FALSE000183163100018316312022-04-272022-04-27

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: April 27, 2022
_____________________
loanDepot, Inc.
(Exact Name of Registrant as Specified in its Charter)
_____________________
Delaware001-4000385-3948939
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(I.R.S. Employer
Identification Number)
26642 Towne Centre Drive
Foothill Ranch, California 92610
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (888) 337-6888
_____________________
Check the appropriate box below if the Form 8-K filing 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 (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange
on which registered
Class A Common Stock, $0.001 Par ValueLDINew York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company  ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  o

Item 1.01. Entry into a Material Definitive Agreement.

Amendment No. 3 to Second Amended and Restated Master Repurchase Agreement with Bank of America, N.A.
On April 27, 2022, loanDepot.com, LLC, a Delaware limited liability company and an indirect subsidiary of loanDepot. Inc. (the “Company”), as guarantor and pledgor, and loanDepot BA Warehouse, LLC, a Delaware limited liability company and a direct wholly-owned subsidiary of the Company (the “Seller”), as seller, entered into Amendment No. 3 ( the “BANA MRA Amendment No. 3”) to the Second Amended and Restated Master Repurchase Agreement, dated as of August 20, 2021 (as amended, restated, supplemented or otherwise modified from time to tim) with Bank of America, N.A., a national banking association, as buyer (“BANA”), pursuant to which the Seller may sell to BANA, and later repurchase, participation interests in residential mortgage loans that were issued to the Seller by the Company. The primary purpose of the BANA MRA Amendment No. 3 is to add new, and revise existing, definitions and provisions related to the Benchmark, including replacing LIBOR with Term SOFR for interest rate calculations.

The foregoing description of the BANA MRA Amendment No. 3 is not complete and is qualified in its entirety by reference to the full text of the BANA MRA Amendment No. 3, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference

Amendment No. 1 to Second Amended and Restated Mortgage Loan Purchase and Sale Agreement with Bank of America, N.A.
On April 27, 2022, the Company, as seller, entered into Amendment No. 1 (the “BANA MLPSA Amendment No. 1”) to the Second Amended and Restated Master Mortgage Loan Purchase and Sale Agreement, dated as of February 2, 2022 (as amended, restated, supplemented or otherwise modified from time to time) with Bank of America, N.A., as purchaser, pursuant to which the Company may sell to, and later repurchase from, BANA the Company’s beneficial right, title and interest in and to certain designated pools of fully amortizing first lien residential mortgage loans eligible in the aggregate to back securities and the servicing rights related thereto in exchange for a participation certificate. The primary purposes of the BANA MLPSA Amendment No. 1 are to (a) add new, and revise existing, definitions and provisions related to the Benchmark, including replacing LIBOR with Term SOFR for interest rate calculations and (b) amend certain provisions via certain ancillary agreements thereto.

The foregoing description of the BANA MLPSA Amendment No. 1 is not complete and is qualified in its entirety by reference to the full text of the BANA MLPSA Amendment No. 1, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

Amendment No. 2 to Master Repurchase Agreement with Barclays Bank PLC
On April 28, 2022, the Company, as seller, entered into Amendment No. 2 (the “Barclays MRA Amendment 2”) to the Master Repurchase Agreement, dated as of August 25, 2020 (as amended, restated, supplemented, or otherwise modified from time to time), with Barclays Bank PLC (“Barclays”), as purchaser and agent, pursuant to which the Company may sell to, and later repurchase from, Barclays, the Company’s beneficial right, title and interest in and to certain residential mortgage loans. The primary purposes of the Barclays MRA Amendment 2 are to (a) add new, and revise existing, definitions and provisions related to the Benchmark, including replacing LIBOR with Term SOFR for interest rate calculations, (b) amend certain definitions and provisions regarding Sanctions Lists, (c) amend the definitions of Price Differential and Pricing Rate, and (d) amend certain provisions and decrease the amount available under the facility, combined with the Barclays MLPPSA (as defined below), to $500,000,000 via certain ancillary agreements thereto.

The foregoing description of the Barclays MRA Amendment 2 is not complete and is qualified in its entirety by reference to the full text of the Barclays MRA Amendment 2, a copy of which is attached hereto as Exhibit 10.3 and is incorporated herein by reference.

Amendment No. 2 to Mortgage Loan Participation Purchase and Sale Agreement with Barclays Bank PLC
On April 28, 2022, the Company, as seller, entered into Amendment No. 2 (the “Barclays MLPPSA Amendment 2”) to the Mortgage Loan Participation and Sale Agreement, dated as of August 25, 2020 (as amended, restated, supplemented, or otherwise modified from time to time, the “Barclays MLPPSA”), with Barclays, as purchaser and agent, pursuant to which the Company may sell to Barclays participation interests in certain designated pools of residential mortgage loans eligible to back securities and, at a later date, cause such mortgage loans to back a security issued by the Company, which will be delivered to Barclays in exchange for the related participation certificate. The primary purposes of the Barclays MLPPSA Amendment 2 are to (a) add new, and revise existing, definitions and provisions related to the Benchmark, including replacing LIBOR with Term SOFR for interest rate calculations, (b) amend certain definitions and provisions regarding Sanctions Lists, and (c) amend certain provisions via certain ancillary agreements thereto.

The foregoing description of the Barclays MLPPSA Amendment 2 is not complete and is qualified in its entirety by reference to the full text of the Barclays MLPPSA Amendment 2, a copy of which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.

Fourteenth Amendment to Credit and Security Agreement with NexBank
On April 28, 2022, the Company, as borrower, entered into the Fourteenth Amendment (“Amendment 14”) to the Credit and Security Agreement, dated as of October 29, 2014 (as amended, restated, supplemented or otherwise modified from time to time) with NexBank, as lender (the “Lender”) pursuant to which the Lender extended a revolving line of credit available to the Company. The primary purposes of Amendment 14 are to (a) remove references to Fannie Mae, and (b) amend and move certain provisions and exhibits to an ancillary agreement.

The foregoing description of Amendment 14 is not complete and is qualified in its entirety by reference to the full text of Amendment 14, a copy of which is attached hereto as Exhibit 10.5 and is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.

Exhibit No.Description
10.1
10.2
10.3
10.4
10.5
104Cover Page Interactive Data File (embedded within the Inline XBRL document)



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 hereunto duly authorized.
loanDepot, Inc.
By:
/s/ Patrick Flanagan
Name: Patrick Flanagan
Title: Chief Financial Officer

Date: May 3, 2022

EXECUTION

AMENDMENT NO. 3 TO
SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT (this “Amendment”) is made and entered into as of April 27, 2022, by and between Bank of America, N.A. (“Buyer”) and loanDepot BA Warehouse, LLC (“Seller”), and acknowledged and agreed to by loanDepot.com, LLC, as guarantor and pledgor (“loanDepot” and together with the Seller, each a “loanDepot Party” and collectively, the “loanDepot Parties”). This Amendment amends that certain Second Amended and Restated Master Repurchase Agreement by and between Buyer and Seller, and acknowledged and agreed to by loanDepot, dated as of August 20, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”).
R E C I T A L S
Buyer and loanDepot Parties have previously entered into the Agreement pursuant to which Buyer may, from time to time, purchase certain Eligible Participation Interests from Seller and Seller agrees to sell certain Eligible Participation Interests to Buyer under a master repurchase facility. Buyer and loanDepot Parties hereby agree that the Agreement shall be amended as more fully provided herein.
In consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and loanDepot Parties hereby agree as follows:
1.Amendments. Effective as of the date hereof, the Agreement is hereby amended as follows:
(a)Alternative Rate. Section 4.13 of the Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:
4.13 Replacement of Term SOFR or Successor Rate. Notwithstanding anything to the contrary herein or in any other Principal Agreement:
(a) If Buyer determines (which determination shall be conclusive absent manifest error),or Seller notifies Buyer that Seller has determined that: (i) adequate and reasonable means do not exist for ascertaining Term SOFR, including, without limitation because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Buyer or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to Buyer, that will continue to provide Term SOFR after such specific date (the latest date on which Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely (the “Scheduled Unavailability Date”)), then, on a date and time determined by Buyer (any such date, the “Term SOFR Replacement Date”), which date shall be, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other Principal Agreement with Daily Simple SOFR for any payment period for the Price Differential calculated that can be determined by Buyer, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Principal Agreement (the “Successor Rate”).

(b) If the Successor Rate is Daily Simple SOFR, all payments of the Price Differential will be payable on a monthly basis.




(c) (i) If prior to any Payment Date Buyer determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 4.13(a)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, Buyer and Seller may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 4.13 for the calculation of the Price Differential payable on such relevant Payment Date with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such alternative benchmark, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Buyer from time to time in its sole good faith discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a “Successor Rate”. Any such proposed rate and adjustment shall become effective at 5:00 p.m. (New York City time) on the fifth Business Day after Buyer shall have posted such proposed rate and adjustment to Seller.

(d) Buyer will promptly (in one or more notices) notify Seller of the implementation of any Successor Rate.

(e) Any Successor Rate shall be applied consistent with market practice; provided that to the extent such market practice is not administratively feasible for Buyer, such Successor Rate shall be applied in a manner as otherwise determined by Buyer in its sole good faith discretion.

(f) In connection with the implementation of a Successor Rate, Buyer will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Principal Agreement, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
(b)Definitions. Exhibit A to the Existing Agreement is hereby amended by:
a.deleting the definitions of “Applicable Pricing Rate”, “Scheduled Unavailability Date”, “SOFR”, “Successor Rate” and “Term SOFR” in their entirety and replacing them with the following, respectively:
Applicable Pricing Rate: With respect to any date of determination, the greater of (i) the Term SOFR or any Successor Rate and (ii) 0%. It is understood that the Applicable Pricing Rate shall be adjusted on a daily basis.
Scheduled Unavailability Date: As defined in Section 4.13(a) of this Agreement.
SOFR: The secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
Successor Rate: As defined in Section 4.13(a) of this Agreement.
Term SOFR: The rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of the relevant period for the computation of the Price Differential, with a term equivalent to one month; provided that if the rate is not published prior to 11:00 a.m. on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such relevant period.
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b.adding the following definitions in their proper alphabetical order:
CME: CME Group Benchmark Administration Limited.
Conforming Changes: With respect to the use, administration of or any conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “SOFR”, “Term SOFR” and “Applicable Pricing Rate”, timing and frequency of determining rates and making payments of the Price Differential and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, length of lookback periods) as may be appropriate, in the discretion of Buyer, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Buyer in a manner substantially consistent with market practice (or, if Buyer decides that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate(s) exists, in such other manner of administration as Buyer determines in good faith is necessary in connection with the administration of this Agreement and the other Principal Agreements).
Daily Simple SOFR: With respect to any applicable determination date means the secured overnight financing rate published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source), plus the SOFR Adjustment for such relevant period.
SIFMA: As defined in Section 7.2(h) of this Agreement.
SOFR Adjustment: As defined in the Transactions Terms Letter.    
Term SOFR Replacement Date: As defined in Section 4.13(a) of this Agreement.
Term SOFR Screen Rate: The forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Buyer) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Buyer from time to time).
U.S. Government Securities Business Day: Any Business Day, except any Business Day on which any of the SIFMA, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.
c. deleting the definitions of “One-Month LIBOR”, “SOFR-Based Rate” and “Successor Rate Conforming Changes” and any and all references thereto in their entirety.
2.Fees and Expenses. The Seller agrees to pay to Buyer all fees and out of pocket expenses incurred by Buyer in connection with this Amendment, including all reasonable fees and out of pocket costs and expenses of the legal counsel to Buyer incurred in connection with this Amendment, in accordance with Section 11.7 of the Agreement.
3.No Other Amendments; Conflicts with Previous Amendments. Other than as expressly modified and amended herein, the Agreement shall remain in full force and effect and nothing herein shall affect the rights and remedies of Buyer as provided under the Agreement. To the extent any amendments to the Agreement contained herein conflict with any previous amendments to the Agreement, the amendments contained herein shall control.
4.Capitalized Terms. Any capitalized term used herein and not otherwise defined herein shall have the meaning ascribed to such term in the Agreement.
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5.Representations. In order to induce Buyer to execute and deliver this Amendment, loanDepot Parties hereby represent to Buyer that as of the date hereof, after giving effect to this Amendment, (i) loanDepot Parties are in full compliance with all of the terms and conditions of the Principal Agreements and remain bound by the terms thereof, and (ii) no Potential Default or Event of Default has occurred and is continuing under the Principal Agreements.
6.Governing Law. This Amendment shall be construed in accordance with the laws of the State of New York without regard to any conflicts of law provisions (except for Sections 5-1401 and 5-1402 of the New York General Obligations Law which shall govern). All legal actions between or among the parties regarding the Agreement, including, without limitation, legal actions to enforce the Agreement or because of a dispute, breach or default of the Agreement, shall be brought in the federal or state courts located in New York County, New York, which courts shall have sole and exclusive in personam, subject matter and other jurisdiction in connection with such legal actions and the parties acknowledge and agree that venue in such courts shall be convenient and appropriate for all purposes.
7.Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
8.Counterparts. This Amendment and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment (each a “Communication”) may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Amendment may be executed simultaneously in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but each counterpart shall be deemed to be an original and all such counterparts shall constitute one and the same agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by Buyer of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Electronic Signatures and facsimile signatures shall be deemed valid and binding to the same extent as the original. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.

[signature pages follow]


4




IN WITNESS WHEREOF, Buyer and loanDepot Parties have caused their names to be signed hereto by their respective officers thereunto duly authorized as of the date first written above. Buyer shall have no obligation to honor the terms and conditions of this Amendment if loanDepot Parties fail to fully execute and return this document to Buyer within three (3) days after the date hereof.

BANK OF AMERICA, N.A., as Buyer                    


By:_____________________________________
Name:    
Title:
LOANDEPOT BA WAREHOUSE, LLC, as Seller                    


By:_____________________________________
Name:    
Title:
Acknowledged and Agreed to by:

LOANDEPOT.COM, LLC, as guarantor                    


By: _____________________________________
Name:
Title:
LOANDEPOT.COM, LLC, as pledgor                    


By: _____________________________________
Name:
Title:



Signature Page to Amendment No.3 to Second A&R MRA (BANA/loanDepot)

EXECUTION

AMENDMENT NUMBER ONE
to the
Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement
dated as of February 2, 2022
between
BANK OF AMERICA, N.A.
and
LOANDEPOT.COM, LLC
THIS AMENDMENT NUMBER ONE (this “Amendment”) is made as of the 27th day of April, 2022, by and between Bank of America, N.A. (“Purchaser”) and loanDepot.com, LLC (“Seller”) to the Second Amended and Restated Mortgage Loan Participation Purchase and Sale Agreement, dated as of February 2, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), between Purchaser and Seller.
WHEREAS, Seller has requested and Purchaser agrees to amend the Agreement as more specifically set forth herein; and
WHEREAS, as of the date hereof, Seller represents to Purchaser that, after giving effect to this Amendment, it is in compliance with all of the representations and warranties and all of the affirmative and negative covenants set forth in the Agreement and is not in default under the Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the mutual covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1.Amendments. Effective as of the date hereof, the Agreement is hereby amended as follows:
(a)Section 1 of the Agreement is hereby amended by deleting the definitions of “Discount Rate”, “Scheduled Unavailability Date”, “SOFR”, “Successor Rate” and “Term SOFR” in their entirety and replacing them with the following, respectively:
Discount Rate”: With respect to each Participation Certificate, a discount rate determined as of the related Purchase Date equal to (a) the greater of (i) the Term SOFR or any Successor Rate, and (ii) 0%, plus (b) the Applicable Percentage.
Scheduled Unavailability Date”: As defined in Section 30(a) of this Agreement.
SOFR”: The secured overnight financing rate as administered by the Federal Reserve Bank of New York (or a successor administrator).
Successor Rate”: As defined in Section 30(a) of this Agreement.
Term SOFR”: The rate per annum equal to the Term SOFR Screen Rate two U.S. Government Securities Business Days prior to the commencement of the relevant period for the computation of the Discount Rate, with a term equivalent to one month; provided that if the rate is not published prior to 11:00 a.m. on such determination date, then Term SOFR means the Term SOFR Screen Rate on the first U.S. Government Securities Business Day immediately prior thereto, in each case, plus the SOFR Adjustment for such relevant period.
(b) Section 1 of the Agreement is hereby further amended by inserting the following new definitions in the appropriate alphabetical order:
CME”: CME Group Benchmark Administration Limited.



