as Servicer, shall deliver such Officer’s Certificate covering the reporting period from the Effective Date and thereafter.
(ii) The Administrator shall deliver to each Note Rating Agency and the Indenture Trustee, on or before March 31 of each calendar year, beginning on March 31, 2014, an Officer’s Certificate executed by the chief financial officer of the Administrator, stating that (A) a review of the activities of the Issuer, the Depositor and the Administrator during the preceding 12-month period ended December 31 and of its performance under this Indenture, the Receivables Sale Agreement and the Receivables Pooling Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Administrator has fulfilled all its obligations under this Indenture in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof. For purposes of the Officer’s Certificate that will be delivered on March 31, 2014, Nationstar, in its capacity as administrator prior to the Effective Date, shall deliver such Officer’s Certificate covering the reporting period from January 1, 2013 through the Effective Date and Advance Purchaser, in its capacity as Administrator, shall deliver such Officer’s Certificate covering the reporting period from the Effective Date and thereafter.
(b) Notice of Default . The Indenture Trustee shall deliver to the Noteholders, the Issuer, each Derivative Counterparty (as applicable, in the case of any Target Amortization Event, with respect to the related Series of Notes) and each Note Rating Agency promptly after a Responsible Officer has obtained actual knowledge thereof, but in no event later than five (5) Business Days thereafter or such shorter time period as may be required by any Note Rating Agency, written notice specifying the nature and status of any Target Amortization Event, Event of Default or Facility Early Amortization Event.
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(c) Annual Regulation AB/USAP Report . The Servicer shall, on or before the last Business Day of the fifth month following the end of each of the Servicer’s fiscal years (December 31), beginning in 2014, deliver to the Indenture Trustee who shall forward to each Noteholder a copy of the results of any Regulation AB required attestation report or Uniform Single Attestation Program for Mortgage Bankers or similar review conducted on the Servicer by its accountants and any other reports reasonably requested by the Administrative Agent.
(d) Agreed Upon Procedures Report . Within forty five (45) days of the end of each calendar month beginning with the calendar month ending July 31, 2013 through and including the calendar month ending August 31, 2013, and within forty five (45) days of the end of each calendar quarter of the Servicer, beginning with the quarter ending September 30, 2013, the Servicer shall cause PricewaterhouseCoopers LLP (who may also render other services to the Servicer, the Receivables Seller or the Depositor) (or any replacement therefor approved by the Administrative Agent, the “ Verification Agent ”) to furnish, at the Servicer’s or the Subservicer’s expense, a report to the Servicer and the Administrative Agent with respect to the prior calendar quarter, (i) to the effect that the Verification Agent has applied certain procedures, to be determined at the discretion of the Administrative Agent after consultation with the Servicer and shall be incorporated as Exhibit D hereto after the Closing Date, including re-performance of certain accounting procedures performed by the Servicer and the Subservicer pursuant to Designated Servicing Agreements and examination of certain documents and records related to the disbursement and reimbursement of Advances and accrual and payment of Deferred Servicing Fees under the related Designated Servicing Agreements and this Indenture and that, on the basis of such agreed-upon procedures, the Verification Agent confirms that the servicing (including the allocation of collections) has been conducted in compliance with the terms and conditions set forth in Article IV, except for such exceptions as it believes to be immaterial and such other exceptions as shall be set forth in such statement, and (ii) detailing the following items for such calendar quarter:
(A) For a sample of Designated Servicing Agreements for at least three dates during the applicable quarter, a reconciliation of the expected total principal and interest payments in respect of the Mortgage Loans to the amounts on deposit in the related Custodial Accounts;
(B) Daily receipt clearing reconciliation (three (3) days at a minimum) with respect to a sample of Custodial Accounts;
(C) A reconciliation of the monthly disbursement clearing account with respect to at least two (2) dates per calendar quarter;
(D) “Flow of funds” testing for all of P&I Advances, Escrow Advances, Corporate Advances and Deferred Servicing Fees relating to the tracking of funds from clearing account receipt through to deposit into the Collection and Funding Account (three (3) days minimum);
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(E) A reconciliation of the servicing system Escrow Advance balance (including all suspense and advance balances) to the balances on deposit in the escrow accounts maintained by the Servicer for a sample of the Designated Servicing Agreements;
(F) Analysis of recoverable Advances and Receivables and aging of these items;
(G) Analysis of whether the thresholds with respect to the Designated Servicing Agreements listed on Schedule 4 , and as specified in clauses (ix) of the definition of “Facility Eligible Receivable” and in any related Indenture Supplement, including any Collateral Value exclusions provided for therein, have been met; and
(H) A comparison of the amounts and percentages set forth in four of the Determination Date Reports forwarded by the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to Section 3.2(a) during the period covered by such report with the computer reports (which may include personal computer generated reports that summarize data from the computer reports generated by the Administrator or the Sub-Administrator which are used to prepare the Determination Date Reports) which were the source of such amounts and percentages and that on the basis of such comparison; and
(I) Any other data reasonably requested by the Administrative Agent.
For purposes of this section, items performed by the Subservicer on behalf of the Servicer will be deemed to have been verified as to the Servicer if such verification procedures have been performed with respect to the Subservicer.
In addition, each report shall set forth the agreed upon procedures performed and the results of such procedures. A copy of such report will be sent by the Verification Agent or the Indenture Trustee to each Noteholder upon receipt of a written request of the Noteholder. In the event the Verification Agent requires the Indenture Trustee to agree to the procedures performed by the Verification Agent, the Issuer shall direct the Indenture Trustee in writing to so agree; it being understood and agreed that the Indenture Trustee will deliver such letter of agreement in conclusive reliance upon the direction of the Issuer, and the Indenture Trustee makes no independent inquiry or investigation as to, and shall have no obligation or liability in respect of, the sufficiency, validity or correctness of such procedures. Furthermore, in the event that the Verification Agent’s expense in producing a report as required hereunder exceeds the amount reimbursable to it pursuant to Section 4.5 , such excess shall be payable by the Administrator, at the Administrator’s own expense, upon receipt by the Administrator of written notification of, and request for, such amount from the Verification Agent.
(e) RESERVED .
(f) Annual Lien Opinion . Within one hundred (100) days after the end of each fiscal year of the Administrator, beginning with the fiscal year ending in 2014, the Administrator shall deliver to the Indenture Trustee an Opinion of Counsel from outside counsel to the effect that the
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Indenture Trustee has a perfected security interest in the Aggregate Receivables attributable to the Servicing Agreements identified in an exhibit to such opinion as Designated Servicing Agreements, and that, based on a review of UCC search reports (copies of which shall be attached thereto) and review of other certifications and other materials, there are no UCC1 filings indicating an Adverse Claim with respect to such Receivables that has not been released.
(g) Other Information . In addition, the Administrator shall forward to the Administrative Agent, upon its reasonable request, such other information, documents, records or reports respecting (i) Advance Purchaser, Nationstar or any of their respective Affiliates party to the Transaction Documents, (ii) the condition or operations, financial or otherwise, of Advance Purchaser, Nationstar or any of their respective Affiliates party to the Transaction Documents, (iii) the Designated Servicing Agreements, the related Mortgage Loans and the Receivables or (iv) the transactions contemplated by the Transaction Documents, including access to the Servicer’s and each Subservicer’s management and records. In addition, Nationstar shall forward to the Administrative Agent, upon its reasonably request, such other information, documents, records or reports respecting (i) Nationstar or any of its Affiliates party to the Transaction Documents, (ii) the condition or operations, financial or otherwise, of Nationstar or any of its Affiliates party to the Transaction Documents, (iii) Designated Servicing Agreements, the related Mortgage Loans and the Receivables or (iv) the transactions contemplated by the Transaction Documents. The Administrative Agent shall and shall cause its respective representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or the Administrative Agent may reasonably determine that such disclosure is consistent with its obligations hereunder; provided , however , that the Administrative Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder.
| Section 3.4. | Access to Certain Documentation and Information. |
(a) Access to Receivables Information . The Custodians shall provide the Noteholders with access to the documentation relating to the Receivables as provided in Section 2.4(b) . In each case, access to documentation relating to the Receivables shall be afforded without charge but only upon reasonable request and during normal business hours at the offices of the Custodians and in a manner that does not unreasonably interfere with a Custodian’s conduct of its regular business. Nothing in this Section 3.4 shall impair the obligation of the Custodians to observe any Applicable Law prohibiting disclosure of information regarding the Trust Estate and the failure of the Custodians to provide access as provided in this Section 3.4 as a result of such obligation shall not constitute a breach of this Section.
Notwithstanding anything to the contrary contained in this Section 3.4 , Section 2.4 , or in any other Section hereof, the Servicer and the Subservicer, on reasonable prior notice, shall permit the Administrative Agent, the Verification Agent, the Indenture Trustee or any agent or independent certified public accountants selected by the Indenture Trustee, during the Servicer’s or the Subservicer’s, as applicable, normal business hours, and in a manner that does not unreasonably interfere with the Servicer’s or the Subservicer’s, as applicable, conduct of its regular business, to examine all the books of account, records, reports and other papers of the
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Servicer or the Subservicer, as applicable, relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables, to make copies and extracts therefrom, and to discuss the Servicer’s or the Subservicer’s, as applicable, affairs, finances and accounts relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables with the Servicer’s officers, employees and independent public accountants (and by this provision the Servicer hereby authorizes the Servicer’s accountants to discuss with such representatives such affairs, finances and accounts), all at such times and as often as reasonably may be requested; provided that the Servicer shall be given reasonable prior notice of any meeting with its accountants and shall have the right to have its representatives present at any such meeting. The Servicer shall at all times have equivalent access rights to the Subservicer. Unless a related Target Amortization Event, an Event of Default that has not been waived by Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent or a Facility Early Amortization Event that has not been waived by Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent shall have occurred, or the Notes of any rated Class have been downgraded below “investment grade” by each related Note Rating Agency or any related Note Rating Agency shall have withdrawn its rating of any Class of Notes, any out-of-pocket costs and expenses incident to the exercise by the Indenture Trustee or any Noteholder of any right under this Section 3.4 shall be borne by the requesting Noteholder(s). The parties hereto acknowledge that the Indenture Trustee shall not exercise any right pursuant to this Section 3.4 prior to any event set forth in the preceding sentence unless directed to do so by a group of Interested Noteholders, and the Indenture Trustee has been provided with indemnity satisfactory to it by such Interested Noteholders. The Indenture Trustee shall have no liability for action in accordance with the preceding sentence.
In the event that such rights are exercised (i) following a related Target Amortization Event, (ii) following the occurrence of a Facility Early Amortization Event that has not been waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent, (iii) following the occurrence of an Event of Default that has not been waived by Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent, or (iv) after a related Note Rating Agency has withdrawn its rating of any Class of Notes or (iv) while the Notes of any rated Class have a rating below “investment grade” by such Note Rating Agency, all out-of-pocket costs and expenses incurred by the Indenture Trustee shall be borne by Advance Purchaser. Prior to any such payment, Advance Purchaser shall be provided with commercially reasonable documentation of such costs and expenses. Notwithstanding anything contained in this Section 3.4 to the contrary, in no event shall the books of account, records, reports and other papers of the Servicer, the Receivables Seller, the Depositor or the Issuer relating to the Mortgage Loans, Designated Servicing Agreements and the Receivables be examined by independent certified public accountants at the direction of the Indenture Trustee or any Interested Noteholder pursuant to the exercise of any right under this Section 3.4 more than two times during any 12-month period, unless (A) a Target Amortization Event, (B) a Facility Early Amortization Event that has not been waived by, together, Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, 100% of the VFN Noteholders and the Administrative Agent has occurred during such twelve-month period, (C) an Event of Default has occurred that has not been waived by Noteholders of more
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than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent during such twelve-month period, or (D) the Notes of any rated Class have been downgraded below “investment grade” by a related Note Rating Agency (without regard to any supplemental credit enhancement) or such Note Rating Agency shall have withdrawn its rating of any rated Class of Notes, in which case more than two examinations may be conducted during a twelve-month period, but such extra audits shall be at the sole expense of the Noteholder(s) requesting such audit(s).
(b) Access to Issuer . The Issuer agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, Verification Agent or the Administrative Agent, to examine all of its books of account, records, reports, and other papers, to make copies and extracts therefrom, to cause such books to be audited by independent certified public accountants, and to discuss its affairs, finances and accounts its officers, employees, and independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee, the Verification Agent and the Administrative Agent shall and shall cause their respective representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or the Indenture Trustee, the Verification Agent or the Administrative Agent, as applicable, may reasonably determine that such disclosure is consistent with its obligations hereunder; provided , however , that the Indenture Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder. Without limiting the generality of the foregoing, neither the Indenture Trustee, the Verification Agent or the Administrative Agent shall disclose information to any of its Affiliates or any of their respective directors, officers, employees and agents, that may provide any servicer advance financing to Nationstar, Advance Purchaser, the Depositor, the Issuer or any of their Affiliates, except in such Affiliate’s capacity as Noteholder.
| Section 3.5. | Indenture Trustee to Make Reports Available. |
(a) Monthly Reports on Indenture Trustee’s Website . The Indenture Trustee will make each Determination Date Report, Payment Date Report and Interim Payment Date Report (and, at its option, any additional files containing the same information in an alternative format) available each month to any interested parties via the Indenture Trustee’s internet website and such other information as the Indenture Trustee may have in its possession, but only with the use of a password provided by the Indenture Trustee. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee’s internet website shall initially be located at www.ctslink.com. Assistance in using the Indenture Trustee’s website can be obtained by calling the Indenture Trustee’s investor relations desk at 1-866-846-4576. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail by calling the investor relations desk and requesting a copy. The Indenture Trustee shall have the right to change the way the Determination Date Reports, Payment Date Reports and Interim Payment Date Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Indenture Trustee shall provide timely and adequate notification to all above parties regarding any such changes.
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All Noteholders are advised (and have been advised pursuant to any related offering document) to review any distribution statement, financial information and disbursements provided to them, and to bring any errors or omissions to the Indenture Trustee’s attention within ninety (90) days of receipt of such distribution statement, financial information or disbursement. If any errors or omissions are brought to the Indenture Trustee’s attention subsequent to such time period, the Indenture Trustee shall use good faith efforts to make the correction as requested; provided, however, such corrections shall be made in accordance with the Depository’s policies and procedures then in effect.
(b) Annual Reports . Within sixty (60) days after the end of each calendar year, the Indenture Trustee shall furnish to each Person (upon the written request of such Person), who at any time during the calendar year was a Noteholder a statement containing (i) information regarding payments of principal, interest and other amounts on such Person’s Notes, aggregated for such calendar year or the applicable portion thereof during which such person was a Noteholder and (ii) such other customary information as may be deemed necessary or desirable for Noteholders to prepare their tax returns. Such obligation shall be deemed to have been satisfied to the extent that substantially comparable information is provided pursuant to any requirements of the Code as are from time to time in force. The Indenture Trustee shall prepare and provide to the Internal Revenue Service and to each Noteholder any information reports required to be provided under federal income tax law, including without limitation IRS Form 1099.
Article IV
The Trust Accounts; Payments
| Section 4.1. | Trust Accounts. |
The Indenture Trustee shall establish and maintain, or cause to be established and maintained, the Trust Accounts, each of which shall be an Eligible Account, for the benefit of the Secured Parties. All amounts held in the Trust Accounts (other than any Sinking Fund Account) shall, to the extent permitted by this Indenture and applicable laws, rules and regulations, be invested in Permitted Investments by the depository institution or trust company then maintaining such Account only upon written direction of the Administrator to the Indenture Trustee; provided , however , that in the event the Administrator fails to provide such written direction to the Indenture Trustee, and until the Administrator provides such written direction, the Indenture Trustee shall not invest funds on deposit in any Trust Account (other than any Sinking Fund Account). Funds deposited into a Trust Account on a Business Day after 1:30 p.m. New York City time will not be invested until the following Business Day. Investments held in Permitted Investments in the Trust Accounts (other than any Sinking Fund Account) shall not be sold or disposed of prior to their maturity (unless a Facility Early Amortization Event has occurred). Earnings on investment of funds in any Trust Account (other than any Sinking Fund Account) shall be remitted by the Indenture Trustee upon the Administrator’s request to the account or other location of the Administrator’s designation on the first (1 st ) Business Day of the month following the month in which such earnings on investment of funds is received; provided , that the Indenture Trustee shall be entitled to the benefit of any income or gain in the Trust Accounts (other than any Sinking Fund Account) for the Business Day immediately preceding
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each Interim Payment Date or Payment Date, as applicable. Any losses and investment expenses relating to any investment of funds in any Trust Account (other than any Sinking Fund Account) shall be for the account of the Administrator, which shall deposit or cause to be deposited the amount of such loss (to the extent not offset by income from other investments of funds in the related Trust Account) in the related Trust Account promptly upon the realization of such loss. The taxpayer identification number associated with each of the Trust Accounts (other than any Sinking Fund Account) shall be that of the Issuer, and the Issuer shall report for federal, state and local income tax purposes their respective portions of the income, if any, earned on funds in the relevant Trust Account (other than any Sinking Fund Account). The Administrator hereby acknowledges that all amounts on deposit in each Trust Account (excluding investment earnings on deposit in the Trust Accounts), other than any Sinking Fund Account, are held in trust by the Indenture Trustee for the benefit of the Secured Parties, subject to any express rights of the Issuer set forth herein, and shall remain at all times during the term of this Indenture under the sole dominion and control of the Indenture Trustee.
All amounts held in any Sinking Fund Account shall, to the extent permitted by this Indenture and applicable laws, rules and regulations, be invested in Sinking Fund Permitted Investments by the depository institution or trust company then maintaining such Sinking Fund Account only upon written direction of the Administrator to the Indenture Trustee; provided , however , that in the event the Administrator fails to provide such written direction to the Indenture Trustee, and until the Administrator provides such written direction, the Indenture Trustee shall not invest funds on deposit in any Sinking Fund Account. Funds deposited into a Sinking Fund Account on a Business Day after 1:30 p.m. New York City time will not be invested until the following Business Day. Investments held in Sinking Fund Permitted Investments in any Sinking Fund Account shall not be sold or disposed of prior to their maturity (unless a Facility Early Amortization Event has occurred). Earnings on investment of funds in any Sinking Fund Account shall be remitted by the Indenture Trustee upon the Administrator’s request to the account or other location of the Administrator’s designation on the first (1 st ) Business Day of the month following the month in which such earnings on investment of funds is received; provided , that the Indenture Trustee shall be entitled to the benefit of any income or gain in the Sinking Fund Accounts for the Business Day immediately preceding each Interim Payment Date or Payment Date, as applicable. Any losses and investment expenses relating to any investment of funds in any Sinking Fund Account shall be for the account of the Administrator, which shall deposit or cause to be deposited the amount of such loss (to the extent not offset by income from other investments of funds in the related Sinking Fund Account) in the related Sinking Fund Account promptly upon the realization of such loss. The taxpayer identification number associated with each of the Sinking Fund Accounts shall be that of the Issuer, and the Issuer shall report for federal, state and local income tax purposes their respective portions of the income, if any, earned on funds in the relevant Sinking Fund Account. The Administrator hereby acknowledges that all amounts on deposit in each Sinking Fund Account (excluding investment earnings on deposit in the Sinking Fund Accounts) are held in trust by the Indenture Trustee for the benefit of the Noteholders, subject to any express rights of the Issuer set forth herein, and shall remain at all times during the term of this Indenture under the sole dominion and control of the Indenture Trustee.
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So long as the Indenture Trustee complies with the provisions of this Section 4.1 , the Indenture Trustee shall not be liable for the selection of investments or for investment losses incurred thereon by reason of investment performance, liquidation prior to stated maturity or otherwise. The Indenture Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure to be provided with timely written investment direction.
In order to comply with laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“ Applicable Law ”), the Indenture Trustee is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee. Accordingly, each of the parties agrees to provide to the Indenture Trustee upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with Applicable Law.
All parties to this Indenture agree, and each Noteholder of each Series by its acceptance of the related Note will be deemed to have agreed, that such Noteholder shall have no claim or interest in the amounts on deposit in any Trust Account created under this Indenture or any related Indenture Supplement related to an unrelated Series except as expressly provided herein or therein.
The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be for the Indenture Trustee’s economic self-interest for (a) serving as investment adviser, administrator, shareholder, servicing agent, custodian or sub-custodian with respect to certain of the Permitted Investments and Sinking Fund Permitted Investments, (b) using Affiliates to effect transactions in certain Permitted Investments and Sinking Fund Permitted Investments and (c) effecting transactions in certain Permitted Investments and Sinking Fund Permitted Investments. Such compensation is not payable or reimbursable under this Indenture.
| Section 4.2. | Collections and Disbursements of Advances by Servicer. |
(a) Daily Deposits of Net Proceeds . The Servicer shall deposit all Advance Reimbursement Amounts to its clearing account, and shall cause any Subservicer to deposit any Advance Reimbursement Amounts it collects to the Subservicer’s clearing account, within one (1) Business Day after its receipt thereof. The Servicer, for and on behalf of the Indenture Trustee and the Noteholders, shall remit or cause the Subservicer to remit, into the Collection and Funding Account all Advance Reimbursement Amounts collected by the Servicer pursuant to any Designated Servicing Agreement, no later than two (2) Business Days after the Servicer’s or Subservicer’s deposit thereof into its clearing account, and shall, no later than two (2) Business Days thereafter, remit all such Advance Reimbursement Amounts received on or after the Cut-off Date to the Indenture Trustee for deposit into the Collection and Funding Account; provided , however , that if a Designated Servicing Agreement requires the related Servicer to remit such amounts to a Custodial Account, the Servicer or the Subservicer shall deposit such collections to such Custodial Account no later than two (2) Business Days after collection thereof by the Servicer or the Subservicer, and shall cause such amounts to be remitted directly (unless the Servicer has provided notice to the Administrative Agent as contemplated in the immediately following sentence) from such Custodial Account(s) to the Initial Collection
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Account (which amounts shall afterwards be deposited into the Collection and Funding Account within one (1) Business Day of deposit into the Initial Collection Account) or to the Collection and Funding Account no later than two (2) Business Days after such amounts are deposited into the clearing account. If the Servicer or Subservicer, as applicable, remits Collections through one or more intermediate steps in the course of transfer from its clearing account to the related Custodial Account, or from the related Custodial Account to the Collection and Funding Account, the Servicer shall identify each such account in writing to the Administrative Agent. The Indenture Trustee shall deposit to the Collection and Funding Account all Advance Reimbursement Amounts it receives from the Servicer daily. To the extent the Indenture Trustee receives for deposit Advance Reimbursement Amounts in the Collection and Funding Account later than 2:00 p.m. New York City Time on a Business Day, such funds shall be deemed to have been received on the following Business Day. Notwithstanding the foregoing, after the Servicer shall have remitted to the Collection and Funding Account, Advance Reimbursement Amounts in respect of P&I Advances made under a Designated Servicing Agreement in an amount sufficient to reimburse all P&I Advances that were made under such Designated Servicing Agreement using funds other than Amounts Held for Future Distribution, the Servicer may leave additional Advance Reimbursement Amounts collected with respect to such Designated Servicing Agreement in the related Custodial Account and use such funds to reimburse Amounts Held for Future Distribution as required pursuant to Section 4.2(c) .
(b) Payment Dates . On each Payment Date, the Indenture Trustee shall transfer from the Collection and Funding Account to the Note Payment Account all Available Funds then on deposit in the Collection and Funding Account. Except in the case of Redemption Amounts, which may be remitted by the Issuer directly to the Note Payment Account, none of the Servicer, the Subservicer, the Administrator, the Issuer, the Calculation Agent nor the Indenture Trustee shall remit to the Note Payment Account, and each shall take all reasonable actions to prevent other Persons from remitting to the Note Payment Account, amounts which do not constitute payments, collections or recoveries received, made or realized in respect of the Receivables or the initial cash deposited by the Noteholders with the Indenture Trustee on the date hereof, and the Indenture Trustee will return to the Issuer or the Servicer any such amounts upon receiving written evidence reasonably satisfactory to the Indenture Trustee that such amounts are not a part of the Trust Estate.
(c) Restoration of Amounts Held for Future Distribution . The Servicer generally has the right to remit amounts held for distribution to the MBS Trustee in a future month (“ Amounts Held for Future Distribution ”) on deposit in each Custodial Account, to the related MBS Trustee as part of the Servicer’s monthly P&I Advances required under the related Designated Servicing Agreement. The Servicer shall deposit the full amount of any Amount Held for Future Distribution with respect to each Designated Servicing Agreement that were so used by the Servicer, in any month, back into the related Custodial Account, to the extent not restored already out of Advance Reimbursement Amounts, by no later than the date on which the Servicer would have been required to remit such amount to the related MBS Trustee as a current monthly Mortgage Loan collection, or earlier if so required under the related Servicing Agreement. If the Servicer fails to restore any such Amount Held for Future Distribution at the time when it is required to do so pursuant to this Section 4.2(c) , and does not correct such failure within one (1) Business Day, then the Servicer covenants hereunder that it shall no longer use any Amounts Held for Future Distribution in making any of its P&I Advances at any time on or after such failure.
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(d) Delegated Authority to Make P&I Advances . The Receivables Seller and the Servicer hereby irrevocably appoint the Noteholder(s) of any Outstanding VFN with the authority (but no obligation) to make any P&I Advance on the Servicer’s behalf to the extent the Servicer fails to make such P&I Advance when required to do so pursuant to the related Designated Servicing Agreement.
| Section 4.3. | Funding of Additional Receivables. |
(a) Funding Certifications . By no later than 1:00 p.m. New York City time on the second (2 nd ) Business Day prior to each Funding Date that is a VFN Draw Date (or such other time as may be agreed to from time to time by the Servicer, the Indenture Trustee and the Administrative Agent) or on the first (1 st ) Business Day prior to each Funding Date that is not a VFN Draw Date (or such other time as may be agreed to from time to time by the Servicer, the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator or the Sub-Administrator on behalf of the Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent and the Administrative Agent (and, on any Interim Payment Date, each applicable VFN Noteholder) a certification (each, a “ Funding Certification ”) containing a list of each Funding Condition and presenting a yes or no answer beside each indicating whether such Funding Condition has been satisfied and shall state in writing the amount to be funded on that Funding Date.
(b) VFN Draws, Discretionary Paydowns and Permanent Reductions.
With respect to each VFN:
(i) By no later than 1:00 p.m. New York City time on the Business Day prior to any Interim Payment Date or Payment Date during the Revolving Period for such VFN on which any applicable Variable Funding Note Class is Outstanding, the Issuer may deliver, or cause to be delivered, to each Noteholder of such Variable Funding Notes and to the Indenture Trustee a report (a “ VFN Note Balance Adjustment Request ”) for such upcoming Funding Date, requesting such Noteholders to fund a VFN Principal Balance increase on any Class or Classes of VFNs in the amount(s) specified in such request, which request shall instruct the Indenture Trustee to recognize an increase in the related VFN Principal Balance, but not in excess of the lesser of (x) the related Maximum VFN Principal Balance or (y) the amount that would cause the Collateral Test to be violated. The VFN Note Balance Adjustment Request shall also state the amount, if any, of any principal payment to be made on each Outstanding Class of VFNs on the upcoming Interim Payment Date or Payment Date.
(ii) From time to time, but not exceeding once per calendar month, during the Revolving Period for such VFN, the Issuer may notify the Administrative Agent of a permanent reduction in the Maximum VFN Principal Balance by indicating such reduction on the VFN Note Balance Adjustment Request. Following such permanent reduction, the applicable VFN Noteholders shall only be required to fund increases in the
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VFN Principal Balance up to such reduced Maximum VFN Principal Balance. Furthermore, following a reduction in the Maximum VFN Principal Balance pursuant to this clause (ii) , the Issuer shall not at any time be permitted to request an increase in the Maximum VFN Principal Balance.
(iii) If the related Funding Certification indicates that all Funding Conditions have been met, the applicable VFN Noteholders shall fund the VFN Principal Balance increase by remitting pro rata (based on such Noteholder’s percentage of the Maximum VFN Principal Balance) the amount stated in the request to the Indenture Trustee by 12:00 p.m. (noon) New York City time on the related Funding Date, whereupon the Indenture Trustee shall adjust its records to reflect the increase of the VFN Principal Balance (which increase shall be the aggregate of the amounts received by the Indenture Trustee from the applicable VFN Noteholders) by the later of (i) 2:00 p.m. New York City time on such Funding Date or (ii) two hours after the receipt by the Indenture Trustee of such funds from the VFN Noteholders, so long as, after such increase and after giving effect any Receivables to be purchased, the Collateral Test will continue to be satisfied, determined based on the VFN Note Balance Adjustment Request and Determination Date Report. The Indenture Trustee shall be entitled to rely conclusively on any VFN Note Balance Adjustment Request and the related Determination Date Report and Funding Certification. The Indenture Trustee shall make available on its website to the Issuer or its designee and each applicable VFN Noteholder, notice on such Funding Date as reasonably requested by the Issuer of any increase in the VFN Principal Balance. The Indenture Trustee shall apply and remit any such payment by the VFN Noteholders toward the payment of the related New Receivables Funding Amounts and (if applicable) Excess Receivables Funding Amounts as described in Section 4.3(c) . If on any Funding Date there is more than one Series with Outstanding Variable Funding Notes, VFN draws on such Funding Date shall be made on a pro rata basis among all applicable Outstanding Series of VFNs in their Revolving Periods based on their respective available Borrowing Capacities, unless otherwise provided in the related Indenture Supplement and Note Purchase Agreement. If any VFN Noteholder does not fund its share of a requested VFN draw, one or more other VFN Noteholders may fund all or a portion of such draw, but no other VFN Noteholder shall have any obligation to do so. Draws on VFNs of different Classes within the same Series need not be drawn pro rata relative to each other. Any draws under any VFNs shall be used only (i) to purchase new Receivables pursuant to the Receivables Pooling Agreement and (ii) to provide funding in respect of Excess Receivables Funding Amounts, in each case, in a manner that would not be in violation of any term hereof (including, without limitation, in a manner that would result in a material adverse United States federal income tax consequence to the Trust Estate or any Noteholders).
(c) Payment of New Receivables Funding Amounts .
(i) Subject to its receipt of a duly executed Funding Certification from the Administrator pursuant to Section 4.3(a) stating that all Funding Conditions have been satisfied, the Indenture Trustee shall remit to the Issuer (or the Issuer’s designee), by the close of business New York City time on each Funding Date, the amount of (x) the aggregate New Receivables Funding Amount for Additional Receivables to be funded on
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such Funding Date and (y) any other amounts to be drawn on the VFNs on such date in respect of Excess Receivables Funding Amounts without causing the related VFN Principal Balance to exceed either (I) the related Maximum VFN Principal Balance or (II) the amount that would cause the Collateral Test not be satisfied, using the following sources of funding in the following order:
(A) any funds on deposit in the Collection and Funding Account minus the Required Expense Reserve,
(B) if such Funding Date is a Payment Date, Available Funds allocated for such purpose pursuant to Section 4.5(a)(1)(vii) ,
(C) if such Funding Date is an Interim Payment Date, Available Funds allocated for such purpose pursuant to Section 4.4(e); and
(D) any amounts paid by VFN Noteholders as described in Section 4.3(b) ;
(ii) Subject to its receipt of a duly executed Funding Certification from the Administrator pursuant to Section 4.3(a) indicating that all Funding Conditions have been satisfied, the Indenture Trustee shall remit to the Issuer (or the Issuer’s designee) by the close of business on each Interim Payment Date or Payment Date occurring at any time when not all Outstanding Notes are in Full Amortization Periods, (A) the amount of the aggregate New Receivables Funding Amount for Additional Receivables to be funded on such Interim Payment Date or Payment Date, using (1) Available Funds allocated for such purpose pursuant to Section 4.4(e) or Section 4.5(a)(1)(vii) , and (2) any amounts funded by VFN Noteholders in respect of such New Receivables Funding Amount as described in Section 4.3(b) and (B) any amounts funded by VFN Noteholders in respect of Excess Receivables Funding Amounts as described in Section 4.3(b).
(iii) Except with respect to P&I Advance Receivables eligible for funding on a Funding Date prior to disbursement of the related P&I Advances pursuant to Section 4.3(e) and except for Deferred Servicing Fee Receivables, the Administrator shall not and shall not permit the Issuer or the Depositor to, request funding for any Receivables except to the extent that the related Advances shall have been disbursed to the related MBS Trustees, prior to the receipt of the related New Receivables Funding Amount. Unless and until (i) a Facility Early Amortization Event shall have occurred which has not been waived or (ii) a VFN Noteholder or the Majority Noteholders of all the Notes instruct the Indenture Trustee by a written notice that no portion of the New Receivables Funding Amount may be paid by the Indenture Trustee without first receiving a written certification that all of the related P&I Advances have been previously disbursed by the Receivables Seller (a “ Cease Pre-Funding Notice ”), which may be delivered at any time as deemed necessary by such Noteholder(s) in the exercise of its or their sole and absolute discretion, the Indenture Trustee may pay the New Receivables Funding Amount for P&I Advances on any Funding Date. If a Cease Pre-Funding Notice has been delivered, then no P&I Advance Receivables may be funded until all the related P&I Advances have been disbursed and the Receivables Seller shall have delivered a written certification to such effect to the Indenture Trustee with respect to all related Advances.
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(d) P&I Advance Disbursement Account . Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain an Eligible Account in the name of the Issuer as the P&I Advance Disbursement Account. The taxpayer identification number associated with the P&I Advance Disbursement Account shall be that of the Issuer and the Receivables Seller will report for Federal, state and local income tax purposes, the income, if any, on funds on deposit in the P&I Advance Disbursement Account. Subject to Section 4.1 , funds on deposit from time to time in the P&I Advance Disbursement Account shall remain uninvested. The Indenture Trustee shall have and is hereby directed by the Issuer to exercise the sole and exclusive right to disburse funds from the P&I Advance Disbursement Account and each of the Servicer, Administrator and Issuer hereby acknowledges and agrees that it shall have no right to provide payment or withdrawal instructions with respect to the P&I Advance Disbursement Account or to otherwise direct the disposition of funds from time to time on deposit in the P&I Advance Disbursement Account.
(e) Pre-Funding of P&I Advances . On any Funding Date during the Revolving Period for any Series or Class of Notes, the Issuer (or the Servicer on its behalf) may request that all or a portion of the New Receivables Funding Amount be applied in satisfaction of the Servicer’s obligation to make P&I Advances under one or more Designated Servicing Agreements. Prior to (i) the occurrence of a Facility Early Amortization Event or (ii) the receipt by the Indenture Trustee of a Cease Pre-Funding Notice, the Indenture Trustee shall apply the portion of the New Receivables Funding Amount requested by the Issuer (or the Servicer on its behalf) to “Noteholders’ Amounts” (as defined below) in accordance with this Section 4.3(e) . Not later than 12:00 p.m. (noon) New York City time on the Business Day preceding each Funding Date (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Issuer (or the Administrator (or the Sub-Administrator on the Administrator’s behalf) on its behalf) shall deliver a disbursement report (the “ Disbursement Report ”) to the Indenture Trustee and the Administrative Agent setting forth in reasonable detail (A) the aggregate amount of P&I Advances required to be advanced by the Servicer under each Designated Servicing Agreement on such Funding Date for which the Advance Purchaser desires pre-funding in accordance with this Section 4.3(e) (each such amount, a “ P&I Advance Amount ”), (B) the payment or wiring instructions for the Custodial Account or accounts relating to each Designated Servicing Agreement with respect to which the Servicer is obligated to disburse a P&I Advance Amount on such Funding Date, (C) the Series New Receivables Funding Amount for each Series and the full New Receivables Funding Amount, that would apply to each P&I Advance Amount if such P&I Advance Amount were a P&I Advance Receivable (such Collateral Value, the “ Noteholders’ Amount ”), and (D) a calculation for each P&I Advance Amount of the excess of such P&I Advance Amount over the Noteholders’ Amount (such excess, the “ Issuer Amount ”). Not later than 12:00 p.m. (noon) New York City time on each Funding Date, (x) the Issuer (or the Administrator (or the Sub-Administrator on the Administrator’s behalf) on its behalf) shall deposit to the P&I Advance Disbursement Account in cash or immediately available funds, an amount equal to the sum of the Issuer Amounts with respect to each Designated Servicing Agreement and (y) the Indenture Trustee shall transfer to the P&I Advance Disbursement Account, out of the proceeds of the New Receivables Funding Amount, an amount equal to the sum of the Noteholders’ Amounts with
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respect to each Designated Servicing Agreement. Not later than 2:00 p.m. New York City time on each Funding Date, the Indenture Trustee will, solely from funds on deposit in the P&I Advance Disbursement Account, remit the P&I Advance Amount with respect to each Designated Servicing Agreement to the applicable custodial accounts listed in the related Disbursement Report. Notwithstanding anything to the contrary contained herein, the Indenture Trustee shall not transfer any funds from the Collection and Funding Account to the P&I Advance Disbursement Account or disburse any P&I Advance Amount on any Funding Date unless it shall have confirmed receipt of the sum of the Issuer Amounts described on the related Disbursement Report.
(f) Limited Funding Dates . On any Limited Funding Date, subject to its receipt of a duly executed Funding Certification from the Administrator or the Sub-Administrator on behalf of the Administrator pursuant to Section 4.3(a) stating that all Funding Conditions have been satisfied, the Indenture Trustee shall, by the close of business New York City time on each Limited Funding Date occurring during the Revolving Period for any Series or Class of Notes, (i) remit to the Issuer (or the Issuer’s designee) the amount of the aggregate New Receivables Funding Amount for Additional Receivables to be funded on such Limited Funding Date, using only funds on deposit in the Collection and Funding Account minus the Required Expense Reserve, and (ii) thereafter, release any Excess Cash Amount to the Depositor as holder of the Owner Trust Certificate it being understood that no such Excess Cash Amounts may be paid to the Depositor under this clause (f) if, after the payment of such cash amounts, the Collateral Test would no longer be satisfied. Notwithstanding anything to the contrary herein, no draws on Variable Funding Notes may be made on a Limited Funding Date, and no payments on any Notes shall be made on a Limited Funding Date, as Limited Funding Dates shall not be treated as Interim Payment Dates but instead shall be for the sole purpose of funding new Receivables, funding the Accumulation Accounts and the Series Reserve Account for each Series as described in the following sentence and releasing Excess Cash Amounts to the extent permissible under the terms of this Indenture. On each Limited Funding Date, prior to amounts being released for the purchase of new Receivables in accordance with the first sentence of this Section 4.3(f), the Indenture Trustee shall release from the Collection and Funding Account to each of the Fee Accumulation Account, Interest Accumulation Account, Target Amortization Principal Accumulation Account and the Series Reserve Account for each Series, the amounts required to be deposited therein for such Limited Funding Date in order for the Funding Conditions to be satisfied on such date.
| Section 4.4. | Interim Payment Dates. |
On each Interim Payment Date, the Indenture Trustee shall allocate and pay or deposit (as specified below) all Available Funds held in the Collection and Funding Account as set forth below, in the following order of priority and in the amounts set forth in the Interim Payment Date Report for such Interim Payment Date:
(a) to the Fee Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Fee Accumulation Amount for such Interim Payment Date (other than any amounts that constitute Defaulting Counterparty Termination Payments);
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(b) to the Interest Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Interest Accumulation Amount for such Interim Payment Date;
(c) to the Series Reserve Account for each Series, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of such Series Reserve Account shall be equal to the related Series Reserve Required Amount;
(d) if a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived, to the Target Amortization Principal Accumulation Account, amounts necessary to be deposited therein such that the amount on deposit in such account equals the Target Amortization Amount for the next Payment Date in respect of each Class of Notes that is in its Target Amortization Period, not including any such Class for which the related Indenture Supplement provides that there will be no intra-month reservation of Target Amortization Principal Accumulation Amounts;
(e) to be retained in the Collection and Funding Account, the aggregate New Receivables Funding Amount for any Facility Eligible Receivables to be funded on such Interim Payment Date (without duplicating any portion of such New Receivables Funding Amount to be paid using the proceeds of a borrowing on any Class of VFN) and the aggregate Excess Receivables Funding Amount to be funded on such Interim Payment Date; provided that no New Receivables Funding Amounts will be released to fund new Receivables and no Excess Receivables Funding Amounts will be released under this clause (e) unless the Funding Conditions have been met;
(f) if a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived, to pay down the VFN Principal Balance of each Outstanding Class of VFNs, the amount necessary to satisfy the Collateral Test after giving effect to the allocations, payments and distributions in clauses (a) through (e) above;
(g) to pay any Series Fees payable to any Person in excess of the Series Fee Limit (including any Defaulting Counterparty Termination Payments);
(h) to pay down the VFN Principal Balance of each Outstanding Class of VFNs pro rata, based on their respective Note Balances, such amount as may be designated by the Administrator;
(i) as directed by the Administrator on behalf of Issuer, to pay any portion or all of any Excess Cash Amount to any Sinking Fund Account or Sinking Fund Accounts; and
(j) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate, it being understood that no such Net Excess Cash Amounts may be paid to the Depositor under this clause (j) if, after the payment of such cash amounts, the Collateral Test would no longer be satisfied.
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| Section 4.5. | Payment Dates. |
(a) On each Payment Date, the Indenture Trustee shall transfer the related Available Funds on deposit in the Collection and Funding Account, the Interest Accumulation Account, the Fee Accumulation Account and the Target Amortization Principal Accumulation Account for such Payment Date to the Note Payment Account. On each Payment Date, the Paying Agent shall apply such Available Funds (and other amounts as specifically noted in clause (1)(v) below) in the following order of priority and in the amounts set forth in the Payment Date Report for such Payment Date ( provided that amounts on deposit in the Target Amortization Principal Accumulation Account may only be used to pay the Target Amortization Amounts of the Classes for which the related Indenture Supplement provides that there will be intra-month reservation of Target Amortization Principal Accumulation Amounts (pro rata based on their respective Target Amortization Principal Accumulation Amounts)):
(1) If a Facility Early Amortization Event has not occurred or if occurred, such Facility Early Amortization Event has been waived:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, and to the Owner Trustee (to the extent not otherwise paid pursuant to the Trust Agreement or the Administration Agreement), the Owner Trustee Fee payable on such Payment Date, plus , (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit) all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities) and Wells Fargo Bank, N.A. (in all capacities) and the Owner Trustee on such Payment Date, from funds in the Fee Accumulation Account, with respect to expenses and indemnification amounts to the extent such expenses and indemnification amounts have been invoiced or noticed to the Administrator, first, out of amounts on deposit in the Fee Accumulation Account which were deposited into the Fee Accumulation Account on an Interim Payment Date specifically for such items and then, any remaining unpaid amounts out of other Available Funds;
(ii) to each Person (other than the Indenture Trustee or the Owner Trustee) entitled to receive Fees or Series Fees or Undrawn Fees on such date, the Fees or Series Fees (other than Defaulting Counterparty Termination Payments) or Undrawn Fees payable to any such Person with respect to the related Monthly Advance Collection Period or Interest Accrual Period, as applicable, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit or Increased Costs Limit, as appropriate, and allocated pro rata based on the amounts due to each such Person and subject in the case of Series Fees to the applicable Series Fee Limit) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer and for Increased Costs or any other amounts (including Undrawn Fees) due to any Noteholder and any Series Fees due as specified in an Indenture Supplement (other than Defaulting Counterparty Termination Payments), subject to the related Series Fee Limit, pursuant to the Transaction Documents with respect to expenses, indemnification amounts, Increased Costs, Undrawn Fees, Series Fees and other amounts to the extent such expenses, indemnification amounts, Increased Costs, Undrawn Fees, Series Fees and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee and to the extent such amounts were deposited into the Fee Accumulation Account on a preceding Interim Payment Date, and thereafter from other Available Funds, if necessary;
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(iii) to the Noteholders of each Series of Notes, pro rata based on their respective interest entitlement amounts, the related Cumulative Interest Shortfall Amounts attributable to unpaid Senior Interest Amounts from prior Payment Dates, and the Senior Interest Amount for the current Payment Date, for each such Class; provided that if the amount of Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay any amounts in respect of any Class pursuant to this clause (iii), the Indenture Trustee shall withdraw from the Series Reserve Account for such Class an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Class in reduction of such shortfall, with all such amounts paid to a Series under this clause (iii) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(iv) to the Series Reserve Account for each Series, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in such Series Reserve Account on such day equals the related Series Reserve Required Amount;
(v) to the Noteholders of each Class of Notes for which the Target Amortization Period has commenced, the Target Amortization Amount for such Class on such Payment Date, first payable from any amounts on deposit in the Target Amortization Principal Accumulation Account in respect of such Class, allocated pro rata among any such Classes based on their respective Target Amortization Amounts, and thereafter payable from other Available Funds or proceeds of draws on VFNs or other companion Notes described in the related Indenture Supplement, pro rata based on their respective Target Amortization Amounts;
(vi) to the extent necessary to satisfy the Collateral Test, (1) to pay down the respective VFN Principal Balances of each Outstanding Class of VFNs, until the earlier of satisfaction of the Collateral Test or reduction of all VFN Principal Balances to zero, and thereafter (2) to reserve cash in the Collection and Funding Account to the extent necessary to satisfy the Collateral Test;
(vii) to the Collection and Funding Account, for disbursement to the Issuer (or the Issuer’s designee), the aggregate New Receivables Funding Amount for any Facility Eligible Receivables to be funded on such Payment Date (without duplicating any portion of such New Receivables Funding Amount to be paid using the proceeds of an increase in any VFN Principal Balance) and the aggregate Excess Receivables Funding Amount to be funded on such Payment Date;
(viii) to the Noteholders of each Series of Notes and pro rata based on their respective Note Balances, the amount necessary to reduce the accrued and unpaid Subordinated Interest Amounts and Subordinated Cumulative Interest Shortfall Amounts for each such Series to zero, with amounts paid on a Series pursuant to this clause being allocated among the Classes within such Series as specified in the related Indenture Supplement;
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(ix) pro rata, based on their respective invoiced or reimbursable amounts and without regard to the applicable Expense Limit or Series Fee Limit, (A) to the Indenture Trustee (in all its capacities) and the Owner Trustee for any amounts payable to the Indenture Trustee and the Owner Trustee pursuant to this Indenture or the Trust Agreement to the extent not paid under clause (i) above, (B) to the Verification Agent for any amounts payable to the Verification Agent pursuant to this Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9 ; (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; (E) to the Noteholders of any Notes to cover Increased Costs, pro rata among multiple Series based on their respective Increased Costs amounts (and among multiple Classes, allocated within any Series as described in the related Indenture Supplement); (F) any Series Fees (including any Defaulting Counterparty Termination Payments) due pursuant to Indenture Supplement in excess of the applicable Series Fee Limit; or (G) any other amounts payable pursuant to this Indenture or any other Transaction Document and not paid under clause (ii) above;
(x) if and to the extent so directed by the Administrator on behalf of the Issuer, to the Noteholders of each Class of VFNs, an amount to be applied to pay down the respective VFN Principal Balances equal to the lesser of (A) the amount specified by the Administrator and (B) the amount necessary to reduce the VFN Principal Balances to zero, paid pro rata among each VFN Classes based on their respective Note Balances;
(xi) as directed by the Administrator on behalf of the Issuer, to pay any portion or all of any Excess Cash Amount to any Sinking Fund Account or Sinking Fund Accounts; and
(xii) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate, to the extent that the Collateral Test would not, following any such payment, be breached; provided that amounts due and owing to the Owner Trustee and not previously paid hereunder or under any other Transaction Document shall be paid prior to such payment.
(2) If a Facility Early Amortization Event has occurred and is continuing unwaived, the Available Funds shall be allocated in the following order of priority:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, and to the Owner Trustee (to the extent not otherwise paid pursuant to the Trust Agreement or the Administration Agreement), the Owner Trustee Fee payable on such Payment Date, plus all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities) and the Owner Trustee on such Payment Date, from funds in the Fee Accumulation Account, with respect to expenses and indemnification amounts to the extent such expenses and indemnification amounts have
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been invoiced or noticed to the Administrator and to the extent of amounts on deposit in the Fee Accumulation Account which were deposited into the Fee Accumulation Account on an Interim Payment Date specifically for such items and thereafter from other Available Funds, if necessary;
(ii) to each Person (other than the Indenture Trustee or the Owner Trustee) entitled to receive Fees or Series Fees on such date, the Fees or Series Fees (other than Defaulting Counterparty Termination Payments) payable to any such Person with respect to the related Monthly Advance Collection Period or Interest Accrual Period, as applicable, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit and allocated pro rata based on the amounts due to each such Person) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer with respect to expenses, indemnification amounts and other amounts to the extent such expenses, indemnification amounts and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee and Series Fees (other than Defaulting Counterparty Termination Payments), subject to the related Series Fee Limit and to the extent such amounts were deposited into the Fee Accumulation Account on a preceding Interim Payment Date, but not including any Undrawn Fees and thereafter from other Available Funds, if necessary;
(iii) thereafter, all remaining Available Funds shall (x) first, be allocated to any specific Series or Classes as contemplated by the definition of “Available Funds” and (y) thereafter, be allocated among all Outstanding Series based on their respective Series Invested Amounts as of the date the Full Amortization Period commenced, and the amount so allocated to each Series (each the related “ Series Available Funds ”) shall be allocated in the following order of priority:
(A) [RESERVED ;
(B) any Undrawn Fees payable to any VFNs included in the related Series;
(C) to the Noteholders of the related Series of Notes, the related Cumulative Interest Shortfall Amounts attributable to unpaid Senior Interest Amounts from prior Payment Dates and the Senior Interest Amount for the current Payment Date, for each related Class; provided that if the amount of Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay any amounts in respect of any related Class pursuant to this clause (iii)(C) the Indenture Trustee shall withdraw from the Series Reserve Account for such Class an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Class in reduction of such shortfall, with all such amounts paid to a Series under this clause (iii)(C) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(D) to the Noteholders of the related Series of Notes, remaining Series Available Funds up to the aggregate unpaid Note Balances to reduce Note Balances in the order specified in the related Indenture Supplement, until all such Note Balances have been reduced to zero;
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(E) to the Noteholders of the related Series of Notes, the amount necessary to reduce the accrued and unpaid Subordinated Interest Amounts and Subordinated Cumulative Interest Shortfall Amounts for such Series to zero, with amounts paid on a Series pursuant to this clause being allocated among the Classes within such Series as specified in the related Indenture Supplement; and
(F) to be allocated to other Series to run steps (A) through (E) above for such other Series, to the extent the Series Available Funds for such other Series were insufficient to make such payments, allocated among such other Series pro rata based on the amounts of their respective shortfalls.
(iv) out of all remaining Available Funds, pro rata, based on their respective invoiced or reimbursable amounts and without regard to the applicable Expense Limit, (A) to the Indenture Trustee (in all its capacities) and the Owner Trustee for any amounts payable to the Indenture Trustee and the Owner Trustee pursuant to this Indenture or the Trust Agreement to the extent not paid under clause (i) above, (B) to the Verification Agent for any amounts payable to the Verification Agent pursuant to this Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9 ; (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; (E) any Series Fees (including any Defaulting Counterparty Termination Payments) due to any Derivative Counterparty in excess of the applicable Series Fee Limit; and (F) to the Noteholders of any Notes to cover Increased Costs, pro rata among multiple Classes based on their respective Increased Costs amounts or any other amounts payable pursuant to this Indenture or any other Transaction Document and not paid under clause (ii) above;
(v) to pay any other amounts required to be paid before Net Excess Cash Amounts pursuant to one or more Indenture Supplements; and
(vi) any Net Excess Cash Amount to or at the direction of the Depositor as holder of the Owner Trust Certificate.
(b) Any proceeds received by the Issuer under a Derivative Agreement or Supplemental Credit Enhancement Agreement for a Series or Class shall be applied to supplement amounts payable with respect to such Series under Section 4.5(a) , as set forth in the related Indenture Supplement. Amounts payable to any Derivative Counterparty or Supplemental Credit Enhancement Provider with respect to any Series or Class shall be designated as “Series Fees” for purposes of this Indenture and the related Indenture Supplement, and particularly, Sections 4.4 and 4.5 hereof.
(c) On each Payment Date, the Indenture Trustee shall instruct the Paying Agent to pay to each Noteholder of record on the related Record Date the amount to be paid to such Noteholder in respect of the related Note on such Payment Date by wire transfer if appropriate instructions are provided to the Indenture Trustee in writing no later than five (5) Business Days prior to the related Record Date, or, if a wire transfer cannot be effected, by check delivered to each Noteholder of record on the related Record Date at the address listed on the records of the Note Registrar.
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(d) Notwithstanding anything to the contrary in this Indenture, the Indenture Supplement providing for the issuance of any Series of Notes within which there are one or more Classes of Notes may specify the allocation of payments among such Classes payable pursuant to Sections 4.4 and 4.5 hereof, providing for the subordination of such payments on the subordinated Series or Class, and any such provision in such an Indenture Supplement shall have the same effect as if set forth in this Indenture and any related Indenture Supplement, all to the extent an Issuer Tax Opinion is delivered as to such Series at its issuance.
(e) [RESERVED].
(f) On each Payment Date, the Indenture Trustee shall make available, in the same manner as described in Section 3.5 , a report stating all amounts paid to the Indenture Trustee (in all its capacities) or Wells Fargo Bank, N.A. (in all its capacities) pursuant to this Section 4.5 on such Payment Date.
(g) The Indenture Trustee shall withdraw, on each Payment Date and Funding Date and use as Available Funds, the amount by which (i) the amount then on deposit in the Fee Accumulation Account exceeds the Fee Accumulation Amount, (ii) the amount then on deposit in the Interest Accumulation Account exceeds the Interest Accumulation Amount and (iii) the amount then on deposit in the Target Amortization Principal Accumulation Account exceeds the Target Amortization Amount, in each case, after giving effect to all payments required to be made from such Trust Accounts and the Note Payment Account on such date.
(h) On the Expected Repayment Date (unless such Expected Repayment Date shall occur during the Full Amortization Period) for any Class of Notes with respect to which a Sinking Fund Account has been established, the Indenture Trustee shall transfer all amounts on deposit in such Sinking Fund Account to the Note Payment Account for the repayment of the Note Balance of such Class of Notes. During the Full Amortization Period all amounts on deposit in the Sinking Fund Accounts with respect to Sinking Fund Classes will be included in the Available Funds and such amounts will be available for the benefit of all Outstanding Notes.
| Section 4.6. | Series Reserve Account. |
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain a Series Reserve Account or Accounts for each Series, each of which shall be an Eligible Account, for the benefit of the Secured Parties of such Series. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. On or prior to the Issuance Date for each Series, the Issuer shall cause an amount equal to the related Series Reserve Required Amount(s) to be deposited into the related Series Reserve Account(s). Thereafter, on each Payment Date and Interim Payment Date, the Indenture Trustee shall withdraw Available Funds from the Note Payment Account and deposit them into each such Series Reserve Account pursuant to, and to the extent required by, Section 4.5(a) and the related Indenture Supplement.
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(b) On each Payment Date, an amount equal to the aggregate of amounts described in clauses (i) , (ii) and (iii) of Section 4.5(a)(1) or clauses (i), (ii) and (iii) (A) through (C) of Section 4.5(a)(2) allocable to the related Series, as appropriate, and which is not payable out of Available Funds due to an insufficiency of Available Funds, shall be withdrawn from such Series Reserve Account by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a) or the related Indenture Supplement. On any Payment Date on which amounts are withdrawn from such Series Reserve Account pursuant to Section 4.5(a) , no funds shall be withdrawn from the Collection and Funding Account (or from the Note Payment Account for deposit into the Collection and Funding Account) to pay New Receivables Funding Amounts or amounts to the Issuer pursuant to Section 4.3 if, after giving effect to the withdrawals described in the preceding sentences, the amount then standing to the credit of such Series Reserve Account is less than the related Series Reserve Required Amount. All Collections received in the Collection and Funding Account shall be deposited into the related Series Reserve Accounts until the amount on deposit in each Series Reserve Account equals the related Series Reserve Required Amount, as described in Section 4.5 and the related Indenture Supplement. For purposes of the foregoing the portion of any such fees and expenses payable under clause (i) or (ii) shall equal the related Series Allocation Percentage of the amounts payable under such clause.
(c) If on any Payment Date the amount on deposit in a Series Reserve Account is equal to or greater than the aggregate Note Balance for the related Series (after payment on such Payment Date of the amounts described in Section 4.5 ) the Indenture Trustee will withdraw from such Series Reserve Account the aggregate Note Balance amount and remit it to the Noteholders of the Notes in reduction of the aggregate Note Balance for all Classes of Notes Outstanding. On the Stated Maturity Date for the latest maturing Class in a Series, the balance on deposit in the related Series Reserve Account shall be applied as a principal payment on the Notes of that Series to the extent necessary to reduce the aggregate Note Balance for that Series to zero. On any Payment Date after payment of principal on the Notes and when no Facility Early Amortization Event has occurred, the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the balance of the Series Reserve Account exceeds the related Series Reserve Required Amount and pay such amount to the Depositor as holder of the Owner Trust Certificate.
(d) Amounts held in a Series Reserve Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1 .
(e) On any Payment Date, after payment of all amounts pursuant to Section 4.5(a) , if the Collateral Test is not satisfied or if a Facility Early Amortization Event shall have occurred (unless such Facility Early Amortization Event shall have been waived), the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the amount standing to the credit of such Series Reserve Account exceeds the related Series Reserve Required Amount, and shall apply such excess to reduce the Note Balances of the Notes of the related Series, pursuant to Section 4.5 . Such principal payments shall be made pro rata based on Note Balances to multiple Classes within a Series, except that in a Full Amortization Period such principal payment shall be made in accordance with the terms and provisions of the related Indenture Supplement. On any Payment Date following the payment in full of all principal payable in
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respect of the related Series or Class of Notes, the Indenture Trustee shall withdraw any remaining amounts from the related Series Reserve Account and distribute it to the Depositor as holder of the Owner Trust Certificate. Amounts paid to the Depositor or its designee pursuant to the preceding sentence shall be released from the Security Interest.
(f) If on any Funding Date, the amount on deposit in one or more Series Reserve Accounts is less than the related Series Reserve Required Amounts, then the Administrator may direct the Indenture Trustee to transfer from the Collection and Funding Account to such Series Reserve Accounts an amount equal to the amount by which the respective Series Reserve Required Amounts exceed the respective amounts then on deposit in the related Series Reserve Accounts.
| Section 4.7. | Collection and Funding Account, Interest Accumulation Account, Fee Accumulation Account, Target Amortization Principal Accumulation Account and Sinking Fund Accounts. |
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Collection and Funding Account, which shall be an Eligible Account, for the benefit of the Secured Parties. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall deposit and withdraw Available Funds from the Collection and Funding Account pursuant to, and to the extent required by, Section 4.4 and Section 4.5 .
(b) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Fee Accumulation Account the Interest Accumulation Account and the Target Amortization Principal Accumulation Account, each of which shall be an Eligible Account, for the benefit of the Noteholders. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall withdraw Available Funds from the Collection and Funding Account and deposit them into each such Trust Account pursuant to, and to the extent required by, Section 4.5 .
(c) On each Payment Date, an amount equal to the aggregate of amounts described in Section 4.5(a) shall be withdrawn from each Fee Accumulation Account, Interest Accumulation Account and Target Amortization Principal Accumulation Account by the Indenture Trustee and remitted for payments as described therein.
(d) The Indenture Trustee shall withdraw, on each Payment Date and Interim Payment Date and use as Available Funds, the amount by which (i) the amount then on deposit in the Fee Accumulation Account exceeds the Fee Accumulation Amount, (ii) the amount then on deposit in the Interest Accumulation Account exceeds the Interest Accumulation Amount, and (iii) the amount by which the amount then on deposit in the Target Amortization Principal Accumulation Account exceeds the Target Amortization Amount of all Target Amortization Classes, in each case, after giving effect to all payments required to be made from such Trust Accounts and the Note Payment Account on such date.
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(e) The Administrator on behalf of the Issuer may, in its sole and absolute discretion, from time to time on or after the Closing Date, direct the Indenture Trustee pursuant to an Issuer Certificate to establish a Sinking Fund Account for any Class of Notes and upon receipt by the Indenture Trustee of such direction, the Indenture Trustee shall establish and maintain each such Sinking Fund Account specified by the Administrator on behalf of the Issuer in its direction to the Indenture Trustee, which shall be an Eligible Account, for the benefit of the Secured Parties. Any direction by the Administrator on behalf of the Issuer to the Indenture Trustee pursuant to an Issuer Certificate to establish a Sinking Fund Account shall include a specification by the Issuer of the Class to which such Sinking Fund Account shall relate. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall deposit and withdraw Available Funds from a Sinking Fund Account pursuant to, and to the extent required by, Section 4.5 .
| Section 4.8. | Note Payment Account. |
(a) Pursuant to Section 4.1 , the Indenture Trustee shall establish and maintain the Note Payment Account, which shall be an Eligible Account, for the benefit of the Secured Parties. If the Note Payment Account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Note Payment Account shall be funded to the extent that (i) the Issuer shall remit to the Indenture Trustee the Redemption Amount for a Class of Notes pursuant to Section 13.1 , (ii) the Indenture Trustee shall remit thereto any Available Funds from the Collection and Funding Account pursuant to Section 4.2(b) , (iii) the Indenture Trustee shall remit thereto any Available Funds from the Interest Accumulation Account, the Target Amortization Principal Accumulation Account and the Fee Accumulation Account pursuant to Section 4.5 and (iv) the Indenture Trustee shall transfer amounts from an applicable Series Reserve Account pursuant to, and to the extent required by, Section 4.6 .
(b) On each Payment Date, an amount equal to the aggregate of amounts described in Section 4.5(a) shall be withdrawn from the Note Payment Account by the Indenture Trustee and remitted to the Noteholders and other Persons or accounts described therein for payment as described in that Section, and upon payments of all sums payable hereunder as described in Section 4.5(a) , as applicable, any remaining amounts then on deposit in the Note Payment Account shall be released from the Security Interest and paid to Depositor or its designee.
(c) Amounts held in the Note Payment Account may be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1 .
| Section 4.9. | Securities Accounts. |
(a) Securities Intermediary . The Issuer and the Indenture Trustee hereby appoint Wells Fargo Bank, N.A., as Securities Intermediary with respect to the Trust Accounts. The Security Entitlements and all Financial Assets credited to the Trust Accounts, including without limitation all amounts, securities, investments, Financial Assets, investment property and other property from time to time deposited in or credited to such account and all proceeds thereof, held from time to time in the Trust Accounts will continue to be held by the Securities Intermediary
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for the Indenture Trustee for the benefit of the Secured Parties. Upon the termination of this Indenture, the Indenture Trustee shall inform the Securities Intermediary of such termination. By acceptance of their Notes or interests therein, the Noteholders and all beneficial owners of Notes shall be deemed to have appointed Wells Fargo Bank, N.A., as Securities Intermediary. Wells Fargo Bank, N.A. hereby accepts such appointment as Securities Intermediary.
(i) With respect to any portion of the Trust Estate that is credited to the Trust Accounts, the Securities Intermediary agrees that:
(A) with respect to any portion of the Trust Estate that is held in deposit accounts, each such deposit account shall be subject to the security interest granted pursuant to this Indenture, and the Securities Intermediary shall comply with instructions originated by the Indenture Trustee directing dispositions of funds in the deposit accounts without further consent of the Issuer and otherwise shall be subject to the exclusive custody and control of the Securities Intermediary, and the Securities Intermediary shall have sole signature authority with respect thereto;
(B) any and all property credited to the Trust Accounts shall be treated by the Securities Intermediary as Financial Assets;
(C) any portion of the Trust Estate that is, or is treated as, a Financial Asset shall be physically delivered (accompanied by any required endorsements) to, or credited to an account in the name of, the Securities Intermediary or other eligible institution maintaining any Trust Account in accordance with the Securities Intermediary’s customary procedures such that the Securities Intermediary or such other institution establishes a Security Entitlement in favor of the Indenture Trustee with respect thereto over which the Securities Intermediary or such other institution has “control” (as defined in the UCC); and
(D) it will use reasonable efforts to promptly notify the Indenture Trustee and the Issuer if any other Person claims that it has a property interest in a Financial Asset in any Trust Account and that it is a violation of that Person’s rights for anyone else to hold, transfer or deal with such Financial Asset.
(ii) The Securities Intermediary hereby confirms that (A) each Trust Account is an account to which Financial Assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Indenture treat the Indenture Trustee as entitled to exercise the rights that comprise any Financial Asset credited to any Trust Account, (B) any portion of the Trust Estate in respect of any Trust Account will be promptly credited by the Securities Intermediary to such account, and (C) all securities or other property underlying any Financial Assets credited to any Trust Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary, and in no case will any Financial Asset credited to any Trust Account be registered in the name of the Issuer or the Administrator, payable to the order of the Issuer or the Administrator or specially endorsed to any of such Persons.
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(iii) If at any time the Securities Intermediary shall receive an Entitlement Order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Issuer or the Administrator or any other Person. If at any time the Indenture Trustee notifies the Securities Intermediary in writing that this Indenture has been discharged in accordance herewith, then thereafter if the Securities Intermediary shall receive any order from the Issuer directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Indenture Trustee or any other Person.
(iv) In the event that the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any Financial Asset or Security Entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Indenture Trustee. The Financial Assets and Security Entitlements credited to the Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Indenture Trustee in the case of the Trust Accounts.
(v) There are no other agreements entered into between the Securities Intermediary in such capacity, and the Securities Intermediary agrees that it will not enter into any agreement with, the Issuer, the Administrator, or any other Person (other than the Indenture Trustee) with respect to any Trust Account. In the event of any conflict between this Indenture (or any provision of this Indenture) and any other agreement now existing or hereafter entered into, the terms of this Indenture shall prevail.
(vi) The rights and powers granted herein to the Indenture Trustee have been granted in order to perfect its interest in the Trust Accounts and the Security Entitlements to the Financial Assets credited thereto, and are powers coupled with an interest and will not be affected by the bankruptcy of the Issuer, the Administrator or the Receivables Seller nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect until the interest of the Indenture Trustee in the Trust Accounts and in such Security Entitlements, has been terminated pursuant to the terms of this Indenture and the Indenture Trustee has notified the Securities Intermediary of such termination in writing.
(b) Definitions; Choice of Law . Capitalized terms used in this Section 4.9 and not defined herein shall have the meanings assigned to such terms in the New York UCC. For purposes of Section 8-110(e) of the New York UCC, the “securities intermediary’s jurisdiction” shall be the State of New York.
(c) Limitation on Liability . None of the Securities Intermediary or any director, officer, employee or agent of the Securities Intermediary shall be under any liability to the Indenture Trustee or the Noteholders for any action taken, or not taken, in good faith pursuant to this Indenture, or for errors in judgment; provided , however , that this provision shall not protect the Securities Intermediary against any liability to the Indenture Trustee or the Noteholders which would otherwise be imposed by reason of the Securities Intermediary’s willful
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misconduct, bad faith or negligence in the performance of its obligations or duties hereunder. The Securities Intermediary and any director, officer, employee or agent of the Securities Intermediary may rely in good faith on any document of any kind which, on its face, is properly executed and submitted by any Person respecting any matters arising hereunder. The Securities Intermediary shall be under no duty to inquire into or investigate the validity, accuracy or content of such document.
| Section 4.10. | Notice of Adverse Claims. |
Except for the claims and interests of the Secured Parties in the Trust Accounts, the Securities Intermediary has no actual knowledge of any claim to, or interest in, any Trust Account or in any financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Trust Account or in any financial asset carried therein of which a Responsible Officer of the Securities Intermediary has actual knowledge, the Securities Intermediary will promptly notify the Noteholders, the Indenture Trustee and the Issuer thereof.
| Section 4.11. | No Gross Up. |
No Person, including the Issuer, shall be obligated to pay any additional amounts to the Noteholders or Note Owners as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges. In addition, the Indenture Trustee will withhold on payments of Undrawn Fees to Non-U.S. Noteholders unless such Noteholder provides a correct, complete and executed U.S. Internal Revenue Service Form W-8ECI or is eligible for benefits under an income tax treaty with the United States that eliminates U.S. federal income taxation on U.S. source Undrawn Fees and such Non-U.S. Noteholder provides a correct, complete and executed U.S. Internal Revenue Service Form W-8BEN. The Indenture Trustee may rely on such U.S. Internal Revenue Service Form W-8ECI or W-8BEN to evidence the Noteholders’ eligibility.
| Section 4.12. | Facility Early Amortization Events; Target Amortization Events. |
Upon the occurrence of a Facility Early Amortization Event, the Revolving Period or Target Amortization Period for all Classes and Series of the Notes shall automatically terminate and the Full Amortization Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Noteholders of at least 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and 100% of the VFN Noteholders, notify the Indenture Trustee, as soon as reasonably practicable, that they have waived the occurrence of such Facility Early Amortization Event and consent to the continuation of the Revolving Period or Target Amortization Periods (in the case of any Notes still in their Revolving Periods or Target Amortization Periods). Upon the occurrence of a Target Amortization Event with respect to a Class or Series, the Notes of such Class or Series shall enter their Target Amortization Periods and as a result shall be paid principal in Target Amortization Amounts under Section 4.5(a)(1)(v) on subsequent Payment Dates, unless the requisite parties pursuant to the Indenture Supplement related to that Series notify the Indenture Trustee that they have waived the occurrence of such Target Amortization Event and consent to the continuation of the Revolving Periods (in the case of any Notes still in their Revolving Periods). The
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Administrator shall notify the Indenture Trustee and the Administrative Agent immediately upon the occurrence of any Facility Early Amortization Event or Target Amortization Event. The Administrative Agent shall use commercially reasonable efforts to notify the Indenture Trustee and each Derivative Counterparty (as applicable in the case of any Target Amortization Event, with respect to the related Series of Notes) promptly upon becoming aware of the occurrence of any Facility Early Amortization Event or Target Amortization Event.
Article V
Note Forms
| Section 5.1. | Forms Generally. |
The Notes will have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or the applicable Indenture Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with applicable laws or regulations or with the rules of any securities exchange, or as may, consistently herewith, be determined by the Issuer, as evidenced by the Issuer’s execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes and the Global Notes representing the Book-Entry Notes will be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders) or may be produced in any other manner, all as determined by the Issuer, as evidenced by the Issuer’s execution of such Notes.
| Section 5.2. | Forms of Notes. |
(a) Forms Generally . Subject to Section 5.2(b) , each Note will be in one of the forms approved from time to time by or pursuant to an Indenture Supplement. Without limiting the generality of the foregoing, the Indenture Supplement for any Series of Notes shall specify whether the Notes of such Series, or of any Class within such Series, shall be issuable as Definitive Notes or as Book-Entry Notes.
(b) Issuer Certificate . Before the delivery of a Note to the Indenture Trustee for authentication in any form approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the Indenture Trustee the Issuer Certificate by or pursuant to which such form of Note has been approved, which Issuer Certificate will have attached thereto a true and correct copy of the form of Note which has been approved thereby. Any form of Note approved by or pursuant to an Issuer Certificate must be acceptable as to form to the Indenture Trustee, such acceptance to be evidenced by the Indenture Trustee’s authentication of Notes in that form or a Certificate of Authentication signed by an Indenture Trustee Authorized Officer and delivered to the Issuer.
(c) (i) Rule 144A Notes . Notes offered and sold in reliance on the exemption from registration under Rule 144A (each, a “ Rule 144A Note ”) shall be issued initially in the form of (A) one or more permanent Global Notes in fully registered form (each, a “ Rule 144A Global Note ”), substantially in the form attached hereto as Exhibit
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A-1 or (B) one or more permanent Definitive Notes in fully registered form (each, a “ Rule 144A Definitive Note ”), substantially in the form attached hereto as Exhibit A-2 . The aggregate principal amounts of the Rule 144A Global Notes or Rule 144A Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee, or the Depository or its nominee, as the case may be, as hereinafter provided.
(ii) Regulation S Notes. Notes sold in offshore transactions in reliance on Regulation S (each, a “ Regulation S Note ”) shall be issued in the form of (A) one or more permanent Global Notes in fully registered form (each, a “ Regulation S Global Note ”), substantially in the form attached hereto as Exhibit A-3 or (B) one or more permanent Definitive Notes in fully registered form (each, a “ Regulation S Definitive Note ”), substantially in the form attached hereto as Exhibit A-4 . The aggregate principal amounts of the Regulation S Global Notes or the Regulation S Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
| Section 5.3. | Form of Indenture Trustee’s Certificate of Authentication. |
The form of Indenture Trustee’s Certificate of Authentication for any Note issued pursuant to this Indenture will be substantially as follows:
INDENTURE TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Series or Class designated herein referred to in the within-mentioned Indenture and Indenture Supplement.
| WELLS FARGO BANK, N.A., | ||||
| as Indenture Trustee, | ||||
| By: |
|
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| Authorized Signatory | ||||
| Dated: |
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| Section 5.4. | Book-Entry Notes. |
(a) Issuance of Book-Entry Notes . If the Issuer establishes pursuant to Sections 5.2 and 6.1 that the Notes of a particular Series or Class are to be issued as Book-Entry Notes, then the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver, one or more definitive Global Notes, which, unless otherwise provided in the applicable Indenture Supplement (1) will represent, and will be denominated in an amount equal to the aggregate, Initial Note Balance of the Outstanding Notes of such Series or Class to be represented by such Global Note or Notes, or such portion thereof as the Issuer will specify in an Issuer Certificate, (2) will be registered in the name of the Depository for such Global Note or
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Notes or its nominee, (3) will be delivered by the Indenture Trustee or its agent to the Depository or pursuant to the Depository’s instruction (and which may be held by the Indenture Trustee as custodian for the Depository, if so specified in the related Indenture Supplement or Depository Agreement), (4) if applicable, will bear a legend substantially to the following effect: “Unless this Note is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein” and (5) may bear such other legend as the Issuer, upon advice of counsel, deems to be applicable. The Specified Notes may not be issued as Book-Entry Notes.
(b) Transfers of Global Notes only to Depository Nominees . Notwithstanding any other provisions of this Section 5.4 or of Section 6.5 , and subject to the provisions of paragraph (c) below, unless the terms of a Global Note or the applicable Indenture Supplement expressly permit such Global Note to be exchanged in whole or in part for individual Notes, a Global Note may be transferred, in whole but not in part and in the manner provided in Section 6.5 , only to a nominee of the Depository for such Global Note, or to the Depository, or a successor Depository for such Global Note selected or approved by the Issuer, or to a nominee of such successor Depository.
(c) Limited Right to Receive Definitive Notes . Except under the limited circumstances described below, Note Owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. With respect to Notes issued within the United States, unless otherwise specified in the applicable Indenture Supplement, or with respect to Notes issued outside the United States, if specified in the applicable Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies the Issuer that it is unwilling or unable to continue to act as Depository for such Global Note or if at any time the Depository for the Notes for such Series or Class ceases to be a Clearing Corporation, the Issuer will appoint a successor Depository with respect to such Global Note. If a successor Depository for such Global Note is not appointed by the Issuer within ninety (90) days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 requesting the authentication and delivery of individual Notes of such Series or Class in exchange for such Global Note, will authenticate and deliver, individual Notes of such Series or Class of like tenor and terms in an aggregate Initial Note Balance equal to the Initial Note Balance of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion determine that the Notes of any Series or Class or portion thereof issued or issuable in the form of one or more Global Notes will no longer be represented by such Global Note or Notes. In such event the Issuer will execute, and the Indenture Trustee or its agent in accordance with
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Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 for the authentication and delivery of individual Notes of such Series or Class in exchange in whole or in part for such Global Note, will authenticate and deliver individual Notes of such Series or Class of like tenor and terms in definitive form in an aggregate Initial Note Balance equal to the Initial Note Balance of such Global Note or Notes representing such Series or Class or portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 5.2 and 6.1 with respect to Notes issued or issuable in the form of a Global Note, the Depository for such Global Note may surrender such Global Note in exchange in whole or in part for individual Notes of such Series or Class of like tenor and terms in definitive form on such terms as are acceptable to the Issuer and such Depository. Thereupon the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver, without service charge, (A) to each Person specified by such Depository a new Note or Notes of the same Series or Class of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate Initial Note Balance equal to the Initial Note Balance of the portion of the Global Note or Notes specified by the Depository and in exchange for such Person’s beneficial interest in the Global Note; and (B) to such Depository a new Global Note of like tenor and terms and in an authorized denomination equal to the difference, if any, between the Initial Note Balance of the surrendered Global Note and the aggregate Initial Note Balance of Notes delivered to the Noteholders thereof.
(iv) If any Event of Default has occurred with respect to such Global Notes, and Owners of Notes evidencing more than 50% of the Global Notes of that Series or Class (measured by Voting Interests) advise the Indenture Trustee and the Depository that a Global Note is no longer in the best interest of the Note Owners, the Owners of Global Notes of that Series or Class may exchange their beneficial interests in such Notes for Definitive Notes in accordance with the exchange provisions herein.
(v) In any exchange provided for in any of the preceding four paragraphs, the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 , authenticate and deliver Definitive Notes in definitive registered form in authorized denominations. Upon the exchange of the entire Initial Note Balance of a Global Note for Definitive Notes, such Global Note will be canceled by the Indenture Trustee or its agent. Except as provided in the preceding paragraphs, Notes issued in exchange for a Global Note pursuant to this Section will be registered in such names and in such authorized denominations as the Depository for such Global Note, pursuant to instructions from its direct or indirect participants or otherwise, will instruct the Indenture Trustee or the Note Registrar. The Indenture Trustee or the Note Registrar will deliver such Notes to the Persons in whose names such Notes are so registered.
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| Section 5.5. | Beneficial Ownership of Global Notes. |
Until Definitive Notes have been issued to the applicable Noteholders to replace any Global Notes with respect to a Series or Class pursuant to Section 5.4 or as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal with the applicable clearing agency or Depository and the Depository Participants for all purposes (including the making of distributions) as the authorized representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only through the applicable Depository and the Depository Participants and will be limited to those established by law and agreements between such Note Owners and the Depository and/or the Depository Participants. Pursuant to the operating rules of the applicable Depository, unless and until Definitive Notes are issued pursuant to Section 5.4 , the Depository will make book-entry transfers among the Depository Participants and receive and transmit distributions of principal and interest on the related Notes to such Depository Participants.
For purposes of any provision of this Indenture requiring or permitting actions with the consent of, or at the direction of, Noteholders evidencing a specified percentage of the Note Balance of Outstanding Notes, such direction or consent may be given by Note Owners (acting through the Depository and the Depository Participants) owning interests in or security entitlements to Notes evidencing the requisite percentage of principal amount of Notes.
| Section 5.6. | Notices to Depository. |
Whenever any notice or other communication is required to be given to Noteholders with respect to which Book-Entry Notes have been issued, unless and until Definitive Notes will have been issued to the related Note Owners, the Indenture Trustee will give all such notices and communications to the applicable Depository, and shall have no obligation to report directly to such Note Owners.
Article VI
The Notes
| Section 6.1. | General Provisions; Notes Issuable in Series; Terms of a Series or Class Specified in an Indenture Supplement. |
(a) Amount Unlimited . The aggregate Initial Note Balance of Notes which may be authenticated and delivered and Outstanding under this Indenture is not limited.
(b) Series and Classes . The Notes may be issued in one or more Series or Classes up to an aggregate Note Balance for such Series or Class as from time to time may be authorized by the Issuer. All Notes of each Series or Class under this Indenture will in all respects be equally and ratably entitled to the benefits hereof with respect to such Series or Class without preference, priority or distinction on account of (1) the actual time of the authentication and delivery, or (2) Stated Maturity Date of the Notes of such Series or Class, except as specified in the applicable Indenture Supplement for such Series or Class of Notes.
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Each Note issued must be part of a Series of Notes for purposes of allocations pursuant to the related Indenture Supplement. A Series of Notes is created pursuant to an Indenture Supplement. A Class of Notes is created pursuant to an Indenture Supplement for the applicable Series.
Each Series and Class of Notes will be secured by the Trust Estate.
Each Series of Notes may, but need not be, subdivided into multiple Classes. Notes belonging to a Class in any Series may be entitled to specified payment priorities over other Classes of Notes in that Series.