Conforming Changes”: With respect to the use, administration of or any conventions associated with SOFR, Term SOFR or any proposed Successor Rate, as applicable, any conforming changes to the definitions of “SOFR”, “Term SOFR” and “Discount Rate”, timing and frequency of determining rates and making payments of any amount calculated on the basis of the Discount Rate and other technical, administrative or operational matters (including, for the avoidance of doubt, the definitions of “Business Day” and “U.S. Government Securities Business Day”, length of lookback periods) as may be appropriate, in the discretion of Purchaser, to reflect the adoption and implementation of such applicable rate(s) and to permit the administration thereof by Purchaser in a manner substantially consistent with market practice (or, if Purchaser decides that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such rate(s) exists, in such other manner of administration as Purchaser determines in good faith is necessary in connection with the administration of this Agreement and the other Program Documents).
Daily Simple SOFR”: With respect to any applicable determination date means the secured overnight financing rate published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source), plus the SOFR Adjustment for such relevant period.
SOFR Adjustment”: With respect to Daily Simple SOFR and Term SOFR, 0.10% (10 basis points).
Term SOFR Replacement Date”: As defined in Section 30(a) of this Agreement
Term SOFR Screen Rate”: The forward-looking SOFR term rate administered by CME (or any successor administrator satisfactory to Purchaser) and published on the applicable Reuters screen page (or such other commercially available source providing such quotations as may be designated by Purchaser from time to time).

U.S. Government Securities Business Day”: Any Business Day, except any Business Day on which any of the SIFMA, the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business because such day is a legal holiday under the federal laws of the United States or the laws of the State of New York, as applicable.    
(c) Section 1 of the Agreement is hereby further amended by deleting the definitions of “One-Month LIBOR”, “SOFR-Based Rate” and “Successor Rate Conforming Changes” and any and all references thereto in their entirety.
(d) Section 30 of the Agreement is hereby amended by deleting such section in its entirety and replacing it with the following:
Section 30. Replacement of Term SOFR or Successor Rate. Notwithstanding anything to the contrary herein or in any other Program Document:
(a) If Purchaser determines (which determination shall be conclusive absent manifest error), or Seller notifies Purchaser that Seller has determined that: (i) adequate and reasonable means do not exist for ascertaining Term SOFR, including, without limitation because the Term SOFR Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) CME or any successor administrator of the Term SOFR Screen Rate or a Governmental Authority having jurisdiction over Purchaser or such administrator with respect to its publication of Term SOFR, in each case acting in such capacity, has made a public statement identifying a specific date after which Term SOFR or the Term SOFR Screen Rate shall or will no longer be made available, or permitted to be used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the time of such statement, there is no successor administrator that is satisfactory to Purchaser, that will continue to provide Term SOFR after such specific date (the latest date on which Term SOFR or the Term SOFR Screen Rate are no longer available permanently or indefinitely (the “Scheduled Unavailability Date”)),
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then, on a date and time determined by Purchaser (any such date, the “Term SOFR Replacement Date”), which date shall be, solely with respect to clause (ii) above, no later than the Scheduled Unavailability Date, Term SOFR will be replaced hereunder and under any other Program Document with Daily Simple SOFR for any payment period used to calculate any amount based on the Discount Rate that can be determined by Purchaser, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Program Document (the “Successor Rate”).
(b) (i) If prior to any payment date, Purchaser determines that Daily Simple SOFR is not available on or prior to the Term SOFR Replacement Date, or (ii) if the events or circumstances of the type described in Section 30(a)(i) or (ii) have occurred with respect to the Successor Rate then in effect, then in each case, Purchaser and Seller may amend this Agreement solely for the purpose of replacing Term SOFR or any then current Successor Rate in accordance with this Section 30 for the calculation of any amount based on the Discount Rate payable on such relevant payment date with an alternative benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such alternative benchmark, and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated mortgage loan financing facilities for such benchmark, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Purchaser from time to time in its sole good faith discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a “Successor Rate”. Any such proposed rate and adjustment shall become effective at 5:00 p.m. (New York City time) on the fifth Business Day after Purchaser shall have posted such proposed rate and adjustment to Seller.
(c) Purchaser will promptly (in one or more notices) notify Seller of the implementation of any Successor Rate.
(d) Any Successor Rate shall be applied consistent with market practice; provided that to the extent such market practice is not administratively feasible for Purchaser, such Successor Rate shall be applied in a manner as otherwise determined by Purchaser in its sole good faith discretion.
(e) In connection with the implementation of a Successor Rate, Purchaser will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Program Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement.
SECTION 2.Fees and Expenses. The Seller agrees to pay to Purchaser all fees and out of pocket expenses incurred by Purchaser in connection with this Amendment, including all reasonable fees and out of pocket costs and expenses of the legal counsel to Purchaser incurred in connection with this Amendment, in accordance with Section 22(a) of the Agreement.
SECTION 3.Defined Terms. Any terms capitalized but not otherwise defined herein should have the respective meanings set forth in the Agreement.
SECTION 4.Limited Effect. Except as amended hereby, the Agreement shall continue in full force and effect in accordance with its terms. Reference to this Amendment need not be made in the Agreement or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to, or with respect to, the Agreement, any reference in any of such items to the Agreement being sufficient to refer to the Agreement as amended hereby.
SECTION 5.Representations. In order to induce Purchaser to execute and deliver this Amendment, Seller hereby represents to Purchaser that as of the date hereof, after giving effect to this Amendment, (i) Seller is in full compliance with all of the terms and conditions of the Program Documents and remains bound by the terms thereof, and (ii) no Potential Default or Event of Default or servicing termination event (as described in Section 6(f) of the Agreement) has occurred and is continuing under the Program Documents.
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SECTION 6.Governing Law. This Amendment shall be construed in accordance with the laws of the State of New York without regard to any conflicts of law provisions (except for 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 the laws of the State of New York, except to the extent preempted by federal law.
SECTION 7.Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
SECTION 8.Counterparts. This Amendment and any document, amendment, approval, consent, information, notice, certificate, request, statement, disclosure or authorization related to this Amendment (each a “Communication”) may be in the form of an Electronic Record and may be executed using Electronic Signatures (including, without limitation, facsimile and .pdf) and shall be considered an original, and shall have the same legal effect, validity and enforceability as a paper record. This Amendment may be executed simultaneously in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but each counterpart shall be deemed to be an original and all such counterparts shall constitute one and the same agreement. For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by Purchaser of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an electronically signed Communication converted into another format, for transmission, delivery and/or retention. Electronic Signatures and facsimile signatures shall be deemed valid and binding to the same extent as the original. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
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IN WITNESS WHEREOF, Purchaser and Seller have caused this Amendment to be executed and delivered by their duly authorized officers as of the day and year first above written.

BANK OF AMERICA, N.A.,
as Purchaser
By: ________________________________
Name:
Title:
LOANDEPOT.COM, LLC,
as Seller
By: ________________________________
Name:
Title:

Signature Page to Amendment No. 1 to Second A&R Purchase and Sale Agreement (BANA/loanDepot)

Execution Version 1 AMENDMENT NO. 2 TO MASTER REPURCHASE AGREEMENT This Amendment No. 2 (this “Amendment”), dated as of April 28, 2022, amends that certain Master Repurchase Agreement, dated as of August 25, 2020 (as amended by that certain Amendment No. 1, dated as of September 24, 2021, and as further amended, restated, supplemented, or otherwise modified from time to time, the “Repurchase Agreement”), by and between Barclays Bank PLC, as purchaser and agent (“Purchaser”), and loanDepot.com, LLC, as seller (“Seller”). Capitalized terms used herein but not otherwise defined shall have the meanings given to such terms in the Repurchase Agreement. WHEREAS, the parties hereto desire to amend the Repurchase Agreement as described below. NOW, THEREFORE, in consideration of the amendments, agreements and other provisions herein contained and of certain other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the parties hereto, it is hereby agreed between Purchaser and Seller as follows: Section 1. Amendments. Effective as of the date hereof, the Repurchase Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto. Section 2. Fees and Expenses. Seller agrees to pay to Purchaser all fees and out of pocket expenses incurred by Purchaser in connection with this Amendment, including, without limitation, all reasonable fees and out of pocket costs and expenses of the legal counsel to Purchaser incurred in connection with this Amendment, in accordance with Section 2 and Section 3 of that certain Master Repurchase Agreement Pricing Side Letter, dated as of August 25, 2020 (as amended by that certain Amendment No. 1, dated as of September 29, 2020, that certain Amendment No. 2, dated as of November 24, 2020, that certain Amendment No. 3, dated as of December 18, 2020, that certain Amendment No. 4, dated as of March 10, 2020, that certain Amendment No. 5, dated as of April 16, 2021, that certain Amendment No. 6, dated as of August 18, 2021, that certain Amendment No. 7, dated as of September 24, 2021, and that certain Amendment No. 8, dated as of April 28, 2022, as further as amended, restated, supplemented, or otherwise modified from time to time, the “Pricing Side Letter”), by and between Seller and Purchaser, and Section 24(a) of the Repurchase Agreement. Section 3. Effectiveness of Amendment. The parties hereto agree that this Amendment shall not be effective until the execution and delivery to Purchaser of this Amendment by the parties hereto, the execution and delivery to Purchaser of (i) Amendment No. 8 to the Pricing Side Letter, dated as of April 28, 2022, (ii) Amendment No. 2 to Mortgage Loan Participation Purchase and Sale Agreement, dated as of April 28, 2022, and (iii) Amendment No. 1 to Mortgage Loan Participation Purchase and Sale Agreement Pricing Side Letter, dated as of April 28, 2022, in each case, by the parties thereto.


 
2 Section 4. Effect of Amendment. Except as expressly amended and modified by this Amendment, all provisions of the Repurchase Agreement shall remain in full force and effect and all such provisions shall apply equally to the terms and conditions set forth herein. After this Amendment becomes effective, all references in the Repurchase Agreement (or in any other document relating to the Mortgage Loans) to “this Agreement,” “the Repurchase Agreement,” “hereof,” “herein” or words of similar effect referring to such Agreement shall be deemed to be references to such Agreement as amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Repurchase Agreement other than as set forth herein. Section 5. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns. Section 6. Section Headings. The various headings and sub-headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the Repurchase Agreement or any provision hereof or thereof. Section 7. Representations. In order to induce Purchaser to execute and deliver this Amendment, Seller hereby represents to Purchaser that as of the date hereof (i) it is in full compliance with all of the terms and conditions of the Program Documents and remains bound by the terms thereof and (ii) no Default or Event of Default has occurred and is continuing under the Program Documents. Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (EXCEPT FOR 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 9. Counterparts. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Amendment by signing and delivering one or more counterparts. The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties. The original documents shall be promptly delivered, if requested. The parties agree that this Amendment, any addendum, exhibit or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Amendment may be accepted, executed or agreed to through the use of an electronic signature in accordance with E-Sign, UETA and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate document access tracking, electronic signature tracking and document retention as may be reasonably chosen by a signatory hereto, including but not limited to DocuSign.


 
Signature Page to Amendment No. 2 to Barclays-loanDepot Master Repurchase Agreement IN WITNESS WHEREOF, each undersigned party has caused this Amendment No. 2 to the Repurchase Agreement to be duly executed by one of its officers thereunto duly authorized as of the date and year first above written. BARCLAYS BANK PLC, as Purchaser and Agent By: Name: Title: Grace Park MD


 
Signature Page to Amendment No. 2 to Barclays-loanDepot Master Repurchase Agreement LOANDEPOT.COM, LLC, as Seller, By: Name: Title:


 
EXHIBIT A 065037.0000231 EMF_US 89633929v4


 
CONFORMED THROUGH AMENDMENT NO. 12, DATED AS OF SEPTEMBER 24APRIL 28, 20212022 MASTER REPURCHASE AGREEMENT Between BARCLAYS BANK PLC, as Purchaser and Agent and LOANDEPOT.COM, LLC, as Seller Dated as of August 25, 2020


 
-i- TABLE OF CONTENTS1 1. APPLICABILITY 1 2. DEFINITIONS AND INTERPRETATION 1 3. THE TRANSACTIONS 2633 4. [RESERVED] 2836 5. TAKEOUT COMMITMENTSTAKEOUT COMMITMENTS 2836 6. PAYMENT AND TRANSFER 2937 7. MARGIN MAINTENANCE 2937 8. TAXES; TAX TREATMENT 3038 9. EFFECT OF BENCHMARK TRANSITION EVENT32BENCHMARK REPLACEMENT 41 10. SECURITY INTEREST; PURCHASER’S APPOINTMENT AS ATTORNEY-IN-FACT 3342 11. CONDITIONS PRECEDENT 3544 12. RELEASE OF PURCHASED ASSETS 3948 13. RELIANCE 3948 14. REPRESENTATIONS AND WARRANTIES 3948 15. COVENANTS OF SELLER 4351 16. REPURCHASE OF PURCHASED ASSETS 5159 17. SERVICING OF THE MORTGAGE LOANS; SERVICER TERMINATION 5160 18. EVENTS OF DEFAULT 5463 19. REMEDIES 5665 20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE 5968 21. USE OF EMPLOYEE PLAN ASSETS 5968 22. INDEMNITY 5968 23. WAIVER OF ORDER OF DISPOSITION RIGHTS 6069 24. REIMBURSEMENT; SET-OFF 6069 25. FURTHER ASSURANCES 6271 26. ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION 6271 27. TERMINATION 6271 28. REHYPOTHECATION; ASSIGNMENT 6371 29. AMENDMENTS, ETC. 6473 30. SEVERABILITY 6473 31. BINDING EFFECT; GOVERNING LAW 6473 32. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS 6473 33. SINGLE AGREEMENT 6574 34. INTENT 6574 35. NOTICES AND OTHER COMMUNICATIONS 6776 36. CONFIDENTIALITY 6877 37. DUE DILIGENCE 6978 38. USA PATRIOT ACT; OFACSANCTIONS AND ANTI-TERRORISM 7079 39. EXECUTION IN COUNTERPARTS 7180 40. CONTRACTUAL RECOGNITION OF BAIL-IN 7181 1 Table of Contents was amended by Amendment No. 2, dated as of April 28, 2022.


 
41. CONTRACTUAL RECOGNITION OF UK STAY IN RESOLUTION 7181 42. NOTICE REGARDING CLIENT MONEY RULES. 7281 -ii-


 
SCHEDULES AND EXHIBITS EXHIBIT A-1 MONTHLY CERTIFICATION EXHIBIT A-2 QUARTERLY CERTIFICATION EXHIBIT B REPRESENTATIONS AND WARRANTIES WITH RESPECT TO MORTGAGE LOANS EXHIBIT C FORM OF TRANSACTION REPRESENTATIONS EXHIBIT D PREFUNDING REQUEST EXHIBIT E FORM OF WAREHOUSE LENDER’S RELEASE EXHIBIT F LIST OF DISAPPROVED MEMBERS OF THE MORTGAGE BACKED SECURITIES DIVISION OF THE FIXED INCOME CLEARING CORPORATION EXHIBIT G RESERVED EXHIBIT H FORM OF SELLER MORTGAGE LOAN SCHEDULE EXHIBIT I FORM OF CORRESPONDENT SELLER RELEASE EXHIBIT J FORM OF SELLER FINANCIAL STATEMENTS (ANNUAL) EXHIBIT K FORM OF SELLER FINANCIAL STATEMENTS (PERIODIC) EXHIBIT L TAKEOUT INVESTORS -i-


 
MASTER REPURCHASE AGREEMENT Dated as of August 25, 2020 BETWEEN: BARCLAYS BANK PLC, in its capacity as purchaser (together with its permitted successors and assigns in such capacity hereunder, “Barclays” or a “Purchaser”) and agent pursuant hereto (together with its permitted successors and assigns in such capacity hereunder, “Agent”), and loanDepot.com, LLC, in its capacity as a seller (together with its permitted successors and assigns in such capacity hereunder, “Seller”). 1. APPLICABILITY Purchaser may from time to time, upon the terms and conditions set forth herein, agree to enter into transactions on an uncommitted basis in which Seller sells to Purchaser Eligible Mortgage Loans, on a servicing-released basis, and, if applicable, Takeout MBS, against the transfer of funds by Purchaser, with a simultaneous agreement by Purchaser to transfer to Seller such Purchased Assets on a date certain not later than one year following such transfer, against the transfer of funds by Seller; provided, that the Aggregate MRA Purchase Price shall not exceed, as of any date of determination, the lesser of (a) the Maximum Aggregate Purchase Price (less the Aggregate EPF Purchase Price) and (b) the Asset Base. Each such transaction shall be referred to herein as a “Transaction,” and shall be governed by this Agreement. This Agreement sets forth the procedures to be used in connection with periodic requests for Purchaser to enter into Transactions with Seller. Seller hereby acknowledges that Purchaser is under no obligation to enter into, any Transaction pursuant to this Agreement. Seller acknowledges that during the term of this Agreement, Agent may undertake to join any of Sheffield Receivables Corporation, Barclays Bank Delaware, Salisbury Receivables Company LLC, and Barclays CCP Funding LLC as additional purchasers under this Agreement and provided that such entities enter into a customary nondisclosure agreement with Seller, Seller hereby consents to the joinder of such additional purchasers. In the event that Agent undertakes to join any other asset-backed commercial paper conduits administered by Agent or any Affiliate of the Agent as additional purchasers under this Agreement, such additional purchasers may be joined hereunder with prior written notice to Seller provided that such entities are either financial institutions or financial participants, as such terms are defined in Bankruptcy Code Sections 101(22) and 101(22)(A), respectively, and provided further that such entities enter into a customary nondisclosure agreement with Seller. 2. DEFINITIONS AND INTERPRETATION (a) Defined Terms.


 
- 2 - “30+ Day Delinquent Mortgage Loan” means any Mortgage Loan that, as of any determination date, using the MBA Methodology, is thirty (30) or more days delinquent (inclusive of any grace period). “Accepted Servicing Practices” means with respect to any Mortgage Loan, those accepted, customary and prudent mortgage servicing practices (including collection procedures) of prudent mortgage banking institutions that service mortgage loans of the same type as the Mortgage Loans in the jurisdiction where the related Mortgaged Property is located, and which are in accordance with the requirements of each Agency Program, applicable law, FHA regulations and VA regulations, if applicable, and the requirements of any private mortgage insurer so that the FHA insurance, VA guarantee or any other applicable insurance or guarantee in respect of any Mortgage Loan is not voided or reduced. “Accrual Period” means, with respect to each Monthly Payment Date for any Transaction, the immediately prior calendar month beginning with the first calendar day of such month to and including the last calendar day of such month; provided that with respect to the first Monthly Payment Date of a Transaction following the related Purchase Date, the Accrual Period shall commence on the related Purchase Date and provided further that the last Accrual Period shall end on the day prior to the Termination Date.2 “Additional Eligible Loan Criteria” has the meaning assigned thereto in the Pricing Side Letter. “Additional Purchased Mortgage Loans” has the meaning assigned thereto in Section 7(b) hereof. “Adjustable Rate Mortgage Loan” means a Mortgage Loan that provides for the adjustment of the Mortgage Interest Rate payable in respect thereto. “Affiliate” means with respect to any specified entity, any other entity controlling or controlled by or under common control with such specified entity. For the purposes of this definition, “control” when used with respect to a specified entity means the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” having meanings correlative to the foregoing. For the avoidance of doubt, none of (a) MTH Mortgage, LLC, MSC Mortgage, LLC, TRI Pointe Connect, LLC, Day One Mortgage, LLC, Farm Bureau Mortgage, LLC, LGI Mortgage Solutions LLC, Henlopen Mortgage, LLC, BRP Home Mortgage, LLC, CUSA Affordable Housing, LLC, Commercial Agency USA, LLC, (b) any Permitted Holder or (c) any joint venture formed by Seller or the Permitted Holders after the date hereof in which (i) Seller holds a non-controlling interest and (ii) whose financial 2 The definition of “Accrual Period” was amended by Amendment No. 2, dated as of April 28, 2022.


 
- 3 - “Aggregate MRA Purchase Price” means as of any date of determination, an amount equal to the aggregate Outstanding Purchase Price for all Purchased Assets then subject to Transactions under this Agreement.35 “Agreement” means this Master Repurchase Agreement (including all exhibits, schedules and other addenda thereto), as it may be amended, further supplemented or otherwise modified from time to time. “ALTA” means the American Land Title Association. performance has no material impact on Seller’s financial performance; in all cases shall be considered an Affiliate for purposes of this Agreement or any other Program Document. 13 “Agency” means Freddie Mac, Fannie Mae or Ginnie Mae, as applicable. “Agency Guide” means the Freddie Mac Guide, the Fannie Mae Guide, or the Ginnie Mae Guide, as applicable. “Agency Mortgage Loans” means Fannie Mae Mortgage Loans, Freddie Mac Mortgage Loans, and Ginnie Mae Mortgage Loans. For the avoidance of doubt, the term “Agency Mortgage Loans” does not include Agency Scratch and Dent Mortgage Loans. “Agency Program” means the Freddie Mac Program, the Fannie Mae Program or the Ginnie Mae Program, as applicable. “Agency Scratch and Dent Mortgage Loan” means a first lien Mortgage Loan originated by Seller and intended to be originated in accordance with the criteria of Fannie Mae, Freddie Mac or Ginnie Mae, as applicable, except such Mortgage Loan is not eligible for sale to or pooling with the Agency. “Agent” has the meaning set forth in the preamble. “Aggregate EPF Purchase Price” means as of any date of determination, an amount equal to the aggregate Outstanding Purchase Price (as defined in the Mortgage Loan Participation Purchase and Sale Agreement) for all Participation Certificates (as defined in the Mortgage Loan Participation Purchase and Sale Agreement) then owned by Purchaser under the Mortgage Loan Participation Purchase and Sale Agreement.24 13 The definition of “Affiliate” was amended by Amendment No. 1, dated as of September 24, 2021. 24 The definition of “Aggregate EPF Purchase Price” was amended by Amendment No. 1, dated as of September 24, 2021. 35 The definition of “Aggregate MRA Purchase Price” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 4 - “Applicable Agency” means Ginnie Mae, Fannie Mae or Freddie Mac, as applicable. “Applicable Margin” has the meaning assigned thereto in the Pricing Side Letter. “Approvals” means with respect to Seller, the approvals obtained from the Applicable Agency or HUD in designation of Seller as a Ginnie Mae-approved issuer, an FHA-approved mortgagee, a VA-approved lender, a Fannie Mae-approved lender or a Freddie Mac-approved Seller/Servicer, as applicable, in good standing. “Asset Base” has the meaning assigned thereto in the Pricing Side Letter. “Assignment and Acceptance” has the meaning assigned thereto in Section 28(b) hereof. “Assignment of Mortgage” means, with respect to any Mortgage, an assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the assignment of the Mortgage to Purchaser. “ATR Rules”: means the “ability to repay” rules specified in the federal Truth-in-Lending Act as amended pursuant to rulemaking authority provided under the federal Dodd-Frank Act which require lenders to make a reasonable, good-faith determination that a Mortgagor has an ability to repay the loan as determined by the following eight (8) underwriting factors: (i) current or reasonably expected income or assets (other than the value of the property that secures the loan) that the Mortgagor will rely on to repay the loan, (ii) current employment status (if the originator relies on employment income when assessing the Mortgagor’s ability to repay), (iii) monthly mortgage payment for the loan, (iv) monthly payment on any simultaneous loans secured by the same property, (v) monthly payments for property taxes and required insurance, and certain other costs related to the property such as homeowners association fees or ground rent, (vi) debts, alimony, and child-support obligations, (vii) monthly debt-to-income ratio or residual income, calculated using the total of all of the mortgage and nonmortgage obligations listed above, as a ratio of gross monthly income and (viii) credit history.46 “Attorney Bailee Letter” has the meaning assigned thereto in the Custodial and Disbursement Agreement. “Authoritative Copy” means, with respect to an eNote, the unique copy of such eNote that is within the Control of the Controller. “Bail-In Action” means the exercise by the Bank of England (or any successor resolution authority) of any write-down or conversion power existing from time to time (including, without limitation, any power to amend or alter the maturity of eligible liabilities of an institution under resolution or amend the amount of interest payable under such eligible liabilities or the date on which interest becomes payable, including by suspending payment for a temporary period and together with any power to terminate and value transactions) under, and 46 The definition of “ATR Rules” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 5 - “Benchmark” means, initially LIBOR, Term SOFR; provided that if a replacementBenchmark Transition Event has occurred pursuant to Section 9with respect to Term SOFR or the then-current Benchmark, then “"Benchmark”" means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced thesuch prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.5 pursuant to Section 9.7 “Benchmark Replacement” means the sum of: (1) For purposes of Section 9(b), the first alternative set forth below that can be determined by the Agent: (a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for a tenor of one-month’s duration, or (b) the sum of: (i) Daily Compounded SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of LIBOR with a SOFR-based rate having approximately the same length as the Accrual Period; and (1) (2) For purposes of Section 9(c), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Agent and the Purchaser as the replacement for the relevant tenor of such Benchmark giving due consideration to (a) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body at such time or exercised in compliance with, any laws, regulations, rules or requirements in effect in the United Kingdom relating to the transposition of the European Banking Recovery and Resolution Directive as amended from time to time, including but not limited to, the Banking Act 2009 as amended from time to time, and the instruments, rules and standards created thereunder, pursuant to which Purchaser’s obligations (or those of Purchaser’s affiliates) can be reduced (including to zero), canceled or converted into shares, other securities, or other obligations of Purchaser or any other person. “Bank” means (i) Deutsche Bank National Trust Company and its successors and permitted assigns or (ii) such other bank as may be mutually acceptable to the Seller and the Purchaser. “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., as amended from time to time. 5 The definition of “Benchmark” was added by Amendment No. 1, dated as of September 24, 2021. 7 The definition of “Benchmark” was added by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022.


 
- 6 - provided that, if at any time, the Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and theany other Program Documents.68 “Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an Unadjusted Benchmark Replacement for each applicable Accrual Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Agent and the SellerPurchaser giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjustedthe factors set forth in clauses (1)(a) and (1)(b) in the definition of Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBOR with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities at such time.. “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Accrual Period,” timing and frequency of determining rates and making payments of interest, timing of seller requests orfor repurchase, the applicability and length of lookback periods and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement).79 (b) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated for determining a rate of interest for Dollar-denominated syndicated or bilateral credit facilities at such time; and (2) the Benchmark Replacement Adjustment, 68 The definition of “Benchmark Replacement” was added by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022. 79 The definition of “Benchmark Replacement Conforming Changes” was amended by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April


 
- 7 - “Benchmark Replacement Date” means the date on which a Benchmark Replacement becomes effective pursuant to Section 9.10 “Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all applicable tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any applicable tenor of such Benchmark or, (b) all applicable tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.8 or that such Benchmark is or will not be in compliance or aligned with the International Organization of Securities Commissions Principals for Financial Benchmarks, (c) Agent determines in its sole discretion that, by reason of circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining such Benchmark, or (d) Agent determines in its sole discretion that the adoption of any Change in Law or in the interpretation or application thereof shall make it unlawful for Purchaser to accrue Price Differential based on such Benchmark.11 “Business Day” means (A) any day other than (i) a Saturday or Sunday, or (ii) a day upon which the New York Stock Exchange or the Federal Reserve Bank of New York is closed., or (iii) with respect to any day on which the parties hereto have obligations to the Custodian or on which the Custodian has obligations to any party hereto, a day upon Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022. 10 The definition of “Benchmark Replacement Date” was added by Amendment No. 2, dated as of April 28, 2022. 8 The definition of “Benchmark Transition Event” was amended by Amendment No. 1, dated as of September 24, 2021; the definitions of “Benchmark Replacement Date,” “Benchmark Transition Start Date” and “Benchmark Unavailability Period” were removed by Amendment No. 1, dated as of September 24, 2021. 11 The definition of “Benchmark Transition Event” was amended by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022; the definitions of “Benchmark Replacement Date,” “Benchmark Transition Start Date” and “Benchmark Unavailability Period” were deleted by Amendment No. 1, dated as of September 24, 2021.


 
- 8 - which the Custodian’s offices are closed, and (B) with respect to any calculation of Term SOFR, a U.S. Government Securities Business Day.12 “Certification” has the meaning assigned thereto in the Custodial and Disbursement Agreement. “Change in Control” means (a) any event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 51% or more of the equity securities of loanDepot, Inc., a Delaware corporation, entitled to vote for members of the board of directors or equivalent governing body of Seller on a fully-diluted basis, (b) the sale, transfer, or other disposition of all or substantially all of Seller’s assets (excluding any such action taken in connection with any securitization transaction or routine sales of Mortgage Loans) or (c) the consummation of a merger or consolidation of Seller with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity’s equity outstanding immediately after such merger, consolidation or such other reorganization is owned by persons who were not equityholders of the Seller immediately prior to such merger, consolidation or other reorganization.913 “Change in Law” means (a) the adoption of any Requirement of Law, rule or regulation after the date of this Agreement, (b) any change in any Requirement of Law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by Purchaser with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Collection Account” means the following account established by the Seller in accordance with Section 17(e) for the benefit of Purchaser, Account Number: 01419647, ABA: # 021001033. “Collection Account Bank” means (i) JPMorgan Chase Bank, N.A. and its successors and permitted assigns or (ii) such other bank as may be mutually acceptable to the Seller and the Purchaser. “Collection Account Control Agreement” means that certain Collection Account Control Agreement, dated as of August 25, 2020, by and among Purchaser, Seller and Bank, in form and 12 The definition of “Business Day” was amended by Amendment No. 2, dated as of April 28, 2022.


 
- 9 - substance reasonably acceptable to Purchaser to be entered into with respect to the Collection Account, as the same may be amended, modified or supplemented from time to time.14 “Compounded SOFR” means the compounded average of SOFRs for the applicable month, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Accrual Period) being established by the Agent in accordance with: (a) the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; or (b) if, and to the extent that, the Agent determines that Compounded SOFR cannot be determined in accordance with clause (a) above, then the rate, or methodology for this rate, and conventions for this rate that the Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time; provided that if the Agent decides that any such rate, methodology or convention determined in accordance with clause (a) or clause (b) above is not administratively feasible for the Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement”. “Confirmation” has the meaning assigned thereto in Section 4 hereof. “Contract” means an agreement between an Originator and any Obligor, pursuant to or under which such Obligor shall be obligated to pay for merchandise, insurance or services from time to time. “Control” means, with respect to an eNote, the “control” of such eNote within the meaning of UETA and/or, as applicable, E-Sign, which is established by reference to the MERS eRegistry and any party designated therein as the Controller. “Controller” means, with respect to an eNote, the party designated in the MERS eRegistry as the “Controller”, and who in such capacity shall be deemed to be “in control” or to be the “controller” of such eNote within the meaning of UETA or E-Sign, as applicable. 913 The definition of “Change in Control” was amended by Amendment No. 1, dated as of September 24, 2021. 14 The definition of “Compounded SOFR” was deleted by Amendment No. 2, dated as of April 28, 2022.


 
- 10 - “Correspondent Loan” means a Mortgage Loan that is (i) originated by a Correspondent Seller and underwritten in accordance with Seller’s underwriting guidelines and (ii) acquired by Seller from a Correspondent Seller in the ordinary course of business. “Correspondent Seller” means a mortgage loan originator that sells Mortgage Loans originated by it to Seller as a “correspondent” or “private label” client. “Correspondent Seller Release” means, with respect to any Correspondent Loan, a release by the related Correspondent Seller of all right, title and interest, including any security interest, in such Correspondent Loan, in a form substantively similar to the form of Exhibit I attached hereto, as reasonably and mutually agreed to by Seller and Agent. “Current Business Operations” means all operations related to: being a mortgage-related technology company; the origination, servicing and sale of residential mortgages, home equity loans, consumer loans and other financial assets; the acquisition of newly originated residential mortgages and other financial assets; the acquisition of mortgage servicing rights and servicing rights for other financial assets; the acquisition of residential mortgage-backed securities; title insurance; settlement services; appraisal management services; default-related services to servicers and asset managers; title services; insurance brokerage; real estate brokerage services; issuing, sponsoring, pooling of or acquisition of publicly offered and privately issued mortgage backed securities, mortgage participation certificates and pools of un-securitized mortgage loans, and reasonably related ancillary activities. “Custodial and Disbursement Agreement” means that certain Custodial and Disbursement Agreement, dated as of August 25, 2020, among Seller, Purchaser, Agent, Disbursement Agent and Custodian, entered into in connection with this Agreement and the Mortgage Loan Participation Purchase and Sale Agreement, as the same may be amended, modified or supplemented from time to time. “Custodian” means Deutsche Bank National Trust Company, and its successors and permitted assigns, or such other entity as mutually agreed upon by Agent and Seller.15 “Daily Compounded SOFR” means, for any day, SOFR, with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Agent in accordance with a methodology and the conventions for this rate selected or recommended by the Relevant Governmental Body for determining "Daily Compounded SOFR" for syndicated or bilateral business loans; provided that, if the Agent decides that any such 15 The definition of “Daily Compounded SOFR” was amended by Amendment No. 1, dated as of September 24, 2021; and was deleted by Amendment No. 2, dated as of April 28, 2022.