(c) Provisions Required in Indenture Supplement . Before the initial issuance of Notes of each Series, there shall also be established in or pursuant to an Indenture Supplement provision for:
(i) the Series designation;
(ii) the Initial Note Balance of such Series of Notes and of each Class, if any, within such Series, and the Maximum VFN Principal Balance for such Series (if it is a Series or Class of Variable Funding Notes);
(iii) whether such Notes are subdivided into Classes;
(iv) whether such Series of Notes are Term Notes, Variable Funding Notes or a combination thereof;
(v) the Note Interest Rate at which such Series of Notes or each related Class of Notes will bear interest, if any, or the formula or index on which such rate will be determined, including all relevant definitions, and the date from which interest will accrue;
(vi) the Expected Repayment Date and the Stated Maturity Date for such Series of Notes or each related Class of Notes;
(vii) if applicable, any Target Amortization Events with respect to such Series of Notes or any related Class;
(viii) if applicable, the Target Amortization Amount for each related Class of such Series of Notes;
(ix) if applicable, the appointment by the Indenture Trustee of an Authenticating Agent in one or more places other than the location of the office of the Indenture Trustee with power to act on behalf of the Indenture Trustee and subject to its direction in the authentication and delivery of such Notes in connection with such transactions as will be specified in the provisions of this Indenture or in or pursuant to the applicable Indenture Supplement creating such Series;
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(x) if such Series of Notes or any related Class will be issued in whole or in part in the form of a Global Note or Global Notes, the terms and conditions, if any, in addition to those set forth in Section 5.4 , upon which such Global Note or Global Notes may be exchanged in whole or in part for other Definitive Notes; and the Depository for such Global Note or Global Notes (if other than the Depository specified in Section 1.1 );
(xi) the subordination, if any, of such Series of Notes or any related Class(es) to any other Notes of any other Series or of any other Class within the same Series;
(xii) if such Series of Notes or any related Class is to have the benefit of any Derivative Agreement, the terms and provisions of such agreement;
(xiii) if such Series of Notes or any related Class is to have the benefit of any Supplemental Credit Enhancement Agreement or Liquidity Facility, the terms and provisions of the applicable agreement;
(xiv) the Record Date for any Payment Date of such Series of Notes or any related Class, if different from the last day of the month before the related Payment Date;
(xv) if applicable, under what conditions any additional amounts will be payable to Noteholders of the Notes of such Series; and
(xvi) any other terms of such Notes as stated in the related Indenture Supplement;
all upon such terms as may be determined in or pursuant to an Indenture Supplement with respect to such Series or Class of Notes.
(d) Forms of Series or Classes of Notes . The form of the Notes of each Series or Class will be established pursuant to the provisions of this Indenture and the related Indenture Supplement creating such Series or Class. The Notes of each Series or Class will be distinguished from the Notes of each other Series or Class in such manner, reasonably satisfactory to the Indenture Trustee, as the Issuer may determine.
| Section 6.2. | Denominations. |
(a) Except as provided in Section 6.2(b), the Notes of each Series or Class will be issuable in such denominations and currency as will be provided in the provisions of this Indenture or in or pursuant to the applicable Indenture Supplement. In the absence of any such provisions with respect to the Notes of any Series or Class, the Notes of that Series or Class will be issued in denominations of $100,000 and integral multiples of $1,000 in excess thereof.
(b) The minimum denomination established for each class of Specified Notes issued on any particular date, shall be determined in a manner so that the total number of Specified Notes that could be outstanding immediately after such issuance (including all classes of
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Specified Notes issued on such date) shall not reduce the Remaining Specified Note Capacity below zero. On any particular issue date, the Remaining Specified Note Capacity shall be equal to (a) 90 less (b) the sum of, for each class of Specified Note outstanding immediately after such issuance (including all classes of Specified Notes issued on such date but excluding any Specified Notes beneficially owned by the beneficial owner of the Trust Certificate), the quotient, rounded downwards to the nearest whole number, of the principal amount of such class of Specified Note on its date of issuance divided by the minimum denomination established for such class of Specified Note on its date of issuance (or as later revised).
| Section 6.3. | Execution, Authentication and Delivery and Dating. |
(a) The Notes will be executed on behalf of the Issuer by an Issuer Authorized Officer, by manual or facsimile signature.
(b) Notes bearing the manual or facsimile signatures of individuals who were at any time an Issuer Authorized Officer will bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices before the authentication and delivery of such Notes or did not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication; and the Indenture Trustee will, upon delivery of an Issuer Certificate, authenticate and deliver such Notes as provided in this Indenture and not otherwise.
(d) Before any such authentication and delivery, the Indenture Trustee will be entitled to receive, in addition to any Officer’s Certificate and Opinion of Counsel required to be furnished to the Indenture Trustee pursuant to Section 1.3 , the Issuer Certificate and any other opinion or certificate relating to the issuance of the Series or Class of Notes required to be furnished pursuant to Section 5.2 or Section 6.10 .
(e) The Indenture Trustee will not be required to authenticate such Notes if the issue thereof will adversely affect the Indenture Trustee’s own rights, duties or immunities under the Notes and this Indenture.
(f) Unless otherwise provided in the form of Note for any Series or Class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a Certificate of Authentication substantially in the form provided for herein executed by the Indenture Trustee by manual signature of an authorized signatory, and such certificate upon any Note will be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
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| Section 6.4. | Temporary Notes. |
(a) Pending the preparation of definitive Notes of any Series or Class, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 , together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Issuer may determine, as evidenced by the Issuer’s execution of such Notes.
(b) If temporary Notes of any Series or Class are issued, the Issuer will cause permanent Notes of such Series or Class to be prepared without unreasonable delay. After the preparation of permanent Notes, the temporary Notes of such Series or Class will be exchangeable for permanent Notes of such Series or Class upon surrender of the temporary Notes of such Series or Class at the office or agency of the Issuer in a Place of Payment, without charge to the Noteholder; and upon surrender for cancellation of any one or more temporary Notes the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver in exchange therefore a like Initial Note Balance of permanent Notes of such Series or Class of authorized denominations and of like tenor and terms. Until so exchanged the temporary Notes of such Series or Class will in all respects be entitled to the same benefits under this Indenture as permanent Notes of such Series or Class.
| Section 6.5. | Registration, Transfer and Exchange. |
(a) Note Register . The Indenture Trustee, acting as Note Registrar (in such capacity, the “ Note Registrar ”), shall keep or cause to be kept a register (herein sometimes referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Notes, or of Notes of a particular Series or Class, and for transfers of Notes. Any such register will be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers will be available for inspection by the Issuer or the Indenture Trustee at the Corporate Trust Office. The Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agents of any of them, may treat a Person in whose name a Note is registered as the owner of such Note for the purpose of receiving payments in respect of such Note and for all other purposes, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any agent of any of them, shall be affected by notice to the contrary. None of the Issuer, the Indenture Trustee, any agent of the Indenture Trustee, any Paying Agent or the Note Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership of a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership.
(b) Exchange of Notes . Subject to Section 5.4 , upon surrender for transfer of any Note of any Series or Class at the Place of Payment, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 and such surrendered Note, together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms. Subject to Section 5.4 , Notes of any Series or Class may be exchanged for other Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms, upon surrender of the Notes to be exchanged at the
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Place of Payment. Whenever any Notes are so surrendered for exchange, the Issuer will execute, and the Indenture Trustee or the related Authenticating Agent will authenticate and deliver the Notes which the Noteholders making the exchange are entitled to receive.
(c) Issuer Obligations . All Notes issued upon any transfer or exchange of Notes will be the valid and legally binding obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such transfer or exchange.
(d) Endorsement of Notes to be Transferred or Exchanged . Every Note presented or surrendered for transfer or exchange will (if so required by the Issuer, the Note Registrar or the Indenture Trustee) be duly indorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Indenture Trustee, and the Note Registrar duly executed, by the Noteholder thereof or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”).
(e) No Service Charge . Unless otherwise provided in the Note to be transferred or exchanged, no service charge will be assessed against any Noteholder for any transfer or exchange of Notes, but the Issuer, the Indenture Trustee, and the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Notes before the transfer or exchange will be complete, other than exchanges pursuant to Section 5.4 not involving any transfer.
(f) Deemed Representations by Transferees of Rule 144A Notes . Each transferee (including the Initial Noteholder or Owner) of a Rule 144A Note or of a beneficial interest therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Transferee Certificate attached to Exhibit B-1 attached hereto.
(g) Deemed Representations by Transferees of Regulation S Notes . Each transferee (including the initial Noteholder or Owner) of a Regulation S Note or of a beneficial therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Transferee Certificate attached to Exhibit B-2 attached hereto.
(h) Conditions to Transfer . No sale, pledge or other transfer (a “ Transfer ”) of any Notes shall be made unless that Transfer is made pursuant to an effective registration statement under the Securities Act and effective registration or qualification under applicable state securities laws or is made in a transaction that does not require such registration or qualification. If a Transfer is made without registration under the Securities Act (other than in connection with the initial issuance thereof by the Issuer), then the Note Registrar, the Indenture Trustee, Administrator, on behalf of the Issuer, shall refuse to register such Transfer unless the Note Registrar receives either:
(i) the Regulation S Note Transfer Certificate or Rule 144A Note Transfer Certificate and such other information as may be required pursuant to this Section 6.5 ; or
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(ii) if the Transfer is to be made to an Issuer Affiliate in a transaction that is exempt from registration under the Securities Act, an Opinion of Counsel reasonably satisfactory to the Issuer and the Note Registrar to the effect that such Transfer may be made without registration under the Securities Act (which Opinion of Counsel shall not be an expense of the Trust Estate or of the Issuer, the Indenture Trustee or the Note Registrar in their respective capacities as such).
None of the Administrator, the Issuer, the Indenture Trustee or the Note Registrar is obligated to register or qualify the Notes under the Securities Act or any other securities law or to take any action not otherwise required under this Indenture to permit the transfer of any Note without registration or qualification. Any Noteholder of a Note desiring to effect such a Transfer shall, and upon acquisition of such a Note shall be deemed to have agreed to, indemnify the Indenture Trustee, the Note Registrar, the Administrator, the Servicer and the Issuer against any liability that may result if the Transfer is not so exempt or is not made in accordance with the Securities Act and applicable state securities laws.
In connection with any Transfer of Notes in reliance on Rule 144A, the Administrator shall furnish upon request of a Noteholder to such Noteholder and any prospective purchaser designated by such Noteholder the information required to be delivered under paragraph (d)(4) of Rule 144A.
In the event that a Note is transferred to a Person that does not meet the requirements of this Section 6.5 and/or the requirements of the related Indenture Supplement, such transfer will be of no force and effect, will be void ab initio , and will not operate to transfer any right to such Person, notwithstanding any instructions to the contrary to the Issuer, the Indenture Trustee or any intermediary; and the Indenture Trustee shall not make any payment on such Note for as long as such Person is the Noteholder of such Note and the Indenture Trustee shall have the right to compel such Person to transfer such Note to a Person who does meet the requirements of this Section 6.5 .
(i) Transfers of Ownership Interests in Global Notes . Transfers of beneficial interests in a Global Note representing Book-Entry Notes may be made only in accordance with the rules and regulations of the Depository (and, in the case of a Regulation S Global Note, prior to the end of the Distribution Compliance Period, only to beneficial owners who are not U.S. Persons in accordance with the rules and regulations of Euroclear or Clearstream) and the transfer restrictions contained in the legend on such Global Note and exchanges or transfers of interests in a Global Note may be made only in accordance with the following:
(i) General Rules Regarding Transfers of Global Notes. Subject to clauses (ii) through (vi) of this Section 6.5(i) , Transfers of a Global Note representing Book-Entry Notes shall be limited to Transfers of such Global Note in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successor’s nominee.
(ii) Rule 144A Global Note to Regulation S Global Note. If an owner of a beneficial interest in a Rule 144A Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to exchange its interest in such
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Rule 144A Global Note for an interest in a Regulation S Global Note for that Series and/or Class, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Regulation S Global Note for that Series and/or Class, such Note Owner (or transferee), provided such Note Owner (or transferee) is not a U.S. Person, may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest in such Rule 144A Global Note for a beneficial interest in the Regulation S Global Note for that Series and/or Class. Upon the receipt by the Indenture Trustee of (A) instructions from the Depository directing the Indenture Trustee to cause to be credited a beneficial interest in a Regulation S Global Note in an amount equal to the beneficial interest in such Rule 144A Global Note to be exchanged but not less than the minimum denomination applicable to the owner’s Notes held through a Regulation S Global Note, (B) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository and, in the case of a transfer pursuant to and in accordance with Regulation S, the Euroclear or Clearstream account to be credited with such increase and (C) a certificate (each, a “ Regulation S Note Transfer Certificate ”) in the form of Exhibit B-2 hereto given by the Note Owner or its transferee stating that the exchange or transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes, including the requirements that the Note Owner or its transferee is not a U.S. Person and the transfer is made pursuant to and in accordance with Regulation S, then the Indenture Trustee and the Note Registrar, shall reduce the principal amount of the Rule 144A Global Note for the related Series and/or Class and increase the principal amount of the Regulation S Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note to be exchanged, and shall instruct Euroclear or Clearstream, as applicable, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Rule 144A Global Note for the related Series and/or Class.
(iii) Regulation S Global Note to Rule 144A Global Note. If an owner of a beneficial interest in a Regulation S Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Rule 144A Global Note for such Series and/or Class, such owner’s transferee may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Rule 144A Global Note for such Series and/or Class. Upon the receipt by the Indenture Trustee and the Note Registrar, of (A) instructions from the Depository directing the Indenture Trustee and the Note Registrar, to cause to be credited a beneficial interest in a Rule 144A Global Note in an amount equal to the beneficial interest in such Regulation S Global Note to be exchanged but not less than the minimum denomination applicable to such owner’s Notes held through a Rule 144A Global Note, to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, and (B) a certificate (each, a “ Rule 144A Note Transfer Certificate ”) in the form of Exhibit B-1 hereto given by the transferee of such beneficial interest, then the Indenture Trustee will reduce the principal amount of the Regulation S
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Global Note and increase the principal amount of the Rule 144A Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Regulation S Global Note for the related Series and/or Class to be transferred and the Indenture Trustee and the Note Registrar, shall instruct the Depository, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Regulation S Global Note for the related Series and/or Class.
(iv) Transfers of Interests in Rule 144A Global Note. An owner of a beneficial interest in a Rule 144A Global Note may transfer such interest in the form of a beneficial interest in such Rule 144A Global Note in accordance with the procedures of the Depository without the provision of written certification.
(v) Transfers of Interests in Regulation S Global Note. An owner of a beneficial interest in a Regulation S Global Note may transfer such interest in the form of a beneficial interest in such Regulation S Global Note in accordance with the applicable procedures of Euroclear and Clearstream without the provision of written certification.
(vi) Regulation S Global Note to Regulation S Definitive Note. Subject to Section 5.4(c) hereof, an owner of a beneficial interest in a Regulation S Global Note for the related Series and/or Class deposited with or on behalf of a Depository may at any time transfer such interest for a Regulation S Definitive Note upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Regulation S Note Transfer Certificate.
(vii) Rule 144A Global Note to Rule 144A Definitive Note. Subject to Section 5.4(c) hereof, an owner of a beneficial interest in a Rule 144A Global Note deposited with or on behalf of a Depository may at any time transfer such interest for a Rule 144A Definitive Note, upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Rule 144A Note Transfer Certificate.
(j) Transfers of Definitive Notes . In the event of any Transfer of a Regulation S Definitive Note, a Regulation S Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer. In the event of any Transfer of a Rule 144A Definitive Note, a Rule 144A Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer.
(k) ERISA Restrictions . Neither the Note Registrar nor the Indenture Trustee shall register the Transfer of any Definitive Note (other than a Specified Note, unless otherwise provided in the related Indenture Supplement) unless the prospective transferee has delivered to the Indenture Trustee and the Note Registrar a certification to the effect that either (i) it is not, and is not acquiring the Notes or any interest therein on behalf of, or using assets of, an “employee benefit plan” as defined in Section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA (the “ Plan Asset Regulations ”), which employee benefit plan, plan or entity is subject to
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Title I of ERISA or section 4975 of the Code (“ Similar Law ”), or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code (collectively, an “ Employee Benefit Plan ”), or (ii) (A) as of the date of transfer or purchase, the Notes are rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (B) the Transferee’s acquisition and holding of the Notes or any interest therein will satisfy the requirements of Prohibited Transaction Class Exemption (“ PTCE ”) 84-14 (relating to transactions effected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under Section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan subject to such Similar Law, will not violate any such Similar Law). In the case of any Book-Entry Note, each transferee of such Note or any beneficial interest therein by virtue of its acquisition of such Note will be deemed to represent either (i) or (ii) above. Neither the Note Registrar nor the Indenture Trustee shall register the transfer of any Specified Note unless the prospective transferee has delivered to the Indenture Trustee and the Note Registrar a certification to the effect that it is not, and is not acquiring the Notes or any interest therein on behalf of, or with assets of, an Employee Benefit Plan.
(l) Each prospective owner of a beneficial interest in a Specified Note shall, upon accepting a beneficial interest in the Specified Note, be deemed to make all of the certifications, representations and warranties set forth in the Transferee Certification attached hereto as Exhibit E (in the case of the Class 1 Specified Notes) or Exhibit F (in the case of the Class 2 Specified Notes), as the case may be.
(m) Tax Representation on Class 1 Specified Notes . Notwithstanding anything to the contrary herein, no transfer of a beneficial interest in a Class 1 Specified Note shall be effective, and any attempted transfer shall be void ab initio, unless, prior to and as a condition of such transfer, the prospective transferee of the beneficial interest (including the initial transferee of the beneficial interest) and any subsequent transferee of the beneficial interest in a Class 1 Specified Note, represent and warrant, in writing, substantially in the form of the Transferee Certification set forth in Exhibit E, to the Indenture Trustee and the Note Registrar and any of their respective successors or assigns that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under this Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 1 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
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(ii) It is not acquiring any beneficial interest in the Class 1 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note, and it will not cause any beneficial interest in the Class 1 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 1 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture, and it does not and will not hold any beneficial interest in the Class 1 Specified Note on behalf of any Person whose beneficial interest in the Class 1 Specified Note is in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note, or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 1 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in the Class 1 Specified Note would be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in this Indenture.
(iv) It will not transfer any beneficial interest in the Class 1 Specified Note (directly, through a participation thereof or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit E of this Indenture.
(v) It will not use any Class 1 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is the Class 1 Specified Note provided the terms of such repurchase transaction are generally consistent with prevailing market practice,
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(n) Tax Representation on Class 2 Specified Notes . Notwithstanding anything to the contrary herein, no transfer of a beneficial interest in a Class 2 Specified Note shall be effective, and any attempted transfer shall be void ab initio, unless, prior to and as a condition of such transfer, the prospective transferee of the beneficial interest (including the initial transferee of the beneficial interest) and any subsequent transferee of the beneficial interest in a Class 2 Specified
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Note, represent and warrant, in writing, substantially in the form of the Transferee Certification set forth in Exhibit F, to the Indenture Trustee and the Note Registrar and any of their respective successors or assigns that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under this Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 2 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 2 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note, and it will not cause any beneficial interest in the Class 2 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 2 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture, and it does not and will not hold any beneficial interest in the Class 2 Specified Note on behalf of any Person whose beneficial interest in the Class 2 Specified Note is in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note, or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 2 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in the Class 2 Specified Note would be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in this Indenture.
(iv) It will not transfer any beneficial interest in the Class 2 Specified Note ( directly, through a participation thereof or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit F of the Indenture.
(v) It will not use any Class 2 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is the Class 2 Specified Note provided the terms of such repurchase transaction are generally consistent with prevailing market practice,
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(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) It is a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code and will not transfer to, or cause such Class 2 Specified Note to be transferred to, any person other than a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code.
(o) No Liability of Indenture Trustee for Transfers . To the extent permitted under applicable law, the Indenture Trustee (in any of its capacities) shall be under no liability to any Person for any registration of transfer of any Note that is in fact not permitted by this Section 6.5 or for making any payments due to the Noteholder thereof or taking any other action with respect to such Noteholder under the provisions of this Indenture so long as the transfer was registered by the Indenture Trustee and the Note Registrar in accordance with the requirements of this Indenture.
| Section 6.6. | Mutilated, Destroyed, Lost and Stolen Notes. |
(a) If (1) any mutilated Note is surrendered to the Indenture Trustee or the Note Registrar, or the Issuer, the Note Registrar or the Indenture Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and (2) there is delivered to the Issuer, the Note Registrar or the Indenture Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 , together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor, Series or Class, Stated Maturity Date and Initial Note Balance, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note on a Payment Date in accordance with Section 4.5 .
(c) Upon the issuance of any new Note under this Section, the Issuer, the Indenture Trustee, or the Note Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note will constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of the same Series or Class duly issued hereunder.
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(e) The provisions of this Section are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
| Section 6.7. | Payment of Interest; Interest Rights Preserved; Withholding Taxes. |
(a) Unless otherwise provided with respect to such Note pursuant to Section 6.1 , interest payable on any Note will be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the most recent Record Date.
(b) Subject to Section 6.7(a) , each Note delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Note will carry the rights to interest accrued or principal accreted and unpaid, and to accrue or accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest on or principal of any Note shall be subject to any applicable withholding or deduction imposed pursuant to the Code or other applicable tax law, including foreign withholding and deduction. Any amounts properly so withheld or deducted shall be treated as actually paid to the appropriate Noteholder. In addition, in order to receive payments on its Notes free of U.S. federal withholding and backup withholding tax, each Noteholder shall timely furnish the Indenture Trustee on behalf of the Issuer, (1) any applicable IRS Form W-9, W-8BEN, W-8ECI or W-8IMY (with any applicable attachments) and (2) any documentation that is required under Section 1471 or 1472 of the Code to enable the Issuer, the Indenture Trustee and any other agent of the Issuer to determine their duties and liabilities with respect to any taxes they may be required to withhold in respect of such Note or the Noteholder of such Note or beneficial interest therein, in each case, prior to the first Payment Date after such Noteholder’s acquisition of Notes and at such time or times required by law or that the Indenture Trustee on behalf of the Issuer or their respective agents may reasonably request, and shall update or replace such IRS form or documentation in accordance with its terms or its subsequent amendments. Each Noteholder will provide the applicable replacement IRS form or documentation every three (3) years (or sooner if there is a transfer to a new Noteholder or if required by applicable law). In each case above, the applicable IRS form or documentation shall be properly completed and signed under penalty of perjury.
| Section 6.8. | Persons Deemed Owners. |
The Issuer, the Indenture Trustee, the Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note Registrar may treat the Person in whose name the Note is registered in the Note Registrar as the owner of such Note for the purpose of receiving payment of principal of and (subject to Section 6.7 ) interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and neither the Issuer, the Indenture Trustee, the Note Registrar, nor any agent of the Issuer, the Indenture Trustee, or the Note Registrar will be affected by notice to the contrary.
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| Section 6.9. | Cancellation. |
All Notes surrendered for payment, redemption, transfer, conversion or exchange will, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and, if not already canceled, will be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered will be promptly canceled by the Indenture Trustee. No Note will be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Indenture. The Indenture Trustee will dispose of all canceled Notes in accordance with its customary procedures.
| Section 6.10. | New Issuances of Notes. |
(a) Issuance of New Notes . The Issuer may, from time to time, direct the Indenture Trustee, on behalf of the Issuer, to issue new Notes of any Series or Class, so long as the conditions precedent set forth in Section 6.10(b) are satisfied if, at the time of issuance, other Notes have already been issued and remain Outstanding. On or before the Issuance Date of new Notes of any Series or Class of Notes, the Issuer shall execute and deliver the required Indenture Supplement which shall incorporate the principal terms with respect to such additional Series or Class of Notes. The Indenture Trustee shall execute the Indenture Supplement without the consent of any Noteholders, the Issuer shall execute the Notes of such Series or Class and the Notes of such Series or Class shall be delivered to the Indenture Trustee (along with the other deliverables required hereunder) for authentication and delivery.
(b) Conditions to Issuance of New Notes . The issuance of the Notes of any Series or Class after the Closing Date pursuant to this Section 6.10 shall be subject to the satisfaction of the following conditions:
(i) no later than ten (10) Business Days before the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee, each VFN Noteholder, each Derivative Counterparty and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, notice of such new issuance;
(ii) on or prior to the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, an Issuer Certificate to the effect that the Issuer reasonably believes that the new issuance will not cause an Adverse Effect on any Outstanding Notes or a Secured Party, and an Issuer Tax Opinion with respect to such proposed issuance, and an Opinion of Counsel:
(A) to the effect that all instruments furnished to the Indenture Trustee conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Indenture Trustee to authenticate and deliver such Notes;
(B) to the effect that the form and terms of such Notes have been established in conformity with the provisions of this Indenture;
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(C) to the effect that all conditions precedent set forth in this Indenture to the issuance of such Notes have been met; and
(D) covering such other matters as the Indenture Trustee may reasonably request;
(iii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee and each Note Rating Agency that is at that time rating Outstanding Notes that will remain Outstanding after the new issuance, an Opinion of Counsel to the effect that the Issuer has the requisite power and authority to issue such Notes and such Notes have been duly authorized and delivered by the Issuer and, assuming due authentication and delivery by the Indenture Trustee, constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws and legal principles affecting creditors’ rights generally from time to time in effect and to general equitable principles, whether applied in an action at law or in equity) and are entitled to the benefits of this Indenture, equally and ratably with all other Outstanding Notes, if any, of such Series or Class subject to the terms of this Indenture and each Indenture Supplement;
(iv) if any additional conditions to the new issuance are specified in writing to the Issuer by a Note Rating Agency that is at that time rating any Outstanding Note that will remain Outstanding after the new issuance, the Issuer satisfies such conditions;
(v) the Issuer obtains written confirmation from each Note Rating Agency that is at that time rating any Outstanding Note at the request of the Issuer that will remain Outstanding after the new issuance that the new issuance will not have a Ratings Effect on any Outstanding Notes that are rated by such Note Rating Agency at the request of the Issuer;
(vi) a Facility Early Amortization Event shall not have occurred and be continuing, as evidenced by an Issuer’s Certificate;
(vii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee an Indenture Supplement and, if applicable, the Issuer Certificate;
(viii) any Class of VFN must have the same Stated Maturity Date, Expected Repayment Date and the same method of calculation of its Target Amortization Amount as any and all other Outstanding Classes of VFNs;
(ix) for any new Series with respect to which there is a new Administrative Agent not currently set forth under the terms of the definition of “Administrative Agent,” the Administrative Agent shall have consented to the issuance of such Series, unless the Notes in respect of which the existing Administrative Agent’s consent is required, are paid in full and all related commitments terminated in writing by the Issuer and any remaining accrued commitment fees paid in full to such terminated Administrative Agent, in connection with the issuance of the new Series with the different Administrative Agent; and
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(x) any other conditions specified in the applicable Indenture Supplement; provided , however , that any one of the aforementioned conditions may be eliminated (other than clause (v) and the requirement for an Issuer Tax Opinion) or modified as a condition precedent to any new issuance of a Series or Class of Notes if the Issuer has obtained approval from each Note Rating Agency that is at that time rating any Outstanding Notes that will remain Outstanding after the new issuance.
(c) No Notice or Consent Required to or from Existing Noteholders and Owners . Except as provided in Section 6.10(a) above, the Issuer and the Indenture Trustee will not be required to provide prior notice to or to obtain the consent of any Noteholder or Note Owner of Notes of any Outstanding Series or Class to issue any additional Notes of any Series or Class.
(d) Other Provisions . There are no restrictions on the timing or amount of any additional issuance of Notes of an Outstanding Series or Class within a Series, of Notes, so long as the conditions described in Section 6.10(a) are met or waived. If the additional Notes are in a Series or Class of Notes that has the benefit of a Derivative Agreement, the Issuer will enter into a Derivative Agreement for the benefit of the additional Notes. In addition, if the additional Notes are a Series or Class of Notes that has the benefit of any Supplemental Credit Enhancement Agreement or any Liquidity Facility, the Issuer will enter into a Supplemental Credit Enhancement Agreement or Liquidity Facility, as applicable, for the benefit of the additional Notes.
(e) Sale Proceeds . The proceeds of sale of any new Series of Notes shall be wired to the Collection and Funding Account, and the Indenture Trustee shall disburse such sale proceeds at the direction of the Administrator on behalf of the Issuer, except to the extent such funds are needed to satisfy the Collateral Test. The Administrator on behalf of the Issuer may direct the Issuer to apply such proceeds to reduce pro rata based on Invested Amounts, the VFN Principal Balance of any Classes of Variable Funding Notes, or to redeem any Series of Notes in accordance with Section 13.1 . In the absence of any such direction, the proceeds of such sale shall be distributed to the Depositor or at the Depositor’s direction on the Issuance Date for the newly issued Notes. The Administrator shall deliver to the Indenture Trustee a report demonstrating that the release of sale proceeds pursuant to the Issuer’s direction will not cause a failure of the Collateral Test, as a precondition to the Indenture Trustee releasing such proceeds.
(f) Increase or Reduction in Maximum VFN Principal Balance and/or the Extension of any Expected Repayment Date . For the avoidance of doubt, the increase or reduction in the Maximum VFN Principal Balance and/or the extension of the Expected Repayment Date in respect of any outstanding Class of Notes shall not constitute an issuance of “new Notes” for purpose of this Section 6.10 .
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Article VII
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or Depositor or the Receivables Seller
| Section 7.1. | Satisfaction and Discharge of Indenture. |
This Indenture will cease to be of further effect with respect to any Series or Class of Notes (except as to any surviving rights of transfer or exchange of Notes of that Series or Class expressly provided for herein or in the form of Note for that Series or Class), and the Indenture Trustee, on demand of and at the expense of the Issuer, will execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(a) all Notes of that Series or Class theretofore authenticated and delivered (other than (i) Notes of that Series or Class which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 6.6 , and (ii) Notes of that Series or Class for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from that trust) have been delivered to the Indenture Trustee canceled or for cancellation;
(b) with respect to the discharge of this Indenture for each Series or Class the Issuer has paid or caused to be paid all sums payable hereunder (including payments to the Indenture Trustee (in all its capacities) and Wells Fargo Bank, N.A. (in all its capacities) pursuant to Section 11.7 with respect to the Notes or in respect of Fees, any and all amounts payable to each Derivative Counterparty in accordance with the terms of the related Derivative Agreement and any and all other amounts due and payable pursuant to this Indenture (including any payments to Wells Fargo Bank, N.A. (in any of its capacities); and
(c) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Notes of that Series or Class have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any Series or Class of Notes, the obligations of the Administrator to the Indenture Trustee with respect to any Series or Class of Notes under Section 11.7 and of the Issuer to the Securities Intermediary under Section 4.9 and the obligations and rights of the Indenture Trustee under Section 7.2 and Section 11.3 , respectively, will survive such satisfaction and discharge.
| Section 7.2. | Application of Trust Money. |
All money and obligations deposited with the Indenture Trustee pursuant to Section 7.1 and all money received by the Indenture Trustee in respect of such obligations will be held in trust and applied by it or the Paying Agent, in accordance with the provisions of the Class of Notes in respect of which it was deposited and this Indenture and the related Indenture Supplement, to the payment to the Persons entitled thereto, of the principal and interest for whose payment that money and obligations have been deposited with or received by the Indenture Trustee or the Paying Agent.
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| Section 7.3. | Cancellation of Notes Held by the Issuer, the Depositor or the Receivables Seller. |
If the Issuer, the Receivables Seller, the Depositor or any of their respective Affiliates holds any Notes, that Noteholder may, subject to any provision of a related Indenture Supplement limiting the repayment of such Notes by notice from that Noteholder to the Indenture Trustee, cause the Notes to be repaid and canceled, whereupon the Notes will no longer be Outstanding.
Article VIII
Events of Default and Remedies
| Section 8.1. | Events of Default. |
“ Event of Default ” means, any one of the following events (whatever the reason for such Event of Default and whether it is voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default (which default continues for a period of two (2) Business Days following written or electronic notice from the Indenture Trustee or the Administrative Agent), in the payment (i) of any principal, interest or any Fees due and owing on any Payment Date (including without limitation the full aggregate amount of any Target Amortization Amounts due on such Payment Date) or the full aggregate amount of any Target Amortization Amount due on any other date or (ii) in full of all accrued and unpaid interest and the Outstanding Note Balance of the Notes of any Series or Class on or before the applicable Stated Maturity Date;
(b) the Servicer or a Subservicer shall fail to comply with the deposit and remittance requirements set forth in any Designated Servicing Agreement (subject to any cure period provided therein) or Section 4.2(a) (and such failure under Section 4.2(a) continues unremedied for a period of two (2) Business Days after a Responsible Officer of the Servicer or a Subservicer obtains actual knowledge of such failure, or receives written notice from the Indenture Trustee or any Noteholder of such failure);
(c) any failure of the Receivables Seller to pay the related Indemnity Payment which continues unremedied for a period of ten (10) days after the earlier to occur of (x) actual discovery by a Responsible Officer of the Receivables Seller or (y) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Receivables Seller, the Administrator, the Servicer, the Subservicer, or the Depositor, respectively;
(d) the occurrence of an Insolvency Event as to the Issuer, the Administrator, the Receivables Seller, the Servicer, a Subservicer or the Depositor;
(e) the Issuer or the Trust Estate shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act as determined by a court of competent jurisdiction in a final and non-appealable order;
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(f) the Depositor sells, transfers, pledges or otherwise disposes of the Owner Trust Certificate (except to a wholly-owned subsidiary of Advance Purchaser), whether voluntarily or by operation of law, foreclosure or other enforcement by a Person of its remedies against the Receivables Seller, the Servicer or the Depositor, except with the consent of the Administrative Agent;
(g) (i) any material provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the Issuer, the Depositor, the Administrator, a Subservicer, the Receivables Seller or any of their respective Affiliates intended to be a party thereto, (ii) the validity or enforceability of any Transaction Document shall be contested by the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates, (iii) a proceeding shall be commenced by the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates or any governmental body having jurisdiction over the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates, seeking to establish the invalidity or unenforceability of any Transaction Document, or (iv) the Issuer, the Depositor, the Administrator, the Subservicer, the Receivables Seller or any of their respective Affiliates shall deny in writing that it has any liability or obligation purported to be created under any Transaction Document;
(h) the Administrator or any Affiliate thereof has taken any action, or failed to take any action, the omission of which could reasonably be expected to impair the interests of the Issuer in the Receivables or the security interest or rights of the Indenture Trustee in the Trust Estate, or to cause or permit the transactions contemplated by the Receivables Sale Agreement to be characterized as a financing rather than a true sale for purposes of bankruptcy or similar laws; provided , however, that if the event is capable of being cured in all respects by corrective action and has not resulted in a material adverse effect on the Noteholders’ interests in the Trust Estate, such event shall not become an Event of Default unless it remains uncured for two (2) Business Days following its occurrence.
Upon the occurrence of any such event none of the Administrator, the Servicer, the Subservicer nor the Depositor shall be relieved from using its best efforts to perform its obligations in a timely manner in accordance with the terms of this Indenture, and each of the Administrator, the Servicer, the Subservicer and the Depositor shall provide the Indenture Trustee, each Note Rating Agency for each Note then Outstanding, each Derivative Counterparty and the Noteholders prompt notice of such failure or delay by it, together with a description of its effort to perform its obligations. Each of the Administrator, the Servicer, each Subservicer and the Depositor shall notify the Indenture Trustee in writing of any Event of Default or an event which with notice, the passage of time or both would become an Event of Default that it discovers, within one (1) Business Day of such discovery. For purposes of this Section 8.1 , the Indenture Trustee shall not be deemed to have knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Indenture Trustee and such notice references the Notes, the Trust Estate or this Indenture. The Indenture Trustee shall provide notice of defaults in accordance with Section 3.3(b) and Section 11.2 .
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Any determination pursuant to this Section 8.1 as to whether any event would have a material adverse effect on the rights or interests of the Noteholders shall be made without regard to any Derivative Agreement, Supplemental Credit Enhancement Agreement or Liquidity Facility.
| Section 8.2. | Acceleration of Maturity; Rescission and Annulment. |
(a) If an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 occurs, the unpaid principal amount of all of the Notes shall automatically become immediately due and payable without notice, presentment or demand of any kind. If any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee, at the written direction of either 100% of the VFN Noteholders or the Majority Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Noteholders), may declare the Note Balance of all the Outstanding Notes and all interest and principal accrued and unpaid (if any) thereon to be due and payable immediately, and upon any such declaration each Note will become and will be immediately due and payable, anything in this Indenture, the related Indenture Supplement(s) or in the Notes to the contrary notwithstanding. Such payments are subject to the allocation, deposits and payment sections of this Indenture and of the related Indenture Supplement(s).
(b) If a Payment Default occurs with respect to any Series or Class and is continuing, then and in each and every such case, unless the principal of all the Notes shall have already become due and payable, the Indenture Trustee, at the written direction of either the Administrative Agent or the Majority Noteholders of all Outstanding Notes, by notice in writing to the Issuer (and to the Indenture Trustee if given by Noteholders), may declare the Note Balance of all the Notes then Outstanding and all interest and principal accrued and unpaid (if any) thereon and all other amounts due and payable under any Transaction Document to be due and payable immediately, and upon any such declaration the same will become and will be immediately due and payable, and the Revolving Period with respect to such Series or Class shall immediately terminate notwithstanding anything in this Indenture, the related Indenture Supplement(s) or the Notes to the contrary.
(c) At any time after such a declaration of acceleration has been made or an automatic acceleration has occurred with respect to the Notes of any Series or Class and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereafter provided in this Article VIII , the Majority Noteholders of all Outstanding Notes, by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay (A) all overdue installments of interest on such Notes, (B) the principal of such Notes which has become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor by the terms of such Notes, to the extent that payment of such interest is lawful, (C) interest upon overdue installments of interest at the rate or rates prescribed therefore by the terms of such Notes to the extent that payment of such interest is lawful, (D) all sums paid by the Indenture Trustee hereunder and the reasonable compensation, expenses and disbursements of the Indenture
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Trustee or Wells Fargo Bank, N.A. (in any of its capacities), their agents and counsel, all other amounts due to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 and (E) all amounts due and payable to each Derivative Counterparty in accordance with the terms of any applicable Derivative Agreement; and
(ii) all Events of Default, other than the nonpayment of the principal of such Notes which has become due solely by such acceleration, have been cured or waived as provided in Section 8.15 .
No such rescission will affect any subsequent default or impair any right consequent thereon.
| Section 8.3. | Collection of Indebtedness and Suits for Enforcement by Indenture Trustee. |
The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any Notes when such interest becomes due and payable and such default continues for a period of thirty-five (35) days following the date on which such interest became due and payable, or
(b) the Issuer defaults in the payment of the principal of any Series or Class of Notes on the Stated Maturity Date thereof; then
the Issuer will, upon demand of the Indenture Trustee, pay (subject to the allocation provided in Section 4.5(a)(2) hereof and any related Indenture Supplement) to the Indenture Trustee, for the benefit of the Noteholders of any such Notes, the whole amount then due and payable on any such Notes for principal and interest, with interest, to the extent that payment of such interest will be legally enforceable, upon the overdue principal and upon overdue installments of interest, at the Default Rate applicable to the Note Balance thereof, unless otherwise specified in the applicable Indenture Supplement, and in addition thereto, will pay such further amount as will be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and Wells Fargo Bank, N.A. (in any of its capacities), their agents and counsel and all other amounts due to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 .
If the Issuer fails to pay such amounts forthwith upon such demand, the Indenture Trustee may, in its own name and as trustee of an express trust, institute a judicial proceeding for the collection of the sums so due and unpaid, and may directly prosecute such proceeding to judgment or final decree, and the Indenture Trustee may enforce the same against the Issuer or any other obligor upon the Notes and collect the money adjudged or decreed to be payable in the manner provided by law and this Indenture.
| Section 8.4. | Indenture Trustee May File Proofs of Claim. |
In case of the pendency of any Insolvency Event or other similar proceeding or event relative to the Issuer or any other obligor upon the Notes or the property of the Issuer or of such other obligor, the Indenture Trustee (irrespective of whether the principal of the Notes will then be due and payable as therein expressed or by declaration or otherwise) will be entitled and empowered by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel and all other amounts due the Indenture Trustee under Section 4.5 ) and of the Noteholders allowed in such judicial proceeding, and
(b) to collect and receive any funds or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator or other similar official in any such proceeding is hereby authorized by each Noteholder to make such payment to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities), and in the event that the Indenture Trustee consents to the making of such payments directly to the Noteholders, to pay to the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities), their agents and counsel, and any other amounts due the Indenture Trustee and Wells Fargo Bank, N.A. (in all its capacities) under Section 4.5 .
Nothing herein contained will be deemed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding.
| Section 8.5. | Indenture Trustee May Enforce Claims Without Possession of Notes. |
All rights of action and claims under this Indenture or the Notes of any Series or Class may be prosecuted and enforced by the Indenture Trustee, without the possession of any of the Notes of such Series or Class or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Indenture Trustee, will be brought in its own name as trustee of an express trust, and any recovery of judgment will, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its respective agents and counsel, be for the ratable benefit of the Noteholders of the Notes of such Series or Class in respect of which such judgment has been recovered.
| Section 8.6. | Application of Money Collected. |
Any money or other property collected by the Indenture Trustee pursuant to this Article VIII will be applied in accordance with Sections 4.5(a)(2) , at the Final Payment Date fixed by the Indenture Trustee and, in case of the payment of such money on account of principal or interest, upon presentation of the Notes of the related Series or Class and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid.
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| Section 8.7. | Sale of Collateral Requires Consent of Majority of All Noteholders. |
The Indenture Trustee shall not sell Collateral or cause the Issuer to sell Collateral following any Event of Default, except with the written consent, or at the direction of, the Majority Noteholders of the Outstanding Notes of each Series; provided , that the consent of 100% of the Noteholders of the Outstanding Notes of each Series and any applicable Derivative Counterparties shall be required for any sale that does not generate sufficient proceeds to pay the Note Balance of all such Notes plus all accrued and unpaid interest and other amounts owed in respect of such Notes and the Transaction Documents. If such direction has been given by the Noteholders of the requisite percentage of all Outstanding Notes, the Indenture Trustee shall cause the Issuer to sell Collateral pursuant to Section 8.16 , and shall provide notice of this to each Note Rating Agency of then Outstanding Notes.
| Section 8.8. | Noteholders Have the Right to Direct the Time, Method and Place of Conducting Any Proceeding for Any Remedy Available to the Indenture Trustee. |
Subject to Section 8.7 and Section 8.14 , the Majority Noteholders of all Outstanding Notes have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee. This right may be exercised only if the direction provided by the Noteholders does not conflict with Applicable Law or this Indenture and does not have a substantial likelihood of involving the Indenture Trustee in personal liability and the Indenture Trustee has received indemnity satisfactory to it from such Noteholders.
| Section 8.9. | Limitation on Suits. |
No Noteholder will have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee or similar official, or for any other remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default with respect to Notes of such Noteholder’s Notes’ Series or Class;
(b) the Noteholders of more than 25% of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, have made written request to the Indenture Trustee to institute proceedings in respect of such Event of Default in the name of the Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; and
(d) the Indenture Trustee, for sixty (60) days after the Indenture Trustee has received such notice, request and offer of indemnity, has failed to institute any such proceeding; it being understood and intended that no one or more Noteholders of Notes of such Series or Class will have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders of Notes, or to obtain or to seek to obtain priority or preference over any other such Noteholders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate benefit of all the Noteholders of all Notes.
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| Section 8.10. | Unconditional Right of Noteholders to Receive Principal and Interest; Limited Recourse. |
Notwithstanding any other provisions in this Indenture, the Noteholder will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on such Note on the Stated Maturity Date expressed in the related Indenture Supplement and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of such Noteholder; provided , however , that notwithstanding any other provision of this Indenture to the contrary, the obligation to pay principal of or interest on the Notes or any other amount payable to any Noteholder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee, or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on the Notes or any other amount payable to any Noteholder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in this Indenture. Notwithstanding any other terms of this Indenture, the Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Notes, this Indenture and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture, none of the Noteholders, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Notes or this Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Notes or this Indenture. It is understood that the foregoing provisions of this Section 8.10 shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Indenture. It is further understood that the foregoing provisions of this Section 8.10 shall not limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Notes or this Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
| Section 8.11. | Restoration of Rights and Remedies. |
If the Indenture Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Issuer, the Indenture Trustee and the Noteholders will, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders will continue as though no such proceeding had been instituted.
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| Section 8.12. | Rights and Remedies Cumulative. |
No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy will, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other appropriate right or remedy.
| Section 8.13. | Delay or Omission Not Waiver. |
No delay or omission of the Indenture Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
| Section 8.14. | Control by Noteholders. |
Either 100% of the VFN Noteholders or the Majority Noteholders of all Outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee with respect to such Notes; provided that:
(a) the Indenture Trustee will have the right to decline to follow any such direction if the Indenture Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Indenture Trustee in good faith determines that the proceedings so directed would involve it in personal liability or be unjustly prejudicial to the Noteholders not taking part in such direction, unless the Indenture Trustee has received indemnity satisfactory to it from the Noteholders; and
(b) the Indenture Trustee may take any other action permitted hereunder deemed proper by the Indenture Trustee which is not inconsistent with such direction.
| Section 8.15. | Waiver of Past Defaults. |
Together, Noteholders of more than 66 2 ⁄ 3 % of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, and the Administrative Agent may on behalf of the Noteholders of all such Notes waive any past default hereunder and its consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note, or
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(b) in respect of a covenant or provision hereof which under Article XIII cannot be modified or amended without the consent of the Noteholder of each Outstanding Note.
Upon any such waiver, such default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, for every purpose of this Indenture; but no such waiver will extend to any subsequent or other default or impair any right consequent thereon.
| Section 8.16. | Sale of Trust Estate. |
(a) The power to effect any Sale of any portion of the Trust Estate shall not be exhausted by any one or more Sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold or all amounts payable on the Notes and under this Indenture with respect thereto shall have been paid. The Indenture Trustee may from time to time postpone any public Sale by public announcement made at the time and place of such Sale.
(b) Unless the Majority Noteholders of all Outstanding Notes have otherwise provided its written consent to the Indenture Trustee and the Indenture Trustee has provided prior notice of such Sale as soon as is reasonably practicable to each Derivative Counterparty, at any public Sale of all or any portion of the Trust Estate at which a minimum bid equal to or greater than all amounts due to the Indenture Trustee hereunder and the entire amount which would be payable to the Noteholders in full payment thereof in accordance with Section 8.6 , on the Payment Date next succeeding the date of such sale, has not been received, the Indenture Trustee shall prevent such sale by bidding an amount at least $1.00 more than the highest other bid in order to preserve the Trust Estate.
(c) In connection with a Sale of all or any portion of the Trust Estate:
(i) any of the Noteholders may bid for and purchase the property offered for Sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability;
(ii) the Indenture Trustee may bid for and acquire the property offered for Sale in connection with any Sale thereof;
(iii) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Trust Estate in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Trust Estate in connection with a Sale thereof, and to take all action necessary to effect such Sale; and
(v) no purchaser or transferee at such a Sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
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(d) Notwithstanding anything to the contrary in this Indenture, if an Event of Default has occurred and is continuing and the Notes have become due and payable or have been declared due and payable and such declaration and its consequences have not been rescinded and annulled, any proceeds received by the Indenture Trustee with respect to a foreclosure, sale or other realization resulting from a transfer of the assets of the Trust Estate shall be allocated in accordance with Section 4.5(a)(2) hereof. The amount, if any, so allocated to the Issuer shall be paid by the Indenture Trustee to or to the order of the Issuer free and clear of the Adverse Claim of this Indenture and the Noteholders shall have no claim or rights to the amount so allocated.
| Section 8.17. | Undertaking for Costs. |
All parties to this Indenture agree, and each Noteholder by its acceptance thereof will be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section will not apply to any suit instituted by the Indenture Trustee, to any suit instituted by any Noteholder or group of Noteholders holding in the aggregate more than 25% of the Note Balance of the Outstanding Notes of each Series (measured by Voting Interests) to which the suit relates, or to any suit instituted by any Noteholders for the enforcement of the payment of the principal of or interest on any Note on or after the applicable Stated Maturity Date expressed in such Note.
| Section 8.18. | Waiver of Stay or Extension Laws. |
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
| Section 8.19. | Notice of Waivers. |
Promptly after any waiver of a Facility Early Amortization Event pursuant to Section 4.12 , or any rescission or annulment of a declaration of acceleration pursuant to Section 8.2(c) , or any waiver of past default pursuant to Section 8.15 , the Issuer will notify all related Note Rating Agencies in writing.
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Article IX
The Issuer
| Section 9.1. | Representations and Warranties of Issuer. |
The Issuer hereby makes the following representations and warranties for the benefit of the Servicer, the Indenture Trustee, the Noteholders, any Derivative Counterparty, any Supplemental Credit Enhancement Provider and any Liquidity Provider. The representations shall be made as of the execution and delivery of this Indenture and of each Indenture Supplement, and as of each Funding Date and as of each date of Grant and shall survive the Grant of a Security Interest in the Receivables to the Indenture Trustee. Notwithstanding the foregoing, the breach of any representation or warranty in this Section 9.1 shall not be waived without the consent of the Majority Noteholders of all Outstanding Notes.
(a) Organization and Good Standing . The Issuer is duly organized and validly existing as a statutory trust and is in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. The Issuer has appointed the Administrator as the Issuer’s agent where notices and demands to or upon the Issuer in respect of the Notes of this Indenture may be served.
(b) Power and Authority . The Issuer has and will continue to have the power and authority to execute and deliver this Indenture and the other Transaction Documents to which it is or will be a party, and to carry out their respective terms; the Issuer had and has had at all relevant times and now has full power, authority and legal right to acquire, own, hold and Grant a Security Interest in the Trust Estate and has duly authorized such Grant to the Indenture Trustee by all necessary action; and the execution, delivery and performance by the Issuer of this Indenture and each of the other Transaction Documents to which it is a party has been duly authorized by all necessary action of the Issuer.
(c) Valid Transfers; Binding Obligations . This Indenture creates a valid Grant of a Security Interest in the Receivables which has been validly perfected and is a first priority Security Interest under the UCC, and such other portion of the Collateral as to which a Security Interest may be granted under the UCC, which security interest is enforceable against creditors of and purchasers from the Issuer, subject to Applicable Law. Each of the Transaction Documents to which the Issuer is a party constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally or by general equity principles.
(d) No Violation . The execution and delivery by the Issuer of this Indenture and each other Transaction Document to which it is a party and the consummation of the transactions contemplated by this Indenture and the other Transaction Documents and the fulfillment of the terms of this Indenture and the other Transaction Documents do not conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under the Organizational Documents of the Issuer or any indenture, agreement
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or other material instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Indenture), or violate any law, order, judgment, decree, writ, injunction, award, determination, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer or its properties, which breach, default, conflict, Adverse Claim or violation could reasonably be expected to have an Adverse Effect.
(e) No Proceedings . There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to the Issuer’s knowledge, threatened, against or affecting the Issuer: (i) asserting the invalidity of this Indenture, the Notes or any of the other Transaction Documents to which the Issuer is a party, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Indenture, or any of the other Transaction Documents, (iii) seeking any determination or ruling which could reasonably be expected to have an Adverse Effect or could reasonably be expected to materially and adversely affect the condition (financial or otherwise), business or operations of the Issuer, or (iv) relating to the Issuer and which could reasonably be expected to adversely affect the United States federal income tax attributes of the Notes.
(f) No Subsidiaries . The Issuer has no subsidiaries.
(g) All Tax Returns True, Correct and Timely Filed . All tax returns required to be filed by the Issuer in any jurisdiction have in fact been filed and all taxes, assessments, fees and other governmental charges upon the Issuer or upon any of its properties, and all income of franchises, shown to be due and payable on such returns have been paid except for any such taxes, assessments, fees and charges the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Issuer had established adequate reserves in accordance with GAAP. All such tax returns were true and correct in all material respects and the Issuer knows of no proposed additional tax assessment against it that could reasonably be expected to have a material adverse effect upon the ability of the Issuer to perform its obligations hereunder nor of any basis therefor. The provisions for taxes on the books of the Issuer are in accordance with GAAP.
(h) No Restriction on Issuer Affecting its Business . The Issuer is not a party to any contract or agreement, or subject to any charter or other restriction, which materially and adversely affects its business, and the Issuer has not agreed or consented to cause any of its assets or properties to become subject to any Adverse Claim other than the Security Interest or any Permitted Liens.
(i) Title to Receivables . As represented by the Depositor in the Receivables Pooling Agreement, immediately prior to the Grant thereof to the Indenture Trustee as contemplated by this Indenture, the Issuer had good and marketable title to each Receivable, free and clear of all Adverse Claims other than any Permitted Liens and rights of others.
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(j) Perfection of Security Interest . All filings and recordings that are necessary to perfect the interest of the Issuer in the Receivables and such other portion of the Trust Estate as to which a sale or security interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect. All filings and recordings against the Issuer required to perfect the Security Interest of the Indenture Trustee in such Receivables and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect. Other than the Security Interest granted to the Indenture Trustee pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted a Security Interest in, or otherwise conveyed any of the Receivables or any other Collateral. The Issuer has not authorized the filing of and is not aware of any financing statement filed against the Issuer that includes a description of collateral covering the Receivables other than (1) any financing statement related to the Security Interest granted to the Indenture Trustee hereunder or (2) that has been terminated.
(k) Notes Authorized, Executed, Authenticated, Validly Issued and Outstanding . The Notes have been duly and validly authorized and, when duly and validly executed and authenticated by the Indenture Trustee in accordance with the terms of this Indenture and delivered to and paid for by each purchaser as provided herein, will be validly issued and outstanding and entitled to the benefits hereof.
(l) Location of Chief Executive Office and Records . The principal place of business and chief executive office of the Issuer, and the office where Issuer maintains all of its corporate records, is located at the offices of the Administrator at 1345 Avenue of the Americas, New York, NY 10105, provided that, at any time after the Closing Date, upon thirty (30) days’ prior written notice to the Indenture Trustee and the Noteholders, the Issuer may relocate its jurisdiction of formation, and/or its principal place of business and chief executive office, and/or the office where it maintains all of its records, to another location or jurisdiction, as the case may be, within the United States to the extent that the Issuer shall have taken all actions necessary or reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to further perfect or evidence the rights, claims or security interests of the Indenture Trustee and the Noteholders under any of the Transaction Documents.
(m) Solvency . The Issuer (i) is not insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code); (ii) is able to pay its debts as they become due; and (iii) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage. The Issuer is not Granting the Trust Estate to the Indenture Trustee with the intent to defraud, delay or hinder any of its creditors.
(n) Separate Identity . The Issuer is operated as an entity separate from the Receivables Seller, the Depositor and the Servicer. The Issuer has complied with all covenants set forth in its Organizational Documents.
(o) Name . The legal name of the Issuer is as set forth in this Indenture and the Issuer does not use and has not used any other trade names, fictitious names, assumed names or “doing business as” names, other than “Nationstar Servicer Advance Receivables Trust 2013-CS”.
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(p) Governmental Authorization . Other than the filing of the financing statements (or financing statement amendments) required hereunder or under any other Transaction Document, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for (i) the due execution and delivery by Issuer of this Indenture and each other Transaction Document to which it is a party and (ii) the performance of its obligations hereunder and thereunder.
(q) Accuracy of Information . All information heretofore furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders for purposes of or in connection with this Indenture, any of the other Transaction Documents or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders will be, true and accurate in every material respect on the date such information is stated or certified and does not and will not contain any material misstatement of fact or omit, taking into account all other information provided, to state a material fact or any fact necessary to make the statements contained therein not misleading.
(r) Use of Proceeds . No proceeds of any issuance of Notes or funding under a VFN hereunder will be used for a purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(s) Investment Company . The Issuer is not required to be registered as an “investment company” within the meaning of the Investment Company Act, or any successor statute.
(t) Compliance with Law . The Issuer has complied in all material respects with all Applicable Laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject.
(u) Investments . The Issuer does not own or hold, directly or indirectly (i) any capital stock or equity security of, or any equity interest in, any Person or (ii) any debt security or other evidence of indebtedness of any Person.
(v) Transaction Documents . The Receivables Pooling Agreement is the only agreement pursuant to which the Issuer directly or indirectly purchases and receives contributions of Receivables from the Depositor and the Receivables Pooling Agreement represents the only agreement between the Depositor and the Issuer relating to the transfer of the Receivables.
(w) Limited Business . Since its formation the Issuer has conducted no business other than entering into and performing its obligations under the Transaction Documents to which it is a party, and such other activities as are incidental to the foregoing. The Transaction Documents to which it is a party, and any agreements entered into in connection with the transactions that are permitted thereby, are the only agreements to which the Issuer is a party.
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| Section 9.2. | Liability of Issuer; Indemnities. |
(a) Obligations . The Issuer shall be liable in accordance with this Indenture only to the extent of the obligations in this Indenture specifically undertaken by the Issuer in such capacity under this Indenture and shall have no other obligations or liabilities hereunder. The Issuer shall indemnify, defend and hold harmless the Indenture Trustee (in all its capacities), the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar, the Noteholders, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Trust Estate (each an “ Indemnified Party ”) from and against any taxes that may at any time be asserted against the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar or the Trust Estate with respect to the transactions contemplated in this Indenture or any of the other Transaction Documents, including, without limitation, any sales, gross receipts, general corporation, tangible or intangible personal property, privilege or license taxes (but not including any taxes asserted with respect to, and as of the date of, the transfer of the Receivables to the Trust Estate, the issuance and original sale of the Notes of any Class, or asserted with respect to ownership of the Receivables, or federal, state or local income or franchise taxes or any other tax, or other income taxes arising out of payments on the Notes of any Class, or any interest or penalties with respect thereto or arising from a failure to comply therewith) and costs and expenses in defending against the same.
(b) Notification and Defense . Promptly after any Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Issuer under this Section 9.2 , the Indemnified Party shall notify the Issuer and the Administrator in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Issuer shall not relieve the Issuer from any liability which it may have hereunder or otherwise, except to the extent that the Issuer is prejudiced by such failure so to notify the Issuer. The Issuer will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, and, after notice from the Issuer to such Indemnified Party that the Issuer wishes to assume the defense of any such action, the Issuer will not be liable to such Indemnified Party under this Section 9.2 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Indemnified Party and the Issuer, and the Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Issuer, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Issuer and such Indemnified Party, (ii) the Issuer shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Issuer has authorized the employment of counsel for the Indemnified Party at the expense of the Issuer; then, in any such event, such Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Issuer; provided , however , that the Issuer shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of
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attorneys at any time for all Indemnified Parties. Each Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Issuer in the defense of any such action or claim. The Issuer shall not, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Issuer has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Issuer, without interest.
| Section 9.3. | Merger or Consolidation, or Assumption of the Obligations, of the Issuer. |
Any Person (a) into which the Issuer may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which the Issuer shall be a party, or (c) which may succeed to all or substantially all of the business or assets of the Issuer, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Issuer under this Indenture, shall be the successor to the Issuer under this Indenture without the execution or filing of any document or any further act on the part of any of the parties to this Indenture, except that if the Issuer in any of the foregoing cases is not the surviving entity, then the surviving entity shall execute an agreement of assumption to perform every obligation of the Issuer under the Transaction Documents, including Derivative Agreements entered into by the Issuer or the Indenture Trustee on its behalf, and the surviving entity shall have taken all actions necessary or reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to further perfect or evidence the rights, claims or security interests of the Issuer, the Noteholders or the Indenture Trustee under any of the Transaction Documents. The Issuer (i) shall provide notice of any merger, consolidation or succession pursuant to this Section to each Note Rating Agency that has rated any then-Outstanding Notes, the Indenture Trustee, each Derivative Counterparty and the Noteholders, (ii) for so long as the Notes are outstanding, shall receive from each Note Rating Agency rating Outstanding Notes a letter to the effect that such merger, consolidation or succession will not result in a qualification, downgrading or withdrawal of the then current ratings assigned by such Note Rating Agency to any Outstanding Notes, (iii) shall obtain an Opinion of Counsel addressed to the Indenture Trustee and reasonably satisfactory to the Indenture Trustee, that such merger, consolidation or succession complies with the terms hereof and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Indenture with respect to corporate matters, enforceability of Transaction Documents against the Issuer, and the grant by the Issuer of a valid security interest in the Aggregate Receivables to the Indenture Trustee and the perfection of such security interest and related matters, (iv) shall receive from the Majority Noteholders of all Outstanding Notes and each Derivative Counterparty their prior written consent to such merger, consolidation or succession, absent which consent, which may not be unreasonably withheld or delayed, the Issuer shall not become a party to such merger, consolidation or succession and (v) shall obtain an Issuer Tax Opinion.
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| Section 9.4. | Issuer May Not Own Notes. |
The Issuer may not become the owner or pledgee of one or more of the Notes (other than any “Retained Notes” (as defined in any Indenture Supplement)). Any Person Controlling, Controlled by or under common Control with the Issuer may, in its individual or any other capacity, become the owner or pledgee of one or more Notes with the same rights as it would have if it were not an Affiliate of the Issuer, except as otherwise specifically provided in the definition of the term “Noteholder.” The Notes so owned by or pledged to such Controlling, Controlled or commonly Controlled Person shall have an equal and proportionate benefit under the provisions of this Indenture, without preference, priority or distinction as among any of the Notes, except as set forth herein with respect to, among other things, rights to vote, consent or give directions to the Indenture Trustee as a Noteholder.
| Section 9.5. | Covenants of Issuer. |
(a) Organizational Documents; Unanimous Consent . The Issuer hereby covenants that its Organizational Documents provide that they may not be amended or modified without (i) notice to the Indenture Trustee and each Note Rating Agency that is at that time rating any Outstanding Notes, and (ii) the prior written consent of the Administrative Agent, unless and until this Indenture shall have been satisfied, discharged and terminated. The Issuer will at all times comply with the terms of its Organizational Documents. In addition, notwithstanding any other provision of this Section and any provision of law, the Issuer shall not do any of the following without the affirmative vote of its Independent Manager as such term is defined in the Issuer’s Organizational Documents: (A) dissolve or liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to the institution of bankruptcy or insolvency proceedings against it, (C) file a petition seeking, or consent to, reorganization or relief under any applicable federal, state or foreign law relating to bankruptcy or similar matters, (D) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or a substantial part of its property, (E) make any assignment for the benefit of creditors, (F) admit in writing its inability to pay its debts generally as they become due, or (G) take any action in furtherance of the actions set forth in clauses (A) through (F) above; or (1) merge or consolidate with or into any other person or entity or sell or lease its property or all or substantially all of its assets to any person or entity; or (2) modify any provision of its Organizational Documents.
(b) Preservation of Existence . The Issuer hereby covenants to do or cause to be done all things necessary on its part to preserve and keep in full force and effect its rights and franchises as a statutory trust under the laws of the State of Delaware, and to maintain each of its licenses, approvals, permits, registrations or qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which, individually or in the aggregate, would not have an Adverse Effect.
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(c) Compliance with Laws . The Issuer hereby covenants to comply in all material respects with all applicable laws, rules and regulations and orders of any governmental authority, the noncompliance with which would have an Adverse Effect or a material adverse effect on the business, financial condition or results of operations of the Issuer.
(d) Payment of Taxes . The Issuer hereby covenants to pay and discharge promptly or cause to be paid and discharged promptly all taxes, assessments and governmental charges or levies imposed upon the Issuer or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default, provided that the Issuer shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Issuer shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(e) Investments . The Issuer hereby covenants that it will not, without the prior written consent of the Majority Noteholders of all Outstanding Notes, acquire or hold any indebtedness for borrowed money of another person, or any capital stock, debentures, partnership interests or other ownership interests or other securities of any Person, other than Permitted Investments and Sinking Fund Permitted Investments as provided hereunder and the Receivables acquired under, the Purchase Agreement, the Receivables Sale Agreement and the Receivables Pooling Agreement.
(f) Keeping Records and Books of Account . The Issuer hereby covenants and agrees to maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Receivables in the event of the destruction or loss of the originals thereof) and keep and maintain, all documents, books, records and other information reasonably necessary or advisable for the collection of all Receivables (including, without limitation, records adequate to permit the daily identification of all collections with respect to, and adjustments of amounts payable under, each Receivable). The Administrator or a Sub-Administrator on behalf of the Administrator shall ensure compliance with this Section 9.5(f) .
(g) Employee Benefit Plans . The Issuer hereby covenants and agrees to comply in all material respects with the provisions of ERISA, the Code, and all other applicable laws, and the regulations and interpretations thereunder to the extent applicable, with respect to each Employee Benefit Plan.
(h) No Release . The Issuer shall not take any action and shall use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s covenants or obligations under any Transaction Document, Designated Servicing Agreement or other document, instrument or agreement included in the Trust Estate, or which would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such document, instrument or agreement.
(i) Separate Identity . The Issuer acknowledges that the Secured Parties are entering into the transactions contemplated by this Indenture in reliance upon the Issuer’s identity as a legal entity that is separate from the Receivables Seller, the Depositor or the Servicer (each, a
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“ Facility Entity ”). Therefore, from and after the date of execution and delivery of this Indenture, the Issuer shall take all reasonable steps to maintain the Issuer’s identity as a separate legal entity and to make it manifest to third parties that the Issuer is an entity with assets and liabilities distinct from those of each Facility Entity and not a division of a Facility Entity.
(j) Compliance with and Enforcement of Transaction Documents . The Issuer hereby covenants and agrees to comply in all respects with the terms of, employ the procedures outlined in and enforce the obligations of the parties to all of the Transaction Documents to which the Issuer is a party, and take all such action to such end as may be from time to time reasonably requested by the Indenture Trustee, and/or the Majority Noteholders of all Outstanding Notes, maintain all such Transaction Documents in full force and effect and make to the parties thereto such reasonable demands and requests for information and reports or for action as the Issuer is entitled to make thereunder and as may be from time to time reasonably requested by the Indenture Trustee.
(k) No Sales, Liens, Etc. Against Receivables and Trust Property . The Issuer hereby covenants and agrees, except for releases specifically permitted hereunder, not to sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist, any Adverse Claim (other than the Security Interest created hereby or any Permitted Liens) upon or with respect to, any Receivables or Trust Property, or any interest in either thereof, or upon or with respect to any Trust Account, or assign any right to receive income in respect thereof. The Issuer shall promptly, but in no event later than two (2) Business Days after a Responsible Officer has obtained actual knowledge thereof, notify the Indenture Trustee of the existence of any Adverse Claim on any Receivables or Trust Estate, and the Issuer shall defend the right, title and interest of each of the Issuer and the Indenture Trustee in, to and under the Receivables and Trust Estate, against all claims of third parties.
(l) No Change in Business . The Issuer covenants that it shall not make any change in the character of its business.
(m) No Change in Name, Etc.; Preservation of Security Interests The Issuer covenants that it shall not make any change to its company name, or use any trade names, fictitious names, assumed names or “doing business as” names. The Issuer will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the interest of the Issuer in all of the Receivables and such other portion of the Trust Estate as to which a sale or Security Interest may be perfected by filing under the UCC, and the Security Interest of the Indenture Trustee in all of the Receivables and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, are fully protected.
(n) No Institution of Insolvency Proceedings . The Issuer covenants that it shall not institute Insolvency Proceedings with respect to the Issuer or any Affiliate thereof or consent to the institution of Insolvency Proceedings against the Issuer or any Affiliate thereof or take any action in furtherance of any such action, or seek dissolution or liquidation in whole or in part of the Issuer or any Affiliate thereof.
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(o) Money for Note Payments To Be Held in Trust . The Indenture Trustee shall cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(i) hold all sums held by it in respect of payments on Notes in trust for the benefit of the Noteholders entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment; and
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any Paying Agent to pay, to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
(p) Protection of Trust Estate . The Issuer shall from time to time execute and deliver to the Indenture Trustee and the Administrative Agent all such supplements and amendments hereto (a copy of which shall be provided to the Noteholders) and all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as is necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the Security Interest or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of, or protect the validity of any Grant made or to be made by this Indenture;
(iv) enforce any of the Receivables or, where appropriate, any Security Interest in the Trust Estate and the proceeds thereof, or
(v) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders therein against the claims of all persons and parties.
(q) Investment Company Act . The Issuer shall conduct its operations in a manner which shall not subject it to registration as an “investment company” under the Investment Company Act.
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(r) Payment of Review and Renewal Fees . The Issuer shall pay or cause to be paid to each Note Rating Agency that has rated Outstanding Notes, the annual rating review and renewal fee in respect of such Notes, if any.
(s) Reserved .
(t) No Subsidiaries . The Issuer shall not form or hold interests in any subsidiaries.
(u) No Indebtedness . The Issuer shall not incur any indebtedness other than the Notes, and shall not guarantee any other Person’s indebtedness or incur any capital expenditures.
Article X
The Administrator and Servicer
| Section 10.1. | Representations and Warranties of Administrator. |
The Administrator hereby makes the following representations and warranties for the benefit of the Indenture Trustee, as of the Closing Date, and as of the date of each Grant of Receivables to the Indenture Trustee pursuant to this Indenture.
(a) Organization and Good Standing . The Administrator is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. The Administrator is duly qualified to do business and is in good standing (or is exempt from such requirements) and has obtained all necessary licenses and approvals in each jurisdiction in which the failure so to qualify, or to obtain such licenses or approvals, would have an Adverse Effect.
(b) Power and Authority; Binding Obligation . The Administrator has the power and authority to make, execute, deliver and perform its obligations under this Indenture and any related Indenture Supplement and each other Transaction Document to which it is a party and all of the transactions contemplated hereunder and thereunder, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party; this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of the Administrator, enforceable against the Administrator in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws.
(c) No Violation . The execution and delivery of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party by the Administrator and its performance and compliance with the terms of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party will not violate (i) the Administrator’s Charter, Bylaws or other organizational documents or (ii) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result
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in the breach of, any material contract, agreement or other instrument to which the Administrator is a party or which may be applicable to the Administrator or any of its assets or (iii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to the Administrator or their respective properties.
(d) No Proceedings . No proceedings, investigations or litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of the Administrator is threatened against the Administrator, nor is there any such proceeding, investigation or litigation currently pending, nor, to the knowledge of the Administrator, is any such proceeding, investigation or litigation threatened against the Administrator with respect to this Indenture, any Indenture Supplement or any other Transaction Document or the transactions contemplated hereby or thereby that could reasonably be expected to have an Adverse Effect.
(e) No Consents Required . No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Administrator of or compliance by the Administrator with this Indenture, any Indenture Supplement or the consummation of the transactions contemplated by this Indenture, any Indenture Supplement except for consents, approvals, authorizations and orders which have been obtained.
(f) Information . No written statement, report or other document furnished or to be furnished pursuant to this Indenture or any other Transaction Document to which it is a party by the Administrator contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
(g) Default . The Administrator is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
| Section 10.2. | Representations and Warranties of Nationstar. |
Nationstar, as Servicer and as a Subservicer, hereby makes the following representations and warranties for the benefit of the Indenture Trustee, the Issuer and the Administrator as of the Closing Date, and as of the date of each Grant of Receivables to the Indenture Trustee, the Issuer and the Administrator pursuant to this Indenture.
(a) Organization and Good Standing . Nationstar is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. Nationstar is duly qualified to do business and is in good standing (or is exempt from such requirements) and has obtained all necessary licenses and approvals in each jurisdiction in which the failure so to qualify, or to obtain such licenses or approvals, would have an Adverse Effect.
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(b) Power and Authority; Binding Obligation . Nationstar has the power and authority to make, execute, deliver and perform its obligations under this Indenture and any related Indenture Supplement and each other Transaction Document to which it is a party and all of the transactions contemplated hereunder and thereunder, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party; this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of Nationstar, enforceable against Nationstar in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws.
(c) No Violation . The execution and delivery of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party by Nationstar and its performance and compliance with the terms of this Indenture and each Indenture Supplement and each other Transaction Document to which it is a party will not violate (i) Nationstar’s Charter, Bylaws or other organizational documents or (ii) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which Nationstar is a party or which may be applicable to Nationstar or any of its assets or (iii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to the Servicer or their respective properties.
(d) No Proceedings . No proceedings, investigations or litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of Nationstar is threatened against Nationstar, nor is there any such proceeding, investigation or litigation currently pending, nor, to the knowledge of Nationstar, is any such proceeding, investigation or litigation threatened against Nationstar with respect to this Indenture, any Indenture Supplement or any other Transaction Document or the transactions contemplated hereby or thereby that could reasonably be expected to have an Adverse Effect.
(e) No Consents Required . No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by Nationstar of or compliance by Nationstar with this Indenture, any Indenture Supplement or the consummation of the transactions contemplated by this Indenture, any Indenture Supplement except for consents, approvals, authorizations and orders which have been obtained.
(f) Information . No written statement, report or other document furnished or to be furnished pursuant to this Indenture or any other Transaction Document to which it is a party by Nationstar contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
(g) Default . Nationstar is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of Nationstar to perform its duties under this Indenture or any Indenture Supplement, or with
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respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
| Section 10.3. | Covenants of Administrator and Servicer. |
(a) Amendments to Designated Servicing Agreements . Each Servicer hereby covenants and agrees not to amend any Designated Servicing Agreements under which it is Servicer except for such amendments that would have no adverse effect upon the collectability or timing of payment of any of the Aggregate Receivables or the performance of its, the Depositor’s or the Issuer’s obligations under the Transaction Documents or otherwise adversely affect the interest of the Noteholders, any Derivative Counterparty, any Supplement Credit Enhancement Provider or any Liquidity Provider, without the prior written consent of the Majority Noteholders of all Outstanding Notes, each Derivative Counterparty and of each Supplemental Credit Enhancement Provider and each Liquidity Provider (to the extent the Issuer has knowledge of such Liquidity Provider). The Administrator or the Sub-Administrator on behalf of the Administrator shall, within five (5) Business Days following the effectiveness of such amendments, deliver to the Indenture Trustee copies of all such amendments.
(b) Maintenance of Security Interest . The Administrator shall from time to time, at its own expense, file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the Security Interest of the Indenture Trustee (on behalf of itself, the Noteholders, any Derivative Counterparty, any Supplemental Credit Enhancement Provider and any Liquidity Provider) in all of the Aggregate Receivables and the other Collateral is fully protected in accordance with the UCC and that the Security Interest of the Indenture Trustee in the Receivables and the rest of the Trust Estate remains perfected and of first priority. The Administrator shall take all steps necessary to ensure compliance with Section 9.5(m) .
(c) Regulatory Reporting Compliance . The Servicer shall, on or before the last Business Day of the fifth month following the end of each of the Servicer’s fiscal years (December 31), beginning with the fiscal year ending in 2013, deliver to the Indenture Trustee and the Interested Noteholders, as applicable, a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers, an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB or similar review conducted on the Servicer by its accountants and such other reports as the Servicer may prepare relating to its servicing functions as the Servicer.
(d) Compliance with Designated Servicing Agreements . The Servicer shall not fail to comply with its obligations as the servicer under each of the Designated Servicing Agreements, which failure would have a material adverse effect on the interests of the Noteholders under this Indenture. The Servicer shall immediately notify the Indenture Trustee of any Event of Default or its receipt of a notice of termination under any Designated Servicing Agreement. The Indenture Trustee shall forward any such notification to each Noteholder.
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(e) Compliance with Obligations . Each of the Administrator and the Servicer shall comply with all their other obligations and duties set forth in this Indenture and any other Transaction Document. The Administrator shall not permit the Issuer to engage in activities that could violate its covenants in this Indenture. Notwithstanding any Subservicing Agreement, any of the provisions of this Indenture relating to agreements or arrangements between the Servicer and a Subservicer or reference to actions taken through a Subservicer or otherwise, the Servicer shall remain obligated and primarily liable to the Indenture Trustee and the Noteholders for the servicing and administering of the Mortgage Loans in accordance with the provisions of this Indenture without diminution of such obligation or liability by virtue of such Subservicing Agreements or arrangements or by virtue of indemnification from a Subservicer and to the same extent and under the same terms and conditions as if the Servicer alone were servicing and administering the Mortgage Loans. The Servicer shall be entitled to enter into any agreement with a Subservicer for indemnification of the Servicer by such Subservicer and nothing contained in this Indenture shall be deemed to limit or modify such indemnification.
(f) Reimbursement of Advances and Payment of Deferred Servicing Fees upon Transfer of Servicing; Clean-up Calls . In connection with any sale or transfer of servicing, in whole or in part, under any Designated Servicing Agreement, the Servicer shall cause the Subservicer to collect reimbursement of all outstanding Advances and payment of all outstanding Deferred Servicing Fees under such Designated Servicing Agreement prior to transferring the servicing under such Designated Servicing Agreement. The Servicer agrees that prior to or concurrently with its exercise of any clean-up call, redemption or repurchase right under the related Designated Servicing Agreement it shall ensure that all outstanding Advances and unpaid Deferred Servicing Fees due and owing under the related Designated Servicing Agreement shall be paid in full, as certified to the Indenture Trustee.
(g) Notice of Unmatured Defaults, Servicer Termination Events and Subservicer Termination Events . The Servicer shall provide written notice to the Indenture Trustee and each VFN Noteholder of any Unmatured Default, Servicer Termination Event or Subservicer Termination Event, immediately following the receipt by a Responsible Officer of the Servicer of notice, or the obtaining by a Responsible Officer of the Servicer of actual knowledge, of such Unmatured Default, Servicer Termination Event or Subservicer Termination Event.
(h) Reimbursement of Nonrecoverable Advances and Nonrecoverable Deferred Servicing Fees for Receivables other than Loan-Level Receivables . The Servicer shall cause the Subservicer to withdraw Advance Reimbursement Amounts related to Receivables other than Loan-Level Receivables from the appropriate Custodial Account to reimburse any Advance or pay any Deferred Servicing Fee which the Subservicer shall have determined will not be recoverable from proceeds of the related Mortgage Loan, promptly after making such determination of non-recoverability.
(i) Administrator Instructions and Functions Performed by Issuer . The Administrator shall perform the administrative or ministerial functions specifically required of the Issuer pursuant to this Indenture and any other Transaction Document.
(j) Reserved .
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(k) Adherence to Servicing Standards . Unless otherwise consented to by the Administrative Agent and the Administrator (the following collectively, the “ Servicing Standards ”):
(i) the Servicer shall continue to make Advances and seek reimbursement of Advances and payment of Deferred Servicing Fees in accordance with the terms of the related Designated Servicing Agreement;
(ii) to the extent permitted by the related Designated Servicing Agreement, the Servicer shall apply all Advance Reimbursement Amounts on a “first-in, first out” or “FIFO” basis such that the Advances of a particular type that were disbursed first in time or the Deferred Servicing Fees of a particular type that were accrued first in time will be reimbursed or paid prior to the Advances of the same type with respect to that Mortgage Loan that were disbursed later in time or the Deferred Servicing Fees with respect to that Mortgage Loan that were accrued later in time;
(iii) the Servicer shall identify on its systems and in its records that the Issuer is the owner of each Receivable and that such Receivable has been pledged to the Indenture Trustee;
(iv) the Servicer shall maintain systems and operating procedures necessary to comply with all of the terms of the Transaction Documents;
(v) the Servicer shall cooperate with the Indenture Trustee acting as Calculation Agent in its duties set forth in the Transaction Documents;
(vi) the Servicer shall cooperate with the Verification Agent in its duties set forth in the Transaction Documents;
(vii) the Servicer shall maintain, or cause to be maintained, accurate records with respect to the Mortgage Loans in each Mortgage Pool reflecting the status of all Judicial P&I Advances, Non-Judicial P&I Advances, Judicial Corporate Advances, Non-Judicial Corporate Advances, Judicial Escrow Advances, Non-Judicial Escrow Advances, Judicial Deferred Servicing Fees and Non-Judicial Deferred Servicing Fees for such Mortgage Pool, including the cumulative recoveries related to such P&I Advances, Corporate Advances, Escrow Advances and Deferred Servicing Fees; and
(viii) the Servicer shall service all Mortgage Loans related to all Mortgage Pools in accordance with the terms of the related Servicing Agreement without regard to any ownership of any securities issued by the related Mortgage Pool.
Notwithstanding the foregoing or anything otherwise herein to the contrary, any Subservicer may perform any of the tasks or duties described above, herein or otherwise under any applicable Designated Servicing Agreement so long as the Administrative Agent shall have consented to the related subservicing arrangement in its sole and absolute discretion.
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(l) Loan-Level Receivables . For Loan-Level Receivables, the Servicer shall institute and implement a policy of reimbursing Escrow Advances and Corporate Advances before P&I Advances upon liquidation of the related Mortgage Loan, under each related Designated Servicing Agreement to the extent permitted by the related Designated Servicing Agreement. If Receivables attributable to P&I Advances or Deferred Servicing Fees are Loan-Level Receivables under a Designated Servicing Agreement but Corporate Advances and Escrow Advances are not, the Servicer shall effect reimbursement for Loan-Level Receivables before Receivables that are not Loan-Level Receivables to the extent permitted by the related Designated Servicing Agreement.
(m) Notice of Termination Event under any Derivative Agreement . The Administrator shall provide notice to the Indenture Trustee (which shall provide notice to any applicable Noteholders as soon as reasonably practicable) of any termination event under any Derivative Agreement.
| Section 10.4. | Liability of Administrator; Indemnities. |
(a) Obligations . The Administrator shall indemnify, defend and hold harmless the Indenture Trustee, the Note Registrar, the Custodian, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, the Owner Trustee, each Derivative Counterparty and the Noteholders (each an “ Administrator Indemnified Party ”) from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability (“ Administrator Indemnified Losses ”) arose out of, and was imposed upon, the Indenture Trustee, the Note Registrar, the Custodian, the Owner Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, each Derivative Counterparty or any Noteholder (by reason of a violation of law, negligence, willful misfeasance or bad faith of the Administrator (or of the Receivables Seller, the Depositor or of the Issuer as a result of a direction, act or omission by the Administrator), in the performance of their respective obligations under this Indenture and the other Transaction Documents; provided that any indemnification amounts payable by the Administrator, as the case may be, to the Owner Trustee hereunder shall not be duplicative of any indemnification amount paid by the Administrator to the Owner Trustee in accordance with the Trust Agreement or under the Administration Agreement. Nationstar shall be responsible for all Administrator Indemnified Losses arising from the Closing Date through the Effective Date that are the obligation of Nationstar, as administrator prior to the Effective Date. Advance Purchaser shall be responsible for all Administrator Indemnified Losses arising on and after the Effective Date that are the obligation of the Administrator.