 
- 11 - “Early Opt-in Election” means the occurrence of:11 (1) (i) a determination by the Agent or (ii) a notification by the Purchaser to the Agent (with a copy to the Seller) that the Purchaser has determined that U.S. dollar-denominated syndicated or bilateral credit facilities being executed at such time, contain (as a result of amendment or as convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.10 “Default” means any event that, with the giving of notice or the passage of time or both, would constitute an Event of Default. “Default Rate” has the meaning assigned thereto in the Pricing Side Letter. “Delegatee” means, with respect to an eNote, the party designated in the MERS® eRegistry as the “Delegatee” or “Delegatee for Transfers”, and in such capacity is authorized by the Controller to perform certain MERS® eRegistry transactions on behalf of the Controller, such as a Transfer of Control and a Transfer of Control and Location. “Disbursement Agent” means Deutsche Bank National Trust Company and its successors and permitted assigns, or such other entity as mutually agreed upon by Agent and Seller. “Dollars” or “$” means, unless otherwise expressly stated, lawful money of the United States of America. “Due Date” means the day of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace. “Due Diligence Review Amount” has the meaning assigned thereto in the Pricing Side Letter. “Economic and Trade Sanctions and Anti-Terrorism Laws” means any laws relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering, or bribery, all as amended, supplemented or replaced from time to time.16 10 The definition of “Daily Compounded SOFR” was amended by Amendment No. 1, dated as of September 24, 2021. 16 The definition of “Early Opt-in Election” was amended by Amendment No. 1, dated as of September 24, 2021, and was deleted by Amendment No. 2, dated as of April 28, 2022. 11 The definition of “Early Opt-in Election” was amended by Amendment No. 1, dated as of September 24, 2021.


 
originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based on SOFR) as a benchmark rate, and (2) (i) the election by the Agent or (ii) the election by the Purchaser to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written notice of such election to the Seller and the Purchaser or by the Purchaser of written notice of such election to the Agent. “Effective Date” means August 25, 2020. “Electronic Agent” means MERSCORP Holdings, Inc., or its successor in interest or assigns. “Electronic Record” means, as the context requires, (i) “Record” and “Electronic Record,” both as defined in E-Sign, and shall include but not be limited to, recorded telephone conversations, fax copies or electronic transmissions, including without limitation, those involving the Warehouse Electronic System, and (ii) with respect to an eMortgage Loan, the related eNote and all other documents comprising the Mortgage File electronically created and that are stored in an electronic format, if any. “Electronic Tracking Agreement” means one or more Electronic Tracking Agreements with respect to (x) the tracking of changes in the ownership, mortgage servicers and servicing rights ownership of Purchased Mortgage Loans held on the MERS System, and (y) the tracking of the Control of eNotes held on the MERS eRegistry, each in a form acceptable to Agent. “Electronic Transmission” means the delivery of information in an electronic format acceptable to the applicable recipient thereof. An Electronic Transmission shall be considered written notice for all purposes hereof (except when a request or notice by its terms requires execution). “Eligible Mortgage Loan” means a Mortgage Loan that (i) satisfies each of the representations and warranties in Exhibit B to this Agreement in all material respects, (ii) if such Mortgage Loan is (a) a Fannie Mae Mortgage Loan, a Freddie Mac Mortgage Loan, or a Ginnie Mae Mortgage Loan, it is in Strict Compliance with the eligibility requirements of the Ginnie Mae Program, Fannie Mae Program or Freddie Mac Program, as applicable, (b) a Jumbo Mortgage Loan, it conforms with all requirements of Seller’s underwriting guidelines, which are subject to Purchaser’s approval in its sole good faith discretion, (iii) with respect to all Mortgage Loans other than Wet-Ink Mortgage Loans, contains all required documents in the Mortgage File without exceptions unless otherwise waived by Purchaser or permitted pursuant to the terms of this Agreement or the Custodial and Disbursement Agreement, and (iv) satisfies the Additional Eligible Loan Criteria. “eMortgage Loan” means a Mortgage Loan with respect to which there is an eNote and as to which some or all of the other documents comprising the related Mortgage File may be - 12 -


 
- 13 - “eNote Replacement Failure” shall have the meaning set forth in the Custodial and Disbursement Agreement.1520 “EPF Custodial Account Control Agreement” means that certain Custodial Account Control Agreement, dated as of August 25, 2020, among Seller, Purchaser and Bank entered into in connection with the Mortgage Loan Participation Purchase and Sale Agreement, as the same shall be amended, supplemented or otherwise modified from time to time. “EPF Pricing Side Letter” means that certain Pricing Side Letter, dated as of August 25, 2020, between Seller and Purchaser entered into in connection with the Mortgage Loan Participation Purchase and Sale Agreement, as the same shall be amended, supplemented or otherwise modified from time to time. “EPF Program Documents” means the Mortgage Loan Participation Purchase and Sale Agreement, the EPF Pricing Side Letter, the EPF Custodial Account Control Agreement and all other agreements, documents and instruments entered into by Seller on the one hand, and Purchaser or one of its Affiliates (or Custodian on its behalf) and/or Agent or one of its Affiliates on the other, in connection herewith or therewith with respect to the transactions contemplated hereunder or thereunder and all amendments, restatements, modifications or supplements thereto. “ERISA” means, with respect to any Person, the Employee Retirement Income Security Act of 1974, as amended from time to time and any successor thereto, and the regulations promulgated and rulings issued thereunder. created electronically and not by traditional paper documentation with a pen and ink signature.1217 “eNote” means, with respect to any eMortgage Loan, the electronically created and stored Mortgage Note that is a Transferable Record.1318 “eNote Delivery Requirement” shall have the meaning set forth in Section 6(c) of this Agreement.1419 1217 The definition of “eMortgage Loan” was moved pursuant to Amendment No. 1, dated as of September 24, 2021. 1318 The definition of “eNote” was moved pursuant to Amendment No. 1, dated as of September 24, 2021. 1419 The definition of “eNote Delivery Requirement” was moved pursuant to Amendment No. 1, dated as of September 24, 2021. 1520 The definition of “eNote Replacement Failure” was moved pursuant to Amendment No. 1, dated as of September 24, 2021.


 
- 14 - “eVault” means an electronic repository established and maintained by an eVault Provider for delivery and storage of eNotes.1722 “eVault Provider” means Document Systems, Inc. d/b/a DocMagic, or its successor in interest or assigns, or such other entity agreed upon by Custodian and Agent.1823 “Event of Default” has the meaning assigned thereto in Section 17 hereof. “Event of Insolvency” means, with respect to any Person, (i) the filing of a voluntary petition (or the consent by such Person to the filing of any such petition against it), commencing, or authorizing the commencement of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or suffering any such petition or proceeding to be commenced by another; or such Person shall consent or seek to the appointment of or taking possession by a custodian, receiver, conservator, trustee, liquidator, sequestrator or similar official of such Person, or for any substantial part of its Property, or any general assignment for the benefit of creditors; “Escrow Agreement” means that certain Fourth Amended and Restated Escrow Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Escrow Agreement, dated as of the date hereof, by and among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Escrow Instruction Letter” means the Escrow Instruction Letter from Seller to the Settlement Agent in a form reasonably and mutually agreed to by Seller and Agent. “Escrow Payments” means, with respect to a Mortgage Loan, the amounts constituting ground rents, taxes, assessments, water charges, sewer rents, municipal charges, mortgage insurance premiums, fire and hazard insurance premiums, condominium charges and other payments as may be required to be escrowed by the Mortgagor with the Mortgagee pursuant to the terms of the Mortgage or any other document. “E-Sign” means the federal Electronic Signatures in Global and National Commerce Act, as amended from time to time.1621 1621 The definition of “E-Sign” was moved pursuant to Amendment No. 1, dated as of September 24, 2021. 1722 The definition of “eVault” was moved pursuant to Amendment No. 1, dated as of September 24, 2021. 1823 The definition of “eVault Provider”” was moved pursuant to Amendment No. 1, dated as of September 24, 2021.


 
(ii) a proceeding shall have been instituted against such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, moratorium, delinquency or liquidation law of any jurisdiction, whether now or subsequently in effect, or a custodian, receiver, conservator, liquidator, trustee, sequestrator or similar official for such Person or such Person’s Property (as a debtor or creditor protection procedure) is appointed by any Governmental Authority having the jurisdiction to do so or takes possession of such Property and any such proceeding is not stayed or dismissed within sixty (60) days of filing; (iii) that such Person or any Affiliate shall become “insolvent” as such term is defined in Section 101(32)(A) of the Bankruptcy Code; (iv) that such Person shall (a) admit in writing its inability to pay or discharge its debts or obligations generally as they become due or mature, (b) admit in writing its inability to, or intention not to, perform any of its material obligations, or (c) generally fail to pay any of its debts or obligations as they become due or mature; or (v) any Governmental Authority shall have seized or appropriated, or assumed custody or control of, all or any substantial part of the Property of such Person, or shall have taken any action to displace the management of such Person. “Excluded Taxes” means any Taxes imposed on or with respect to Purchaser or required to be withheld or deducted from a payment to Purchaser: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of Purchaser being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Purchaser with respect to an applicable interest in this Agreement pursuant to a law in effect on the date on which (i) such Purchaser acquires such interest in this Agreement or the other Program Documents or (ii) such Purchaser changes its lending office, except in each case to the extent that amounts with respect to such Taxes were payable either to such Purchaser's assignor immediately before such Purchaser became a party hereto or to such Purchaser immediately before it changed its lending office, (c) Taxes attributable to Purchaser’s failure to timely furnish the IRS Forms described in or otherwise comply with the provisions of Sections 8(d), and (d) any withholding taxes imposed under FATCA. “Fannie Mae” means the Federal National Mortgage Association or any successor thereto. “Fannie Mae Agreement” means that certain Wiring Instruction and Release of Interest Agreement, dated the date hereof, by and among Barclays, Seller, the Custodian and Fannie Mae. “Fannie Mae Guide” means the Fannie Mae MBS Selling and Servicing Guide, as such Guide may hereafter from time to time be amended. - 15 -


 
- 16 - “Fannie Mae Mortgage Loan” means a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Fannie Mae Program described in the Fannie Mae Guide. “Fannie Mae Program” means the Fannie Mae Guaranteed Mortgage-Backed Securities Programs, as described in the Fannie Mae Guide. “Fannie Mae Security” means an ownership interest in a pool of Fannie Mae Mortgage Loans, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York, issued and guaranteed, with respect to timely payment of interest and ultimate payment of principal, by Fannie Mae and backed by a pool of Fannie Mae Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Fannie Mae Security in the related Takeout Commitment, if any. “Federal Reserve Bank of New York’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “FHA” means the Federal Housing Administration, an agency within HUD, or any successor thereto, and including the Federal Housing Commissioner and the Secretary of Housing and Urban Development where appropriate under the FHA regulations. “FHA 203k Loan” means a Mortgage Loan that is eligible for FHA’s 203(k) loan program. “FHA Buyout Loan” means an Eligible Mortgage Loan that (a) is insured by FHA, (b) is a Ginnie Mae Mortgage Loan, (c) has been purchased out of a Ginnie Mae Security, and (d) is not a Modified Loan. “FICO Score” means the credit score of the Mortgagor provided by Fair, Isaac & Company, Inc. or such other organization providing credit scores on or immediately prior to the Origination Date of a Mortgage Loan. “Floor” has the meaning assigned thereto in the Pricing Side Letter.1924 “Foreign Purchaser” has the meaning assigned thereto in Section 8(d). 1924 The definition of “Floor” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 17 - “Freddie Mac” means the Federal Home Loan Mortgage Corporation, and its successors in interest. “Freddie Mac Agreement” means that certain Repurchase Addendum to Freddie Mac Forms 996 and 996E, dated the date hereof, by and among Barclays, Seller, the Custodian and Freddie Mac. “Freddie Mac Guide” means the Freddie Mac Sellers’ and Servicers’ Guide, as such Guide may hereafter from time to time be amended. “Freddie Mac Mortgage Loan” means a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Freddie Mac Program described in the Freddie Mac Guide. “Freddie Mac Program” means the Freddie Mac Home Mortgage Guarantor Program or the Freddie Mac FHA/VA Home Mortgage Guarantor Program, as described in the Freddie Mac Guide. “Freddie Mac Security” means a modified pass-through mortgage-backed participation certificate, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York, issued and guaranteed, with respect to timely payment of interest and ultimate payment of principal, by Freddie Mac and backed by a pool of Freddie Mac Mortgage Loans in substantially the principal amount and with substantially the other terms as specified with respect to such Freddie Mac Security in the related Takeout Commitment, if any. “GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America. “Ginnie Mae” means the Government National Mortgage Association and its successors in interest, a wholly-owned corporate instrumentality of the government of the United States of America. “Ginnie Mae Guide” means the Ginnie Mae Mortgage-Backed Securities Guide, as such Guide may hereafter from time to time be amended. “Ginnie Mae Mortgage Loan” means a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Ginnie Mae Program in the applicable Ginnie Mae Guide, and such mortgage loan has not been purchased out of a Ginnie Mae Security.2025 “Ginnie Mae Program” means the Ginnie Mae Mortgage-Backed Securities Programs, as described in the Ginnie Mae Guide. 2025 The definition of “Ginnie Mae Mortgage Loan” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 18 - “Hsieh Investors” shall mean each of the JLSSAA Trust, established September 4, 2014, JLSA, LLC, Trilogy Mortgage Holdings, Inc., Trilogy Management Investors Six, LLC, Trilogy Management Investors Seven, LLC and Trilogy Management Investors Eight, LLC and each of their respective Affiliates.2227 “HUD” means the Department of Housing and Urban Development, or any federal agency or official thereof which may from time to time succeed to the functions thereof with regard to FHA mortgage insurance. The term “HUD,” for purposes of this Agreement, is also deemed to include subdivisions thereof such as the FHA and Ginnie Mae. “Ginnie Mae Security” means a fully-modified pass-through mortgage-backed certificate guaranteed by Ginnie Mae, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York and backed by a pool of Ginnie Mae Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Ginnie Mae Security in the related Takeout Commitment.2126 “Governmental Authority” means any nation or government, any state or other political subdivision, agency or instrumentality thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over Seller. “Hash Value” means, with respect to an eNote, the unique, tamper-evident digital signature of such eNote that is stored with MERS. “Hedge Instrument” means any interest rate cap agreement, interest rate floor agreement, interest rate swap agreement or other interest rate hedging agreement entered into by Seller with a counterparty reasonably acceptable to Agent, in each case with respect to the Mortgage Loans. “High Cost Mortgage Loan” means a Mortgage Loan that is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost,” “covered,” “threshold,” “abusive,” “predatory” or “high risk” mortgage loan under any federal, state or local law, or any similarly classified loan using different terminology under any law imposing heightened regulation, scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees, or any other state or other regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations, or (d) a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the current version of the Standard & Poor’s LEVELS® Glossary Revised, Appendix E. 2126 The definition of “Ginnie Mae Security” was amended by Amendment No. 1, dated as of September 24, 2021. 2227 The definition of “Hsieh Investors” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 19 - “Income” means, with respect to any Purchased Asset at any time, any principal and/or interest thereon and all dividends, sale proceeds and all other proceeds as defined in Section 9-102(a)(64) of the Uniform Commercial Code and all other collections and distributions thereon (including, without limitation, any proceeds received in respect of mortgage insurance) but excluding any Escrow Payments and any and all fees, reimbursements and income entitled to be retained by a Servicer pursuant to the related Servicing Agreement. “Incremental Purchase Price” has the meaning assigned thereto in Section 3(i) hereof. “Indebtedness” has the meaning assigned thereto in the Pricing Side Letter. “Indemnified Party” has the meaning assigned thereto in Section 22(a). “Indemnified Taxes” means (i) Taxes, other than Excluded Taxes, imposed on or withheld or deducted from any payment made by the Seller to a Purchaser with respect to this Agreement or the other Program Documents, and (ii) any Other Taxes. “Intercreditor Agreement” means that certain Fourth Amended and Restated Intercreditor Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Intercreditor Agreement, dated as of the date hereof, by and among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Initial Purchase Price” has the meaning assigned thereto in the Pricing Side Letter.2328 “Investment Company Act” means the Investment Company Act of 1940, as amended, including all rules and regulations promulgated thereunder. “Joint Securities Account Control Agreement” means that certain Fourth Amended and Restated Joint Securities Account Control Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Joint Securities Account Control Agreement, dated as of the date hereof, by and among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Jumbo Mortgage Loan” means a first lien Mortgage Loan which (i) conforms with all requirements of Seller’s underwriting guidelines, which are subject to Purchaser’s approval in its sole good faith discretion, as the same may be amended, supplemented or otherwise modified 2328 The definition of “Initial Purchase Price” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 20 - from time to time and (ii) has the benefit of the safe harbor from liability under the ATR Rules or a rebuttable presumption for such liability.2930 “LIBOR” means for each day, the rate (adjusted for statutory reserve requirements for eurocurrency liabilities) for eurodollar deposits for a period equal to one month appearing on Bloomberg Screen US 0001M Page or if such rate ceases to appear on Bloomberg Screen US 0001M Page, or any other service providing comparable rate quotations as selected by Purchaser or Agent on behalf of Purchaser in good faith from time to time for purposes of providing quotations of interest rates applicable to U.S. dollar deposits in the London interbank market for deposits in Dollars with a term equivalent to such Accrual Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Accrual Period. As used herein, LIBOR shall be the daily reset of LIBOR with one month maturity.24 “Lien” means any mortgage, deed of trust, lien, claim, pledge, charge, security interest or similar encumbrance. “Location” means, with respect to an eNote, the location of such eNote which is established by reference to the MERS eRegistry. “Margin Call” has the meaning assigned thereto in Section 7(b) hereof. “Margin Deficit” has the meaning assigned thereto in Section 7(b) hereof. “Market Value” means, with respect to any Transaction and as of any date of determination, (i) the value ascribed to a Purchased Asset or a Mortgage Loan by Agent in its sole, good faith discretion, using methodology customarily used by Agent to value similar assets and (ii) zero, with respect to any Mortgage Loan that is a Purchased Asset but is not an Eligible Mortgage Loan. “Master Netting Agreement” means that certain Global Netting and Security Agreement, dated as of August 25, 2020, among Purchaser, Seller, and certain Affiliates of Purchaser, entered into in connection with this Agreement and the Mortgage Loan Participation Purchase and Sale Agreement, as the same shall be amended, supplemented or otherwise modified from time to time. 29 The definition of “LIBOR” was amended by Amendment No. 1, dated as of September 24, 2021, and was deleted by Amendment No. 2, dated as of April 28, 2022. 30 The definition of “LIBOR Floor” was deleted by Amendment No. 1, dated as of September 24, 2021 24 The definition of “LIBOR” was amended by Amendment No. 1, dated as of September 24, 2021; the definition of “LIBOR Floor” was removed by Amendment No. 1, dated as of September 24, 2021.


 
- 21 - “Material Adverse Change” means, with respect to a Person, any material adverse change in the business, condition (financial or otherwise), operations or Property of such Person including the insolvency of such Person or its Parent Company, if applicable. “Material Adverse Effect” means (a) a Material Adverse Change with respect to Seller or any of its Affiliates that is a party to any Program Document; (b) a material impairment of the ability of Seller or Servicer or any of their respective Affiliates that is a party to any Program Document to perform under any Program Document to which it is a party; (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Document against Seller or any of its Affiliates that is a party to any Program Document; (d) a material adverse effect on the Market Value of the Purchased Assets taken as a whole; or (e) a material adverse effect on the Approvals of Seller.2531 “Maturity Date” has the meaning assigned thereto in the Pricing Side Letter. “Maximum Age Since Origination” has the meaning assigned thereto in the Pricing Side Letter. “Maximum Aggregate Purchase Price” has the meaning assigned thereto in the Pricing Side Letter. “MBA Methodology” means a method of calculating delinquency of a Mortgage Loan based upon the Mortgage Banker Association method, under which method a Mortgage Loan is considered delinquent if the Monthly Payment related to such Mortgage Loan has not been received by the end of the day immediately preceding the loan’s next Due Date. “MERS” means Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor in interest thereto. “MERS Designated Mortgage Loan” means any Mortgage Loan as to which the related Mortgage or Assignment of Mortgage, has been recorded in the name of MERS, as agent for the holder from time to time of the Mortgage Note. “MERS eDelivery” means the transmission system operated by the Electronic Agent that is used to deliver eNotes, other Electronic Records and data from one MERS eRegistry member to another using a system-to-system interface and conforming to the standards of the MERS eRegistry. “MERS eRegistry” means the electronic registry operated by the Electronic Agent that acts as the legal system of record that identifies the Controller, Delegatee and Location of the Authoritative Copy of registered eNotes. “MERS Org ID” means a number assigned by the Electronic Agent that uniquely identifies MERS members, or, in the case of a MERS Org ID that is a “Secured Party Org ID”, 2531 The definition of “Material Adverse Effect” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 22 - “Minimum Transfer Amount” means an amount equal to $250,000, provided that if an Event of Default has occurred, the Minimum Transfer Amount shall be zero.2632 “Modified Loan” means an Eligible Mortgage Loan that (a) is insured by FHA or guaranteed by the VA, (b) (1) was purchased out of a Ginnie Mae Security or from a third-party whole loan investor solely as a result of modifications to such Eligible Mortgage Loan, or (2) was purchased out of a Ginnie Mae Security or from a third-party whole loan investor as a result of delinquent mortgage payments, but, without any loan modifications, subsequently became reperforming and (c) is a Ginnie Mae Mortgage Loan. “Monthly Payment” means the scheduled monthly payment of principal and interest on a Mortgage Loan as adjusted in accordance with changes in the Mortgage Interest Rate pursuant to the provisions of the Mortgage Note for an Adjustable Rate Mortgage Loan. “Monthly Payment Date” means the tenth (10th) day of each calendar month beginning with September 2020; provided that if such day is not a Business Day, the next succeeding Business Day. “Mortgage” means a mortgage, deed of trust, or other security instrument, securing a Mortgage Note. “Mortgage File” has the meaning assigned thereto in the Custodial and Disbursement Agreement. “Mortgage Interest Rate” means, with respect to each Mortgage Loan, the annual rate at which interest accrues on such Mortgage Loan from time to time in accordance with the provisions of the related Mortgage Note. “Mortgage Loan” means a Ginnie Mae Mortgage Loan, a Fannie Mae Mortgage Loan, an FHA 203k Loan, a Freddie Mac Mortgage Loan, a Jumbo Mortgage Loan, an Agency Scratch and Dent Mortgage Loan, an FHA Buyout Loan, a VA Buyout Loan, a Modified Loan, or a Wet-Ink Mortgage Loan.2733 “Mortgage Loan Participation Purchase and Sale Agreement” means that certain Mortgage Loan Participation Purchase and Sale Agreement, dated as of August 25, 2020, uniquely identifies MERS eRegistry members, which assigned numbers for each of Agent, Seller and Custodian have been provided to the parties hereto. “MIN” means the mortgage identification number of Mortgage Loans registered with MERS on the MERS System. 2632 The definition of “Minimum Transfer Amount” was added by Amendment No. 1, dated as of September 24, 2021. 2733 The definition of “Mortgage Loan” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 23 - between Purchaser and Seller, as the same may be amended, modified or supplemented from time to time. “Mortgage Note” means a promissory note or other evidence of indebtedness of the obligor thereunder (including an eNote), evidencing a Mortgage Loan, and secured by the related Mortgage. “Mortgaged Property” means the real property (or leasehold estate, if applicable) securing repayment of the debt evidenced by a Mortgage Note. “Mortgagee” means the record holder of a Mortgage Note secured by a Mortgage. “Mortgagor” means the obligor or obligors on a Mortgage Note, including any person who has assumed or guaranteed the obligations of the obligor thereunder. “Negative Amortization” means the portion of interest accrued at the Mortgage Interest Rate in any month which exceeds the Monthly Payment on the related Mortgage Loan for such month and which, pursuant to the terms of the Mortgage Note, is added to the principal balance of such Mortgage Loan. “Non-Utilization Fee” has the meaning assigned thereto in the Pricing Side Letter. “Obligations” means (a) all amounts due and payable by Seller to Purchaser in connection with a Transaction hereunder, together with interest thereon (including interest which would be payable as post-petition interest in connection with any bankruptcy or similar proceeding) and other obligations and liabilities of Seller to Purchaser arising under, or in connection with, the Program Documents or directly related to the Purchased Assets, whether now existing or hereafter arising; (b) any and all sums paid by Purchaser or on behalf of Purchaser pursuant to the Program Documents in order to preserve any Purchased Asset or its interest therein; (c) in the event of any proceeding for the collection or enforcement of any of Seller’s indebtedness, obligations or liabilities referred to in clause (a), the reasonable expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Purchased Asset, or of any exercise by Purchaser of its rights under the Program Documents, including without limitation, reasonable attorneys’ fees and disbursements and court costs; and (d) all of Seller’s indemnity obligations to Purchaser pursuant to the Program Documents. “Obligor” means a Person obligated to make payments pursuant to a Contract; provided that in the event that any payments in respect of a Contract are made by any other Person, such other Person shall also be deemed to be an Obligor. “OFAC” means the Office of Foreign Assets Control of the United States Department of Treasury.34 34 The definition of “OFAC Lists” was deleted by Amendment No. 2, dated as of April 28, 2022.


 
- 24 - “Outstanding Purchase Price” means, for any Purchased Asset, as of any date of determination, the Initial Purchase Price thereof, as reduced by any amount thereof repaid to the Purchaser pursuant to the terms of the Agreement and as increased by any Incremental Purchase Price related to such Purchased Asset.2836 “Parent Company” means a corporation or other entity owning at least 50% of the outstanding shares of voting stock of Seller. “Parthenon Investors” shall mean each of Parthenon Investors III, L.P., PCap Associates, Parthenon Capital Partners Fund, L.P., Parthenon Investors IV, L.P., Parthenon Capital Partners Fund II, L.P. and PCP Managers, L.P. and each of their respective Affiliates. 2937 “OFAC Lists” has the meaning ascribed to it in Section 38(a). “OFSI” means the Office of Financial Sanctions Implementation of the United Kingdom’s HM Treasury.35 “Originator” means Seller or any other third party originator as mutually agreed upon by Agent and Seller. “Other Agreement” means any (A) warehouse, credit, repurchase, line of credit, financing or hedging agreements or other similar agreement relating to any Indebtedness in an amount greater than $10,000,000 between Seller or any of its Affiliates or Subsidiaries, on the one hand, and any Person, on the other hand, or (B) warehouse, credit, repurchase, line of credit, financing or hedging agreements or other agreement relating to any Indebtedness (including, without limitation, the Program Documents and the EPF Program Documents) in any amount entered into between Seller or any of its Affiliates or Subsidiaries, on the one hand, and Purchaser or any of its Affiliates, on the other hand. “Other Connection Taxes” means, with respect to Purchaser, Taxes imposed as a result of a present or former connection between Purchaser and the jurisdiction imposing such Tax (other than connections arising from Purchaser having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Program Document, or sold or assigned an interest in any Purchased Asset or any Program Document). “Other Taxes” has the meaning assigned thereto in Section 8(b). 35 The definition of “OFSI” was added by Amendment No. 2, dated as of April 28, 2022. 2836 The definition of “Outstanding Purchase Price” was added by Amendment No. 1, dated as of September 24, 2021. 2937 The definition of “Parthenon Investors” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 25 - “Permitted Holders” means the Parthenon Investors and the Hsieh Investors.3038 “Permitted Tax Distributions”: As to any taxable period of Seller for which Seller, if a corporation, makes an S corporation election, or if a multi-member limited liability company or a partnership, does not make an election with the Internal Revenue Service to be treated as a corporation, an annual or quarterly distribution necessary to enable each shareholder, partner or member, as applicable, of Seller to pay income taxes attributable to such shareholder, partner or member resulting solely from such shareholder’s, partner’s or member’s allocated share of income of Seller for such period). “Person” means any legal person, including any individual, corporation, partnership, association, joint stock company, trust, limited liability company, unincorporated organization, governmental entity or other entity of similar nature. “Prefunding Request” means a written request (which may be delivered electronically) of Seller that Purchaser prefund Transactions expected to occur on the following Business Day, which request shall be in the form of Exhibit D hereto or such other form as shall be mutually agreed upon between Seller and Purchaser, which is deemed to be delivered to the Purchaser in accordance with Section 3(c) herein. “Price Differential” means, with respect to any Purchased Mortgage LoanAsset or Transaction as of any date of determination, an amount equal to the sum, for all days elapsed during the related Accrual Period, of the product of (A) the Pricing Rate (or during the continuation of an Event of Default, by daily application of the Default Rate), and (B) the Outstanding Purchase Price for such Purchased Mortgage LoanAsset or Transaction in respect of such day and (C) 1/360.31 Price Differential will be calculated in accordance with Section 3 herein for the actual number of days elapsed during a given Accrual Period.39 “Price Differential Determination Date” means, with respect to any Monthly Payment Date, the second (2nd) Business Day preceding such date. “Pricing Rate” means, as of any date of determination and with respect to an Accrual Period for any Purchased Mortgage Loan or Transaction, an amount equal to the sum of (i) the greater of (a) the Benchmark and (b) the Floor plus (ii) the Applicable Margin.3240 3038 The definition of “Permitted Holders” was added by Amendment No. 1, dated as of September 24, 2021. 31 The definition of “Price Differential” was amended by Amendment No. 1, dated as of September 24, 2021. 39 The definition of “Price Differential” was amended by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022. 3240 The definition of “Pricing Rate” was amended by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022.