(b) Notification and Defense . Promptly after any Administrator Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Administrator (such party, as the case may be, being referred to herein as the “ Administrator Indemnifying Party ”) under this Section 10.4 , the Administrator Indemnified Party shall notify the Administrator Indemnifying Party in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Administrator Indemnifying Party shall not relieve the Administrator Indemnifying Party from any liability which it may have hereunder or otherwise, except to the extent that the Administrator Indemnifying Party is prejudiced by such failure so to notify the Administrator Indemnifying Party. The Administrator Indemnifying
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Party will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Administrator Indemnified Party, and, after notice from the Administrator Indemnifying Party to such Administrator Indemnified Party that the Administrator Indemnifying Party wishes to assume the defense of any such action, the Administrator Indemnifying Party will not be liable to such Administrator Indemnified Party under this Section 10.4 for any legal or other expenses subsequently incurred by such Administrator Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Administrator Indemnified Party and the Administrator Indemnifying Party, and the Administrator Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Administrator Indemnifying Party, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Administrator Indemnifying Party and such Administrator Indemnified Party, (ii) the Administrator Indemnifying Party shall not have employed counsel reasonably satisfactory to the Administrator Indemnified Party to represent the Administrator Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Administrator Indemnifying Party has authorized the employment of counsel for the Administrator Indemnified Party at the expense of the Administrator Indemnifying Party; then, in any such event, such Administrator Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Administrator Indemnifying Party; provided , however , that the Administrator Indemnifying Party shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Administrator Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Administrator Indemnifying Party in the defense of any such action or claim. The Administrator Indemnifying Party shall not, without the prior written consent of any Administrator Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Administrator Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Administrator Indemnified Party, unless such settlement includes an unconditional release of such Administrator Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Administrator Indemnifying Party has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Administrator Indemnifying Party, without interest.
(d) Survival . The provisions of this Section shall survive the resignation or removal of the Indenture Trustee (in any of its capacities), the Calculation Agent, the Securities Intermediary and the Paying Agent and the termination of this Indenture.
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| Section 10.5. | Liability of Servicer; Indemnities. |
(a) Obligations . The Servicer shall indemnify, defend and hold harmless the Indenture Trustee, the Note Registrar, the Custodian, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, the Owner Trustee, each Derivative Counterparty and the Noteholders and in the case of Nationstar as Servicer, the Issuer and the Administrator (each a “ Servicer Indemnified Party ”) from and against any and all costs, expenses, losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability (“ Servicer Indemnified Losses ”) arose out of, and was imposed upon, the Indenture Trustee, the Note Registrar, the Custodian, the Owner Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Trust Estate, each Derivative Counterparty or any Noteholder by reason of a violation of law, negligence, willful misfeasance or bad faith of the Servicer or Subservicer, in the performance of their respective obligations under this Indenture and the other Transaction Documents or as servicer, subservicer or master servicer under the Designated Servicing Agreements, or by reason of the breach by the Servicer or Subservicer of any of its representations, warranties or covenants hereunder or under the Designated Servicing Agreements. Nationstar, in its capacity as Servicer, shall be responsible for all Servicer Indemnified Losses arising with respect to any Servicing Agreement from the Closing Date through the related MSR Transfer Date. Advance Purchaser, in its capacity as Servicer, shall be responsible for all Servicer Indemnified Losses arising with respect to any Servicing Agreement on and after the related MSR Transfer Date.
(b) Notification and Defense . Promptly after any Servicer Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Servicer (such party, as the case may be, being referred to herein as the “ Servicer Indemnifying Party ”) under this Section 10.5 , the Servicer Indemnified Party shall notify the Servicer Indemnifying Party in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Servicer Indemnifying Party shall not relieve the Servicer Indemnifying Party from any liability which it may have hereunder or otherwise, except to the extent that the Servicer Indemnifying Party is prejudiced by such failure so to notify the Servicer Indemnifying Party. The Servicer Indemnifying Party will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Servicer Indemnified Party, and, after notice from the Servicer Indemnifying Party to such Servicer Indemnified Party that the Servicer Indemnifying Party wishes to assume the defense of any such action, the Servicer Indemnifying Party will not be liable to such Servicer Indemnified Party under this Section 10.5 for any legal or other expenses subsequently incurred by such Servicer Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Servicer Indemnified Party and the Servicer Indemnifying Party, and the Servicer Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Servicer Indemnifying Party, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Servicer Indemnifying Party and such Servicer Indemnified Party, (ii) the Servicer Indemnifying Party shall not have employed counsel reasonably satisfactory to the Servicer
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Indemnified Party to represent the Servicer Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Servicer Indemnifying Party has authorized the employment of counsel for the Servicer Indemnified Party at the expense of the Servicer Indemnifying Party; then, in any such event, such Servicer Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Servicer Indemnifying Party; provided , however , that the Servicer Indemnifying Party shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Servicer Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Servicer Indemnifying Party in the defense of any such action or claim. The Servicer Indemnifying Party shall not, without the prior written consent of any Servicer Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Servicer Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Servicer Indemnified Party, unless such settlement includes an unconditional release of such Servicer Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses . Indemnification under this Section shall include, without limitation, reasonable fees and expenses of counsel and expenses of litigation. If the Servicer Indemnifying Party has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Servicer Indemnifying Party, without interest.
(d) Survival . The provisions of this Section shall survive the resignation or removal of the Indenture Trustee (in any of its capacities), the Calculation Agent, the Securities Intermediary and the Paying Agent and the termination of this Indenture.
| Section 10.6. | Merger or Consolidation, or Assumption of the Obligations, of the Administrator or the Servicer. |
Any Person (a) into which the Administrator or the Servicer may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which the Administrator or the Servicer shall be a party, or (c) which may succeed to all or substantially all of the business or assets of the Administrator or the Servicer, as the case may be, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Administrator or the Servicer, as applicable, under this Indenture, shall be the successor to the Administrator or the Servicer, as applicable, under this Indenture without the execution or filing of any paper or any further act on the part of any of the parties to this Indenture; provided , however , that (i) such merger, consolidation or conversion shall not cause a Target Amortization Event for any Series or a Facility Early Amortization Event, or an event which with notice, the passage of time or both would become a Target Amortization Event for any Series or a Facility Early Amortization Event, (ii) prior to any such merger, consolidation or conversion, the Administrator or the Servicer, as the case may be, shall have provided to the Indenture Trustee and the Noteholders a letter from each Note Rating Agency that rated Outstanding Notes indicating that such merger, consolidation or conversion will not result in the qualification,
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reduction or withdrawal of the then current ratings of the Outstanding Notes, and (iii) prior to any such merger, consolidation or conversion the Administrator shall have delivered to the Indenture Trustee an Opinion of Counsel to the effect that such merger, consolidation or conversion complies with the terms of this Indenture and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Indenture with respect to corporate matters and the enforceability of Transaction Documents against the Administrator or the Servicer, as the case may be, true sale as to the transfers of the Aggregate Receivables from the Servicer as Receivables Seller to the Depositor and non-consolidation of the Servicer with the Depositor and security interest and tax and any additional opinions required under any related Indenture Supplement; provided , further , that the conditions specified in clauses (ii) and (iii) shall not apply to any transaction (i) in which an Affiliate of the Receivables Seller assumes the obligations of the Receivables Seller and otherwise satisfies the eligibility criteria applicable to the Servicer under the Designated Servicing Agreements or (ii) in which an Affiliate of the Receivables Seller is merged into or is otherwise combined with the Receivables Seller and the Receivables Seller is the sole survivor of such merger or other combination. The Administrator or the Servicer, as the case may be, shall provide notice of any merger, consolidation or succession pursuant to this Section to the Indenture Trustee, the Noteholders and each Note Rating Agency.
Except (i) as described in the preceding paragraph or with respect to the transactions contemplated on the MSR Transfer Date, and (ii) the delegation by the Administrator of rights and obligations as Administrator to a Sub-Administrator from time to time in accordance with the terms of this Indenture, none of the Administrator, the Servicer or the Subservicer may assign or delegate any of its rights or obligations under this Indenture or any other Transaction Document.
On any MSR Transfer Date, Advance Purchaser shall deliver to the Indenture Trustee an MSR Transfer Notice signed by Nationstar and Advance Purchaser.
| Section 10.7. | Appointment of a Sub-Administrator. |
The Administrator may appoint a Sub-Administrator that meets the qualifications of the definition of “ Sub-Administrator ” hereunder. Notwithstanding the appointment of a Sub-Administrator, the Administrator shall remain responsible for the performance of its duties and obligations pursuant to this Indenture and any other Transaction Document. In addition, any Sub-Administrator shall be responsible for the performance of any duties so delegated to the same extent if such Sub-Administrator were the named Administrator under this Indenture and to meet any standards and fulfill any new requirements applicable to the Administrator under this Indenture and any other Transaction Documents.
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Article XI
The Indenture Trustee
| Section 11.1. | Certain Duties and Responsibilities. |
(a) The Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture with respect to the Notes, and no implied covenants or obligations will be read into this Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee may, with respect to Notes, conclusively rely upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture, as to the truth of the statements and the correctness of the opinions expressed therein; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee will be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Indenture but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein.
(c) If an Event of Default has occurred and is continuing, the Indenture Trustee will exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(d) No provision of this Indenture will be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection (d) will not be construed to limit the effect of subsection (a) of this Section 11.1 ;
(ii) the Indenture Trustee will not be liable for any error of judgment made in good faith by an Indenture Trustee Authorized Officer, unless it will be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Majority Noteholders or the Administrative Agent relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Indenture with respect to the Notes of any Class, to the extent consistent with Sections 8.7 and 8.8 ;
(iv) no provision of this Indenture will require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it has reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the Indenture Trustee against such risk or liability is not reasonably assured to it; and
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(v) whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee will be subject to the provisions of this Section.
| Section 11.2. | Notice of Defaults. |
Except as otherwise provided in Section 3.3(b) , within ninety (90) days after the occurrence of any Event of Default hereunder,
(a) the Indenture Trustee will transmit by mail to all registered Noteholders, as their names and addresses appear in the Note Register, notice of such default hereunder known to the Indenture Trustee, and
(b) the Indenture Trustee will give prompt written notification thereof to each Note Rating Agency, unless such default shall have been cured or waived; provided , however , that, except in the case of a default in the payment of the principal of or interest on any Note of any Series or Class, the Indenture Trustee will be protected in withholding such notice if and so long as an Indenture Trustee Responsible Officer in good faith determines that the withholding of such notice is in the interests of the Noteholders of such Series or Class. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
| Section 11.3. | Certain Rights of Indenture Trustee. |
Except as otherwise provided in Section 11.1 :
(a) the Indenture Trustee may conclusively rely and will be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Indenture Trustee deems it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(c) the Indenture Trustee may consult with counsel of its own selection and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the Indenture Trustee will be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
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(e) the Indenture Trustee will not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, unless requested in writing to do so by the Majority Noteholders; provided , however , that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require indemnity satisfactory to the Indenture Trustee against such cost, expense or liability as a condition to taking any such action;
(f) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Indenture Trustee will not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(g) the Indenture Trustee will not be responsible for filing any financing statements or continuation statements in connection with the Notes, but will cooperate with the Issuer in connection with the filing of such financing statements or continuation statements;
(h) the Indenture Trustee shall not be deemed to have notice of any default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event unless an Indenture Trustee Responsible Officer has actual knowledge thereof or unless written notice of any event which is in fact such a default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event is received by the Indenture Trustee at the Corporate Trust Office of the Indenture Trustee, and such notice references the Notes and this Indenture; in the absence of receipt of such notice or actual knowledge, the Indenture Trustee may conclusively assume that there is no default, Event of Default, Facility Early Amortization Event, Funding Interruption Event or Servicer Termination Event;
(i) the rights, privileges, protections, immunities and benefits given to the Indenture Trustee hereunder and under each Transaction Document, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable (without duplication) by, the Indenture Trustee or Wells Fargo Bank, N.A., as applicable, in each of its capacities hereunder and thereunder (including, without limitation, Calculation Agent, Paying Agent, Custodian, Securities Intermediary and Note Registrar), and each agent, custodian and other person employed to act hereunder and thereunder.
(j) none of the provisions contained in this Indenture shall in any event require the Indenture Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer under this Indenture;
(k) the Indenture Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other
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governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Fund other than from funds available in the Trust Accounts or (D) to confirm or verify the contents of any reports or certificates of the Servicer or the Administrator delivered to the Indenture Trustee pursuant to this Indenture believed by the Indenture Trustee to be genuine and to have been signed or presented by the proper party or parties;
(l) the Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(m) the right of the Indenture Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(n) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Fund created hereby or the powers granted hereunder;
(o) in making or disposing of any investment permitted by this Indenture, the Indenture Trustee is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm’s-length basis and on standard market terms, whether it or such Affiliate is acting as a subagent of the Indenture Trustee or for any third Person or dealing as principal for its own account; and
(p) the Indenture Trustee shall not be responsible for delays or failures in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts or God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
| Section 11.4. | Not Responsible for Recitals or Issuance of Notes. |
The recitals contained herein and in the Notes, except the certificates of authentication, will be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for their correctness. The Indenture Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Indenture Trustee will not be accountable for the use or application by the Issuer of Notes or the proceeds thereof, or for the use or application of any funds paid to the Servicer in respect of any amounts deposited in or withdrawn from the Trust Accounts or the Custodial Accounts by the Servicer. The Indenture Trustee shall not be responsible for the legality or validity of this Indenture or the validity, priority, perfection or sufficiency of the security for the Notes issued or intended to be issued hereunder.
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| Section 11.5. | Reserved. |
| Section 11.6. | Money Held in Trust. |
The Indenture Trustee will be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
| Section 11.7. | Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity. |
Except as otherwise provided in this Indenture:
(a) The Indenture Trustee (including in all of its capacities) will be paid the Indenture Trustee Fee on each Payment Date pursuant to Section 4.5 as compensation for its services (in all capacities hereunder).
(b) The Indenture Trustee (including in all of its capacities) shall be indemnified and held harmless by the Trust Estate as set forth in Section 4.5 and Section 8.6 , and shall be secondarily indemnified and held harmless by the Administrator for, from and against, as the case may be, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of, or in connection with, the acceptance and administration of the Trust Estate, including, in the case of the Indenture Trustee, without limitation, the costs and expenses (including reasonable legal fees and expenses) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties under this Indenture, provided that:
(i) with respect to any such claim, the Indenture Trustee shall have given the Administrator written notice thereof promptly after a Responsible Officer of the Indenture Trustee shall have actual knowledge thereof; provided , however that failure to give such written notice shall not affect the Trust Estate’s or the Administrator’s obligation to indemnify the Indenture Trustee, unless such failure materially prejudices the Trust Estate’s or the Administrator’s rights;
(ii) the Administrator may, at its option, assume the defense of any such claim using counsel reasonably satisfactory to the Indenture Trustee; and
(iii) notwithstanding anything in this Indenture to the contrary, the Administrator shall not be liable for settlement of any claim by the Indenture Trustee, as the case may be, entered into without the prior consent of the Administrator, which consent shall not be unreasonably withheld.
No termination of this Indenture, or the resignation or removal of the Indenture Trustee, shall affect the obligations created by this Section 11.7(b) of the Administrator to indemnify the Indenture Trustee under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided in this Section 11.7(b) with respect to the Administrator shall not pertain to any loss, liability or expense of the Indenture Trustee, including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture Trustee at the direction of the Noteholders pursuant to the terms of this Indenture.
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The Indenture Trustee agrees fully to perform its duties under this Indenture notwithstanding its failure to receive any payments, reimbursements or indemnifications to the Indenture Trustee pursuant to this Section 11.7(b) subject to its rights to resign in accordance with the terms of this Indenture.
The Securities Intermediary, the Paying Agent, and the Calculation Agent shall be indemnified by the Trust Estate pursuant to Section 4.5 and Section 8.6 , and secondarily by the Administrator, in respect of the matters described in Section 4.9 to the same extent as the Indenture Trustee.
Neither of the Indenture Trustee nor the Securities Intermediary will have any recourse to any asset of the Issuer or the Trust Estate other than funds available pursuant to Section 4.5 and Section 8.6 or to any Person other than the Issuer (or the Administrator pursuant to this Section 11.7 ). Except as specified in Section 4.5 and Section 8.6 , any such payment to the Indenture Trustee shall be subordinate to payments to be made to Noteholders.
Anything in this Indenture to the contrary notwithstanding, in no event shall the Indenture Trustee be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
| Section 11.8. | Corporate Indenture Trustee Required; Eligibility. |
There will at all times be an Indenture Trustee hereunder with respect to all Classes of Notes, which will be either a bank or a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by a federal or state authority of the United States, and the long-term unsecured debt obligations of which are rated in the third highest applicable rating category from each Note Rating Agency then rating Outstanding Notes if such institution is rated by such Note Rating Agency, as applicable. If such bank or corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such bank or corporation will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Issuer may not, nor may any Person directly or indirectly Controlling, Controlled by, or under common Control with the Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee ceases to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
| Section 11.9. | Resignation and Removal; Appointment of Successor. |
(a) No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee pursuant to this Article will become effective until the acceptance of appointment by the successor Indenture Trustee under Section 11.10 .
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(b) The Indenture Trustee (in all capacities) and Wells Fargo Bank, N.A. (in all capacities) may resign with respect to all, but not less than all, such capacities and all, but not less than all of the Outstanding Notes at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Indenture Trustee, Calculation Agent, Paying Agent or Securities Intermediary shall not have been delivered to the Indenture Trustee within thirty (30) days after the giving of such notice of resignation, the resigning Indenture Trustee, Calculation Agent, Paying Agent or Securities Intermediary may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary. Written notice of resignation by the Indenture Trustee under this Indenture shall also constitute notice of resignation as Calculation Agent, Securities Intermediary, Paying Agent, Note Registrar and Custodian hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such resignation.
(c) The Indenture Trustee or Calculation Agent may be removed with respect to all Outstanding Notes at any time by Action of the Majority Noteholders of all Outstanding Notes, delivered to the Indenture Trustee and to the Issuer. Removal of the Indenture Trustee shall also constitute removal of the Calculation Agent, Securities Intermediary and Paying Agent hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such resignation. If an instrument of acceptance by a successor Indenture Trustee or Calculation Agent shall not have been delivered to the Indenture Trustee within thirty (30) days after the giving of such notice of removal, the Indenture Trustee or Calculation Agent being removed may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(d) If at any time:
(i) the Indenture Trustee ceases to be eligible under Section 11.8 and fails to resign after written request therefore by the Issuer or by any Noteholder; or
(ii) the Indenture Trustee becomes incapable of acting with respect to any Series or Class of Notes; or
(iii) the Indenture Trustee is adjudged bankrupt or insolvent or a receiver of the Indenture Trustee or of its property is appointed or any public officer takes charge or Control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Indenture Trustee, or (B) subject to Section 8.9 , any Noteholder who has been a bona fide Noteholder of a Note for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee or Calculation Agent resigns, is removed or becomes incapable of acting with respect to any Notes, or if a vacancy shall occur in the office of the Indenture Trustee or Calculation Agent for any cause, the Issuer, subject to the Administrative Agent’s consent, will promptly appoint a successor Indenture Trustee or Calculation Agent. If,
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within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Indenture Trustee or Calculation Agent is appointed by Act of the Majority Noteholders of all Outstanding Notes, delivered to the Issuer and the retiring Indenture Trustee or Calculation Agent, the successor Indenture Trustee or Calculation Agent so appointed will, forthwith upon its acceptance of such appointment, become the successor Indenture Trustee or Calculation Agent and supersede the successor Indenture Trustee or Calculation Agent appointed by the Issuer. If no successor Indenture Trustee or Calculation Agent shall have been so appointed by the Issuer or the Noteholders and accepted appointment in the manner hereinafter provided, any Noteholder who has been a bona fide Noteholder of a Note for at least six (6) months may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(f) The Issuer will give written notice of each resignation and each removal of the Indenture Trustee and each appointment of a successor Indenture Trustee to each Noteholder as provided in Section 1.7 and to each Note Rating Agency that is then rating Outstanding Notes. To facilitate delivery of such notice, upon request by the Issuer, the Note Registrar shall provide to the Issuer a list of the relevant registered Noteholders. Each notice will include the name of the successor Indenture Trustee and the address of its principal Corporate Trust Office.
| Section 11.10. | Acceptance of Appointment by Successor. |
Every successor Indenture Trustee appointed hereunder will execute, acknowledge and deliver to the Issuer and to the predecessor Indenture Trustee an instrument accepting such appointment, with a copy to each Note Rating Agency then rating any Outstanding Notes, and thereupon the resignation or removal of the predecessor Indenture Trustee will become effective, and such successor Indenture Trustee, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the predecessor Indenture Trustee, Calculation Agent and Paying Agent; but, on request of the Issuer or the successor Indenture Trustee, such predecessor Indenture Trustee will, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Indenture Trustee all the rights, powers and trusts of the predecessor Indenture Trustee, Calculation Agent and Paying Agent, and will duly assign, transfer and deliver to such successor Indenture Trustee all property and money held by such predecessor Indenture Trustee hereunder, subject nevertheless to its rights to payment pursuant to Section 11.7 . Upon request of any such successor Indenture Trustee, the Issuer will execute any and all instruments for more fully and certainly vesting in and confirming to such successor Indenture Trustee all such rights, powers and trusts.
No successor Indenture Trustee will accept its appointment unless at the time of such acceptance such successor Indenture Trustee will be qualified and eligible under this Article.
| Section 11.11. | Merger, Conversion, Consolidation or Succession to Business. |
Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, will be the successor of the Indenture Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this
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Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. The Indenture Trustee will give prompt written notice of such merger, conversion, consolidation or succession to the Issuer and each Note Rating Agency that is then rating Outstanding Notes. If any Notes shall have been authenticated, but not delivered, by the Indenture Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Indenture Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Indenture Trustee had itself authenticated such Notes.
| Section 11.12. | Appointment of Authenticating Agent. |
At any time when any of the Notes remain Outstanding the Indenture Trustee, with the approval of the Issuer, may appoint an Authenticating Agent with respect to one or more Series or Classes of Notes which will be authorized to act on behalf of the Indenture Trustee to authenticate Notes of such Series or Classes issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 6.6 , and Notes so authenticated will be entitled to the benefits of this Indenture and will be valid and obligatory for all purposes as if authenticated by the Indenture Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Notes by the Indenture Trustee or an Indenture Trustee Authorized Signatory or to the Indenture Trustee’s Certificate of Authentication, such reference will be deemed to include authentication and delivery on behalf of the Indenture Trustee by an Authenticating Agent and a Certificate of Authentication executed on behalf of the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent will be acceptable to the Issuer and will at all times be a Person organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Issuer itself, subject to supervision or examination by a federal or state authority of the United States. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent will cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent will resign immediately in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent will be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, will continue to be an Authenticating Agent, provided that such Person will be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or if at any
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time such Authenticating Agent ceases to be eligible in accordance with the provisions of this Section, the Indenture Trustee, with the approval of the Issuer, may appoint a successor Authenticating Agent which will be acceptable to the Issuer and will give notice to each Noteholder as provided in Section 1.7 . Any successor Authenticating Agent upon acceptance of its appointment hereunder will become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent will be appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent (other than an Authenticating Agent appointed at the request of the Issuer, the Noteholders or the Administrator from time to time or appointed due to a change in law or other circumstance beyond the Indenture Trustee’s control) reasonable compensation for its services under this Section, out of the Indenture Trustee’s own funds without reimbursement pursuant to this Indenture.
If an appointment with respect to one or more Classes is made pursuant to this Section, the Notes of such Series or Classes may have endorsed thereon an alternate Certificate of Authentication in the following form:
AUTHENTICATING AGENT’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Classes designated herein and referred to in the within-mentioned Indenture and Indenture Supplement.
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Dated: , 20[ ] |
WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee, |
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| By: |
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| as Authenticating Agent | ||||||
| By: |
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| Authorized Officer of Wells Fargo Bank, N.A. | ||||||
| Section 11.13. | Reserved. |
| Section 11.14. | Representations and Covenants of the Indenture Trustee. |
The Indenture Trustee, in its individual capacity and not as Indenture Trustee, represents, warrants and covenants that:
(a) Wells Fargo Bank, N.A.is a national banking association duly organized and validly existing under the laws of the United States;
(b) Wells Fargo Bank, N.A. has full power and authority to deliver and perform this Indenture and has taken all necessary action to authorize the execution, delivery and performance by it of this Indenture and other documents to which it is a party; and
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(c) each of this Indenture and other Transaction Documents to which Wells Fargo Bank, N.A. is a party has been duly executed and delivered by Wells Fargo Bank, N.A. and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.
| Section 11.15. | Indenture Trustee’s Application for Instructions from the Issuer. |
Any application by the Indenture Trustee for written instructions from the Issuer may, at the option of the Indenture Trustee, set forth in writing any action proposed to be taken or omitted by the Indenture Trustee under and in accordance with this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective, provided that such application shall make specific reference to this Section 11.15 . The Indenture Trustee shall not be liable for any action taken by, or omission of, the Indenture Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than five (5) Business Days after the date the Issuer actually receives such application, unless the Issuer shall have consented in writing to any earlier date) unless prior to taking any such action (or the Closing Date in the case of an omission), the Indenture Trustee shall have received written instructions in response to such application specifying the action be taken or omitted.
Article XII
Amendments and Indenture Supplements
| Section 12.1. | Supplemental Indentures and Amendments Without Consent of Noteholders. |
(a) Unless otherwise provided in the related Indenture Supplement with respect to any amendment to this Indenture or such Indenture Supplement, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent that such amendment would materially affect the Subservicer) and the Administrative Agent, and any applicable Derivative Counterparty and with prior notice to each Note Rating Agency that is then rating any Outstanding Notes, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have an Adverse Effect and is not reasonably expected to have a material Adverse Effect on the Noteholders of the Notes at any time in the future, may amend this Indenture for any of the following purposes:
(i) to evidence the succession of another Person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Notes; or
(ii) to add to the covenants of the Issuer, or to surrender any right or power herein conferred upon the Issuer, for the benefit of the Noteholders of the Notes of any or all Series or Classes (and if such covenants or the surrender of such right or power are to be for the benefit of less than all Series or Classes of Notes, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of one or more specified Series or Classes); or
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(iii) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; or
(iv) to establish any form of Note as provided in Article V , and to provide for the issuance of any Series or Class of Notes as provided in Article VI and to set forth the terms thereof, and/or to add to the rights of the Noteholders of the Notes of any Series or Class; or
(v) to evidence and provide for the acceptance of appointment by another corporation as a successor Indenture Trustee hereunder; or
(vi) to provide for additional or alternative forms of credit enhancement for any Series or Class of Notes; or
(vii) to comply with any regulatory, accounting or tax laws; or
(viii) to qualify for “off-balance sheet” treatment under GAAP, or to permit the Depositor to repurchase a specified percentage (not to exceed 2.50%) of the Receivables from the Issuer in order to achieve “on-balance sheet” treatment under GAAP (if such amendment is supported by a true sale opinion from external counsel to the Receivables Seller satisfactory to each Note Rating Agency rating Outstanding Notes and to each Noteholder of a Variable Funding Note); or
(ix) to prevent the Issuer from being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes; or
(x) as otherwise provided in the related Indenture Supplement.
(b) In the event a material change occurs in Applicable Law, or in applicable foreclosure procedures used by prudent mortgage servicers generally, that requires or justifies, in the Administrator’s reasonable judgment, that a state currently categorized as a “Judicial State” be categorized as a “Non-Judicial State,” or vice versa, the Administrator will certify to the Indenture Trustee to such effect, supported by an opinion of counsel (or other form of assurance acceptable to the Indenture Trustee) in the case of a change in Applicable Law, and the categorization of the affected state or states will change from “Judicial State” to “Non-Judicial State,” or vice versa, for purposes of calculating Advance Rates applicable to Receivables.
(c) Additionally, subject to the terms and conditions of Section 12.2 , unless otherwise provided in the related Indenture Supplement with respect to any amendment of this Indenture or an Indenture Supplement, and in addition to clauses (i) through (ix) above, this Indenture or an Indenture Supplement may also be amended by the Issuer, the Indenture Trustee, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent
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that such amendment would materially affect the Subservicer) and the Administrative Agent (in its sole and absolute discretion) without the consent of any of the Noteholders or any other Person, upon delivery of an Issuer Tax Opinion for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or modifying in any manner the rights of the Noteholders of the Notes under this Indenture; provided , however , that (i) the Issuer shall deliver to the Indenture Trustee an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future, (ii) each Note Rating Agency currently rating the Outstanding Notes confirms in writing to the Indenture Trustee that such amendment will not cause a Ratings Effect on any Outstanding Notes and (iii) each Derivative Counterparty shall have consented to such amendment.
Except as permitted expressly by the Receivables Purchase Agreement or the Receivables Sale Agreement, as applicable, the Servicer shall not enter into any amendment of the Receivables Sale Agreement, and the Issuer shall not enter into any amendment of the Receivables Pooling Agreement without the consent of the Administrative Agent and, except for amendments meeting the same criteria, and supported by the same Issuer Tax Opinion and Officer’s Certificate, as amendments to the Indenture entered into under this Section 12.1 , without the consent of the Series Required Noteholders of each Series.
| Section 12.2. | Supplemental Indentures and Amendments with Consent of Noteholders. |
In addition to any amendment permitted pursuant to Section 12.1 , and subject to the terms and provisions of each Indenture Supplement with respect to any amendment to this Indenture or such Indenture Supplement, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment of this Indenture, including any Indenture Supplement, by Act of said Noteholders delivered to the Issuer and the Indenture Trustee, the Issuer, the Administrator, the Servicer, the Subservicer (whose consent shall be required only to the extent that such amendment would materially affect the Subservicer), the Administrative Agent and the Indenture Trustee upon delivery of an Issuer Tax Opinion (unless the Noteholders unanimously consent to waive such opinion), may enter into an amendment of this Indenture for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture of modifying in any manner the rights of the Noteholders of the Notes of each such Series or Class under this Indenture or any Indenture Supplement; provided , however , that no such amendment will, without the consent of the Noteholder of each Outstanding Note materially and adversely affected thereby:
(a) change the scheduled payment date of any payment of interest on any Note held by such Noteholder, or change a Payment Date or Stated Maturity Date of any Note held by such Noteholder;
(b) reduce the Note Balance of, or the Note Interest Rate on any Note held by such Noteholder, or change the method of computing the Note Balance or Note Interest Rate in a manner that is adverse to such Noteholder;
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(c) impair the right to institute suit for the enforcement of any payment on any Note held by such Noteholder;
(d) reduce the percentage in the Class Invested Amount or Invested Amount of the Outstanding Notes (or of the Outstanding Notes of any Series or Class), the consent of whose Noteholders is required for any such Amendment, or the consent of whose Noteholders is required for any waiver of compliance with the provisions of this Indenture or any Indenture Supplement or of defaults hereunder or thereunder and their consequences, provided for in this Indenture or any Indenture Supplement;
(e) modify any of the provisions of this Section or Section 8.15 , except to increase any percentage of Noteholders required to consent to any such amendment or to provide that other provisions of this Indenture or any Indenture Supplement cannot be modified or waived without the consent of the Noteholder of each Outstanding Note adversely affected thereby;
(f) permit the creation of any lien or other encumbrance on the Collateral that is prior to the lien in favor of the Indenture Trustee for the benefit of the Noteholders of the Notes;
(g) change the method of computing the amount of principal of, or interest on, any Note held by such Noteholder on any date;
(h) increase any Advance Rates in respect of Notes held by such Noteholder or eliminate or decrease any collateral value exclusions in respect of Notes held by such Noteholder; or
(i) reduce the Target Amortization Amount in respect of any Target Amortization Event applicable to Notes held by such Noteholder.
In addition, any Indenture Supplement may be amended, supplemented or otherwise modified with the consent of each of the Noteholders of the Notes of the related Series or as otherwise specified in the applicable Indenture Supplement. The consent of a Person that is an Administrative Agent or a Derivative Counterparty for one or more Series but is not an Administrative Agent or a Derivative Counterparty, as applicable, for any other Series is not required for any amendment, supplement or modification to any such other Series.
An amendment of this Indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular Series or Class of Notes, or which modifies the rights of the Noteholders of Notes of such Series or Class with respect to such covenant or other provision, will be deemed not to affect the rights under this Indenture of the Noteholders of Notes of any other Series or Class.
It will not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed amendment, but it will be sufficient if such Act will approve the substance thereof.
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| Section 12.3. | Execution of Amendments. |
In executing or accepting the additional trusts created by any amendment or Indenture Supplement of this Indenture permitted by this Article XII or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 ) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized or permitted by this Indenture and that all conditions precedent thereto have been satisfied. The Indenture Trustee may, but will not be obligated to, enter into any such amendment or Indenture Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Indenture or otherwise.
| Section 12.4. | Effect of Amendments. |
Upon the execution of any amendment of this Indenture or any Indenture Supplement, or any Supplemental indentures under this Article XII , this Indenture and the related Indenture Supplement will be modified in accordance therewith with respect to each Series and Class of Notes affected thereby, or all Notes, as the case may be, and such amendment will form a part of this Indenture and the related Indenture Supplement for all purposes; and every Noteholder of Notes theretofore or thereafter authenticated and delivered hereunder will be bound thereby to the extent provided therein.
| Section 12.5. | Reference in Notes to Indenture Supplements. |
Notes authenticated and delivered after the execution of any amendment of this Indenture or any Indenture Supplement or any supplemental indenture pursuant to this Article may, and will if required by the Indenture Trustee, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such amendment or supplemental indenture. If the Issuer so determines, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such amendment or supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
| Section 12.6. | Amendments Requiring Consent of the Servicer. |
Without limiting the other provisions of this Article XII, this Indenture may not be amended in a manner that is adverse to the rights, interests or obligations of the Servicer, including increasing the obligations of the Servicer, without the written consent of the Servicer. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
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Article XIII
Early Redemption of Notes
| Section 13.1. | Optional Redemption. |
(a) Unless otherwise provided in the applicable Indenture Supplement for a Series or Class of Notes, the Issuer has the right, but not the obligation, to redeem a Series or Class of Notes in whole but not in part on any Payment Date (a “ Redemption Payment Date ”) on or after the Payment Date on which the aggregate Note Balance (after giving effect to all payments, if any, on that day) of such Series or Class is reduced to less than the percentage of the Initial Note Balance specified in the related Indenture Supplement (the “ Redemption Percentage ”).
If the Issuer, at the direction of the Administrator, elects to redeem a Series or Class of Notes pursuant to this Section 13.1(a) , it will cause the Issuer to notify the Indenture Trustee, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and the Noteholders of such redemption at least ten (10) days prior to the Redemption Payment Date. Unless otherwise specified in the Indenture Supplement applicable to the Notes to be so redeemed, the redemption price of a Series or Class so redeemed will equal the Redemption Amount, the payment of which will be subject to the allocations, deposits and payments sections of the related Indenture Supplement, if any.
If the Issuer is unable to pay the Redemption Amount in full on the Redemption Payment Date, such redemption shall be cancelled, notice of such cancelled redemption shall be sent to all Secured Parties and payments on such Series or Class of Notes will thereafter continue to be made in accordance with this Indenture and the related Indenture Supplement, and the Noteholders of such Series or Class of Notes and the related Administrative Agent shall continue to hold all rights, powers and options as set forth under this Indenture, until the Outstanding Note Balance of such Series or Class, plus all accrued and unpaid interest, is paid in full or the Stated Maturity Date occurs, whichever is earlier, subject to Article VII , Article VIII and the allocations, deposits and payments sections of this Indenture and the related Indenture Supplement.
(b) Unless otherwise specified in the related Indenture Supplement, if the VFN Principal Balance of any Class of VFN Notes has been reduced to zero, then, upon five (5) Business Days’ prior written notice to the Noteholder thereof, the Issuer may declare such Class no longer Outstanding, in which case the Noteholder thereof shall submit such Class of Note to the Indenture Trustee for cancellation.
(c) The Notes of any Series or Class of Notes shall be subject to optional redemption under this Article XIII , in whole but not in part, by the Issuer, through a Permitted Refinancing or using the proceeds of issuance and sale of a new Series of Notes issued hereunder or, on any Business Day after the date on which the related Revolving Period ends, and on any Business Day within ten (10) days prior to the end of such Revolving Period or at other times specified in the related Indenture Supplement upon ten (10) days’ prior notice to the Indenture Trustee, the Noteholders and any related Derivative Counterparty. Following issuance of the Redemption Notice by the Issuer pursuant to Section 13.2 below, the Issuer shall be required to purchase the entire aggregate Note Balance of such Series or Class of Term Notes for the Redemption Amount on the date set for such redemption (the “ Redemption Date ”).
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(d) If necessary to satisfy the Collateral Test, the Notes of any Series or Class of Variable Funding Notes shall be subject to repayment by the Issuer, in whole or in part, up to the amount necessary to satisfy the Collateral Test, using any other cash or funds of the Issuer other than Collections on the Receivables, upon one (1) Business Day’s prior notice from the Issuer to the Indenture Trustee, each Derivative Counterparty and the related VFN Noteholders. Any such repayment pursuant to this Section 13.1(d) shall reduce the principal balance of such Variable Funding Notes but shall not result in a reduction of any funding commitments related thereto or the Maximum VFN Principal Balance thereof (unless otherwise agreed between the Noteholders of such Variable Funding Notes and the Issuer) and (ii) may be made on a non-pro rata basis with other Series of Variable Funding Notes.
| Section 13.2. | Notice. |
(a) Promptly after the occurrence of any optional redemption pursuant to Section 13.1 , the Issuer will notify the Indenture Trustee, each Derivative Counterparty (as applicable, with respect to the related Series of Notes) and each related Note Rating Agency in writing of the identity and Note Balance of the affected Series or Class of Notes to be redeemed.
(b) Notice of redemption (each a “ Redemption Notice ”) will promptly be given as provided in Section 1.7 . All notices of redemption will state (i) the Series or Class of Notes to be redeemed pursuant to this Article XIII , (ii) the date on which the redemption of the Series or Class of Notes to be redeemed pursuant to this Article will begin, which will be the Redemption Payment Date, and (iii) the redemption price for such Series or Class of Notes. Following delivery of a Redemption Notice by the Issuer, the Issuer shall be required to purchase the entire aggregate Note Balance of such Series or Class of Notes for the related Redemption Amount on the Redemption Date.
Article XIV
Miscellaneous
| Section 14.1. | No Petition. |
Each of the Indenture Trustee, the Administrative Agent, the Servicer and the Administrator, by entering into this Indenture, each Derivative Counterparty, each Supplemental Credit Enhancement Provider or Liquidity Provider, as applicable, by accepting its rights as a third party beneficiary hereunder, each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against the Depositor or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Derivative Counterparty, any Supplemental Credit Enhancement Agreement and any Liquidity Facility; provided , however , that nothing contained herein shall prohibit or otherwise prevent the Indenture Trustee from filing proofs of claim in any such proceeding.
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| Section 14.2. | No Recourse. |
No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the Securities Act and the Exchange Act of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
| Section 14.3. | Tax Treatment. |
Notwithstanding anything to the contrary set forth herein, the Issuer has entered into this Indenture with the intention that for United States federal, state and local income and franchise tax purposes the Notes will qualify as indebtedness secured by the Receivables. The Issuer, by entering into this Indenture, each Noteholder, by its acceptance of a Note and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agree to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination. The Indenture Trustee shall treat the Trust Estate as a security device only. The provisions of this Indenture shall be construed in furtherance of the foregoing intended tax treatment.
| Section 14.4. | Alternate Payment Provisions. |
Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer, with the written consent of the Indenture Trustee and the Paying Agent, may enter into any agreement with any Noteholder of a Note providing for a method of payment or notice that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee and the Paying Agent a copy of each such agreement and the Indenture Trustee and the Paying Agent will cause payments or notices, as applicable, to be made in accordance with such agreements.
| Section 14.5. | Termination of Obligations. |
The respective obligations and responsibilities of the Indenture Trustee created hereby (other than the obligation of the Indenture Trustee to make payments to Noteholders as hereinafter set forth) shall terminate upon satisfaction and discharge of this Indenture as set forth in Article VII , except with respect to the payment obligations described in Section 14.6(b) . Upon this event, the Indenture Trustee shall release, assign and convey to the Issuer or any of its designees, without recourse, representation or warranty, all of its right, title and interest in the
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Collateral, whether then existing or thereafter created, all monies due or to become due and all amounts received or receivable with respect thereto (including all moneys then held in any Trust Account) and all proceeds thereof, except for amounts held by the Indenture Trustee pursuant to Section 14.6(b) . The Indenture Trustee shall execute and deliver such instruments of transfer and assignment as shall be provided to it, in each case without recourse, as shall be reasonably requested by the Issuer to vest in the Issuer or any of its designees all right, title and interest which the Indenture Trustee had in the Collateral.
| Section 14.6. | Final Distribution. |
(a) The Issuer shall give the Indenture Trustee at least thirty (30) days’ prior written notice of the Payment Date on which the Noteholders of any Series or Class may surrender their Notes for payment of the final distribution on and cancellation of such Notes. Not later than the fifth day of the month in which the final distribution in respect of such Series or Class is payable to Noteholders, the Indenture Trustee or the Paying Agent shall provide notice to Noteholders of such Series or Class and each Derivative Counterparty (if applicable) specifying (i) the date upon which final payment of such Series or Class will be made upon presentation and surrender of Notes of such Series or Class at the office or offices therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such payment date is not applicable, payments being made only upon presentation and surrender of such Notes at the office or offices therein specified. The Indenture Trustee shall give such notice to the Note Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final distribution to the Noteholders of any Series or Class (or the termination of the Issuer), except as otherwise provided in this paragraph, all funds then on deposit in any Account allocated to such Noteholders shall continue to be held in trust for the benefit of such Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds to such Noteholders upon surrender of their Notes, if such Notes are Definitive Notes. In the event that all such Noteholders shall not surrender their Notes for cancellation within six (6) months after the date specified in the notice from the Indenture Trustee described in clause (a) , the Indenture Trustee shall give a second (2 nd ) notice to the remaining such Noteholders to surrender their Notes for cancellation and receive the final distribution with respect thereto. If within one year after the second (2 nd ) notice all such Notes shall not have been surrendered for cancellation, the Indenture Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining such Noteholders concerning surrender of their Notes, and the cost thereof (including costs related to giving the second (2 nd ) notice) shall be paid out of the funds in the Collection and Funding Account. The Indenture Trustee and the Paying Agent shall pay to the Issuer any monies held by them for the payment of principal or interest that remains unclaimed for two (2) years. After payment to the Issuer, Noteholders entitled to the money must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another Person.
| Section 14.7. | Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider as Third-Party Beneficiaries. |
Each Derivative Counterparty, Supplemental Credit Enhancement Provider and Liquidity Provider is a third-party beneficiary of this Indenture.
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| Section 14.8. | Owner Trustee Limitation of Liability. |
It is expressly understood and agreed by the parties hereto that (a) this Indenture is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture or the other Transaction Documents.
| Section 14.9. | Communications with Rating Agencies. |
If the Servicer, the Administrative Agent or the Indenture Trustee shall receive any written or oral communication from any Note Rating Agency (or any of the respective officers, directors or employees of any Note Rating Agency) with respect to the transactions contemplated hereby or under the Transaction Documents or in any way relating to the Notes, the Servicer, the Administrative Agent and the Indenture Trustee agree to refrain from communicating with such Note Rating Agency and to promptly notify the Administrator of such communication; provided, however, that if the Servicer, the Administrative Agent or the Indenture Trustee receives an oral communication from a Note Rating Agency, the Servicer, the Administrative Agent or the Indenture Trustee, as the case may be, is authorized to refer such Note Rating Agency to the Administrator, who will respond to such oral communication. At the written request of the Administrator, the Servicer, the Administrative Agent and the Indenture Trustee agree to cooperate with the Administrator to provide certain information to the Administrator that may be reasonably required by a Note Rating Agency to rate or to perform ratings surveillance on the Notes, and acknowledge and agree that the Administrator shall be permitted, in turn, to provide such information to the Note Rating Agencies via the internet address identified therefor by the Administrator; provided , that the Servicer, the Administrative Agent and the Indenture Trustee shall only be required to provide such information that is reasonably available to such party at the time of request. Notwithstanding any other provision of this Agreement or the other Transaction Documents, under no circumstances shall the Servicer, the Administrative Agent or the Indenture Trustee be required to participate in telephone conversations or other oral communications with a Note Rating Agency, nor shall the Servicer, the Administrative Agent or the Indenture Trustee be prohibited from communicating with any nationally recognized statistical rating organization about matters other than the Notes or the transactions contemplated hereby or by the Transaction Documents. Furthermore for the avoidance of doubt, the Indenture Trustee may make statements to Noteholders available on its website (as contemplated by Section 3.5(a) hereof), and such action is not prohibited by this Section 14.9 .
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| Section 14.10. | Authorized Representatives. |
Each individual designated as an authorized representative of the Indenture Trustee, Calculation Agent, Paying Agent, and Securities Intermediary, Administrator, Administrative Agent and Issuer (each, an “ Authorized Representative ”), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on behalf of each of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Administrative Agent and Issuer, respectively, and the specimen signature for each such Authorized Representative of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Servicer, Administrative Agents and Issuer initially authorized hereunder is set forth on Exhibits G-1, G-2, G-3 and G-4 , respectively. From time to time, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Administrator, Administrative Agent and Issuer may, by delivering to the others a revised exhibit, change the information previously given pursuant to this Section 14.10 , but each of the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit.
| Section 14.11. | Consent and Acknowledgement of the Amendments. |
100% of the Noteholders of each Series have consented to this Indenture and each such Noteholder confirms that (i) it is the sole Noteholder of all the Outstanding Notes related to such Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Indenture, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture shall become effective on the Effective Date.
It is expressly understood and agreed by the parties hereto that on the Effective Date, Advance Purchaser shall acquire the ownership of 100% of the equity interests in the Depositor from Nationstar, and Advance Purchaser shall assume the role of Administrator of the facility and under the Indenture from Nationstar and all requirements, as applicable, under Section 10.4 are waived.
By its signature to this Indenture, each of the parties hereto (other than the Indenture Trustee) hereby waives and directs the Indenture Trustee to waive, the delivery of the Authorization Opinion in connection with the execution and delivery of this Indenture.
[Signature Pages Follow]
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EXECUTION COPY
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, as Issuer | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
/s/ Erwin M. Soriano |
|
| Name: |
Erwin M. Soriano |
|
| Title: |
Assistant Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| WELLS FARGO BANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | ||
| By: |
/s/ Mark DeFabio |
|
| Name: |
Mark DeFabio |
|
| Title: |
Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| NATIONSTAR MORTGAGE LLC | ||
| By: |
/s/ Ellen Coleman |
|
| Name: |
Ellen Coleman |
|
| Title: |
Executive Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| ADVANCE PURCHASER LLC | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: |
Cameron MacDougall |
|
| Title: |
Secretary |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
|
CREDIT SUISSE AG, NEW YORK BRANCH, as Administrative Agent |
||
| By: |
/s/ Jason Ruchelsman |
|
| Name: |
Jason Ruchelsman |
|
| Title: |
Vice President |
|
| By: | /s/ Michelangelo Raimondi | |
| Name: |
Michelangelo Raimondi |
|
| Title: |
Vice President |
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
|
CREDIT SUISSE AG, NEW YORK BRANCH, as Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF1 Notes |
||
| By: |
/s/ Jason Ruchelsman |
|
| Name: |
Jason Ruchelsman |
|
| Title: |
Vice President |
|
| By: |
/s/ Michelangelo Raimondi |
|
| Name: |
Michelangelo Raimondi |
|
| Title: |
Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH , as Committed Purchaser of the Series 2013-VF1 Notes | ||
| By: |
/s/ Jason Ruchelsman |
|
| Name: |
Jason Ruchelsman |
|
| Title: |
Authorized Signatory |
|
| By: |
/s/ Michelangelo Raimondi |
|
| Name: |
Michelangelo Raimondi |
|
| Title: |
Authorized Signatory |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
| ALPINE SECURITIZATION CORP., as Conduit Purchaser of the Series 2013-VF1 Notes | ||
| By: CREDIT SUISSE AG, NEW YORK BRANCH, as its attorney-in-fact | ||
| By: |
/s/ Jason Ruchelsman |
|
| Name: |
Jason Ruchelsman |
|
| Title: |
Vice President |
|
| By: |
/s/ Michelangelo Raimondi |
|
| Name: |
Michelangelo Raimondi |
|
| Title: |
Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
| NATIXIS, NEW YORK BRANCH , as Committed Purchaser, Administrative Agent and Conduit Administrative Agent of the Series 2013-VF2 Notes | ||
| By: |
/s/ Chad Johnson |
|
| Name: |
Chad Johnson |
|
| Title: |
Managing Director |
|
| By: |
/s/ David S. Bondy |
|
| Name: |
David S. Bondy |
|
| Title: |
Managing Director |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
| BLEACHERS FINANCE 1 LIMITED , as Conduit Purchaser of the Series 2013-VF2 Notes | ||
| By: |
/s/ John Fridlington |
|
| Name: |
John Fridlington |
|
| Title: |
Vice President |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
| CONSENTED TO BY: | ||
| MORGAN STANLEY BANK, N.A. , as Administrative Agent and as Purchaser of the Series 2013-VF3 Notes | ||
| By: |
/s/ Geoffrey Kott |
|
| Name: |
Geoffrey Kott |
|
| Title: |
Authorized Signatory |
|
[NRZ Servicer Advance Receivables Trust CS – Signature Page to Amended and Restated Indenture]
Schedule 1
List of Designated Servicing Agreements
Schedule 1-1
Schedule 2
Designated Servicing Agreements that are subserviced by Subservicers and other Servicing
Agreements that may be subserviced by Subservicers
Schedule 2-1
Schedule 3
Designated Servicing Agreements under which the Servicer or servicers are required to consent
to or initiate termination and have agreed to repay all unpaid and accrued servicing fees at the
time of redemption in full or reimburse all Advances at the time of termination, as applicable
Schedule 3-1
Schedule 4
Designated Servicing Agreements for which the related Receivables become ineligible upon the
principal balance of the Mortgage Loans and REO Properties in the related securitization trust
falling below the indicated threshold of the securitization trust’s cut-off date balance
Schedule 4-1
Schedule 5
WIRE INSTRUCTIONS
Schedule 5-1
Schedule 5-2
Schedule 5-3
Schedule 6
Schedule 6-1
Exhibit A-1
FORM OF GLOBAL RULE 144A NOTE
| Class [ ] Note | ||
| Note Number: [ ] |
Initial Note Balance: $[ ] |
|
|
[Maximum VFN Principal Balance: $[ ]] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE [MAXIMUM VFN PRINCIPAL BALANCE] [INITIAL NOTE BALANCE] SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR ANY NOTE THAT IS NOT A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS OF, ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF
Exhibit A-1-1
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “ CODE ”), AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW. A PURCHASER OR TRANSFEREE OF ANY NOTE HELD IN BOOK ENTRY FORM, SHALL, BY VIRTUE OF ITS ACQUISITION OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN BE DEEMED TO HAVE MADE THE REPRESENTATIONS PROVIDED IN CLAUSES (I) OR (II) ABOVE.] [FOR A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-1-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE [AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT] UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY] [AND SECTION 6.5(m) OF THE BASE INDENTURE AND THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED IN AN OFF-SHORE TRANSACTION AS DEFINED IN REGULATION S OF THE 1933 ACT TO A PERSON WHO IS NOT ANY TIME A U.S. PERSON AS DEFINED BY REGULATION S OF THE 1933 ACT AND WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S NOTE OR (IN CERTAIN LIMITED CIRCUMSTANCES) A DEFINITIVE NOTE ONLY (IN THE CASE OF AN INTEREST IN A REGULATION S GLOBAL NOTE) IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND (IN THE CASE OF A DEFINITIVE NOTE) UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE NOTE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Exhibit A-1-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust CS, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Credit Suisse AG, New York Branch (“ Credit Suisse ”), as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20 [ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].]
Exhibit A-1-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
This Note is a Rule 144A Global Note deposited with DTC acting as Depository, and registered in the name of Cede & Co., a nominee of DTC, and Cede & Co., as holder of record of this Note, shall be entitled to receive payments of principal and interest, other than principal and interest due at the maturity date, by wire transfer of immediately available funds.
The statements in the legend relating to DTC set forth above are an integral part of the terms of this Note and by acceptance thereof each holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend, if any.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-1-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
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| Issuer Authorized Officer | ||
Exhibit A-1-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
|
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| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: |
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| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-1-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-1-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-1-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor CS, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement
Exhibit A-1-10
of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-1-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
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| Signature Guaranteed: | ||||
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*/ | |||
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP. |
Exhibit A-1-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust CS
|
[Interim Payment Date] [Payment Date] [Payment Date of Additional Note Balance/Decrease Note Balance |
Aggregate Amount
of [principal payment] [Funding of VFN Principal Balance Increase] on Class [ ] Notes |
[Percentage Interest
in] Aggregate Note Balance of the Class [ ] Notes following [advance/] payment |
[Percentage of
Interest in] Aggregate Note Balance of this Class [ ] Note following [advance/] payment |
Note Balance of
Note following [advance/] payment |
Exhibit A-1-13
Exhibit A-2
FORM OF DEFINITIVE NOTE RULE 144A
| Class [ ] Note |
[Initial Note Balance: $[ ]] |
|
| Note Number: [ ] |
Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE [MAXIMUM VFN PRINCIPAL BALANCE] [INITIAL NOTE BALANCE] SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE 1933 ACT, TO A PERSON THAT IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933 ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A [FOR CLASS 2 SPECIFIED NOTES ONLY] [, OR AN “ACCREDITED INVESTOR” AS DEFINED IN PARAGRAPHS (1), (2) (3) OR (7) OF RULE 501 UNDER THE 1933 ACT] OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTIONS 6.5(M) OR (N) OF THE INDENTURE, AS APPLICABLE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR ANY NOTE THAT IS NOT A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR
Exhibit A-2-1
ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS OF, (I) ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE CODE, AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW.] [FOR A SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-2-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION[S] REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY][AND SECTION 6.5(m)] [FOR CLASS 2 SPECIFIED NOTES ONLY][AND SECTION 6.5(n)] OF THE BASE INDENTURE AND THIS NOTE MAY BE TRANSFERRED ONLY UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
Exhibit A-2-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust CS, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Credit Suisse AG, New York Branch (“ Credit Suisse ”), as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20 [ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].]
Exhibit A-2-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-2-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
|
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| Issuer Authorized Officer | ||
Exhibit A-2-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
|
|||||
| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: |
|
|||||
| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-2-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-2-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-2-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor CS, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the “Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
[For Class 2 Specified Notes or any Note issued in definitive form] [This Note is issuable only in definitive form in denominations as provided in the [Series Name] Indenture Supplement, subject to certain limitations therein set forth.]
Exhibit A-2-10
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-2-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
|
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| Signature Guaranteed: | ||||
|
|
*/ | |||
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP. |
Exhibit A-2-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust CS
|
[Interim Payment Date] [Payment Date] [Payment Date of Additional Note Balance/Decrease Note Balance |
Aggregate
Amount of [principal payment] [Funding of VFN Principal Balance Increase] on Class [ ] Notes |
[Percentage Interest
in] Aggregate Note Balance of the Class [ ] Notes following [advance/] payment |
[Percentage of
Interest in] Aggregate Note Balance of this Class [ ] Note following [advance/] payment |
Note Balance of
Note following [advance/] payment |
Exhibit A-2-13
Exhibit A-3
FORM OF GLOBAL REGULATION S NOTE
| Class [ ] Note | Initial Note Balance: $[ ] | |
| Note Number: [ ] | Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTE BALANCE SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) PURSUANT TO REGULATION S OF THE 1933 ACT IN AN OFF-SHORE TRANSACTION AS DEFINED IN REGULATION S OF THE 1933 ACT TO A PERSON THAT IS NOT A U.S. PERSON AS DEFINED IN REGULATION S OF THE 1933 ACT [FOR CLASS 1 SPECIFIED NOTES ONLY] [THAT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED UNDER RULE 144A UNDER THE 1933 ACT)] OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE , AS APPLICABLE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR A NOTE THAT IS NOT A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE
Exhibit A-3-1
ASSETS OF, ANY “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “ CODE ”), AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW. A PURCHASER OR TRANSFEREE OF ANY NOTE HELD IN BOOK ENTRY FORM, SHALL, BY VIRTUE OF ITS ACQUISITION OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN BE DEEMED TO HAVE MADE THE REPRESENTATIONS PROVIDED IN CLAUSES (I) OR (II) ABOVE.] [FOR CLASS 1 SPECIFIED NOTES ONLY UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL BE DEEMED TO REPRESENT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-3-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY] [AND SECTION 6.5(m)] OF THE BASE INDENTURE AND THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN MAY BE TRANSFERRED IN AN OFF-SHORE TRANSACTION AS DEFINED IN THE 1933 ACT TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A NOTE OR (IN CERTAIN LIMITED CIRCUMSTANCES) A DEFINITIVE NOTE ONLY (IN THE CASE OF AN INTEREST IN A RULE 144A GLOBAL NOTE) IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND (IN THE CASE OF A DEFINITIVE NOTE) UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE NOTE REGISTRAR FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Exhibit A-3-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
ADVANCE RECEIVABLES BACKED NOTES, SERIES [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust CS, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Credit Suisse AG, New York Branch (“ Credit Suisse ”), as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20 [ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].]
Exhibit A-3-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
This Note is a Regulation S Global Note deposited with DTC acting as Depository, and registered in the name of Cede & Co., a nominee of DTC, and Cede & Co., as holder of record of this Note, shall be entitled to receive payments of principal and interest, other than principal and interest due at the maturity date, by wire transfer of immediately available funds.
The statements in the legend relating to DTC set forth above are an integral part of the terms of this Note and by acceptance thereof each holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend, if any.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-3-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
|
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| Issuer Authorized Officer | ||
Exhibit A-3-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||||
| By: |
|
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| Title: | Authorized Signatory of Indenture Trustee | |||||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||||
| By: |
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| Title: | Authorized Signatory of Authenticating Agent | |||||
Exhibit A-3-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-3-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-3-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor CS, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement
Exhibit A-3-10
of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-3-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
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| Signature Guaranteed: | ||||
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*/ | |||
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP. |
Exhibit A-3-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust CS
|
[Interim Payment Date] [Payment Date] [Payment Date of Additional Note Balance/Decrease Note Balance |
Aggregate
Amount of [principal payment] [Funding of VFN Principal Balance Increase] on Class [ ] Notes |
[Percentage Interest
in] Aggregate Note Balance of the Class [ ] Notes following [advance/] payment |
[Percentage of
Interest in] Aggregate Note Balance of this Class [ ] Note following [advance/] payment |
Note Balance of
Note following [advance/] payment |
Exhibit A-3-13
Exhibit A-4
FORM OF DEFINITIVE REGULATION S NOTE
| Class [ ] Note | Initial Note Balance: $[ ] | |
| Note Number: [ ] | Maximum VFN Principal Balance: $[ ] |
THE OUTSTANDING NOTE BALANCE OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE INITIAL NOTE BALANCE SHOWN ON THE FACE HEREOF.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR ANY STATE SECURITIES LAWS. THE ISSUER HAS NOT AGREED TO REGISTER THE NOTES UNDER THE 1933 ACT, TO QUALIFY THE NOTES UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY NOTEHOLDER .
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE ONLY (A) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT, (B) PURSUANT TO REGULATION S OF THE 1933 ACT IN AN OFF-SHORE TRANSACTION AS DEFINED IN THE 1933 ACT TO A PERSON THAT IS NOT A U.S. PERSON AS DEFINED IN REGULATION S OF THE 1933 ACT [FOR CLASS 1 SPECIFIED NOTES ONLY] [IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE 1933 ACT) OR (C) PURSUANT TO ANOTHER EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT, IN EACH CASE IN COMPLIANCE WITH THE REQUIREMENTS OF THE INDENTURE AND APPLICABLE STATE SECURITIES LAWS.
[FOR CLASS 1 SPECIFIED NOTES ONLY] [NO TRANSFER OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE EFFECTIVE, AND ANY SUCH TRANSFER WILL BE VOID AB INITIO, UNLESS THE PROSPECTIVE TRANSFEREE PROVIDES CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS IN WRITING TO THE INDENTURE TRUSTEE AND NOTE REGISTRAR AS PROVIDED IN SECTION 6.5(M) OF THE INDENTURE. EACH PROSPECTIVE TRANSFEREE OF A BENEFICIAL INTEREST IN A SPECIFIED NOTE WILL BE DEEMED TO MAKE SUCH REPRESENTATIONS BY ITS ACCEPTANCE OF SUCH BENEFICIAL INTEREST.]
[FOR A NOTE THAT IS NOT A CLASS 1 SPECIFIED NOTE UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT EITHER (I) IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING THE ASSETS
Exhibit A-4-1
OF, (I) ANY EMPLOYEE BENEFIT PLAN AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) OR ANY PLAN AS DEFINED IN SECTION 4975(e) OF THE CODE, AN ENTITY THAT IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 CFR SECTION 2510-3.101 AS MODIFIED BY SECTION 3(42) OF ERISA (THE “ PLAN ASSET REGULATIONS ”), WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, (EACH, A “ PLAN ”), OR A GOVERNMENTAL OR CHURCH PLAN THAT IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (“ SIMILAR LAW ”) OR (II)(A) THIS NOTE IS RATED INVESTMENT GRADE AS OF THE DATE OF PURCHASE OR TRANSFER, IT BELIEVES THAT THIS NOTE IS PROPERLY TREATED AS INDEBTEDNESS WITHOUT SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF THE PLAN ASSET REGULATIONS AND AGREES TO SO TREAT THIS NOTE AND (B) THE TRANSFEREE’S ACQUISITION AND HOLDING OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN WILL SATISFY THE REQUIREMENTS OF PROHIBITED TRANSACTION CLASS EXEMPTION (“ PTCE ”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 OR THE STATUTORY PROHIBITED TRANSACTION EXEMPTION FOR SERVICE PROVIDERS SET FORTH IN SECTION 408(b)(17) OF ERISA AND SECTION 4975(d)(20) OF THE CODE OR ANY SIMILAR CLASS OR STATUTORY EXEMPTION AND WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, WILL NOT VIOLATE ANY SIMILAR LAW.] [FOR CLASS 1 SPECIFIED NOTES ONLY UNLESS OTHERWISE SPECIFIED IN THE RELATED INDENTURE SUPPLEMENT] [EACH HOLDER OF THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN SHALL DELIVER TO THE INDENTURE TRUSTEE AND THE NOTE REGISTRAR A CERTIFICATION TO THE EFFECT THAT IT IS NOT AND IS NOT ACQUIRING THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN ON BEHALF OF, OR USING ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF ERISA, A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE CODE, AN ENTITY WHICH IS DEEMED TO HOLD THE ASSETS OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN PURSUANT TO 29 C.F.R. SECTION 2510.3-101 AS MODIFIED BY SECTION 3(42) OF ERISA, WHICH EMPLOYEE BENEFIT PLAN, PLAN OR ENTITY IS SUBJECT TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE, OR A GOVERNMENTAL OR CHURCH PLAN WHICH IS SUBJECT TO ANY U.S. FEDERAL, STATE OR LOCAL LAW THAT IS SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE.]
Exhibit A-4-2
THE TRANSFER OF THIS NOTE IS SUBJECT TO CERTAIN RESTRICTIONS AND CONDITIONS SET FORTH IN SECTION 6.5 OF THE BASE INDENTURE AND SECTION [ ] OF THE RELATED INDENTURE SUPPLEMENT UNDER WHICH THIS NOTE IS ISSUED (A COPY OF WHICH IS AVAILABLE FROM THE ISSUER UPON REQUEST). EACH TRANSFEREE OF THIS NOTE SHALL PROVIDE THE NOTE REGISTRAR AND THE ISSUER THE CERTIFICATION[S] REQUIRED BY SECTION 6.5(i) [FOR CLASS 1 SPECIFIED NOTES ONLY][AND SECTION 6.5(m)] OF THE BASE INDENTURE AND THIS NOTE MAY BE TRANSFERRED ONLY UPON RECEIPT BY THE NOTE REGISTRAR AND INDENTURE TRUSTEE OF SUCH CERTIFICATION. PRIOR TO PURCHASING THIS NOTE, PROSPECTIVE PURCHASERS SHOULD CONSULT WITH COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTIONS FROM THE RESTRICTIONS ON RESALE OR TRANSFER.
THIS NOTE IS A LIMITED RECOURSE OBLIGATION OF THE ISSUER, AND IS LIMITED TO RIGHT OF PAYMENT TO AMOUNTS AVAILABLE FROM THE TRUST ESTATE AS PROVIDED IN THE INDENTURE. THE ISSUER IS NOT PERSONALLY LIABLE FOR PAYMENTS ON THIS NOTE. THIS NOTE DOES NOT EVIDENCE AN OBLIGATION OF OR AN INTEREST IN, AND IS NOT GUARANTEED BY, THE SERVICER, THE INDENTURE TRUSTEE (IN ALL ITS CAPACITIES), THE ADMINISTRATOR OR ANY AFFILIATE OF ANY OF THEM AND IS NOT INSURED OR GUARANTEED BY ANY GOVERNMENTAL AGENCY OR PRIVATE INSURER.
Exhibit A-4-3
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
ADVANCE RECEIVABLES BACKED NOTES, [ ]
CLASS [ ] NOTE
NRZ Servicer Advance Receivables Trust CS, a Delaware statutory trust (the “ Issuer ”), for value received, hereby promises to pay to [ ], or registered assigns (the “ Noteholder ”), [interest and principal as provided in the Indenture] [the principal sum of [ ] $[ ], or such part thereof as may be advanced and outstanding hereunder and to pay interest on such principal sum or such part thereof as shall remain unpaid from time to time, at the rate and at the times provided in the Indenture].
Principal of this Note is payable on each applicable [Interim Payment Date and] Payment Date as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Outstanding Note Balance of this Note bears interest at the applicable Note Interest Rate as set forth in the Indenture. On each applicable [Interim Payment Date and] Payment Date, in accordance with the terms and provisions of the Indenture, interest on this Note will be paid as set forth in Section[s] [4.4] and 4.5 of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement.
Capitalized terms used but not defined herein have the meanings set forth in the Amended and Restated Indenture, (as may be amended from time to time, the “ Base Indenture ”), dated as of December 17, 2013, among the Issuer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (the “ Indenture Trustee ”), Nationstar Mortgage LLC (“ Nationstar Mortgage ”), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC (“ Advance Purchaser ”), as Servicer (on and after the respective MSR Transfer Dates) and as Administrator and Credit Suisse AG, New York Branch (“ Credit Suisse ”), as Administrative Agent (the “ Administrative Agent ”), and an Indenture Supplement (the “ [Insert Series Name] Indenture Supplement ” and together with the Base Indenture, the “ Indenture ”), dated as of [ ], 20 [ ], by and among [insert parties to Indenture Supplement].
[In the event of a VFN Principal Balance increase funded by the Noteholders, the Noteholder of this Note shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of any VFN Principal Balance increase funded by it, and each repayment thereof; provided , that failure to make any such recordation on such schedule or any error in such schedule shall not adversely affect any Noteholder’s rights with respect to the VFN Principal Balance and its right to receive interest payments in respect thereof.]
[By its acceptance of this Note, each Noteholder covenants and agrees, until the termination of the Revolving Period, on each Funding Date or each Limited Funding Date to advance amounts in respect of any VFN Principal Balance increase hereunder to the Issuer, subject to and in accordance with the terms of the Indenture and that certain Note Purchase Agreement (the “ Note Purchase Agreement ”), dated as of [ ], 20[ ], among [insert parties to related Note Purchase Agreement].]
Exhibit A-4-4
[In the event of a payment of all or a portion of the Note Balance of this Note, in accordance with the terms and provisions of the Indenture, the Noteholder thereof shall, and is hereby authorized to, record on the schedule attached to this Note the date and amount of the Outstanding Note Balance of this Note following such payment.]
Absent manifest error, the [Note] [VFN Principal] Balance of each Note as set forth in the notations made by the related Noteholder on such Note shall be binding upon the Indenture Trustee, the Note Registrar and the Issuer; provided , that failure by a Noteholder to make such recordation on its Note or any error in such notation shall not adversely affect any Noteholder’s rights with respect to the [Note] [VFN Principal] Balance of its Note and such Noteholder’s right to receive payments in respect of principal and interest in respect thereof.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
The statements in the legend set forth above are an integral part of the terms of this Note and by acceptance hereof each Holder of this Note agrees to be subject to and bound by the terms and provisions set forth in such legend.
Unless the certificate of authentication hereon shall have been executed by an Authorized Signatory of the Indenture Trustee and, if an Authenticating Agent has been appointed by the Indenture Trustee pursuant to Section 11.12 of the Base Indenture, such Authenticating Agent by manual signature, this Note shall not entitle the Noteholder hereof to any benefit under the Indenture and/or be valid for any purpose.
THIS NOTE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF THE PARTIES HEREUNDER, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Exhibit A-4-5
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below.
Date: , 20[ ]
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
| By: |
|
|
| Issuer Authorized Officer | ||
Exhibit A-4-6
INDENTURE TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | WELLS FARGO BANK, N.A., not in its individual capacity but solely as Indenture Trustee | |||
| By: |
|
|||
| Title: | Authorized Signatory of Indenture Trustee | |||
[AUTHENTICATING AGENT’S
CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the Class designated herein and referred to in the within-mentioned Indenture.
| Date: , 20[ ] | [ ], as Authenticating Agent | |||
| By: |
|
|||
| Title: | Authorized Signatory of Authenticating Agent | |||
Exhibit A-4-7
[REVERSE OF NOTE]
This Note is one of the duly authorized Class [ ] Notes of the Issuer, designated as its NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series [ ], Class [ ] (herein called the “ Class [ ] Notes ”), all issued under the Indenture. Reference is hereby made to the Indenture for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee (in all its capacities) and the Holders of the Notes. To the extent that any provision of this Note contradicts or is inconsistent with the provisions of the Indenture, the provisions of the Indenture shall control and supersede such contradictory or inconsistent provision herein. The Notes are subject to all terms of the Indenture.
The payments on the Class [ ] Notes are [senior to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes][, and subordinate to the Class [ ] Notes, the Class [ ] Notes and the Class [ ] Notes], as and to the extent provided in the Indenture.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied in accordance with the Indenture.
The entire unpaid principal amount and all accrued and unpaid interest of this Note shall be due and payable on the earlier of (i) any Redemption Payment Date as set forth in Section 13.1 of the Indenture [or in Section [ ] of the [Series Name] Indenture Supplement] and (ii) the Stated Maturity Date. Notwithstanding the foregoing, the entire unpaid principal amount and all accrued and unpaid interest of the Notes shall be immediately due and payable on the date on which an Event of Default of the kind specified in clause (d) or (e) of Section 8.1 of the Base Indenture occurs, and, if any other Event of Default occurs and is continuing, then and in each and every such case, either the Indenture Trustee or the requisite percentage of Noteholders of each Series, by notice in writing to the Issuer (and to the Indenture Trustee if given by the Holders), may declare all Notes to be immediately due and payable in the manner provided in the Indenture. All applicable principal payments on the Notes shall be made to the Holders of the Notes entitled thereto in accordance with the terms of the Indenture.
The Trust Estate secures this Class [ ] Note and all other Class [ ] Notes equally and ratably without prejudice, priority or distinction between any Class [ ] Note and any other Class [ ] Note. The Notes are limited recourse obligations of the Issuer and are limited in right of payment to amounts available from the Trust Estate, as provided in the Indenture. The Issuer shall not otherwise be liable for payments on the Notes, and none of the owners, agents, officers, directors, employees, or successors or assigns of the Issuer shall be personally liable for any amounts payable, or performance due, under the Notes or the Indenture.
Any payment of interest or principal on this Note shall be paid on the applicable [Interim Payment Date and] Payment Date as set forth in the Indenture to the Person in whose name this Note (or one or more predecessor Notes) is registered in the Note Register as of the close of business on the related Record Date by wire transfer in immediately available funds to the account specified in writing by the related Noteholder to the extent provided by the Indenture and otherwise by check mailed to the Noteholder.
Exhibit A-4-8
[Any reduction in the Note Balance of this Note (or any one or more predecessor Notes) effected by any payments made on any applicable [Interim Payment Date and] Payment Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon.]
[Any reduction in the Maximum VFN Principal Balance or the VFN Principal Balance, as the case may be, of this Class [ ] Note (or any one or more predecessor Notes) effected by any payments made with respect thereto or otherwise pursuant to the terms of the Indenture shall be binding upon all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. Any VFN Principal Balance increase of this Class [ ] Note (or any one or more predecessor Notes) effected by payments to the Issuer shall be binding upon the Issuer and shall inure to the benefit of all future Holders of this Class [ ] Note and of any Note issued upon the registration of transfer hereof or exchange hereof or in lieu hereof, whether or not noted hereon.]
As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in the form attached hereto duly executed by, the Holder hereof or such Holder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“ STAMP ”), and thereupon one or more new Notes of authorized denominations and in the same [aggregate principal amount] [VFN Principal Balance] will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the Issuer may require the Noteholder to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange.
Each Noteholder, by acceptance of a Note or a beneficial ownership interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the Securities Exchange Act of 1934, as amended, of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Exhibit A-4-9
Each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against NRZ Servicer Advance Facility Transferor CS, LLC (the “ Depositor ”) or the Issuer, or join in any institution against the Depositor or the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, this Indenture, any Supplemental Credit Enhancement Agreement, any Derivative Agreement and any Liquidity Facility.
The Issuer has entered into the Indenture and this Note is issued with the intention that, for United States federal, state and local income and franchise tax purposes, the Notes will qualify as indebtedness secured by the Receivables. Each Noteholder, by its acceptance of a Note, and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agrees to treat such Notes as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by Applicable Law in a proceeding of final determination.
Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agent of the Issuer, the Note Registrar, the Paying Agent or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any such agent shall be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer or other parties thereto and the rights of the Holders of the Notes under the Indenture at any time pursuant to the terms and provisions of Article XII of the Base Indenture and Section [ ] of the [Series Name] Indenture Supplement. The Indenture also contains provisions permitting the Holders of Notes representing specified percentages of the Outstanding Notes or a particular Class of Notes, on behalf of all of the Noteholders, or the Administrative Agent, as applicable, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of any Noteholder.
The term “Issuer” as used in this Note includes any successor to the Issuer under the Indenture.
[For any Note issued in definitive form] [This Note is issuable only in definitive form in denominations as provided in the [Series Name] Indenture Supplement, subject to certain limitations therein set forth.]
Exhibit A-4-10
Notwithstanding any other provisions herein or in the Indenture, a Holder of this Note will have the right, which is absolute and unconditional, to receive payment of the principal of and interest on this Note on the Stated Maturity Date and to institute suit for the enforcement of any such payment, and such right will not be impaired without the consent of the Holder; provided , however , that notwithstanding any other provision of the Indenture to the contrary, the obligation to pay principal of or interest on this Note or any other amount payable to the Holder will be without recourse to the Receivables Seller, the Depositor, the Administrator, the Servicer, the Indenture Trustee (in any of its capacities) or any Affiliate (other than the Issuer), officer, employee or director of any of them, and the obligation of the Issuer to pay principal of or interest on this Note or any other amount payable to the Holder will be limited to amounts available from the Trust Estate and subject to the priority of payment set forth in the Indenture.
Notwithstanding any other terms of the Indenture or this Note, the obligations of the Issuer hereunder are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, the Holder hereof shall not be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No Holder of this Note shall have recourse for the payment of any amount owing in respect of this Note or the Indenture or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under this Note or the Indenture. The foregoing provisions of this Note shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate, (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by this Note or secured by the Indenture, or (iii) limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under this Note or the Indenture, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Exhibit A-4-11
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
|
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto: |
||
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints, attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises.
| Dated: |
|
|
| Signature Guaranteed: | ||
| */ | ||
| */ | NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an “eligible guarantor institution” meeting the requirements of STAMP. |
Exhibit A-4-12
Schedule to Series [ ], Class [ ] Note
dated as of [ ], 2013
of NRZ Servicer Advance Receivables Trust CS
|
[Interim Payment Date] [Payment Date] [Payment Date of Additional Note Balance/Decrease Note Balance |
Aggregate
Amount of [principal payment] [Funding of VFN Principal Balance Increase] on Class [ ] Notes |
[Percentage Interest
in] Aggregate Note Balance of the Class [ ] Notes following [advance/] payment |
[Percentage of
Interest in] Aggregate Note Balance of this Class [ ] Note following [advance/] payment |
Note Balance of
Note following [advance/] payment |
Exhibit A-4-13
Exhibit B-1
FORM OF TRANSFEREE CERTIFICATE FOR TRANSFERS OF NOTES PURSUANT TO RULE 144A
| Issuer | NRZ Servicer Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Depositor | NRZ Servicer Advance Facility Transferor CS, LLC | |
| c/o New Residential Investment Corp | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
| Re: | $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class |
Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the
Exhibit B-1-1
respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[NOTE: COMPLETE [A] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE DURING THE DISTRIBUTION COMPLIANCE PERIOD. COMPLETE [B] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE. COMPLETE [C] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE. COMPLETE [D] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A RULE 144A DEFINITIVE NOTE. COMPLETE [E] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE. COMPLETE [F] FOR A TRANSFER OF AN INTEREST IN RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A RULE 144A GLOBAL NOTE. COMPLETE [G] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A RULE 144A DEFINITIVE NOTE.]
[A] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through [Euroclear] [Clearstream], which in turn holds through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[B] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through [Euroclear] [Clearstream], which in turn holds through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”), pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[C] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
Exhibit B-1-2
[D] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[E] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith in a Transferee Certification completed by the Transferee.
[F] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferee”), to be held through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[G] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Notes for another Rule 144A Definitive Note (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture and the Notes and (ii) Rule 144A under the Securities Act to a Transferee that the Transferor reasonably believes is purchasing the Notes for its own account and the Transferor reasonably believes that the Transferee is a “qualified institutional buyer” within the meaning of Rule 144A, and such Transferee is aware that the sale to it is being made in reliance upon Rule 144A, in each case in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction.
If the Transferor is the Noteholder of a Regulation S Note (or an interest therein) and intends to transfer such Note (or such interest) to the Transferee taking delivery of such Note (or such interest) in the form of a Restricted Note (or interest therein), the Transferor hereby certifies that the transfer is being made after the end of the Distribution Compliance Period.
Exhibit B-1-3
The certificate and the statements contained herein are made for your benefit.
| [INSERT NAME OF TRANSFEROR] | ||
| By: |
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| Name: | ||
| Title: | ||
| Dated: | ||
Exhibit B-1-4
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor NRZ Servicer Advance Facility Transferor CS, LLC | ||
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit B-1-5
The undersigned (the “Transferee”) intends to purchase $ Note Balance of Class Notes (the “Notes”) from the Transferor named in the Transfer Certificate to which this Transferee Certification is attached. In connection with the registration of the transfer of such Notes, the Transferee hereby executes and delivers to each of you this “Transferee Certification” in which the Transferee certifies to each of you the information set forth herein.
1. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”) and has completed the form of certification to that effect attached hereto as Annex A1 (if the Transferee is not a registered investment company) or Annex A2 (if the Transferee is a registered investment company). The Transferee is aware that the sale to it is being made in reliance on Rule 144A.
2. The Transferee understands that the Notes have not been registered under the 1933 Act or registered or qualified under any state securities laws and that no transfer may be made unless the Notes are registered under the 1933 Act and under applicable state law or unless the transfer complies with Section 6.5 of the Indenture and any provision in any applicable Indenture Supplement. The Transferee further understands that neither the Transferor, the Administrator, the Servicer, the Indenture Trustee nor the Note Registrar is under any obligation to register the Notes or make an exemption from such registration available.
3. The Transferee is acquiring the Notes for its own account or for the account of a “qualified institutional buyer” (as defined in Rule 144A, a “QIB”), and understands that such Notes may be resold, pledged or transferred only (a) to a person reasonably believed to be such a QIB that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (b) to a transferee that is a non-U.S. Person acquiring such interest in an “offshore transaction” (as defined in Regulation S) in compliance with the provisions of Regulation S, if the transfer is otherwise made in accordance with any applicable securities laws of any state of the United States or any other relevant jurisdiction. In addition, such transfer may be subject to additional restrictions and is subject to compliance with certain procedures, as set forth in Section 6.5 of the Indenture referred to below and any provision in any applicable Indenture Supplement. By its execution of this agreement, the Transferee agrees that it will not resell, pledge or transfer any of the Notes to anyone otherwise than in strict compliance with Rule 144A, or pursuant to another exemption from registration under the 1933 Act and all applicable state securities laws, and in strict compliance with the transfer restrictions set forth in Section 6.5 of the Indenture. The Transferee will not attempt to transfer any or all of the Notes pursuant to Rule 144A unless the Transferee offers and sells such Certificates only to QIBs or to offerees or purchasers that the Transferee and any person acting on behalf of the Transferee reasonably believe (as described in paragraph (d)(l) of Rule 144A) is a QIB.
4. The Transferee has been furnished with all information that it requested regarding (a) the Notes and distributions thereon and (b) the Indenture.
5. The Transferee has knowledge in financial and business matters and is capable of evaluating the merits and risks of an investment in the Notes; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee (or any account or which it is pursuing) is able to bear the economic risk of an investment in the Notes and can afford a complete loss of such investment.
Exhibit B-1-6
6. The Transferee is an “accredited investor” as defined in paragraph (1), (2), (3) or (7) of Rule 501(a) under the 1933 Act.
7. Either (i) the Transferee is not, and is not acquiring the Notes on behalf of or using assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. section 2510.3-101 as modified by section 3(42) of ERISA (the “Plan Asset Regulations”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code, or (ii) (A) the Transferee is acquiring a Note other than a Specified Note, (B) as of the date of the transfer or purchase, the Note is rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (C) the Transferee’s acquisition and holding of the Notes will satisfy the requirements of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (relating to transactions affected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan, will not violate any such similar U.S. federal, state or local law).
8. If the Transferee is acquiring the Notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgments, representations, warranties and agreements on behalf of each such account.
All capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Indenture, pursuant to which the Notes were issued.
IN WITNESS WHEREOF, the undersigned has caused this Transferee Certification to be executed by its duly authorized representative as of the day and year first above written.
| [TRANSFEREE] | ||||||
| By: |
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| Name: |
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Exhibit B-1-7
Annex A1 to Exhibit B-1
TRANSFEREES OTHER THAN REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive officer of the Transferee.
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”), because (a) the Transferee owned and/or invested on a discretionary basis at least $ in securities [Note to reviewer—the amount in the previous blank must be at least $100,000,000 unless the Transferee is a dealer, in which case the amount filled in the previous blank must be at least $10,000,000.] (except for the excluded securities referred to in paragraph 3 below) as of [specify a date on or since the end of the Transferee’s most recently ended fiscal year] (such amount being calculated in accordance with Rule 144A) and (b) the Transferee meets the criteria listed in the category marked below.
| Corporation, etc. The Transferee is an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, a corporation (other than a bank as defined in Section 3(a)(2) of the 1933 Act or a savings and loan association or other similar institution referenced in Section 3(a)(5)(A) of the Act), a partnership, or a Massachusetts or similar business trust. |
| Bank. The Transferee (a) is a national bank or banking institution as defined in Section 3(a)(2) of the 1933 Act and is organized under the laws of a state, territory or the District of Columbia. The business of the Transferee is substantially confined to banking and is supervised by the appropriate state or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements as of a date not more than 16 months preceding the date of this certification in the case of a U.S. bank, and not more than 18 months preceding the date of this certification in the case of a foreign bank or equivalent institution, a copy of which financial statements is attached hereto. |
| Savings and Loan. The Transferee is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution referenced in Section 3(a)(5)(A) of the 1933 Act. The Transferee is supervised and examined by a state or federal authority having supervisory authority over any such institutions or is a foreign savings and loan association or equivalent institution and has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements as of a date not more than 16 months preceding the date of this certification in the case of a U.S. savings and loan association or similar institution, and not more than 18 months preceding the date of this certification in the case of a foreign savings and loan association or equivalent institution, a copy of which financial statements is attached hereto. |
Exhibit B-1-8
| Broker-dealer. The Transferee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “1934 Act”). |
| Insurance Company. The Transferee is an insurance company as defined in Section 2(13) of the 1933 Act, whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a state, territory or the District of Columbia. |
| State or Local Plan. The Transferee is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees. |
| ERISA Plan. The Transferee is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974, as amended. |
| Investment Adviser. The Transferee is an investment adviser registered under the Investment Advisers Act of 1940, as amended. |
| Other. The Transferee qualifies as a “qualified institutional buyer” as defined in Rule 144A on the basis of facts other than those listed in any of the entries above. If this response is marked, the Transferee must certify on additional pages, to be attached to this certification, to facts that satisfy the Servicer that the Transferee is a “qualified institutional buyer” as defined in Rule 144A. |
3. The term “securities” as used herein does not include (a) securities of issuers that are affiliated with the Transferee, (b) securities constituting the whole or part of an unsold allotment to or subscription by the Transferee, if the Transferee is a dealer, (c) bank deposit notes and certificates of deposit, (d) loan participations, (e) repurchase agreements, (f) securities owned but subject to a repurchase agreement and (g) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Transferee, the Transferee used the cost of such securities to the Transferee and did not include any of the securities referred to in the preceding paragraph. Further, in determining such aggregate amount, the Transferee may have included securities owned by subsidiaries of the Transferee, but only if such subsidiaries are consolidated with the Transferee in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Transferee’s direction. However, such securities were not included if the Transferee is a majority-owned, consolidated subsidiary of another enterprise and the Transferee is not itself a reporting company under the 1934 Act.
5. The Transferee acknowledges that it is familiar with Rule 144A and understands that the Transferor and other parties related to the Notes are relying and will continue to rely on the statements made herein because one or more sales to the Transferee may be made in reliance on Rule 144A.
Exhibit B-1-9
| ¨ ¨ | ||
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6. Will the Transferee be purchasing the Notes only for the Transferee’s own account? |
YES NO |
If the answer to the foregoing question is “NO”, the Transferee agrees that, in connection with any purchase of securities sold to the Transferee for the account of a third party (including any separate account) in reliance on Rule 144A, the Transferee will only purchase for the account of a third party that at the time is a “qualified institutional buyer” within the meaning of Rule 144A. In addition, the Transferee agrees that the Transferee will not purchase securities for a third party unless the Transferee has obtained a current representation letter from such third party or taken other appropriate steps contemplated by Rule 144A to conclude that such third party independently meets the definition of “qualified institutional buyer” set forth in Rule 144A.
The Transferee will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Transferee’s purchase of the Notes will constitute a reaffirmation of this certification as of the date of such purchase. In addition, if the Transferee is a bank or savings and loan as provided above, the Transferee agrees that it will furnish to such parties updated annual financial statements promptly after they become available.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed by its duly authorized representative this day of , .
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Print Name of Transferee |
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Exhibit B-1-10
Annex A2 to Exhibit B-1
REGISTERED INVESTMENT COMPANIES
1. As indicated below, the undersigned is the President, Chief Financial Officer or Senior Vice President of the entity purchasing the Notes (the “Transferee”) or, if the Transferee is part of a Family of Investment Companies (as defined in paragraph 3 below), is an officer of the related investment adviser (the “Adviser”).
2. The Transferee is a “qualified institutional buyer” as that term is defined in Rule 144A (“Rule 144A”) promulgated under the Securities Act of 1933, as amended (the “1933 Act”), because (a) the Transferee is an investment company (a “Registered Investment Company”) registered under the Investment Company Act of 1940, as amended (the “1940 Act”) and (b) as marked below, the Transferee alone, or the Transferee’s Family of Investment Companies, owned at least $ [Note to reviewer—the amount in the previous blank must be at least $100,000,000] in securities (other than the excluded securities referred to in paragraph 4 below) as of [specify a date on or since the end of the Transferee’s most recently ended fiscal year]. For purposes of determining the amount of securities owned by the Transferee or the Transferee’s Family of Investment Companies, the cost of such securities to the Transferee or the Transferee’s Family of Investment Companies was used.
| The Transferee owned $ in securities (other than the excluded securities referred to in paragraph 4 below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
| The Transferee is part of a Family of Investment Companies which owned in the aggregate $ in securities (other than the excluded securities referred to in paragraph 4 below) as of the end of the Transferee’s most recent fiscal year (such amount being calculated in accordance with Rule 144A). |
3. The term “Family of Investment Companies” as used herein means two or more Registered Investment Companies except for a unit investment trust whose assets consist solely of shares of one or more Registered Investment Companies (provided that each series of a “series company,” as defined in Rule 18f-2 under the 1940 Act, shall be deemed to be a separate investment company) that have the same investment adviser (or, in the case of a unit investment trust, the same depositor) or investment advisers (or depositors) that are affiliated (by virtue of being majority-owned subsidiaries of the same parent or because one investment adviser is a majority-owned subsidiary of the other).
4. The term “securities” as used herein does not include (a) securities of issuers that are affiliated with the Transferee or are part of the Transferee’s Family of Investment Companies, (b) bank deposit notes and certificates of deposit, (c) loan participations, (d) repurchase agreements, (e) securities owned but subject to a repurchase agreement and (f) currency, interest rate and commodity swaps.
5. The Transferee is familiar with Rule 144A and understands that the parties to which this certification is being made are relying and will continue to rely on the statements made herein because one or more sales to the Transferee will be in reliance on Rule 144A. In addition, the Transferee will only purchase for the Transferee’s own account.
Exhibit B-1-11
6. The undersigned will notify the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice, the Transferee’s purchase of the Purchased Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed by its duly authorized representative this of , .
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[Print Name of Transferee or Adviser] |
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| [Print Name of Transferee] | ||
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Exhibit B-1-12
Exhibit B-2
FORM OF TRANSFEREE CERTIFICATE FOR TRANSFER OF NOTES PURSUANT TO REGULATION S
[Transferee to Receive Regulation S Note]
| Issuer | NRZ Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor CS, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
|
Re: $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class |
||
Exhibit B-2-1
Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
[NOTE: COMPLETE [A] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE DURING THE DISTRIBUTION COMPLIANCE PERIOD. COMPLETE [B] FOR A TRANSFER OF AN INTEREST IN A RULE 144A GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE. COMPLETE [C] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE. COMPLETE [D] FOR A TRANSFER OF AN INTEREST IN A RULE 144A DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A REGULATION S DEFINITIVE NOTE. COMPLETE [E] FOR A TRANSFER OF AN INTEREST IN A REGULATION S GLOBAL NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE. COMPLETE [F] FOR A TRANSFER OF AN INTEREST IN REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF AN INTEREST IN A REGULATION S GLOBAL NOTE. COMPLETE [G] FOR A TRANSFER OF AN INTEREST IN A REGULATION S DEFINITIVE NOTE TO A TRANSFEREE THAT TAKES DELIVERY IN THE FORM OF A REGULATION S DEFINITIVE NOTE.]
[A] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[B] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Rule 144A Global Note (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[C] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”) . The Transferor has requested a transfer of such beneficial interest in the Notes for a beneficial interest in a
Exhibit B-2-2
Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee” ) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[D] This letter relates to a Rule 144A Definitive Note (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[E] This letter relates to principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferor”) through the Depository. The Transferor has requested a transfer of such beneficial interest in the Notes for a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
[F] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested a transfer of such Note for a beneficial interest in a Regulation S Global Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) through [Euroclear] [Clearstream], which in turn holds through the Depository. Delivered herewith is a Transferee Certification completed by the Transferee.
[G] This letter relates to a Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the principal amount of in the name of (the “Transferor”). The Transferor has requested of such beneficial interest in the Notes for Regulation S Definitive Note (ISIN No. ) (CUSIP No. ) in the name of (the “Transferee”) pursuant to Section 6.5 of the Indenture. Delivered herewith is a Transferee Certification completed by the Transferee.
In connection with such request, and in respect of such Notes, the Transferor does hereby certify that such Notes are being transferred in accordance with (i) the transfer restrictions set forth in the Indenture and the Notes, and that:
(i) the offer of the Notes was not made to a person in the United States;
(ii) at the time the buy order was originated, the Transferee was outside the United States or the Transfer and any person acting on its behalf reasonably believed that the Transferee was outside the United States
(iii) no directed selling efforts have been made in contravention of the requirements of Rule 903 or 904 of Regulation S, as applicable;
Exhibit B-2-3
(iv) the transaction is not part of a plan or scheme to evade the registration requirements of the United States Securities Act of 1933, as amended (the “Securities Act”); and
(v) the Transferee is not a U.S. Person.
If the Transferor is the Noteholder of a Regulation S Note (or an interest therein) and intends to transfer such Note (or such interest) to the Transferee taking delivery of such Note (or such interest) in the form of a Restricted Note (or interest therein), the Transferor hereby certifies that the transfer is being made after the end of the Distribution Compliance Period.
Exhibit B-2-4
The certificate and the statements contained herein are made for your benefit.
| [INSERT NAME OF TRANSFEROR] | ||
| By: | ||
| Name: | ||
| Title: | ||
Dated:
Exhibit B-2-5
TRANSFEREE CERTIFICATION
| Issuer | NRZ Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor CS, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
|
Re: $[ ] Nationstar Advance Receivables Backed Notes, Series 20 - , Class |
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Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit B-2-6
The undersigned (the “Transferee”) intends to purchase $ Note Balance of Class Notes (the “Notes”) from the Transferor named in the Transfer Certificate to which this Transferee Certification is attached. In connection with the registration of the transfer of such Notes, the Transferee hereby executes and delivers to each of you this “Transferee Certification” in which the Transferee certifies to each of you the information set forth herein.
1. The Transferee (i) is acquiring such Notes in an offshore transaction in accordance with Rule 904 of Regulation S, (ii) is acquiring such Notes for its own account, (iii) is not acquiring, and has not entered into any discussions regarding its acquisition of, such Notes while it is in the United States of America or any of its territories or possessions, (iv) understands that such Notes are being sold without registration under the Securities Act by reason of an exemption that depends, in part, on the accuracy of these representations, (v) understands that such Notes may not, absent an applicable exemption, be transferred without registration and/or qualification under the Securities Act and applicable state securities laws and the laws of any other applicable jurisdiction and (vi) understands that prior to the end of the Distribution Compliance Period, interests in a Regulation S Note may only be held through Euroclear or Clearstream.
2. The Transferee understands that the Notes have not been registered under the Securities Act and, therefore, cannot be offered or sold in the United States or to U.S. Persons (as defined in Rule 902(k) promulgated under the Securities Act) unless they are registered under the Securities Act or unless an exemption from registration is available. Accordingly, the certificates representing the Notes will bear a legend stating that the Notes have not been registered under the Securities Act and setting forth certain of the restrictions on transfer of the Notes. The Transferee understands that the Issuer has no obligation to register the Notes under the Securities Act or to comply with the requirements for any exemption from the registration requirements of the Securities Act.
3. The Transferee understands that the Notes (or any interest therein) may be resold, pledged or transferred only (a) to a person whom the Transferee reasonably believes after due inquiry is, and who has certified that it is, a “qualified institutional buyer” (a “QIB”) that purchases for its own account or for the account of a QIB to whom notice is given that the resale, pledge or transfer is being made in reliance on Rule 144A or (b) to a transferee that is a non-U.S. Person acquiring such interest in an “offshore transaction” (as defined in Regulation S) in compliance with the provisions of Regulation S, if the transfer is otherwise made in accordance with any applicable securities laws of any state of the United States or any other relevant jurisdiction. In addition, such transfer may be subject to additional restrictions and is subject to compliance with certain procedures, as set forth in Section 6.5 of the Indenture referred to above.
4. The Transferee has been furnished with all information that it requested regarding (a) the Notes and distributions thereon and (b) the Indenture.
Exhibit B-2-7
5. The Transferee has knowledge in financial and business matters and is capable of evaluating the merits and risks of an investment in the Notes; the Transferee has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision; and the Transferee (or any account or which it is pursuing) is able to bear the economic risk of an investment in the Notes and can afford a complete loss of such investment.
6. [For Notes other than Specified Notes (unless otherwise specified in the related Supplement)] Either (i) the Transferee is not, and is not acquiring the Notes on behalf of or with assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by section 3(42) of ERISA (the “Plan Asset Regulations”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code, or (ii) (A) as of the date of the transfer or purchase, the Note is rated investment grade, it believes that such Note is properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Note and (B) the Transferee’s acquisition and holding of the Notes will satisfy the requirements of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (relating to transactions affected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class or statutory exemption and will not result in a non-exempt prohibited transaction under section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental or church plan, will not violate any such similar U.S. federal, state or local law). [For Specified Notes (unless otherwise specified in the related Supplement)] The Transferee is not, and is not acquiring the Notes on behalf of or with assets of, an “employee benefit plan” as defined in section 3(3) of ERISA, a plan described in section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by section 3(42) of ERISA, which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental or church plan which is subject to any U.S. federal, state or local law that is similar to Title I of ERISA or section 4975 of the Code.
All capitalized terms used but not otherwise defined herein have the respective meanings assigned thereto in the Indenture, pursuant to which the Notes were issued.
Exhibit B-2-8
IN WITNESS WHEREOF, the undersigned has caused this Transferee Certification to be executed by its duly authorized representative as of the day and year first above written.
| [TRANSFEREE] | ||
| By: | ||
| Name: | ||
| Title: | ||
Exhibit B-2-9
Exhibit C
Form of Notice to MBS Trustee/Notice of Assignment of Receivables
Exhibit C-1
Exhibit D
AGREED UPON PROCEDURES
Please see Exhibit 1 to the Verification Agent Engagement Letter, dated as of December 17, 2013, among PricewaterhouseCoopers LLP, and Nationstar Mortgage LLC, and acknowledged by the Administrative Agent in a related Acknowledgement Letter
Exhibit D-1
Exhibit E
FORM OF ADDITIONAL TRANSFEREE CERTIFICATION REQUIRED UNDER SECTION 6.5(M) OF THE INDENTURE
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor CS, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit E-1
The undersigned (the “Transferee”) intends to purchase a beneficial interest in a Class 1 Specified Note representing $ principal balance of a Class 1 Specified Note from [the Transferor named in the Transfer Certificate to which this Transferee Certification is attached]. In connection with the transfer of such beneficial interest in a Class 1 Specified Note (the “Transfer”), the Transferee does hereby certify that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under the Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 1 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 1 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any or beneficial interest in the Class 1 Specified Note and it will not cause any beneficial interest in the Class 1 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof),” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 1 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture, and it does not and will not hold any beneficial interest in the Class 1 Specified Note on behalf of any Person whose beneficial interest in the Class 1 Specified Note is in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 1 Specified Note or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 1 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in a Class 1 Specified Note would be in an amount that is less than the minimum denomination for the Class 1 Specified Notes set forth in the Indenture.
(iv) It will not transfer any beneficial interest in the Class 1 Specified Note ( directly, through a participation thereof, or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit E of the Indenture.
Exhibit E-2
(v) It will not use the Class 1 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is a Class 1 Specified Note, provided the terms of such repurchase transaction are generally consistent with prevailing market practice.
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) The Transferee understands that tax counsel to the Trust has provided an opinion substantially to the effect that the Trust will not be taxable as a corporation for U.S. federal income tax purposes and that the validity of such opinion is dependent in part on the accuracy of the representations herein.
(viii) This Transferee Certification has been duly executed and delivered and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the enforcement of creditors’ rights generally and general principles of equity, and indemnification sought in respect of securities laws violations may be limited by public policy.
(ix) It acknowledges that the Depositor, the Issuer, the Trustee, the Note Registrar and others will rely on the truth and accuracy of the foregoing representations and warranties, and agrees that if it becomes aware that any of the foregoing made by it or deemed to have been made by it are no longer accurate, it shall promptly notify the Issuer.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT ANY TRANSFER TO OR BY THE UNDERSIGNED IN VIOLATION OF ANY OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO OR BY THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, THE NOTE REGISTRAR OR ANY OTHER PERSON.
| [TRANSFEREE] |
| By: |
| Name: |
| Title: |
Exhibit E-3
Exhibit F
FORM OF ADDITIONAL TRANSFEREE CERTIFICATION REQUIRED UNDER SECTION 6.5(N) OF THE INDENTURE
TRANSFEREE CERTIFICATION
| Issuer | NRZ Servicer Advance Receivables Trust CS | |
| c/o Wilmington Trust, National Association, as Owner Trustee | ||
| Rodney Square North | ||
| 1100 North Market Street | ||
| Wilmington, DE 19890 | ||
| Servicer/ | Nationstar Mortgage LLC | |
| Subservicer | 350 Highland Drive | |
| Lewisville, TX 75067 | ||
| Attention: Jason Wiley | ||
| Nationstar Mortgage LLC | ||
| 350 Highland Drive | ||
| Lewisville, TX 75067 | ||
| Attention: Amar Patel | ||
| Servicer/ | Advance Purchaser LLC | |
| Administrator | c/o New Residential Investment Corp. | |
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention: Susan Givens | ||
| Depositor | NRZ Servicer Advance Facility Transferor CS, LLC | |
| c/o New Residential Investment Corp. | ||
| 1345 Avenue of the Americas | ||
| New York, NY 10105 | ||
| Attention Susan Givens | ||
| Indenture Trustee | Wells Fargo Bank, N.A. | |
| 9062 Old Annapolis Road | ||
| Columbia, Maryland 21045-1951 | ||
| Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS | ||
Reference is hereby made to the Amended and Restated Indenture, (as may be amended from time to time, the “ Indenture ”), dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust, CS, as Issuer, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Servicer (on and after the respective MSR Transfer Dates) and as Administrator, and Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, and Credit Suisse AG, New York Branch, as Administrative Agent. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
Exhibit F-5
The undersigned (the “Transferee”) intends to purchase a beneficial interest in a Class 2 Specified Note representing $ principal balance of a Class 2 Specified Note from [the Transferor named in the Transfer Certificate to which this Transferee Certification is attached]. In connection with the transfer of such beneficial interest in a Class 2 Specified Note (the “Transfer”), the Transferee does hereby certify that:
(i) Either (a) it is not and will not become for U.S. federal income tax purposes a partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through entity”) or (b) if it is or becomes a flow-through entity, then (I) none of the direct or indirect beneficial owners of any of the interests in such flow-through entity has or ever will have more than 50% of the value of its interest in such flow-through entity attributable to the beneficial interest of such flow-through entity in the Notes, other interest (direct or indirect) in the Issuer, or any interest created under the Indenture and (II) it is not and will not be a principal purpose of the arrangement involving the flow-through entity’s beneficial interest in any Class 2 Specified Note to permit any partnership to satisfy the 100-partner limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary for such partnership not to be classified as a publicly traded partnership under the Internal Revenue Code.
(ii) It is not acquiring any beneficial interest in the Class 2 Specified Note and it will not sell, transfer, assign, participate, or otherwise dispose of any or beneficial interest in the Class 2 Specified Note and it will not cause any beneficial interest in the Class 2 Specified Note to be marketed, in each case on or through an “established securities market” or a “secondary market (or the substantial equivalent thereof),” each within the meaning of Section 7704(b) of the Internal Revenue Code, including, without limitation, an interdealer quotation system that regularly disseminates firm buy or sell quotations.
(iii) Its beneficial interest in the Class 2 Specified Notes is not and will not be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture, and it does not and will not hold any beneficial interest in the Class 2 Specified Note on behalf of any Person whose beneficial interest in the Class 2 Specified Note is in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture. It will not sell, transfer, assign, participate, or otherwise dispose of any beneficial interest in the Class 2 Specified Note or enter into any financial instrument or contract the value of which is determined by reference in whole or in part to any Class 2 Specified Note, in each case if the effect of doing so would be that the beneficial interest of any Person in a Class 2 Specified Note would be in an amount that is less than the minimum denomination for the Class 2 Specified Notes set forth in the Indenture.
(iv) It will not transfer any beneficial interest in the Class 2 Specified Note ( directly, through a participation thereof, or otherwise) unless, prior to the transfer, the transferee shall have executed and delivered to the Indenture Trustee and the Note Registrar, and any of their respective successors or assigns, a Transferee Certification substantially in the form of Exhibit F of the Indenture.
Exhibit F-6
(v) It will not use the Class 2 Specified Note as collateral for the issuance of any securities that could cause the Trust to become subject to taxation as a taxable mortgage pool taxable as a corporation, publicly traded partnership taxable as a corporation or association taxable as a corporation, each for U.S. federal income tax purposes, provided that it may engage in any repurchase transaction (repo) the subject matter of which is a Class 2 Specified Note, provided the terms of such repurchase transaction are generally consistent with prevailing market practice.
(vi) It will not take any action and will not allow any other action that could cause the Trust to become taxable as a corporation for U.S. federal income tax purposes.
(vii) It is a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code and will not transfer to, or cause such Class 2 Specified Note to be transferred to, any person other than a “United States person,” as defined in Section 7701(a)(30) of the Internal Revenue Code.
(viii) The Transferee understands that tax counsel to the Trust has provided an opinion substantially to the effect that the Trust will not be taxable as a corporation for U.S. federal income tax purposes and that the validity of such opinion is dependent in part on the accuracy of the representations herein.
(ix) This Transferee Certification has been duly executed and delivered and constitutes the legal, valid and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the enforcement of creditors’ rights generally and general principles of equity, and indemnification sought in respect of securities laws violations may be limited by public policy.
(x) It acknowledges that the Depositor, the Issuer, the Trustee, the Note Registrar and others will rely on the truth and accuracy of the foregoing representations and warranties, and agrees that if it becomes aware that any of the foregoing made by it or deemed to have been made by it are no longer accurate, it shall promptly notify the Issuer.
THE UNDERSIGNED HEREBY ACKNOWLEDGES THAT ANY TRANSFER TO OR BY THE UNDERSIGNED IN VIOLATION OF ANY OF THE FOREGOING WILL BE OF NO FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY RIGHTS TO OR BY THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE, THE NOTE REGISTRAR OR ANY OTHER PERSON.
Exhibit F-7
| [TRANSFEREE] |
| By: |
| Name: |
| Title: |
Exhibit F-8
Exhibit G-1
AUTHORIZED REPRESENTATIVES OF THE INDENTURE TRUSTEE,
CALCULATION AGENT, PAYING AGENT AND
SECURITIES INTERMEDIARY
| Mark DeFabio, | /s/ Mark DeFabio | |||
| Vice President | ||||
|
Kristen A. Cronin, |
/s/ Kristen A. Cronin | |||
|
Vice President |
||||
| Leon Costello, | /s/ Leon Costello | |||
| Assistant Vice President | ||||
Exhibit G-1-1
Exhibit G-2
AUTHORIZED REPRESENTATIVES OF THE SERVICER
Exhibit G-2-1
Authorized Representatives of Nationstar Mortgage LLC
|
Name: |
Title: |
Signature: |
||
|
Ellen Coleman |
Executive Vice President |
/s/ Ellen Coleman |
Exhibit G-2-2
Exhibit G-3
AUTHORIZED REPRESENTATIVES OF THE ADMINISTRATIVE AGENT
|
Name: |
Title: |
Signature: |
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| Jason Ruchelsman | Vice President |
/s/ Jason Ruchelsman |
||
| Michelangelo Raimondi | Vice President | /s/ Michelangelo Raimondi |
Exhibit G-3-1
Exhibit G-4
Authorized Representatives of the Issuer
EXHIBIT A
|
Name |
Office |
Signature |
||
| William J. Farrell |
Executive Vice President |
/s/ William J. Farrell |
||
| John M. Beeson, Jr. |
Senior Vice President |
/s/ John M. Beeson, Jr. |
||
| Cynthia L. Corliss |
Senior Vice President |
/s/ Cynthia L. Corliss |
||
| Patrick Trainor |
Senior Vice President |
/s/ Patrick Trainor |
||
| Daniel R. Fisher |
Group Vice President |
/s/ Daniel R. Fisher |
||
| Stefanie A. Armijo |
Administrative Vice President |
/s/ Stefanie A. Armijo |
||
| Nadine L. Black |
Administrative Vice President |
/s/ Nadine L. Black |
||
| Robert D. Brown |
Administrative Vice President |
/s/ Robert D. Brown |
||
| John A. Hayes, III |
Administrative Vice President |
/s/ John A. Hayes, III |
||
| Timothy Mowdy |
Administrative Vice President |
/s/ Timothy Mowdy |
||
| Joseph L. Nardi |
Administrative Vice President |
/s/ Joseph L. Nardi |
||
| Sandra R. Ortiz |
Administrative Vice President |
/s/ Sandra R. Ortiz |
||
| Mary Kay Pupillo |
Administrative Vice President |
/s/ Mary Kay Pupillo |
||
| Nicholas D. Tally |
Administrative Vice President |
/s/ Nicholas D. Tally |
||
| Nicholas A. Adams |
Vice President |
/s/ Nicholas A. Adams |
||
| Adnan Ahmad |
Vice President |
/s/ Adnan Ahmad |
Exhibit G-4-1
|
Mary Alice Avery |
Vice President | /s/ Mary Alice Avery | ||
|
Joseph Baker |
Vice President | /s/ Joseph Baker | ||
|
Adam K. Berman |
Vice President | /s/ Adam K. Berman | ||
|
Robert H. Bockrath, II |
Vice President | /s/ Robert H. Bockrath, II | ||
|
Brian Buchanan |
Vice President | /s/ Brian Buchanan | ||
|
Steven M. Cimalore |
Vice President | /s/ Steven M. Cimalore | ||
|
Joseph Clark |
Vice President | /s/ Joseph Clark | ||
|
James C. Deitrick |
Vice President | /s/ James C. Deitrick | ||
|
Patrick J. Donahue |
Vice President | /s/ Patrick J. Donahue | ||
|
Robert J. Donaldson |
Vice President | /s/ Robert J. Donaldson | ||
|
Patricia A. Evans |
Vice President | /s/ Patricia A. Evans | ||
|
Joseph B. Feil |
Vice President | /s/ Joseph B. Feil | ||
|
Kenneth A. Feinfield |
Vice President | /s/ Kenneth A. Feinfield | ||
|
Robert C. Fiedler |
Vice President | /s/ Robert C. Fiedler | ||
|
Peter F. Finkel |
Vice President | /s/ Peter F. Finkel | ||
|
Nancy L. George |
Vice President | /s/ Nancy L. George | ||
|
Nancy D. Gray |
Vice President | /s/ Nancy D. Gray |
Exhibit G-4-2
|
Douglas Grochowski |
Vice President | /s/ Douglas Grochowski | ||
|
Jared J. Grunig |
Vice President | /s/ Jared J. Grunig | ||
|
Daniel G. Hamilton |
Vice President | /s/ Daniel G. Hamilton | ||
|
Donald C. Hargadon |
Vice President | /s/ Donald C. Hargadon | ||
|
Gregory Hasty |
Vice President | /s/ Gregory Hasty | ||
|
Pamela Hazelip |
Vice President | /s/ Pamela Hazelip | ||
|
Charles Hicks |
Vice President | /s/ Charles Hicks | ||
|
Garry Hills |
Vice President | /s/ Garry Hills | ||
|
Rex F. Hood |
Vice President | /s/ Rex F. Hood | ||
|
Rebecca L. Howell |
Vice President | /s/ Rebecca L. Howell | ||
|
Nancy James |
Vice President | /s/ Nancy James | ||
|
Tira L. Johnson |
Vice President | /s/ Tira L. Johnson | ||
|
Jeffrey Kassels |
Vice President | /s/ Jeffrey Kassels | ||
|
Eleanor D. Kress |
Vice President | /s/ Eleanor D. Kress | ||
|
Renee A. Kuhl |
Vice President | /s/ Renee A. Kuhl | ||
|
Richard F. Klumpp |
Vice President | /s/ Richard F. Klumpp | ||
|
Ronald J. Kruppa |
Vice President | /s/ Ronald J. Kruppa |
Exhibit G-4-3
| Baron W. Legault | Vice President |
/s/ Baron W. Legault |
||
| Camilla J. Lindsey | Vice President |
/s/ Camilla J. Lindsey |
||
| Larry R. Long | Vice President |
/s/ Larry R. Long |
||
| Jennifer A. Luce | Vice President |
/s/ Jennifer A. Luce |
||
| Roseline K. Maney | Vice President |
/s/ Roseline K. Maney |
||
| Victoria L. Manrique | Vice President |
/s/ Victoria L. Manrique |
||
| Jeanie Mar | Vice President |
/s/ Jeanie Mar |
||
| Jennifer E. Matz | Vice President |
/s/ Jennifer E. Matz |
||
| Frank W. McDonald | Vice President |
/s/ Frank W. McDonald |
||
| Aaron G. McManus | Vice President |
/s/ Aaron G. McManus |
||
| Alphonse C. Miller | Vice President |
/s/ Alphonse C. Miller |
||
| Boyd S. Minnix | Vice President |
/s/ Boyd S. Minnix |
||
| Dante M. Monakil | Vice President |
/s/ Dante M. Monakil |
||
| Christopher J. Monigle | Vice President |
/s/ Christopher J. Monigle |
||
| Kimberlee A. Montana | Vice President |
/s/ Kimberlee A. Montana |
||
| W. Thomas Morris, II | Vice President |
/s/ W. Thomas Morris, II |
||
| John Mulvena | Vice President |
/s/ John Mulvena |
Exhibit G-4-4
| Joseph P. O’Donnell | Vice President | /s/ Joseph P. O’Donnell | ||
| Jeanne M. Oller | Vice President | /s/ Jeanne M. Oller | ||
| Michael W. Orendorf | Vice President | /s/ Michael W. Orendorf | ||
| Robert J. Perkins | Vice President | /s/ Robert J. Perkins | ||
| Jolene Perry | Vice President | /s/ Jolene Perry | ||
| Margaret Pulgini | Vice President | /s/ Margaret Pulgini | ||
| Miguel Rodriguez | Vice President | /s/ Miguel Rodriguez | ||
| Jeffery Rose | Vice President | /s/ Jeffery Rose | ||
| Joann A. Rozell | Vice President | /s/ Joann A. Rozell | ||
| Erik L. Saville | Vice President | /s/ Erik L. Saville | ||
| Robert Sher | Vice President | /s/ Robert Sher | ||
| Jane Y. Schweiger | Vice President | /s/ Jane Y. Schweiger | ||
| W. Chris Sponenberg | Vice President | /s/ W. Chris Sponenberg | ||
| Christopher J. Slaybaugh | Vice President | /s/ Christopher J. Slaybaugh | ||
| Jay Smith IV | Vice President | /s/ Jay Smith IV | ||
| Aaron Soper | Vice President | /s/ Aaron Soper | ||
| Mary C. St. Amand | Vice President | /s/ Mary C. St. Amand |
Exhibit G-4-5
| Lynn Mary Steiner | Vice President |
/s/ Lynn Mary Steiner |
||
| Mary Alice Stopyra | Vice President |
/s/ Mary Alice Stopyra |
||
| Boris Treyger | Vice President |
/s/ Boris Treyger |
||
| David A. Vanaskey, Jr. | Vice President |
/s/ David A. Vanaskey, Jr. |
||
| Heather K. Vander Linden | Vice President |
/s/ Heather K. Vander Linden |
||
| Mindy Walser | Vice President |
/s/ Mindy Walser |
||
| Andrew Wassing | Vice President |
/s/ Andrew Wassing |
||
| Steven J. Wattie | Vice President |
/s/ Steven J. Wattie |
||
| Raymond H. Werkmeister, III | Vice President |
/s/ Raymond H. Werkmeister, III |
||
| Michelle M. Wojciechowicz | Vice President |
/s/ Michelle M. Wojciechowicz |
||
| Anita R. Woolery | Vice President |
/s/ Anita R. Woolery |
||
| Patrick J. Wood | Vice President |
/s/ Patrick J. Wood |
||
| Brooks Von Arx, Jr. | Vice President |
/s/ Brooks Von Arx, Jr. |
||
| David B. Young | Vice President |
/s/ David B. Young |
||
| M. Anthony Argenio | Assistant Vice President |
/s/ M. Anthony Argenio |
||
| Maureen A. Auld | Assistant Vice President |
/s/ Maureen A. Auld |
Exhibit G-4-6
| Steven M. Barone | Assistant Vice President | /s/ Steven M. Barone | ||
| Julie Ann Black | Assistant Vice President | /s/ Julie Ann Black | ||
| Mark H. Brzoska | Assistant Vice President | /s/ Mark H. Brzoska | ||
| Drew H. Davis | Assistant Vice President | /s/ Drew H. Davis | ||
| Colin M. Casner | Assistant Vice President | /s/ Colin M. Casner | ||
| Dorri Costello | Assistant Vice President | /s/ Dorri Costello | ||
| Karin W. Cranz | Assistant Vice President | /s/ Karin W. Cranz | ||
| Sandra V. Ferreyra | Assistant Vice President | /s/ Sandra V. Ferreyra | ||
| Diane C. Gibellino | Assistant Vice President | /s/ Diane C. Gibellino | ||
| Gregory Golden | Assistant Vice President | /s/ Gregory Golden | ||
| Bethany L. Gould | Assistant Vice President | /s/ Bethany L. Gould | ||
| Michael J. Grillo | Assistant Vice President | /s/ Michael J. Grillo | ||
| Robert P. Hines, Jr. | Assistant Vice President | /s/ Robert P. Hines, Jr. | ||
| Yvette L. Howell | Assistant Vice President | /s/ Yvette L. Howell | ||
| Joshua G. James | Assistant Vice President | /s/ Joshua G. James |
Exhibit G-4-7
| Jason Johnson | Assistant Vice President | /s/ Jason Johnson | ||
| June T. Jones | Assistant Vice President | /s/ June T. Jones | ||
| Geoffrey J. Lewis | Assistant Vice President | /s/ Geoffrey J. Lewis | ||
| Virginia Machamer | Assistant Vice President | /s/ Virginia Machamer | ||
| Melissa A. Marion | Assistant Vice President | /s/ Melissa A. Marion | ||
| Venus L. Matson | Assistant Vice President | /s/ Venus L. Matson | ||
| Chad May | Assistant Vice President | /s/ Chad May | ||
| Michael G. Oller, Jr. | Assistant Vice President | /s/ Michael G. Oller, Jr. | ||
| Erik Overcash | Assistant Vice President | /s/ Erik Overcash | ||
| Jose L. Paredes | Assistant Vice President | /s/ Jose L. Paredes | ||
| Prital K. Patel | Assistant Vice President | /s/ Prital K. Patel | ||
| Rita Marie Ritrovato | Assistant Vice President | /s/ Rita Marie Ritrovato | ||
| Kristin L. Schillinger | Assistant Vice President | /s/ Kristin L. Schillinger | ||
| Adam Scozzafava | Assistant Vice President | /s/ Adam Scozzafava | ||
| Rachel L. Simpson | Assistant Vice President | /s/ Rachel L. Simpson | ||
| David W. Snyder | Assistant Vice President | /s/ David W. Snyder |
Exhibit G-4-8
| Jacqueline E. Solone | Assistant Vice President | /s/ Jacqueline E. Solone | ||
| Erwin Soriano | Assistant Vice President | /s/ Erwin Soriano | ||
| Dara L. Sowden | Assistant Vice President | /s/ Dara L. Sowden | ||
| Joan H. Stapley | Assistant Vice President | /s/ Joan H. Stapley | ||
| Joseph M. Still | Assistant Vice President | /s/ Joseph M. Still | ||
| Stephen R. Sturgeon | Assistant Vice President | /s/ Stephen R. Sturgeon | ||
| Adam R. Vogelsong | Assistant Vice President | /s/ Adam R. Vogelsong | ||
| Michael H. Wass | Assistant Vice President | /s/ Michael H. Wass | ||
| Farrah F. Welsh | Assistant Vice President | /s/ Farrah F. Welsh | ||
| Russell T. Whitley | Assistant Vice President | /s/ Russell T. Whitley | ||
| Alecia Anderson | Banking Officer | /s/ Alecia Anderson | ||
| Jennifer K. Anderson | Banking Officer | /s/ Jennifer K. Anderson | ||
| Mark E. Bermingham | Banking Officer | /s/ Mark E. Bermingham | ||
| Stevie Blackston | Banking Officer | /s/ Stevie Blackston | ||
| Alisha M. Clendaniel | Banking Officer | /s/ Alisha M. Clendaniel |
Exhibit G-4-9
| Artis B. Cummings | Banking Officer | /s/ Artis B. Cummings | ||
| Kevin M. Ebert | Banking Officer | /s/ Kevin M. Ebert | ||
| Hallie Field | Banking Officer | /s/ Hallie Field | ||
| Nancy E. Hagner | Banking Officer | /s/ Nancy E. Hagner | ||
| Donald Haverstick | Banking Officer | /s/ Donald Haverstick | ||
| Robin D. Henry | Banking Officer | /s/ Robin D. Henry | ||
| Joshua C. Jones | Banking Officer | /s/ Joshua C. Jones | ||
| Irene A. Lennon | Banking Officer | /s/ Irene A. Lennon | ||
| Meghan H. McCauley | Banking Officer | /s/ Meghan H. McCauley | ||
| Jon M. McDowell | Banking Officer | /s/ Jon M. McDowell | ||
| Marco Medina | Banking Officer | /s/ Marco Medina | ||
| Sally M. Molina | Banking Officer | /s/ Sally M. Molina | ||
| Melinda Morales | Banking Officer | /s/ Melinda Morales | ||
| J. Christopher Murphy | Banking Officer | /s/ J. Christopher Murphy | ||
| Susan T. O’Neal | Banking Officer | /s/ Susan T. O’Neal |
Exhibit G-4-10
| Zdravka S. Panchev | Banking Officer | /s/ Zdravka S. Panchev | ||
| Ruth K. Shiffler | Banking Officer | /s/ Ruth K. Shiffler | ||
| Jennifer L. Wieszcholek | Banking Officer | /s/ Jennifer L. Wieszcholek |
Exhibit G-4-11
Exhibit G-5
AUTHORIZED REPRESENTATIVES OF THE ADMINISTRATOR
|
Name: |
Title: |
Signature: |
||
| Cameron MacDougall | Secretary |
/s/ Cameron MacDougall |
Exhibit G-5-1
Exhibit H
Disclaimer
[INSERT DATE NO LATER THAN 30 DAYS PRIOR TO THE PROPOSED FUNDING DATE WITH RESPECT TO ANY DEFERRED SERVICING FEE RECEIVABLES]
Re: Nationstar Mortgage LLC - Current and Future Excess Spread Agreements
Reference is hereby made to: (i) the Current Excess Spread Agreements listed on Schedule I hereto (the “ Current Spread Agreements ”), between Nationstar Mortgage LLC (“ Nationstar ”) and the Purchasers listed on Schedule I (each, a “ Purchaser ”), (ii) the Future Spread Agreements listed on Schedule I hereto (the “ Future Spread Agreements ” and together with the Current Spread Agreements, the “ Spread Agreements ”), between Nationstar and the Purchasers and (iii) the Receivables Sale Agreement listed on Schedule II hereto (the “Sale Agreement”) between Nationstar, Advance Purchaser LLC (“ Advance Purchaser ”) and the Depositor listed on Schedule II hereto. Capitalized terms used herein but not defined herein shall have the meanings set forth in the Sale Agreement.
Pursuant to the Spread Agreements, Nationstar has sold the Current Excess Servicing Spread (as defined therein) and has sold and will sell on an ongoing basis Future Excess Servicing Spread (as defined therein and, together with the Current Excess Servicing Spread, the “Excess Spread”) relating to the Mortgage Loans (as defined therein) to the applicable Purchaser.
Pursuant to the Sale Agreement, Nationstar (prior to the Effective Date) and Advance Purchaser (on or after the Effective Date) has sold and/or contributed and will continue to sell and/or contribute on an ongoing basis, among other things, rights to reimbursement for P&I Advances and payment for Deferred Servicing Fee Receivables (as defined in the Sale Agreement) to the applicable Depositor, which has sold and/or contributed and will continue to sell and/or contribute on an ongoing basis such rights to reimbursement for P&I Advances and Deferred Servicing Fee Receivables to the “Issuer” referenced in the Sale Agreement (the “Issuer”). The Issuer has pledged such rights to reimbursement for P&I Advances and Deferred Servicing Fee Receivables to an Indenture Trustee on behalf of certain noteholders.
Exhibit H-1
Pursuant to the Spread Agreements, the monthly servicing fees received by Nationstar with respect to the Mortgage Loans (the “Servicing Fees”) are deposited into custodial accounts (the “Spread Accounts”) for the purpose of distributing the Excess Spread to the Purchasers and the Base Fees and Retained Servicing Spread (as defined in the Purchase Agreements) to Nationstar. The Servicing Fees deposited into the Spread Accounts are received either from (i) interest payments on the Mortgage Loans or (ii) interest advances made by Nationstar in its capacity as servicer of the Mortgage Loans . Upon deposit into the Spread Account of monthly Servicing Fees that are received from interest advances made by Nationstar, such Servicing Fee is converted into a P&I Advance (which may be accounted for, for administrative convenience for Nationstar, as a Deferred Servicing Fee Receivable and not a P&I Advance in connection with any reporting with any applicable counterparty to any applicable Designated Servicing Agreement). Pursuant to the applicable Designated Servicing Agreement, Nationstar is entitled to reimbursement of such P&I Advance and/or payment of such Deferred Servicing Fee Receivable from subsequent payments on the related Mortgage Loan or, subject to certain exceptions, from payments on other Mortgage Loans.
For the avoidance of doubt, Nationstar, each Purchaser and the Depositor hereby acknowledge and agree (on behalf of themselves and their assignees and successors in interest) that the Purchaser has no right, title or interest in any P&I Advances or Deferred Servicing Fee Receivables that have been sold and/or contributed to the Depositor on or prior to the date hereof.
This Side Letter may not be amended, nor may any provision hereof be waived or modified, except by an instrument in writing signed by each signatory hereto. This Side Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Side Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
THIS SIDE LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each party hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Side Letter or the transactions contemplated hereby or the actions of the parties hereto in the negotiation, performance or enforcement hereof.
[Signature Pages Follow]
Exhibit H-2
Agreed and Accepted as of the Date First Above Written:
Exhibit H-3
Schedule I
[PURCHASE AGREEMENTS]
Exhibit H-4
SCHEDULE II
SALE AGREEMENT(S)
Amended and Restated Receivables Sale Agreement dated as of December 17, 2013 between Nationstar Mortgage LLC, as initial receivables seller (prior to the respective MSR Transfer Dates) and as servicer (prior to the respective MSR Transfer Dates), [ ], as receivables seller (on and after the respective MSR Transfer Dates) and as servicer (on and after the respective MSR Transfer Dates), and NRZ Servicer Advance Facility Transferor CS, LLC, as depositor.
Exhibit H-5
Exhibit I
NOTICE OF TRANSFER OF MORTGAGE SERVICING RIGHTS
[Date]
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045-1951
Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS
Re: NRZ SERVICER ADVANCE RECEIVABLES TRUST CS
On , 20 (the “ MSR Transfer Date ”), Nationstar Mortgage LLC (“ Nationstar ”) sold to Advance Purchaser LLC (“ Advance Purchaser ”) all of the servicing rights and obligations of Nationstar under the Designated Servicing Agreements set forth on Schedule A attached hereto (the “ MSR Transfer ”).
All required consents and rating agency letters required under such Designated Servicing Agreements for the MSR Transfer were obtained on or before the MSR Transfer Date.
| NATIONSTAR MORTGAGE LLC |
| By: |
| Name: |
| Title: |
| [ ] |
| By: |
| Name: |
| Title: |
Exhibit I-1
Schedule A to
Notice of Transfer of Mortgage Servicing Rights
Exhibit I-2
Exhibit 4.4
EXECUTION COPY
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as Subservicer and as Servicer (prior to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
and
CREDIT SUISSE AG, NEW YORK BRANCH,
as Administrative Agent
and consented to by
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
and
ALPINE SECURITIZATION CORP.
SERIES 2013-VF1
AMENDED AND RESTATED INDENTURE SUPPLEMENT
Dated as of December 17, 2013
to
AMENDED AND RESTATED INDENTURE
Dated as of December 17, 2013
ADVANCE RECEIVABLES BACKED NOTES,
SERIES 2013-VF1
T ABLE OF C ONTENTS
| P AGE | ||||||
| S ECTION 1. |
C REATION OF S ERIES 2013-VF1 N OTES . |
2 | ||||
| S ECTION 2. |
D EFINED T ERMS . |
2 | ||||
| S ECTION 3. |
F ORMS OF S ERIES 2013-VF1 N OTES . |
18 | ||||
| S ECTION 4. |
S ERIES R ESERVE A CCOUNT . |
18 | ||||
| S ECTION 5. |
C OLLATERAL V ALUE E XCLUSIONS . |
18 | ||||
| S ECTION 6. |
P AYMENTS ; N OTE B ALANCE I NCREASES ; E ARLY M ATURITY ; O THER A DVANCE R ATE R EDUCTION E VENTS . |
21 | ||||
| S ECTION 7. |
E XTENSION OF E XPECTED R EPAYMENT D ATE . |
22 | ||||
| S ECTION 8. |
D ETERMINATION OF N OTE I NTEREST R ATE AND LIBOR. |
22 | ||||
| S ECTION 9. |
I NCREASED C OSTS . |
24 | ||||
| S ECTION 10. |
S ERIES R EPORTS . |
26 | ||||
| S ECTION 11. |
C ONDITIONS P RECEDENT S ATISFIED ; A DDITIONAL F UNDING C ONDITION F OR I NITIAL F UNDING A FTER THE E FFECTIVE D ATE . |
28 | ||||
| S ECTION 12. |
R EPRESENTATIONS , W ARRANTIES AND C OVENANTS . |
28 | ||||
| S ECTION 13. |
A MENDMENTS . |
28 | ||||
| S ECTION 14. |
C OUNTERPARTS . |
29 | ||||
| S ECTION 15. |
E NTIRE A GREEMENT . |
29 | ||||
| S ECTION 16. |
L IMITED R ECOURSE . |
29 | ||||
| S ECTION 17. |
O WNER T RUSTEE L IMITATION OF L IABILITY . |
30 | ||||
| S ECTION 18. |
T ERMINATION F EES . |
30 | ||||
| S ECTION 19. |
C ONSENT AND A CKNOWLEDGMENT OF A MENDMENTS . |
30 | ||||
| Exhibits | ||||||
|
Exhibit A |
||||||
-i-
This AMENDED AND RESTATED SERIES 2013-VF1 INDENTURE SUPPLEMENT (this “ Indenture Supplement ”), dated as of December 17, 2013, is made by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, as trustee (the “ Indenture Trustee ”), as calculation agent (the “ Calculation Agent ”), as paying agent (the “ Paying Agent ”) and as securities intermediary (the “ Securities Intermediary ”), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware (“ Advance Purchaser ”), as Administrator on behalf of the Issuer, as owner of the rights associated with the servicing rights under the Designated Servicing Agreements, and, from and after the respective MSR Transfer Dates for each Designated Servicing Agreement, as servicer under such Designated Servicing Agreement, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware (“ Nationstar ”), as a Subservicer, and as servicer for each Designated Servicing Agreement prior to the respective MSR Transfer Dates, and CREDIT SUISSE AG, NEW YORK BRANCH, (“ Credit Suisse ”), as Administrative Agent (as defined below); and consented to by 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes. This Indenture Supplement relates to and is executed pursuant to that certain Amended and Restated Indenture (as amended, supplemented, restated or otherwise modified from time to time, the “ Base Indenture ”) supplemented hereby, dated as of December 17, 2013, among the Issuer, Nationstar, Advance Purchaser, the Administrator; the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, and Credit Suisse, as Administrative Agent, and the other “Administrative Agents” from time to time parties thereto; and consented to by 100% of the Outstanding Noteholders all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement being referred to as the “ Indenture ”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture.
PRELIMINARY STATEMENT
The Issuer entered into an Indenture Supplement, dated as of July 1, 2013 (as amended, restated, supplemented or otherwise modified from time to time prior to the Effective Date, the “ Original Supplement ”), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as servicer, and Credit Suisse, as Administrative Agent. Under the Original Supplement, the Issuer has duly authorized the issuance of a Series of Notes, the Series 2013-VF1 Notes (the “ Series 2013-VF1 Notes ”).
Pursuant to Section 12.2 of the Base Indenture and Section 13(b) of the Original Supplement, the Issuer, Indenture Trustee, Nationstar and the Administrative Agent, with the prior consent of 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment, at any time and from time to time, upon delivery of an Issuer Tax Opinion, may amend the Original Supplement to amend any provision of the Original Supplement. Pursuant to Section 12.3 of the Base Indenture, the Issuer shall also deliver to the Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “ Authorization Opinion ”).
As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive the Authorization Opinion and the certificate required by Section 1.3(1) of the Base Indenture and the conditions precedent opinion required by Section 1.3(2) of the Base Indenture, including the corresponding form of documents specified in Section 1.4 of the Base Indenture.
The parties are entering this Indenture Supplement to document the terms of the issuance of the Series 2013-VF1 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time.
Section 1. Creation of Series 2013-VF1 Notes.
The Series 2013-VF1 Notes are known as “NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series 2013-VF1 Notes” and were issued pursuant to the Original Supplement. The Series 2013-VF1 Notes shall not be subordinated to any other Series of Notes. The Series 2013-VF1 Notes were issued in one (1) Class of Variable Funding Notes (Class A-VF1) (the “ Series 2013-VF1 Variable Funding Notes ”), with the Maximum VFN Principal Balance, if applicable, Stated Maturity Date, Revolving Period, Note Interest Rate, Expected Repayment Date and other terms as specified in this Indenture Supplement. The Series 2013-VF1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2013-VF1 Notes and all other Series of Notes issued under the Indenture as described therein. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2. Defined Terms.
With respect to the Series 2013-VF1 Notes and in addition to or in replacement for the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“ Acquisition of a Mortgage Originator ” shall mean an acquisition, merger or other business combination of Nationstar resulting in either Nationstar, for so long as Nationstar is the Servicer or the Subservicer, or a Subsidiary of Nationstar, for so long as Nationstar is the Servicer or the Subservicer, (i) becoming affiliated with an originator or servicer of Mortgage Loans or (ii) acquiring a substantial portion of the assets of an originator or servicer of Mortgage Loans, in any case, that, with the passage of time or otherwise (including the incurrence of indebtedness in connection with such acquisition, merger or other business combination), in the reasonable determination of the Administrator (as supported by financial projections and other material information that the Administrative Agent may request in connection with such acquisition, merger or other business combination), would cause any of the following: (x) the Tangible Net Worth of Nationstar to be at any time less than or equal to $400,000,000; or (y) the ratio of the Servicer’s Net Total Indebtedness to Tangible Net Worth at any time to exceed 9:1.
2
“ Administrative Agent ” means, for so long as the Series 2013-VF1 Notes have not been paid in full: (i) with respect to the provisions of this Indenture Supplement, Credit Suisse, or an Affiliate or successor thereto; and (ii) with respect to the provisions of the Base Indenture, and notwithstanding the terms and provisions of any other Indenture Supplement, Credit Suisse, Natixis, New York Branch, Morgan Stanley Bank, N.A. and such other parties as set forth in any other Indenture Supplement, or a respective Affiliate or any respective successor thereto. For the avoidance of doubt, reference to “it” or “its” with respect to the Administrative Agent in the Base Indenture shall mean “them” and “their,” and reference to the singular therein in relation to the Administrative Agent shall be construed as if plural.
“ Advance Purchaser LLC Agreement ” means the amended and restated limited liability company agreement of Advance Purchaser dated as of the date hereof.
“ Advance Rates ” means, on any date of determination with respect to each Receivable related to the Series 2013-VF1 Notes, the percentage amount based on the Advance Type of such Receivable, as set forth in the table below, subject to amendment by mutual agreement of the Administrative Agent and the Administrator; provided , that
(i) in the event that the Servicer’s (prior to the MSR Transfer Date) or the related Subservicer’s (on and after the MSR Transfer Date) sub-prime servicer rating is reduced below “Average” by S&P (a “ Ratings Reduction ”) the Advance Rates applicable to the Receivables related to the Notes shall be equal to the Advance Rates set forth below prior to such ratings reduction minus 5.00% for so long as such subprime servicer rating is below “Average” by S&P; and
(ii) the Advance Rate for any Receivable related to the Notes shall be zero if such Receivable is not a Facility Eligible Receivable;
provided , further , that in no event shall the Facility Advance Rate be greater than 90% at any time and the Advance Rates applicable to Receivables other than Non-FIFO Receivables shall be reduced pro rata to the extent necessary to ensure that the Facility Advance Rate does not exceed 90%.
3
|
Class A-VF1 Advance Type / Type of Advance |
Non-
Higher Margin |
Loan-
Level |
Non-
FIFO (1) |
Non-
FIFO (2) |
||||||||||||
|
Non-Judicial P&I Advances |
94.00 | % | 88.00 | % | 79.25 | % | 63.25 | % | ||||||||
|
Judicial P&I Advances |
92.25 | % | 86.25 | % | 77.25 | % | 61.25 | % | ||||||||
|
Non-Judicial Deferred Servicing Fees |
89.50 | % | 84.50 | % | 74.50 | % | 59.50 | % | ||||||||
|
Judicial Deferred Servicing Fees |
86.25 | % | 79.25 | % | 71.25 | % | 56.25 | % | ||||||||
|
Non-Judicial Escrow Advances |
92.25 | % | 86.25 | % | 77.25 | % | 62.25 | % | ||||||||
|
Judicial Escrow Advances |
90.25 | % | 84.25 | % | 75.25 | % | 60.25 | % | ||||||||
|
Non-Judicial Corporate Advances |
91.75 | % | 84.50 | % | 76.75 | % | 61.75 | % | ||||||||
|
Judicial Corporate Advances |
90.50 | % | 81.25 | % | 75.50 | % | 60.50 | % | ||||||||
| (1) | Advance Rate applicable for 90 days, beginning on the related Designation Date. |
| (2) | Advance Rate applicable beginning on the 91 st day following the related Designation Date. |
“ Advance Ratio ” means, as of any date of determination with respect to any Designated Servicing Agreement, the ratio (expressed as a percentage), calculated as of the last day of the calendar month immediately preceding the calendar month in which such date occurs, of (i) the Stressed Nonrecoverable Advance Amount of all Mortgage Loans (other than any Mortgage Loans that generate Receivables that are Loan-Level Receivables, any Mortgage Loans that generate Receivables that are Second-Lien Receivables or any Mortgage Loans that are attributable to Small Threshold Servicing Agreements) serviced pursuant to the related Designated Servicing Agreement on such date over (ii) the aggregate monthly scheduled principal and interest payments for the calendar month immediately preceding the calendar month in which such date occurs with respect to all non-delinquent Mortgage Loans serviced pursuant to the related Designated Servicing Agreement.
“ Base Indenture ” has the meaning assigned to such term in the Preamble.
“ Base Rate ” means, on any date, a fluctuating rate of interest per annum equal to the higher of (i) the Prime Rate on such date and (ii) the Federal Funds Rate on such date plus 0.50%.
“ Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Indenture Supplement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
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“ Cash Equivalents ” means (a) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of ninety (90) days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital and surplus in excess of $500,000,000 unless otherwise approved by the Administrative Agent in writing in its sole discretion, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven (7) days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within ninety (90) days after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s, (f) securities with maturities of ninety (90) days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or, (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
“ Change of Control ” occurs as to Advance Purchaser, if any of the following occur: (x) New Residential Investment Corp. (or any Affiliate thereof) or funds under management of Fortress Investment Group Inc. or an Affiliate thereof shall cease to beneficially own and control, directly or indirectly through one or more other intermediate entities, more than 20%, on a fully diluted basis, of the economic and voting interest in the equity interests of Advance Purchaser; (y) New Residential Investment Corp., Fortress Investment Group Inc. or an Affiliate thereof shall cease to be the managing member of Advance Purchaser; or (z) Fortress Investment Group Inc. or an Affiliate thereof is no longer the manager of New Residential Investment Corp.
“ Class A-VF1 Variable Funding Notes ” means, the Variable Funding Notes, Class A-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ Coefficient ” means, for each Class of the Series 2013-VF1 Notes, 0.08%.
“ Commercial Paper Notes ” means with respect to each Conduit Purchaser, the short-term promissory notes issued by such Conduit Purchaser.
“ Commercial Paper Rate ” means with respect to each Interest Accrual Period and each Conduit Purchaser, the per annum rate equivalent to the weighted average cost related to the issuance of related Commercial Paper Notes for such Interest Accrual Period (such costs as reasonably determined by the related sponsor or administrative agent for such Conduit Purchaser, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper Notes, other borrowings by such Conduit Purchaser and any other costs associated with the issuance of such Commercial Paper Notes); provided, that if any component of such per annum rate is a
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discount rate, in calculating the “Commercial Paper Rate”, the related Conduit Administrative Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum. The Conduit Administrative Agent shall deliver to the Administrator, the Calculation Agent and the Indenture Trustee the Commercial Paper Rate with respect to the Series 2013-VF1 Variable Funding Notes held by the Conduit Purchasers, if applicable, by no later than the Business Day prior to the Determination Date and the determination of the applicable Commercial Paper Rate by the Conduit Administrative Agent shall be binding absent manifest error.
“ Committed Purchaser ” means Credit Suisse AG, Cayman Islands Branch, and its successors and assigns.
“ Conduit Administrative Agent ” shall have the meaning set forth in the VF1 Note Purchase Agreement.
“ Conduit Purchaser ” means (i) any Purchaser which is designated as a “Conduit Purchaser” on the signature pages to the VF1 Note Purchase Agreement and (ii) any Purchaser which is designated as a “Conduit Purchaser” on the signature pages of any assignment agreement pursuant to which it becomes a party to the VF1 Note Purchase Agreement.
“ Constant ” means, for the Series 2013-VF1 Notes, 1.00%.
“ Corporate Trust Office ” means the principal corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Closing Date are located at (i) for Note transfer purposes, Wells Fargo Center, Sixth and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS, and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS.
“ Cost of Funds Rate ” means, for any day of any Interest Accrual Period, (a) to the extent a Conduit Purchaser has funded its interest in any Series 2013-VF1 Variable Funding Note through the issuance of Commercial Paper Notes, the Commercial Paper Rate applicable to such Conduit Purchaser and (b) in all other cases, the sum of One-Month LIBOR plus 1.00%.
“ CRD ” means the Capital Requirements Directive, as amended by Article 122a (effective as of January 1, 2011) and as the same may be further amended, restated or otherwise modified.
“ Default Rate ” means, with respect to any Interest Accrual Period, for each Class of Notes, the then applicable Note Interest Rate (without regard to the proviso in the definition of “Note Interest Rate” in the Base Indenture) plus 3.00% per annum.
“ Effective Date ” means December 17, 2013.
“ Expected Repayment Date ” means, for each Class of the Series 2013-VF1 Notes, September 26, 2014, as such date may be extended from time to time pursuant to Section 7 hereof.
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“ Expense Rate ” means, as of any date of determination, with respect to the Series 2013-VF1 Notes, the percentage equivalent of a fraction, (i) the numerator of which equals the sum of (1) the product of the Series Allocation Percentage for such Series multiplied by the aggregate amount of Fees due and payable by the Issuer on the next succeeding Payment Date plus (2) the product of the Series Allocation Percentage for such Series multiplied by any expenses payable or reimbursable by the Issuer on the next succeeding Payment Date, up to the applicable Expense Limit, if any, prior to any payments to the Noteholders of the Series 2013-VF1 Notes, pursuant to the terms and provisions of this Indenture Supplement, the Base Indenture or any other Transaction Document that have been invoiced to the Indenture Trustee and the Administrator, plus (3) the aggregate amount of related Series Fees payable by the Issuer on the next succeeding Payment Date and (ii) the denominator of which equals the sum of the outstanding Note Balances of all Series 2013-VF1 Notes at the close of business on such date.
“ Facility Advance Rate ” means the aggregate Collateral Value of all Facility Eligible Receivables not including Non-FIFO Receivables, divided by the aggregate Receivable Balances of all Facility Eligible Receivables not including Non-FIFO Receivables.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the federal funds rates as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H. 15 (519) or any successor or substitute publication selected by the Administrative Agent (or, if such day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the rate determined, in the sole opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. (New York City time).
“ Fee Letter ” means that certain Fee Letter Agreement, dated the Effective Date, among the Administrative Agent, as the sole lead arranger with respect to the Series 2013-VF1 Notes, the Administrator, the Servicer and the Issuer.
“ Governmental Authority ” means the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the applicable Person.
“ Higher Margin Portion ” means, on any day, a dollar amount equal to the product of (i) the VFN Principal Balance and (ii) the percentage obtained by dividing the aggregate Higher Margin Receivable Balances by the aggregate Receivable Balances of all Facility Eligible Receivables.
“ Higher Margin Receivable Balance ” means the sum of (1) the aggregate Receivable Balance of all Eligible Non-FIFO Receivables plus (2) the amount by which the aggregate Receivable Balance of all Loan-Level Receivables exceeds 10% of the aggregate Receivable Balance of all Facility Eligible Receivables.
“ Increased Costs Limit ” means for each Noteholder of a Series 2013-VF1 Variable Funding Note, such Noteholder’s pro rata percentage (based on the Note Balance of such
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Noteholder’s Series 2013-VF1 Variable Funding Notes) of 0.10% of the average aggregate Note Balance for all Classes of Series 2013-VF1 Variable Funding Notes Outstanding for any twelve-month period.
“ Indebtedness ” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (c) indebtedness of others secured by an Adverse Claim on the Property of such person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such person; (e) obligations of such Person under Capital Lease Obligations; (f) obligations of such Person under repurchase agreements or like arrangements; (g) indebtedness of others guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) indebtedness of general partnerships of which such Person is a general partner; and (j) any other indebtedness of such Person by a note, bond, debenture or similar instrument.
“ Initial Payment Date ” means August 20, 2013.
“ Interest Accrual Period ” means, for the Series 2013-VF1 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date with respect to any Class, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2013-VF1 Notes on any Payment Date shall be determined based on the actual number of days in the Interest Accrual Period.
“ Interest Day Count Convention ” means with respect the Series 2013-VF1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“ Interim Payment Date ” means, with respect to the Series 2013-VF1 Notes, up to six (6) dates each calendar month provided that the Issuer provides the Noteholders of the Series 2013-VF1 Notes and the Indenture Trustee at least two (2) Business Days’ prior notice, or if any such date is not a Business Day, the next succeeding Business Day to the extent any such day occurs during the Revolving Period, and any other date otherwise agreed to between the Issuer and the Noteholders of the Series 2013-VF1 Notes.
“ Issuance Date ” means the date of the satisfaction of the Initial Funding Conditions.
“ LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ LIBOR Determination Date ” means for each Interest Accrual Period, the second London Banking Day prior to the commencement of such Interest Accrual Period.
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“ Limited Funding Date ” means any Business Day that is not a Payment Date or Interim Payment Date, at a time when no Facility Early Amortization Event shall have occurred and shall be continuing, which date is designated by the Administrator on behalf of the Issuer to the Indenture Trustee and the Administrative Agent in writing no later than 9:00 a.m. Eastern Time two (2) Business Days prior to such date; provided, that the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) of the Indenture for such date, and provided, further that no fundings may be made under a Variable Funding Note on such date and no payments on any Notes shall be made on such date; provided, further, that no more than five (5) Limited Funding Dates may be designated by the Administrator on behalf of the Issuer in any calendar month.
“ Liquidity ” means, as to any entity, as of the last day of any calendar month, the sum of (a) such entity’s Unrestricted Cash and (b) the aggregate amount of unused committed capacity available to such entity (taking into account applicable haircuts) under mortgage loan warehouse and servicer advance facilities for which such entity has unencumbered collateral eligible to be pledged thereunder.
“ London Banking Day ” means any day on which commercial banks and foreign exchange markets settle payment in both London and New York City.
“ Low Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $1,000,000 but less than $10,000,000, or (ii) that relates to at least 15 but fewer than 50 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Margin ” means, for the Class A-VF1, 2.00% per annum.
“ Market Value ” means, with respect to the Mortgaged Property securing a Mortgage Loan or any REO Property, the market value of such property (determined by the Servicer in its reasonable good faith discretion, which shall be by reference to the most recent value received by the related Subservicer (or by Nationstar as Servicer prior to the related MSR Transfer Date) with respect to such Mortgaged Property or REO Property in accordance with its servicing policies, if available) or the appraised value of the Mortgaged Property obtained in connection with the origination of the related Mortgage Loan, if no updated valuation has been required under the Servicer’s or Subservicer’s, as the case may be, servicing policies; provided , that
(i) the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is related to a Designated Servicing Agreement for which ninety (90) days have passed since the related Designation Date without a valuation of the related Mortgaged Property that is less than six (6) months old;
(ii) at any time after the 90 th day following the related Designation Date, the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is 60 or more days delinquent and the related valuation is more than six (6) months old; and
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(iii) the Market Value for any Mortgaged Property or REO Property shall be deemed equal to 66 2/3 % of the outstanding principal balance of the related Mortgage Loan if (x) fifteen (15) Business Days or less have passed since the Designation Date for the Designated Servicing Agreement for such Mortgage Loan and (y) the servicer does not otherwise determined the market value of such property in accordance with this definition.
Any valuation for purposes of this definition shall be established by the lesser of either an appraisal, broker’s price opinion, the Subservicer’s (or Nationstar as Servicer prior to the MSR Transfer Date) automated valuation model or any other internal valuation methodology (including but not limited to HPI indexing utilized by the Subservicer (or Nationstar as Servicer prior to the MSR Transfer Date), which is consistent with the Servicer’s or Subservicer’s, as the case may be, servicing policies with respect to such Mortgaged Property or REO Property.
“ Market Value Ratio ” means, as of any date of determination with respect to a Designated Servicing Agreement, the ratio (expressed as a percentage) of (i) the lesser of (A) the Funded Advance Receivable Balance for such Designated Servicing Agreement on such date and (B) the aggregate of the Receivable Balances of all Facility Eligible Receivables under such Designated Servicing Agreement on such date over (ii) the aggregate Market Value of the Mortgaged Properties and REO Properties for the Mortgage Loans serviced under such Designated Servicing Agreement on such date.
“ Maximum VFN Principal Balance ” means, for Class A-VF1, $2,000,000,000, or, in the case of each such Class on any date, a lesser amount calculated pursuant to a written agreement between the Servicer, the Administrator and the Administrative Agent.
“ Middle Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $10,000,000 but less than $25,000,000, or (ii) that relates to at least 50 but fewer than 125 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Monthly Reimbursement Rate ” means, as of any date of determination, the arithmetic average of the fractions (expressed as percentages), determined for each of the three (3) most recently concluded calendar months (or the number of months since the Closing Date, if less than three (3)), obtained by dividing (i) the aggregate Advance Reimbursement Amounts collected by the Servicer and deposited into the Trust Accounts during such calendar month by (ii) the Funded Advance Receivable Balance as of the close of business on the last day of such calendar month.
“ Mortgage Loan-Level Market Value Ratio ” means, as of any date of determination with respect to a Mortgage Loan or REO Property that is secured by a first lien on the related Mortgaged Property or REO Property, the ratio (expressed as a percentage) of (x) (i) with respect to Section 5(vii)(a), the aggregate Receivable Balance of all Loan-Level Receivables outstanding with respect to such Mortgage Loan or REO Property on such date, or (ii) with respect to Section 5(vii)(b), the aggregate Receivable Balance of all Receivables outstanding with respect to such Mortgage Loan or REO Property on such date over (y) the Market Value of such Mortgaged Property or REO Property on such date.
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“ Net Proceeds Coverage Percentage ” means, for any Payment Date, the percentage equivalent of a fraction, (i) the numerator of which equals the amount of Collections on Receivables deposited into the Collection and Funding Account during the related Monthly Advance Collection Period, and (ii) the denominator of which equals the aggregate average outstanding Note Balances of all Outstanding Notes during such Monthly Advance Collection Period.
“ Net Total Indebtedness ” means, with respect to any Person, for any period, (i) the aggregate Indebtedness of such Person and its Subsidiaries during such period minus (ii) the amount of any non-recourse debt (including any securitization debt).
“ Net Worth ” means, with respect to any Person, such Person’s assets minus such Person’s liabilities, each determined in accordance with GAAP.
“ Note Interest Rate ” means, for the Series 2013-VF1 Notes, in any Interest Accrual Period, (i) for the Higher Margin Portion of the VFN Principal Balance on such day, the applicable Conduit Cost of Funds Rate for such Interest Accrual Period plus 3.25% per annum, and (ii) for the VFN Principal Balance other than the Higher Margin Portion on such day, the applicable Cost of Funds Rate plus the applicable Margin; provided that, from and after the Expected Repayment Date, if the Series 2013-VF1 Notes have not been refinanced, the “Note Interest Rate” shall be the interest rate applicable to such Notes, plus 0.50%.
For the avoidance of doubt, the “Note Interest Rate” for each of the Series 2013-VF1 Notes is subject to the definition of “Note Interest Rate” in the Base Indenture.
“ One-Month LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ Optional Extension Date ” means the date that is six (6) months after the Closing Date (or, if such day is not a Business Day, the next succeeding Business Day).
“ Prime Rate ” means the rate announced by the Administrative Agent from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors.
“ Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“ Ratings Reduction ” has the meaning given to such term in the definition of “Advance Rates.”
“ Redemption Percentage ” means, for the Series 2013-VF1 Notes, 10%.
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“ Reference Banks ” has the meaning assigned to such term in Section 8(b) of this Indenture Supplement.
“ Regulatory Change ” means (a) the adoption of any law, rule or regulation after the date hereof, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date hereof or (c) compliance by any Noteholder (or, for purposes of Section 9(a)(3) , by any lending office of such Noteholder or by such Noteholder’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date hereof.
“ Reserve Interest Rate ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
“ Second-Lien Receivable ” means a Receivable that arises under a Designated Servicing Agreement for which the related Advance or Deferred Servicing Fee relates to a Mortgage Loan or REO Property secured by a second lien.
“ Series 2013-VF1 Note Balance ” means the aggregate Note Balance of the Series 2013-VF1 Notes.
“ Series Reserve Required Amount ” means with respect to any Payment Date or Interim Payment Date, as the case may be, for the Series 2013-VF1 Notes, an amount equal to on any Payment Date or Interim Payment Date four months’ interest calculated at the applicable Note Interest Rate on the Note Balance of each Class of Series 2013-VF1 Notes as of such Payment Date or Interim Payment Date, as the case may be.
“ Small Threshold Servicing Agreement ” means a Designated Servicing Agreement (i) for which the underlying Mortgage Loans have an unpaid principal balance of less than $1,000,000, or (ii) that relates to fewer than 15 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Stated Maturity Date ” means, for the Class A-VF1 Variable Funding Notes, the Expected Repayment Date.
“ Stressed Interest Rate ” means, for any Class of Series 2013-VF1 Notes, as of any date, the sum of (i) the sum of (x) the per annum index on the basis of which such Class’s interest rate is determined for the current Interest Accrual Period, and (y) such Class’s Constant and (z) the product of (I) such Class’s Coefficient and (II) Stressed Time, plus (ii) the weighted average per annum Margin of all Outstanding Classes of Series 2013-VF1 Notes that is added to the index to determine the interest rates for such Class.
“ Stressed Nonrecoverable Advance Amount ” means, as of any date of determination, the sum of any of the following, each without duplication:
(i) for all Mortgage Loans that are current as of such date, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
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(ii) for all Mortgage Loans that are delinquent as of such date, but not related to property in foreclosure or REO Property, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(iii) for all Mortgage Loans that are related to properties in foreclosure, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(iv) for all REO Properties, the greater of (A) zero and (B) the excess of (1) Total Advances related to such REO Properties on such date over (2) the product of 50% and the sum of all of the Market Values for the related REO Properties.
For the avoidance of doubt, this definition of “Stressed Nonrecoverable Advance Amount” shall not be applicable to Mortgage Loans attributable to Small Threshold Servicing Agreements, any Mortgage Loans that generate Receivables that are Loan-Level Receivables or any Mortgage Loans that generate Second-Lien Receivables.
“ Stressed Time ” means, as of any date of determination for any Class of Series 2013-VF1 Notes, the percentage equivalent of a fraction, the numerator of which is one (1), and the denominator of which equals the related Stressed Time Percentage for such Class times the Monthly Reimbursement Rate on such date.
“ Stressed Time Percentage ” means for Class A-VF1: 82.1%.
“ Support Advances ” shall mean any loans or advances, or any participation or other interest, funded or held by a Support Party pursuant to a Support Facility (but excluding any such loans or advances made to fund the applicable Conduit Purchaser’s obligations to pay interest, fees or other similar amounts relating to the funding of its making or maintaining its interest in a Purchased Note).
“ Tangible Net Worth ” means, with respect to any Person at any date of determination, (i) the Net Worth of such Person and its consolidated Subsidiaries, determined in accordance with GAAP, minus (ii) all intangibles determined in accordance with GAAP (including, without limitation, goodwill, capitalized financing costs and capitalized administration costs but excluding originated and purchased mortgage servicing rights and retained residual securities) and any and all advances to, investments in and receivables held from Affiliates; provided , however , that the non-cash effect (gain or loss) or any mark-to-market adjustments made directly to stockholders’ equity for fluctuation of the value of financial instruments as mandated under the Statement of Financial Accounting Standards No. 133 (or any successor statement) shall be excluded from the calculation of Tangible Net Worth.
“ Target Amortization Amounts ” means, for each Class of the Series 2013-VF1 Notes, (i) if a Target Amortization Event occurs that is described in the definition thereof in clauses (B)(i), (B)(ii), (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) or (B)(xv) (if such
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Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(i), (B)(ii) or (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-twelfth (1/12) of the Notes Balance of such Class at the close of business on the last day of its Revolving Period), one-twelfth (1/12) of the Note Balance of such Class at the close of business on the last day of its Revolving Period; (ii) if a Target Amortization Event described in clause (B)(xii) or (B)(xv) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(xii) of the definition thereof and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-third (1/3) of the Note Balance of such Class at the close of business on the last day of its Revolving Period) in the definition thereof occurs, one-third (1/3) of the Note Balance of such Class at the close of business on the last day of its Revolving Period and (iii) if any other Target Amortization Event described in the definition thereof occurs (including B(xi)(b) or B(xv), except as covered above), 100% of the Note Balance of such Class at the close of business on the last day of its Revolving Period.
“ Target Amortization Event ” for the Series 2013-VF1 Notes, means the earlier of (A) the related Expected Repayment Date or (B) the occurrence of any of the following conditions or events, which is not waived by 100% of the Noteholders of the Series 2013-VF1 Notes:
(i) on any Payment Date, the arithmetic average of the Net Proceeds Coverage Percentage determined for such Payment Date and the two preceding Payment Dates (or no preceding Payment Dates in the case of the determination on the first Payment Date, or the one preceding Payment Date, in the case of the determination on the second Payment Date) is less than five (5) times the percentage equivalent of a fraction (A) the numerator of which equals the sum of the accrued Interest Payment Amounts for each Class of Outstanding Notes on such date and (B) the denominator of which equals the aggregate average Note Balances of each Class of all Outstanding Notes during the related Monthly Advance Collection Period;
(ii) the occurrence of one or more Servicer Termination Events with respect to Designated Servicing Agreements representing 15% or more (by Mortgage Loan balance as of the date of termination) of all the Designated Servicing Agreements then included in the Trust Estate, but not including any Servicer Termination Events that are solely due to the breach of one or more Collateral Performance Tests or a Servicer Ratings Downgrade or the transfer of subservicing of any Designated Servicing Agreement without the prior written consent of the Administrative Agent;
(iii) the Monthly Reimbursement Rate is less than 3.00%;
(iv) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the Tangible Net Worth of Nationstar is less
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than or equal to $350,000,000 as of the last day of any quarter or (B) at any other time, the Tangible Net Worth of Nationstar is less than or equal to $400,000,000 as of the last day of any quarter and the continuation of such condition for thirty (30) days after the end of such quarter;
(v) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270 th day following the consummation thereof, the ratio of Nationstar’s Net Total Indebtedness to Tangible Net Worth exceeds 12:1 as of the last day of any quarter, or (B) at any time other than the time described in clause (A), Nationstar’s Net Total Indebtedness to Tangible Net Worth at any time exceeds 9:1 as of the last day of any quarter and the continuation of such condition for thirty (30) days after the end of such quarter;
(vi) for so long as Nationstar is the Servicer or the Subservicer, as of the close of business on the last Business Day of December 2013 and of each calendar month thereafter, Nationstar’s Liquidity is less than $80,000,000;
(vii) the occurrence of a Change of Control;
(viii) any failure by the Servicer to deliver any Determination Date Servicer Report pursuant to Section 3.2 of the Base Indenture which continues unremedied for a period of five (5) Business Days after a Responsible Officer of the Servicer shall have obtained actual knowledge of such failure, or shall have received written or electronic notice from the Indenture Trustee or any Noteholder of such failure;
(ix) the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator shall breach or default in the due observance or performance of any of its covenants or agreements in this Indenture Supplement, the Base Indenture, or any other Transaction Document in any material respect (subject to any cure period provided therein), other than an obligation of the Receivables Seller to make an Indemnity Payment following a breach of a representation or warranty with respect to such Receivable pursuant to Section 4(b) of the Receivables Sale Agreement or any payment default described in Section 8.1 of the Base Indenture, and any such default shall continue for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Indenture Trustee or any Noteholder to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator; provided , that a breach of Section 6(b) of the Receivables Sale Agreement, or Section 7(b) of the Receivables Pooling Agreement (prohibiting the Receivables Seller, the Servicer, the Subservicer or the Depositor, as applicable, from causing or permitting Insolvency Proceedings with respect to the Depositor or the Issuer, as applicable) shall constitute an automatic Target Amortization Event;
(x) if any representation or warranty of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator made in this Indenture
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Supplement, the Base Indenture, or any other Transaction Document (other than under Section 4(b) of the Receivables Sale Agreement) shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, and would have a material adverse effect on the rights or interests of the Noteholders;
(xi) (a) a final judgment or judgments for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Depositor or the Issuer by one or more courts, administrative tribunals or other bodies having jurisdiction over them, or (b) a final judgment or judgments for the payment of money in excess of $35,000,000 in the aggregate shall be rendered against Advance Purchaser by one or more courts, administrative tribunals or other bodies having jurisdiction over them that, in the sole determination of the Administrative Agent, shall have a material adverse effect on Advance Purchaser’s business or operations, and the same shall not be discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and Advance Purchaser shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(xii) any person shall be appointed as Independent Manager of the Depositor without prior notice having been given to and without the written acknowledgement by the Administrative Agent that such person conforms, to the satisfaction of the Administrative Agent in its reasonable discretion, to the criteria set forth herein in the definition of “Independent Manager”;
(xiii) Advance Purchaser shall fail to make any payment (whether of principal or interest or otherwise) in respect of any other indebtedness with an amount in excess of $15,000,000, when and as the same shall become due and payable (including the passage of any applicable grace period);
(xiv) any event or condition occurs and, while continuing, results in any indebtedness of Advance Purchaser with an amount in excess of $15,000,000 becoming due prior to its scheduled maturity or that enables or permits (including the passage of any applicable grace period) the holder or holders of any such indebtedness or any trustee or agent on its or their behalf to cause any such indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(xv) any Series or Class of Variable Funding Notes other than the Series 2013-VF1 Notes enters into a Target Amortization Period;
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(xvi) Advance Purchaser shall have Tangible Net Worth less than the greater of (a) 3% of the aggregate Receivables Balances of all servicer advance receivables and deferred servicing fee receivables held by Advance Purchaser or a Subsidiary of Advance Purchaser as of the last day of any fiscal quarter of Advance Purchaser or (b) $75,000,000; or
(xvii) Advance Purchaser shall fail to have Liquidity of at least $25,000,000 as of the last day of any calendar month.