 
- 26 - “Pricing Side Letter” means that certain Pricing Side Letter, dated as of August 25, 2020, between Seller and Purchaser, entered into in connection with this Agreement, as the same may be amended, modified or supplemented from time to time. “Principal Balance” means the unpaid principal balance of a Mortgage Loan. “Program Documents” means this Agreement, the Pricing Side Letter, the Custodial and Disbursement Agreement, the Servicer Side Letter, the Collection Account Control Agreement, any assignment of Hedge Instrument, the Electronic Tracking Agreement, the Master Netting Agreement, the EPF Program Documents, the Escrow Agreement, the Intercreditor Agreement, the Joint Securities Account Control Agreement, and all other agreements, documents and instruments entered into by Seller on the one hand, and Purchaser (or Custodian on its behalf) and/or Agent or one of its Affiliates on the other, in connection herewith or therewith with respect to the Transactions contemplated hereunder or thereunder and all amendments, restatements, modifications or supplements thereto. “Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. “Purchase Date” means, with respect to each Transaction, the date on which Purchased Assets, are sold by Seller to the Purchaser or its designee hereunder; provided, that a Purchase Date for any FHA Buyout Loan, VA Buyout Loan or Modified Loan may occur no more than four (4) times within a calendar month and, without the prior written consent of Agent, shall not occur within the final four (4) Business Days of such calendar month.3341 “Purchase Price Percentage” has the meaning assigned thereto in the Pricing Side Letter. “Purchased Assets” means with respect to each Purchased Mortgage Loan, whether now existing or hereafter acquired: (i) the Mortgage Loans sold by the Seller to the Purchaser in such Transaction, (ii) the related Servicing Rights, (iii) Seller’s rights under any related Hedge Instruments to the extent related to the Mortgage Loans, (iv) all mortgage guarantees and insurance relating to such individual Mortgage Loans (issued by governmental agencies or otherwise) or the related Mortgaged Property and any mortgage insurance certificate or other document evidencing such mortgage guarantees or insurance and all claims and payments related to such Mortgage Loans, (v) all guarantees or other support for such Mortgage Loans, (vi) all rights to Income and the rights to enforce such payments arising from such Mortgage Loans and any other contract rights, payments, rights to payment (including payments of interest or finance charges) with respect thereto, (vii) all Takeout MBS, Takeout Commitments, and Trade Assignments (including the rights to receive the related purchase price related therefor) related to the Purchased Mortgage Loans, (viii) the Collection Account and all amounts on deposit therein, (ix) all Additional Purchased Mortgage Loans, (x) all “accounts,” “deposit accounts,” “securities accounts,” “chattel paper,” “commercial tort claims,” “deposit accounts,” “documents,” “general intangibles,” “instruments,” “investment property,” and “securities accounts,” relating to the foregoing as each of those terms is defined in the Uniform Commercial 3341 The definition of “Purchase Date” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 27 - Code and all cash and Cash Equivalents and all other products and proceeds relating to or constituting any or all of the foregoing, (xi) any purchase agreements or other agreements or contracts relating to or constituting any or all of the foregoing, (xii) any other collateral pledged or otherwise relating to any or all of the foregoing, together with all files, material documents, instruments, surveys (if available), certificates, correspondence, appraisals, computer records, computer storage media, accounting records and other books and records relating to the foregoing, and (xiii) any and all replacements, substitutions, distributions on, or proceeds with respect to, any of the foregoing. The term “Purchased Assets” with respect to any Transaction at any time also shall include Additional Purchased Mortgage Loans delivered pursuant to Section 7(b) hereof.3442 “Purchased Mortgage Loan” means a Mortgage Loan sold by Seller to Purchaser in a Transaction hereunder and not yet repurchased by Seller. “Purchaser” has the meaning set forth in the preamble hereof. “Purchaser’s Wire Instructions” has the meaning set forth in the Pricing Side Letter. “Qualified Insurer” means, with respect to any Mortgaged Property, any insurer duly qualified as such under the laws of the states in which such Mortgaged Property is located, duly authorized and licensed in such state to transact the applicable insurance business and to write the insurance provided by the insurance policy issued by it. “Records” means all instruments, agreements and other books, records, and reports and data generated by other media for the storage of information maintained by Seller or any other person or entity with respect to a Purchased Asset. Records shall include, without limitation, the Mortgage Notes, any Mortgages, the Mortgage Files, the Servicing Files, and any other instruments necessary to document or service a Purchased Mortgage Loan, including, without limitation, the complete payment and modification history of each Purchased Mortgage Loan. “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto. “Repurchase Date” means, with respect to any Transaction involving Eligible Mortgage Loans, the earliest of (a) the Termination Date, (b) the date designated in Seller’s written notice to Purchaser requesting a repurchase of such Transaction, which shall be on the date on which Seller delivers such written notice, except that, if Seller delivers such notice after 4:30 p.m. (New York City time) the date shall be one Business Day after the date in which Seller delivers such written notice, or (c) at the conclusion of the Maximum Age Since Origination for any Eligible Mortgage Loan purchased hereunder, or if any such day is not a Business Day, the immediately following Business Day. 3442 The definition of “Purchased Assets” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 28 - “Sanctions Lists” has the meaning ascribed to it in Section 38(a).45 “SEC” has the meaning ascribed thereto in Section 35. “Section 404 Notice” means the notice required pursuant to Section 404 of the Helping Families Save Their Homes Act of 2009 (P.L. 111-22), which amends 15 U.S.C. Section 1641 et seq., to be delivered by a creditor that is an owner or an assignee of a Mortgage Loan to the related Mortgagor within thirty (30) days after the date on which such Mortgage Loan is sold or assigned to such creditor. “Repurchase Price” means the price at which Purchased Assets are to be transferred from Purchaser or its designee to Seller upon termination of a Transaction, which will be determined in each case as the sum of: (i) any portion of the Outstanding Purchase Price, (ii) the Price Differential accrued and unpaid thereon, and (iii) any accrued and unpaid fees or expenses or indemnity amounts and any other outstanding amounts owing under the Program Documents from Seller to Purchaser.3543 “Request for Release of Documents” means the Request for Release of Documents set forth as Annex 3 or Annex 5 to the Custodial and Disbursement Agreement, as applicable. “Requirement of Law” means as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject. “Responsible Officer” means (i) as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer of such Person and (ii) as to Seller, Chief Executive Officer, Chief Financial Officer or Treasurer. “Restricted Mortgage Loan” means (i) a “Growing Equity Loan,” “Manufactured Home Loan,” “Graduated Payment Loan,” “Buydown Loan,” “Project Loan,” “Construction Loan” or “HECM Loan,” each as defined in the applicable Agency Guide, (ii) a 30+ Day Delinquent Mortgage Loan, (iii) a Mortgage Loan for which the related Escrow Payments have not been made by the next succeeding Due Date, or (iv) a High Cost Mortgage Loan.3644 3543 The definition of “Repurchase Price” was amended by Amendment No. 1, dated as of September 24, 2021. 3644 The definition of “Restricted Mortgage Loan” was amended by Amendment No. 1, dated as of September 24, 2021. 45 The definition of “Sanctions Lists” was added by Amendment No. 2, dated as of April 28, 2022.


 
- 29 - “Security” means a Ginnie Mae Security, Fannie Mae Security or a Freddie Mac Security, as applicable. “Seller” has the meaning set forth in the preamble hereof. “Seller Mortgage Loan Schedule” means the list of Purchased Mortgage Loans proposed to be purchased by Purchaser, in the form of Exhibit H hereto, that will be delivered in an excel spreadsheet format by Seller to Purchaser and Custodian and attached by the Custodian to the related Certification. “Servicer” means any servicer or subservicer approved by Agent in its sole discretion, which may be Seller or Cenlar FSB. “Servicer Side Letter” means, if Mortgage Loans are serviced by a third party servicer pursuant to a servicing agreement, the side letter agreement related to such servicing agreement among the Seller, the Servicer and the Purchaser, which is substantially in the form mutually agreed upon by the parties hereto. “Servicer Termination Event” means each of the following events:3746 a. Change of Servicer without consent of the Agent; b. An event of default has occurred and is continuing after the expiration of any cure period under the Servicing Agreement as modified by the Servicer Side Letter; c. Failure of Servicer to service the Mortgage Loans in accordance with Accepted Servicing Practices in any material respect and such failure continues for three (3) Business Days of the date on which Seller obtains notice or knowledge of the facts giving rise to such failures; d. Failure of Servicer to meet the qualifications to maintain all requisite Approvals, such Approvals are revoked or such Approvals are materially modified; e. If, at any time, Servicer’s HUD ranking falls below “Tier 2” lender; f. Failure by Servicer to remit when due Income payments required to be made under the terms of this Agreement or such Mortgage Loan and such failure continues for three (3) Business Days after Seller obtains notice or knowledge of the facts giving rise to such failure; g. Servicer fails to operate or conduct any material portion of its business operations in the ordinary course, or Servicer experiences any other material adverse change in its business operations or financial condition, which, in Agent’s sole good faith discretion, 3746 The definition of “Servicer Termination Event” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 30 - “Servicing Agreement” means, if Mortgage Loans are serviced by a third party servicer, the servicing agreement between such servicer and Seller.3847 “Servicing File” means with respect to each Mortgage Loan, the file retained by Seller or its designee consisting of all documents that are customarily retained by servicers that service mortgage loans substantially similar to such Mortgage Loan, which would include copies of the Mortgage File, all documents necessary to document and service the Mortgage Loans and any and all documents required to be delivered in connection with any transfer of servicing pursuant to the Program Documents. “Servicing Records” means with respect to a Mortgage Loan, the related servicing records, including but not limited to any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of such Mortgage Loan. “Servicing Rights” means contractual, possessory or other rights of Seller or any other Person to administer or service a Mortgage Loan or to possess the Servicing File. “Servicing Term” has the meaning assigned thereto in Section 17(b). “Settlement Agent” means, with respect to any Transaction the subject of which is a Wet-Ink Mortgage Loan, the entity approved by Agent, in its sole good-faith discretion, which may be a title company, escrow company or attorney in accordance with local law and practice in the jurisdiction where the related Wet-Ink Mortgage Loan is being originated. “SOFR” means a rate per annum equal to, with respect to any day, the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New Yorkpublished for such day by the SOFR Administrator on the SOFR Administrator’s website, currently at http://www.newyorkfed.org (, or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rateSOFR Administrator from time to time).3948 constitutes a material impairment of Servicer’s ability to perform its obligations under this Agreement or any other related document; or h. An Event of Insolvency with respect to Servicer. “Servicing Agent” means, with respect to an eNote, the field entitled, “Servicing Agent” in the MERS eRegistry. 3847 The definition of “Servicing Agreement” was amended by Amendment No. 1, dated as of September 24, 2021. 3948 The definition of “SOFR” was amended by Amendment No. 1, dated as of September 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022; the definition of


 
- 31 - “Takeout Commitment” means (i) a trade confirmation (which may be delivered electronically) from the related Takeout Investor to Seller confirming the details of a forward trade between the Takeout Investor and Seller with respect to one or more Purchased Assets, which trade confirmation shall be enforceable and in full force and effect, and shall be validly and effectively assigned to Purchaser pursuant to a Trade Assignment, and relate to pools of Mortgage Loans that satisfy the “good delivery standards” of the Securities Industry and Financial Markets Association as set forth in the Securities Industry and Financial Markets Association Uniform Practices Manual, as amended from time to time or (ii) a commitment of Seller (a) to swap one or more identified Purchased Mortgage Loans with a Takeout Investor that “SOFR Administrator” means the Federal Reserve Bank of New York, as administrator of SOFR (or a successor administrator).49 “Strict Compliance” means compliance of Seller and the Mortgage Loans with the requirements of the Agency Guide as amended by any agreements between Seller or a Takeout Investor, on the one hand, and the Applicable Agency, on the other hand, sufficient to enable Seller to issue and to service and Ginnie Mae to guarantee or Fannie Mae or Freddie Mac to issue and guarantee a Security. “Structuring Fee” has the meaning assigned thereto in the Pricing Side Letter. “Subsidiary” means, 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. Notwithstanding the foregoing, none of ) Farm Bureau Mortgage, LLC, LGI Mortgage Solutions LLC, Henlopen Mortgage, LLC, BRP Home Mortgage, LLC, MTH Mortgage, LLC, MSC Mortgage, LLC, TRI Pointe Connect, LLC, Day One Mortgage, LLC, CUSA Affordable Housing, LLC, Commercial Agency USA, LLC, LD Escrow, Inc. or any joint venture formed by Seller after the date hereof, shall be considered a Subsidiary for purposes of this Agreement or any other Program Document. 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022; the definition of “SOFR Based Rate” was removeddeleted by Amendment No. 1, dated as of September 24, 2021. 49 The definition of “SOFR Administrator” was added Amendment No. 2, dated as of April 28, 2022.


 
- 32 - “Term SOFR” means, with respect to any date of determination, the forward-looking term rate based on SOFR, for a corresponding tenor of one month, as of two (2) Business Days prior to the first day of the corresponding Accrual Period containing such date of determination, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any such date Term SOFR has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to Term SOFR has not occurred, then Term SOFR will be the Term SOFR as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such determination date.51 “Term SOFR” means the Administrator” means CME Group Benchmark Administration Limited (or any successor administrator of a forward-looking term rate is an Agency for a Security and (b) to sell the related Security or Takeout MBS to a Takeout Investor.4050 “Takeout Investor” means (x) for non-Jumbo Mortgage Loans, any of (i) Barclays Capital, Inc., or any successor thereto, (ii) any member of the Mortgage Backed Securities Division of the Fixed Income Clearing Corporation, unless such member is disapproved by Agent in its reasonable discretion or (iii) any other Person listed on Exhibit J, which may be updated from time with the consent of the Agent (such consent not to be unreasonably withheld) by delivery of an updated Exhibit J and (y) for Jumbo Mortgage Loans, either (i) Barclays Bank PLC or (ii) any other Person listed on Exhibit J, which may be updated from time with the consent of the Agent (such consent not to be unreasonably withheld) by delivery of an updated Exhibit J. “Takeout MBS” means to the extent any Purchased Mortgage Loans are pooled into Securities, and such Securities do not settle on the date they are issued, partial interests in such Securities backed by such Purchased Mortgage Loans. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Termination Date” means the earliest to occur of (i) the Maturity Date, (ii) the termination of the Mortgage Loan Participation Purchase and Sale Agreement, or (iii) at the option of Purchaser, the occurrence of an Event of Default under this Agreement after the expiration of any applicable grace period. 4050 The definition of “Takeout Commitment” was amended by Amendment No. 1, dated as of September 24, 2021. 51 The definition of “Term SOFR” was amended by Amendment No. 2, dated as of April 28, 2022.


 
- 33 - “Transaction Representations” means the representations and warranties set forth in Exhibit C which are deemed to be made by Seller to Purchaser in accordance with Section 3(c) hereof.4254 “Transfer of Control” means, with respect to an eNote, a MERS eRegistry transfer transaction used to request a change to the current Controller of such eNote. “Transfer of Control and Location” means, with respect to an eNote, a MERS eRegistry transfer transaction used to request a change to the current Controller and Location of such eNote. “Transferable Record” means an Electronic Record under E-Sign and UETA that (i) would be a note under the Uniform Commercial Code if the Electronic Record were in writing, (ii) the issuer of the Electronic Record has expressly agreed is a “transferable record”, and (iii) for purposes of E-SIGN, relates to a loan secured by real property. “UETA” means the Official Text of the Uniform Electronic Transactions Act as approved by the National Conference of Commissioners on Uniform State Laws at its Annual Conference on July 29, 1999. “Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment. “Unauthorized Servicing Agent Modification” shall have the meaning set forth in the Custodial and Disbursement Agreement. based on SOFR that has been selected or recommended by the Relevant Governmental Body.rate approved by Purchaser in its sole discretion).52 “Trade Assignment” means an assignment to Purchaser of a forward trade between the Takeout Investor and Seller with respect to one or more Purchased Mortgage Loans, together with the related trade confirmation from the Takeout Investor to Seller that has been delivered (which may be delivered electronically), is enforceable and is in full force and effect and confirms the details of such forward trade.4153 “Transaction” has the meaning assigned thereto in Section 1 hereof. “Transaction Fee” has the meaning assigned thereto in the Pricing Side Letter. 52 The definition of “Term SOFR Administrator” was added by Amendment No. 2, dated as of April 28, 2022. 4153 The definition of “Trade Assignment” was amended by Amendment No. 1, dated as of September 24, 2021. 4254 The definition of “Transaction Representations” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 34 - “VA Buyout Loan” means an Eligible Mortgage Loan that (a) is guaranteed by VA, (b) is a Ginnie Mae Mortgage Loan, (c) has been purchased out of a Ginnie Mae Security, and (d) is not a Modified Loan.4457 “VA Claim Proceeds” means the amount of guarantee proceeds received from VA under related VA Loan Guaranty Agreement in the event of a default with respect to a VA Buyout Loan.4558 “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided that if by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest in any Purchased Assets or the continuation, renewal or enforcement thereof is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection. “Unsecured Term Loan” means the $250 million unsecured term loan facility by and between Seller, U.S. Bank National Association, as the paying agent, and the persons and entities named as lenders on the signature pages thereto. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the U.S. Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.55 “VA”: The U.S. Department of Veterans Affairs, an agency of the United States of America, or any successor thereto including the Secretary of Veterans Affairs.4356 55 The definition of “U.S. Government Securities Business Day” was added by Amendment No. 2, dated as of April 28, 2022. 4356 The definition of “VA” was added by Amendment No. 1, dated as of September 24, 2021. 4457 The definition of “VA Buyout Loan” was added by Amendment No. 1, dated as of September 24, 2021. 4558 The definition of “VA Claim Proceeds” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 35 - “Wet-Ink Mortgage Loan Document Receipt Date” means for any Wet-Ink Mortgage Loan, the date that the Custodian executes a trust receipt without exceptions.4861 (b) (c) Interpretation. Headings are for convenience only and do not affect interpretation. The following rules of this subsection (b) apply unless the context requires otherwise. The singular includes the plural and conversely. A gender includes all genders. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to a subsection, Section, Annex or Exhibit is, unless otherwise specified, a reference to a section of, or annex or exhibit to, this Agreement. A reference to a party to this Agreement or another agreement or document includes the party’s successors and permitted substitutes or assigns. A reference to an agreement or document is to the agreement or document as amended, modified, novated, supplemented or replaced, except to the extent prohibited by any Program Document. A reference to legislation or to a provision of legislation includes any modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory “VA Loan Guaranty Agreement” means the obligation of the United States to pay a specific percentage of a Mortgage Loan (subject to a maximum amount) upon default of the Mortgagor pursuant to the Servicemen’s Readjustment Act, as amended.4659 “Warehouse Electronic System” means the system utilized by Custodian or Agent either directly, or through its vendors, and which may be accessed by Seller in connection with delivering and obtaining information and requests in connection with the Program Agreements. “Warehouse Lender” means any lender providing financing to Seller for the purpose of warehousing, originating or purchasing a Mortgage Loan, which lender has a security interest in such Mortgage Loan to be purchased by Purchaser. “Warehouse Lender’s Release” means a letter, in the form of Exhibit E, from a Warehouse Lender to Purchaser, unconditionally releasing all of Warehouse Lender’s right, title and interest in certain Mortgage Loans identified therein upon payment to the Warehouse Lender. “Wet-Ink Mortgage Loan” means a Mortgage Loan that Seller is selling to Purchaser simultaneously with the origination thereof that is funded as part, either directly or indirectly, with the Initial Purchase Price paid by Purchaser hereunder and for which the Custodian shall not have received a complete Mortgage File.4760 4659 The definition of “VA Loan Guaranty Agreement” was added by Amendment No. 1, dated as of September 24, 2021. 4760 The definition of “Wet-Ink Mortgage Loan” was amended by Amendment No. 1, dated as of September 24, 2021. 4861 The definition of “Wet-Ink Mortgage Loan Document Receipt Date” was amended by Amendment No. 1, dated as of September 24, 2021.