“ Threshold Amount ” means $1,250,000,000.
“ Threshold Date ” means April 15, 2014.
“ Threshold Excess ” means, the amount equal to the greater of (a) $200,000,000 and (b) the differential, if greater than zero, of (i) the Maximum VFN Principal Balance as of the Threshold Date (after giving effect to any reductions thereof on such date) minus (ii) the Threshold Amount.
“ Threshold Termination Fee ” means the fee equal to the greater of (a) $0 and (b) the differential of (i) (x) 2.50% multiplied by (y) the Threshold Excess multiplied by (z) the number of days from the Threshold Date to the Stated Maturity Date divided by 360 minus (ii) interest payments and Non-Use Fees earned on the Threshold Excess following the Threshold Date.
“ Transaction Documents ” means, in addition to the documents set forth in the definition thereof in the Base Indenture, this Indenture Supplement and the VF1 Note Purchase Agreement, each as amended, supplemented, restated or otherwise modified from time to time.
“ Trigger Advance Rate ” means, for any Class of the Series 2013-VF1 Notes, as of any date, the rate equal to the greater of (x) zero and (y) (1) 100% minus (2) the product of (a) one twelfth of the Stressed Interest Rate for such Class, plus the related Expense Rate as of such date, multiplied by (b) the related Stressed Time for such Class as of such date.
“ Undrawn Fee Rate ” means, with respect to each Class of the Series 2013-VF1 Variable Funding Notes held by the Committed Purchaser and for each Interest Accrual Period, 0.50% per annum . For the avoidance of doubt, only the Committed Purchasers shall be paid Undrawn Fee Amounts as set forth in the Base Indenture.
“ Unrestricted Cash ” means, as of any date of determination, the sum of (i) the Receivables Seller’s cash, (ii) the Receivables Seller’s Cash Equivalents that are not, in either case, subject to an Adverse Claim in favor of any Person or that are not required to be reserved by the Receivables Seller in a restricted escrow arrangement or other similarly restricted arrangement pursuant to a contractual agreement or requirement of law.
“ VF1 Note Purchase Agreement ” means that certain Note Purchase Agreement, dated as of the date hereof, by and among the Issuer, Credit Suisse AG, New York Branch, as the Administrative Agent and Conduit Administrative Agent, Credit Suisse AG, Cayman Islands Branch, as the Committed Purchaser and Alpine Securitization Corp., as the Conduit Purchaser that relates to the purchase of the Series 2013-VF1 Notes.
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There are no “Other Advance Rate Reduction Events” or “Other Advance Rate Reduction Event Cure Periods” in respect of the Series 2013-VF1 Notes.
Section 3. Forms of Series 2013-VF1 Notes.
The form of the Rule 144A Definitive Note and of the Regulation S Definitive Notes that may be used to evidence the Series 2013-VF1 Variable Funding Notes in the circumstances described in Section 5.4(c) of the Base Indenture are attached to the Base Indenture as Exhibits A-2 and A-4 , respectively.
In addition to any provisions set forth in Section 6.5 of the Base Indenture, with respect to the Series 2013-VF1 Notes, the Noteholder of any Class of such Notes shall only transfer its beneficial interest therein to another potential investor in accordance with the applicable Note Purchase Agreement. The Indenture Trustee (in all of its capacities) shall not be responsible to monitor, and shall not have any liability, for any such transfers of beneficial interests of participation interests.
Section 4. Series Reserve Account.
In accordance with the terms and provisions of this Section 4 and Section 4.6 of the Base Indenture, the Indenture Trustee shall establish and maintain a Series Reserve Account with respect to the Series 2013-VF1 Notes, which shall be an Eligible Account, for the benefit of the Series 2013-VF1 Noteholders.
Section 5. Collateral Value Exclusions.
For purposes of calculating “Collateral Value” in respect of the Series 2013-VF1 Notes, the Collateral Value shall be zero for any Receivable that:
(i) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Advance Ratio to be equal to or greater than 100.0%; provided , that this clause (i) shall not apply to any Receivable that is (a) attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement or (b) a Loan-Level Receivable;
(ii) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Market Value Ratio to exceed 25.0%;
(iii) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements to exceed 2.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
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(iv) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements to exceed 7.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(v) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement, a Low Threshold Servicing Agreement, or a Middle Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements to exceed 15.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(vi) is attributable to a Designated Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances outstanding with respect to that same Designated Servicing Agreement, would cause the total Receivable Balances attributable to such Designated Servicing Agreement to exceed 15.0% of the aggregate of the Receivable Balances of the Aggregate Receivables;
(vii) (a) if it is a Loan-Level Receivable, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables with respect to the related Mortgage Loan or REO Property, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0% or (b) if it is a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables related to the Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0%;
(viii) is a Second-Lien Receivable;
(ix) has a zero Advance Rate;
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(x) is a Loan-Level Receivable or a Non-FIFO Receivable, to the extent that the related Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of Loan-Level Receivables and Non-FIFO Receivables already outstanding with respect to all Mortgage Loans or REO Properties, causes the aggregate Receivable Balances of all Loan-Level Receivables and Non-FIFO Receivables to exceed 22.5% of the aggregate Receivables Balances of all Facility Eligible Receivables;
(xi) is a Facility Eligible Receivable that is a Loan-Level Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables to exceed 20.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(xii) is a Facility Eligible Receivable that is attributable to a Non-FIFO Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables to exceed (i) from and including the Closing Date through October 1, 2013, $150,000,000, (ii) from and including October 1, 2013 through April 1, 2014, $100,000,000, and (iii) on and after April 1, 2014, the lesser of $25,000,000 or 1.0% of the aggregate Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(xiii) if more than ninety (90) days have passed since the Designation Date in respect of the related Designated Servicing Agreement, relates to an Advance that has not been reimbursed in full or a Deferred Servicing Fee that has not been paid in full within forty-five (45) days following the date of a permanent modification of the related Mortgage Loan that becomes effective subsequent to the creation of such Receivable (for purposes of this clause, a modification becomes “permanent” following any trial period or satisfaction of conditions precedent or subsequent); or
(xiv) is a Receivable related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 4 to the Base Indenture (as the same may be updated from time to time pursuant to Section 2.2(c) of the Base Indenture) and the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 4 of such securitization trust’s cut-off date balance.
For purposes of each of the foregoing, (i) if any Facility Eligible Receivable has a Collateral Value equal to zero pursuant to any Collateral Value exclusion test, the portion of the Receivables Balance thereof with a Collateral Value of zero shall be disregarded for all other purposes of this Section 5 , in each case as determined by the Administrator in a manner that maximizes the Collateral Value and (ii) if any Facility Eligible Receivable has an Advance Rate of zero or is a Second-Lien Receivable, such Facility Eligible Receivable shall be disregarded for all other purposes of this Section 5 .
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Section 6. Payments; Note Balance Increases; Early Maturity; Other Advance Rate Reduction Events.
The Paying Agent shall make payments of interest on the Series 2013-VF1 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture and any payments of interest (including unrated interest amounts), Cumulative Interest Shortfall Amounts, Fees or Increased Costs allocated to the Series 2013-VF1 Notes shall be paid to the Class A-VF1 Variable Funding Notes. The Paying Agent shall make payments of principal on the Series 2013-VF1 Variable Funding Notes on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5, respectively, of the Base Indenture (at the option of the Issuer in the case of requests during the Revolving Period for the Series 2013-VF1 Variable Funding Notes). The Note Balance of each Class of the Series 2013-VF1 Variable Funding Notes may be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the Maximum VFN Principal Balance. The Paying Agent shall make payments of principal on the Series 2013-VF1 Variable Funding Notes on each Payment Date in accordance with Section 4 of the Base Indenture during any Target Amortization Period or any Full Amortization Period.
The parties hereto agree that the failure to pay any portion of any related Undrawn Fee Amount on any Payment Date shall constitute an Event of Default under Section 8.1(a)(i) of the Base Indenture.
Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Issuer may, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, redeem in whole or in part, and/or terminate and cause retirement of any of the Series 2013-VF1 Variable Funding Notes at any time using proceeds of issuance of new Notes or in connection with the repayment of all Notes.
The Series 2013-VF1 Notes are also subject to optional redemption in accordance with the terms of Section 13.1 of the Base Indenture.
Any payments of principal allocated to the Series 2013-VF1 Notes during a Full Amortization Period shall be applied to the Class A-VF1 Variable Funding Notes, until their Note Balance has been reduced to zero.
The Administrative Agent further confirms that the Series 2013-VF1 Notes issued on the Issuance Date pursuant to this Indenture Supplement shall be issued in the name of “Credit Suisse AG, New York Branch, solely in its capacity as Administrative Agent on behalf of Credit Suisse AG, Cayman Islands Branch, as Committed Purchaser, and Alpine Securitization Corp., as Conduit Purchaser,” as applicable, and the Administrative Agent hereby directs the Indenture Trustee to issue the Series 2013-VF1 Notes in the name of “Credit Suisse AG, New York Branch, solely in its capacity as Administrative Agent on behalf of Credit Suisse AG, Cayman Islands Branch, as Committed Purchaser, and Alpine Securitization Corp., as Conduit Purchaser,” as applicable. For the avoidance of doubt, the parties hereto hereby agree that, in accordance with the terms and provisions of the VF1 Note Purchase Agreement, the Administrative Agent shall act as agent of each Noteholder of a 2013-VF1 Note and shall determine the allocation of “Additional Note Balances” (as such term is defined in the VF1 Note Purchase Agreement) to be purchased by each such Noteholder.
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For the avoidance of doubt, the failure pay any Target Amortization Amount when due, as described in the definition thereof, shall constitute an Event of Default.
There are no “Other Advance Rate Reduction Events” in respect of the Series 2013-VF1 Notes. If any Other Advance Rate Reduction Event in respect of any other Series of Notes is the same as any reduction event specified in clause (iv) of the definition of “Facility Early Amortization Event,” and the related Other Advance Rate Reduction Event Cure Period is shorter than the applicable grace period for the same event specified in clause (iv) of the definition of “Facility Early Amortization Event”, then solely for purposes of the Series 2013-VF1 Notes, the applicable grace period specified in clause (iv) of the definition of “Facility Early Amortization Event” shall be reduced to the Other Advance Rate Reduction Event Cure Period.
For the avoidance of doubt, the Issuer may reduce the Maximum VFN Principal Balance at any time to an amount not less than the current VFN Principal Balance.
Section 7. Extension of Expected Repayment Date .
The Administrator, on behalf of the Issuer, may request one (1) extension of the Expected Repayment Date for any of the Series 2013-VF1 Variable Funding Notes at least fifteen (15) days prior to the Optional Extension Date. The Administrative Agent shall provide written notice of whether the Administrative Agent agrees to extend the Expected Repayment Date on such Optional Extension Date at least five (5) days prior to such Optional Extension Date. If the Administrative Agent provides written notice of its agreement to extend the Expected Repayment Date, the Expected Repayment Date will be extended on such Optional Extension Date such that, after giving effect to any such extension, the Expected Repayment Date will be 180 days after the Expected Repayment Date. The Expected Repayment Date of the Series 2013-VF1 Variable Funding Notes cannot be extended past the Expected Repayment Date for any other Outstanding Series of Variable Funding Notes. For the avoidance of doubt, the Expected Repayment Date of the Series 2013-VF1 Variable Funding Notes shall be extended only by written notice from the Administrative Agent in accordance with this Section 7 .
Section 8. Determination of Note Interest Rate and LIBOR.
(a) At least one (1) Business Day prior to each Determination Date, the Administrator shall calculate the Note Interest Rate for the related Interest Accrual Period (in the case of the Series 2013-VF1 Variable Funding Notes using the Commercial Paper Rate determined by the Conduit Administrative Agent and One Month LIBOR as determined by the Administrative Agent in accordance with Section 8(b) below, as applicable) and the Interest Payment Amount for the Series 2013-VF1 Notes for the upcoming Payment Date, and include a report of such amount in the related Payment Date Report.
(b) On each LIBOR Determination Date, the Administrative Agent will determine the arithmetic mean of the London Interbank Offered Rate (“ LIBOR ”) quotations for one-month Eurodollar deposits (“ One-Month LIBOR ”) for the succeeding Interest Accrual Period for the Series 2013-VF1 Notes on the basis of the Reference Banks’ offered LIBOR quotations provided
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to the Calculation Agent as of 11:00 a.m. (London time) on such LIBOR Determination Date. As used herein with respect to a LIBOR Determination Date, “ Reference Banks ” means leading banks engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) whose quotations appear on the Bloomberg Screen US0001M Index Page for the LIBOR Determination Date in question and (iii) which have been designated as such by the Calculation Agent (after consultation with the Administrative Agent) and are able and willing to provide such quotations to the Calculation Agent for each LIBOR Determination Date; and “ Bloomberg Screen US0001M Index Page ” means the display designated as page US0001M Index Page on the Bloomberg Financial Markets Commodities News (or such other pages as may replace such page on that service for the purpose of displaying LIBOR quotations of major banks). If any Reference Bank should be removed from the Bloomberg Screen US0001M Index Page or in any other way fails to meet the qualifications of a Reference Bank, the Administrative Agent may, in its sole discretion, designate an alternative Reference Bank.
If, for any LIBOR Determination Date, two or more of the Reference Banks provide offered One-Month LIBOR quotations on the Bloomberg Screen US0001M Index Page, One-Month LIBOR for the next succeeding Interest Accrual Period for the Series 2013-VF1 Variable Funding Notes will be the arithmetic mean of such offered quotations (rounding such arithmetic mean if necessary to the nearest five decimal places).
If, for any LIBOR Determination Date, only one or none of the Reference Banks provides such offered One-Month LIBOR quotations for the next applicable Interest Accrual Period, One-Month LIBOR for the next Interest Accrual Period for the Series 2013-VF1 Notes will be the higher of (x) One-Month LIBOR as determined for the previous LIBOR Determination Date and (y) the Reserve Interest Rate. The “ Reserve Interest Rate ” on any date of determination will be the rate per annum that the Administrative Agent determines to be either (A) the arithmetic mean (rounding such arithmetic mean if necessary to the nearest five decimal places) of the one-month Eurodollar lending rate that New York City banks selected by the Administrative Agent are quoting, on the relevant LIBOR Determination Date, to the principal London offices of at least two leading banks in the London Interbank market or (B) in the event that the Administrative Agent is unable to determine such arithmetic mean, the lowest one-month Eurodollar lending rate that the New York City banks so selected by the Administrative Agent are quoting on such LIBOR Determination Date to leading European banks.
If, on any LIBOR Determination Date, the Administrative Agent is required but is unable to determine the Reserve Interest Rate in the manner provided in the preceding paragraph, One-Month LIBOR for the next applicable Interest Accrual Period will be One-Month LIBOR as determined for the previous LIBOR Determination Date.
Notwithstanding the foregoing, One-Month LIBOR for an Interest Accrual Period shall not be based on One-Month LIBOR for the previous Interest Accrual Period on the Series 2013-VF1 Notes for two consecutive LIBOR Determination Dates. If, under the priorities described above, One-Month LIBOR for an Interest Accrual Period on the Series 2013-VF1 Notes would be based on One-Month LIBOR for the previous LIBOR Determination Date for the second consecutive LIBOR Determination Date, the Administrative Agent shall select an alternative index (over which the Administrative Agent has no control) used for determining one-month
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Eurodollar lending rates that is calculated and published (or otherwise made available) by an independent third party, and this alternative index shall constitute One-Month LIBOR for all purposes under this Indenture Supplement in that event.
(c) The establishment of the Commercial Paper Rate by the Conduit Administrative Agent and One-Month LIBOR by the Administrative Agent and the Administrator’s subsequent calculation of the Note Interest Rate on the Series 2013-VF1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 9. Increased Costs.
(a) If any Regulatory Change or other requirement of any law, rule, regulation or order applicable to a Noteholder of a Series 2013-VF1 Variable Funding Note (a “ Requirement of Law ”) or any change in the interpretation or application thereof or compliance by such Noteholder with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(1) shall subject such Noteholder to any tax of any kind whatsoever with respect to its Series 2013-VF1 Variable Funding Note (excluding income taxes, branch profits taxes, franchise taxes or similar taxes imposed on such Noteholder as a result of any present or former connection between such Noteholder and the United States, other than any such connection arising solely from such Noteholder having executed, delivered or performed its obligations or received a payment under, or enforced, this Indenture Supplement or any U.S. federal withholding taxes imposed under Code sections 1471 through 1474 as of the date of this Indenture Supplement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereunder and any agreements entered into under section 1471(b) of the Code) or change the basis of taxation of payments to such Noteholder in respect thereof; shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(2) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or credit extended or participated by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(3) shall have the effect of reducing the rate of return on such Noteholder’s capital or on the capital of such Noteholder’s holding company, if any, as a consequence of this Indenture Supplement, in the case of the Series 2013-VF1 Variable Funding Notes, the VF1 Note Purchase Agreement, or the
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Series 2013-VF1 Variable Funding Notes to a level below that which such Noteholder or such Noteholder’s holding company could have achieved but for such Requirements of Law (other than any Regulatory Change, Requirement of Law, interpretation or application thereof, request or directive with respect to taxes) (taking into consideration such Noteholder’s policies and the policies of such Noteholder’s holding company with respect to capital adequacy); or
(4) shall impose on such Noteholder or the London interbank market any other condition, cost or expense (other than with respect to taxes) affecting this Indenture Supplement, in the case of the Series 2013-VF1 Variable Funding Notes, the VF1 Note Purchase Agreement or the Series 2013-VF1 Variable Funding Notes or any participation therein; or
(5) shall impose on such Noteholder any other condition;
and the result of any of the foregoing is to increase the cost to such Noteholder, by an amount which such Noteholder deems to be material, of continuing to hold its Series 2013-VF1 Variable Funding Note, of maintaining its obligations with respect thereto, or to reduce any amount due or owing hereunder in respect thereof, or to reduce the amount of any sum received or receivable by such Noteholder (whether of principal, interest or any other amount) or (in the case of any change in a Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Noteholder or any Person controlling such Noteholder with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental Authority or quasi-Governmental Authority made subsequent to the date hereof) shall have the effect of reducing the rate of return on such Noteholder’s or such controlling Person’s capital as a consequence of its obligations as a Noteholder of a Variable Funding Note to a level below that which such Noteholder or such controlling Person could have achieved but for such adoption, change or compliance (taking into consideration such Noteholder’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Noteholder to be material, then, in any such case, such Noteholder shall invoice the Administrator for such additional amount or amounts as calculated by such Noteholder in good faith as will compensate such Noteholder for such increased cost or reduced amount, and such invoiced amount shall be payable to such Noteholder on the Payment Date following the next Determination Date following such invoice, in accordance with Section 4.5(a)(1)(ii) or Section 4.5(a)(2)(ii) of the Base Indenture, as applicable; provided , however , that any amount of Increased Costs in excess of the Increased Costs Limit shall be payable to such Noteholder in accordance with Section 4.5(a)(1)(ix) or Section 4.5(a)(2)(iv) of the Base Indenture, as applicable.
(b) Each Support Party (as such term is defined in the VF1 Note Purchase Agreement) shall be entitled to receive additional payments and indemnification pursuant to this Section 9 as though it were a Committed Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Series 2013-VF1 Variable Funding Notes; provided, that such Support Party shall not be entitled to additional payments pursuant to this Section 9 by reason of Requirements of Law which occurred prior to the date it became a Support Party; provided, further, that such Support Party shall be entitled to receive additional amounts pursuant to this Section 9 only to the extent that its related Conduit Purchaser would have been entitled to
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receive such amounts in the absence of Support Advances (as such term is defined in the VF1 Note Purchase Agreement) from such Support Party. The provisions of this Section 9 shall apply to the Conduit Administrative Agent and to such of its Affiliates as may from time to time administer, make referrals to or otherwise provide services or support to the Conduit Purchasers (in each case as though such Conduit Administrative Agent or Affiliate were a Purchaser and such Section applied to its administration of or other provisions of services or support to such Conduit Purchaser in connection with the transactions contemplated by this Agreement), whether as an administrator, administrative agent, referral agent, managing agent or otherwise.
(c) Increased Costs payable under this Section 9 shall be payable on a Payment Date only to the extent invoiced to the Indenture Trustee prior to the related Determination Date.
Section 10. Series Reports.
(a) Series Calculation Agent Report . The Calculation Agent shall deliver a report of the following items together with each Calculation Agent Report pursuant to Section 3.1 of the Base Indenture to the extent received from the Servicer, with respect to the Series 2013-VF1 Notes:
(i) the unpaid principal balance of the Mortgage Loans subject to any Small Threshold Servicing Agreement, Low Threshold Servicing Agreement and Middle Threshold Servicing Agreement;
(ii) the Advance Ratio for each Designated Servicing Agreement, and whether the Advance Ratio for such Designated Servicing Agreement exceeds 100.0%;
(iii) the Market Value Ratio for each Designated Servicing Agreement, and whether the Market Value Ratio for such Designated Servicing Agreement exceeds 25.0%;
(iv) for each Small Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(v) for each Middle Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vi) for each Low Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
26
(vii) a list of each Target Amortization Event for the Series 2013-VF1 Notes and presenting a yes or no answer beside each indicating whether each such Target Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(viii) the Mortgage Loan-Level Market Value Ratio for each Mortgage Loan related to a Loan-Level Receivable or a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, and if such Mortgage Loan-Level Market Value Ratio exceeds 50%;
(ix) whether any Receivable, or any portion of the Receivables, attributable to a Designated Servicing Agreement, has a Collateral Value of zero by virtue of the definition of “Collateral Value” or Section 5 of this Indenture Supplement;
(x) a calculation of the Net Proceeds Coverage Percentage in respect of each of the three preceding Monthly Advance Collection Periods (or each that has occurred since the date of this Indenture Supplement, if less than three), and the arithmetic average of the three;
(xi) the Monthly Reimbursement Rate for the upcoming Payment Date or Interim Payment Date;
(xii) whether any Target Amortization Amount that has become due and payable has been paid;
(xiii) the Stressed Nonrecoverable Advance Amount for the upcoming Payment Date or Interim Payment Date; and
(xiv) the Trigger Advance Rate for each Class.
In addition to the information provided in the above Calculation Agent Report, to the extent the following information is specifically provided to the Calculation Agent by the Servicer, the Calculation Agent shall promptly, from time to time, provide such other financial or non-financial information, documents, records or reports with respect to the Receivables or the condition or operations, financial or otherwise, of the Servicer, including any information available to the Servicer, as the Administrator or any Noteholder of a Series 2013-VF1 Note may from time to time reasonably request in order to assist the Administrative Agent or such Noteholder in complying with the requirements of Article 122a(4) and (5) of the CRD as may be applicable to the Administrative Agent or such Noteholder of a Series 2013-VF1 Note.
(b) Series Payment Date Report . In conjunction with each Payment Date Report, the Indenture Trustee shall also report the Stressed Time Percentage.
(c) Limitation on Indenture Trustee Duties . The Indenture Trustee shall have no independent duty to verify: (1) Tangible Net Worth, (2) the occurrence of any of the events described in clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) or (xi) of the definition of “Target Amortization Event,” or (3) compliance with clause (vi) of the definition of “Facility Eligible Servicing Agreement.”
27
Section 11. Conditions Precedent Satisfied; Additional Funding Condition For Initial Funding After the Effective Date.
The Issuer hereby represents and warrants to the Noteholders of the Series 2013-VF1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) and Article XII thereof and Section 12 hereof, as applicable, have been satisfied.
In addition to satisfying the Funding Conditions set forth in the Indenture, prior to the initial Funding Date after the Effective Date, the Issuer shall have delivered to the Noteholders of the Series 2013-VF1 Notes the final and executed Advance Purchaser LLC Agreement and evidence to the satisfaction of the Noteholders of the Series 2013-VF1 Notes that the Initial Capital Contributions (as defined in the Advance Funding LLC Agreement) have been made to Advance Purchaser.
Section 12. Representations, Warranties and Covenants.
(a) The Issuer, the Administrator, the Servicer, and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
(b) Neither the Administrator nor or any of its Subsidiaries shall make any material change in the nature of its business as carried on at the date hereof.
Section 13. Amendments.
(a) Notwithstanding any provisions to the contrary in Article XII of the Base Indenture, and in addition to and otherwise subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have an Adverse Effect, may amend this Indenture Supplement for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
28
(b) Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of 100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
Section 14. Counterparts.
This Indenture Supplement may be executed in any number of counterparts, by manual or facsimile signature, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 15. Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 16. Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2013-VF1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2013-VF1 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2013-VF1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2013-VF1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2013-VF1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 16 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2013-VF1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 16 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2013-VF1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity. By its signature to this Agreement, each of the parties hereto (other than the Indenture Trustee), hereby waives and directs the Indenture Trustee to waive, the delivery of an Authorization Opinion in connection with the execution and delivery of this Series Supplement.
29
Section 17. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association, be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or the other Transaction Documents.
Section 18. Termination Fees.
If the Maximum VFN Principal Balance has not been reduced to or below the Threshold Amount by the Threshold Date, Advance Purchaser shall pay to Credit Suisse a Threshold Termination Fee on any date after the Threshold Date on which the Maximum VFN Principal Balance is first reduced to or below the Threshold Amount.
Section 19. Consent and Acknowledgment of Amendments.
Each of Credit Suisse AG, Cayman Islands Branch, in its capacity as committed purchaser (together with its successors and permitted assigns, the “ Committed Purchaser ”), and Alpine Securitization Corp., in its capacity as conduit purchaser (together with its successors and permitted assigns, the “ Conduit Purchaser ”) has consented to this Indenture Supplement and each of the Committed Purchaser and the Conduit Purchaser confirms that (i) together they are the sole Noteholders of all the Outstanding Notes related to this Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Indenture Supplement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date.
30
IN WITNESS WHEREOF , NRZ Servicer Advance Receivables Trust CS, as Issuer, Advance Purchaser LLC, as Administrator and as Servicer (on and after the respective MSR Transfer Dates), Nationstar Mortgage LLC, as Administrator (prior to the Effective Date) and as Servicer (prior to the respective MSR Transfer Dates), Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, Credit Suisse AG, New York Branch, as Administrative Agent, Credit Suisse AG, Cayman Islands Branch, as Committed Purchaser, and Alpine Securitization Corp., as Conduit Purchaser, have caused this Indenture Supplement relating to the Series 2013-VF1 Notes, to be duly executed by their respective officers thereunto duly authorized and their respective signatures duly attested all as of the day and year first above written.
| NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, as Issuer | ||
| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
|
By: |
/s/ Erwin M. Soriano | |
|
Name: |
Erwin M. Soriano | |
| Title: | Assistant Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| WELLS FARGO BANK, N.A. , as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary | ||
|
By: |
/s/ Mark DeFabio | |
|
Name: |
Mark DeFabio | |
| Title: | Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| NATIONSTAR MORTGAGE LLC | ||
|
By: |
/s/ Ellen Coleman | |
|
Name: |
Ellen Coleman | |
| Title: | Executive Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| ADVANCE PURCHASER LLC | ||
|
By: |
/s/ Cameron MacDougall | |
|
Name: |
Cameron MacDougall | |
| Title: | Secretary |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
|
CREDIT SUISSE AG, NEW YORK BRANCH , as Administrative Agent |
||
|
By: |
/s/ Jason Ruchelsman | |
|
Name: |
Jason Ruchelsman | |
| Title: | Vice President |
|
By: |
/s/ Michelangelo Raimondi |
|
Name: |
Michelangelo Raimondi | |
| Title: | Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| CONSENTED TO BY: |
|
CREDIT SUISSE AG, NEW YORK BRANCH, as Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF1 Notes |
|
By: |
/s/ Jason Ruchelsman |
|
Name: |
Jason Ruchelsman | |
| Title: | Vice President |
|
By: |
/s/ Michelangelo Raimondi |
|
Name: |
Michelangelo Raimondi | |
| Title: | Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| CONSENTED TO BY: |
| CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as Committed Purchaser of the Series 2013-VF1 Notes |
|
By: |
/s/ Jason Ruchelsman |
|
Name: |
Jason Ruchelsman | |
| Title: | Authorized Signatory |
|
By: |
/s/ Michelangelo Raimondi |
|
Name: |
Michelangelo Raimondi | |
| Title: | Authorized Signatory |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
| CONSENTED TO BY: |
|
ALPINE SECURITIZATION CORP., as Conduit Purchaser of the Series 2013-VF1 Notes |
| By: CREDIT SUISSE AG, NEW YORK BRANCH, as its attorney-in-fact |
|
By: |
/s/ Jason Ruchelsman |
|
Name: |
Jason Ruchelsman | |
| Title: | Vice President |
|
By: |
/s/ Michelangelo Raimondi |
|
Name: |
Michelangelo Raimondi | |
| Title: | Vice President |
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF1]
Exhibit 4.5
EXECUTION COPY
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as Subservicer and as Servicer (prior to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
and
NATIXIS, NEW YORK BRANCH,
as Administrative Agent
and consented to by
BLEACHERS FINANCE 1 LIMITED
SERIES 2013-VF2
AMENDED AND RESTATED INDENTURE SUPPLEMENT
Dated as of December 17, 2013
to
AMENDED AND RESTATED INDENTURE
Dated as of December 17, 2013
ADVANCE RECEIVABLES BACKED NOTES,
SERIES 2013-VF2
EXECUTION COPY
T ABLE OF C ONTENTS
|
P AGE |
||||||
| S ECTION 1. |
C REATION OF S ERIES 2013-VF2 N OTES . |
2 | ||||
| S ECTION 2. |
D EFINED T ERMS . |
2 | ||||
| S ECTION 3. |
F ORMS OF S ERIES 2013-VF2 N OTES . |
18 | ||||
| S ECTION 4. |
S ERIES R ESERVE A CCOUNT . |
18 | ||||
| S ECTION 5. |
C OLLATERAL V ALUE E XCLUSIONS . |
18 | ||||
| S ECTION 6. |
P AYMENTS ; N OTE B ALANCE I NCREASES ; E ARLY M ATURITY ; O THER A DVANCE R ATE R EDUCTION E VENTS . |
21 | ||||
| S ECTION 7. |
E XTENSION OF E XPECTED R EPAYMENT D ATE . |
22 | ||||
| S ECTION 8. |
D ETERMINATION OF N OTE I NTEREST R ATE AND LIBOR. |
22 | ||||
| S ECTION 9. |
I NCREASED C OSTS . |
24 | ||||
| S ECTION 10. |
S ERIES R EPORTS . |
26 | ||||
| S ECTION 11. |
C ONDITIONS P RECEDENT S ATISFIED ; A DDITIONAL F UNDING C ONDITION F OR I NITIAL F UNDING A FTER THE E FFECTIVE D ATE . |
28 | ||||
| S ECTION 12. |
R EPRESENTATIONS , W ARRANTIES AND C OVENANTS . |
28 | ||||
| S ECTION 13. |
A MENDMENTS . |
28 | ||||
| S ECTION 14. |
C OUNTERPARTS . |
29 | ||||
| S ECTION 15. |
E NTIRE A GREEMENT . |
29 | ||||
| S ECTION 16. |
L IMITED R ECOURSE . |
29 | ||||
| S ECTION 17. |
O WNER T RUSTEE L IMITATION OF L IABILITY . |
30 | ||||
| S ECTION 18. |
T ERMINATION F EES . |
30 | ||||
| S ECTION 19. |
A UTHORIZED R EPRESENTATIVES AND W IRE I NSTRUCTIONS OF THE A DMINISTRATIVE A GENT . |
30 | ||||
| S ECTION 20. |
C ONSENT AND A CKNOWLEDGMENT OF A MENDMENTS . |
31 | ||||
- i -
EXECUTION COPY
THIS AMENDED AND RESTATED SERIES 2013-VF2 INDENTURE SUPPLEMENT (this “ Indenture Supplement ”), dated as of December 17, 2013, is made by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, as trustee (the “ Indenture Trustee ”), as calculation agent (the “ Calculation Agent ”), as paying agent (the “ Paying Agent ”) and as securities intermediary (the “ Securities Intermediary ”), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware (“ Advance Purchaser ”), as Administrator on behalf of the Issuer, as owner of the rights associated with the servicing rights under the Designated Servicing Agreements, and, from and after the respective MSR Transfer Dates for each Designated Servicing Agreement, as servicer under such Designated Servicing Agreement, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware (“ Nationstar ”), as a Subservicer, and as servicer for each Designated Servicing Agreement prior to the respective MSR Transfer Dates, and NATIXIS, NEW YORK BRANCH, a branch of Natixis, a Société Anonyme formed under the laws of France (“ Natixis ”), as Administrative Agent (as defined below); and consented to by 100% of the Noteholders of the Series 2013-VF2 Variable Funding Notes. This Indenture Supplement relates to and is executed pursuant to that certain Amended and Restated Indenture (as amended, supplemented, restated or otherwise modified from time to time, the “ Base Indenture ”) supplemented hereby, dated as of December 17, 2013, among the Issuer, Nationstar, Advance Purchaser, the Administrator, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, Credit Suisse AG, New York Branch, as Administrative Agent, and the other “Administrative Agents” from time to time parties thereto; and consented to by 100% of the Outstanding Noteholders all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement being referred to as the “ Indenture ”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture.
PRELIMINARY STATEMENT
The Issuer entered into an Indenture Supplement, dated as of August 28, 2013 (as amended, restated, supplemented or otherwise modified from time to time prior to the Effective Date, the “ Original Supplement ”), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as servicer, and Natixis, as Administrative Agent. Under the Original Supplement, the Issuer has duly authorized the issuance of a Series of Notes, the Series 2013-VF2 Notes (the “ Series 2013-VF2 Notes ”).
Pursuant to Section 12.2 of the Base Indenture and Section 13(b) of the Original Supplement, the Issuer, Indenture Trustee, Nationstar and the Administrative Agent, with the prior consent of 100% of the Noteholders of the Series 2013-VF2 Variable Funding Notes, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment, at any time and from time to time, upon delivery of an Issuer Tax Opinion, may amend the Original Supplement to amend any provision of the Original Supplement. Pursuant to Section 12.3 of the Base Indenture, the Issuer shall also deliver to the
Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “ Authorization Opinion ”).
As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive the Authorization Opinion and the certificate required by Section 1.3(1) of the Base Indenture and the conditions precedent opinion required by Section 1.3(2) of the Base Indenture, including the corresponding form of documents specified in Section 1.4 of the Base Indenture.
The parties are entering this Indenture Supplement to document the terms of the issuance of the Series 2013-VF2 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time.
Section 1. Creation of Series 2013-VF2 Notes.
The Series 2013-VF2 Notes are known as “NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series 2013-VF2 Notes” and were issued pursuant to the Original Supplement. The Series 2013-VF2 Notes shall not be subordinated to any other Series of Notes. The Series 2013-VF2 Notes were issued in a single Class of Variable Funding Notes (the “ Series 2013-VF2 Variable Funding Notes ”), with the Maximum VFN Principal Balance, Stated Maturity Date, Revolving Period, Note Interest Rate, Expected Repayment Date and other terms as specified in this Indenture Supplement. The Series 2013-VF2 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2013-VF2 Notes and all other Series of Notes issued under the Indenture as described therein. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2. Defined Terms.
With respect to the Series 2013-VF2 Notes and in addition to or in replacement for the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“ Acquisition of a Mortgage Originator ” shall mean an acquisition, merger or other business combination of Nationstar resulting in either Nationstar, for so long as Nationstar is the Servicer or the Subservicer, or a Subsidiary of Nationstar, for so long as Nationstar is the Servicer or the Subservicer, (i) becoming affiliated with an originator or servicer of Mortgage Loans or (ii) acquiring a substantial portion of the assets of an originator or servicer of Mortgage Loans, in any case, that, with the passage of time or otherwise (including the incurrence of indebtedness in connection with such acquisition, merger or other business combination), in the reasonable determination of the Administrator (as supported by financial projections and other material information that the Administrative Agent may request in connection with such acquisition, merger or other business combination), would cause any of the following: (x) the Tangible Net Worth of Nationstar to be at any time less than or equal to $400,000,000; or (y) the ratio of the Servicer’s Net Total Indebtedness to Tangible Net Worth at any time to exceed 9:1.
2
“ Administrative Agent ” means, for so long as the Series 2013-VF2 Notes have not been paid in full: (i) with respect to the provisions of this Indenture Supplement, Natixis, or an Affiliate or successor thereto; and (ii) with respect to the provisions of the Base Indenture, and notwithstanding the terms and provisions of any other Indenture Supplement, Credit Suisse AG, New York Branch, Natixis, Morgan Stanley Bank, N.A. and such other parties as set forth in any other Indenture Supplement, or a respective Affiliate or any respective successor thereto. For the avoidance of doubt, reference to “it” or “its” with respect to the Administrative Agent in the Base Indenture shall mean “them” and “their,” and reference to the singular therein in relation to the Administrative Agent shall be construed as if plural.
“ Advance Purchaser LLC Agreement ” means the amended and restated limited liability company agreement of Advance Purchaser (including all completed exhibits and schedules thereto) dated as of the date hereof.
“ Advance Rates ” means, on any date of determination with respect to each Receivable related to the Series 2013-VF2 Notes, the percentage amount based on the Advance Type of such Receivable, as set forth in the table below, subject to amendment by mutual agreement of the Administrative Agent and the Administrator; provided , that
(i) in the event that the Servicer’s (prior to the MSR Transfer Date) or the related Subservicer’s (on and after the MSR Transfer Date) sub-prime servicer rating is reduced below “Average” by S&P (a “ Ratings Reduction ”) the Advance Rates applicable to the Receivables related to the Notes shall be equal to the Advance Rates set forth below prior to such ratings reduction minus 5.00% for so long as such subprime servicer rating is below “Average” by S&P; and
(ii) the Advance Rate for any Receivable related to the Notes shall be zero if such Receivable is not a Facility Eligible Receivable;
provided , further , that in no event shall the Facility Advance Rate be greater than 90% at any time and the Advance Rates applicable to Receivables other than Non-FIFO Receivables shall be reduced pro rata to the extent necessary to ensure that the Facility Advance Rate does not exceed 90%.
|
Series 2013-VF2 Notes |
||||||||||||||||
|
Advance Type / Type of Advance |
Non-Higher
Margin |
Loan-
Level |
Non-
FIFO (1) |
Non-
FIFO (2) |
||||||||||||
|
Non-Judicial P&I Advances |
94.00 | % | 88.00 | % | 79.25 | % | 63.25 | % | ||||||||
|
Judicial P&I Advances |
92.25 | % | 86.25 | % | 77.25 | % | 61.25 | % | ||||||||
|
Non-Judicial Deferred Servicing Fees |
89.50 | % | 84.50 | % | 74.50 | % | 59.50 | % | ||||||||
|
Judicial Deferred Servicing Fees |
86.25 | % | 79.25 | % | 71.25 | % | 56.25 | % | ||||||||
|
Non-Judicial Escrow Advances |
92.25 | % | 86.25 | % | 77.25 | % | 62.25 | % | ||||||||
|
Judicial Escrow Advances |
90.25 | % | 84.25 | % | 75.25 | % | 60.25 | % | ||||||||
|
Non-Judicial Corporate Advances |
91.75 | % | 84.50 | % | 76.75 | % | 61.75 | % | ||||||||
|
Judicial Corporate Advances |
90.50 | % | 81.25 | % | 75.50 | % | 60.50 | % | ||||||||
3
| (1) | Advance Rate applicable for 90 days, beginning on the related Designation Date. |
| (2) | Advance Rate applicable beginning on the 91st day following the related Designation Date. |
“ Advance Ratio ” means, as of any date of determination with respect to any Designated Servicing Agreement, the ratio (expressed as a percentage), calculated as of the last day of the calendar month immediately preceding the calendar month in which such date occurs, of (i) the Stressed Nonrecoverable Advance Amount of all Mortgage Loans (other than any Mortgage Loans that generate Receivables that are Loan-Level Receivables, any Mortgage Loans that generate Receivables that are Second-Lien Receivables or any Mortgage Loans that are attributable to Small Threshold Servicing Agreements) serviced pursuant to the related Designated Servicing Agreement on such date over (ii) the aggregate monthly scheduled principal and interest payments for the calendar month immediately preceding the calendar month in which such date occurs with respect to all non-delinquent Mortgage Loans serviced pursuant to the related Designated Servicing Agreement.
“ Base Indenture ” has the meaning assigned to such term in the Preamble.
“ Base Rate ” means, on any date, a fluctuating rate of interest per annum equal to the higher of (i) the Prime Rate on such date and (ii) the Federal Funds Rate on such date plus 0.50%.
“ Bleachers ” means Bleachers Finance 1 Limited.
“ Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Indenture Supplement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“ Cash Equivalents ” means (a) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of ninety (90) days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital and surplus in excess of $500,000,000 unless otherwise approved by the Administrative Agent in writing in its sole discretion, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven (7) days with respect to securities issued or fully guaranteed or insured by
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the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within ninety (90) days after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s, (f) securities with maturities of ninety (90) days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or, (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
“ Change of Control ” occurs as to Advance Purchaser, if any of the following occur: (x) New Residential Investment Corp. (or any Affiliate thereof) or funds under management of Fortress Investment Group Inc. or an Affiliate thereof shall cease to beneficially own and control, directly or indirectly through one or more other intermediate entities, more than 20%, on a fully diluted basis, of the economic and voting interest in the equity interests of Advance Purchaser; (y) New Residential Investment Corp., Fortress Investment Group Inc. or an Affiliate thereof shall cease to be the managing member of Advance Purchaser; or (z) Fortress Investment Group Inc. or an Affiliate thereof is no longer the manager of New Residential Investment Corp.
“ Coefficient ” means, for the Series 2013-VF2 Notes, 0.08%.
“ Commercial Paper Notes ” means with respect to each Conduit Purchaser, the short-term promissory notes issued by such Conduit Purchaser or an asset-backed commercial paper conduit providing funding to a Conduit Purchaser from time to time.
“ Commercial Paper Rate ” means with respect to each Interest Accrual Period and each Conduit Purchaser, the per annum rate equivalent to the weighted average cost related to the issuance of related Commercial Paper Notes for such Interest Accrual Period (such costs as reasonably determined by the related sponsor or administrative agent for such Conduit Purchaser, and which shall include (without duplication) the fees and commissions of placement agents and dealers, incremental carrying costs incurred with respect to Commercial Paper Notes, other borrowings by such Conduit Purchaser and any other costs associated with the issuance of such Commercial Paper Notes); provided, that if any component of such per annum rate is a discount rate, in calculating the “Commercial Paper Rate”, the related Conduit Administrative Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum. The Conduit Administrative Agent shall deliver to the Administrator, the Calculation Agent and the Indenture Trustee the Commercial Paper Rate with respect to the Series 2013-VF2 Variable Funding Notes held by the Conduit Purchasers, if applicable, by no later than the Business Day prior to the Determination Date and the determination of the applicable Commercial Paper Rate by the Conduit Administrative Agent shall be binding absent manifest error.
“ Committed Purchaser ” means Natixis and its successors and assigns.
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“ Conduit Administrative Agent ” shall have the meaning set forth in the VF2 Note Purchase Agreement.
“ Conduit Purchaser ” means (i) any Purchaser which is designated as a “Conduit Purchaser” on the signature pages to the VF2 Note Purchase Agreement and (ii) any Purchaser which is designated as a “Conduit Purchaser” on the signature pages of any assignment agreement pursuant to which it becomes a party to the VF2 Note Purchase Agreement.
“ Constant ” means, for the Series 2013-VF2 Notes, 1.00%.
“ Corporate Trust Office ” means the principal corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Closing Date are located at (i) for Note transfer purposes, Wells Fargo Center, Sixth and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS, and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS.
“ Cost of Funds Rate ” means, for any day of any Interest Accrual Period, (a) to the extent a Conduit Purchaser has funded its interest in any Series 2013-VF2 Variable Funding Note through the direct or indirect issuance of Commercial Paper Notes, the Commercial Paper Rate applicable to such Conduit Purchaser and (b) in all other cases, the sum of One-Month LIBOR plus 1.00%.
“ CRD ” means the Capital Requirements Directive, as amended by Article 122a (effective as of January 1, 2011) and as the same may be further amended, restated or otherwise modified.
“ Default Rate ” means, with respect to any Interest Accrual Period, for the Series 2013-VF2 Notes, the then applicable Note Interest Rate (without regard to the proviso in the definition of “Note Interest Rate” in the Base Indenture) plus 3.00% per annum.
“ Effective Date ” means December 17, 2013.
“ Expected Repayment Date ” means, for the Series 2013-VF2 Notes, September 26, 2014, as such date may be extended from time to time pursuant to Section 7 hereof.
“ Expense Rate ” means, as of any date of determination, with respect to the Series 2013-VF2 Notes, the percentage equivalent of a fraction, (i) the numerator of which equals the sum of (1) the product of the Series Allocation Percentage for such Series multiplied by the aggregate amount of Fees due and payable by the Issuer on the next succeeding Payment Date plus (2) the product of the Series Allocation Percentage for such Series multiplied by any expenses payable or reimbursable by the Issuer on the next succeeding Payment Date, up to the applicable Expense Limit, if any, prior to any payments to the Noteholders of the Series 2013-VF2 Notes, pursuant to the terms and provisions of this Indenture Supplement, the Base Indenture or any other Transaction Document that have been invoiced to the Indenture Trustee and the Administrator, plus (3) the aggregate amount of related Series Fees payable by the Issuer on the next succeeding Payment Date and (ii) the denominator of which equals the sum of the outstanding Note Balances of all Series 2013-VF2 Notes at the close of business on such date.
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“ Facility Advance Rate ” means the aggregate Collateral Value of all Facility Eligible Receivables not including Non-FIFO Receivables, divided by the aggregate Receivable Balances of all Facility Eligible Receivables not including Non-FIFO Receivables.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the federal funds rates as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H. 15 (519) or any successor or substitute publication selected by the Administrative Agent (or, if such day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the rate determined, in the sole opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. (New York City time).
“ Fee Letter ” means that certain Fee Letter Agreement, dated the Effective Date, among the Administrative Agent, as the sole lead arranger with respect to the Series 2013-VF2 Notes, the Administrator, the Servicer and the Issuer.
“ Governmental Authority ” means the United States of America, the European Union and France, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the applicable Person.
“ Higher Margin Portion ” means, on any day, a dollar amount equal to the product of (i) the VFN Principal Balance and (ii) the percentage obtained by dividing the aggregate Higher Margin Receivable Balances by the aggregate Receivable Balances of all Facility Eligible Receivables.
“ Higher Margin Receivable Balance ” means the sum of (1) the aggregate Receivable Balance of all Eligible Non-FIFO Receivables plus (2) the amount by which the aggregate Receivable Balance of all Loan-Level Receivables exceeds 10% of the aggregate Receivable Balance of all Facility Eligible Receivables.
“ Increased Costs Limit ” means for each Noteholder of a Series 2013-VF2 Variable Funding Note, such Noteholder’s pro rata percentage (based on the Note Balance of such Noteholder’s Series 2013-VF2 Variable Funding Notes) of 0.10% of the average aggregate Note Balance for the Series 2013-VF2 Variable Funding Notes Outstanding for any twelve-month period.
“ Indebtedness ” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the
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date the respective goods are delivered or the respective services are rendered; (c) indebtedness of others secured by an Adverse Claim on the Property of such person, whether or not the respective indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such person; (e) obligations of such Person under Capital Lease Obligations; (f) obligations of such Person under repurchase agreements or like arrangements; (g) indebtedness of others guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) indebtedness of general partnerships of which such Person is a general partner; and (j) any other indebtedness of such Person by a note, bond, debenture or similar instrument.
“ Initial Payment Date ” means September 20, 2013.
“ Interest Accrual Period ” means, for the Series 2013-VF2 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date with respect to the Series 2013-VF2 Notes, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2013-VF2 Notes on any Payment Date shall be determined based on the actual number of days in the Interest Accrual Period.
“ Interest Day Count Convention ” means with respect the Series 2013-VF2 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“ Interim Payment Date ” means, with respect to the Series 2013-VF2 Notes, up to six (6) dates each calendar month provided that the Issuer provides the Noteholders of the Series 2013-VF2 Notes and the Indenture Trustee at least two (2) Business Days’ prior notice, or if any such date is not a Business Day, the next succeeding Business Day to the extent any such day occurs during the Revolving Period, and any other date otherwise agreed to between the Issuer and the Noteholders of the Series 2013-VF2 Notes.
“ Issuance Date ” means the initial Funding Date with respect to the Series 2013-VF2 Notes or such other date designated by the Administrator.
“ LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ LIBOR Determination Date ” means for each Interest Accrual Period, the second London Banking Day prior to the commencement of such Interest Accrual Period.
“ Limited Funding Date ” means any Business Day that is not a Payment Date or Interim Payment Date, at a time when no Facility Early Amortization Event shall have occurred and shall be continuing, which date is designated by the Administrator on behalf of the Issuer to the Indenture Trustee and the Administrative Agent in writing no later than 9:00 a.m. Eastern Time two (2) Business Days prior to such date; provided, that the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) of the Indenture for such date, and provided, further that no fundings may be made under a Variable Funding Note on such date and no payments on any Notes shall be made on such date; provided, further, that no more than five (5) Limited Funding Dates may be designated by the Administrator on behalf of the Issuer in any calendar month.
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“ Liquidity ” means, as to any entity, as of the last day of any calendar month, the sum of (a) such entity’s Unrestricted Cash and (b) the aggregate amount of unused committed capacity available to such entity (taking into account applicable haircuts) under mortgage loan warehouse and servicer advance facilities for which such entity has unencumbered collateral eligible to be pledged thereunder.
“ London Banking Day ” means any day on which commercial banks and foreign exchange markets settle payment in both London and New York City.
“ Low Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $1,000,000 but less than $10,000,000, or (ii) that relates to at least 15 but fewer than 50 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Margin ” means, for the Series 2013-VF2 Notes, 2.0% per annum.
“ Market Value ” means, with respect to the Mortgaged Property securing a Mortgage Loan or any REO Property, the market value of such property (determined by the Servicer in its reasonable good faith discretion, which shall be by reference to the most recent value received by the related Subservicer (or by Nationstar as Servicer prior to the related MSR Transfer Date) with respect to such Mortgaged Property or REO Property in accordance with its servicing policies, if available) or the appraised value of the Mortgaged Property obtained in connection with the origination of the related Mortgage Loan, if no updated valuation has been required under the Servicer’s or Subservicer’s, as the case may be, servicing policies; provided , that
(i) the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is related to a Designated Servicing Agreement for which ninety (90) days have passed since the related Designation Date without a valuation of the related Mortgaged Property that is less than six (6) months old;
(ii) at any time after the 90 th day following the related Designation Date, the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is 60 or more days delinquent and the related valuation is more than six (6) months old; and
(iii) the Market Value for any Mortgaged Property or REO Property shall be deemed equal to 66 2/3 % of the outstanding principal balance of the related Mortgage Loan if (x) fifteen (15) Business Days or less have passed since the Designation Date for the Designated Servicing Agreement for such Mortgage Loan and (y) the servicer does not otherwise determined the market value of such property in accordance with this definition.
Any valuation for purposes of this definition shall be established by the lesser of either an appraisal, broker’s price opinion, the Subservicer’s (or Nationstar as Servicer prior to the MSR
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Transfer Date) automated valuation model or any other internal valuation methodology (including but not limited to HPI indexing utilized by the Subservicer (or Nationstar as Servicer prior to the MSR Transfer Date), which is consistent with the Servicer’s or Subservicer’s, as the case may be, servicing policies with respect to such Mortgaged Property or REO Property.
“ Market Value Ratio ” means, as of any date of determination with respect to a Designated Servicing Agreement, the ratio (expressed as a percentage) of (i) the lesser of (A) the Funded Advance Receivable Balance for such Designated Servicing Agreement on such date and (B) the aggregate of the Receivable Balances of all Facility Eligible Receivables under such Designated Servicing Agreement on such date over (ii) the aggregate Market Value of the Mortgaged Properties and REO Properties for the Mortgage Loans serviced under such Designated Servicing Agreement on such date.
“ Maximum VFN Principal Balance ” means, for the Series 2013-VF2 Notes, $400,000,000 or, on any date, a lesser amount calculated pursuant to a written agreement between the Servicer, the Administrator and the Administrative Agent.
“ Middle Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $10,000,000 but less than $25,000,000, or (ii) that relates to at least 50 but fewer than 125 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Monthly Reimbursement Rate ” means, as of any date of determination, the arithmetic average of the fractions (expressed as percentages), determined for each of the three (3) most recently concluded calendar months (or the number of months since the Closing Date, if less than three (3)), obtained by dividing (i) the aggregate Advance Reimbursement Amounts collected by the Servicer and deposited into the Trust Accounts during such calendar month by (ii) the Funded Advance Receivable Balance as of the close of business on the last day of such calendar month.
“ Mortgage Loan-Level Market Value Ratio ” means, as of any date of determination with respect to a Mortgage Loan or REO Property that is secured by a first lien on the related Mortgaged Property or REO Property, the ratio (expressed as a percentage) of (x) (i) with respect to Section 5(vii)(a) hereof, the aggregate Receivable Balance of all Loan-Level Receivables outstanding with respect to such Mortgage Loan or REO Property on such date or (ii) with respect to Section 5(vii)(b) hereof, the aggregate Receivable Balance of all Receivables outstanding with respect to such Mortgage Loan or REO Property on such date over (y) the Market Value of such Mortgaged Property or REO Property on such date.
“ Net Proceeds Coverage Percentage ” means, for any Payment Date, the percentage equivalent of a fraction, (i) the numerator of which equals the amount of Collections on Receivables deposited into the Collection and Funding Account during the related Monthly Advance Collection Period, and (ii) the denominator of which equals the aggregate average outstanding Note Balances of all Outstanding Notes during such Monthly Advance Collection Period.
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“ Net Total Indebtedness ” means, with respect to any Person, for any period, (i) the aggregate Indebtedness of such Person and its Subsidiaries during such period minus (ii) the amount of any non-recourse debt (including any securitization debt).
“ Net Worth ” means, with respect to any Person, such Person’s assets minus such Person’s liabilities, each determined in accordance with GAAP.
“ Note Interest Rate ” means, for the Series 2013-VF2 Notes, in any Interest Accrual Period, (i) for the Higher Margin Portion of the VFN Principal Balance on such day, the applicable Cost of Funds Rate for such Interest Accrual Period plus 3.25% per annum, and (ii) for the VFN Principal Balance other than the Higher Margin Portion on such day, the applicable Cost of Funds Rate plus the applicable Margin; provided that, from and after the Expected Repayment Date, if the Series 2013-VF2 Notes have not been refinanced, the “Note Interest Rate” shall be the interest rate applicable to such Notes, plus 0.50%.
For the avoidance of doubt, the “Note Interest Rate” for each of the Series 2013-VF2 Notes is subject to the definition of “Note Interest Rate” in the Base Indenture.
“ One-Month LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ Optional Extension Date ” means the date that is six (6) months after the Closing Date (or, if such day is not a Business Day, the next succeeding Business Day).
“ Prime Rate ” means the rate announced by the Administrative Agent from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors.
“ Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“ Ratings Reduction ” has the meaning given to such term in the definition of “Advance Rates.”
“ Redemption Percentage ” means, for the Series 2013-VF2 Notes, 10%.
“ Reference Banks ” has the meaning assigned to such term in Section 8(b) of this Indenture Supplement.
“ Regulatory Change ” means (a) the adoption of any law, rule or regulation after the date hereof, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date hereof or (c) compliance by any Noteholder (or, for purposes of Section 9(a)(3) , by any lending office of such Noteholder or by such Noteholder’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date hereof.
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“ Reserve Interest Rate ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
“ Second Threshold Amount ” means $200,000,000.
“ Second Threshold Date ” means June 15, 2014.
“ Second Threshold Excess ” means, the amount equal to the greater of (a) $32,000,000 and (b) the differential, if greater than zero, of (i) the Maximum VFN Principal Balance as of the Second Threshold Date (after giving effect to any reductions thereof on such date) minus (ii) the Second Threshold Amount.
“ Second Threshold Termination Fee ” means the fee equal to the greater of (a) $0 and (b) the differential of (i) (x) 2.50% multiplied by (y) the Second Threshold Excess multiplied by (z) the number of days from the Second Threshold Date to the Stated Maturity Date divided by 360 minus (ii) interest payments and Non-Use Fees earned on the Second Threshold Excess following the Second Threshold Date.
“ Second-Lien Receivable ” means a Receivable that arises under a Designated Servicing Agreement for which the related Advance or Deferred Servicing Fee relates to a Mortgage Loan or REO Property secured by a second lien.
“ Series 2013-VF2 Note Balance ” means the aggregate Note Balance of the Series 2013-VF2 Notes.
“ Series Reserve Required Amount ” means with respect to any Payment Date or Interim Payment Date, as the case may be, for the Series 2013-VF2 Notes, an amount equal to on any Payment Date or Interim Payment Date four months’ interest calculated at the applicable Note Interest Rate on the Note Balance of the Series 2013-VF2 Notes as of such Payment Date or Interim Payment Date, as the case may be.
“ Small Threshold Servicing Agreement ” means a Designated Servicing Agreement (i) for which the underlying Mortgage Loans have an unpaid principal balance of less than $1,000,000, or (ii) that relates to fewer than 15 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Stated Maturity Date ” means, for the Series 2013-VF2 Notes, the Expected Repayment Date.
“ Stressed Interest Rate ” means, for the Series 2013-VF2 Notes, as of any date, the sum of (i) the sum of (x) the per annum index on the basis of which the Series 2013-VF2 Notes’ Note Interest Rate is determined for the current Interest Accrual Period, and (y) such Notes’ Constant and (z) the product of (I) such Notes’ Coefficient and (II) Stressed Time, plus (ii) the weighted average per annum Margin of all Outstanding Series 2013-VF2 Notes that is added to the index to determine the Note Interest Rate for such Notes.
“ Stressed Nonrecoverable Advance Amount ” means, as of any date of determination, the sum of any of the following, each without duplication:
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(i) for all Mortgage Loans that are current as of such date, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(ii) for all Mortgage Loans that are delinquent as of such date, but not related to property in foreclosure or REO Property, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(iii) for all Mortgage Loans that are related to properties in foreclosure, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(iv) for all REO Properties, the greater of (A) zero and (B) the excess of (1) Total Advances related to such REO Properties on such date over (2) the product of 50% and the sum of all of the Market Values for the related REO Properties.
For the avoidance of doubt, this definition of “Stressed Nonrecoverable Advance Amount” shall not be applicable to Mortgage Loans attributable to Small Threshold Servicing Agreements, any Mortgage Loans that generate Receivables that are Loan-Level Receivables or any Mortgage Loans that generate Second-Lien Receivables.
“ Stressed Time ” means, as of any date of determination for the Series 2013-VF2 Notes, the percentage equivalent of a fraction, the numerator of which is one (1), and the denominator of which equals the Stressed Time Percentage for the Series 2013-VF2 Notes times the Monthly Reimbursement Rate on such date.
“ Stressed Time Percentage ” means 82.1%.
“ Support Advances ” shall mean any loans or advances, or any participation or other interest, funded or held by a Support Party pursuant to a Support Facility (but excluding any such loans or advances made to fund the applicable Conduit Purchaser’s obligations to pay interest, fees or other similar amounts relating to the funding of its making or maintaining its interest in a Purchased Note).
“ Tangible Net Worth ” means, with respect to any Person at any date of determination, (i) the Net Worth of such Person and its consolidated Subsidiaries, determined in accordance with GAAP, minus (ii) all intangibles determined in accordance with GAAP (including, without limitation, goodwill, capitalized financing costs and capitalized administration costs but excluding originated and purchased mortgage servicing rights and retained residual securities) and any and all advances to, investments in and receivables held from Affiliates; provided , however , that the non-cash effect (gain or loss) or any mark-to-market adjustments made directly to stockholders’ equity for fluctuation of the value of financial instruments as mandated under the Statement of Financial Accounting Standards No. 133 (or any successor statement) shall be excluded from the calculation of Tangible Net Worth.
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“ Target Amortization Amounts ” means, for the Series 2013-VF2 Notes, (i) if a Target Amortization Event occurs that is described in the definition thereof in clauses (B)(i), (B)(ii), (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) or (B)(xv) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(i), (B)(ii) or (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-twelfth (1/12) of the Notes Balance of such Notes at the close of business on the last day of its Revolving Period), one-twelfth (1/12) of the Note Balance of the Series 2013-VF2 Notes at the close of business on the last day of its Revolving Period; (ii) if a Target Amortization Event described in clause (B)(xii) or (B)(xv) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(xii) of the definition thereof and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-third (1/3) of the Note Balance of such Notes at the close of business on the last day of its Revolving Period) in the definition thereof occurs, one-third (1/3) of the Note Balance of the Series 2013-VF2 Notes at the close of business on the last day of its Revolving Period and (iii) if any other Target Amortization Event described in the definition thereof occurs (including B(xi)(b) or B(xv), except as covered above), 100% of the Note Balance of the Series 2013-VF2 Notes at the close of business on the last day of its Revolving Period.
“ Target Amortization Event ” for the Series 2013-VF2 Notes, means the earlier of (A) the related Expected Repayment Date or (B) the occurrence of any of the following conditions or events, which is not waived by 100% of the Noteholders of the Series 2013-VF2 Notes:
(i) on any Payment Date, the arithmetic average of the Net Proceeds Coverage Percentage determined for such Payment Date and the two preceding Payment Dates (or no preceding Payment Dates in the case of the determination on the first Payment Date, or the one preceding Payment Date, in the case of the determination on the second Payment Date) is less than five (5) times the percentage equivalent of a fraction (A) the numerator of which equals the sum of the accrued Interest Payment Amounts for each Class of Outstanding Notes on such date and (B) the denominator of which equals the aggregate average Note Balances of each Class of all Outstanding Notes during the related Monthly Advance Collection Period;
(ii) the occurrence of one or more Servicer Termination Events with respect to Designated Servicing Agreements representing 15% or more (by Mortgage Loan balance as of the date of termination) of all the Designated Servicing Agreements then included in the Trust Estate, but not including any Servicer Termination Events that are solely due to the breach of one or more Collateral Performance Tests or a Servicer Ratings Downgrade or the transfer of subservicing of any Designated Servicing Agreement without the prior written consent of the Administrative Agent;
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(iii) the Monthly Reimbursement Rate is less than 3.00%;
(iv) Reserved ;
(v) Reserved ;
(vi) for so long as Nationstar is the Servicer or the Subservicer, as of the close of business on the last Business Day of December 2013 and of each calendar month thereafter, Nationstar’s Liquidity is less than $80,000,000;
(vii) the occurrence of a Change of Control;
(viii) any failure by the Servicer to deliver any Determination Date Servicer Report pursuant to Section 3.2 of the Base Indenture which continues unremedied for a period of five (5) Business Days after a Responsible Officer of the Servicer shall have obtained actual knowledge of such failure, or shall have received written or electronic notice from the Indenture Trustee or any Noteholder of such failure;
(ix) the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator shall breach or default in the due observance or performance of any of its covenants or agreements in this Indenture Supplement, the Base Indenture, or any other Transaction Document in any material respect (subject to any cure period provided therein), other than an obligation of the Receivables Seller to make an Indemnity Payment following a breach of a representation or warranty with respect to such Receivable pursuant to Section 4(b) of the Receivables Sale Agreement or any payment default described in Section 8.1 of the Base Indenture, and any such default shall continue for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Indenture Trustee or any Noteholder to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator; provided , that a breach of Section 6(b) of the Receivables Sale Agreement, or Section 7(b) of the Receivables Pooling Agreement (prohibiting the Receivables Seller, the Servicer, the Subservicer or the Depositor, as applicable, from causing or permitting Insolvency Proceedings with respect to the Depositor or the Issuer, as applicable) shall constitute an automatic Target Amortization Event;
(x) if any representation or warranty of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator made in this Indenture Supplement, the Base Indenture, or any other Transaction Document (other than under Section 4(b) of the Receivables Sale Agreement) shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written notice of such failure, requiring the same to be remedied,
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shall have been given to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, and would have a material adverse effect on the rights or interests of the Noteholders;
(xi) (a) a final judgment or judgments for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Depositor or the Issuer by one or more courts, administrative tribunals or other bodies having jurisdiction over them, or (b) a final judgment or judgments for the payment of money in excess of $35,000,000 in the aggregate shall be rendered against Advance Purchaser by one or more courts, administrative tribunals or other bodies having jurisdiction over them that, in the sole determination of the Administrative Agent, shall have a material adverse effect on Advance Purchaser’s business or operations, and the same shall not be discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and Advance Purchaser, shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(xii) any person shall be appointed as Independent Manager of the Depositor without prior notice having been given to and without the written acknowledgement by the Administrative Agent that such person conforms, to the satisfaction of the Administrative Agent in its reasonable discretion, to the criteria set forth herein in the definition of “Independent Manager”;
(xiii) Advance Purchaser shall fail to make any payment (whether of principal or interest or otherwise) in respect of any other indebtedness with an amount in excess of $15,000,000, when and as the same shall become due and payable (including the passage of any applicable grace period);
(xiv) any event or condition occurs and, while continuing, results in any indebtedness of Advance Purchaser with an amount in excess of $15,000,000 becoming due prior to its scheduled maturity or that enables or permits (including the passage of any applicable grace period) the holder or holders of any such indebtedness or any trustee or agent on its or their behalf to cause any such indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(xv) any Series or Class of Variable Funding Notes other than the Series 2013-VF2 Notes enters into a Target Amortization Period;
(xvi) Advance Purchaser shall have Tangible Net Worth less than the greater of (a) 3% of the aggregate Receivables Balances of all servicer advance receivables and deferred servicing fee receivables held by Advance Purchaser or a Subsidiary of Advance Purchaser as of the last day of any fiscal quarter of Advance Purchaser or (b) $75,000,000;
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(xvii) Advance Purchaser shall fail to have Liquidity of at least $25,000,000 as of the last day of any calendar month;
(xviii) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the Tangible Net Worth of Nationstar is less than or equal to $350,000,000 as of the last day of any quarter or (B) at any other time, the Tangible Net Worth of Nationstar is less than or equal to $400,000,000 as of the last day of any quarter and the continuation of such condition for 30 days after the end of such quarter; or
(xix) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the ratio of Nationstar’s Net Total Indebtedness to Tangible Net Worth exceeds 12:1 as of the last day of any quarter, or (B) at any time other than the time described in clause (A), Nationstar’s Net Total Indebtedness to Tangible Net Worth at any time exceeds 9:1 as of the last day of any quarter and the continuation of such condition for 30 days after the end of such quarter.
“ Transaction Documents ” means, in addition to the documents set forth in the definition thereof in the Base Indenture, this Indenture Supplement and the VF2 Note Purchase Agreement, each as amended, supplemented, restated or otherwise modified from time to time.
“ Trigger Advance Rate ” means, for the Series 2013-VF2 Notes, as of any date, the rate equal to the greater of (x) zero and (y) (1) 100% minus (2) the product of (a) one twelfth of the Stressed Interest Rate for the Series 2013-VF2 Notes, plus the related Expense Rate as of such date, multiplied by (b) the Stressed Time for the Series 2013-VF2 Notes as of such date.
“ Undrawn Fee Rate ” means, with respect to the Series 2013-VF2 Variable Funding Notes held by the Committed Purchaser and for each Interest Accrual Period, 0.50% per annum ; provided , however , that in case of the first Payment Date, the Undrawn Fee Rate shall accrue from the period beginning on August 28, 2013, and ending on the day immediately preceding the current Payment Date. For the avoidance of doubt, only the Committed Purchasers shall be paid Undrawn Fee Amounts as set forth in the Base Indenture.
“ Unrestricted Cash ” means, as of any date of determination, the sum of (i) the Receivables Seller’s cash, (ii) the Receivables Seller’s Cash Equivalents that are not, in either case, subject to an Adverse Claim in favor of any Person or that are not required to be reserved by the Receivables Seller in a restricted escrow arrangement or other similarly restricted arrangement pursuant to a contractual agreement or requirement of law.
“ Variable Funding Notes ” means, the Series 2013-VF2 Variable Funding Notes issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ VF2 Note Purchase Agreement ” means that certain Note Purchase Agreement, dated as of the date hereof, by and among the Issuer, Natixis, as the Administrative Agent and Conduit Administrative Agent, Natixis, as the Committed Purchaser and Bleachers, as the Conduit Purchaser, that relates to the purchase of the Series 2013-VF2 Notes.
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There are no “Other Advance Rate Reduction Events” or “Other Advance Rate Reduction Event Cure Periods” in respect of the Series 2013-VF2 Notes.
Section 3. Forms of Series 2013-VF2 Notes.
The form of the Rule 144A Definitive Note and of the Regulation S Definitive Notes that may be used to evidence the Series 2013-VF2 Variable Funding Notes in the circumstances described in Section 5.4(c) of the Base Indenture are attached to the Base Indenture as Exhibits A-2 and A-4 , respectively.
In addition to any provisions set forth in Section 6.5 of the Base Indenture, with respect to the Series 2013-VF2 Notes, the Noteholder of such Notes shall only transfer its beneficial interest therein to another potential investor in accordance with the applicable Note Purchase Agreement. The Indenture Trustee (in all of its capacities) shall not be responsible to monitor, and shall not have any liability, for any such transfers of beneficial interests of participation interests.
Section 4. Series Reserve Account.
In accordance with the terms and provisions of this Section 4 and Section 4.6 of the Base Indenture, the Indenture Trustee shall establish and maintain a Series Reserve Account with respect to the Series 2013-VF2 Notes, which shall be an Eligible Account, for the benefit of the Series 2013-VF2 Noteholders. The Series Reserve Account with respect to the Series 2013-VF2 Notes is listed on Schedule 1 attached hereto.
Section 5. Collateral Value Exclusions.
For purposes of calculating “Collateral Value” in respect of the Series 2013-VF2 Notes, the Collateral Value shall be zero for any Receivable that:
(i) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Advance Ratio to be equal to or greater than 100.0%; provided , that this clause (i) shall not apply to any Receivable that is (a) attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement or (b) a Loan-Level Receivable;
(ii) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Market Value Ratio to exceed 25.0%;
(iii) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement to the extent that the Receivable Balance of such Receivable, when
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added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements to exceed 2.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(iv) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements to exceed 7.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(v) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement, a Low Threshold Servicing Agreement, or a Middle Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements to exceed 15.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(vi) is attributable to a Designated Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances outstanding with respect to that same Designated Servicing Agreement, would cause the total Receivable Balances attributable to such Designated Servicing Agreement to exceed 15.0% of the aggregate of the Receivable Balances of the Aggregate Receivables;
(vii) (a) if it is a Loan-Level Receivable, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables with respect to the related Mortgage Loan or REO Property, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0% or (b) if it is a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables related to the Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0%;
(viii) is a Second-Lien Receivable;
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(ix) has a zero Advance Rate;
(x) is a Loan-Level Receivable or a Non-FIFO Receivable, to the extent that the related Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of Loan-Level Receivables and Non-FIFO Receivables already outstanding with respect to all Mortgage Loans or REO Properties, causes the aggregate Receivable Balances of all Loan-Level Receivables and Non-FIFO Receivables to exceed 22.5% of the aggregate Receivables Balances of all Facility Eligible Receivables;
(xi) is a Facility Eligible Receivable that is a Loan-Level Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables to exceed 20.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(xii) is a Facility Eligible Receivable that is attributable to a Non-FIFO Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables to exceed (i) from and including the Closing Date through October 1, 2013, $150,000,000, (ii) from and including October 1, 2013 through April 1, 2014, $100,000,000, and (iii) on and after April 1, 2014, the lesser of $25,000,000 or 1.0% of the aggregate Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(xiii) if more than ninety (90) days have passed since the Designation Date in respect of the related Designated Servicing Agreement, relates to an Advance that has not been reimbursed in full or a Deferred Servicing Fee that has not been paid in full within forty-five (45) days following the date of a permanent modification of the related Mortgage Loan that becomes effective subsequent to the creation of such Receivable (for purposes of this clause, a modification becomes “permanent” following any trial period or satisfaction of conditions precedent or subsequent); or
(xiv) is a Receivable related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 4 to the Base Indenture (as the same may be updated from time to time pursuant to Section 2.2(c) of the Base Indenture) and the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 4 of such securitization trust’s cut-off date balance.
For purposes of each of the foregoing, (i) if any Facility Eligible Receivable has a Collateral Value equal to zero pursuant to any Collateral Value exclusion test, the portion of the Receivables Balance thereof with a Collateral Value of zero shall be disregarded for all other purposes of this Section 5 , in each case as determined by the Administrator in a manner that maximizes the Collateral Value and (ii) if any Facility Eligible Receivable has an Advance Rate of zero or is a Second-Lien Receivable, such Facility Eligible Receivable shall be disregarded for all other purposes of this Section 5 .
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Section 6. Payments; Note Balance Increases; Early Maturity; Other Advance Rate Reduction Events.
The Paying Agent shall make payments of interest on the Series 2013-VF2 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture and any payments of interest (including unrated interest amounts), Cumulative Interest Shortfall Amounts, Fees or Increased Costs allocated to the Series 2013-VF2 Notes shall be paid to the Series 2013-VF2 Notes. The Paying Agent shall make payments of principal on the Series 2013-VF2 Variable Funding Notes on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5, respectively, of the Base Indenture (at the option of the Issuer in the case of requests during the Revolving Period for the Series 2013-VF2 Variable Funding Notes). The Note Balance of the Series 2013-VF2 Variable Funding Notes may be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the related Maximum VFN Principal Balance. The Paying Agent shall make payments of principal on the Series 2013-VF2 Variable Funding Notes on each Payment Date in accordance with Section 4 of the Base Indenture during any Target Amortization Period or any Full Amortization Period.
The parties hereto agree that the failure to pay any portion of any related Undrawn Fee Amount on any Payment Date shall constitute an Event of Default under Section 8.1(a)(i) of the Base Indenture.
Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Issuer may, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, redeem in whole or in part, and/or terminate and cause retirement of any of the Series 2013-VF2 Variable Funding Notes at any time using proceeds of issuance of new Notes or in connection with the repayment of all Notes.
The Series 2013-VF2 Notes are also subject to optional redemption in accordance with the terms of Section 13.1 of the Base Indenture.
Any payments of principal allocated to the Series 2013-VF2 Notes during a Full Amortization Period shall be applied to the Series 2013-VF2 Notes until their Note Balance has been reduced to zero.
The Administrative Agent further confirms that the Series 2013-VF2 Notes issued on the Issuance Date pursuant to this Indenture Supplement shall be issued in the name of “Natixis, New York Branch, in its capacity as Administrative Agent and Conduit Administrative Agent,” as applicable, and the Administrative Agent hereby directs the Indenture Trustee to issue the Series 2013-VF2 Notes in the name of “Natixis, New York Branch, in its capacity as Administrative Agent and Conduit Administrative Agent,” as applicable. For the avoidance of doubt, the parties hereto hereby agree that, in accordance with the terms and provisions of the VF2 Note Purchase Agreement, the Administrative Agent shall act as agent of each Noteholder of a Series 2013-VF2 Note and shall determine the allocation of “Additional Note Balances” (as such term is defined in the VF2 Note Purchase Agreement) to be purchased by each such Noteholder.
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For the avoidance of doubt, the failure pay any Target Amortization Amount when due, as described in the definition thereof, shall constitute an Event of Default.
There are no “Other Advance Rate Reduction Events” in respect of the Series 2013-VF2 Notes. If any Other Advance Rate Reduction Event in respect of any other Series of Notes is the same as any reduction event specified in clause (iv) of the definition of “Facility Early Amortization Event,” and the related Other Advance Rate Reduction Event Cure Period is shorter than the applicable grace period for the same event specified in clause (iv) of the definition of “Facility Early Amortization Event”, then solely for purposes of the Series 2013-VF2 Notes, the applicable grace period specified in clause (iv) of the definition of “Facility Early Amortization Event” shall be reduced to the Other Advance Rate Reduction Event Cure Period.
For the avoidance of doubt, the Issuer may reduce the Maximum VFN Principal Balance at any time to an amount not less than the current VFN Principal Balance.
Section 7. Extension of Expected Repayment Date.
The Administrator, on behalf of the Issuer, may request one (1) extension of the Expected Repayment Date for any of the Series 2013-VF2 Variable Funding Notes at least fifteen (15) days prior to the Optional Extension Date. The Administrative Agent shall provide written notice of whether the Administrative Agent agrees to extend the Expected Repayment Date on such Optional Extension Date at least five (5) days prior to such Optional Extension Date. If the Administrative Agent provides written notice of its agreement to extend the Expected Repayment Date, the Expected Repayment Date will be extended on such Optional Extension Date such that, after giving effect to any such extension, the Expected Repayment Date will be 180 days after the existing Expected Repayment Date. The Expected Repayment Date of the Series 2013-VF2 Variable Funding Notes cannot be extended past the Expected Repayment Date for any other Outstanding Series of Variable Funding Notes. For the avoidance of doubt, the Expected Repayment Date of the Series 2013-VF2 Variable Funding Notes shall be extended only by written notice from the Administrative Agent in accordance with this Section 7 .
Section 8. Determination of Note Interest Rate and LIBOR.
(a) At least one (1) Business Day prior to each Determination Date, the Administrator shall calculate the Note Interest Rate for the related Interest Accrual Period (in the case of the Series 2013-VF2 Variable Funding Notes using the Commercial Paper Rate determined by the Conduit Administrative Agent and One Month LIBOR as determined by the Administrative Agent in accordance with Section 8(b) below, as applicable) and the Interest Payment Amount for the Series 2013-VF2 Notes for the upcoming Payment Date, and include a report of such amount in the related Payment Date Report.
(b) On each LIBOR Determination Date, the Administrative Agent will determine the arithmetic mean of the London Interbank Offered Rate (“ LIBOR ”) quotations for one-month Eurodollar deposits (“ One-Month LIBOR ”) for the succeeding Interest Accrual Period for the Series 2013-VF2 Notes on the basis of the Reference Banks’ offered LIBOR quotations provided
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to the Calculation Agent as of 11:00 a.m. (London time) on such LIBOR Determination Date. As used herein with respect to a LIBOR Determination Date, “ Reference Banks ” means leading banks engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) whose quotations appear on the Bloomberg Screen US0001M Index Page for the LIBOR Determination Date in question and (iii) which have been designated as such by the Calculation Agent (after consultation with the Administrative Agent) and are able and willing to provide such quotations to the Calculation Agent for each LIBOR Determination Date; and “ Bloomberg Screen US0001M Index Page ” means the display designated as page US0001M Index Page on the Bloomberg Financial Markets Commodities News (or such other pages as may replace such page on that service for the purpose of displaying LIBOR quotations of major banks). If any Reference Bank should be removed from the Bloomberg Screen US0001M Index Page or in any other way fails to meet the qualifications of a Reference Bank, the Administrative Agent may, in its sole discretion, designate an alternative Reference Bank.
If, for any LIBOR Determination Date, two or more of the Reference Banks provide offered One-Month LIBOR quotations on the Bloomberg Screen US0001M Index Page, One-Month LIBOR for the next succeeding Interest Accrual Period for the Series 2013-VF2 Variable Funding Notes will be the arithmetic mean of such offered quotations (rounding such arithmetic mean if necessary to the nearest five decimal places).
If, for any LIBOR Determination Date, only one or none of the Reference Banks provides such offered One-Month LIBOR quotations for the next applicable Interest Accrual Period, One-Month LIBOR for the next Interest Accrual Period for the Series 2013-VF2 Notes will be the higher of (x) One-Month LIBOR as determined for the previous LIBOR Determination Date and (y) the Reserve Interest Rate. The “ Reserve Interest Rate ” on any date of determination will be the rate per annum that the Administrative Agent determines to be either (A) the arithmetic mean (rounding such arithmetic mean if necessary to the nearest five decimal places) of the one-month Eurodollar lending rate that New York City banks selected by the Administrative Agent are quoting, on the relevant LIBOR Determination Date, to the principal London offices of at least two leading banks in the London Interbank market or (B) in the event that the Administrative Agent is unable to determine such arithmetic mean, the lowest one-month Eurodollar lending rate that the New York City banks so selected by the Administrative Agent are quoting on such LIBOR Determination Date to leading European banks.
If, on any LIBOR Determination Date, the Administrative Agent is required but is unable to determine the Reserve Interest Rate in the manner provided in the preceding paragraph, One-Month LIBOR for the next applicable Interest Accrual Period will be One-Month LIBOR as determined for the previous LIBOR Determination Date.
Notwithstanding the foregoing, One-Month LIBOR for an Interest Accrual Period shall not be based on One-Month LIBOR for the previous Interest Accrual Period on the Series 2013-VF2 Notes for two consecutive LIBOR Determination Dates. If, under the priorities described above, One-Month LIBOR for an Interest Accrual Period on the Series 2013-VF2 Notes would be based on One-Month LIBOR for the previous LIBOR Determination Date for the second consecutive LIBOR Determination Date, the Administrative Agent shall select an alternative index (over which the Administrative Agent has no control) used for determining one-month
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Eurodollar lending rates that is calculated and published (or otherwise made available) by an independent third party, and this alternative index shall constitute One-Month LIBOR for all purposes under this Indenture Supplement in that event.
(c) The establishment of the Commercial Paper Rate by the Conduit Administrative Agent and One-Month LIBOR by the Administrative Agent and the Administrator’s subsequent calculation of the Note Interest Rate on the Series 2013-VF2 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 9. Increased Costs.
(a) If any Regulatory Change or other requirement of any law, rule, regulation or order applicable to a Noteholder of a Series 2013-VF2 Variable Funding Note (a “ Requirement of Law ”) or any change in the interpretation or application thereof or compliance by such Noteholder with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(1) shall subject such Noteholder to any tax of any kind whatsoever with respect to its Series 2013-VF2 Variable Funding Note (excluding income taxes, branch profits taxes, franchise taxes or similar taxes imposed on such Noteholder as a result of any present or former connection between such Noteholder and the United States, other than any such connection arising solely from such Noteholder having executed, delivered or performed its obligations or received a payment under, or enforced, this Indenture Supplement or any U.S. federal withholding taxes imposed under Code sections 1471 through 1474 as of the date of this Indenture Supplement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereunder and any agreements entered into under section 1471(b) of the Code) or change the basis of taxation of payments to such Noteholder in respect thereof; shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(2) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or credit extended or participated by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(3) shall have the effect of reducing the rate of return on such Noteholder’s capital or on the capital of such Noteholder’s holding company, if any, as a consequence of this Indenture Supplement, in the case of the Series 2013-VF2 Variable Funding Notes, the VF2 Note Purchase Agreement, or the
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Series 2013-VF2 Variable Funding Notes to a level below that which such Noteholder or such Noteholder’s holding company could have achieved but for such Requirements of Law (other than any Regulatory Change, Requirement of Law, interpretation or application thereof, request or directive with respect to taxes) (taking into consideration such Noteholder’s policies and the policies of such Noteholder’s holding company with respect to capital adequacy); or
(4) shall impose on such Noteholder or the London interbank market any other condition, cost or expense (other than with respect to taxes) affecting this Indenture Supplement, in the case of the Series 2013-VF2 Variable Funding Notes, the VF2 Note Purchase Agreement or the Series 2013-VF2 Variable Funding Notes or any participation therein; or
(5) shall impose on such Noteholder any other condition;
and the result of any of the foregoing is to increase the cost to such Noteholder, by an amount which such Noteholder deems to be material, of continuing to hold its Series 2013-VF2 Variable Funding Note, of maintaining its obligations with respect thereto, or to reduce any amount due or owing hereunder in respect thereof, or to reduce the amount of any sum received or receivable by such Noteholder (whether of principal, interest or any other amount) or (in the case of any change in a Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Noteholder or any Person controlling such Noteholder with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental Authority or quasi-Governmental Authority made subsequent to the date hereof) shall have the effect of reducing the rate of return on such Noteholder’s or such controlling Person’s capital as a consequence of its obligations as a Noteholder of a Variable Funding Note to a level below that which such Noteholder or such controlling Person could have achieved but for such adoption, change or compliance (taking into consideration such Noteholder’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Noteholder to be material, then, in any such case, such Noteholder shall invoice the Administrator for such additional amount or amounts as calculated by such Noteholder in good faith as will compensate such Noteholder for such increased cost or reduced amount, and such invoiced amount shall be payable to such Noteholder on the Payment Date following the next Determination Date following such invoice, in accordance with Section 4.5(a)(1)(ii) or Section 4.5(a)(2)(ii) of the Base Indenture, as applicable; provided , however , that any amount of Increased Costs in excess of the Increased Costs Limit shall be payable to such Noteholder in accordance with Section 4.5(a)(1)(ix) or Section 4.5(a)(2)(iv) of the Base Indenture, as applicable.
(b) Each Support Party (as such term is defined in the VF2 Note Purchase Agreement) shall be entitled to receive additional payments and indemnification pursuant to this Section 9 as though it were a Committed Purchaser and such Section applied to its interest in or commitment to acquire an interest in the Series 2013-VF2 Variable Funding Notes; provided, that such Support Party shall not be entitled to additional payments pursuant to this Section 9 by reason of Requirements of Law which occurred prior to the date it became a Support Party; provided, further, that such Support Party shall be entitled to receive additional amounts pursuant to this Section 9 only to the extent that its related Conduit Purchaser would have been entitled to
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receive such amounts in the absence of Support Advances (as such term is defined in the VF2 Note Purchase Agreement) from such Support Party. The provisions of this Section 9 shall apply to the Conduit Administrative Agent and to such of its Affiliates as may from time to time administer, make referrals to or otherwise provide services or support to the Conduit Purchasers (in each case as though such Conduit Administrative Agent or Affiliate were a Purchaser and such Section applied to its administration of or other provisions of services or support to such Conduit Purchaser in connection with the transactions contemplated by this Agreement), whether as an administrator, administrative agent, referral agent, managing agent or otherwise.
(c) Increased Costs payable under this Section 9 shall be payable on a Payment Date only to the extent invoiced to the Indenture Trustee prior to the related Determination Date.
Section 10. Series Reports.
(a) Series Calculation Agent Report . The Calculation Agent shall deliver a report of the following items together with each Calculation Agent Report pursuant to Section 3.1 of the Base Indenture to the extent received from the Servicer, with respect to the Series 2013-VF2 Notes:
(i) the unpaid principal balance of the Mortgage Loans subject to any Small Threshold Servicing Agreement, Low Threshold Servicing Agreement and Middle Threshold Servicing Agreement;
(ii) the Advance Ratio for each Designated Servicing Agreement, and whether the Advance Ratio for such Designated Servicing Agreement exceeds 100.0%;
(iii) the Market Value Ratio for each Designated Servicing Agreement, and whether the Market Value Ratio for such Designated Servicing Agreement exceeds 25.0%;
(iv) for each Small Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(v) for each Middle Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vi) for each Low Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
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(vii) a list of each Target Amortization Event for the Series 2013-VF2 Notes and presenting a yes or no answer beside each indicating whether each such Target Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(viii) the Mortgage Loan-Level Market Value Ratio for each Mortgage Loan related to a Loan-Level Receivable or a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, and if such Mortgage Loan-Level Market Value Ratio exceeds 50%;
(ix) whether any Receivable, or any portion of the Receivables, attributable to a Designated Servicing Agreement, has a Collateral Value of zero by virtue of the definition of “Collateral Value” or Section 5 of this Indenture Supplement;
(x) a calculation of the Net Proceeds Coverage Percentage in respect of each of the three preceding Monthly Advance Collection Periods (or each that has occurred since the date of this Indenture Supplement, if less than three), and the arithmetic average of the three;
(xi) the Monthly Reimbursement Rate for the upcoming Payment Date or Interim Payment Date;
(xii) whether any Target Amortization Amount that has become due and payable has been paid;
(xiii) the Stressed Nonrecoverable Advance Amount for the upcoming Payment Date or Interim Payment Date; and
(xiv) the Trigger Advance Rate for the Notes.
In addition to the information provided in the above Calculation Agent Report, to the extent the following information is specifically provided to the Calculation Agent by the Servicer, the Calculation Agent shall promptly, from time to time, provide such other financial or non-financial information, documents, records or reports with respect to the Receivables or the condition or operations, financial or otherwise, of the Servicer, including any information available to the Servicer, as the Administrator or any Noteholder of a Series 2013-VF2 Note may from time to time reasonably request in order to assist the Administrative Agent or such Noteholder in complying with the requirements of Article 122a(4) and (5) of the CRD as may be applicable to the Administrative Agent or such Noteholder of a Series 2013-VF2 Note.
(b) Series Payment Date Report . In conjunction with each Payment Date Report, the Indenture Trustee shall also report the Stressed Time Percentage.
(c) Limitation on Indenture Trustee Duties . The Indenture Trustee shall have no independent duty to verify: (1) Tangible Net Worth, (2) the occurrence of any of the events described in clauses (ii), (iii), (vi), (vii), (viii), (ix), (x), (xi), (xviii) or (xix) of the definition of “Target Amortization Event,” or (3) compliance with clause (vi) of the definition of “Facility Eligible Servicing Agreement.”
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Section 11. Conditions Precedent Satisfied; Additional Funding Condition For Initial Funding After the Effective Date.
The Issuer hereby represents and warrants to the Noteholders of the Series 2013-VF2 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) and Article XII thereof and Section 12 hereof, as applicable, have been satisfied.
In addition to satisfying the Funding Conditions set forth in the Indenture, prior to the initial Funding Date after the Effective Date, the Issuer shall have delivered to the Noteholders of the Series 2013-VF2 Notes the final and executed Advance Purchaser LLC Agreement and evidence to the satisfaction of the Noteholders of the Series 2013-VF2 Notes that the Initial Capital Contributions (as defined in the Advance Purchaser LLC Agreement) have been made to Advance Purchaser.
Section 12. Representations, Warranties and Covenants.
(a) The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
(b) Neither the Administrator nor or any of its Subsidiaries shall make any material change in the nature of its business as carried on at the date hereof.
Section 13. Amendments.
(a) Notwithstanding any provisions to the contrary in Article XII of the Base Indenture, and in addition to and otherwise subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have an Adverse Effect, may amend this Indenture Supplement for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
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(b) Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of 100% of the Noteholders of the Series 2013-VF2 Variable Funding Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
Section 14. Counterparts.
This Indenture Supplement may be executed in any number of counterparts, by manual or facsimile signature, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 15. Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 16. Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2013-VF2 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2013-VF2 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2013-VF2 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2013-VF2 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2013-VF2 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 16 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2013-VF2 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 16 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2013-VF2 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity. By its signature to this Agreement, each of the parties hereto (other than the Indenture Trustee), hereby waives and directs the Indenture Trustee to waive, the delivery of an Authorization Opinion in connection with the execution and delivery of this Series Supplement.
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Section 17. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association, be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or the other Transaction Documents.
Section 18. Termination Fees.
(a) Reserved .
(b) Second Threshold Termination Fee . If the Maximum VFN Principal Balance has not been reduced to or below the Second Threshold Amount by the Second Threshold Date, Advance Purchaser shall pay to Natixis a Second Threshold Termination Fee on any date after the Second Threshold Date on which the Maximum VFN Principal Balance is first reduced to or below the Second Threshold Amount.
Section 19. Authorized Representatives and Wire Instructions of the Administrative Agent.
Each individual designated as an authorized representative of the Administrative Agent (each, an “ Authorized Representative ”), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on behalf of each of the Administrative Agent, and the specimen signature for each such Authorized Representative of the Administrative Agent initially authorized hereunder is set forth on Schedule 2 hereto.
The payment instructions for the Administrative Agent are set forth on Schedule 3 hereto.
From time to time, the Administrative Agent may, by delivering to the other parties hereto a revised schedule, change the information previously given pursuant to this Section 19 , but each of the parties hereto shall be entitled to rely conclusively on the then current schedule until receipt of a superseding schedule.
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Section 20. Consent and Acknowledgment of Amendments.
Each of Natixis, in its capacity as committed purchaser (together with its successors and permitted assigns, the “ Committed Purchaser ”), and Bleachers Finance 1 Limited, in its capacity as conduit purchaser (together with its successors and permitted assigns, the “ Conduit Purchaser ”) has consented to this Indenture Supplement and each of the Committed Purchaser and the Conduit Purchaser confirms that (i) together they are the sole Noteholders of all the Outstanding Notes related to this Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Indenture Supplement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF , NRZ Servicer Advance Receivables Trust CS, as Issuer, Advance Purchaser LLC, as Administrator and as Servicer (on and after the respective MSR Transfer Dates), Nationstar Mortgage LLC, as Administrator (prior to the Effective Date), as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, Natixis, New York Branch, as Administrative Agent, Natixis, New York Branch, as Committed Purchaser, and Bleachers Finance 1 Limited, as Conduit Purchaser, have caused this Indenture Supplement relating to the Series 2013-VF2 Notes, to be duly executed by their respective officers thereunto duly authorized and their respective signatures duly attested all as of the day and year first above written.
|
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, as Issuer
By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee |
||||
| By: | /s/ Erwin M. Soriano | |||
| Name: | Erwin M. Soriano | |||
| Title: | Assistant Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| NATIONSTAR MORTGAGE LLC | ||||
| By: | /s/ Ellen Coleman | |||
| Name: | Ellen Coleman | |||
| Title: | Executive Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| WELLS FARGO BANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity | ||||
| By: | /s/ Mark DeFabio | |||
| Name: | Mark DeFabio | |||
| Title: | Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
|
NATIXIS, NEW YORK BRANCH, as Administrative Agent |
||||
|
By: |
/s/ Chad Johnson | |||
| Name: | Chad Johnson | |||
| Title: | Managing Director | |||
|
By: |
/s/ David S. Bondy | |||
| Name: | David S. Bondy | |||
| Title: | Managing Director | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| ADVANCE PURCHASER LLC | ||||
|
By: |
/s/ Cameron MacDougall | |||
| Name: | Cameron MacDougall | |||
| Title: | Secretary | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| CONSENTED TO BY: | ||||
|
NATIXIS, NEW YORK BRANCH, as Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF2 Notes |
||||
|
By: |
/s/ Chad Johnson | |||
| Name: | Chad Johnson | |||
| Title: | Managing Director | |||
|
By: |
/s/ David S. Bondy | |||
| Name: | David S. Bondy | |||
| Title: | Managing Director | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| CONSENTED TO BY: | ||||
|
NATIXIS, NEW YORK BRANCH, as Committed Purchaser of the Series 2013-VF2 Notes |
||||
| By: | /s/ Chad Johnson | |||
| Name: | Chad Johnson | |||
| Title: | Managing Director | |||
| By: | /s/ David S. Bondy | |||
| Name: | David S. Bondy | |||
| Title: | Managing Director | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
| CONSENTED TO BY: | ||||
|
BLEACHERS FINANCE 1 LIMITED, as Conduit Purchaser of the Series 2013-VF2 Notes |
||||
|
By: |
/s/ John Fridlington | |||
| Name: | John Fridlington | |||
| Title: | Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Amended and Restated Indenture Supplement Series 2013-VF2]
SCHEDULE 1
SERIES 2013-VF2 RESERVE ACCOUNT
| Name of Bank: | Wells Fargo Bank, N.A. | |
| ABA Number of Bank: | ||
| Name of Account: | Corporate Trust Clearing | |
| Account Number at Bank: | ||
| For Further Credit To: |
Schedule 1-1
SCHEDULE 2
AUTHORIZED REPRESENTATIVES OF
NATIXIS, NEW YORK BRANCH
|
Name: |
Title: |
Signature: |
||
|
Chad D. Johnson |
Managing Director | /s/ Chad D. Johnson | ||
|
Brock J. Wolf |
Executive Director |
/s/ Brock J. Wolf |
||
|
Henry J. Sandlass |
Managing Director |
/s/ Henry J. Sandlass |
||
|
David Bondy |
Managing Director |
/s/ David Bondy |
Schedule 2-1
SCHEDULE 3
[SEE ATTACHED]
Schedule 3-1
Exhibit 4.6
EXECUTION COPY
NRZ SERVICER ADVANCE RECEIVABLES TRUST CS,
as Issuer
and
WELLS FARGO BANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
NATIONSTAR MORTGAGE LLC,
as Subservicer and as Servicer (prior to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Administrator and as Servicer (on and after the respective MSR Transfer Dates)
MORGAN STANLEY BANK, N.A.,
as Administrative Agent
SERIES 2013-VF3
AMENDED AND RESTATED INDENTURE SUPPLEMENT
Dated as of December 17, 2013
to
AMENDED AND RESTATED INDENTURE
Dated as of December 17, 2013
ADVANCE RECEIVABLES BACKED NOTES,
SERIES 2013-VF3
T ABLE OF C ONTENTS
| P AGE | ||||||
| S ECTION 1. |
C REATION OF S ERIES 2013-VF3 N OTES . |
2 | ||||
| S ECTION 2. |
D EFINED T ERMS . |
2 | ||||
| S ECTION 3. |
F ORMS OF S ERIES 2013-VF3 N OTES . |
16 | ||||
| S ECTION 4. |
S ERIES R ESERVE A CCOUNT . |
16 | ||||
| S ECTION 5. |
C OLLATERAL V ALUE E XCLUSIONS . |
17 | ||||
| S ECTION 6. |
P AYMENTS ; N OTE B ALANCE I NCREASES ; E ARLY M ATURITY ; O THER A DVANCE R ATE R EDUCTION E VENTS . |
19 | ||||
| S ECTION 7. |
E XTENSION OF E XPECTED R EPAYMENT D ATE . |
20 | ||||
| S ECTION 8. |
D ETERMINATION OF N OTE I NTEREST R ATE AND LIBOR. |
21 | ||||
| S ECTION 9. |
I NCREASED C OSTS . |
22 | ||||
| S ECTION 10. |
S ERIES R EPORTS . |
24 | ||||
| S ECTION 11. |
C ONDITIONS P RECEDENT S ATISFIED . |
26 | ||||
| S ECTION 12. |
R EPRESENTATIONS , W ARRANTIES AND C OVENANTS . |
26 | ||||
| S ECTION 13. |
A MENDMENTS . |
26 | ||||
| S ECTION 14. |
C OUNTERPARTS . |
27 | ||||
| S ECTION 15. |
E NTIRE A GREEMENT . |
27 | ||||
| S ECTION 16. |
L IMITED R ECOURSE . |
27 | ||||
| S ECTION 17. |
O WNER T RUSTEE L IMITATION OF L IABILITY . |
27 | ||||
| S ECTION 18. |
C ONSENT AND A CKNOWLEDGEMENT OF A MENDMENTS . |
28 | ||||
| S ECTION 19. |
A UTHORIZED R EPRESENTATIVES AND W IRE I NSTRUCTIONS OF THE A DMINISTRATIVE A GENT . |
28 | ||||
-i-
THIS AMENDED AND RESTATED SERIES 2013-VF3 INDENTURE SUPPLEMENT (this “ Indenture Supplement ”), dated as of December 17, 2013, is made by and among NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, a statutory trust organized under the laws of the State of Delaware (the “ Issuer ”), WELLS FARGO BANK, N.A., a national banking association, as trustee (the “ Indenture Trustee ”), as calculation agent (the “ Calculation Agent ”), as paying agent (the “ Paying Agent ”) and as securities intermediary (the “ Securities Intermediary ”), ADVANCE PURCHASER LLC, a limited liability company under the laws of the State of Delaware (“ Advance Purchaser ”), as Administrator on behalf of the Issuer, as owner of the rights associated with the servicing rights under the Designated Servicing Agreements, and, from and after the respective MSR Transfer Dates for each Designated Servicing Agreement, as servicer under such Designated Servicing Agreement, NATIONSTAR MORTGAGE LLC, a limited liability company organized in the State of Delaware (“ Nationstar ”), as a Subservicer, and as servicer for each Designated Servicing Agreement prior to the respective MSR Transfer Dates, and MORGAN STANLEY BANK, N.A., a national banking association (“ Morgan Stanley ”), as Administrative Agent (as defined below); and consented to by 100% of the Noteholders of the Series 2013-VF3 Variable Funding Notes. This Indenture Supplement relates to and is executed pursuant to that certain Amended and Restated Indenture (as amended, supplemented, restated or otherwise modified from time to time, the “ Base Indenture ”) supplemented hereby, dated as of December 17, 2013, among the Issuer, Nationstar, Advance Purchaser, the Administrator, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, Credit Suisse AG, New York Branch, as Administrative Agent, and the other “Administrative Agents” from time to time parties thereto; and consented to by 100% of the Outstanding Noteholders all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement being referred to as the “ Indenture ”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture.
PRELIMINARY STATEMENT
The Issuer entered into an Indenture Supplement, dated as of October 29, 2013 (as amended, restated, supplemented or otherwise modified from time to time prior to the Effective Date, the “ Original Supplement ”), among the Issuer, the Indenture Trustee, Nationstar, as administrator and as servicer, and Morgan Stanley, as Administrative Agent. Under the Original Supplement, the Issuer has duly authorized the issuance of a Series of Notes, the Series 2013-VF3 Notes (the “ Series 2013-VF3 Notes ”).
Pursuant to Section 12.2 of the Base Indenture and Section 13(b) of the Original Supplement, the Issuer, Indenture Trustee, Nationstar and the Administrative Agent, with the prior consent of 100% of the Noteholders of the Series 2013-VF3 Variable Funding Notes, with prior notice to each Note Rating Agency, the consent of any applicable Derivative Counterparty and the consent of the Series Required Noteholders of each Series materially and adversely affected by such amendment, at any time and from time to time, upon delivery of an Issuer Tax Opinion, may amend the Original Supplement to amend any provision of the Original Supplement. Pursuant to Section 12.3 of the Base Indenture, the Issuer shall also deliver to the
Indenture Trustee an Opinion of Counsel stating that the execution of such amendment is authorized and permitted by the Indenture and that all conditions precedent thereto have been satisfied (the “ Authorization Opinion ”).
As of the date hereof, there are no Note Rating Agencies or Derivative Counterparties.
The Noteholders by their signature hereto waive, and instruct the Indenture Trustee to waive the Authorization Opinion and the certificate required by Section 1.3(1) of the Base Indenture and the conditions precedent opinion required by Section 1.3(2) of the Base Indenture, including the corresponding form of documents specified in Section 1.4 of the Base Indenture.
The parties are entering this Indenture Supplement to document the terms of the issuance of the Series 2013-VF3 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time.
Section 1. Creation of Series 2013-VF3 Notes.
The Series 2013-VF3 Notes are known as “NRZ Servicer Advance Receivables Trust CS Advance Receivables Backed Notes, Series 2013-VF3 Notes” and were issued pursuant to the Original Supplement. The Series 2013-VF3 Notes shall not be subordinated to any other Series of Notes. The Series 2013-VF3 Notes were issued in a single Class of Variable Funding Notes (the “ Series 2013-VF3 Variable Funding Notes ”), with the Maximum VFN Principal Balance, Stated Maturity Date, Revolving Period, Note Interest Rate, Expected Repayment Date and other terms as specified in this Indenture Supplement. The Series 2013-VF3 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2013-VF3 Notes and all other Series of Notes issued under the Indenture as described therein. In the event that any term or provision contained herein shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2. Defined Terms.
With respect to the Series 2013-VF3 Notes and in addition to or in replacement for the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“ Acquisition of a Mortgage Originator ” shall mean an acquisition, merger or other business combination of Nationstar resulting in either Nationstar, for so long as Nationstar is the Servicer or the Subservicer, or a Subsidiary of Nationstar, for so long as Nationstar is the Servicer or the Subservicer, (i) becoming affiliated with an originator or servicer of Mortgage Loans or (ii) acquiring a substantial portion of the assets of an originator or servicer of Mortgage Loans, in any case, that, with the passage of time or otherwise (including the incurrence of indebtedness in connection with such acquisition, merger or other business combination), in the reasonable determination of the Administrator (as supported by financial projections and other material information that the Administrative Agent may request in connection with such acquisition, merger or other business combination), would cause any of the following: (x) the Tangible Net Worth of Nationstar to be at any time less than or equal to $400,000,000; or (y) the ratio of the Servicer’s Net Total Indebtedness to Tangible Net Worth at any time to exceed 9:1.
2
“ Administrative Agent ” means, for so long as the Series 2013-VF3 Notes have not been paid in full: (i) with respect to the provisions of this Indenture Supplement, Morgan Stanley, or an Affiliate or successor thereto; and (ii) with respect to the provisions of the Base Indenture, and notwithstanding the terms and provisions of any other Indenture Supplement, Credit Suisse AG, New York Branch, Natixis, Morgan Stanley and such other parties as set forth in any other Indenture Supplement, or a respective Affiliate or any respective successor thereto. For the avoidance of doubt, reference to “it” or “its” with respect to the Administrative Agent in the Base Indenture shall mean “them” and “their,” and reference to the singular therein in relation to the Administrative Agent shall be construed as if plural.
“ Advance Rates ” means, on any date of determination with respect to each Receivable related to the Series 2013-VF3 Notes, the percentage amount based on the Advance Type of such Receivable, as set forth in the table below, subject to amendment by mutual agreement of the Administrative Agent and the Administrator; provided , that
(i) in the event that the Servicer’s (prior to the MSR Transfer Date) or the related Subservicer’s (on and after the MSR Transfer Date) sub-prime servicer rating is reduced below “Average” by S&P (a “ Ratings Reduction ”) the Advance Rates applicable to the Receivables related to the Notes shall be equal to the Advance Rates set forth below prior to such ratings reduction minus 5.00% for so long as such subprime servicer rating is below “Average” by S&P; and
(ii) the Advance Rate for any Receivable related to the Notes shall be zero if such Receivable is not a Facility Eligible Receivable;
provided, further, that in no event shall the Facility Advance Rate be greater than 90% at any time and the Advance Rates applicable to Receivables other than Non-FIFO Receivables shall be reduced pro rata to the extent necessary to ensure that the Facility Advance Rate does not exceed 90%.
3
| (1) | Advance Rate applicable for 90 days, beginning on the related Designation Date. |
| (2) | Advance Rate applicable beginning on the 91 st day following the related Designation Date. |
“ Advance Ratio ” means, as of any date of determination with respect to any Designated Servicing Agreement, the ratio (expressed as a percentage), calculated as of the last day of the calendar month immediately preceding the calendar month in which such date occurs, of (i) the Stressed Nonrecoverable Advance Amount of all Mortgage Loans (other than any Mortgage Loans that generate Receivables that are Loan-Level Receivables, any Mortgage Loans that generate Receivables that are Second-Lien Receivables or any Mortgage Loans that are attributable to Small Threshold Servicing Agreements) serviced pursuant to the related Designated Servicing Agreement on such date over (ii) the aggregate monthly scheduled principal and interest payments for the calendar month immediately preceding the calendar month in which such date occurs with respect to all non-delinquent Mortgage Loans serviced pursuant to the related Designated Servicing Agreement.
“ Base Indenture ” has the meaning assigned to such term in the Preamble.
“ Capital Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Indenture Supplement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.
“ Cash Equivalents ” means (a) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed or insured by the United States Government or any agency thereof, (b) certificates of deposit and eurodollar time deposits with maturities of ninety (90) days or less from the date of acquisition and overnight bank deposits of any commercial bank having capital and surplus in excess of $500,000,000 unless otherwise approved by the Administrative Agent in writing in its sole discretion, (c) repurchase obligations of any commercial bank satisfying the requirements of clause (b) of this definition, having a term of not more than seven (7) days with respect to securities issued or fully guaranteed or insured by the United States Government, (d) commercial paper of a domestic issuer rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in either case maturing within ninety (90) days after the day of acquisition, (e) securities with maturities of ninety (90) days or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political subdivision or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s, (f) securities with maturities of ninety (90) days or less from the date of acquisition backed by standby letters of credit issued by any commercial bank satisfying the requirements of clause (b) of this definition or, (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition.
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“ Change of Control ” occurs as to Advance Purchaser, if any of the following occur: (x) New Residential Investment Corp. (or any Affiliate thereof) or funds under management of Fortress Investment Group Inc. or an Affiliate thereof shall cease to beneficially own and control, directly or indirectly through one or more other intermediate entities, more than 20%, on a fully diluted basis, of the economic and voting interest in the equity interests of Advance Purchaser; (y) New Residential Investment Corp., Fortress Investment Group Inc. or an Affiliate thereof shall cease to be the managing member of Advance Purchaser; or (z) Fortress Investment Group Inc. or an Affiliate thereof is no longer the manager of New Residential Investment Corp.
“ Coefficient ” means, for the Series 2013-VF3 Notes, 0.08%.
“ Constant ” means, for the Series 2013-VF3 Notes, 1.00%.
“ Corporate Trust Office ” means the principal corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Closing Date are located at (i) for Note transfer purposes, Wells Fargo Center, Sixth and Marquette Avenue, Minneapolis, Minnesota 55479-0113, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS, and (ii) for all other purposes, 9062 Old Annapolis Road, Columbia, Maryland 21045-1951, Attention: Corporate Trust Services, NRZ Servicer Advance Receivables Trust CS.
“ Default Rate ” means, with respect to any Interest Accrual Period, for the Series 2013-VF3 Notes, the then applicable Note Interest Rate (without regard to the proviso in the definition of “Note Interest Rate” in the Base Indenture) plus 3.00% per annum.
“ Effective Date ” means December 17, 2013.
“ Expected Repayment Date ” means, for the Series 2013-VF3 Notes, September 26, 2014, as such date may be extended from time to time pursuant to Section 7 hereof.
“ Expense Rate ” means, as of any date of determination, with respect to the Series 2013-VF3 Notes, the percentage equivalent of a fraction, (i) the numerator of which equals the sum of (1) the product of the Series Allocation Percentage for such Series multiplied by the aggregate amount of Fees due and payable by the Issuer on the next succeeding Payment Date plus (2) the product of the Series Allocation Percentage for such Series multiplied by any expenses payable or reimbursable by the Issuer on the next succeeding Payment Date, up to the applicable Expense Limit, if any, prior to any payments to the Noteholders of the Series 2013-VF3 Notes, pursuant to the terms and provisions of this Indenture Supplement, the Base Indenture or any other Transaction Document that have been invoiced to the Indenture Trustee and the Administrator, plus (3) the aggregate amount of related Series Fees payable by the Issuer on the next succeeding Payment Date and (ii) the denominator of which equals the sum of the outstanding Note Balances of all Series 2013-VF3 Notes at the close of business on such date.
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“ Facility Advance Rate ” means the aggregate Collateral Value of all Facility Eligible Receivables not including Non-FIFO Receivables, divided by the aggregate Receivable Balances of all Facility Eligible Receivables not including Non-FIFO Receivables.
“ Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the federal funds rates as quoted by the Administrative Agent and confirmed in Federal Reserve Board Statistical Release H. 15 (519) or any successor or substitute publication selected by the Administrative Agent (or, if such day is not a Business Day, for the next preceding Business Day), or if, for any reason, such rate is not available on any day, the rate determined, in the sole opinion of the Administrative Agent, to be the rate at which federal funds are being offered for sale in the national federal funds market at 9:00 a.m. (New York City time).
“ Fee Letter ” means that certain Fee Letter Agreement, dated the Effective Date, among the Administrative Agent, as the sole lead arranger with respect to the Series 2013-VF3 Notes, the Administrator, the Servicer and the Issuer.
“ Governmental Authority ” means the United States of America, the European Union and France, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and having jurisdiction over the applicable Person.
“ Higher Margin Portion ” means, on any day, a dollar amount equal to the product of (i) the VFN Principal Balance and (ii) the percentage obtained by dividing the aggregate Higher Margin Receivable Balances by the aggregate Receivable Balances of all Facility Eligible Receivables.
“ Higher Margin Receivable Balance ” means the sum of (1) the aggregate Receivable Balance of all Eligible Non-FIFO Receivables plus (2) the amount by which the aggregate Receivable Balance of all Loan-Level Receivables exceeds 10% of the aggregate Receivable Balance of all Facility Eligible Receivables.
“ Increased Costs Limit ” means for each Noteholder of a Series 2013-VF3 Variable Funding Note, such Noteholder’s pro rata percentage (based on the Note Balance of such Noteholder’s Series 2013-VF3 Variable Funding Notes) of 0.10% of the average aggregate Note Balance for the Series 2013-VF3 Variable Funding Notes Outstanding for any twelve-month period.
“ Indebtedness ” means, for any Person: (a) obligations created, issued or incurred by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of Property to another Person subject to an understanding or agreement, contingent or otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the deferred purchase or acquisition price of Property or services, other than trade accounts payable (other than for borrowed money) arising, and accrued expenses incurred, in the ordinary course of business so long as such trade accounts payable are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered; (c) indebtedness of others secured by an Adverse Claim on the Property of such person, whether or not the
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respective indebtedness so secured has been assumed by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of credit or similar instruments issued or accepted by banks and other financial institutions for account of such person; (e) obligations of such Person under Capital Lease Obligations; (f) obligations of such Person under repurchase agreements or like arrangements; (g) indebtedness of others guaranteed by such Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying of fixed assets by such Person; (i) indebtedness of general partnerships of which such Person is a general partner; and (j) any other indebtedness of such Person by a note, bond, debenture or similar instrument.
“ Initial Payment Date ” means November 20, 2013.
“ Interest Accrual Period ” means, for the Series 2013-VF3 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date with respect to the Series 2013-VF3 Notes, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2013-VF3 Notes on any Payment Date shall be determined based on the actual number of days in the Interest Accrual Period.
“ Interest Day Count Convention ” means with respect the Series 2013-VF3 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“ Interim Payment Date ” means, with respect to the Series 2013-VF3 Notes, up to six (6) dates each calendar month provided that the Issuer provides the Noteholders of the Series 2013-VF3 Notes and the Indenture Trustee at least two (2) Business Days’ prior notice, or if any such date is not a Business Day, the next succeeding Business Day to the extent any such day occurs during the Revolving Period, and any other date otherwise agreed to between the Issuer and the Noteholders of the Series 2013-VF3 Notes.
“ Issuance Date ” means October 29, 2013.
“ LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ LIBOR Determination Date ” means for each Interest Accrual Period, the second London Banking Day prior to the commencement of such Interest Accrual Period.
“ Limited Funding Date ” means any Business Day that is not a Payment Date or Interim Payment Date, at a time when no Facility Early Amortization Event shall have occurred and shall be continuing, which date is designated by the Administrator on behalf of the Issuer to the Indenture Trustee and the Administrative Agent in writing no later than 9:00 a.m. Eastern Time two (2) Business Days prior to such date; provided, that the Administrator shall have delivered a Funding Certification in accordance with Section 4.3(a) of the Indenture for such date, and provided, further that no fundings may be made under a Variable Funding Note on such date and no payments on any Notes shall be made on such date; provided, further, that no more than five (5) Limited Funding Dates may be designated by the Administrator on behalf of the Issuer in any calendar month.
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“ Liquidity ” means, as to any entity, as of the last day of any calendar month, the sum of (a) such entity’s Unrestricted Cash and (b) the aggregate amount of unused committed capacity available to such entity (taking into account applicable haircuts) under mortgage loan warehouse and servicer advance facilities for which such entity has unencumbered collateral eligible to be pledged thereunder.
“ London Banking Day ” means any day on which commercial banks and foreign exchange markets settle payment in both London and New York City.
“ Low Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $1,000,000 but less than $10,000,000, or (ii) that relates to at least 15 but fewer than 50 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Margin ” means, for the Series 2013-VF3 Notes, 2.00% per annum.
“ Market Value ” means, with respect to the Mortgaged Property securing a Mortgage Loan or any REO Property, the market value of such property (determined by the Servicer in its reasonable good faith discretion, which shall be by reference to the most recent value received by the related Subservicer (or by Nationstar as Servicer prior to the related MSR Transfer Date) with respect to such Mortgaged Property or REO Property in accordance with its servicing policies, if available) or the appraised value of the Mortgaged Property obtained in connection with the origination of the related Mortgage Loan, if no updated valuation has been required under the Servicer’s or Subservicer’s, as the case may be, servicing policies; provided , that:
(i) the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is related to a Designated Servicing Agreement for which ninety (90) days have passed since the related Designation Date without a valuation of the related Mortgaged Property that is less than six (6) months old;
(ii) at any time after the 90 th day following the related Designation Date, the Market Value for any Mortgaged Property or REO Property shall be equal to $0 for any Mortgage Loan that is 60 or more days delinquent and the related valuation is more than six (6) months old; and
(iii) the Market Value for any Mortgaged Property or REO Property shall be deemed equal to 66 2/3 % of the outstanding principal balance of the related Mortgage Loan if (x) fifteen (15) Business Days or less have passed since the Designation Date for the Designated Servicing Agreement for such Mortgage Loan and (y) the servicer does not otherwise determined the market value of such property in accordance with this definition.
Any valuation for purposes of this definition shall be established by the lesser of either an appraisal, broker’s price opinion, the Subservicer’s (or Nationstar as Servicer prior to the MSR Transfer Date) automated valuation model or any other internal valuation methodology (including but not limited to HPI indexing utilized by the Subservicer (or Nationstar as Servicer prior to the MSR Transfer Date), which is consistent with the Servicer’s or Subservicer’s, as the case may be, servicing policies with respect to such Mortgaged Property or REO Property.
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“ Market Value Ratio ” means, as of any date of determination with respect to a Designated Servicing Agreement, the ratio (expressed as a percentage) of (i) the lesser of (A) the Funded Advance Receivable Balance for such Designated Servicing Agreement on such date and (B) the aggregate of the Receivable Balances of all Facility Eligible Receivables under such Designated Servicing Agreement on such date over (ii) the aggregate Market Value of the Mortgaged Properties and REO Properties for the Mortgage Loans serviced under such Designated Servicing Agreement on such date.
“ Maximum VFN Principal Balance ” means, for the Series 2013-VF3 Notes, $500,000,000 or, on any date, a lesser amount calculated pursuant to a written agreement between the Servicer, the Administrator and the Administrative Agent.
“ Middle Threshold Servicing Agreement ” means a Designated Servicing Agreement that is not a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement and (i) for which the underlying Mortgage Loans have an unpaid principal balance greater than or equal to $10,000,000 but less than $25,000,000, or (ii) that relates to at least 50 but fewer than 125 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Monthly Reimbursement Rate ” means, as of any date of determination, the arithmetic average of the fractions (expressed as percentages), determined for each of the three (3) most recently concluded calendar months (or the number of months since the Closing Date, if less than three (3)), obtained by dividing (i) the aggregate Advance Reimbursement Amounts collected by the Servicer and deposited into the Trust Accounts during such calendar month by (ii) the Funded Advance Receivable Balance as of the close of business on the last day of such calendar month.
“ Mortgage Loan-Level Market Value Ratio ” means, as of any date of determination with respect to a Mortgage Loan or REO Property that is secured by a first lien on the related Mortgaged Property or REO Property, the ratio (expressed as a percentage) of (x) (i) with respect to Section 5(vii)(a) hereof, the aggregate Receivable Balance of all Loan-Level Receivables outstanding with respect to such Mortgage Loan or REO Property on such date or (ii) with respect to Section 5(vii)(b) hereof, the aggregate Receivable Balance of all Receivables outstanding with respect to such Mortgage Loan or REO Property on such date over (y) the Market Value of such Mortgaged Property or REO Property on such date.
“ Natixis ” means, Natixis, New York Branch.
“ Net Proceeds Coverage Percentage ” means, for any Payment Date, the percentage equivalent of a fraction, (i) the numerator of which equals the amount of Collections on Receivables deposited into the Collection and Funding Account during the related Monthly Advance Collection Period, and (ii) the denominator of which equals the aggregate average outstanding Note Balances of all Outstanding Notes during such Monthly Advance Collection Period.
“ Net Total Indebtedness ” means, with respect to any Person, for any period, (i) the aggregate Indebtedness of such Person and its Subsidiaries during such period minus (ii) the amount of any non-recourse debt (including any securitization debt).
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“ Net Worth ” means, with respect to any Person, such Person’s assets minus such Person’s liabilities, each determined in accordance with GAAP.
“ Note Interest Rate ” means, for the Series 2013-VF3 Notes, in any Interest Accrual Period, (i) for the Higher Margin Portion of the VFN Principal Balance on such day, the applicable One-Month LIBOR for such Interest Accrual Period plus 3.25% per annum, and (ii) for the VFN Principal Balance other than the Higher Margin Portion on such day, the applicable One-Month LIBOR plus the applicable Margin; provided that, from and after the Expected Repayment Date, if the Series 2013-VF3 Notes have not been refinanced, the “Note Interest Rate” shall be the interest rate applicable to such Notes, plus 0.50%.
For the avoidance of doubt, the “Note Interest Rate” for each of the Series 2013-VF3 Notes is subject to the definition of “Note Interest Rate” in the Base Indenture.
“ One-Month LIBOR ” has the meaning assigned such term in Section 8 of this Indenture Supplement.
“ Optional Extension Date ” means the date that is six (6) months after the Closing Date (or, if such day is not a Business Day, the next succeeding Business Day).
“ Prime Rate ” means the rate announced by the Administrative Agent from time to time as its prime rate in the United States, such rate to change as and when such designated rate changes. The Prime Rate is not intended to be the lowest rate of interest charged by the Administrative Agent in connection with extensions of credit to debtors.
“ Property ” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.
“ Purchaser ” means Morgan Stanley and its successors and permitted assigns under the VF3 Note Purchase Agreement.
“ Ratings Reduction ” has the meaning given to such term in the definition of “Advance Rates.”
“ Redemption Percentage ” means, for the Series 2013-VF3 Notes, 10%.
“ Reference Banks ” has the meaning assigned to such term in Section 8(b) of this Indenture Supplement.
“ Regulatory Change ” means (a) the adoption of any law, rule or regulation after the date hereof, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date hereof or (c) compliance by any Noteholder (or, for purposes of Section 9(a)(3) , by any lending office of such Noteholder or by such Noteholder’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date hereof.
“ Reserve Interest Rate ” has the meaning assigned to such term in Section 8 of this Indenture Supplement.
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“ Second-Lien Receivable ” means a Receivable that arises under a Designated Servicing Agreement for which the related Advance or Deferred Servicing Fee relates to a Mortgage Loan or REO Property secured by a second lien.
“ Series 2013-VF3 Note Balance ” means the aggregate Note Balance of the Series 2013-VF3 Notes.
“ Series Reserve Required Amount ” means with respect to any Payment Date or Interim Payment Date, as the case may be, for the Series 2013-VF3 Notes, an amount equal to on any Payment Date or Interim Payment Date four months’ interest calculated at the applicable Note Interest Rate on the Note Balance of the Series 2013-VF3 Notes as of such Payment Date or Interim Payment Date, as the case may be.
“ Small Threshold Servicing Agreement ” means a Designated Servicing Agreement (i) for which the underlying Mortgage Loans have an unpaid principal balance of less than $1,000,000, or (ii) that relates to fewer than 15 Mortgage Loans, as of the end of the most recently concluded calendar month.
“ Stated Maturity Date ” means, for the Series 2013-VF3 Notes, the Expected Repayment Date.
“ Stressed Interest Rate ” means, for the Series 2013-VF3 Notes, as of any date, the sum of (i) the sum of (x) the per annum index on the basis of which the Series 2013-VF3 Notes’ Note Interest Rate is determined for the current Interest Accrual Period, and (y) such Notes’ Constant and (z) the product of (I) such Notes’ Coefficient and (II) Stressed Time, plus (ii) the per annum Margin of all Outstanding Series 2013-VF3 Notes that is added to the index to determine the Note Interest Rate for such Notes.
“ Stressed Nonrecoverable Advance Amount ” means, as of any date of determination, the sum of any of the following, each without duplication:
(i) for all Mortgage Loans that are current as of such date, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(ii) for all Mortgage Loans that are delinquent as of such date, but not related to property in foreclosure or REO Property, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
(iii) for all Mortgage Loans that are related to properties in foreclosure, the greater of (A) zero and (B) the excess of (1) Total Advances related to such Mortgage Loans on such date over (2) the product of 50% and the sum of all of the Market Values for the related Mortgaged Property; and
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(iv) for all REO Properties, the greater of (A) zero and (B) the excess of (1) Total Advances related to such REO Properties on such date over (2) the product of 50% and the sum of all of the Market Values for the related REO Properties.
For the avoidance of doubt, this definition of “Stressed Nonrecoverable Advance Amount” shall not be applicable to Mortgage Loans attributable to Small Threshold Servicing Agreements, any Mortgage Loans that generate Receivables that are Loan-Level Receivables or any Mortgage Loans that generate Second-Lien Receivables.
“ Stressed Time ” means, as of any date of determination for the Series 2013-VF3 Notes, the percentage equivalent of a fraction, the numerator of which is one (1), and the denominator of which equals the Stressed Time Percentage for the Series 2013-VF3 Notes times the Monthly Reimbursement Rate on such date.
“ Stressed Time Percentage ” means 82.1%.
“ Tangible Net Worth ” means, with respect to any Person at any date of determination, (i) the Net Worth of such Person and its consolidated Subsidiaries, determined in accordance with GAAP, minus (ii) all intangibles determined in accordance with GAAP (including, without limitation, goodwill, capitalized financing costs and capitalized administration costs but excluding originated and purchased mortgage servicing rights and retained residual securities) and any and all advances to, investments in and receivables held from Affiliates; provided , however , that the non-cash effect (gain or loss) or any mark-to-market adjustments made directly to stockholders’ equity for fluctuation of the value of financial instruments as mandated under the Statement of Financial Accounting Standards No. 133 (or any successor statement) shall be excluded from the calculation of Tangible Net Worth.
“ Target Amortization Amounts ” means, for the Series 2013-VF3 Notes, (i) if a Target Amortization Event occurs that is described in the definition thereof in clauses (B)(i), (B)(ii), (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) or (B)(xv) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(i), (B)(ii) or (B)(xi)(b) (if notwithstanding the fact that the obligation to pay has not yet matured, the payment of such judgment would not, in the discretion of the Administrative Agent, likely cause a Target Amortization Event described in clause (vi) of the definition thereof) and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-twelfth (1/12) of the Notes Balance of such Notes at the close of business on the last day of its Revolving Period), one-twelfth (1/12) of the Note Balance of the Series 2013-VF3 Notes at the close of business on the last day of its Revolving Period; (ii) if a Target Amortization Event described in clause (B)(xii) or (B)(xv) (if such Target Amortization Event is as a result of a Target Amortization Event that is the same as the Target Amortization Event described in clause (B)(xii) of the definition thereof and if the definition of “Target Amortization Amounts” under such Series of Variable Funding Notes provides that such Target Amortization Amount for such Target Amortization Event is one-third (1/3) of the Note Balance of such Notes at the close of business on the last day of its Revolving Period) in the
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definition thereof occurs, one-third (1/3) of the Note Balance of the Series 2013-VF3 Notes at the close of business on the last day of its Revolving Period and (iii) if any other Target Amortization Event described in the definition thereof occurs (including B(xi)(b) or B(xv), except as covered above), 100% of the Note Balance of the Series 2013-VF3 Notes at the close of business on the last day of its Revolving Period.
“ Target Amortization Event ” for the Series 2013-VF3 Notes, means the earlier of (A) the related Expected Repayment Date or (B) the occurrence of any of the following conditions or events, which is not waived by 100% of the Noteholders of the Series 2013-VF3 Notes:
(i) on any Payment Date, the arithmetic average of the Net Proceeds Coverage Percentage determined for such Payment Date and the two preceding Payment Dates (or no preceding Payment Dates in the case of the determination on the first Payment Date, or the one preceding Payment Date, in the case of the determination on the second Payment Date) is less than five (5) times the percentage equivalent of a fraction (A) the numerator of which equals the sum of the accrued Interest Payment Amounts for each Class of Outstanding Notes on such date and (B) the denominator of which equals the aggregate average Note Balances of each Class of all Outstanding Notes during the related Monthly Advance Collection Period;
(ii) the occurrence of one or more Servicer Termination Events with respect to Designated Servicing Agreements representing 15% or more (by Mortgage Loan balance as of the date of termination) of all the Designated Servicing Agreements then included in the Trust Estate, but not including any Servicer Termination Events that are solely due to the breach of one or more Collateral Performance Tests or a Servicer Ratings Downgrade or the transfer of subservicing of any Designated Servicing Agreement without the prior written consent of the Administrative Agent;
(iii) the Monthly Reimbursement Rate is less than 3.00%;
(iv) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the Tangible Net Worth of Nationstar is less than or equal to $350,000,000 as of the last day of any quarter or (B) at any other time, the Tangible Net Worth of Nationstar is less than or equal to $400,000,000 as of the last day of any quarter and the continuation of such condition for thirty (30) days after the end of such quarter;
(v) for so long as Nationstar is the Servicer or the Subservicer, (A) from the consummation of an Acquisition of a Mortgage Originator until and including the 270th day following the consummation thereof, the ratio of Nationstar’s Net Total Indebtedness to Tangible Net Worth exceeds 12:1 as of the last day of any quarter, or (B) at any time other than the time described in clause (A), Nationstar’s Net Total Indebtedness to Tangible Net Worth at any time exceeds 9:1 as of the last day of any quarter and the continuation of such condition for thirty (30) days after the end of such quarter;
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(vi) for so long as Nationstar is the Servicer or the Subservicer, as of the close of business on the last Business Day of December 2013 and of each calendar month thereafter, Nationstar’s Liquidity is less than $80,000,000;
(vii) the occurrence of a Change of Control;
(viii) any failure by the Servicer to deliver any Determination Date Servicer Report pursuant to Section 3.2 of the Base Indenture which continues unremedied for a period of five (5) Business Days after a Responsible Officer of the Servicer shall have obtained actual knowledge of such failure, or shall have received written or electronic notice from the Indenture Trustee or any Noteholder of such failure;
(ix) the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator shall breach or default in the due observance or performance of any of its covenants or agreements in this Indenture Supplement, the Base Indenture, or any other Transaction Document in any material respect (subject to any cure period provided therein), other than an obligation of the Receivables Seller to make an Indemnity Payment following a breach of a representation or warranty with respect to such Receivable pursuant to Section 4(b) of the Receivables Sale Agreement or any payment default described in Section 8.1 of the Base Indenture, and any such default shall continue for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Indenture Trustee or any Noteholder to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator; provided , that a breach of Section 6(b) of the Receivables Sale Agreement, or Section 7(b) of the Receivables Pooling Agreement (prohibiting the Receivables Seller, the Servicer, the Subservicer or the Depositor, as applicable, from causing or permitting Insolvency Proceedings with respect to the Depositor or the Issuer, as applicable) shall constitute an automatic Target Amortization Event;
(x) if any representation or warranty of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator made in this Indenture Supplement, the Base Indenture, or any other Transaction Document (other than under Section 4(b) of the Receivables Sale Agreement) shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of thirty (30) days after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, or (b) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to a Responsible Officer of the Issuer, the Receivables Seller, the Servicer, the Subservicer, the Depositor or the Administrator, as applicable, and would have a material adverse effect on the rights or interests of the Noteholders;
(xi) (a) a final judgment or judgments for the payment of money in excess of $50,000 in the aggregate shall be rendered against the Depositor or the Issuer by one or
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more courts, administrative tribunals or other bodies having jurisdiction over them, or (b) a final judgment or judgments for the payment of money in excess of $35,000,000 in the aggregate shall be rendered against Advance Purchaser by one or more courts, administrative tribunals or other bodies having jurisdiction over them that, in the sole determination of the Administrative Agent, shall have a material adverse effect on Advance Purchaser’s business or operations, and the same shall not be discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and Advance Purchaser, shall not, within said period of sixty (60) days, or such longer period during which execution of the same shall have been stayed or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal;
(xii) any person shall be appointed as Independent Manager of the Depositor without prior notice having been given to and without the written acknowledgement by the Administrative Agent that such person conforms, to the satisfaction of the Administrative Agent in its reasonable discretion, to the criteria set forth herein in the definition of “Independent Manager”;
(xiii) Advance Purchaser shall fail to make any payment (whether of principal or interest or otherwise) in respect of any other indebtedness with an amount in excess of $15,000,000, when and as the same shall become due and payable (including the passage of any applicable grace period);
(xiv) any event or condition occurs and, while continuing, results in any indebtedness of Advance Purchaser with an amount in excess of $15,000,000 becoming due prior to its scheduled maturity or that enables or permits (including the passage of any applicable grace period) the holder or holders of any such indebtedness or any trustee or agent on its or their behalf to cause any such indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
(xv) any Series or Class of Variable Funding Notes other than the Series 2013-VF3 Notes enters into a Target Amortization Period;
(xvi) Advance Purchaser shall have Tangible Net Worth less than the greater of (a) 3% of the aggregate Receivables Balances of all servicer advance receivables and deferred servicing fee receivables held by Advance Purchaser or a Subsidiary of Advance Purchaser as of the last day of any fiscal quarter of Advance Purchaser or (b) $75,000,000; or
(xvii) Advance Purchaser shall fail to have Liquidity of at least $25,000,000 as of the last day of any calendar month.
“ Transaction Documents ” means, in addition to the documents set forth in the definition thereof in the Base Indenture, this Indenture Supplement and the VF3 Note Purchase Agreement, each as amended, supplemented, restated or otherwise modified from time to time.
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“ Trigger Advance Rate ” means, for the Series 2013-VF3 Notes, as of any date, the rate equal to the greater of (x) zero and (y) (1) 100% minus (2) the product of (a) one twelfth of the Stressed Interest Rate for the Series 2013-VF3 Notes, plus the related Expense Rate as of such date, multiplied by (b) the Stressed Time for the Series 2013-VF3 Notes as of such date.
“ Undrawn Fee Rate ” means, with respect to the Series 2013-VF3 Variable Funding Notes held by the Purchaser and for each Interest Accrual Period, 0.50% per annum ; provided , however , that in case of the first Payment Date, the Undrawn Fee Rate shall accrue from the period beginning on October 29, 2013, and ending on the day immediately preceding the current Payment Date. For the avoidance of doubt, only the Purchasers shall be paid Undrawn Fee Amounts as set forth in the Base Indenture.
“ Unrestricted Cash ” means, as of any date of determination, the sum of (i) the Receivables Seller’s cash, (ii) the Receivables Seller’s Cash Equivalents that are not, in either case, subject to an Adverse Claim in favor of any Person or that are not required to be reserved by the Receivables Seller in a restricted escrow arrangement or other similarly restricted arrangement pursuant to a contractual agreement or requirement of law.
“ Variable Funding Notes ” means, the Series 2013-VF3 Variable Funding Notes issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“ VF3 Note Purchase Agreement ” means that certain Note Purchase Agreement, dated as of the date hereof, by and among the Issuer, Morgan Stanley, as the Administrative Agent, and Morgan Stanley, as the Purchaser, that relates to the purchase of the Series 2013-VF3 Notes.
There are no “Other Advance Rate Reduction Events” or “Other Advance Rate Reduction Event Cure Periods” in respect of the Series 2013-VF3 Notes.
Section 3. Forms of Series 2013-VF3 Notes.
The form of the Rule 144A Definitive Note and of the Regulation S Definitive Notes that may be used to evidence the Series 2013-VF3 Variable Funding Notes in the circumstances described in Section 5.4(c) of the Base Indenture are attached to the Base Indenture as Exhibits A-2 and A-4 , respectively.
In addition to any provisions set forth in Section 6.5 of the Base Indenture, with respect to the Series 2013-VF3 Notes, the Noteholder of such Notes shall only transfer its beneficial interest therein to another potential investor in accordance with the applicable Note Purchase Agreement. The Indenture Trustee (in all of its capacities) shall not be responsible to monitor, and shall not have any liability, for any such transfers of beneficial interests of participation interests.
Section 4. Series Reserve Account.
In accordance with the terms and provisions of this Section 4 and Section 4.6 of the Base Indenture, the Indenture Trustee shall establish and maintain a Series Reserve Account with respect to the Series 2013-VF3 Notes, which shall be an Eligible Account, for the benefit of the Series 2013-VF3 Noteholders. The Series Reserve Account with respect to the Series 2013-VF3 Notes is listed on Schedule 1 attached hereto.
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Section 5. Collateral Value Exclusions.
For purposes of calculating “Collateral Value” in respect of the Series 2013-VF3 Notes, the Collateral Value shall be zero for any Receivable that:
(i) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Advance Ratio to be equal to or greater than 100.0%; provided , that this clause (i) shall not apply to any Receivable that is (a) attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement or (b) a Loan-Level Receivable;
(ii) is attributable to any Designated Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances already outstanding with respect to such Designated Servicing Agreement, would cause the related Market Value Ratio to exceed 25.0%;
(iii) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements to exceed 2.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(iv) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement or a Low Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements and Low Threshold Servicing Agreements to exceed 7.5% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(v) is a Facility Eligible Receivable that is attributable to a Small Threshold Servicing Agreement, a Low Threshold Servicing Agreement, or a Middle Threshold Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Small Threshold Servicing Agreements, Low Threshold Servicing Agreements and Middle Threshold Servicing Agreements to exceed 15.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
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(vi) is attributable to a Designated Servicing Agreement, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances outstanding with respect to that same Designated Servicing Agreement, would cause the total Receivable Balances attributable to such Designated Servicing Agreement to exceed 15.0% of the aggregate of the Receivable Balances of the Aggregate Receivables;
(vii) (a) if it is a Loan-Level Receivable, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables with respect to the related Mortgage Loan or REO Property, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0% or (b) if it is a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, its Receivable Balance, when added to the aggregate Receivable Balances of all Receivables related to the Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, would cause the related Mortgage Loan-Level Market Value Ratio to exceed 50.0%;
(viii) is a Second-Lien Receivable;
(ix) has a zero Advance Rate;
(x) is a Loan-Level Receivable or a Non-FIFO Receivable, to the extent that the related Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of Loan-Level Receivables and Non-FIFO Receivables already outstanding with respect to all Mortgage Loans or REO Properties, causes the aggregate Receivable Balances of all Loan-Level Receivables and Non-FIFO Receivables to exceed 22.5% of the aggregate Receivables Balances of all Facility Eligible Receivables;
(xi) is a Facility Eligible Receivable that is a Loan-Level Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to all Loan-Level Receivables to exceed 20.0% of the total Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
(xii) is a Facility Eligible Receivable that is attributable to a Non-FIFO Receivable, to the extent that the Receivable Balance of such Receivable, when added to the aggregate Receivable Balances of all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables, would cause the total Receivable Balances attributable to all Facility Eligible Receivables outstanding with respect to Non-FIFO Receivables to exceed (i) from and including the Closing Date through April 1, 2014, $100,000,000, and (ii) on and after April 1, 2014, the lesser of $25,000,000 or 1.0% of the aggregate Receivable Balances of all Facility Eligible Receivables included in the Trust Estate;
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(xiii) if more than ninety (90) days have passed since the Designation Date in respect of the related Designated Servicing Agreement, relates to an Advance that has not been reimbursed in full or a Deferred Servicing Fee that has not been paid in full within forty-five (45) days following the date of a permanent modification of the related Mortgage Loan that becomes effective subsequent to the creation of such Receivable (for purposes of this clause, a modification becomes “permanent” following any trial period or satisfaction of conditions precedent or subsequent); or
(xiv) is a Receivable related to the Designated Servicing Agreements related to the securitization trusts identified on Schedule 4 to the Base Indenture (as the same may be updated from time to time pursuant to Section 2.2(c) of the Base Indenture) and the aggregate of the outstanding principal balance of the Mortgage Loans and each REO Property remaining in such securitization trust is less than the percentage indicated on such Schedule 4 of such securitization trust’s cut-off date balance.
For purposes of each of the foregoing, (i) if any Facility Eligible Receivable has a Collateral Value equal to zero pursuant to any Collateral Value exclusion test, the portion of the Receivables Balance thereof with a Collateral Value of zero shall be disregarded for all other purposes of this Section 5 , in each case as determined by the Administrator in a manner that maximizes the Collateral Value and (ii) if any Facility Eligible Receivable has an Advance Rate of zero or is a Second-Lien Receivable, such Facility Eligible Receivable shall be disregarded for all other purposes of this Section 5 .
Section 6. Payments; Note Balance Increases; Early Maturity; Other Advance Rate Reduction Events.
The Paying Agent shall make payments of interest on the Series 2013-VF3 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture and any payments of interest (including unrated interest amounts), Cumulative Interest Shortfall Amounts, Fees or Increased Costs allocated to the Series 2013-VF3 Notes shall be paid to the Series 2013-VF3 Notes. The Paying Agent shall make payments of principal on the Series 2013-VF3 Variable Funding Notes on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5, respectively, of the Base Indenture (at the option of the Issuer in the case of requests during the Revolving Period for the Series 2013-VF3 Variable Funding Notes). The Note Balance of the Series 2013-VF3 Variable Funding Notes may be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the related Maximum VFN Principal Balance. The Paying Agent shall make payments of principal on the Series 2013-VF3 Variable Funding Notes on each Payment Date in accordance with Section 4 of the Base Indenture during any Target Amortization Period or any Full Amortization Period.
The parties hereto agree that the failure to pay any portion of any related Undrawn Fee Amount on any Payment Date shall constitute an Event of Default under Section 8.1(a)(i) of the Base Indenture.
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Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Issuer may, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, redeem in whole or in part, and/or terminate and cause retirement of any of the Series 2013-VF3 Variable Funding Notes at any time using proceeds of issuance of new Notes or in connection with the repayment of all Notes.
The Series 2013-VF3 Notes are also subject to optional redemption in accordance with the terms of Section 13.1 of the Base Indenture.
Any payments of principal allocated to the Series 2013-VF3 Notes during a Full Amortization Period shall be applied to the Series 2013-VF3 Notes until their Note Balance has been reduced to zero.
The Administrative Agent further confirms that the Series 2013-VF3 Notes issued on the Issuance Date pursuant to this Indenture Supplement shall be issued in the name of “Morgan Stanley Bank, N.A.,” and the Administrative Agent hereby directs the Indenture Trustee to issue the Series 2013-VF3 Notes in the name of “Morgan Stanley Bank, N.A.”
For the avoidance of doubt, the failure pay any Target Amortization Amount when due, as described in the definition thereof, shall constitute an Event of Default.
There are no “Other Advance Rate Reduction Events” in respect of the Series 2013-VF3 Notes. If any Other Advance Rate Reduction Event in respect of any other Series of Notes is the same as any reduction event specified in clause (iv) of the definition of “Facility Early Amortization Event,” and the related Other Advance Rate Reduction Event Cure Period is shorter than the applicable grace period for the same event specified in clause (iv) of the definition of “Facility Early Amortization Event”, then solely for purposes of the Series 2013-VF3 Notes, the applicable grace period specified in clause (iv) of the definition of “Facility Early Amortization Event” shall be reduced to the Other Advance Rate Reduction Event Cure Period.
For the avoidance of doubt, the Issuer may reduce the Maximum VFN Principal Balance at any time to an amount not less than the current VFN Principal Balance.
On the initial Funding Date, the initial funding in respect of the Series 2013-VF3 Notes will be made on a non-pro rata basis with the other Series of Notes and the proceeds of such initial funding may be used to repay, in part, the then outstanding balance of the Series 2013-VF1 Notes and the Series 2013-VF2 Notes.
Section 7. Extension of Expected Repayment Date .
The Administrator, on behalf of the Issuer, may request one (1) extension of the Expected Repayment Date for any of the Series 2013-VF3 Variable Funding Notes at least fifteen (15) days prior to the Optional Extension Date. The Administrative Agent shall provide written notice of whether the Administrative Agent agrees to extend the Expected Repayment Date on such Optional Extension Date at least five (5) days prior to such Optional Extension Date. If the Administrative Agent provides written notice of its agreement to extend the Expected Repayment Date, the Expected Repayment Date will be extended on such Optional Extension Date such that, after giving effect to any such extension, the Expected Repayment Date will be
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180 days after the existing Expected Repayment Date. The Expected Repayment Date of the Series 2013-VF3 Variable Funding Notes cannot be extended past the Expected Repayment Date for any other Outstanding Series of Variable Funding Notes. For the avoidance of doubt, the Expected Repayment Date of the Series 2013-VF3 Variable Funding Notes shall be extended only by written notice from the Administrative Agent in accordance with this Section 7 .
Section 8. Determination of Note Interest Rate and LIBOR.
(a) At least one (1) Business Day prior to each Determination Date, the Administrator shall calculate the Note Interest Rate for the related Interest Accrual Period (in the case of the Series 2013-VF3 Variable Funding Notes using One Month LIBOR as determined by the Administrative Agent in accordance with Section 8(b) below) and the Interest Payment Amount for the Series 2013-VF3 Notes for the upcoming Payment Date, and include a report of such amount in the related Payment Date Report.
(b) On each LIBOR Determination Date, the Administrative Agent will determine the arithmetic mean of the London Interbank Offered Rate (“ LIBOR ”) quotations for one-month Eurodollar deposits (“ One-Month LIBOR ”) for the succeeding Interest Accrual Period for the Series 2013-VF3 Notes on the basis of the Reference Banks’ offered LIBOR quotations provided to the Calculation Agent as of 11:00 a.m. (London time) on such LIBOR Determination Date. As used herein with respect to a LIBOR Determination Date, “ Reference Banks ” means leading banks engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) whose quotations appear on the Bloomberg Screen US0001M Index Page for the LIBOR Determination Date in question and (iii) which have been designated as such by the Calculation Agent (after consultation with the Administrative Agent) and are able and willing to provide such quotations to the Calculation Agent for each LIBOR Determination Date; and “ Bloomberg Screen US0001M Index Page ” means the display designated as page US0001M Index Page on the Bloomberg Financial Markets Commodities News (or such other pages as may replace such page on that service for the purpose of displaying LIBOR quotations of major banks). If any Reference Bank should be removed from the Bloomberg Screen US0001M Index Page or in any other way fails to meet the qualifications of a Reference Bank, the Administrative Agent may, in its sole discretion, designate an alternative Reference Bank.
If, for any LIBOR Determination Date, two or more of the Reference Banks provide offered One-Month LIBOR quotations on the Bloomberg Screen US0001M Index Page, One-Month LIBOR for the next succeeding Interest Accrual Period for the Series 2013-VF3 Variable Funding Notes will be the arithmetic mean of such offered quotations (rounding such arithmetic mean if necessary to the nearest five decimal places).
If, for any LIBOR Determination Date, only one or none of the Reference Banks provides such offered One-Month LIBOR quotations for the next applicable Interest Accrual Period, One-Month LIBOR for the next Interest Accrual Period for the Series 2013-VF3 Notes will be the higher of (x) One-Month LIBOR as determined for the previous LIBOR Determination Date and (y) the Reserve Interest Rate. The “ Reserve Interest Rate ” on any date of determination will be the rate per annum that the Administrative Agent determines to be either (A) the arithmetic mean (rounding such arithmetic mean if necessary to the nearest five decimal places) of the one-month
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Eurodollar lending rate that New York City banks selected by the Administrative Agent are quoting, on the relevant LIBOR Determination Date, to the principal London offices of at least two leading banks in the London Interbank market or (B) in the event that the Administrative Agent is unable to determine such arithmetic mean, the lowest one-month Eurodollar lending rate that the New York City banks so selected by the Administrative Agent are quoting on such LIBOR Determination Date to leading European banks.
If, on any LIBOR Determination Date, the Administrative Agent is required but is unable to determine the Reserve Interest Rate in the manner provided in the preceding paragraph, One-Month LIBOR for the next applicable Interest Accrual Period will be One-Month LIBOR as determined for the previous LIBOR Determination Date.
Notwithstanding the foregoing, One-Month LIBOR for an Interest Accrual Period shall not be based on One-Month LIBOR for the previous Interest Accrual Period on the Series 2013-VF3 Notes for two consecutive LIBOR Determination Dates. If, under the priorities described above, One-Month LIBOR for an Interest Accrual Period on the Series 2013-VF3 Notes would be based on One-Month LIBOR for the previous LIBOR Determination Date for the second consecutive LIBOR Determination Date, the Administrative Agent shall select an alternative index (over which the Administrative Agent has no control) used for determining one-month Eurodollar lending rates that is calculated and published (or otherwise made available) by an independent third party, and this alternative index shall constitute One-Month LIBOR for all purposes under this Indenture Supplement in that event.
(c) The establishment of One-Month LIBOR by the Administrative Agent and the Administrator’s subsequent calculation of the Note Interest Rate on the Series 2013-VF3 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 9. Increased Costs.
(a) If any Regulatory Change or other requirement of any law, rule, regulation or order applicable to a Noteholder of a Series 2013-VF3 Variable Funding Note (a “ Requirement of Law ”) or any change in the interpretation or application thereof or compliance by such Noteholder with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the date hereof:
(1) shall subject such Noteholder to any tax of any kind whatsoever with respect to its Series 2013-VF2 Variable Funding Note (excluding income taxes, branch profits taxes, franchise taxes or similar taxes imposed on such Noteholder as a result of any present or former connection between such Noteholder and the United States, other than any such connection arising solely from such Noteholder having executed, delivered or performed its obligations or received a payment under, or enforced, this Indenture Supplement or any U.S. federal withholding taxes imposed under Code sections 1471 through 1474 as of the date of this Indenture Supplement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any regulations or official interpretations thereunder and any agreements entered into
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under section 1471(b) of the Code) or change the basis of taxation of payments to such Noteholder in respect thereof; shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(2) shall impose, modify or hold applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or credit extended or participated by, or any other acquisition of funds by, any office of such Noteholder which is not otherwise included in the determination of the Note Interest Rate hereunder; or
(3) shall have the effect of reducing the rate of return on such Noteholder’s capital or on the capital of such Noteholder’s holding company, if any, as a consequence of this Indenture Supplement, in the case of the Series 2013-VF3 Variable Funding Notes, the VF3 Note Purchase Agreement, or the Series 2013-VF3 Variable Funding Notes to a level below that which such Noteholder or such Noteholder’s holding company could have achieved but for such Requirements of Law (other than any Regulatory Change, Requirement of Law, interpretation or application thereof, request or directive with respect to taxes) (taking into consideration such Noteholder’s policies and the policies of such Noteholder’s holding company with respect to capital adequacy); or
(4) shall impose on such Noteholder or the London interbank market any other condition, cost or expense (other than with respect to taxes) affecting this Indenture Supplement, in the case of the Series 2013-VF3 Variable Funding Notes, the VF3 Note Purchase Agreement or the Series 2013-VF3 Variable Funding Notes or any participation therein; or
(5) shall impose on such Noteholder any other condition;
and the result of any of the foregoing is to increase the cost to such Noteholder, by an amount which such Noteholder deems to be material, of continuing to hold its Series 2013-VF3 Variable Funding Note, of maintaining its obligations with respect thereto, or to reduce any amount due or owing hereunder in respect thereof, or to reduce the amount of any sum received or receivable by such Noteholder (whether of principal, interest or any other amount) or (in the case of any change in a Requirement of Law regarding capital adequacy or liquidity requirements or in the interpretation or application thereof or compliance by such Noteholder or any Person controlling such Noteholder with any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) from any Governmental Authority or quasi-Governmental Authority made subsequent to the date hereof) shall have the effect of reducing the rate of return on such Noteholder’s or such controlling Person’s capital as a consequence of its obligations as a Noteholder of a Variable Funding Note to a level below that which such Noteholder or such controlling Person could have achieved but for such adoption,
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change or compliance (taking into consideration such Noteholder’s or such controlling Person’s policies with respect to capital adequacy) by an amount deemed by such Noteholder to be material, then, in any such case, such Noteholder shall invoice the Administrator for such additional amount or amounts as calculated by such Noteholder in good faith as will compensate such Noteholder for such increased cost or reduced amount, and such invoiced amount shall be payable to such Noteholder on the Payment Date following the next Determination Date following such invoice, in accordance with Section 4.5(a)(1)(ii) or Section 4.5(a)(2)(ii) of the Base Indenture, as applicable; provided , however , that any amount of Increased Costs in excess of the Increased Costs Limit shall be payable to such Noteholder in accordance with Section 4.5(a)(1)(ix) or Section 4.5(a)(2)(iv) of the Base Indenture, as applicable.
(b) Reserved .
(c) Increased Costs payable under this Section 9 shall be payable on a Payment Date only to the extent invoiced to the Indenture Trustee prior to the related Determination Date.
Section 10. Series Reports.
(a) Series Calculation Agent Report . The Calculation Agent shall deliver a report of the following items together with each Calculation Agent Report pursuant to Section 3.1 of the Base Indenture to the extent received from the Servicer, with respect to the Series 2013-VF3 Notes:
(i) the unpaid principal balance of the Mortgage Loans subject to any Small Threshold Servicing Agreement, Low Threshold Servicing Agreement and Middle Threshold Servicing Agreement;
(ii) the Advance Ratio for each Designated Servicing Agreement, and whether the Advance Ratio for such Designated Servicing Agreement exceeds 100.0%;
(iii) the Market Value Ratio for each Designated Servicing Agreement, and whether the Market Value Ratio for such Designated Servicing Agreement exceeds 25.0%;
(iv) for each Small Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(v) for each Middle Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vi) for each Low Threshold Servicing Agreement, as of the end of the most recently concluded calendar month, the aggregate of the Funded Advance Receivable
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Balances of all Receivables attributable to such Designated Servicing Agreement as a percentage of the aggregate of the Funded Advance Receivable Balances of all Receivables included in the Trust Estate;
(vii) a list of each Target Amortization Event for the Series 2013-VF3 Notes and presenting a yes or no answer beside each indicating whether each such Target Amortization Event has occurred as of the end of the Monthly Advance Collection Period preceding the upcoming Payment Date or the Advance Collection Period preceding the upcoming Interim Payment Date;
(viii) the Mortgage Loan-Level Market Value Ratio for each Mortgage Loan related to a Loan-Level Receivable or a Receivable related to a Mortgage Loan or REO Property that is attributable to a Designated Servicing Agreement that is a Small Threshold Servicing Agreement, and if such Mortgage Loan-Level Market Value Ratio exceeds 50%;
(ix) whether any Receivable, or any portion of the Receivables, attributable to a Designated Servicing Agreement, has a Collateral Value of zero by virtue of the definition of “Collateral Value” or Section 5 of this Indenture Supplement;
(x) a calculation of the Net Proceeds Coverage Percentage in respect of each of the three preceding Monthly Advance Collection Periods (or each that has occurred since the date of this Indenture Supplement, if less than three), and the arithmetic average of the three;
(xi) the Monthly Reimbursement Rate for the upcoming Payment Date or Interim Payment Date;
(xii) whether any Target Amortization Amount that has become due and payable has been paid;
(xiii) the Stressed Nonrecoverable Advance Amount for the upcoming Payment Date or Interim Payment Date; and
(xiv) the Trigger Advance Rate for the Notes.
(b) Series Payment Date Report . In conjunction with each Payment Date Report, the Indenture Trustee shall also report the Stressed Time Percentage.
(c) Limitation on Indenture Trustee Duties . The Indenture Trustee shall have no independent duty to verify: (1) Tangible Net Worth, (2) the occurrence of any of the events described in clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x) or (xi) of the definition of “Target Amortization Event,” or (3) compliance with clause (vi) of the definition of “Facility Eligible Servicing Agreement.”
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Section 11. Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2013-VF3 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) and Article XII thereof and Section 12 hereof, as applicable, have been satisfied.
Section 12. Representations, Warranties and Covenants.
(a) The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
(b) Neither the Administrator nor or any of its Subsidiaries shall make any material change in the nature of its business as carried on at the date hereof.
Section 13. Amendments.
(a) Notwithstanding any provisions to the contrary in Article XII of the Base Indenture, and in addition to and otherwise subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have an Adverse Effect, may amend this Indenture Supplement for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default, Target Amortization Event or Facility Early Amortization Event or (ii) any other modification or amendment to any Event of Default, Target Amortization Event or Facility Early Amortization Event except those related to the actions and omissions of the Servicer.
(b) Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of 100% of the Noteholders of the Series 2013-VF3 Variable Funding Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
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Section 14. Counterparts.
This Indenture Supplement may be executed in any number of counterparts, by manual or facsimile signature, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument.
Section 15. Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 16. Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2013-VF3 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2013-VF3 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2013-VF3 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2013-VF3 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2013-VF3 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 16 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2013-VF3 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 16 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2013-VF3 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity. By its signature to this Agreement, each of the parties hereto (other than the Indenture Trustee), hereby waives and directs the Indenture Trustee to waive, the delivery of an Authorization Opinion in connection with the execution and delivery of this Series Supplement.
Section 17. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement,
27
in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association, but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association, be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or the other Transaction Documents.
Section 18. Consent and Acknowledgement of Amendments.
Morgan Stanley, in its capacity as Purchaser (together with its successors and permitted assigns, the “ Purchaser ”) has consented to this Indenture Supplement and confirms that (i) it is the sole Noteholder of all the Outstanding Notes related to this Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Indenture Supplement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date.
Section 19. Authorized Representatives and Wire Instructions of the Administrative Agent.
Each individual designated as an authorized representative of the Administrative Agent (each, an “ Authorized Representative ”), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Agreement on behalf of each of the Administrative Agent, and the specimen signature for each such Authorized Representative of the Administrative Agent initially authorized hereunder is set forth on Schedule 2 hereto.
The payment instructions for the Administrative Agent are set forth on Schedule 3 hereto.
From time to time, the Administrative Agent may, by delivering to the other parties hereto a revised schedule, change the information previously given pursuant to this Section 19 , but each of the parties hereto shall be entitled to rely conclusively on the then current schedule until receipt of a superseding schedule.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF , NRZ Servicer Advance Receivables Trust CS, as Issuer, Advance Purchaser LLC, as Administrator and as Servicer (on and after the respective MSR Transfer Dates), Nationstar Mortgage LLC, as Administrator (prior to the Effective Date) and as Servicer (prior to the respective MSR Transfer Dates), Wells Fargo Bank, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, Morgan Stanley Bank, N.A., as Administrative Agent, and Morgan Stanley Bank, N.A. as Purchaser have caused this Indenture Supplement relating to the Series 2013-VF3 Notes, to be duly executed by their respective officers thereunto duly authorized and their respective signatures duly attested all as of the day and year first above written.
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NRZ SERVICER ADVANCE RECEIVABLES TRUST CS, as Issuer |
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| By: Wilmington Trust, National Association, not in its individual capacity but solely as Owner Trustee | ||
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By: |
/s/ Erwin M. Soriano | |||
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Name: |
Erwin M. Soriano | |||
| Title: | Assistant Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
| NATIONSTAR MORTGAGE LLC | ||
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By: |
/s/ Ellen Coleman | |||
|
Name: |
Ellen Coleman | |||
| Title: | Executive Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
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WELLS FARGO BANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity |
||
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By: |
/s/ Mark DeFabio | |||
|
Name: |
Mark DeFabio | |||
| Title: | Vice President | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
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MORGAN STANLEY BANK, N.A., as Administrative Agent |
||
|
By: |
/s/ Geoffrey Kott | |||
|
Name: |
Geoffrey Kott | |||
| Title: | Authorized Signatory | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
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ADVANCE PURCHASER LLC |
||
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By: |
/s/ Cameron MacDougall | |
|
Name: |
Cameron MacDougall | |
| Title: | Secretary | |
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
| CONSENTED TO BY: | ||
| MORGAN STANLEY BANK, N.A., as Administrative Agent of the Series 2013-VF3 Notes | ||
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By: |
/s/ Geoffrey Kott | |||
|
Name: |
Geoffrey Kott | |||
| Title: | Authorized Signatory | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
| CONSENTED TO BY: | ||
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MORGAN STANLEY BANK, N.A., as Purchaser of the Series 2013-VF3 Notes |
||
|
By: |
/s/ Geoffrey Kott | |||
|
Name: |
Geoffrey Kott | |||
| Title: | Authorized Signatory | |||
[NRZ Servicer Advance Receivables Trust CS Series 2013-V3 Amended and Restated Indenture Supplement]
SCHEDULE 1
SERIES 2013-VF3 RESERVE ACCOUNT
| Name of Bank: | Wells Fargo Bank, N.A. | |
| ABA Number of Bank: | ||
| Name of Account: | Corporate Trust Clearing | |
| Account Number at Bank: | ||
| For Further Credit To: |
Schedule 1-1
SCHEDULE 2
AUTHORIZED REPRESENTATIVES OF
MORGAN STANLEY BANK, N.A.