 
instrument issued under it. A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form. A reference to conduct includes, without limitation, an omission, statement or undertaking, whether or not in writing. An Event of Default exists until it has been waived in writing by Purchaser or has been timely cured. The words “hereof,” “herein,” “hereunder” and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “including” is not limiting and means “including without limitation.” In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding,” and the word “through” means “to and including.” This Agreement may use several different limitations, tests or measurements to regulate the same or similar matters. All such limitations, tests and measurements are cumulative and shall each be performed in accordance with their terms. Unless the context otherwise clearly requires, all accounting terms not expressly defined herein shall be construed, and all financial computations required under this Agreement shall be made, in accordance with GAAP, consistently applied. References herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of Seller. A reference to an agreement includes a security interest, guarantee, agreement or legally enforceable arrangement whether or not in writing related to such agreement. A reference to a document includes an agreement in writing or a certificate, notice, instrument or document, or any information recorded in electronic form. Where Seller is required to provide any document to Purchaser under the terms of this Agreement, the relevant document shall be provided in writing or printed form unless Purchaser requests otherwise. This Agreement is the result of negotiations among, and has been reviewed by counsel to, Purchaser and Seller, and is the product of all parties. In the interpretation of this Agreement, no rule of construction shall apply to disadvantage one party on the ground that such party proposed or was involved in the preparation of any particular provision of this Agreement or this Agreement itself. Except where otherwise expressly stated, Purchaser may give or withhold, or give conditionally, approvals and consents and may form opinions and make determinations in its absolute sole discretion. Except as specifically required herein, any requirement of good faith, discretion or judgment by Purchaser or Agent shall not be construed to require Purchaser or Agent to request or await receipt of information or documentation not immediately available from or with respect to Seller, any other Person or the Purchased Assets themselves. 3. THE TRANSACTIONS (a) It is acknowledged and agreed that, notwithstanding any other provision of this Agreement to the contrary, the facility provided under this Agreement is an uncommitted facility, and Purchaser shall have no obligation to enter into any Transactions hereunder. (b) Subject to the terms and conditions of the Program Documents, Purchaser may enter into Transactions provided, that the Aggregate MRA Purchase Price, inclusive of all Purchased Assets and all Eligible Mortgage Loans proposed to be sold in such Transaction shall not exceed, as of any date of determination, the lesser of (i) the Maximum Aggregate Purchase - 36 -


 
- 37 - (d) Once a Prefunding Request has been submitted, Seller may request that Purchaser actually purchase Eligible Mortgage Loans by submitting Seller Mortgage Loan Schedules to Purchaser and Custodian. Seller may submit up to eight (8) Seller Mortgage Loan Schedules at any time after the submission of the Prefunding Request until 4:00 p.m. (New York City time) on the Purchase Date. By submitting a Seller Mortgage Loan Schedule, Seller hereby agrees that it shall be deemed to have made all of the representations and warranties set forth in the form of Transaction Representations attached as Exhibit C hereto. Upon Seller’s request to enter into a Transaction pursuant to Section 3(d), if all conditions precedent set forth in this Section 3 and in Sections 10(a) and (b) have been met, and if all Mortgage Loans to be purchased are Eligible Mortgage Loans, and if no Default or Event of Default shall have occurred and be continuing, then, on the requested Purchase Date, Purchaser may, in its sole discretion, purchase the Eligible Mortgage Loans included in the related Seller Mortgage Loan Schedule by instructing the Disbursement Agent to disburse the Initial Purchase Price in accordance with the Disbursement Agreement. On each Purchase Date, no later than 4:45 p.m. (New York City time), if any of the Prefunding Amount from the Business Day prior to such Purchase Date remain with the Disbursement Agent, the Disbursement Agent shall remit such remainder to Purchaser.5063 (e) In order for any Eligible Mortgage Loan to be considered not a Wet-Ink Mortgage Loan, the complete Mortgage File for such Mortgage Loan must be received by the Custodian no later than 5:00 p.m. (New York City time) on the Business Day before the Purchase Date. (f) On the related Price Differential Determination Date, Agent shall calculate the Price Differential for each outstanding Transaction payable on the Monthly Payment Date utilizing the Pricing Rate. Not less than two (2) Business Days prior to each Monthly Payment Date, Agent shall provide Seller with an invoice for the amount of the Price Differential due and Price (less the Aggregate EPF Purchase Price) and (ii) the aggregate Asset Base of all Purchased Assets and all Eligible Mortgage Loans, inclusive of all Purchased Assets and all Eligible Mortgage Loans proposed to be sold in such Transaction.4962 (c) Unless otherwise agreed, if Seller wishes to request that Purchaser enter into a Transaction with respect to one or more Eligible Mortgage Loans, then Seller shall deliver a Prefunding Request to Purchaser and Disbursement Agent no later than 5:30 p.m. (New York City time) on the Business Day prior to the requested Purchase Date, which Prefunding Request shall specify the amount that Seller requests Buyer to fund on the related Purchase Date (such amount, the “Prefunded Amount”). By submitting the Prefunding Request, Seller shall be deemed to have represented that all conditions precedent to the Transactions expected to occur the following day have been satisfied and that all Mortgage Loans to be purchased will be Eligible Mortgage Loans. If all such conditions precedent are satisfied, then no later than 9:30 am (New York City time), on the Purchase Date, Purchaser shall remit the Prefunded Amount to the Disbursement Account. Remitting the Prefunded Amount to the Disbursement Account shall not constitute a purchase, nor an agreement to purchase, any Mortgage Loan. 4962 Section 3(b) was amended by Amendment No. 1, dated as of September 24, 2021. 5063 Section 3(d) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 38 - (g) With respect to a Transaction, upon the earliest of (1) the Repurchase Date and (2) the Termination Date, Seller shall pay to Purchaser the related Outstanding Purchase Price together with any other Obligations then due and payable, and shall repurchase all Purchased Assets then subject to such Transaction. The Repurchase Price shall be transferred directly to Purchaser.5265 (h) If Agent determines in its reasonable discretion that any Change in Law (except a Change in Law with regard to Indemnified Taxes and Excluded Taxes, which is governed solely by Section 8) has the effect of reducing the rate of return on Purchaser’s capital or on the capital of any Affiliate of Purchaser under this Agreement as a consequence of such Change in Law, then from time to time Seller will compensate Purchaser or Purchaser’s Affiliate, as applicable, for such reduced rate of return suffered as a consequence of such Change in Law on terms similar to those imposed by Purchaser. The Purchaser shall provide Seller with notice of any such Change in Law. Further, if due to the introduction of, any change in, or the compliance by Purchaser with (i) any eurocurrency reserve requirement, or (ii) the interpretation of any law, regulation or any guideline or request from any central bank or other Governmental Authority whether or not having the force of law, there shall be an increase in the cost to Purchaser or any Affiliate of Purchaser in engaging in the present or any future Transactions (except a Change in Law with regard to Indemnified Taxes or Excluded Taxes, which is governed solely by Section 8), then Seller shall, from time to time and upon demand by Purchaser, compensate Purchaser or Purchaser’s Affiliate for such increased costs, and such amounts shall be deemed a part of the Obligations hereunder. Purchaser shall provide Seller with notice as to any such Change in Law or change in compliance promptly following Purchaser’s receipt of actual knowledge thereof. (i) To the extent that the Asset Base for any Purchased Mortgage Loan is greater than the Outstanding Purchase Price for such Purchased Mortgage Loan, Seller may request (such request, an “Incremental Purchase Price Request”) that Purchaser transfer an additional purchase price amount less than or equal to the positive difference between the Asset Base and the Outstanding Purchase Price for such Purchased Mortgage Loan (each such additional purchase price amount, an “Incremental Purchase Price”). Each Incremental Purchase Price Request and Purchaser’s transfer of the applicable Incremental Purchase Price shall constitute a Transaction under this Agreement and will be subject to all conditions precedent and other terms required to be satisfied prior to execution of each such Transaction under this Agreement. In connection with each Incremental Purchase Price Request, Seller may direct Purchaser to transfer the applicable Incremental Purchase Price in full or in part to reduce the Exposure that is payable with respect to all outstanding Transactions, setting forth the calculations thereof in reasonable detail and all accrued fees and expenses then due and owing to Purchaser. On the earliest of (1) the Monthly Payment Date or (2) the Termination Date, Seller shall pay to Purchaser the Price Differential then due and payable for (x) all outstanding Transactions and (y) Purchased Assets for which Purchaser has received the related Outstanding Purchase Price pursuant to Section 3(g) during the prior calendar month.5164 5164 Section 3(f) was amended by Amendment No. 1, dated as of September 24, 2021. 5265 Section 3(g) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 39 - With respect to Takeout MBS, Seller shall inform Purchaser immediately when any Securities backed by Purchased Mortgage Loans become Takeout MBS and shall provide the related CUSIP number(s) on the related issuance date. Simultaneously upon the transfer of the Takeout MBS to the Purchaser, (i) the Seller shall be construed to have transferred the Repurchase Price to the Purchaser for the related pooled Purchased Mortgage Loans backing such Takeout MBS; (ii) the Seller and Purchaser shall have entered into a new Transaction with respect such Takeout MBS; and (iii) the Purchaser shall be construed to have transferred the Initial Purchase Price for the related Takeout MBS to the Seller. The Takeout MBS will be delivered to the securities account of the securities intermediary, at which time they will be subject to this Agreement. The Seller shall arrange for the sale of the Takeout MBS to a Takeout Investor, the proceeds of such sale to be credited to the account of the paying agent to satisfy the Repurchase Price with respect to the Takeout MBS.5568 a positive number under the other Relevant Master Agreements identified under the Master Netting Agreement; provided however that pursuant to Section 4.2 and Section 4.3 of the Master Netting Agreement, Barclays in its capacity as the Designated Barclays Entity under the Master Netting Agreement shall have the right to require Seller to transfer all or a portion of the Incremental Purchase Price to reduce the Exposure that is a positive under the other Relevant Master Agreements identified under the Master Netting Agreement, to zero.5366 4. [RESERVED]5467 5. TAKEOUT COMMITMENTS With respect to each Purchased Mortgage Loan subject to a Takeout Commitment, Seller shall instruct the related Takeout Investor to remit directly to Purchaser or the Bank in accordance with the terms of the Custodial and Disbursement Agreement or the Fannie Mae Agreement, as applicable, no later than 4:30 p.m. (New York City time) on a Business Day an amount equal to the Repurchase Price for such Purchased Mortgage Loan in accordance with the Purchaser’s Wire Instructions. Simultaneously with or prior to such payment, Seller shall deliver to Purchaser via facsimile or electronic mail a payoff file in mutually agreeable form (the “Payoff File”) and shall indicate on such Payoff File the Mortgage Loan identification numbers which identified the applicable eligible Mortgage Loans when it was purchased by Purchaser hereunder. Upon receipt by Purchaser of payment of the Repurchase Price in respect of such Purchased Mortgage Loan, Purchaser shall release and remit to Seller any amount in excess of the Repurchase Price (other than the related Price Differential) on the next succeeding Business Day; provided, that both immediately before and after giving effect to such release and remittance, (i) there is no Default or Event of Default under this Agreement or any other Program Document and (ii) there is no Margin Deficit. 5366 Section 3(i) was amended by Amendment No. 1, dated as of September 24, 2021. 5467 Section 4 was amended by Amendment No. 1, dated as of September 24, 2021. 5568 Section 5 was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 40 - 6. PAYMENT AND TRANSFER (a) Unless otherwise agreed by Seller and Purchaser, all transfers of funds hereunder shall be in Dollars in immediately available funds. Seller shall remit (or, if applicable, shall cause to be remitted) directly to Purchaser all payments required to be made by it to Purchaser hereunder or under any other Program Document in accordance with wire instructions provided by Purchaser. Any payments received by Purchaser after 5:00 p.m. (New York City time) shall be applied on the next succeeding Business Day. (b) Following the Seller’s receipt of the Escrow Instruction Letter, the Disbursement Agent will aggregate and disburse funds directly to the loan closing with respect to Wet-Ink Mortgage Loans that are subject to a Transaction hereunder. (c) With respect to any eMortgage Loan, Seller shall deliver to Custodian each of Agent’s and Seller’s MERS Org IDs, and shall cause (i) the Authoritative Copy of the related eNote to be delivered to the eVault via a secure electronic file, (ii) the Controller status of the related eNote to be transferred to Agent, (iii) the Location status of the related eNote to be transferred to Custodian, and (iv) the Delegatee status of the related eNote to be transferred to Custodian, in each case using MERS eDelivery and the MERS eRegistry (collectively, the “eNote Delivery Requirements”). 7. MARGIN MAINTENANCE5669 (a) Agent shall have the right to determine the Market Value of any Purchased Asset on a daily basis in its sole, good faith discretion, including the right to determine that the Market Value with respect to one or more of the Purchased Assets may be zero. After making that determination, Agent may determine the Asset Base of any Purchased Asset on such day. (b) If, as of any date of determination, the Agent determines that the aggregate Asset Base of all Purchased Assets is less than the aggregate Outstanding Purchase Price of all Purchased Assets for all such Transactions (a “Margin Deficit”) and such Margin Deficits exceeds the Minimum Transfer Amount, then Agent may, by notice to the Seller (as such notice is more particularly set forth below, a “Margin Call”), require Seller to transfer to Purchaser or its designee cash or, by mutual consent of the Purchaser and Seller (and provided Seller has additional Eligible Mortgage Loans), additional Eligible Mortgage Loans to Purchaser (“Additional Purchased Mortgage Loans”) to cure the Margin Deficit. If the Agent delivers a Margin Call to the Seller on or prior to 11:00 a.m. (New York City time) on any Business Day, then the Seller shall transfer cash or Additional Purchased Mortgage Loans to Purchaser or its designee by no later than 5:00 p.m. (New York City time) on the same Business Day. In the event the Agent delivers a Margin Call to Seller after 11:00 a.m. (New York City time) on any Business Day, Seller shall be required to transfer cash or Additional Purchased Mortgage Loans no later than 12:00 noon (New York City time) on the next succeeding Business Day. 5669 Section 7(a)-(c) was amended by Amendment No. 1, dated as of September 24, 2021.