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Name: |
Title: |
Signature: |
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|
Geoffrey Kott |
Managing Director |
/s/ Geoffrey Kott |
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Christopher Schmidt |
Executive Director | /s/ Christopher Schmidt | ||
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Zachary Phelps |
Vice President | /s/ Zachary Phelps | ||
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Gene Nagotko |
Executive Director | /s/ Gene Nagotko | ||
|
Darragh Dempsey |
Executive Director | /s/ Darragh Dempsey |
Schedule 2-1
SCHEDULE 3
CITIBANK NA NEW YORK
ABA #:
Morgan Stanley Bank
Account #:
Schedule 3-1
Exhibit 10.1
EXECUTION COPY
AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT
NATIONSTAR MORTGAGE LLC,
as Servicer (prior to the respective MSR Transfer Dates)
and
ADVANCE PURCHASER LLC,
as Receivables Seller and as Servicer (on and after the respective MSR Transfer Dates)
and
NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC,
as Depositor
and consented to by
BARCLAYS BANK PLC
and
SHEFFIELD RECEIVABLES CORPORATION
Dated as of December 17, 2013
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, ISSUABLE IN SERIES
TABLE OF CONTENTS
| Page | ||||||
| Section 1. |
Definitions; Incorporation by Reference. |
4 | ||||
| Section 2. |
Transfer of Receivables. |
7 | ||||
| Section 3. |
Nationstar’s and Advance Purchaser’s Acknowledgment and Consent to Assignment. |
10 | ||||
| Section 4. |
Representations, Warranties and Certain Covenants of Nationstar, as Servicer (prior to the respective MSR Transfer Dates) and as Initial Receivables Seller. |
11 | ||||
| Section 5. |
Representations, Warranties and Certain Covenants of Advance Purchaser, as Servicer (on and after the respective MSR Transfer Dates) and as Receivables Seller. |
20 | ||||
| Section 6. |
Termination. |
28 | ||||
| Section 7. |
General Covenants of Nationstar, as Initial Receivables Seller (for certain Designated Servicing Agreements prior to the final MSR Transfer Date) and Servicer (for certain Designated Servicing Agreements prior to the final MSR Transfer Date). |
28 | ||||
| Section 8. |
General Covenants of Advance Purchaser, as Receivables Seller and Servicer (on and after the respective MSR Transfer Dates). |
32 | ||||
| Section 9. |
Grant Clause. |
35 | ||||
| Section 10. |
Conveyance by Depositor; Grant by Issuer. |
36 | ||||
| Section 11. |
Protection of Indenture Trustee’s Security Interest in Trust Estate. |
37 | ||||
| Section 12. |
Indemnification by Nationstar. |
37 | ||||
| Section 13. |
Indemnification by Advance Purchaser. |
39 | ||||
| Section 14. |
Miscellaneous. |
41 | ||||
| Section 15. |
Consent and Acknowledgement of the Amendments. |
43 | ||||
| Schedule 1-A |
Form of Assignment of Advance Receivables |
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| Schedule 1-B |
Form of Assignment of Receivables |
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| Exhibit A |
Form of Subordinated Note |
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RECEIVABLES SALE AGREEMENT
This AMENDED AND RESTATED RECEIVABLES SALE AGREEMENT (as it may be amended, supplemented, restated or otherwise modified from time to time, this “ Agreement ”) is made as of December 17, 2013 (the “ Effective Date ”), by and among Nationstar Mortgage LLC, a limited liability company organized under the laws of the State of Delaware (“ Nationstar ”), as initial receivables seller and as servicer (prior to the respective MSR Transfer Dates), Advance Purchaser LLC, a limited liability company organized under the laws of the State of Delaware (“ Advance Purchaser ”), as receivables seller and as servicer (on and after the respective MSR Transfer Dates), and NRZ Servicer Advance Facility Transferor BC, LLC, a limited liability company organized under the laws of the State of Delaware, as depositor (the “ Depositor ”), and is consented to by 100% of the Noteholders and the Administrative Agent.
RECITALS
A. The Depositor is a special purpose Delaware limited liability company. The Depositor and Nationstar are parties to that certain Receivables Sale Agreement (the “ Original Receivables Sale Agreement ”), dated as of September 19, 2013 (the “ Closing Date ”). Pursuant to Section 11(a) of the Original Receivables Sale Agreement, Nationstar and the Depositor may amend the Original Receivables Sale Agreement by written instrument upon delivery of an Issuer Tax Opinion and, so long as the Notes are outstanding, the Administrative Agent and Noteholders of more than the Series Required Noteholders of each Series shall have consented thereto. The Depositor, Advance Purchaser and Nationstar wish to amend and restate in its entirety the Original Receivables Sale Agreement in accordance with Section 11(a) of the Original Receivables Sale Agreement, pursuant to the terms set forth in this Agreement.
B. Nationstar acts as the servicer under one or more servicing agreements (each, as it may be amended, supplemented, restated, or otherwise modified from time to time, a “ Servicing Agreement ” and, collectively, the “ Servicing Agreements ”). Certain Servicing Agreements (each, as may be amended, supplemented, restated or otherwise modified from time to time, a “ Designated Servicing Agreement ” and, collectively, the “ Designated Servicing Agreements ”) will be designated as described herein for inclusion under this Agreement, the Receivables Pooling Agreement (defined below) and the Indenture (defined below).
C. Nationstar is selling the servicing rights under the Designated Servicing Agreements to Advance Purchaser. Prior to the MSR Transfer Date with respect to any Designated Servicing Agreement, Nationstar shall continue to (i) be the “Servicer” under such Designated Servicing Agreement, (ii) have the obligation to make the required Advances under such Designated Servicing Agreement, (iii) have the right to collect the related Receivables in reimbursement of such Advances, and (iv) have the right to collect Receivables in existence on the Effective Date related to Advances. Prior to the related MSR Transfer Date, upon its disbursement of an Advance pursuant to a Designated Servicing Agreement, Nationstar, as servicer, becomes the beneficiary of a contractual right to be reimbursed for such Advance in accordance with the terms of the related Designated Servicing Agreement and, immediately upon their creation, Nationstar shall sell the related Receivables to Advance Purchaser for cash purchase prices equal to 100% of their respective Receivable Balances pursuant to this Agreement and the Purchase Agreement (defined below), and Advance Purchaser shall sell and/or contribute the Receivables it purchases from Nationstar, to the Depositor as described in Paragraph G. below.
D. When all required consents and ratings agency letters required for a formal change of the named servicer under a Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, Nationstar shall transfer to Advance Purchaser all of the servicing rights and obligations under such Designated Servicing Agreement (such date, the related “ MSR Transfer Date ”) pursuant to the Master Servicing Rights Purchase Agreement, dated as of the date hereof, and any related Sale Supplement executed from time to time, by and between Nationstar and Advance Purchaser (each as amended, restated, supplemented or otherwise modified from time to time, collectively, the “ Purchase Agreement ”). On and after the MSR Transfer Date for any Designated Servicing Agreement, Advance Purchaser shall (i) be the “Servicer” under such Designated Servicing Agreement, (ii) have the obligation to make the required Advances under such Designated Servicing Agreement, (iii) have the right to collect the related Receivables in reimbursement of such Advances, and (iv) have the right to collect Receivables in existence on the MSR Transfer Date related to Advances. Upon its disbursement of an Advance pursuant to a Designated Servicing Agreement, Advance Purchaser, as servicer (on and after the related MSR Transfer Date), becomes the beneficiary of a contractual right to be reimbursed for such Advance in accordance with the terms of the related Designated Servicing Agreement. Nationstar will initially be engaged by Advance Purchaser as subservicer for all of the Designated Servicing Agreements as to which the related MSR Transfer Date has occurred under a subservicing agreement (a “ Subservicing Agreement ”). Other subservicers may be appointed for some or all of the Designated Servicing Agreements or for other servicing rights acquired by Advance Purchaser from time to time in compliance with Section 5(a)(xxxiii) hereof.
E. NRZ Servicer Advance Receivables Trust BC (the “ Issuer ”), Advance Purchaser, as servicer (on and after the respective MSR Transfer Dates) and as Administrator (in such capacity, the “ Administrator ”), Nationstar, as servicer (prior to the respective MSR Transfer Dates) and as subservicer, Wells Fargo Bank, N.A., as Indenture Trustee (the “ Indenture Trustee ”), as Calculation Agent, as Paying Agent and as Securities Intermediary, Barclays Bank PLC (“ Barclays ”), as administrative agent (the “ Administrative Agent ”) and Sheffield Receivables Corporation propose to enter into an Amended and Restated Indenture (as it may be amended, supplemented, restated, or otherwise modified from time to time and including any indenture supplement, the “ Indenture ”), dated as of even date herewith, amending and restating that certain Indenture, dated as of September 19, 2013 (the “ Original Indenture ”).
F. Pursuant to the Series 2013-VF1 Indenture Supplement, dated as of September 19, 2013, among the Issuer, the Indenture Trustee, Nationstar and Barclays (the “ Series 2013-VF1 Indenture Supplement ”), the Issuer issued four (4) Classes of Series 2013-VF1 Notes (Class A-VF1, Class B-VF1, Class C-VF1 and Class D-VF1) (the “ Series 2013-VF1 Variable Funding Notes ”). The Series 2013-VF1 Variable Funding Notes issued by the Issuer pursuant to the Series 2013-VF1 Indenture Supplement are collateralized by the Aggregate Receivables and related property and certain monies in respect thereof now owned and to be hereafter acquired by the Issuer.
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G. Advance Purchaser desires to sell and/or contribute, assign, transfer and convey to the Depositor all of its contractual rights (A) to reimbursement pursuant to the terms of a Designated Servicing Agreement for an Advance that it either acquires from Nationstar (before the related MSR Transfer Date) or creates as a result of making Advances (on and after the related MSR Transfer Date) (any right to reimbursement in respect of any such Advance, an “ Advance Receivable ”), and (B) to payment pursuant to the terms of a Designated Servicing Agreement listed on the Designated Servicing Agreement Schedule for a Deferred Servicing Fee which has been accrued by Nationstar (before the related MSR Transfer Date) and sold by Nationstar to Advance Purchaser pursuant to the Purchase Agreement or accrued by Advance Purchaser (on and after the related MSR Transfer Date) but not paid, and including in either case all rights of Nationstar or Advance Purchaser, as the case may be, to enforce payment of such obligation under the related Designated Servicing Agreement (any right to payment in respect of such Deferred Servicing Fee, a “ Deferred Servicing Fee Receivable ”) from the date hereof through the Receivables Sale Termination Date under the Designated Servicing Agreements, pursuant to the terms of this Agreement. The Depositor will contemporaneously enter into an Amended and Restated Receivables Pooling Agreement, dated as of even date herewith (as may be amended, supplemented, restated or otherwise modified from time to time, the “ Receivables Pooling Agreement ”), amending and restating that certain Receivables Pooling Agreement, dated as of September 19, 2013 (the “ Original Receivables Pooling Agreement ”), with the Issuer pursuant to which the Depositor will sell and/or contribute, assign, transfer and convey to the Issuer immediately upon the Depositor’s acquisition thereof, all Receivables acquired by the Depositor from Advance Purchaser pursuant to this Agreement; provided , however , that all Receivables in existence on the Effective Date shall have been transferred from Nationstar to the Depositor under the Original Receivables Sale Agreement and from the Depositor to the Issuer under the Original Receivables Pooling Agreement prior to the Effective Date.
H. In consideration of each transfer by Advance Purchaser to the Depositor of the Transferred Assets on and after the Effective Date on the terms and subject to the conditions set forth in this Agreement, the Depositor has agreed to pay to Advance Purchaser a purchase price equal to 100% of the fair market value thereof on the related Sale Date. To the extent the portion of the purchase price actually paid in cash by the Depositor for the Transferred Assets is less than 100% of the fair market value thereof, the balance of the purchase price shall be paid by the Depositor to Advance Purchaser on the Effective Date and on each subsequent Sale Date, by keeping the proceeds of a borrowing under a Subordinated Note issued by the Depositor to Advance Purchaser in an amount equal to the amount by which the Purchase Price of such Receivable exceeds the portion of the cash purchase price actually paid therefor.
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AGREEMENT
NOW, THEREFORE, in consideration of the above premises and of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions; Incorporation by Reference .
(a) This Agreement is entered into in connection with the terms and conditions of the Indenture. Any capitalized term used but not defined herein shall have the meaning given to it in the Indenture. Furthermore, for any capitalized term defined herein but defined in greater detail in the Indenture, the detailed information from the Indenture shall be incorporated herein by reference.
Additional Receivables : As defined in Section 2(a)(iii) .
Administrative Agent : As defined in the Recitals.
Administrator : As defined in the Recitals.
Advance Purchaser : As defined in the Preamble.
Advance Purchaser Purchase Price : As defined in Section 2(c).
Advance Purchaser Related Documents : As defined in Section 5(a)(iii).
Advance Receivables : As defined in the Recitals.
Aggregate Receivables : (i) All Initial Receivables under a Designated Servicing Agreement sold and/or contributed by Nationstar to the Depositor under the Original Receivables Sale Agreement, (ii) any Nationstar Additional Advance Receivables acquired by Advance Purchaser from Nationstar prior to the related MSR Transfer Date, (iii) any Deferred Servicing Fee Receivables arising under a Designated Servicing Agreement from and after the Effective Date and (iv) any Advance Receivables arising under each Designated Servicing Agreement from and after the related MSR Transfer Date.
Agreement : As defined in the Preamble.
Assignment of Advance Receivables : Each agreement documenting an assignment by Nationstar to Advance Purchaser substantially in the form set forth on Schedule 1-A.
Assignment of Receivables : Each agreement documenting an assignment by Advance Purchaser to the Depositor substantially in the form set forth on Schedule 1-B .
Barclays : As defined in the Recitals.
Closing Date : As defined in the Recitals.
Deferred Servicing Fee Receivables : As defined in the Recitals.
Depositor : As defined in the Preamble.
Designated Servicing Agreement and Designated Servicing Agreements : As defined in the Recitals.
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Effective Date : As defined in the Preamble.
Indemnification Amounts : As defined in Section 13(c) .
Indemnified Party : As defined in Section 13(c) .
Indemnity Payment : As defined in Section 4(d) .
Indenture : As defined in the Recitals.
Indenture Trustee : As defined in the Recitals.
Initial Receivables : As defined in Section 2(a) .
Issuer : As defined in the Recitals.
MSR Transfer Date : As defined in the Recitals.
Nationstar : As defined in the Preamble.
Nationstar Additional Advance Receivables : As defined in Section 2(a)(ii) .
Nationstar Additional Deferred Servicing Fee Receivables : As defined in Section 2(a)(ii) .
Nationstar Additional Receivables : As defined in Section 2(a)(ii) .
Nationstar Advance Receivable Transferred Assets : As defined in Section 2(a)(ii) .
Nationstar Deferred Servicing Fee Receivable Transferred Assets : As defined in Section 2(a)(ii) .
Nationstar Indemnification Amounts : As defined in Section 12(c) .
Nationstar Indemnified Party : As defined in Section 12(c) .
Nationstar Receivables : Together, the Initial Receivables and the Nationstar Additional Receivables.
Nationstar Related Documents : As defined in Section 4(a)(iii) .
Nationstar Transferred Assets : As defined in Section 2(a)(ii) .
Original Indenture : As defined in the Recitals.
Original Receivables Pooling Agreement : As defined in the Recitals.
Original Receivables Sale Agreement : As defined in the Recitals.
Original Transferred Assets : As defined in Section 2(a)(i) .
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Purchase : Each purchase by the Depositor from Advance Purchaser, as receivables seller, of Transferred Assets.
Purchase Agreement : As defined in the Recitals.
Purchase Price : As defined in Section 2(d) .
Receivable : Each Advance Receivable and each Deferred Servicing Fee Receivable.
Receivables Pooling Agreement : As defined in the Recitals.
Receivables Sale Termination Date : The date, after the conclusion of the Revolving Period, on which all amounts due on all Classes of Notes issued by the Issuer pursuant to the Indenture, and all other amounts payable to any party pursuant to the Indenture, shall have been paid in full.
Removed Servicing Agreement : As defined in Section 2(d) .
Sale Date : (i) With respect to the Initial Receivables, each date from and including the Closing Date to the Effective Date on which such Initial Receivable was sold and/or contributed, assigned, transferred and conveyed by Nationstar to the Depositor pursuant to the terms of the Original Receivables Sale Agreement and (ii) with respect to any Additional Receivables, each date from and including the Effective Date to the Receivables Sale Termination Date on which such Additional Receivable is sold and/or contributed, assigned, transferred and conveyed by Advance Purchaser to the Depositor pursuant to the terms of this Agreement.
Series : As defined in the Indenture.
Series Required Noteholders : As defined in the Indenture.
Series 2013-VF1 Variable Funding Notes : As defined in the Recitals.
Servicing Agreement and Servicing Agreements : As defined in the Recitals.
Stop Date : As defined in Section 2(e) .
Subordinated Note : The promissory note in substantially the form of Exhibit A hereto as more fully described in Section 2(d) , as the same may be amended, restated, supplemented or otherwise modified from time to time.
Subservicer : Nationstar or other subservicers that may be engaged by Advance Purchaser as subservicer for all of the Designated Servicing Agreements or for other servicing rights acquired by Advance Purchaser from time to time.
Subservicing Agreement : As defined in the Recitals.
Transferred Assets : As defined in Section 2(a)(iii) .
UCC : The Uniform Commercial Code in effect in all applicable jurisdictions.
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(b) The Designated Servicing Agreement Schedule, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with the Transaction Documents, is incorporated by this reference into this Agreement.
Section 2. Transfer of Receivables.
(a) Transferred Assets .
(i) From the Closing Date to the Effective Date, Nationstar sold and/or contributed, assigned, transferred, and conveyed to the Depositor, and the Depositor acquired from Nationstar, without recourse except as provided under the Original Receivables Sale Agreement, all of Nationstar’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Receivable (1) in existence on the Closing Date and in existence on any Business Day after the Closing Date and prior to the Effective Date that arose under any Servicing Agreement that was listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable was created (the “ Initial Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of Nationstar to enforce such Initial Receivables (collectively, the “ Original Transferred Assets ”).
(ii) Commencing on the Effective Date, and until the opening of business on the MSR Transfer Date for each Designated Servicing Agreement, Nationstar shall sell, assign, transfer and convey to Advance Purchaser, for a cash purchase price equal to 100% of the Receivable Balance thereof, (1) each Advance Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (“ Nationstar Additional Advance Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of Advance Purchaser to enforce such Nationstar Additional Advance Receivables (collectively, the “ Nationstar Advance Receivable Transferred Assets ”). Nationstar affirms that it has sold, assigned, transferred and conveyed to Advance Purchaser pursuant to the Purchase Agreement each Deferred Servicing Fee Receivable in existence on any Business Day on and after the Effective Date and until the opening of business on the related MSR Transfer Date and which arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (“ Nationstar Additional Deferred Servicing Fee Receivables ” and together with the Nationstar Additional Advance Receivables, the “ Nationstar Additional Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of Advance Purchaser to enforce such Nationstar Additional Deferred Servicing Fee Receivables (collectively, the “ Nationstar Deferred Servicing Fee Receivable Transferred Assets ” and together with the Nationstar Advance Receivable Transferred Assets, the “ Nationstar Transferred Assets ”).
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(iii) Commencing on the Effective Date, and until the close of business on the Receivables Sale Termination Date, subject to the provisions of this Agreement, Advance Purchaser hereby sells and/or contributes, assigns, transfers and conveys to the Depositor, and the Depositor purchases and acquires from Advance Purchaser without recourse except as provided herein, all of Advance Purchaser’s right, title and interest, whether now owned or hereafter acquired, in, to and under (1) each Receivable in existence on any Business Day on and after the Effective Date and prior to the Receivables Sale Termination Date (including the Nationstar Additional Receivables) that arises under any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (“ Additional Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC) (including the Nationstar Transferred Assets), together with all rights of Advance Purchaser to enforce such Additional Receivables (including the Nationstar Transferred Assets) (collectively, the “ Transferred Assets ”). Nationstar and Advance Purchaser hereby affirm that Deferred Servicing Fee Receivables that are ineligible for financing under the Indenture will not be sold or transferred under the Purchase Agreement or hereunder and shall not otherwise constitute “Receivables” for purposes hereof or any other Transaction Document. Until the Receivables Sale Termination Date, Advance Purchaser shall, automatically and without any further action on its part, sell and/or contribute, assign, transfer and convey to the Depositor, on each Business Day, each Additional Receivable not previously transferred to the Depositor and the Depositor shall purchase each such Additional Receivable together with all of the other Transferred Assets related to such Receivable.
(b) Nationstar and the Depositor hereby agree that no further transfers will be made pursuant to any Assignment of Receivables dated prior to the Effective Date.
(c) Advance Purchaser’s Purchase Price to Nationstar . In consideration of the sale to Advance Purchaser of the Nationstar Additional Advance Receivables and related Nationstar Advance Receivable Transferred Assets, on the terms and subject to the conditions set forth in this Agreement, Advance Purchaser shall, on each Sale Date, or otherwise promptly following such Sale Date if so agreed by Nationstar and Advance Purchaser, pay and deliver to Nationstar, in immediately available funds, a purchase price (the “ Advance Purchaser Purchase Price ”) equal to 100% of the sum of the Receivable Balances of all Advance Receivables sold by Nationstar to Advance Purchaser on such Sale Date. For convenience purposes, Advance Purchaser may pay the cash purchase price for Nationstar Additional Advance Receivables periodically rather than daily, but notwithstanding any delay in or failure of payment, Nationstar sells, assigns, transfers and conveys each Nationstar Additional Advance Receivable to Advance Purchaser when it is created in consideration of the transactions contemplated under the Purchase Agreement and Advance Purchaser’s promise to pay the related Advance Purchaser Purchase Price pursuant to this section.
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(d) Depositor’s Purchase Price . In consideration of the sale, assignment, transfer and conveyance to the Depositor of the Aggregate Receivables and related Transferred Assets, on the terms and subject to the conditions set forth in this Agreement, the Depositor shall, on each Sale Date, or otherwise promptly following such Sale Date if so agreed by Advance Purchaser and the Depositor, pay and deliver to Advance Purchaser, in immediately available funds, a purchase price (the “ Purchase Price ”) equal to the fair market value of the Receivables sold by Advance Purchaser to the Depositor on such Sale Date. To the extent that the Purchase Price of the Additional Receivables is greater than the cash portion of the Purchase Price, then the Depositor shall (i) first, pay such portion of the Purchase Price in the form of a borrowing under the Promissory Note in the form attached hereto as Exhibit A ; provided however, that the Depositor may not make any borrowing under the Subordinated Note unless at the time of (and immediately after) each borrowing thereunder, both before and after the sale transaction (1) the Depositor’s total assets exceed its total liabilities, (2) the Depositor’s cash on hand is sufficient to satisfy all of its current obligations (other than its obligations under the Subordinated Note and the obligation to pay the Purchase Price), (3) the Depositor is adequately capitalized at a commercially reasonable level and (4) the Depositor has determined that its financial capacity to meet its financial commitment under the Subordinated Note is adequate and (ii) second, to the extent the Depositor cannot make a borrowing under the Subordinated Note, accept a contribution to its capital from Advance Purchaser in an amount equal to the remaining unpaid portion of the Purchase Price. Advance Purchaser is hereby authorized by the Depositor to endorse on the schedule attached to the Subordinated Note an appropriate notation evidencing the date and amount of each advance thereunder, as well as the date of each payment with respect thereto, provided that the failure to make such notation shall not affect any obligation of the Depositor thereunder. Advance Purchaser shall record in its books and records all increases in and payments in reduction of the outstanding principal amount of the Subordinated Note.
(e) Removal of Designated Servicing Agreements or Receivables . On any date on and/or after the satisfaction of all conditions specified in Section 2.1(c)(ii) of the Indenture, Advance Purchaser may remove a Designated Servicing Agreement from the Designated Servicing Agreement Schedule (each such Servicing Agreement so removed, a “ Removed Servicing Agreement ”). Upon the removal of a Designated Servicing Agreement from the Designated Servicing Agreement Schedule, (i) except if Advance Purchaser conducts a Permitted Refinancing, all Receivables related to Advances made by or Deferred Servicing Fees accrued by the Servicer under such Removed Servicing Agreement previously transferred to the Depositor and Granted to the Indenture Trustee for inclusion in the Trust Estate, shall remain subject to the lien of the Indenture, in which case the Receivables Seller may not assign to another Person any Receivables arising under that Removed Servicing Agreement until all Receivables that arose under that Removed Servicing Agreement that are included in the Trust Estate shall have been paid in full or sold in a Permitted Refinancing, and (ii) all Receivables related to such Removed Servicing Agreement arising on or after the date that the related Servicing Agreement was removed from the Designated Servicing Agreement Schedule (the “ Stop Date ”) shall not be sold to the Depositor and shall not constitute Additional Receivables.
(f) Nationstar Marking of Books and Records . Nationstar shall, at its own expense, on or prior to the applicable Sale Date, in the case of Nationstar Additional Receivables, indicate in its books and records (including its computer records) that the Receivables arising under each Designated Servicing Agreement and the related Nationstar Transferred Assets have been sold,
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assigned, transferred and conveyed to Advance Purchaser in accordance with this Agreement and the Purchase Agreement. Nationstar shall not alter the indication referenced in this paragraph with respect to any Receivable during the term of this Agreement (except in accordance with Section 9(a) ). If a third party, including a potential purchaser of a Receivable, should inquire as to the status of the Receivables, Nationstar shall promptly indicate to such third party that the Receivables have been sold, assigned, transferred and conveyed and Nationstar (except in accordance with Section 9(a) ) shall not claim any right, title or interest (including, but not limited to ownership interest) therein.
(g) Advance Purchaser Marking of Books and Records . Advance Purchaser shall, at its own expense, on or prior to the applicable Sale Date, in the case of Additional Receivables, indicate in its books and records (including its computer records) that the Receivables arising under each Designated Servicing Agreement and the related Transferred Assets have been sold, assigned, transferred and conveyed to the Depositor in accordance with this Agreement. Advance Purchaser shall not alter the indication referenced in this paragraph with respect to any Receivable during the term of this Agreement (except in accordance with Section 9(b) ). If a third party, including a potential purchaser of a Receivable, should inquire as to the status of the Receivables, Advance Purchaser shall promptly indicate to such third party that the Receivables have been sold, assigned, transferred and conveyed and Advance Purchaser (except in accordance with Section 9(b) ) shall not claim any right, title or interest (including, but not limited to ownership interest) therein.
Section 3. Nationstar’s and Advance Purchaser’s Acknowledgment and Consent to Assignment.
(a) Acknowledgment and Consent to Assignment . Each of Nationstar and Advance Purchaser hereby acknowledges that the Depositor has sold and/or contributed, assigned, transferred and conveyed to the Issuer, and that the Issuer has Granted to the Indenture Trustee, on behalf of the Noteholders, the rights (but not the obligations) of the Depositor under this Agreement, including, without limitation, the right to enforce the obligations of each of Nationstar and Advance Purchaser hereunder. Each of Nationstar and Advance Purchaser hereby consents to such Grant by the Issuer to the Indenture Trustee pursuant to the Indenture and acknowledges that each of the Issuer and the Indenture Trustee (on behalf of itself, the Noteholders, any Supplemental Credit Enhancement Provider and any Liquidity Provider) shall be a third party beneficiary in respect of the representations, warranties, covenants, rights, indemnities and other benefits arising hereunder that are so Granted by the Issuer. Moreover, each of Nationstar and Advance Purchaser hereby authorizes and appoints as its attorney-in-fact the Depositor, the Issuer and the Indenture Trustee, as the Issuer’s assignee, on behalf of the Depositor, to execute and deliver such documents or certificates as may be necessary in order to enforce its rights under this Agreement and its rights to collect the Aggregate Receivables.
(b) Access to Records . In connection with the conveyances hereunder and under the Purchase Agreement, each Nationstar and Advance Purchaser hereby grants to the Depositor (and its assigns) an irrevocable license to access all records relating to the Aggregate Receivables, without the need for any further documentation in connection with any conveyance hereunder; provided , however , that the Depositor (and its assigns) may not exercise any right under such license until an Event of Default has occurred and is continuing; and provided further
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that such license is for the limited purpose of administering and accounting for the Aggregate Receivables. In connection with such license, and subject to the foregoing provisos, each of Nationstar and Advance Purchaser hereby grants to the Depositor (and its assigns) an irrevocable, non-exclusive license (subject to the restrictions contained in any license with respect thereto) to use, without royalty or payment of any kind, all software used by Nationstar or Advance Purchaser, as receivables seller or as servicer as the case may be, to account for the Aggregate Receivables, to the extent necessary to administer the Aggregate Receivables and such software is owned by Nationstar or Advance Purchaser, as the case may be. With respect to software owned by others and used by Nationstar or Advance Purchaser, as the case may be, under license agreements, Nationstar or Advance Purchaser, as the case may be, shall cooperate with the Depositor (and its assigns) to identify such software and the applicable licensors thereof and provide such other information available to it and reasonably necessary in order for the Depositor to obtain its own licenses with respect to such software. The licenses granted by Nationstar or Advance Purchaser, as the case may be, pursuant to this Section 3 with respect to software owned by it shall be irrevocable and shall terminate, with respect to Nationstar, on the last MSR Transfer Date, and with respect to Advance Purchaser, on the Receivables Sale Termination Date.
Section 4. Representations, Warranties and Certain Covenants of Nationstar, as Servicer (prior to the respective MSR Transfer Dates) and as Initial Receivables Seller.
Nationstar, as initial receivables seller and as servicer (prior to the respective MSR Transfer Dates), hereby makes the following representations, warranties and covenants for the benefit of Advance Purchaser, on which Advance Purchaser is relying in purchasing its residual interest in the entities that hold the Initial Receivables, subject to the Indenture, and the Nationstar Additional Receivables and executing this Agreement. The representations are made as of the date of this Agreement and the Purchase Agreement and as of each Sale Date prior to the related MSR Transfer Date, except as set forth herein with respect to the representations of Nationstar in its capacity as Subservicer. Such representations and warranties shall survive the sale and/or contribution, assignment, transfer and conveyance of any Initial Receivables to the Depositor prior to the Effective Date, or the sale, assignment, transfer and conveyance of any Nationstar Additional Receivables and any other related Nationstar Transferred Assets to Advance Purchaser. Nationstar affirms all representations and warranties and covenants that it has heretofore made under the Original Receivables Sale Agreement. Additionally, Nationstar affirms all representations and warranties and covenants that it has made under the Purchase Agreement.
(a) General Representations, Warranties and Covenants .
(i) Organization and Good Standing . Nationstar is a limited liability company duly organized and validly existing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and now has and until the final MSR Transfer Date, will continue to have, power, authority and legal right to acquire, own, hold, transfer, assign and convey the Nationstar Additional Receivables.
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(ii) Due Qualification . Nationstar is and will continue to be duly qualified to do business as a limited liability company in good standing, and has obtained and will keep in full force and effect all necessary licenses, permits and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, licenses, permits or approvals and as to which the failure to obtain or to keep in full force and effect such licenses, permits or approvals would have a material and adverse impact upon the value or collectability of the Nationstar Additional Receivables and such failure cannot be subsequently cured for the purposes of enforcing contracts.
(iii) Power and Authority . From the Effective Date and until the final MSR Transfer Date, Nationstar has and will continue to have all requisite limited liability company power and authority to own the Nationstar Additional Receivables, and Nationstar has and will continue to have all requisite limited liability company power and authority to execute and deliver this Agreement, the Purchase Agreement, each other Transaction Document to which it is a party and any and all other instruments and documents necessary to consummate the transactions contemplated hereby or thereby (collectively, the “ Nationstar Related Documents ”), and to perform each of its obligations under this Agreement and under the Nationstar Related Documents, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement by Nationstar, and the execution and delivery of each of the applicable Nationstar Related Documents by Nationstar, the performance by Nationstar of its obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby have each been duly authorized by Nationstar and no further limited liability company action or other actions are required to be taken by Nationstar in connection therewith.
(iv) Valid Transfer . Upon the execution and delivery of this Agreement, the related Assignment of Advance Receivables by each of the parties hereto and thereto and delivery of and the Designated Servicing Agreement Schedule, this Agreement and such Assignment of Advance Receivables shall evidence a valid sale and/or contribution, transfer, assignment and conveyance of the Nationstar Additional Advance Receivables as of the applicable Sale Date to Advance Purchaser prior to the final MSR Transfer Date, which is enforceable against creditors of and purchasers from Nationstar except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles. Upon the execution and delivery the Purchase Agreement, the Purchase Agreement shall evidence a valid sale, transfer, assignment and conveyance of the Nationstar Additional Deferred Servicing Fee Receivables as of the Effective Date to Advance Purchaser prior to the final MSR Transfer Date, which is enforceable against creditors of and purchasers from Nationstar except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
(v) Binding Obligation . The Purchase Agreement, this Agreement and each of the other Transaction Documents to which Nationstar is a party has been, or when delivered will have been, duly executed and delivered and each constitutes the legal, valid and binding obligation of Nationstar, enforceable against Nationstar, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
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(vi) Good Title . Immediately prior to each purchase of Nationstar Additional Receivables hereunder or under the Purchase Agreement, as applicable, Nationstar is the legal and beneficial owner of each such Receivable and the related Nationstar Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens; and immediately upon the transfer and assignment thereof, Advance Purchaser will have good and marketable title to, with the right to sell and encumber, each Nationstar Additional Receivable, whether now existing or hereafter arising, together with the related Nationstar Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens.
(vii) Perfection .
(A) This Agreement and the Purchase Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Nationstar Additional Receivables and the related Nationstar Transferred Assets with respect thereto in favor of Advance Purchaser, which security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from Nationstar;
(B) Nationstar has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under the UCC in order to perfect the security interest in the Nationstar Additional Receivables and the related Nationstar Transferred Assets granted to Advance Purchaser hereunder and under the Purchase Agreement; and
(C) Nationstar has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Nationstar Additional Receivables and the related Nationstar Transferred Assets, other than under this Agreement and the Purchase Agreement, except pursuant to any agreement that has been terminated on or prior to the date hereof. Nationstar has not authorized the filing of and is not aware of any financing statement filed against it covering the Nationstar Additional Receivables and the related Nationstar Transferred Assets other than those filed in connection with this Agreement, the Purchase Agreement and the other Transaction Documents and those that have been terminated on or prior to the date hereof or for which the lien with respect to the Receivables has been released. Nationstar is not aware of any judgment or tax lien filings against it.
(viii) No Violation . Neither the execution, delivery and performance of this Agreement, the Purchase Agreement, the other Transaction Documents to which it is a party or the applicable Nationstar Related Documents by Nationstar, nor the consummation by Nationstar of the transactions contemplated hereby or thereby nor the fulfillment of or compliance with the terms and conditions of this Agreement, the Purchase Agreement, the Nationstar Related Documents or the other Transaction
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Documents to which Nationstar is a party (A) will violate the organizational documents of Nationstar, (B) will constitute a default (or an event which, with notice or lapse of time or both, would constitute a default), or result in a breach or acceleration of, any material indenture, agreement or other material instrument to which Nationstar or any of its Affiliates is a party or by which it or any of them is bound, or which may be applicable to Nationstar, (C) constitutes a default (whether with notice or lapse of time or both), or results in the creation or imposition of any Adverse Claim upon any of the property or assets of Nationstar under the terms of any of the foregoing, or (D) violates any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to Nationstar or its properties.
(ix) No Proceedings . There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to Nationstar’s knowledge, threatened, against Nationstar (A) in which a third party not affiliated with the Indenture Trustee or a Noteholder asserts the invalidity of any of the Transaction Documents, (B) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by any of the Transaction Documents, (C) seeking any determination or ruling that should reasonably be expected to affect materially and adversely the performance by Nationstar or its Affiliates of their obligations under, or the validity or enforceability of, any of the Transaction Documents or (D) relating to Nationstar or its Affiliates and which should reasonably be expected to affect adversely the federal income tax attributes of the Notes.
(x) Reserved.
(xi) Reserved.
(xii) No Violation of Exchange Act or Regulations T, U or X . None of the transactions contemplated in the Transaction Documents (including the use of the proceeds from the sale of the Notes) will result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.
(xiii) All Consents Obtained . All approvals, authorizations, consents, orders or other actions of any persons or of any governmental body or official required in connection with the execution and delivery by Nationstar of the Purchase Agreement, this Agreement and the Transaction Documents to which Nationstar is a party, the performance by Nationstar of the transactions contemplated by the Purchase Agreement, this Agreement and the other Transaction Documents to which it is a party and the fulfillment by Nationstar of the terms hereof and thereof, including without limitation, the transfer of Receivables from Nationstar to Advance Purchaser, have been obtained.
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(xiv) Not an Investment Company . Nationstar is not required to be registered as an “investment company” or a company “controlled” by a company required to be registered as an “investment company” within the meaning of the Investment Company Act, and none of the execution, delivery or performance of obligations under this Agreement, the Purchase Agreement or any of the Transaction Documents, or the consummation of any of the transactions contemplated thereby (including, without limitation, the sale of the Transferred Assets hereunder) will violate any provision of the Investment Company Act, or any rule, regulation or order issued by the Securities and Exchange Commission thereunder.
(xv) All Taxes, Fees and Charges Relating to Transaction and Transaction Documents Paid . Any taxes, fees and other governmental charges due and payable by Nationstar in connection with the execution and delivery of the Purchase Agreement, this Agreement and the transactions contemplated hereby have been or will be paid by Nationstar at or prior to the date of this Agreement.
(xvi) No Broker, Finder or Financial Adviser Other Than Pursuant to a Note Purchase Agreement . None of Nationstar nor any of its officers, directors, employees or agents has employed any broker, finder or financial adviser or incurred any liability for fees or commissions to any person except in connection with the offering, issuance or sale of the Notes of any Class (other than any Retained Notes) pursuant to a Note Purchase Agreement.
(xvii) Solvency . Nationstar, both prior to and after giving effect to each sale of Receivables with respect to the Designated Servicing Agreements on each Sale Date or on the Effective Date, as applicable prior to the final MSR Transfer Date, (1) is not, and will not be, “insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code), (2) is, and will be, able to pay its debts as they become due, and (3) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage.
(xviii) Information to Note Rating Agencies . All information provided by Nationstar to any Note Rating Agency, taken together, is true and correct in all material respects.
(xix) No Fraudulent Conveyance . Nationstar is selling the Nationstar Additional Receivables to Advance Purchaser in furtherance of its ordinary business purposes, with no intent to hinder, delay or defraud any of its creditors.
(xx) Ability to Perform Obligations . Nationstar does not believe, nor does it have any reasonable cause to believe, that it cannot perform each and every covenant contained in this Agreement.
(xxi) Information . No document, certificate or report furnished by Nationstar in writing pursuant to this Agreement, any other Transaction Document or in connection with the transactions contemplated hereby or thereby, taken together, contains or will contain when furnished any untrue statement of a material fact. There are no facts
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relating to and known by Nationstar which when taken as a whole may impair the ability of Nationstar to perform its obligations under this Agreement or any other Transaction Document, which have not been disclosed herein or in the certificates and other documents furnished by or on behalf of Nationstar pursuant hereto or thereto specifically for use in connection with the transactions contemplated hereby or thereby.
(xxii) Fair Consideration . The aggregate consideration received by Nationstar pursuant to this Agreement and the Purchase Agreement is fair consideration having reasonably equivalent value to the value of the Aggregate Receivables and the performance of the obligations of Nationstar, as receivables seller, hereunder.
(xxiii) Bulk Transfer . No sale, contribution, transfer, assignment or conveyance of Receivables by Nationstar to Advance Purchaser contemplated by this Agreement or the Purchase Agreement will be subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
(xxiv) Name . The legal name of Nationstar is as set forth in this Agreement and Nationstar does not have any trade names, fictitious names, assumed names or “doing business” names.
(xxv) Default . As of the Effective Date and until the final MSR Transfer Date, Nationstar is not in default (or subject to termination as servicer (prior to the respective MSR Transfer Dates)) under any material agreement, contract, instrument or indenture to which such Person is a party or by which it or its properties is or are bound (including without limitation, each Designated Servicing Agreement), or with respect to any order of any court, administrative agency, arbitrator or governmental body which should reasonably be expected to have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such agreement, contract, instrument or indenture, or with respect to any such order of any court, administrative agency, arbitrator or governmental body.
(xxvi) Repayment of Receivables . Nationstar has no reason to believe that at the time of the transfer of any Receivables to Advance Purchaser pursuant hereto or the Purchase Agreement prior to the final MSR Transfer Date, such Receivables will not be paid in full.
(xxvii) Reserved .
(xxviii) Eligible Subservicer . With respect to any Designated Servicing Agreement, on and after each MSR Transfer Date, Nationstar is an Eligible Subservicer.
(xxix) No Change in Condition of Nationstar . Since March 31, 2013, there has been no change in the business, operations, financial condition, properties or assets of Nationstar which would have a material adverse effect on its ability to perform its obligations under this Agreement, the Purchase Agreement or any other Transaction Document or materially adversely affect the transactions contemplated under this Agreement or any other Transaction Document to which it is a party.
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(xxx) Good Standing . Nationstar is in good standing to sell and service mortgage loans and no event has occurred which would make Nationstar unable to comply with eligibility requirements or which would require notification to any state or federal regulatory agency or body.
(xxxi) Compliance With Laws . Nationstar has complied or shall comply in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions or decrees to which it may be subject, except where the failure to so comply should not be reasonably expected to have an Adverse Effect or a material adverse effect on the financial condition or operations of Nationstar, or the ability of Nationstar to perform its obligations hereunder, under the Purchase Agreement or under any of the other Transaction Documents to which it is a party.
(xxxii) Accounting . Nationstar accounts for the transactions contemplated by this Agreement as a sale of the Receivables from Nationstar to Advance Purchaser.
(b) Representations, Warranties and Covenants of Nationstar Concerning the Initial Receivables and Nationstar Additional Receivables .
(i) Facility Eligible Receivables . Each Nationstar Receivable is payable in United States dollars, is a Facility Eligible Receivable and is transferred pursuant to a Designated Servicing Agreement that is a Facility Eligible Servicing Agreement (except those transferred pursuant to any Ineligible Designated Servicing Agreement), and, if it is an Advance Receivable, the Advance related to such Nationstar Receivable has been fully funded by Nationstar (or any predecessor servicer) using its own funds and/or Amounts Held for Future Distribution (to the extent permitted under the related Designated Servicing Agreement) and/or amounts received by Nationstar from Advance Purchaser under this Agreement; provided that notwithstanding the foregoing, Nationstar makes no representation or warranty (i) as to the status of title or any interest of the Depositor, the Issuer or the Indenture Trustee to or in any Nationstar Additional Receivables, (ii) with respect to any transfer of Receivable by Advance Purchaser, the Depositor or the Issuer, (iii) as to any actions or inactions of Advance Purchaser, the Depositor or the Issuer concerning the Receivables, (iv) as to clause (vii) of the definition of “Facility Eligible Receivable,” (except to the extent covered in other representations by Nationstar in this Agreement). (v) that any determination of the Administrative Agent in clause (xiv) of the definition of “Facility Eligible Receivable” has been satisfied or (vi) with respect to Receivables arising under any Ineligible Designated Servicing Agreement. Each Receivable arises from an Advance or Deferred Servicing Fee for which Nationstar is entitled to reimbursement or payment, as applicable, pursuant to a Designated Servicing Agreement.
(ii) Assignment Permitted under Servicing Agreements . Each Nationstar Receivable arising under a Designated Servicing Agreement is fully transferable and such transfer will not violate the terms of, or require the consent of any Person under the related Designated Servicing Agreement or any other document or agreement to which Nationstar is a party or to which its assets or properties are subject.
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(iii) Schedule of Receivables . The information set forth in the Schedule of Receivables hereto shall be true and correct as of the date of this Agreement and each Funding Date.
(iv) No Fraud . As of any Sale Date through the final MSR Transfer Date, with respect to the Nationstar Receivables transferred on such date, no Receivable has been identified by Nationstar or reported to Nationstar by the related MBS Trustee as having resulted from fraud perpetrated by any Person.
(v) No Impairment of Nationstar’s Rights . As of the Effective Date, or as of any Sale Date with respect to any Nationstar Receivables sold by Nationstar through the final MSR Transfer Date on such date, neither Nationstar nor any other Person has taken any action that, or failed to take any action the omission of which, would materially impair its rights or the rights of its assignees, with respect to any Nationstar Receivables.
(vi) No Defenses . As of the related Sale Date through the final MSR Transfer Date, each Nationstar Receivable represents valid entitlement to be paid, has not been repaid in whole or in part or been compromised, adjusted, extended, satisfied, subordinated, rescinded, waived, amended or modified, and is not subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set-off, counterclaim, defense, waiver, amendment or modification by any Person.
(vii) No Action to Impair Collectability . Nationstar has not taken (or omitted to take) and will not take (or omit to take), and has no notice that any other Person has taken (or omitted to take) or will take (or omit to take) any action that could impair the collectability of any Nationstar Receivable.
(viii) No Pending Proceedings . There are no proceedings pending, or, to the best of Nationstar’s knowledge, threatened, wherein any governmental agency has (A) alleged that any Nationstar Receivable is illegal or unenforceable, (B) asserted the invalidity of any Nationstar Receivable or (C) sought any determination or ruling that might adversely affect the payment or enforceability of any Receivable.
(ix) Nationstar’s Reporting Obligations . With respect to each Nationstar Receivable, Nationstar is not aware of any circumstances which could reasonably be expected to make it unable to perform its reporting obligations as set forth in the Indenture in any material respect.
(x) UCC Classification . No Nationstar Receivable is secured by “real property” or “fixtures” or evidenced by an “instrument” under and as defined in the UCC. The Nationstar Receivables constitute “general intangibles,” “accounts,” or “payment intangibles” within the meaning of the applicable UCC.
(xi) Enforceability; Compliance with Laws . Each Nationstar Receivable is enforceable in accordance with its terms set forth in the related Designated Servicing Agreement. Each Advance complied with all applicable laws, including those relating to consumer protection, is valid and enforceable and, at the time it is sold to Advance Purchaser, will not be subject to any set-off, counterclaim or other defense to payment by the Obligor, the related securitization trust, the related MBS Trustee, or any other party.
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(xii) No Consent Required . Each Nationstar Receivable is assignable by Nationstar, and by Advance Purchaser and its successors and assigns, without the consent of any other Person (except any such consent that shall have been obtained), and upon acquiring the Receivables Advance Purchaser will have the right to pledge the Nationstar Receivables without the consent of any other Person (except any such consent that shall have been obtained) and without any other restrictions on such pledge.
(xiii) No Government Receivables . No Nationstar Receivable is due from the United States of America or any state or from any agency, department or instrumentality of the United States of America or any state thereof.
(c) Survival . It is understood and agreed that the representations and warranties set forth in Section 4(a) and Section 4(b) shall continue throughout the term of this Agreement.
It is understood and agreed that the representations and warranties made by Nationstar, as initial receivables seller and as servicer (prior to the respective MSR Transfer Dates), pursuant to this Agreement, on which the Depositor and the Issuer relied in accepting the Initial Receivables, and pursuant to this Agreement and the Purchase Agreement, on which Advance Purchaser, the Depositor and the Issuer are relying in accepting the Nationstar Additional Receivables, on which Advance Purchaser and the Depositor is relying in executing this Agreement, on which the Issuer is relying in executing the Receivables Pooling Agreement and on which the Noteholders are relying in purchasing the Notes, and the rights and remedies of Advance Purchaser and its assignees under this Agreement and the Purchase Agreement against Nationstar pursuant to this Agreement, inure to the benefit of Advance Purchaser, the Depositor, the Issuer, the Indenture Trustee for the benefit of the Noteholders, as the assignees of Advance Purchaser’s rights hereunder and under the Purchase Agreement. Such representations and warranties and the rights and remedies for the breach thereof shall survive the sale, assignment, transfer and conveyance of any Nationstar Receivables from Nationstar to Advance Purchaser and its assignees, and the conveyance thereof by Advance Purchaser to the Depositor and its assignees, and the pledge thereof by the Issuer to the Indenture Trustee for the benefit of the Noteholders and shall be fully exercisable by the Indenture Trustee for the benefit of the Noteholders.
(d) Remedies Upon Breach . Nationstar shall inform Advance Purchaser, the Indenture Trustee and the Administrative Agent promptly, in writing, upon the discovery of any breach of its representations, warranties or covenants hereunder. Unless such breach shall have been cured or waived within thirty (30) days after the earlier to occur of the discovery of such breach by Nationstar or receipt of written notice of such breach by Nationstar, such that, in the case of a representation and warranty, such representation and warranty shall be true and correct in all material respects as if made on such day, and Nationstar shall have delivered to Advance Purchaser an officer’s certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct or the breach was otherwise cured, Nationstar shall indemnify its assignees (including Advance Purchaser, the Depositor, the Issuer, the Indenture Trustee and each of their respective assignees), against and hold its assignees (including Advance Purchaser, the Depositor, the Issuer, the Indenture Trustee and
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each of their respective assignees) harmless from any cost, liability and expense, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred in enforcement proceedings between the parties or otherwise, incurred as a result of, or arising from, such breach, the amount of which shall equal the Receivables Balance of any affected Nationstar Receivable and each such purchase or indemnification amount to be paid hereunder, an “ Indemnity Payment ”. This Section 4(d) sets forth the exclusive remedy for a breach of representation, warranty or covenant by Nationstar, pertaining to a Nationstar Receivable sold by Nationstar. Notwithstanding the foregoing, the breach of any representation, warranty or covenant shall not be waived by the Issuer under any circumstances without the consent of the Majority Holders of all Outstanding Notes.
Section 5. Representations, Warranties and Certain Covenants of Advance Purchaser, as Servicer (on and after the respective MSR Transfer Dates) and as Receivables Seller.
Advance Purchaser, as receivables seller and as servicer (on and after the respective MSR Transfer Dates), hereby makes the following representations, warranties and covenants for the benefit of the Depositor, the Issuer, and the Indenture Trustee for the benefit of the Noteholders, on which the Depositor is relying in purchasing the Aggregate Receivables and executing this Agreement, on which the Issuer is relying in purchasing the Aggregate Receivables and executing the Receivables Pooling Agreement, and on which the Noteholders are relying in purchasing the Notes. The representations are made as of the date of this Agreement, and as of each Sale Date. Such representations and warranties shall survive the sale and/or contribution, assignment, transfer and conveyance of any Receivables and any other related Transferred Assets to the Depositor and the Issuer.
(a) General Representations, Warranties and Covenants .
(i) Organization and Good Standing . Advance Purchaser is a limited liability company duly organized and validly existing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and now has and so long as any Notes are outstanding, will continue to have, power, authority and legal right to acquire, own, hold, transfer, assign and convey the Receivables.
(ii) Due Qualification . Advance Purchaser is and will continue to be duly qualified to do business as a limited liability company in good standing, and has obtained and will keep in full force and effect all necessary licenses, permits and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, licenses, permits or approvals and as to which the failure to obtain or to keep in full force and effect such licenses, permits or approvals would have a material and adverse impact upon the value or collectability of the Receivables and such failure cannot be subsequently cured for the purposes of enforcing contracts.
(iii) Power and Authority . Advance Purchaser has and will continue to have all requisite limited liability company power and authority to own the Receivables, and
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Advance Purchaser has and will continue to have all requisite limited liability company power and authority to execute and deliver this Agreement, the initial Designated Servicing Agreement Schedule and each subsequent Designated Servicing Agreement Schedule, each other Transaction Document to which it is a party and any and all other instruments and documents necessary to consummate the transactions contemplated hereby or thereby (collectively, the “ Advance Purchaser Related Documents ”), and to perform each of its obligations under this Agreement and under the Advance Purchaser Related Documents, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement by Advance Purchaser, and the execution and delivery of each of the Related Documents by Advance Purchaser, the performance by Advance Purchaser of its obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby have each been duly authorized by Advance Purchaser and no further limited liability company action or other actions are required to be taken by Advance Purchaser in connection therewith.
(iv) Valid Transfer . Upon the execution and delivery of this Agreement, each Assignment of Receivables and the Designated Servicing Agreement Schedule by each of the parties hereto, this Agreement shall evidence a valid sale, transfer, assignment and conveyance of the Additional Receivables as of the applicable Sale Date to the Depositor, which is enforceable against creditors of and purchasers from Advance Purchaser except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
(v) Binding Obligation . This Agreement and each of the other Transaction Documents to which Advance Purchaser is a party has been, or when delivered will have been, duly executed and delivered and constitutes the legal, valid and binding obligation of Advance Purchaser, enforceable against Advance Purchaser, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
(vi) Good Title . Immediately prior to each Purchase of Receivables hereunder, Advance Purchaser is the legal and beneficial owner of each such Receivable and the related Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens; and immediately upon the transfer and assignment thereof, the Depositor and its assignees will have good and marketable title to, with the right to sell and encumber, each Receivable, whether now existing or hereafter arising, together with the related Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens.
(vii) Perfection .
(A) This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Aggregate Receivables and the related Transferred Assets with respect thereto in favor of the Depositor, which security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from Advance Purchaser;
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(B) Advance Purchaser has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under the UCC in order to perfect the security interest in the Aggregate Receivables and the related Transferred Assets granted to the Depositor hereunder; and
(C) Advance Purchaser has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Aggregate Receivables and the related Transferred Assets, other than under this Agreement, except pursuant to any agreement that has been terminated on or prior to the date hereof. Advance Purchaser has not authorized the filing of and is not aware of any financing statement filed against it, the Depositor or the Issuer covering the Aggregate Receivables and the related Transferred Assets other than those filed in connection with this Agreement and the other Transaction Documents and those that have been terminated on or prior to the date hereof or for which the lien with respect to the Receivables has been released. Advance Purchaser is not aware of any judgment or tax lien filings against it.
(viii) No Violation . Neither the execution, delivery and performance of this Agreement, the other Transaction Documents or the Related Documents by Advance Purchaser, nor the consummation by Advance Purchaser of the transactions contemplated hereby or thereby nor the fulfillment of or compliance with the terms and conditions of this Agreement, the Related Documents or the other Transaction Documents to which Advance Purchaser is a party (A) will violate the organizational documents of Advance Purchaser, (B) will constitute a default (or an event which, with notice or lapse of time or both, would constitute a default), or result in a breach or acceleration of, any material indenture, agreement or other material instrument to which Advance Purchaser or any of its Affiliates is a party or by which it or any of them is bound, or which may be applicable to Advance Purchaser, (C) constitutes a default (whether with notice or lapse of time or both), or results in the creation or imposition of any Adverse Claim upon any of the property or assets of Advance Purchaser under the terms of any of the foregoing, or (D) violates any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to Advance Purchaser or its properties.
(ix) No Proceedings . There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to Advance Purchaser’s knowledge, threatened, against Advance Purchaser (A) in which a third party not affiliated with the Indenture Trustee or a Noteholder asserts the invalidity of any of the Transaction Documents, (B) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by any of the Transaction Documents, (C) seeking any determination or ruling that should reasonably be expected to affect materially and adversely the performance by Advance Purchaser or its Affiliates of their obligations under, or the validity or enforceability of, any of the Transaction Documents or (D) relating to Advance Purchaser or its Affiliates and which should reasonably be expected to affect adversely the federal income tax attributes of the Notes.
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(x) Ownership of Depositor . As of the Effective Date, Advance Purchaser will acquire from Nationstar 100% of the membership interest in the Depositor. No Person other than Advance Purchaser has any rights to acquire membership interests in the Depositor. Advance Purchaser shall not assign, sell, convey or otherwise transfer its ownership of the membership interest in the Depositor, without the prior written consent of the Administrative Agent, which consent shall not be unreasonably withheld, it being understood that the Administrative Agent shall consider, among other things, whether there continues to be adequate consideration for the Receivables transfers from Advance Purchaser to the Depositor, following any such transfer.
(xi) Ownership of Issuer . 100% of the Owner Trust Certificate of the Issuer is owned by the Depositor. No Person other than the Depositor has any rights to acquire all or any portion of the Owner Trust Certificate in the Issuer.
(xii) No Violation of Exchange Act or Regulations T, U or X . None of the transactions contemplated in the Transaction Documents (including the use of the proceeds from the sale of the Notes) will result in a violation of Section 7 of the Exchange Act, or any regulations issued pursuant thereto, including Regulations T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R., Chapter II.
(xiii) All Consents Obtained . All approvals, authorizations, consents, orders or other actions of any persons or of any governmental body or official required in connection with the execution and delivery by Advance Purchaser or the Depositor of this Agreement and the Transaction Documents to which Advance Purchaser, the Depositor or the Issuer is a party, the performance by Advance Purchaser of the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party and the fulfillment by Advance Purchaser of the terms hereof and thereof, including without limitation, the transfer of Receivables from Advance Purchaser to the Depositor and from the Depositor to the Issuer and the pledge thereof by the Issuer to the Indenture Trustee, have been obtained.
(xiv) Not an Investment Company . None of Advance Purchaser, the Depositor, the Issuer nor the Trust Estate is required to be registered as an “investment company” or a company “controlled” by a company required to be registered as an “investment company” within the meaning of the Investment Company Act, and none of the execution, delivery or performance of obligations under this Agreement or any of the Transaction Documents, or the consummation of any of the transactions contemplated thereby (including, without limitation, the sale of the Transferred Assets hereunder) will violate any provision of the Investment Company Act, or any rule, regulation or order issued by the Securities and Exchange Commission thereunder.
(xv) All Taxes, Fees and Charges Relating to Transaction and Transaction Documents Paid . Any taxes, fees and other governmental charges due and payable by Advance Purchaser, the Depositor or the Issuer in connection with the execution and delivery of this Agreement and the transactions contemplated hereby have been or will be paid by Advance Purchaser or the Depositor at or prior to the date of this Agreement.
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(xvi) No Broker, Finder or Financial Adviser Other Than Pursuant to a Note Purchase Agreement . None of Advance Purchaser nor any of its officers, directors, employees or agents has employed any broker, finder or financial adviser or incurred any liability for fees or commissions to any person except in connection with the offering, issuance or sale of the Notes of any Class (other than any Retained Notes) pursuant to a Note Purchase Agreement.
(xvii) Solvency . Advance Purchaser, both prior to and after giving effect to each sale of Receivables with respect to the Designated Servicing Agreements on each Sale Date, (1) is not, and will not be, “insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code), (2) is, and will be, able to pay its debts as they become due, and (3) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage.
(xviii) Information to Note Rating Agencies . All information provided by Advance Purchaser to any Note Rating Agency, taken together, is true and correct in all material respects.
(xix) No Fraudulent Conveyance . Advance Purchaser is selling the Aggregate Receivables to the Depositor in furtherance of its ordinary business purposes, with no intent to hinder, delay or defraud any of its creditors.
(xx) Ability to Perform Obligations . Advance Purchaser does not believe, nor does it have any reasonable cause to believe, that it cannot perform each and every covenant contained in this Agreement.
(xxi) Information . No document, certificate or report furnished by Advance Purchaser in writing pursuant to this Agreement, any other Transaction Document or in connection with the transactions contemplated hereby or thereby, taken together, contains or will contain when furnished any untrue statement of a material fact. There are no facts relating to and known by Advance Purchaser which when taken as a whole may impair the ability of Advance Purchaser to perform its obligations under this Agreement or any other Transaction Document, which have not been disclosed herein or in the certificates and other documents furnished by or on behalf of Advance Purchaser pursuant hereto or thereto specifically for use in connection with the transactions contemplated hereby or thereby.
(xxii) Fair Consideration . The aggregate consideration received by Advance Purchaser, as receivables seller, pursuant to this Agreement is fair consideration having reasonably equivalent value to the value of the Aggregate Receivables and the performance of the obligations of Advance Purchaser, as receivables seller, hereunder.
(xxiii) Bulk Transfer . No sale, contribution, transfer, assignment or conveyance of Receivables by Advance Purchaser, as receivables seller, to the Depositor contemplated by this Agreement or by the Depositor to the Issuer pursuant to the Receivables Pooling Agreement will be subject to the bulk transfer or any similar statutory provisions in effect in any applicable jurisdiction.
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(xxiv) Name . The legal name of Advance Purchaser is as set forth in this Agreement and Advance Purchaser does not have any trade names, fictitious names, assumed names or “doing business” names.
(xxv) Default . None of Advance Purchaser, the Depositor or the Issuer is in default (or, with respect to Advance Purchaser, subject to termination as servicer (on and after the respective MSR Transfer Dates)) under any material agreement, contract, instrument or indenture to which such Person is a party or by which it or its properties is or are bound (including without limitation, each Designated Servicing Agreement), or with respect to any order of any court, administrative agency, arbitrator or governmental body which should reasonably be expected to have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such agreement, contract, instrument or indenture, or with respect to any such order of any court, administrative agency, arbitrator or governmental body.
(xxvi) Repayment of Receivables . Advance Purchaser has no reason to believe that at the time of the transfer of any Receivables to the Depositor pursuant hereto, such Receivables will not be paid in full.
(xxvii) [Reserved].
(xxviii) [Reserved].
(xxix) No Change in Condition of Advance Purchaser . Since the date of its formation, there has been no change in the business, operations, financial condition, properties or assets of Advance Purchaser which would have a material adverse effect on its ability to perform its obligations under this Agreement or any other Transaction Document or materially adversely affect the transactions contemplated under this Agreement or any other Transaction Document.
(xxx) Good Standing . Advance Purchaser is in good standing to sell and service mortgage loans and no event has occurred which would make Advance Purchaser unable to comply with eligibility requirements or which would require notification to any state or federal regulatory agency or body.
(xxxi) Compliance With Laws . Advance Purchaser has complied or shall comply in all respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions or decrees to which it may be subject, except where the failure to so comply should not be reasonably expected to have an Adverse Effect or a material adverse effect on the financial condition or operations of Nationstar, or the ability of Advance Purchaser, the Depositor or the Issuer to perform their respective obligations hereunder or under any of the other Transaction Documents.
(xxxii) Accounting . Advance Purchaser accounts for the transactions contemplated by this Agreement as a sale from Nationstar to the Depositor, except to the extent that such sales are not recognized under GAAP due to consolidated financial reporting.
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(xxxiii) Appointment of Subservicers . Advance Purchaser shall not appoint any Subservicer other than Nationstar unless and until each rating agency that rated the related mortgage-backed securities as stated in the documentation for the related securitization trust (if applicable to the related Mortgage Pool), shall have delivered written confirmation that the appointment of such Subservicer will not result in a reduction of the then-current ratings of such securities, if rating agency confirmation is required for the appointment of a subservicer under the related Servicing Agreement.
(b) Representations, Warranties and Covenants of Advance Purchaser Concerning the Receivables .
(i) Facility Eligible Receivables . Each Receivable is payable in United States dollars, is a Facility Eligible Receivable and is transferred pursuant to a Designated Servicing Agreement that is a Facility Eligible Servicing Agreement (except those transferred pursuant to any Ineligible Designated Servicing Agreement); provided that notwithstanding the foregoing, Advance Purchaser makes no representation or warranty with respect to Receivables arising under any Ineligible Designated Servicing Agreement. Each Receivable arises from an Advance or Deferred Servicing Fee for which Advance Purchaser is entitled to reimbursement or payment, as applicable, pursuant to a Designated Servicing Agreement.
(ii) Assignment Permitted under Servicing Agreements . Each Receivable arising under a Designated Servicing Agreement is fully transferable and such transfer will not violate the terms of, or require the consent of any Person under the related Designated Servicing Agreement or any other document or agreement to which Nationstar is a party or to which its assets or properties are subject.
(iii) Schedule of Receivables . The information set forth in the Schedule of Receivables hereto shall be true and correct as of the date of this Agreement and each Funding Date.
(iv) No Fraud . As of any Sale Date, with respect to the Receivables transferred on such date, no Receivable has been identified by Advance Purchaser or reported to Nationstar by the related MBS Trustee as having resulted from fraud perpetrated by any Person.
(v) No Impairment of Advance Purchaser’s Rights . As of the Effective Date, or as of any Sale Date with respect to any Receivables sold on such date, neither Advance Purchaser nor any other Person has taken any action that, or failed to take any action the omission of which, would materially impair its rights or the rights of its assignees, with respect to any Receivables.
(vi) No Defenses . As of the related Sale Date, each Receivable represents valid entitlement to be paid, has not been repaid in whole or in part or been compromised, adjusted, extended, satisfied, subordinated, rescinded, waived, amended or modified, and is not subject to compromise, adjustment, extension, satisfaction, subordination, rescission, set-off, counterclaim, defense, waiver, amendment or modification by any Person.
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(vii) No Action to Impair Collectability . Advance Purchaser has not taken (or omitted to take) and will not take (or omit to take), and has no notice that any other Person has taken (or omitted to take) or will take (or omit to take) any action that could impair the collectability of any Receivable.
(viii) No Pending Proceedings . There are no proceedings pending, or, to the best of Advance Purchaser’s knowledge, threatened, wherein any governmental agency has (A) alleged that any Receivable is illegal or unenforceable, (B) asserted the invalidity of any Receivable or (C) sought any determination or ruling that might adversely affect the payment or enforceability of any Receivable.
(ix) Advance Purchaser’s Reporting Obligations . With respect to each Receivable, Advance Purchaser is not aware of any circumstances which could reasonably be expected to make it unable to perform its reporting obligations as set forth in the Indenture in any material respect.
(x) UCC Classification . No Receivable is secured by “real property” or “fixtures” or evidenced by an “instrument” under and as defined in the UCC. The Aggregate Receivables constitute “general intangibles,” “accounts,” or “payment intangibles” within the meaning of the applicable UCC.
(xi) Enforceability; Compliance with Laws . Each Receivable is enforceable in accordance with its terms set forth in the related Designated Servicing Agreement. Each Advance complied with all applicable laws, including those relating to consumer protection, is valid and enforceable and, at the time it is sold to the Depositor, will not be subject to any set-off, counterclaim or other defense to payment by the Obligor, the related securitization trust, the related MBS Trustee, or any other party.
(xii) No Consent Required . Each Receivable is assignable by Advance Purchaser, and by the Depositor and its successors and assigns, without the consent of any other Person (except any such consent that shall have been obtained), and upon acquiring the Receivables the Issuer will have the right to pledge the Receivables without the consent of any other Person (except any such consent that shall have been obtained) and without any other restrictions on such pledge.
(xiii) No Government Receivables . No Receivable is due from the United States of America or any state or from any agency, department or instrumentality of the United States of America or any state thereof.
(c) Survival . It is understood and agreed that the representations and warranties set forth in Section 5(a) and Section 5(b) shall continue throughout the term of this Agreement.
It is understood and agreed that the representations and warranties made by Advance Purchaser, as receivables seller and as servicer (on and after the respective MSR Transfer Dates), pursuant to this Agreement, on which the Depositor and the Issuer are relying in accepting the
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Receivables, on which the Depositor is relying in executing this Agreement, on which the Issuer is relying in executing the Receivables Pooling Agreement and on which the Noteholders are relying in purchasing the Notes, and the rights and remedies of the Depositor and its assignees under this Agreement against Advance Purchaser pursuant to this Agreement, inure to the benefit of the Depositor, the Issuer, the Indenture Trustee for the benefit of the Noteholders, as the assignees of Advance Purchaser’s rights hereunder. Such representations and warranties and the rights and remedies for the breach thereof shall survive the sale and/or contribution, assignment, transfer and conveyance of any Receivables from Advance Purchaser to the Depositor and its assignees, and the pledge thereof by the Issuer to the Indenture Trustee for the benefit of the Noteholders and shall be fully exercisable by the Indenture Trustee for the benefit of the Noteholders.
(d) Remedies Upon Breach . Advance Purchaser shall inform the Indenture Trustee and the Administrative Agent promptly, in writing, upon the discovery of any breach of its representations, warranties or covenants hereunder. Unless such breach shall have been cured or waived within thirty (30) days after the earlier to occur of the discovery of such breach by Advance Purchaser or receipt of written notice of such breach by Advance Purchaser, such that, in the case of a representation and warranty, such representation and warranty shall be true and correct in all material respects as if made on such day, and Advance Purchaser shall have delivered to the Indenture Trustee an officer’s certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct or the breach was otherwise cured, Advance Purchaser shall indemnify its assignees (including the Depositor, the Issuer, the Indenture Trustee and each of their respective assignees), against and hold its assignees (including the Depositor, the Issuer, the Indenture Trustee and each of their respective assignees) harmless from any cost, liability and expense, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred in enforcement proceedings between the parties or otherwise, incurred as a result of, or arising from, such breach, the amount of which shall equal the Receivables Balance of any affected Receivable and each such purchase or indemnification amount to be paid hereunder, an “ Indemnity Payment ”. This Section 5(d) sets forth the exclusive remedy for a breach of representation, warranty or covenant by Advance Purchaser pertaining to a Receivable. Notwithstanding the foregoing, the breach of any representation, warranty or covenant shall not be waived by the Issuer under any circumstances without the consent of the Majority Holders of all Outstanding Notes.
Section 6. Termination.
This Agreement (a) may not be terminated prior to the termination of the Indenture and (b) may be terminated at any time thereafter by either party hereto upon written notice to the other parties.
Section 7. General Covenants of Nationstar, as Initial Receivables Seller (for certain Designated Servicing Agreements prior to the final MSR Transfer Date) and Servicer (for certain Designated Servicing Agreements prior to the final MSR Transfer Date).
Nationstar covenants and agrees that, from the date of this Agreement until the final MSR Transfer Date has occurred with respect to all Designated Servicing Agreements:
(a) Reserved .
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(b) Bankruptcy . Nationstar agrees that it shall comply with Section 14(j) . Nationstar has not engaged in and does not expect to engage in a business for which its remaining property represents an unreasonably small capitalization. Nationstar will not transfer any of the Nationstar Receivables with an intent to hinder, delay or defraud any Person.
(c) Legal Existence . Nationstar shall do or cause to be done all things necessary on its part to preserve and keep in full force and effect its existence in the jurisdiction of its formation, and to maintain each of its licenses, approvals, registrations and qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which cannot be subsequently cured for the purpose of enforcing contracts and which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the financial conditions, operations or the ability of Nationstar to perform its obligations hereunder or under any of the other Transaction Documents to which it is a party.
(d) Compliance With Laws . Nationstar shall comply in all material respects with all laws, rules, regulations and orders of any governmental authority applicable to its operation, the noncompliance with which would reasonably be expected to have a material adverse effect on the financial condition, operations or the ability of Nationstar to perform their obligations hereunder or under any of the other Transaction Documents to which it is a party.
(e) Taxes . Nationstar shall pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default; provided that Nationstar shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings, or so long as the failure to pay any such tax, assessment, charge or levy would not have a material adverse effect on the ability of Nationstar to perform its obligations hereunder. Nationstar shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(f) Compliance with Representations and Warranties . Nationstar covenants that it shall conduct its business such that it will continually comply with all of its representations and warranties made in Section 4(a) and in the Purchase Agreement.
(g) Amendments to Designated Servicing Agreements . Nationstar hereby covenants and agrees not to expressly consent to any amendment to the Designated Servicing Agreements except for such amendments that would have no adverse effect upon the collectability or timing of payment of any of the Nationstar Additional Receivables or the performance of Nationstar’s obligations under the Transaction Documents or otherwise adversely affect the interest of the Noteholders, any Supplement Credit Enhancement Provider or any Liquidity Provider, without the prior written consent of the Administrative Agent, the Majority Holders of the Outstanding Notes of each Series and of each Supplemental Credit Enhancement Provider. Nationstar will, within five (5) Business Days following the effectiveness of such amendments, deliver to the Indenture Trustee copies of all such amendments.
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(h) Reserved .
(i) Keeping of Records and Books of Account . Nationstar shall maintain accurate, complete and correct documents, books, records and other information which is reasonably necessary for the collection of all Nationstar Additional Receivables (including, without limitation, records adequate to permit the prompt identification of each new Receivable and all collections of, and adjustments to, each existing Receivable).
(j) Fidelity Bond and Errors and Omissions Insurance . Nationstar, as servicer, shall obtain and maintain at its own expense and keep in full force and effect so long as it is servicing the mortgage loans related to the Receivables, a blanket fidelity bond and an errors and omissions insurance policy with one or more insurers covering its officers and employees and other persons acting on its behalf in connection with its activities under the Transaction Documents meeting the criteria required by the Designated Servicing Agreements. Coverage of Nationstar, as servicer or subservicer under a policy or bond obtained by an Affiliate of Nationstar and providing the coverage required by this subsection (j) shall satisfy the requirements of this subsection (j) . Nationstar will promptly report in writing to Advance Purchaser any material changes that may occur in its fidelity bonds, if any, and/or its errors and omissions insurance policies, as the case may be, and will furnish to Advance Purchaser copies of all binders and polices or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect.
(k) No Adverse Claims, Etc. Against Receivables and Trust Property . Nationstar hereby covenants that, except for the transfer under the Purchase Agreement, the transfer hereunder and as of any date on which Nationstar Additional Receivables are transferred, it will not sell, pledge, assign or transfer to any other Person, or grant, create, incur or assume any Adverse Claim on any of the Nationstar Additional Receivables, or any interest therein (other than Permitted Liens). Nationstar shall notify Advance Purchaser and its designees of the existence of any Adverse Claim (other than as provided above) on any Receivable immediately upon discovery thereof; and Nationstar shall defend the right, title and interest of Advance Purchaser and its assignees in, to and under the Receivables against all claims of third parties claiming through or under it; provided , however , that nothing in this Section 7 shall be deemed to apply to any Adverse Claims for municipal or other local taxes and other governmental charges if such taxes or governmental charges shall not at the time be due and payable or if Nationstar shall currently be contesting the validity thereof in good faith by appropriate Proceedings. In addition, Nationstar shall take all actions as may be necessary to ensure that, if this Agreement were deemed to create, or does create, a security interest in the Receivables and the other Nationstar Transferred Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such until the Receivables Sale Termination Date.
(l) Taking of Necessary Actions . Nationstar shall perform all actions necessary to sell and/or contribute, assign, transfer and convey the Nationstar Additional Receivables to Advance Purchaser and its assigns, including the Issuer, including, without limitation, any necessary notifications to the MBS Trustees or other parties.
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(m) Ownership . Nationstar will take all necessary action to establish and maintain, irrevocably in Advance Purchaser, legal and equitable title to the Nationstar Additional Receivables and the related Nationstar Transferred Assets, free and clear of any Adverse Claim other than Permitted Liens.
(n) [RESERVED].
(o) Name Change, Offices and Records . In the event Nationstar makes any change to its name (within the meaning of Section 9-507(c) of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records, it shall notify Advance Purchaser, the Depositor, the Issuer and the Indenture Trustee thereof and (except with respect to a change of location of books and records) shall deliver to Advance Purchaser, the Depositor, the Issuer and the Indenture Trustee not later than thirty (30) days after the effectiveness of such change (i) if Advance Purchaser, the Depositor, the Issuer or the Indenture Trustee shall so request, an opinion of outside counsel to Nationstar, in form and substance reasonably satisfactory to Advance Purchaser, the Depositor, the Issuer and the Indenture Trustee, as to the grant or assignment from Nationstar to Advance Purchaser of a security interest in the Nationstar Additional Receivables, if the transfers thereof by Nationstar to Advance Purchaser are determined not to be true sales, and as to the perfection and priority of Advance Purchaser’s security interest in the Nationstar Additional Receivables in such event, and (ii) such other documents and instruments that Advance Purchaser, the Depositor, the Issuer or the Indenture Trustee may reasonably request in connection therewith and shall take all other steps to ensure that Advance Purchaser continues to have a first priority, perfected security interest in the Nationstar Additional Receivables and the related Nationstar Transferred Assets.
(p) Location of Jurisdiction of Organization and Records . In the case of a change in the jurisdiction of organization of Nationstar or in the case of a change in the “location” of Nationstar for purposes of Section 9-307 of the UCC, Nationstar must take all actions necessary or reasonably requested by Advance Purchaser to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by Advance Purchaser to further perfect or evidence the rights, claims or security interests of any of Nationstar or any assignee or beneficiary of Advance Purchaser’s rights under this Agreement.
(q) Servicing Policies . Nationstar shall provide notice to Advance Purchaser and the Administrative Agent fifteen (15) days prior to the effectiveness of any material changes to Nationstar’s policies or procedures relating to property valuation or stop advance modeling.
(r) Amendments to the Purchase Agreement . Nationstar, hereby covenants and agrees not to amend the Purchase Agreement in any way that relates to the sale, assignment, transfer and conveyance of Nationstar Transferred Assets hereunder, without the prior written consent of the Administrative Agent.
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Section 8. General Covenants of Advance Purchaser, as Receivables Seller and Servicer (on and after the respective MSR Transfer Dates).
Advance Purchaser covenants and agrees that, from the date of this Agreement until the termination of the Indenture:
(a) Reserved .
(b) Bankruptcy . Advance Purchaser agrees that it shall comply with Section 14(j) . Advance Purchaser has not engaged in and does not expect to engage in a business for which its remaining property represents an unreasonably small capitalization. Advance Purchaser will not transfer any of the Aggregate Receivables with an intent to hinder, delay or defraud any Person.
(c) Legal Existence . Advance Purchaser shall do or cause to be done all things necessary on its part to preserve and keep in full force and effect its existence in the jurisdiction of its formation, and to maintain each of its licenses, approvals, registrations and qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which cannot be subsequently cured for the purpose of enforcing contracts and which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the financial conditions, operations or the ability of Advance Purchaser, the Depositor or the Issuer to perform its obligations hereunder or under any of the other Transaction Documents.
(d) Compliance With Laws . Advance Purchaser shall comply in all material respects with all laws, rules, regulations and orders of any governmental authority applicable to its operation, the noncompliance with which would reasonably be expected to have a material adverse effect on the financial condition, operations or the ability of Advance Purchaser, the Depositor or the Issuer to perform their obligations hereunder or under any of the other Transaction Documents.
(e) Taxes . Advance Purchaser shall pay and discharge all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default; provided that Advance Purchaser shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings, or so long as the failure to pay any such tax, assessment, charge or levy would not have a material adverse effect on the ability of Advance Purchaser to perform its obligations hereunder. Advance Purchaser shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(f) Compliance with Representations and Warranties . Advance Purchaser covenants that it shall conduct its business such that it will continually comply with all of its representations and warranties made in Section 5(a) .
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(g) Amendments to Designated Servicing Agreements . Advance Purchaser hereby covenants and agrees not to expressly consent to any amendment to the Designated Servicing Agreements except for such amendments that would have no adverse effect upon the collectability or timing of payment of any of the Aggregate Receivables or the performance of Advance Purchaser’s, the Depositor’s or the Issuer’s obligations under the Transaction Documents or otherwise adversely affect the interest of the Noteholders, any Supplement Credit Enhancement Provider or any Liquidity Provider, without the prior written consent of the Administrative Agent, the Majority Holders of the Outstanding Notes of each Series and of each Supplemental Credit Enhancement Provider. Advance Purchaser will, within five (5) Business Days following the effectiveness of such amendments, deliver to the Indenture Trustee copies of all such amendments.
(h) Maintenance of Security Interest . Advance Purchaser shall from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time the interest of the Depositor, the Issuer, the Indenture Trustee and the Noteholders and any Supplemental Credit Enhancement Provider and any Liquidity Provider in all of the Aggregate Receivables is fully protected in accordance with the UCC.
(i) Keeping of Records and Books of Account . Advance Purchaser shall maintain accurate, complete and correct documents, books, records and other information which is reasonably necessary for the collection of all Aggregate Receivables (including, without limitation, records adequate to permit the prompt identification of each new Receivable and all collections of, and adjustments to, each existing Receivable).
(j) Fidelity Bond and Errors and Omissions Insurance . Advance Purchaser shall cause the Servicer or the Subservicer shall obtain and maintain at its own expense and keep in full force and effect so long as it is servicing the mortgage loans related to the Receivables, a blanket fidelity bond and an errors and omissions insurance policy with one or more insurers covering its officers and employees and other persons acting on its behalf in connection with its activities under the Transaction Documents meeting the criteria required by the Designated Servicing Agreements. In the case of Nationstar as Servicer or the Subservicer, coverage of Nationstar, as servicer or subservicer under a policy or bond obtained by an Affiliate of Nationstar and providing the coverage required by this subsection (j) shall satisfy the requirements of this subsection (j) . Advance Purchaser shall cause the Servicer or the Subservicer to promptly report in writing to the Depositor any material changes that may occur in its fidelity bonds, if any, and/or its errors and omissions insurance policies, as the case may be, and cause Nationstar to furnish to the Depositor copies of all binders and polices or certificates evidencing that such bonds, if any, and insurance policies are in full force and effect.
(k) No Adverse Claims, Etc. Against Receivables and Trust Property . Advance Purchaser hereby covenants that, except for the transfer hereunder and as of any date on which Additional Receivables are transferred, it will not sell, pledge, assign or transfer to any other Person, or grant, create, incur or assume any Adverse Claim on any of the Aggregate Receivables, or any interest therein (other than Permitted Liens). Advance Purchaser shall notify the Depositor and its designees of the existence of any Adverse Claim (other than as provided above) on any Receivable immediately upon discovery thereof; and Advance Purchaser shall
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defend the right, title and interest of the Depositor and its assignees in, to and under the Receivables against all claims of third parties claiming through or under it; provided , however , that nothing in this Section 8 shall be deemed to apply to any Adverse Claims for municipal or other local taxes and other governmental charges if such taxes or governmental charges shall not at the time be due and payable or if Advance Purchaser shall currently be contesting the validity thereof in good faith by appropriate Proceedings. In addition, Advance Purchaser shall take all actions as may be necessary to ensure that, if this Agreement were deemed to create, or does create, a security interest in the Receivables and the other Transferred Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such until the Receivables Sale Termination Date.
(l) Taking of Necessary Actions . Advance Purchaser shall perform all actions necessary to sell and/or contribute, assign, transfer and convey the Aggregate Receivables to the Depositor and its assigns, including the Issuer, including, without limitation, any necessary notifications to the MBS Trustees or other parties.
(m) Ownership . Advance Purchaser will take all necessary action to establish and maintain, irrevocably in the Depositor, legal and equitable title to the Aggregate Receivables and the related Transferred Assets, free and clear of any Adverse Claim (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) in all appropriate jurisdictions to perfect the Depositor’s interest in such Aggregate Receivables and related Transferred Assets and such other action to perfect, protect or more fully evidence the interest of the Depositor or the Indenture Trustee (as the Depositor’s assignee) may reasonably request) other than Permitted Liens.
(n) Depositors’ Reliance . Advance Purchaser acknowledges that the Indenture Trustee and the Noteholders are entering into the transactions contemplated by the Transaction Documents in reliance upon the Depositor’s and Issuer’s identity as a legal entity that is separate from it. Therefore, from and after the date of execution and delivery of this Agreement, Advance Purchaser will take all reasonable steps to maintain each of the Depositor’s and Issuer’s identity as a separate legal entity and to make it manifest to third parties that each of the Depositor and the Issuer is an entity with assets and liabilities distinct from those of Advance Purchaser. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, Advance Purchaser (i) will not hold itself out to third parties as liable for the debts of either the Depositor or the Issuer nor purport to own the Aggregate Receivables and other related Transferred Assets, (ii) will take all other actions necessary on its part to ensure that the facts and assumptions regarding it set forth in the opinion issued by Bingham McCutchen LLP, dated the Closing Date, relating to certain bankruptcy issues remain true and correct at all times.
(o) Name Change, Offices and Records . In the event Advance Purchaser makes any change to its name (within the meaning of Section 9-507(c) of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records, it shall notify the Depositor and the Indenture Trustee thereof and (except with respect to a change of location of books and records) shall deliver to the Indenture Trustee not later than thirty (30) days after the effectiveness of such change (i) such financing statements (Forms UCC1 and UCC3) which the Indenture Trustee (acting at the direction of the Administrative Agent) may reasonably request to
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reflect such name change, or change in type or jurisdiction of organization, (ii) if the Indenture Trustee shall so request, an opinion of outside counsel to Advance Purchaser, in form and substance reasonably satisfactory to the Indenture Trustee, as to the grant or assignment from the Receivables Seller to the Depositor of a security interest in the Aggregate Receivables, if the transfers thereof by Advance Purchaser to the Depositor are determined not to be true sales, and as to the perfection and priority of the Depositor’s security interest in the Aggregate Receivables in such event, and (iii) such other documents and instruments that the Indenture Trustee (acting at the direction of the Administrative Agent) may reasonably request in connection therewith and shall take all other steps to ensure that the Depositor continues to have a first priority, perfected security interest in the Aggregate Receivables and the related Transferred Assets.
(p) Location of Jurisdiction of Organization and Records . In the case of a change in the jurisdiction of organization of Advance Purchaser or in the case of a change in the “location” of Advance Purchaser for purposes of Section 9-307 of the UCC, Advance Purchaser must take all actions necessary or reasonably requested by the Depositor, the Issuer, the Administrative Agent or the Indenture Trustee to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Depositor, the Issuer, the Administrative Agent or the Indenture Trustee to further perfect or evidence the rights, claims or security interests of any of Advance Purchaser, the Depositor, the Issuer or any assignee or beneficiary of the Issuer’s rights under this Agreement, including the Indenture Trustee on behalf of the Noteholders under any of the Transaction Documents.
(q) Servicing Policies . Advance Purchaser shall cause the Servicer or the Subservicer to provide notice to the Administrative Agent fifteen (15) days prior to the effectiveness of any material changes to Nationstar’s policies or procedures relating to property valuation or stop advance modeling.
(r) Amendments to the Purchase Agreement . Advance Purchaser hereby covenants and agrees not to amend the Purchase Agreement in any way that relates to the sale and/or contribution, assignment, transfer and conveyance of Transferred Assets hereunder, without the prior written consent of the Administrative Agent.
Section 9. Grant Clause.
(a) It was intended that the conveyances by Nationstar of Nationstar’s right, title and interest in, to and under the Initial Receivables and of the Original Transferred Assets to the Depositor pursuant to this Agreement constituted, and shall be construed as, sales and not as grants of security interests to secure one or more loans. Further, it is intended that the conveyances by Nationstar on and after the Effective Date of Nationstar’s right, title and interest in, to and under the Nationstar Additional Advance Receivables and of the Nationstar Advance Receivable Transferred Assets to Advance Purchaser pursuant to this Agreement shall constitute, and shall be construed as, sales and not as grants of security interests to secure one or more loans. However, if any of such conveyances are deemed to be in respect of a loan, it is intended that: (a) the rights and obligations of the parties shall be established pursuant to the terms of this Agreement; (b) Nationstar has granted to the Depositor a first priority security interest in all of its right, title and interest in, to and under the Initial Receivables and Original Transferred Assets
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conveyed hereunder prior to the Effective Date to secure a debt equal to the purchase price paid for such Initial Receivables and Original Transferred Assets, and (c) Nationstar hereby grants to Advance Purchaser a first priority security interest in all of its right, title and interest in, to and under, whether now owned or hereafter acquired, such Nationstar Additional Advance Receivables and the Nationstar Advance Receivable Transferred Assets to secure payment of a debt equal to the purchase price paid for such Nationstar Additional Advance Receivables and the Nationstar Advance Receivable Transferred Assets; and (d) this Agreement shall constitute a security agreement under applicable law. Nationstar will, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in such the Initial Receivables and the Nationstar Additional Advance Receivables and the Original Transferred Assets and the Nationstar Advance Receivable Transferred Assets, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Nationstar will, at its own expense, make all initial filings on or about the Effective Date.
(b) It is the intention of the parties hereto that each transfer and assignment contemplated by this Agreement shall constitute an absolute sale or contribution, as applicable, of the related Aggregate Receivables from Advance Purchaser to the Depositor and that the Receivables shall not be part of Advance Purchaser’s estate or otherwise be considered property of Advance Purchaser in the event of the bankruptcy, receivership, insolvency, liquidation, conservatorship or similar proceeding relating to Advance Purchaser or any of its property. However, if such conveyance is deemed to be in respect of a loan, it is intended that: (a) the rights and obligations of the parties shall be established pursuant to the terms of this Agreement; (b) Advance Purchaser hereby grants to the Depositor a first priority security interest in all of its right, title and interest in, to and under, whether now owned or hereafter acquired, the Aggregate Receivables and the other Transferred Assets to secure payment of such loan; and (c) this Agreement shall constitute a security agreement under applicable law. Advance Purchaser will, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Aggregate Receivables and the other Transferred Assets to secure payment or performance of an obligation, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. Advance Purchaser will, at its own expense, make all initial filings on or about the Effective Date, and shall forward a copy of such filing or filings to the Indenture Trustee.
Each of Nationstar and Advance Purchaser and their respective assignees, successors and designees hereby authorizes the Depositor and its assignees, successors and designees to file one or more UCC financing statements, financing statement amendments and continuation statements to perfect the security interests described herein and to maintain the perfection of the such security interests.
Section 10. Conveyance by Depositor; Grant by Issuer.
Each of the Depositor and the Issuer shall have the right, upon notice to but without the consent of Advance Purchaser, to Grant, in whole or in part, its interest under this Agreement with respect to the Receivables to the Issuer and to the Indenture Trustee, respectively, and the
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Indenture Trustee then shall succeed to all rights of the Depositor under this Agreement. All references to the Depositor in this Agreement shall be deemed to include its assignee or designee, specifically including the Issuer and the Indenture Trustee.
Section 11. Protection of Indenture Trustee’s Security Interest in Trust Estate.
(a) Advance Purchaser shall maintain accounts and records as to each Receivable accurately and in sufficient detail to permit the reader thereof to know at any time following reasonable prior notice delivered to it, the status of such Receivable, including payments and recoveries made and payments owing. The Schedule of Receivables has been delivered to the Indenture Trustee and shall remain in its possession or control.
(b) Advance Purchaser will maintain its computer records so that, from and after the Grant of the security interest under the Indenture, Advance Purchaser’s master computer records (including any back-up archives) that refer to any Receivables indicate that the Receivables are owned by the Issuer and pledged to the Indenture Trustee on behalf of the Noteholders. Indication of the Indenture Trustee’s interest in a Receivable shall be deleted from or modified on Advance Purchaser’s records when, and only when, the Receivable has been paid in full or released from the lien of the Indenture pursuant to the Indenture.
Section 12. Indemnification by Nationstar.
(a) Without limiting any other rights that a Nationstar Indemnified Party may have hereunder or under applicable law, Nationstar agrees to indemnify each Nationstar Indemnified Party from and against any and all Nationstar Indemnification Amounts which may be imposed on, incurred by or asserted against a Nationstar Indemnified Party in any way arising out of or relating to any breach of Nationstar’s obligations under this Agreement or Nationstar’s ownership of the Initial Receivables or the Nationstar Additional Receivables, excluding, however, Nationstar Indemnification Amounts to the extent resulting from (1) the negligence or willful misconduct on the part of such Nationstar Indemnified Party or (2) the failure of a particular Mortgage Pool to generate sufficient cash flow to pay the Receivables attributable to that Mortgage Pool.
(b) Without limiting or being limited by the foregoing, Nationstar shall pay on demand to each Nationstar Indemnified Party any and all amounts necessary to indemnify such Nationstar Indemnified Party from and against any and all Nationstar Indemnification Amounts relating to or resulting from:
(i) reliance on any representation or warranty made by Nationstar under or in connection with this Agreement, any other Transaction Document, any report or any other information delivered by it pursuant hereto, which shall have been incorrect in any material respect when made or deemed made or delivered;
(ii) the failure by Nationstar to comply with any term, provision or covenant contained in this Agreement, or any agreement executed by it in connection with this Agreement or any other Transaction Document or with any applicable law, rule or regulation with respect to any Receivable, or the nonconformity of any Receivable with any such applicable law, rule or regulation; or
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(iii) the failure of this Agreement to vest and maintain vested in Advance Purchaser, or to transfer, to Advance Purchaser, legal and equitable title to and ownership of the Nationstar Additional Receivables which are, or are purported to be, Receivables, together with all collections in respect thereof, free and clear of any adverse claim (except as permitted hereunder) whether existing at the time of the transfer of such Receivable or at any time thereafter.
(c) Any Nationstar Indemnification Amounts subject to the indemnification provisions of this Section 12 shall be paid to the Nationstar Indemnified Party within five (5) Business Days following demand therefor. “ Nationstar Indemnified Party ” means any of Advance Purchaser, the Depositor, the Issuer and the Indenture Trustee. “ Nationstar Indemnification Amounts ” means any and all claims, losses, liabilities, obligations, damages, penalties, actions, judgments, suits, and related reasonable costs and reasonable expenses of any nature whatsoever, including reasonable attorneys’ fees and disbursements, incurred by a Nationstar Indemnified Party with respect to this Agreement as a result of a breach by Nationstar, as described in Section 12(a) , including without limitation, the enforcement hereof.
(d) (i) Promptly after a Nationstar Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which an indemnity may be claimed against Nationstar under this Section 12 , the Nationstar Indemnified Party shall notify Nationstar in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify Nationstar shall not relieve Nationstar from any liability which it may have hereunder or otherwise except to the extent that Nationstar is prejudiced by such failure so to notify Nationstar.
(ii) Nationstar will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Nationstar Indemnified Party, and, after notice from Nationstar to such Nationstar Indemnified Party that Nationstar wishes to assume the defense of any such action, Nationstar will not be liable to such Nationstar Indemnified Party under this Section 12 for any legal or other expenses subsequently incurred by such Nationstar Indemnified Party in connection with the defense of any such action unless, (A) the defendants in any such action include both the Nationstar Indemnified Party and Nationstar, and the Nationstar Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to Nationstar, or one or more Nationstar Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both Nationstar and such Nationstar Indemnified Party, (B) Nationstar shall not have employed counsel reasonably satisfactory to the Nationstar Indemnified Party to represent the Nationstar Indemnified Party within a reasonable time after notice of commencement of the action, or (C) Nationstar shall have authorized the employment of counsel for the Nationstar Indemnified Party at Nationstar’s expense; then, in any such event, such Nationstar Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by Nationstar; provided , however , that Nationstar shall not in connection with any such action or separate but
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substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Nationstar Indemnified Parties. Each Nationstar Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with Nationstar in the defense of any such action or claim.
(iii) Nationstar shall not, without the prior written consent of any Nationstar Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Nationstar Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Nationstar Indemnified Party, unless such settlement includes an unconditional release of such Nationstar Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
Section 13. Indemnification by Advance Purchaser.
(a) Without limiting any other rights that an Indemnified Party may have hereunder or under applicable law, Advance Purchaser agrees to indemnify each Indemnified Party from and against any and all Indemnification Amounts which may be imposed on, incurred by or asserted against an Indemnified Party in any way arising out of or relating to any breach of Advance Purchaser’s obligations under this Agreement or the ownership of the Aggregate Receivables or in respect of any Receivable, excluding, however, Indemnification Amounts to the extent resulting from (1) the negligence or willful misconduct on the part of such Indemnified Party or (2) the failure of a particular Mortgage Pool to generate sufficient cash flow to pay the Receivables attributable to that Mortgage Pool.
(b) Without limiting or being limited by the foregoing, Advance Purchaser shall pay on demand to each Indemnified Party any and all amounts necessary to indemnify such Indemnified Party from and against any and all Indemnification Amounts relating to or resulting from:
(i) reliance on any representation or warranty made by Advance Purchaser under or in connection with this Agreement, any other Transaction Document, any report or any other information delivered by it pursuant hereto, which shall have been incorrect in any material respect when made or deemed made or delivered;
(ii) the failure by Advance Purchaser to comply with any term, provision or covenant contained in this Agreement, or any agreement executed by it in connection with this Agreement or any other Transaction Document or with any applicable law, rule or regulation with respect to any Receivable, or the nonconformity of any Receivable with any such applicable law, rule or regulation; or
(iii) the failure of this Agreement to vest and maintain vested in the Depositor, or to transfer, to the Depositor, legal and equitable title to and ownership of the Aggregate Receivables which are, or are purported to be, Receivables, together with all collections in respect thereof, free and clear of any adverse claim (except as permitted hereunder) whether existing at the time of the transfer of such Receivable or at any time thereafter.
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(c) Any Indemnification Amounts subject to the indemnification provisions of this Section 13 shall be paid to the Indemnified Party within five (5) Business Days following demand therefor. “ Indemnified Party ” means any of the Depositor, the Issuer and the Indenture Trustee. “ Indemnification Amounts ” means any and all claims, losses, liabilities, obligations, damages, penalties, actions, judgments, suits, and related reasonable costs and reasonable expenses of any nature whatsoever, including reasonable attorneys’ fees and disbursements, incurred by an Indemnified Party with respect to this Agreement as a result of a breach by Advance Purchaser, as described in Section 13(a) , including without limitation, the enforcement hereof.
(d) (i) Promptly after an Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which an indemnity may be claimed against Advance Purchaser under this Section 13 , the Indemnified Party shall notify Advance Purchaser in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify Advance Purchaser shall not relieve Advance Purchaser from any liability which it may have hereunder or otherwise except to the extent that Advance Purchaser is prejudiced by such failure so to notify Advance Purchaser.
(ii) Advance Purchaser will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, and, after notice from Advance Purchaser to such Indemnified Party that Advance Purchaser wishes to assume the defense of any such action, Advance Purchaser will not be liable to such Indemnified Party under this Section 13 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense of any such action unless, (A) the defendants in any such action include both the Indemnified Party and Advance Purchaser, and the Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to Advance Purchaser, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both Advance Purchaser and such Indemnified Party, (B) Advance Purchaser shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (C) Advance Purchaser shall have authorized the employment of counsel for the Indemnified Party at Advance Purchaser’s expense; then, in any such event, such Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by Advance Purchaser; provided , however , that Advance Purchaser shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with Advance Purchaser in the defense of any such action or claim.
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(iii) Advance Purchaser shall not, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
Section 14. Miscellaneous.
(a) Amendment . This Agreement may not be amended except by an instrument in writing signed by Nationstar (prior to the final MSR Transfer Date), Advance Purchaser and the Depositor upon delivery of an Issuer Tax Opinion and with the written consent of the Administrative Agent. In addition, so long as the Notes are outstanding, this Agreement may not be amended unless either (x) the Noteholders of more than the Series Required Noteholders of each Series shall have consented thereto or (y) (i) the amendment is for a purpose for which the Indenture could be amended without any Noteholder consent and (ii) Advance Purchaser shall have delivered to the Indenture Trustee an officer’s certificate to the effect that Advance Purchaser reasonably believes that any such amendment will not have a material Adverse Effect on the Holders of the Notes. Any such amendment requested by Advance Purchaser shall be at its own expense. Advance Purchaser shall promptly notify each Note Rating Agency of any amendment of this Agreement or of the Receivables Pooling Agreement, and shall furnish a copy of any such amendment to each such Note Rating Agency.
(b) Binding Nature; Assignment . The covenants, agreements, rights and obligations contained in this Agreement shall be binding upon the successors and assigns of Nationstar and Advance Purchaser and shall inure to the benefit of the successors and assigns of Advance Purchaser and the Depositor, and all persons claiming by, through or under Advance Purchaser or the Depositor.
(c) Entire Agreement . This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
(d) Severability of Provisions . Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.
(e) Governing Law . THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN
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CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(f) Counterparts . This Agreement may be executed in several counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the original or the same counterpart. Any counterpart hereof signed by a party against whom enforcement of this Agreement is sought shall be admissible into evidence as an original hereof to prove the contents thereof. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
(g) Indulgences; No Waivers . Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or future exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
(h) Headings Not to Affect Interpretation . The headings contained in this Agreement are for convenience of reference only, and they shall not be used in the interpretation hereof.
(i) Benefits of Agreement . Nothing in this Agreement, express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement.
(j) No Petition . Each of Nationstar and Advance Purchaser, by entering into this Agreement, agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all of the Notes, institute against the Depositor or the Issuer, or join in any institution against the Depositor or the Issuer of, Insolvency Proceedings or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes or this Agreement, or cause the Depositor or the Issuer to commence any reorganization, bankruptcy proceedings, or Insolvency Proceedings under any applicable state or federal law, including without limitation any readjustment of debt, or marshaling of assets or liabilities or similar proceedings. This Section 14(j) shall survive termination of this Agreement.
(k) WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN AN LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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Section 15. Consent and Acknowledgement of the Amendments.
100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes have consented to this Agreement and each such Noteholder confirms that (i) it is the sole Noteholder of all the Outstanding Notes related to such Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Agreement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Agreement shall become effective on the Effective Date.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Receivables Sale Agreement to be duly executed as of the date first above written.
| NATIONSTAR MORTGAGE LLC | ||
| By: |
/s/ Ellen Coleman |
|
| Name: | Ellen Coleman | |
| Title: | Executive Vice President | |
| ADVANCE PURCHASER LLC | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: | Cameron MacDougall | |
| Title: | Secretary | |
| NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC , as Depositor | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: | Cameron MacDougall | |
| Title: | Secretary | |
[NRZ Servicer Advance Receivables Trust BC - Signature Page to Amended and Restated Receivables Sale Agreement]
| CONSENTED TO BY: | ||
| BARCLAYS BANK PLC, as Committed Purchaser, as Conduit Administrative Agent, and as Administrative Agent of the Series 2013-VF1 Variable Funding Notes | ||
| By: |
/s/ Joseph O’Doherty |
|
| Name: | Joseph O’Doherty | |
| Title: | Managing Director | |
| SHEFFIELD RECEIVABLES CORPORATION , as Conduit Holder | ||
| By: Barclays Bank PLC, as attorney-in-fact | ||
| By: |
/s/ Joseph O’Doherty |
|
| Name: | Joseph O’Doherty | |
| Title: | Managing Director | |
[NRZ Servicer Advance Receivables Trust BC - Signature Page to Amended and Restated Receivables Sale Agreement]
Schedule 1-A
ASSIGNMENT OF ADVANCE RECEIVABLES
Dated as of [ ], 2013
This Assignment of Advance Receivables (this “ Assignment ”) is a schedule to and is hereby incorporated by this reference into a certain Amended and Restated Receivables Sale Agreement (the “ Agreement ”), dated as of December 17, 2013, by and among Nationstar Mortgage LLC, a Delaware limited liability company, as initial receivables seller (prior to the respective MSR Transfer Dates) and as servicer ((prior to the respective MSR Transfer Dates) (“ Nationstar ”), Advance Purchaser LLC, a Delaware limited liability company, as receivables seller and as servicer (on and after the respective MSR Transfer Dates) (“ Advance Purchaser ”), and NRZ Servicer Advance Facility Transferor BC, LLC, a Delaware limited liability company (the “ Depositor ”). All capitalized terms used herein shall have the meanings set forth in, or referred to in, the Agreement.
By its signature to this Assignment, Nationstar hereby sells, assigns, transfers and conveys to Advance Purchaser and its assignees, without recourse, but subject to the terms of the Agreement, all of its right, title and interest in, to and under its rights to reimbursement of the Nationstar Additional Advance Receivables arising under each Designated Servicing Agreement listed on Attachment A attached hereto, which Nationstar Additional Advance Receivables on the date of this Assignment together with any Nationstar Advance Receivable Transferred Assets related to such Receivables, pursuant to the terms of the Agreement, and Advance Purchaser hereby accepts such sale, assignment, transfer and conveyance and agrees to transfer to Nationstar, as receivables seller, the related consideration therefor, as set forth in the Agreement.
[Signature page follows]
| NATIONSTAR MORTGAGE LLC | ||
| By: |
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| Name: |
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| Title: |
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| ADVANCE PURCHASER LLC | ||
| By: |
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| Name: |
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| Title: |
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[NRZ Servicer Advance Receivables Trust BC - Signature Page to Schedule 1A to Amended and Restated Receivables Sale Agreement - Assignment of Advance Receivables]
Attachment A to Schedule 1-A
DESIGNATED SERVICING AGREEMENTS RELATED TO THE AGGREGATE RECEIVABLES
Schedule 1-B
ASSIGNMENT OF RECEIVABLES
Dated as of [ ], 2013
This Assignment of Receivables (this “ Assignment ”) is a schedule to and is hereby incorporated by this reference into a certain Amended and Restated Receivables Sale Agreement (the “ Agreement ”), dated as of December 17, 2013, by and among Nationstar Mortgage LLC, a Delaware limited liability company, as initial receivables seller (prior to the respective MSR Transfer Dates) and as servicer (prior to the respective MSR Transfer Dates) (“ Nationstar ”), Advance Purchaser LLC, a Delaware limited liability company, as receivables seller and as servicer (on and after the respective MSR Transfer Dates) (“ Advance Purchaser ”), and NRZ Servicer Advance Facility Transferor BC, LLC, a Delaware limited liability company (the “ Depositor ”). All capitalized terms used herein shall have the meanings set forth in, or referred to in, the Agreement.
By its signature to this Assignment, Advance Purchaser hereby sells and/or contributes, assigns, transfers and conveys to the Depositor and its assignees, without recourse, but subject to the terms of the Agreement, all of its right, title and interest in, to and under its rights to reimbursement of the Additional Receivables arising under each Designated Servicing Agreement listed on Attachment A attached hereto, which Additional Receivables on the date of this Assignment together with any Transferred Assets related to such Receivables, pursuant to the terms of the Agreement, and Depositor hereby accepts such sale, assignment, transfer and conveyance and agrees to transfer to Advance Purchaser, as receivables seller, the related consideration therefor, as set forth in the Agreement.
[Signature page follows]
| ADVANCE PURCHASER LLC | ||
| By: |
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| Name: |
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| Title: |
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| NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC | ||
| By: |
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| Name: |
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| Title: |
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[BC-NSART - Signature Page to Schedule 1-B to Amended and Restated Receivables Sale Agreement - Assignment of Receivables]
Attachment A to Schedule 1-B
DESIGNATED SERVICING AGREEMENTS RELATED TO THE AGGREGATE RECEIVABLES
EXHIBIT A
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF BY THE OWNER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND SUCH STATE LAWS, AND WILL NOT BE A “PROHIBITED TRANSACTION” UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”). BY ACCEPTANCE OF THIS SUBORDINATED NOTE, THE HOLDER AGREES TO BE BOUND BY ALL THE TERMS OF THE RECEIVABLES SALE AGREEMENT.
December 17, 2013
FOR VALUE RECEIVED, the undersigned, NRZ Servicer Advance Facility Transferor BC, LLC, a Delaware limited liability company (the “ Depositor ”), promises to pay to the order of Advance Purchaser LLC, a Delaware limited liability company (the “ Seller ”), on [ ], 20[ ] (the “ Maturity Date ”) the aggregate unpaid principal amount of all amounts loaned hereunder pursuant to Section 2(d) of that certain Amended and Restated Receivables Sale Agreement, dated as of December 17, 2013 (together with all amendments and other modifications, if any, from time to time thereafter made thereto, the “ Receivables Sale Agreement ”), among the Seller, Nationstar Mortgage LLC, Advance Purchaser LLC and the Depositor, together with any and all accrued and unpaid interest on all amounts loaned hereunder.
Interest will accrue on the average daily balance of the unpaid principal amount of all amounts loaned hereunder for each day from the date such loan amounts are made until they become due and or are paid in full, at a rate per annum equal to the sum of (i) the LIBOR Rate (as defined below) and (ii) a spread designated as such in writing by the Seller to the Depositor from time to time (the “ Spread ”). Interest will be computed on the basis of a 360-day year and paid for the actual number of days elapsed (including the first but excluding the last day). Should any principal of, or accrued interest on, any amounts loaned hereunder not be paid when due, such amount will bear interest from its due date until paid in full, at a rate per annum equal to the sum of (i) the LIBOR Rate, (ii) the Spread and (iii) 1.00%. Interest shall be payable on the unpaid principal balance of this note (this “ Subordinated Note ”) commencing on [ ], 20[ ] and continuing on the 20 th day of each month. With respect to any such 20 th day that is not a Business Day, the interest payment otherwise due on such 20 th day shall be due on the next subsequent day that is a Business Day.
For the purposes of this Subordinated Note, “ LIBOR Rate ” shall mean the offered rate for one-month U.S. dollar deposits as such rate appears on Reuters Screen LIBOR01 Page (as
defined in the International Swaps and Derivatives Association, Inc. 2000 Definitions) or such other page as may replace Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on such date; provided that if such rate does not appear on Telerate Page 3750, the rate for such date will be determined on the basis of the rates at which one-month U.S. dollar deposits are offered by leading banks engaged in transactions in Eurodollar deposits in the international Eurocurrency market (i) with an established place of business in London, (ii) whose quotations appear on the Bloomberg Screen US0001M Index Page on the date in question and (iii) which have been designated as such by the Calculation Agent (as defined below) (after consultation with the Administrative Agent) (as defined below) and are able and willing to provide such quotations to the Calculation Agent for such date (the “ Reference Banks ”) at approximately 11:00 a.m. (London time) on such date to prime banks in the London interbank market. In such event, the Seller will request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that date will be the arithmetic mean of the quotations (rounded upwards if necessary to the nearest whole multiple of 1/16%). If fewer than two quotations are provided as requested, the rate for that date will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Seller, at approximately 11:00 a.m. (New York City time) on such date for one-month U.S. dollar loans to leading European banks.
Unless plainly wrong, the computer records of the holder hereof shall on any day conclusively evidence the unpaid balance of this Subordinated Note and its advances and payments history posted up to that day. All loans and advances and all payments and permitted prepayments made hereon may be (but are not required to be) set forth by or on behalf of such holder on the schedule which is attached hereto or otherwise recorded in such holder’s computer or manual records; provided , that any failure to make notation of any principal advance or accrual of interest shall not cancel, limit or otherwise affect Depositor’s obligations or any of such holder’s rights with respect to that advance or accrual. Unless otherwise defined, capitalized terms used herein have the meanings provided in or specified in accordance with the Receivables Sale Agreement.
The obligation of the Depositor to pay the principal of, and interest on, all loans and advances on this Subordinated Note shall be absolute and unconditional, shall be binding and, to the fullest extent permitted by law, enforceable in all circumstances whatsoever and shall not be subject to setoff, recoupment or counterclaim; provided , however , that the Depositor shall only be obligated to pay principal and interest on this Subordinated Note from cash actually received by the Depositor from distributions on the Receivables after payment of all amounts due the Noteholder under the Amended and Restated Indenture, dated as of December 17, 2013, among NRZ Servicer Advance Receivables Trust BC (the “ Issuer ”), Wells Fargo Bank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, Nationstar Mortgage LLC, as Servicer (prior to the respective MSR Transfer Dates) and as Subservicer, Advance Purchaser LLC, as Administrator and as Servicer (on and after the respective MSR Transfer Dates), and Barclays Bank PLC, as Administrative Agent.
Depositor may prepay at any time, without penalty or fee, the principal or interest outstanding hereunder or any portion of such principal or interest. Payments of both principal and interest are to be made in lawful money of the United States of America in same day or immediately available funds.
The Seller hereby agrees, prior to the date that is 367 days after the Maturity Date, not to acquiesce, petition, or invoke the process of any court or government authority (or to encourage or cooperate with others) for the purpose of commencing or sustaining a case against the Seller under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of or for the Seller or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Seller. The foregoing shall not limit the rights of the Depositor to file any claim in, or to otherwise take any action with respect to, any insolvency proceeding instituted against the Seller by any other unaffiliated entity.
Notwithstanding anything contained herein to the contrary, to the extent that the Seller is deemed to have any interest in any assets of the Depositor, the Seller agrees that its interest in those assets is subordinate to claims or rights of all other creditors of the Depositor. The Seller agrees that this Subordinated Note constitutes a subordinated note for purposes of Section 510(a) of the United States Bankruptcy Code, as amended from time to time (11 U.S.C. §§ 101 et seq.).
As set forth in Section 2(d) of the Receivables Sale Agreement, the Depositor hereby represents and warrants as of each loan and advance made hereon that at the time of (and immediately after) each loan and advance made hereunder, (i) the Depositor’s total assets exceed its total liabilities both before and after the sale transaction, (ii) the Depositor’s cash on hand is sufficient to satisfy all of its current obligations (other than its obligations under this Subordinated Note and the obligation to pay the Cash Purchase Price), (iii) the Depositor is adequately capitalized at a commercially reasonable level and (iv) the Depositor has determined that its financial capacity to meet its financial commitment under the Subordinate Loan and this Subordinated Note is adequate. Each loan or advance made hereunder by the Seller to the Depositor is subject to the accuracy of the representations and warranties herein made on the part of the Depositor.
This Subordinated Note is the Subordinated Note referred to in, and evidences indebtedness incurred under, the Receivables Sale Agreement, and the holder hereof is entitled to the benefits of the Receivables Sale Agreement. Upon and subject to the terms and conditions of the Receivables Sale Agreement, Depositor may borrow, repay and reborrow against this note under the circumstances, in the manner and for the purposes specified in the Receivables Sale Agreement and this Subordinated Note, but for no other purposes. All parties hereto, whether as makers, endorsers or otherwise, severally waive presentment for payment, demand, protest and notice of dishonor.
THIS SUBORDINATED NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.
[Signature Page Follows]
| NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC | ||
| By: |
/s/ Cameron MacDougall |
|
| Name: | Cameron MacDougall | |
| Title: | Secretary | |
Signature Page to Subordinated Note
Exhibit 10.2
EXECUTION COPY
AMENDED AND RESTATED RECEIVABLES POOLING AGREEMENT
between
NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC
(Depositor)
and
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
(Issuer)
and consented to by
BARCLAYS BANK PLC
and
SHEFFIELD RECEIVABLES CORPORATION
Dated as of December 17, 2013
NRZ SERVICER ADVANCE RECEIVABLES TRUST BC
ADVANCE RECEIVABLES BACKED NOTES, ISSUABLE IN SERIES
TABLE OF CONTENTS
| Page | ||||||
| Section 1. |
Definitions; Incorporation by Reference. |
3 | ||||
| Section 2. |
Transfer of Receivables. |
6 | ||||
| Section 3. |
Depositor’s Acknowledgment and Consent to Assignment. |
8 | ||||
| Section 4. |
Representations, Warranties and Certain Covenants of Depositor. |
8 | ||||
| Section 5. |
Remedies Upon Breach. |
14 | ||||
| Section 6. |
Termination. |
14 | ||||
| Section 7. |
General Covenants of Depositor. |
15 | ||||
| Section 8. |
Grant Clause. |
17 | ||||
| Section 9. |
Grant by Issuer. |
17 | ||||
| Section 10. |
Protection of Indenture Trustee’s Security Interest in Trust Estate. |
17 | ||||
| Section 11. |
Limited Recourse. |
18 | ||||
| Section 12. |
Miscellaneous. |
18 | ||||
| Section 13. |
Consent and Acknowledgment of Amendments. |
21 | ||||
| Schedule 1 |
Form of Assignment of Receivables |
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i
RECEIVABLES POOLING AGREEMENT
This AMENDED AND RESTATED RECEIVABLES POOLING AGREEMENT (as it may be amended, supplemented, restated or otherwise modified from time to time, this “ Agreement ”) is made as of December 17, 2013 (the “ Effective Date ”), by and between NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC (f/k/a NATIONSTAR SERVICER ADVANCE FACILITY TRANSFEROR, LLC 2013-BC), a limited liability company organized under the laws of the State of Delaware (the “ Depositor ”), and NRZ SERVICER ADVANCE RECEIVABLES TRUST BC (f/k/a NATIONSTAR SERVICER ADVANCE RECEIVABLES TRUST 2013-BC), a statutory trust organized under the laws of Delaware (the “ Issuer ”), and is consented to by 100% of the Noteholders and the Administrative Agent.
RECITALS
A. The Depositor is a special purpose Delaware limited liability company. The Issuer is a statutory trust organized under the laws of Delaware. The Depositor and the Issuer are parties to that certain Receivables Pooling Agreement (the “ Original Receivables Pooling Agreement ”), dated as of September 19, 2013 (the “ Closing Date ”). Pursuant to Section 12(a) of the Original Receivables Pooling Agreement, the Depositor and the Issuer may amend the Original Receivables Pooling Agreement by written instrument upon delivery of an Issuer Tax Opinion and, so long as the Notes are outstanding, the Administrative Agent and Noteholders of more than the Series Required Noteholders of each Series shall have consented thereto. The Depositor and the Issuer wish to amend and restate in its entirety the Original Receivables Pooling Agreement in accordance with Section 12(a) of the Original Receivables Pooling Agreement, pursuant to the terms set forth in this Agreement. As of the date hereof, there are no Note Rating Agencies.
B. Nationstar Mortgage LLC (“ Nationstar ”) acts as the servicer under one or more servicing agreements (each, as it may be amended, supplemented, restated, or otherwise modified from time to time, a “ Servicing Agreement ” and collectively, the “ Servicing Agreements ”). Certain Servicing Agreements (each, as may be amended, supplemented, restated or otherwise modified from time to time, a “ Designated Servicing Agreement ” and, collectively, the “ Designated Servicing Agreements ” ) will be designated for inclusion under this Agreement, the Amended and Restated Receivables Sale Agreement, dated as of even date herewith, between Nationstar and the Depositor (as amended, restated, supplemented or otherwise modified from time to time, the “ Receivables Sale Agreement ”), amending and restating that certain Receivables Sale Agreement dated as of September 19, 2013 (the “ Original Receivables Sale Agreement ”), and the Indenture (as defined below).
C. Nationstar is selling the servicing rights under the Designated Servicing Agreements to Advance Purchaser LLC (“ Advance Purchaser ”), a Delaware limited liability company. Prior to the MSR Transfer Date with respect to any Designated Servicing Agreement, Nationstar shall continue to (i) be the “Servicer” under such Designated Servicing Agreement, (ii) have the obligation to make the required Advances under such Designated Servicing Agreement, (iii) have the right to collect the related Receivables in reimbursement of such Advances, and (iv) have the right to collect Receivables in existence on the Effective Date
related to Advances. Prior to the related MSR Transfer Date, upon its disbursement of an Advance pursuant to a Designated Servicing Agreement, Nationstar, as servicer, becomes the beneficiary of a contractual right to be reimbursed for such Advance in accordance with the terms of the related Designated Servicing Agreement and, immediately, upon their creation, Nationstar shall sell the related Receivables to Advance Purchaser for cash purchase prices equal to 100% of their respective Receivable Balances pursuant to the Receivables Sale Agreement.
D. When all required consents and ratings agency letters required for a formal change of the named servicer under a Designated Servicing Agreement from Nationstar to Advance Purchaser shall have been obtained, Nationstar shall transfer to Advance Purchaser all of the servicing rights and obligations under such Designated Servicing Agreement (such date, the related “ MSR Transfer Date ”) pursuant to the Master Servicing Rights Purchase Agreement, dated as of the date hereof, and any related Sale Supplement executed from time to time, by and between Nationstar and Advance Purchaser (each as amended, restated, supplemented or otherwise modified from time to time, collectively, the “ Purchase Agreement ”). On and after the MSR Transfer Date for any Designated Servicing Agreement, Advance Purchaser shall (i) be the “Servicer” under such Designated Servicing Agreement, (ii) have the obligation to make the required Advances under such Designated Servicing Agreement, (iii) have the right to collect the related Receivables in reimbursement of such Advances, and (iv) have the right to collect Receivables in existence on the MSR Transfer Date related to Advances. Upon its disbursement of an Advance pursuant to a Designated Servicing Agreement, Advance Purchaser, as servicer (on and after the related MSR Transfer Date), becomes the beneficiary of a contractual right to be reimbursed for such Advance in accordance with the terms of the related Designated Servicing Agreement. Nationstar will initially be engaged by Advance Purchaser as subservicer for all of the Designated Servicing Agreements as to which the related MSR Transfer Date has occurred under a subservicing agreement (a “ Subservicing Agreement ”). Other subservicers may be appointed for some or all of the Designated Servicing Agreements or for other servicing rights acquired by Advance Purchaser from time to time in compliance with Section 4(a)(xix) hereof.
E. NRZ Servicer Advance Receivables Trust BC (the “ Issuer ”), Advance Purchaser, as servicer (on and after the respective MSR Transfer Dates) and as Administrator (in such capacity, the “ Administrator ”), Nationstar, as servicer (prior to the respective MSR Transfer Dates) and as subservicer, Wells Fargo Bank, N.A., as Indenture Trustee (the “ Indenture Trustee ”), as Calculation Agent, as Paying Agent and as Securities Intermediary, Barclays Bank PLC (“ Barclays ”), as administrative agent (the “ Administrative Agent ”) and Sheffield Receivables Corporation propose to enter into an Amended and Restated Indenture (as it may be amended, supplemented, restated, or otherwise modified from time to time and including any indenture supplement, the “ Indenture ”), dated as of even date herewith, amending and restating that certain Indenture, dated as of September 19, 2013 (the “ Original Indenture ”).
F. Pursuant to the Series 2013-VF1 Indenture Supplement, dated as of September 19, 2013, among the Issuer, the Indenture Trustee, Nationstar and Barclays (the “ Series 2013-VF1 Indenture Supplement ”), the Issuer issued four (4) Classes of Series 2013-VF1 Notes (Class A-VF1, Class B-VF1, Class C-VF1 and Class D-VF1) (the “ Series 2013-VF1 Variable Funding Notes ”). The Series 2013-VF1 Variable Funding Notes issued by the Issuer pursuant to the Series 2013-VF1 Indenture Supplement are collateralized by the Aggregate Receivables and related property and certain monies in respect thereof now owned and to be hereafter acquired by the Issuer.
G. Advance Purchaser desires to sell and/or contribute, assign, transfer and convey to the Depositor all of its contractual rights (A) to reimbursement pursuant to the terms of a Designated Servicing Agreement for an Advance that it either acquires from Nationstar (before the related MSR Transfer Date) or creates as a result of making Advances (on and after the related MSR Transfer Date) (any right to reimbursement in respect of any such Advance an “ Advance Receivable ”) and (B) to payment pursuant to the terms of a Designated Servicing Agreement listed on the Designated Servicing Agreement Schedule for a Deferred Servicing Fee which has been accrued by Nationstar (before the related MSR Transfer Date) and sold by Nationstar to Advance Purchaser pursuant to the Purchase Agreement or accrued by Advance Purchaser (on and after the related MSR Transfer Date) but not paid, and including in either case all rights of Nationstar or Advance Purchaser, as the case may be, to enforce payment of such obligation under the related Designated Servicing Agreement (any right to payment in respect of such Deferred Servicing Fee, a “ Deferred Servicing Fee Receivable ”) from the date hereof through the Receivables Sale Termination Date under the Designated Servicing Agreements, to the Receivables Sale Agreement. The Depositor is entering into this Agreement to sell and/or contribute, assign, transfer and convey to the Issuer immediately upon the Depositor’s acquisition thereof, all Receivables acquired by the Depositor from Advance Purchaser pursuant to the Receivables Sale Agreement; provided , however , that all Receivables in existence on the Effective Date shall have been transferred from Nationstar to the Depositor under the Original Receivables Sale Agreement and from the Depositor to the Issuer under the Original Receivables Pooling Agreement prior to the Effective Date.
H. In consideration of each transfer by the Depositor to the Issuer of the Transferred Assets on the terms and subject to the conditions set forth in this Agreement, the Issuer has agreed to pay to the Depositor a purchase price equal to 100% of the fair market value thereof on the related Sale Date. To the extent the portion of the purchase price actually paid in cash by the Issuer for the Transferred Assets is less than 100% of the fair market value thereof, the balance of the purchase price shall be paid on each Sale Date by an increase in the value of the Owner Trust Certificate of the Issuer, 100% of which is held by the Depositor, in an amount equal to the amount by which the Purchase Price of such Receivable exceeds the portion of the cash purchase price actually paid therefor.
AGREEMENT
NOW, THEREFORE, in consideration of the above premises and of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Definitions; Incorporation by Reference.
(a) This Agreement is entered into in connection with the terms and conditions of the Indenture. Any capitalized term used but not defined herein shall have the meaning given to it in the Indenture. Furthermore, for any capitalized term defined herein but defined in greater detail in the Indenture, the detailed information from the Indenture shall be incorporated herein by reference.
Additional Receivables : As defined in Section 2(a)(ii) .
Administrative Agent : As defined in the Recitals.
Administrator : As defined in the Recitals.
Advance Purchaser : As defined in the Recitals.
Advance Receivables : As defined in the Recitals.
Aggregate Receivables : (i) All Initial Receivables under a Designated Servicing Agreement sold and/or contributed by the Depositor to the Issuer under the Original Receivables Pooling Agreement and (ii) all Additional Receivables sold and/or contributed by the Depositor to the Issuer hereunder.
Agreement : As defined in the Preamble.
Assignment of Receivables : Each agreement documenting an assignment by the Depositor to the Issuer substantially in the form set forth on Schedule 1 .
Barclays : As defined in the Recitals.
Closing Date : As defined in the Recitals.
Deferred Servicing Fee Receivables : As defined in the Recitals.
Depositor : As defined in the Preamble.
Depositor’s Related Documents : As defined in Section 4(a)(iii) .
Designated Servicing Agreement and Designated Servicing Agreements : As defined in the Recitals.
Effective Date : As defined in the Preamble
Indenture : As defined in the Recitals.
Indenture Trustee : As defined in the Recitals.
Initial Receivables : As defined in Section 2(a)(i) .
Issuer : As defined in the Preamble.
MSR Transfer Date : As defined in the Recitals.
Nationstar : As defined in the Recitals.
Noteholder : As defined in the Indenture.
Original Indenture : As defined in the Recitals.
Original Receivables Pooling Agreement : As defined in the Recitals.
Original Receivables Sale Agreement : As defined in the Recitals.
Original Transferred Assets : As defined in Section 2(a)(i) .
Purchase : Each purchase by the Issuer from the Depositor of Transferred Assets.
Purchase Agreement : As defined in the Recitals.
Purchase Price : As defined in Section 2(c) .
Receivable : Each Advance Receivable and each Deferred Servicing Fee Receivable.
Receivables Sale Agreement : As defined in the Recitals.
Receivables Sale Termination Date : The date, after the conclusion of the Revolving Period, on which all amounts due on all Classes of Notes issued by the Issuer pursuant to the Indenture, and all other amounts payable to any party pursuant to the Indenture, shall have been paid in full.
Removed Servicing Agreement : As defined in Section 2(c) .
Sale Date : (i) With respect to the Initial Receivables, each date from and including the Closing Date to the Effective Date on which such Initial Receivable was sold and/or contributed, assigned, transferred, and conveyed by the Depositor to the Issuer pursuant to the terms of the Original Receivables Pooling Agreement and (ii) with respect to any Additional Receivables, each date from and including the Effective Date to the Receivables Sale Termination Date on which such Additional Receivable is sold and/or contributed, assigned, transferred and conveyed by the Depositor to the Issuer pursuant to the terms of this Agreement.
Series : As defined in the Indenture.
Series Required Noteholders : As defined in the Indenture.
Series 2013-VF1 Variable Funding Notes : As defined in the Recitals.
Servicing Agreement and Servicing Agreements : As defined in the Recitals.
Stop Date : As defined in Section 2(d) .
Subservicer : Nationstar or other subservicers that may be engaged by Advance Purchaser as subservicer for all of the Designated Servicing Agreements or for other servicing rights acquired by Advance Purchaser from time to time.
Subservicing Agreement : As defined in the Recitals.
Subsidiary : With respect to any Person (i) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any partnership, limited liability company, association, joint venture or similar business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.
Transferred Assets : As defined in Section 2(a)(ii) .
UCC : The Uniform Commercial Code in effect in all applicable jurisdictions.
(b) The Designated Servicing Agreement Schedule, as may be amended, supplemented, restated, or otherwise modified from time to time in accordance with the Transaction Documents, is incorporated by this reference into this Agreement.
Section 2. Transfer of Receivables.
(a) Transferred Assets .
(i) From the Closing Date to the Effective Date, subject to the provisions of the Original Receivables Pooling Agreement, the Depositor sold and/or contributed, assigned, transferred and conveyed to the Issuer, and the Issuer acquired from the Depositor without recourse except as provided under the Original Receivables Pooling Agreement, all of the Depositor’s right, title and interest, whether now owned or hereafter acquired, in, to and under each Receivable (1) in existence on the Closing Date and in existence on any Business Day on or after the Closing Date and prior to the Effective Date that arose under any Servicing Agreement that was listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable was created (the “ Initial Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of the Depositor to enforce such Initial Receivables (collectively, the “ Original Transferred Assets ”).
(ii) Commencing on the Effective Date, and until the close of business on the Receivables Sale Termination Date, subject to the provisions of this Agreement, the Depositor hereby sells and/or contributes, assigns, transfers and conveys to the Issuer, and the Issuer acquires from the Depositor without recourse except as provided herein, all of the Depositor’s right, title and interest, whether now owned or hereafter acquired, in, to and under (1) each Receivable in existence on any Business Day on or after the Effective Date and prior to the Receivables Sale Termination Date that arises with respect to any Servicing Agreement that is listed as a “Designated Servicing Agreement” on the Designated Servicing Agreement Schedule as of the date such Receivable is created (the “ Additional Receivables ”), and (2) all monies due or to become due and all amounts received or receivable with respect thereto and all proceeds (including “proceeds” as defined in the UCC), together with all rights of the Depositor to enforce such Initial Receivables and Additional Receivables and (3) the Receivables Sale Agreement in
respect of such Initial Receivables and Additional Receivables (collectively, the “ Transferred Assets ”). Receivables for Deferred Servicing Fees that are ineligible for financing under the Indenture will not be sold or transferred hereunder and shall not otherwise constitute “Receivables” for purposes hereof or any other Transaction Document. Until the Receivables Sale Termination Date, the Depositor shall, automatically and without any further action on its part, sell and/or contribute, assign, transfer and convey to the Issuer, on each Business Day, each Additional Receivable not previously transferred to the Issuer and the Issuer shall purchase each such Additional Receivable together with all of the other Transferred Assets related to such Receivable.
(b) The Depositor and the Issuer hereby agree that no further transfers will be made pursuant to any Assignment of Receivables dated prior to the Effective Date.
(c) Purchase Price . In consideration of the sale and/or contribution, assignment, transfer and conveyance to the Issuer of the Aggregate Receivables and related Transferred Assets, on the terms and subject to the conditions set forth in this Agreement, the Issuer shall, on each Sale Date, pay and deliver to the Depositor, in immediately available funds on such Sale Date, or otherwise promptly following such Sale Date if so agreed by the Depositor and the Issuer, a purchase price (the “ Purchase Price ”) equal to (i) in the case of one Receivable sold, assigned, transferred and conveyed on such Sale Date, the fair market value of such Receivable on such Sale Date or (ii) in the case more than one Receivable is sold, assigned, transferred and conveyed on such Sale Date, the aggregate of the fair market values of such Receivables on such Sale Date, payable in cash to the extent of funds available to the Issuer, plus an increase in the value of the Owner Trust Certificate of the Issuer, to the extent the Purchase Price exceeds the cash paid.
(d) Removal of Designated Servicing Agreements and Receivables . On any date on or after the satisfaction of all conditions specified in Section 2.1(c) of the Indenture, the Depositor may remove a Designated Servicing Agreement from the Designated Servicing Agreement Schedule (each such Servicing Agreement so removed, a “ Removed Servicing Agreement ”). Upon the removal of a Designated Servicing Agreement from the Designated Servicing Agreement Schedule, (i) except if Advance Purchaser conducts a Permitted Refinancing, all Receivables related to Advances made by or Deferred Servicing Fees accrued by the Servicer under such Removed Servicing Agreement previously transferred to the Issuer and Granted to the Indenture Trustee for inclusion in the Trust Estate, shall remain subject to the lien of the Indenture, in which case Advance Purchaser may not assign to another Person any Receivables arising under that Removed Servicing Agreement until all Receivables that arose under that Removed Servicing Agreement that are included in the Trust Estate shall have been paid in full or sold in a Permitted Refinancing, and (ii) all Receivables related to such Removed Servicing Agreement arising on or after the date that the related Servicing Agreement was removed from the Designated Servicing Agreement Schedule (the “ Stop Date ”) shall not be sold to the Issuer and shall not constitute Additional Receivables.
(e) Marking of Books and Records . The Depositor shall, at its own expense, on or prior to the applicable Sale Date, in the case of Additional Receivables, indicate in its books and records (including its computer records) that the Receivables arising under each Designated Servicing Agreement and the related Transferred Assets have been sold and/or contributed,
assigned, transferred and conveyed to the Issuer in accordance with this Agreement. The Depositor shall not alter the indication referenced in this paragraph with respect to any Receivable during the term of this Agreement, (except in accordance with Section 10(b) ). If a third party, including a potential purchaser of a Receivable, should inquire as to the status of the Receivables, the Depositor shall promptly indicate to such third party that the Receivables have been sold and/or contributed, assigned, transferred and conveyed and the Depositor (except in accordance with Section 10(b) ) shall not claim any right, title or interest (including, but not limited to ownership interest) therein.
Section 3. Depositor’s Acknowledgment and Consent to Assignment.
The Depositor hereby acknowledges that the Issuer has Granted to the Indenture Trustee, on behalf of the Noteholders, the rights (but not the obligations) of the Issuer under this Agreement, including, without limitation, the right to enforce the obligations of the Depositor hereunder, and the obligations of Advance Purchaser and Nationstar under the Receivables Sale Agreement. The Depositor hereby consents to such Grant by the Issuer to the Indenture Trustee pursuant to the Indenture. The Depositor acknowledges that the Indenture Trustee (on behalf of itself, the Noteholders, any Supplemental Credit Enhancement Provider and any Liquidity Provider) shall be a third party beneficiary in respect of the representations, warranties, covenants, rights, indemnities and other benefits arising hereunder that are so Granted by the Issuer. Moreover, the Depositor hereby authorizes and appoints as its attorney-in-fact the Issuer and the Indenture Trustee, as the Issuer’s assignee, on behalf of the Issuer, to execute and deliver such documents or certificates as may be necessary in order to enforce its rights under this Agreement and its rights to collect the Aggregate Receivables.
Section 4. Representations, Warranties and Certain Covenants of Depositor.
The Depositor hereby makes the following representations, warranties and covenants for the benefit of the Issuer, the Indenture Trustee and the Noteholders, on which the Issuer is relying in purchasing the Aggregate Receivables and executing this Agreement, and on which the Noteholders are relying in purchasing the Notes. The representations are made as of the date of this Agreement, and as of each Sale Date. Such representations and warranties shall survive the sale and/or contribution, assignment, transfer and conveyance of any Receivables and any related Transferred Assets to the Issuer.
(a) General Representations, Warranties and Covenants .
(i) Organization and Good Standing . The Depositor is a limited liability company duly organized and validly existing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and now has and so long as any Notes are outstanding, will continue to have, power, authority and legal right to acquire, own, hold, transfer, assign and convey the Receivables.
(ii) Due Qualification . The Depositor is and will continue to be duly qualified to do business as a limited liability company in good standing, and has obtained and will keep in full force and effect all necessary licenses, permits and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications, licenses, permits or approvals and as to which the failure to obtain or to keep in full force and effect such licenses, permits or approvals would have a material and adverse impact upon the value or collectability of the Receivables and such failure cannot be subsequently cured for the purposes of enforcing contracts.
(iii) Power and Authority . The Depositor has and will continue to have all requisite limited liability company power and authority to own the Receivables, and the Depositor has and will continue to have all requisite limited liability company power and authority to execute and deliver this Agreement, the initial Designated Servicing Agreement Schedule and each subsequent Designated Servicing Agreement Schedule, each other Transaction Document to which it is a party and any and all other instruments and documents necessary to consummate the transactions contemplated hereby or thereby (collectively, the “ Depositor’s Related Documents ”), and to perform each of its obligations under this Agreement and under the Depositor’s Related Documents, and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement by the Depositor, and the execution and delivery of each of the Depositor’s Related Documents by the Depositor, the performance by the Depositor of its obligations hereunder and thereunder, and the consummation of the transactions contemplated hereby and thereby have each been duly authorized by the Depositor and no further limited liability company action or other actions are required to be taken by the Depositor in connection therewith.
(iv) Valid Transfer . Upon the execution and delivery of this Agreement, each Assignment of Receivables and the Designated Servicing Agreement Schedule by each of the parties hereto, this Agreement shall evidence a valid sale and/or contribution, transfer, assignment and conveyance of the Additional Receivables as of the applicable Sale Date to the Issuer, which is enforceable against creditors of and purchasers from the Depositor, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
(v) Binding Obligation . This Agreement and each of the other Transaction Documents to which the Depositor is a party has been, or when delivered will have been, duly executed and delivered and constitutes the legal, valid and binding obligation of the Depositor, enforceable against the Depositor, in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and by equitable principles.
(vi) Good Title . Immediately prior to each Purchase of Receivables hereunder, the Depositor is the legal and beneficial owner of each such Receivable and the related Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens; and immediately upon the transfer and assignment thereof, the Issuer and its assignees will have good and marketable title to, with the right to sell and encumber, each Receivable, whether now existing or hereafter arising, together with the related Transferred Assets with respect thereto, free and clear of any Adverse Claims other than Permitted Liens.
(vii) Perfection .
(A) This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Aggregate Receivables and the related Transferred Assets with respect thereto in favor of the Issuer, which security interest is prior to all other Adverse Claims, and is enforceable as such against creditors of and purchasers from the Depositor;
(B) The Depositor has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under the UCC in order to perfect the security interest in the Aggregate Receivables and the related Transferred Assets granted to the Issuer hereunder; and
(C) The Depositor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Aggregate Receivables and the related Transferred Assets, other than under this Agreement, except pursuant to any agreement that has been terminated prior to the date hereof. The Depositor has not authorized the filing of and is not aware of any financing statement filed against the Depositor covering the Aggregate Receivables and the related Transferred Assets other than those filed in connection with this Agreement and the other Transaction Documents, and those that have been terminated prior to the date hereof. The Depositor is not aware of any judgment or tax lien filings against the Depositor.
(viii) No Violation . Neither the execution, delivery and performance of this Agreement, the other Transaction Documents or the Depositor’s Related Documents by the Depositor nor the consummation by the Depositor of the transactions contemplated hereby or thereby nor the fulfillment of or compliance with the terms and conditions of this Agreement, the Depositor’s Related Documents or the other Transaction Documents to which the Depositor is a party (A) will violate the organizational documents of the Depositor, (B) will constitute a default (or an event which, with notice or lapse of time or both, would constitute a default), or result in a breach or acceleration of, any material indenture, agreement or other material instrument to which the Depositor or any of its Affiliates is a party or by which it or any of them is bound, or which may be applicable to the Depositor, (C) constitutes a default (whether with notice or lapse of time or both), or results in the creation or imposition of any Adverse Claim upon any of the property or assets of the Depositor under the terms of any of the foregoing, or (D) violates any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to the Depositor or its properties.
(ix) No Proceedings . There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to the Depositor’s knowledge, threatened, against the Depositor (A) in which a third party not
affiliated with the Indenture Trustee or a Noteholder asserts the invalidity of any of the Transaction Documents, (B) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by any of the Transaction Documents, (C) seeking any determination or ruling that should reasonably be expected to affect materially and adversely the performance by the Depositor or its Affiliates of their obligations under, or the validity or enforceability of, any of the Transaction Documents or (D) relating to the Depositor or its Affiliates and which should reasonably be expected to affect adversely the federal income tax attributes of the Notes.
(x) Ownership of Issuer . 100% of the Owner Trust Certificate of the Issuer is owned by the Depositor. No Person other than the Depositor has any rights to acquire all or any portion of the Owner Trust Certificate in the Issuer.
(xi) Solvency . The Depositor, both prior to and after giving effect to each sale and/or contribution of Receivables with respect to the Designated Servicing Agreements on each Sale Date, (1) is not, and will not be, “insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code), (2) is, and will be, able to pay its debts as they become due, and (3) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage.
(xii) Information to Note Rating Agencies . All information provided by the Depositor to any Note Rating Agency, taken together, is true and correct in all material respects.
(xiii) No Fraudulent Conveyance . The Depositor is selling and/or contributing the Aggregate Receivables to the Issuer in furtherance of its ordinary business purposes, with no intent to hinder, delay or defraud any of its creditors.
(xiv) Ability to Perform Obligations . The Depositor does not believe, nor does it have any reasonable cause to believe, that it cannot perform each and every covenant contained in this Agreement.
(xv) Information . No document, certificate or report furnished by the Depositor in writing pursuant to this Agreement, any other Transaction Document or in connection with the transactions contemplated hereby or thereby, taken together, contains or will contain when furnished any untrue statement of a material fact. There are no facts relating to and known by the Depositor which when taken as a whole may impair the ability of the Depositor to perform its obligations under this Agreement or any other Depositor’s Transaction Document, which have not been disclosed herein or in the certificates and other documents furnished by or on behalf of the Depositor pursuant hereto or thereto specifically for use in connection with the transactions contemplated hereby or thereby.
(xvi) Fair Consideration . The aggregate consideration received by the Depositor pursuant to this Agreement is fair consideration having reasonably equivalent value to the value of the Aggregate Receivables and the performance of the Depositor’s obligations hereunder.
(xvii) Name . The legal name of the Depositor is as set forth in this Agreement and the Depositor does not have any trade names, fictitious names, assumed names or “doing business” names.
(xviii) Subsidiaries . The Depositor has one Subsidiary, the Issuer.
(xix) Appointment of Subservicers . Advance Purchaser shall not appoint any Subservicer other than Nationstar or an Eligible Subservicer in accordance with the Indenture and except that an Eligible Subservicer may appoint subservicers in accordance with the applicable Designated Servicing Agreement and in compliance with the Indenture unless and until each rating agency that rated the related mortgage-backed securities as stated in the documentation for the related securitization trust, shall have delivered written confirmation that the appointment of such Subservicer will not result in a reduction of the then-current ratings of such securities, if rating agency confirmation is required for the appointment of a subservicer under the related Servicing Agreement.
(xx) Special Purpose Entity . The Depositor is operated as an entity separate from Advance Purchaser. In addition, the Depositor:
(A) maintains and will continue to maintain its assets separate and distinct from those of Advance Purchaser and any Affiliates of Advance Purchaser in a manner which facilitates their identification and segregation from those of Advance Purchaser;
(B) conducts and will continue to conduct all intercompany transactions with Advance Purchaser or any Affiliate of Advance Purchaser on an arm’s-length basis;
(C) has not guaranteed and will not guarantee any obligation of Advance Purchaser or any of Advance Purchaser’s Affiliates, nor has it had or will it have any of its obligations guaranteed by any such entities and has not held and will not hold itself out as responsible for debts of any such entity or for the decisions or actions with respect to the business affairs of any such entity;
(D) has not permitted and will not permit the commingling or pooling of its funds or other assets with the assets of Advance Purchaser or any Affiliate of Advance Purchaser (other than in respect of items of payment and funds which may be commingled until deposit into the Trust Accounts);
(E) has and will continue to have separate deposit and other bank accounts to which neither Advance Purchaser nor any of its Affiliates has any access and does not at any time pool any of its funds with those of Advance Purchaser or any of its Affiliates;
(F) maintains and will continue to maintain financial records which are separate from those of Advance Purchaser or any of its Affiliates;
(G) compensates and will continue to compensate all employees, consultants and agents, if any, or reimburses Advance Purchaser from its own funds, for services provided to it by such employees, consultants and agents, and, to the extent any employee, consultant or agent of it is also an employee, consultant or agent of Advance Purchaser allocate the compensation of such employee, consultant or agent between it and Advance Purchaser as agreed to between them on an arm’s length basis;
(H) conducts and will continue to conduct all of its business (whether in writing or orally) solely in its own name and on its own stationery and pays and will continue to pay its own expenses, makes and will make all communications to third parties (including all invoices (if any), letters, checks and other instruments) solely in its own name (and not as a division of any other Person), and requires and will require that its employees, if any, when conducting its business identify themselves as such (including, without limitation, by means of providing appropriate employees with business or identification cards identifying such employees as its employees);
(I) adheres and will continue to adhere and comply with its organizational documents and maintains and will maintain company records and books of account separate and distinct from Advance Purchaser’s corporate records and the records of any Affiliate of Advance Purchaser;
(J) does not and will not permit Advance Purchaser or any Affiliate of Advance Purchaser, to be involved in its daily management; provided , however , that officers of Advance Purchaser or any such Affiliate shall not be prohibited from serving as officers of it;
(K) does not and will not act as agent for Advance Purchaser or any Affiliate of Advance Purchaser and agrees that it will not authorize Advance Purchaser or any Affiliate of Advance Purchaser to act as its agent;
(L) pays and will continue to pay its own incidental administrative costs and expenses from its own funds, allocates and will continue to allocate all other shared overhead expenses (including, without limitation, telephone and other utility charges, the services of shared employees, consultants and agents, and reasonable legal and auditing expenses), and other items of cost and expense shared between it and Advance Purchaser, as agreed to between them on an arm’s length basis; and
(M) takes and shall continue to take such actions as are necessary on its part to ensure that all procedures required by its organizational documents are duly and validly taken.
(b) Survival . It its understood and agreed that the representations and warranties of the Depositor set forth in Section 4(a) shall continue throughout the term of this Agreement.
(c) It is understood and agreed that the (1) representations and warranties made by Advance Purchaser pursuant to Section 5(b) of the Receivables Sale Agreement, and the representations and warranties made by the Depositor pursuant to this Agreement, on which the Issuer is relying in accepting the Receivables and executing this Agreement and on which the Noteholders are relying in purchasing the Notes, and (2) the rights and remedies of the Depositor and its assignees under the Receivables Sale Agreement against Advance Purchaser, and the rights and remedies of the Issuer and its assignees under this Agreement against the Depositor, inure to the benefit of the Issuer and the Indenture Trustee for the benefit of the Noteholders, as the assignees of the Depositor’s rights under the Receivables Sale Agreement and the Issuer’s rights hereunder. Such representations and warranties, and the rights and remedies for the breach thereof, shall survive the sale and/or contribution, assignment, transfer and conveyance of any Receivables from the Depositor to the Issuer and its assignees and the pledge thereof by the Issuer to the Indenture Trustee for the benefit of the Noteholders and shall be fully exercisable by the Indenture Trustee for the benefit of the Noteholders.
Section 5. Remedies Upon Breach
The Depositor shall inform the Indenture Trustee, the Administrator and the Administrative Agent promptly, in writing, upon the discovery of any breach of the Depositor’s representations, warranties or covenants hereunder, or Advance Purchaser’s representations, warranties or covenants under the Receivables Sale Agreement. Unless such breach shall have been cured or waived within thirty (30) days after the earlier to occur of the discovery of such breach by the Depositor or receipt of written notice of such breach by the Depositor, such that, in the case of a representation and warranty, such representation and warranty shall be true and correct in all material respects as if made on such day, and the Depositor shall have delivered to the Indenture Trustee an officer’s certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct or the breach was otherwise cured, the Depositor shall either repurchase the affected Receivables or indemnify the Issuer and its assignees (including the Issuer, the Indenture Trustee and each of their respective assignees) against and hold the Issuer and its assignees (including the Issuer, the Indenture Trustee and each of their respective assignees) harmless from any cost, liability and expense, including, without limitation, reasonable attorneys’ fees and expenses, whether incurred in enforcement proceedings between the parties or otherwise, incurred as a result of, or arising from, such breach (each such repurchase or indemnification amount to be paid hereunder, an “ Indemnity Payment ”), the amount of which shall equal the Receivables Balance of any affected Receivable. This Section 5 sets forth the exclusive remedy for a breach of representation, warranty or covenant pertaining to a Receivable. Notwithstanding the foregoing, the breach of any representation, warranty or covenant shall not be waived by the Issuer under any circumstances without the consent of the Majority Holders of the Outstanding Notes of each Series and the Administrative Agent.
Section 6. Termination.
This Agreement (a) may not be terminated prior to the termination of the Indenture and (b) may be terminated at any time thereafter by either party hereto upon written notice to the other party.
Section 7. General Covenants of Depositor.
The Depositor covenants and agrees that from the date of this Agreement until the termination of the Indenture:
(a) Reserved .
(b) Bankruptcy . The Depositor agrees that it shall comply with Section 12(l) . The Depositor has not engaged in and does not expect to engage in a business for which its remaining property represents an unreasonably small capitalization. The Depositor will not transfer any of the Aggregate Receivables with an intent to hinder, delay or defraud any Person.
(c) Legal Existence . The Depositor shall do or cause to be done all things necessary on its part to preserve and keep in full force and effect its existence in the jurisdiction of its formation, and to maintain each of its licenses, approvals, registrations and qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which cannot be subsequently cured for the purpose of enforcing contracts and which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the financial conditions, operations or the ability of the Depositor or the Issuer to perform its obligations hereunder or under any of the other Transaction Documents.
(d) Compliance With Laws . The Depositor shall comply in all material respects with all laws, rules, regulations and orders of any governmental authority applicable to its operation, the noncompliance with which would reasonably be expected to have a material adverse effect on the financial condition, operations or the ability of Advance Purchaser, the Depositor or the Issuer to perform their obligations hereunder or under any of the other Transaction Documents.
(e) Taxes . The Depositor shall pay and discharge all taxes, assessments and governmental charges or levies imposed upon the Depositor or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default; provided that the Depositor shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings, or so long as the failure to pay any such tax, assessment, charge or levy would not have a material adverse effect on the ability of the Depositor to perform its obligations hereunder. The Depositor shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(f) Compliance with Representations and Warranties . The Depositor covenants that it shall conduct its business such that it will continually comply with all of its representations and warranties made in Section 4(a) .
(g) Keeping of Records and Books of Account . The Depositor shall maintain accurate, complete and correct documents, books, records and other information which is reasonably necessary for the collection of all Aggregate Receivables (including, without limitation, records adequate to permit the prompt identification of each new Receivable and all collections of, and adjustments to, each existing Receivable).
(h) Ownership . The Depositor will take all necessary action to establish and maintain, irrevocably in the Issuer, legal and equitable title to the Aggregate Receivables and the related Transferred Assets, free and clear of any Adverse Claim (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) in all appropriate jurisdictions to perfect the Issuer’s interest in such Aggregate Receivables and related Transferred Assets and such other action to perfect, protect or more fully evidence the interest of the Issuer or the Indenture Trustee (as the Depositor’s assignee) may reasonably request).
(i) Reliance on Separateness . The Depositor acknowledges that the Indenture Trustee and the Noteholders are entering into the transactions contemplated by the Transaction Documents in reliance upon the Depositor’s and Issuer’s identity as a legal entity that is separate from Advance Purchaser. Therefore, from and after the date of execution and delivery of this Agreement, the Depositor will take all reasonable steps to maintain each of the Depositor’s and Issuer’s identity as a separate legal entity and to make it manifest to third parties that each of the Depositor and the Issuer is an entity with assets and liabilities distinct from those of Advance Purchaser. Without limiting the generality of the foregoing and in addition to the other covenants set forth herein, the Depositor (i) will not hold itself out to third parties as liable for the debts of the Issuer nor purport to own the Aggregate Receivables and other related Transferred Assets, (ii) will take all other actions necessary on its part to ensure that the facts and assumptions regarding it set forth in the opinion issued by Sidley Austin LLP, dated as of the Effective Date, relating to substantive consolidation issues remain true and correct at all times.
(j) Name Change, Offices and Records . In the event the Depositor makes any change to its name (within the meaning of Section 9-507(c) of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records the Depositor shall notify the Issuer and the Indenture Trustee thereof and (except with respect to a change of location of books and records) shall deliver to the Indenture Trustee not later than thirty (30) days after the effectiveness of such change (i) such financing statements (Forms UCC1 and UCC3) which the Indenture Trustee (acting at the direction of the Administrative Agent) may reasonably request to reflect such name change, or change in type or jurisdiction of organization, (ii) if the Indenture Trustee shall so request, an opinion of outside counsel to the Depositor, in form and substance reasonably satisfactory to the Indenture Trustee, as to the perfection and priority of the Issuer’s security interest in the Aggregate Receivables in such event, (iii) such other documents and instruments that the Indenture Trustee on behalf of the Noteholders (acting at the direction of the Administrative Agent) may reasonably request in connection therewith and shall take all other steps to ensure that the Issuer continues to have a first priority, perfected security interest in the Aggregate Receivables and the related Transferred Assets.
(k) Location of Jurisdiction of Organization and Records . In the case of a change in the jurisdiction of organization of the Depositor, or in the case of a change in the “location” of the Depositor for purposes of Section 9-307 of the UCC, the Depositor must take all actions necessary or reasonably requested by the Issuer, the Administrative Agent or the Indenture Trustee to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Issuer, the Administrative Agent or the Indenture Trustee to further perfect or evidence the rights, claims or security interests of any of the Issuer or any assignee or beneficiary of the Issuer’s rights under this Agreement, including the Indenture Trustee on behalf of the Noteholders under any of the Transaction Documents.
Section 8. Grant Clause.
It is the intention of the parties hereto that each transfer and assignment contemplated by this Agreement shall constitute an absolute sale or contribution, as applicable, of the related Receivables from the Depositor to the Issuer and that the Aggregate Receivables shall not be part of Depositor’s estate or otherwise be considered property of the Depositor in the event of the bankruptcy, receivership, insolvency, liquidation, conservatorship or similar proceeding relating to the Depositor or any of its Property. However, if such conveyance is deemed to be in respect of a loan, it is intended that: (a) the rights and obligations of the parties shall be established pursuant to the terms of this Agreement; (b) the Depositor hereby grants to the Issuer a first priority security interest in all of the Depositor’s right, title and interest in, to and under, whether now owned or hereafter acquired, the Aggregate Receivables and the other Transferred Assets to secure payment of a debt equal to the purchase price for such Aggregate Receivables and other Transferred Assets; and (c) this Agreement shall constitute a security agreement under applicable law. The Depositor will, to the extent consistent with this Agreement, take such reasonable actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Aggregate Receivables and the other Transferred Assets to secure payment or performance of an obligation, such security interest would be a perfected security interest of first priority under applicable law and will be maintained as such throughout the term of this Agreement. The Depositor will, at its own expense, make all initial filings on or about the Closing Date and shall forward a copy of such filing or filings to the Indenture Trustee.
The Depositor hereby authorizes the Issuer and its assignees, successors and designees to file one or more UCC financing statements, financing statement amendments and continuation statements to perfect the security interest described herein.
Section 9. Grant by Issuer.
The Issuer shall have the right, upon notice to but without the consent of the Depositor, to Grant, in whole or in part, its interest under this Agreement with respect to the Receivables to the Indenture Trustee and the Indenture Trustee then shall succeed to all rights of the Issuer under this Agreement. All references to the Issuer in this Agreement shall be deemed to include its assignee or designee, specifically including the Indenture Trustee.
Section 10. Protection of Indenture Trustee’s Security Interest in Trust Estate.
(a) The Depositor shall maintain accounts and records as to each Receivable accurately and in sufficient detail to permit the reader thereof to know at any time following reasonable prior notice delivered to the Depositor, the status of such Receivable, including payments and recoveries made and payments owing. The Schedule of Receivables has been delivered to the Indenture Trustee and shall remain in its possession or control.
(b) The Depositor will maintain its computer records so that, from and after the Grant of the security interest under the Indenture, the Depositor’s master computer records (including any back-up archives) that refer to any Receivables indicate that the Receivables are owned by
the Issuer and pledged to the Indenture Trustee on behalf of the Noteholders. Indication of the Indenture Trustee’s interest in a Receivable shall be deleted from or modified on the Depositor’s records when, and only when, the Receivable has been paid in full or released from the lien of the Indenture pursuant to the Indenture.
Section 11. Limited Recourse.
No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer under this Agreement or any certificate or other writing delivered in connection herewith or therewith, against (a) any owner of a beneficial interest in the Issuer or (b) any holder of a beneficial interest in the Issuer in its individual capacity, except as any such Person may have expressly agreed. Notwithstanding any other terms of this Agreement, the Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Notes, the Indenture, this Agreement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of the Indenture, none of the Noteholders, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Notes, the Indenture or this Agreement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Notes or this Agreement. It is understood that the foregoing provisions of this Section 11 shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by the Indenture. It is further understood that the foregoing provisions of this Section 11 shall not, subject to Section 12(l) hereof, limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Notes or this Agreement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 12. Miscellaneous.
(a) Amendment . This Agreement may not be amended except by an instrument in writing signed by the Depositor and the Issuer upon delivery of an Issuer Tax Opinion and with the consent of the Administrative Agent. In addition, so long as the Notes are outstanding, this Agreement may not be amended unless either (x) Noteholders of more than the Series Required Noteholders of each Series shall have consented thereto or (y) (i) the amendment is for a purpose for which the Indenture could be amended without any Noteholder consent and (ii) the Depositor shall have delivered to the Indenture Trustee an officer’s certificate to the effect that the Depositor reasonably believes that any such amendment will not have a material Adverse Effect on the Noteholders of the Notes. Any such amendment requested by the Depositor shall be at its own expense. Amendments shall require notice to Note Rating Agencies as described in Section 11(a) of the Receivables Sale Agreement.
(b) Binding Nature; Assignment . The covenants, agreements, rights and obligations contained in this Agreement shall be binding upon the successors and assigns of the Depositor and shall inure to the benefit of the successors and assigns of the Issuer, and all persons claiming by, through or under the Issuer.
(c) Entire Agreement . This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof.
(d) [Reserved.]
(e) Severability of Provisions . Any provision of this Agreement which is prohibited, unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, unenforceability or non-authorization without invalidating the remaining provisions hereof or affecting the validity, enforceability or legality of such provision in any other jurisdiction.
(f) Governing Law . THIS AGREEMENT AND ANY CLAIM CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(g) WAIVER OF JURY TRIAL . EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN AN LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(h) Counterparts . This Agreement may be executed in several counterparts and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the original or the same counterpart. Any counterpart hereof signed by a party against whom enforcement of this Agreement is sought shall be admissible into evidence as an original hereof to prove the contents thereof. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterpart of this Agreement.
(i) Indulgences; No Waivers . Neither the failure nor any delay on the part of a party to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude
any other or future exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
(j) Headings Not to Affect Interpretation . The headings contained in this Agreement are for convenience of reference only, and they shall not be used in the interpretation hereof.
(k) Benefits of Agreement . Nothing in this Agreement, express or implied, shall give to any Person, other than the parties to this Agreement and their successors hereunder, any benefit of any legal or equitable right, power, remedy or claim under this Agreement.
(l) No Petition . The Depositor, by entering into this Agreement, agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all of the Notes, institute against the Issuer, or join in any institution against the Issuer of, Insolvency Proceedings or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes or this Agreement, or cause the Issuer to commence any reorganization, bankruptcy proceedings, or Insolvency Proceedings under any applicable state or federal law, including without limitation any readjustment of debt, or marshaling of assets or liabilities or similar proceedings. This Section 12(l) shall survive termination of this Agreement.
(m) Owner Trustee Limitation of Liability . It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust, National Association, not individually or personally, but solely as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, undertakings and agreements herein made on the part of the Issuer is made and intended not as a personal representation, undertaking and agreement by Wilmington Trust, National Association but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust, National Association, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust, National Association be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Agreement or the other Transaction Documents.
Section 13. Consent and Acknowledgment of Amendments.
100% of the Noteholders of the Series 2013-VF1 Variable Funding Notes have consented to this Agreement and each such Noteholder confirms that (i) it is the sole Noteholder of all the Outstanding Notes related to such Series with the right to instruct the Indenture Trustee, (ii) it is authorized to deliver this Agreement, such power has not been granted or assigned to any other person and the Indenture Trustee may rely upon such certification, and (iii) it acknowledges and agrees that the amendments effected by this Agreement shall become effective on the Effective Date.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Receivables Pooling Agreement to be duly executed as of the date first above written.
| NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC , as Depositor | ||
| By: |
/s/ Cameron MacDougall |
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| Name: | Cameron MacDougall | |
| Title: | Secretary | |
[BC Advance Receivables Issuer Trust - Signature Page to Amended and Restated Receivables Pooling Agreement]
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NRZ SERVICER ADVANCE RECEIVABLES TRUST BC , as Issuer By: Wilmington Trust, National Association not in its individual capacity but solely as Owner Trustee |
||
| By: |
/s/ Erwin M. Soriano |
|
| Name: |
Erwin M. Soriano |
|
| Title: |
Assistant Vice President |
|
[NRZ Servicer Advance Receivables Trust BC - Signature Page to Amended and Restated Receivables Pooling Agreement]
| CONSENTED TO BY: | ||
| BARCLAYS BANK PLC, as Committed Purchaser, Conduit Administrative Agent and as Administrative Agent of the Series 2013-VF1 Variable Funding Notes | ||
| By: |
/s/ Joseph O’Doherty |
|
| Name: |
Joseph O’Doherty |
|
| Title: |
Managing Director |
|
[NRZ Servicer Advance Receivables Trust BC - Signature Page to Amended and Restated Receivables Pooling Agreement]
| CONSENTED TO BY: | ||
| SHEFFIELD RECEIVABLES CORPORATION , as Conduit Holder of the Series 2013-VF1 Variable Funding Notes | ||
| By: | Barclays Bank PLC, as its attorney-in-fact | |
| By: |
/s/ Joseph O’Doherty |
|
| Name: |
Joseph O’Doherty |
|
| Title: |
Managing Director |
|
[NRZ Servicer Advance Receivables Trust BC - Signature Page to Amended and Restated Receivables Pooling Agreement]
Schedule 1
ASSIGNMENT OF RECEIVABLES
Dated as of [ ], 2013
This Assignment of Receivables (this “ Assignment ”) is a schedule to and is hereby incorporated by this reference into a certain Amended and Restated Receivables Pooling Agreement (the “ Agreement ”), dated as of December 17, 2013, by and between NRZ Servicer Advance Facility Transferor BC, LLC (f/k/a Nationstar Servicer Advance Facility Transferor, LLC 2013-BC), a Delaware limited liability company (the “ Depositor ”), and NRZ Servicer Advance Receivables Trust BC (f/k/a Nationstar Servicer Advance Receivables Trust 2013-BC), a statutory trust formed under the laws of the State of Delaware (the “ Issuer ”), and consented to by 100% of the Noteholders and the Administrative Agent. All capitalized terms used herein shall have the meanings set forth in, or referred to in, the Agreement.
By its signature to this Assignment, the Depositor hereby sells and/or contributes, assigns, transfers and conveys to the Issuer and its assignees, without recourse, but subject to the terms of the Agreement, all of the Depositor’s right, title and interest in, to and under its rights to reimbursement for Receivables arising under each Designated Servicing Agreement listed on Attachment A attached hereto, which Receivables exist on the date of this Assignment and any Additional Receivables arising under each Designated Servicing Agreement listed on Attachment A , on or before the related Receivables Sale Termination Date, the other Transferred Assets related to such Receivables, pursuant to the terms of the Agreement, and the Issuer hereby accepts such sale and/or contribution, assignment, transfer and conveyance and agrees to transfer to the Depositor the related consideration therefor, as set forth in the Agreement.
[Signature Page Follows]
| NRZ SERVICER ADVANCE FACILITY TRANSFEROR BC, LLC, as Depositor | ||
| By: |
|
|
| Name: |
|
|
| Title: |
|
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| NRZ SERVICER ADVANCE RECEIVABLES TRUST BC, as Issuer | ||
| By: Wilmington Trust, National Association not in its individual capacity but solely as Owner Trustee | ||
| Name: |
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| Title: |
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[NRZ Servicer Advance Receivables Trust BC - Signature Page to Schedule 1 to Amended and Restated Receivables Pooling Agreement - Assignment of Receivables]
Attachment A to Schedule 1
DESIGNATED SERVICING AGREEMENTS RELATED TO AGGREGATE RECEIVABLES
Attachment A to Schedule 1-1