 
(c) Any cash transferred to Purchaser or its designee in satisfaction of a Margin Call or pursuant to Section 17(f)(ii) herein shall reduce the Outstanding Purchase Price of the related Transactions. (d) The failure of Purchaser, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions of this Agreement or limit the right of the Purchaser to do so at a later date. Seller and Purchaser each agree that a failure or delay by a Purchaser to exercise its rights hereunder shall not limit or waive Purchaser’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller. (e) For the avoidance of doubt, it is hereby understood and agreed that Seller shall be responsible for satisfying any Margin Deficit existing as a result of any reduction of the Principal Balance of any Purchased Mortgage Loan pursuant to any action by any bankruptcy court. 8. TAXES; TAX TREATMENT (a) All payments made by Seller under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, all of which shall be paid by Seller for its own account not later than the date when due. If Seller is required by law or regulation to deduct or withhold any Taxes from or in respect of any amount payable hereunder, it shall: (a) make such deduction or withholding, (b) pay the amount so deducted or withheld to the appropriate Governmental Authority not later than the date when due and not yet delinquent, (c) deliver to the Purchaser, as soon as reasonably practicable, original tax receipts and other evidence satisfactory to the Purchaser of the payment when due of the full amount of such Taxes; and (d) if such deduction or withholding related to Indemnified Taxes, pay to the Purchaser such additional amounts (including all Indemnified Taxes imposed by any Governmental Authority on such additional amounts) as may be necessary so that after such deduction or withholding on account of Indemnified Taxes has been made the Purchaser receives, free and clear of all Indemnified Taxes, a net amount equal to the amount it would have received under this Agreement, as if no such deduction or withholding of Indemnified Taxes had been made. (b) In addition, Seller agrees to pay to the relevant Governmental Authority in accordance with applicable law any current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies (including, without limitation, mortgage recording taxes, transfer taxes and similar fees) imposed by any taxing authority that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement except such Taxes that are Other Connection Taxes imposed with respect to an assignment (“Other Taxes”). (c) Seller agrees to indemnify Purchaser for the full amount of Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 8), and any reasonable expenses arising therefrom or with respect thereto, provided, that the Purchaser shall have provided Seller with evidence, reasonably satisfactory to Seller, of payment of Indemnified Taxes. - 41 -


 
(d) Any Purchaser that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Program Document shall deliver to the Seller and the Agent, at the time or times reasonably requested by the Borrower or the Agent, such properly completed and executed documentation reasonably requested by the Seller or the Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Purchaser, if reasonably requested by the Seller or the Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Seller or the Agent as will enable the Seller or the Agent to determine whether or not such Purchaser is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (d)(A), (d)(B) and (d)(D) of this Section) shall not be required if in the Purchaser’s reasonable judgment such completion, execution or submission would subject such Purchaser to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Purchaser. Without limiting the generality of the foregoing: (A) any Purchaser that is a “United States person” (as defined in Section 7701(a)(30) of the Code) shall deliver to the Seller and the Agent on or about the date on which such Purchaser becomes a party under this Agreement (and from time to time thereafter upon the reasonable request of the Seller or the Agent), executed copies of IRS Form W-9 certifying that such Purchaser is exempt from U.S. federal backup withholding tax; (B) any Purchaser that is not a “United States person” (as defined in Section 7701(a)(30) of the Code) (a “Foreign Purchaser” shall, to the extent it is legally entitled to do so, deliver to the Seller and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Purchaser becomes a party under this Agreement (and from time to time thereafter upon the reasonable request of the Seller or the Agent), whichever of the following is applicable: (1) in the case of a Foreign Purchaser claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Program Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Program Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Purchaser claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Purchaser is not a “bank” within - 42 -


 
the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Purchaser within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Purchaser as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (4) to the extent a Foreign Purchaser is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Purchaser is a partnership and one or more direct or indirect partners of such Foreign Purchaser are claiming the portfolio interest exemption, such Foreign Purchaser may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner; (C) any Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Seller and the Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Purchaser becomes a party under this Agreement (and from time to time thereafter upon the reasonable request of the Seller or the Agent), executed copies of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Seller or the Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Purchaser under any Program Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Purchaser were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Purchaser shall deliver to the Seller and the Agent at the time or times prescribed by applicable law and at such time or times reasonably requested by the Seller or the Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Seller or the Agent as may be necessary for the Seller and the Agent to comply with their obligations under FATCA and to determine that such Purchaser has complied with such Purchaser’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Purchaser agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Seller and the Agent in writing of its legal inability to do so. - 43 -


 
- 44 - (e) If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (f) Without prejudice to the survival of any other agreement of Seller hereunder, the agreements and obligations of Seller contained in this Section 8 shall survive the termination of this Agreement. Nothing contained in this Section 8 shall require Purchaser to make available any of its tax returns or other information that it deems to be confidential or proprietary. (g) Each party to this Agreement acknowledges that it is its intent solely for purposes of U.S. federal, state and local income and franchise taxes to treat each Transaction as indebtedness of the Seller that is secured by the Purchased Assets and that the Purchased Assets are owned by Seller in the absence of an Event of Default by the Seller. All parties to this Agreement agree to such treatment and agree to take no action inconsistent with this treatment, unless required by law. 9. BENCHMARK REPLACEMENT5770 (a) The Pricing Rate used to calculate the Price Differential is determined by reference to LIBOR. LIBOR is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. On March 5, 2021, the FCA, the regulatory supervisor of LIBOR's administrator, IBA, publicly announced the future cessation or loss of representativeness after June 30, 2023, of LIBOR. There is no assurance that the date announced by the FCA will not change or that the IBA, FCA or other regulators will not take further action that could impact the availability, composition, or characteristics of LIBOR or the currencies and/or tenors for 5770 Section 9(a) - (f) was amended by Amendment No. 1, dated as of September 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022.


 
which LIBOR is published. Each party to this Agreement should consult its own advisors to stay informed of any such developments. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of LIBOR. Under the circumstances set forth in this Section 9, this Section 9 provides a mechanism for determining the Benchmark Replacement. The Agent will notify the Purchaser and the Seller as required by this Section 9. However, the Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to LIBOR or other rates in the definition of LIBOR or with respect to any alternative or successor rate thereto, or replacement rate thereof (including, without limitation, any Benchmark Replacement or Benchmark Replacement Conforming Changes implemented pursuant to this Section 9, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the LIBOR or have the same volume or liquidity as did the LIBOR prior to its discontinuance or unavailability). (b) If the then-current Benchmark is LIBOR, notwithstanding anything to the contrary herein or in any other Program Document, on the earlier of (i) the date that LIBOR has either permanently or indefinitely ceased to be provided by IBA or has been announced by the FCA pursuant to public statement or publication of information to be no longer representative and (ii) the Early Opt-in Effective Date, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Program Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Program Document. (a) (c) If the then-current Benchmark is a rate other than LIBOR, uponUpon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Program Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided toby the Agent to the Purchaser and the Seller without any amendment to, or further action or consent of any other party to, this Agreement or any other Program Document, so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from the Purchaser [or the Seller]. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Seller may revoke any request for a Transaction to be made or continued that would bear interest by reference to such then-current Benchmark until the Seller’s receipt of notice from the Agent that a Benchmark Replacement has replaced such Benchmark. (b) (d) In connection with the implementation and administration of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Program Document, any amendments implementing such Benchmark Replacement Conforming - 45 -


 
Changes will become effective without any further action or consent of any other party to this Agreement. (c) (e) The Agent will promptly notify the Seller and the Purchaser of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. (d) (f) Any determination, decision or election that may be made by the Agent or Purchaser pursuant to this Section 9, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 9. 10. SECURITY INTEREST; PURCHASER’S APPOINTMENT AS ATTORNEY-IN-FACT (a) Seller and Purchaser intend that (other than for tax and accounting purposes) the Transactions hereunder be sales to Purchaser of the Purchased Assets and not loans from Purchaser to Seller secured by the Purchased Assets. However, in order to preserve Purchaser’s rights under this Agreement in the event that a court or other forum recharacterizes the Transactions hereunder as other than sales, and as security for Seller’s performance of all of its Obligations, Seller hereby grants to Purchaser a first priority security interest in the Purchased Assets. Seller acknowledges and agrees that its rights with respect to the Purchased Assets are and shall continue to be at all times junior and subordinate to the rights of Purchaser hereunder. (b) Seller hereby irrevocably constitutes and appoints Purchaser and any officer or agent thereof, 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 Seller and in the name of Seller or in its own name, from time to time in Purchaser’s discretion, to file such financing statement or statements relating to the Purchased Assets as Purchaser at its option may deem appropriate, and if an Event of Default shall have occurred and be continuing, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, Seller hereby gives Purchaser the power and right, on behalf of Seller, without assent by, but with notice to, Seller, to do the following if an Event of Default shall have occurred and be continuing and Purchaser has elected to exercise its remedies pursuant to Section 18 hereof: (i) in the name of Seller, or in its own name, or otherwise, to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of moneys due with respect to any Purchased Assets and to file any claim or to take any other action or initiate and maintain any appropriate proceeding in any appropriate court of law or equity or otherwise deemed appropriate by Purchaser for the purpose of collecting any and all such moneys due with respect to any Purchased Assets whenever payable; - 46 -


 
(ii) to pay or discharge taxes and Liens levied or placed on or threatened against the Purchased Assets; (iii) (A) to direct any party liable for any payment under any Purchased Assets to make payment of any and all moneys due or to become due thereunder directly to Purchaser or as Purchaser shall direct, (B) in the name of Seller, or in its own name, or otherwise as appropriate, to directly send or cause the applicable servicer to send “hello” letters, “goodbye” letters, and Section 404 Notices; (C) 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 at any time in respect of or arising out of any Purchased Assets; (D) to sign and endorse any invoices, assignments, verifications, notices and other documents in connection with any Purchased Assets; (E) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Purchased Assets or any proceeds thereof and to enforce any other right in respect of any Purchased Assets; (F) to defend any suit, action or proceeding brought against Seller with respect to any Purchased Assets; (G) to settle, compromise or adjust any suit, action or proceeding described in clause (F) above and, in connection therewith, to give such discharges or releases as Purchaser may deem appropriate; and (H) generally, to sell, transfer, pledge and make any agreement with respect to or otherwise deal with any Purchased Assets as fully and completely as though Purchaser was the absolute owner thereof for all purposes, and to do, at Purchaser’s option and Seller’s expense, at any time, and from time to time, all acts and things which Purchaser deems necessary to protect, preserve or realize upon the Purchased Assets and Purchaser’s Liens thereon and to effect the intent of this Agreement, all as fully and effectively as Seller might do. Seller hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. Seller also authorizes Purchaser, from time to time if an Event of Default shall have occurred and be continuing, to execute any endorsements, assignments or other instruments of conveyance or transfer with respect to the Purchased Assets in connection with any sale provided for in Section 18 hereof. The powers conferred on Purchaser hereunder are solely to protect Purchaser’s interests in the Purchased Assets and shall not impose any duty upon it to exercise any such powers. Purchaser shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither Purchaser nor any of its officers, directors, employees or agents shall be responsible to Seller for any act or failure to act hereunder except for its or their own gross negligence or willful misconduct. 11. CONDITIONS PRECEDENT (a) As conditions precedent to the effectiveness of this Agreement, Purchaser shall have received (except with respect to the Electronic Tracking Agreement or as otherwise specified below) on or before the Effective Date the following, in form and substance satisfactory to Purchaser and duly executed by each party thereto (as applicable): - 47 -


 
(i) Each of the Program Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver; (ii) A certificate of an officer of Seller attaching certified copies of Seller’s consents or charter, bylaws and corporate resolutions, as applicable, approving the Program Documents and Transactions thereunder (either specifically or by general resolution), and all documents evidencing other necessary corporate action or governmental approvals as may be required in connection with the Program Documents; (iii) A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date which is ten (10) Business Days prior to the Purchase Date with respect to the initial Transaction hereunder; (iv) An incumbency certificate of the secretary of Seller certifying the names, true signatures and titles of Seller’s representatives who are duly authorized to request Transactions hereunder and to execute the Program Documents and the other documents to be delivered thereunder; (v) An opinion of Seller’s counsel as to such matters as Purchaser may reasonably request (including, without limitation, an opinion that this Agreement constitutes a “repurchase agreement”, a “securities contract” and a “master netting agreement” within the meaning of the Bankruptcy Code and an opinion that no Transaction constitutes an avoidable transfer under Sections 546(e), 546(f), and 546(j) of the Bankruptcy Code), each in form and substance reasonably acceptable to Purchaser; (vi) No later than three (3) Business Days after the Effective Date, an opinion of Seller’s counsel as to such matters as Purchaser may reasonably request (including, without limitation, with respect to Purchaser’s perfected security interest in the Purchased Assets, a non-contravention, enforceability and corporate opinion with respect to Seller, and an opinion with respect to the inapplicability of the Investment Company Act to Seller), each in form and substance reasonably acceptable to Purchaser; (vii) Seller shall have paid to Purchaser and Purchaser shall have received all accrued and unpaid fees and expenses owed to Purchaser in accordance with the Program Documents, including without limitation, the Structuring Fee, the Non-Utilization Fee, and any Transaction Fees then due and owing pursuant to Section 2 of the Pricing Side Letter, in immediately available funds, and without deduction, set-off or counterclaim; (viii) A copy of the insurance policies required by Section 14(q) of this Agreement; (ix) Duly completed and filed Uniform Commercial Code financing statements acceptable to Purchaser and covering the Purchased Assets on Form UCC1; - 48 -


 
(x) Purchaser or Agent shall have completed the due diligence review pursuant to Section 37, and such review shall be satisfactory to Purchaser and Agent in their sole discretion; (xi) Seller shall have provided evidence, satisfactory to Purchaser and Agent, that Servicer’s and Seller’s Approvals are in good standing; and (xii) Any other documents reasonably requested by Purchaser or Agent. (b) As conditions precedent to each Transaction pursuant to this Agreement (including the initial Transaction), each of the following conditions precedent must have been satisfied: (i) Purchaser or its designee shall have received on or before the Purchase Date with respect to Eligible Mortgage Loans that are to be the subject of such Transaction (unless otherwise specified in this Agreement) the following, in form and substance satisfactory to Purchaser and (if applicable) duly executed: (A) Seller shall have paid to Purchaser and Purchaser shall have received all accrued and unpaid fees and expenses owed to Purchaser in accordance with the Program Documents, including without limitation, the Structuring Fee, the Non-Utilization Fee and any Transaction Fee then due and owing pursuant to Section 2 of the Pricing Side Letter, in immediately available funds, and without deduction, set-off or counterclaim; (B) The Seller Mortgage Loan Schedule with respect to such Purchased Assets, delivered pursuant to Section 3(c); (C) Such certificates, customary opinions of counsel or other documents as Purchaser may reasonably request, provided that such opinions of counsel shall not be required routinely in connection with each Transaction but shall only be required from time to time as deemed necessary by Purchaser in its commercially reasonable judgment; (D) Purchaser shall have received the Structuring Fee, the Non-Utilization Fee, and the Transaction Fees in respect of such Transaction then due and owing pursuant to Section 2 of the Pricing Side Letter, in immediately available funds, and without deduction, set-off or counterclaim; (E) With respect to Mortgage Loans that are not Wet-Ink Mortgage Loans, a trust receipt executed by the Custodian without exceptions and with respect to Wet-Ink Mortgage Loans, a trust receipt executed by the Wet-Ink Mortgage Loan Document Receipt Date by the Custodian without exceptions; - 49 -


 
(F) Such other certifications of Custodian as are required under Sections 2 and 4 of the Custodial and Disbursement Agreement; (G) With respect to any table-funded Wet-Ink Mortgage Loan that is the subject of such Transaction, a copy of the Escrow Instruction Letter, signed by the Settlement Agent; and (H) A duly executed Warehouse Lender’s Release from any Warehouse Lender (including any party that has a precautionary security interest in a Mortgage Loan) having a security interest in any Mortgage Loans subject to such Transaction, substantially in the form of Exhibit E, addressed to Purchaser, releasing any and all of its right, title and interest in, to and under such Mortgage Loan (including, without limitation, any security interest that such secured party or secured party’s agent may have by virtue of its possession, custody or control thereof) and, to the extent applicable, has filed Uniform Commercial Code termination statements in respect of any Uniform Commercial Code filings made in respect of such Mortgage Loan, and each such Warehouse Lender’s Release and Uniform Commercial Code termination statement has been delivered to Purchaser prior to such Transaction and to the Custodian as part of the Mortgage File. (ii) No Default or Event of Default shall have occurred and be continuing; (iii) Purchaser shall not have determined that the introduction of or a change in any Requirement of Law or in the interpretation or administration of any requirement of law applicable to Purchaser has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Purchaser to enter into Transactions with the applicable Pricing Rate; (iv) Both immediately prior to the related Transaction and also after giving effect thereto and to the intended use thereof, all representations and warranties in the Program Documents shall be true and correct on the date of such Transaction (with the same force and effect as if made on such date) and Seller is in compliance with the terms and conditions of the Program Documents, other than as may be expressly waived by the Purchaser; (v) The then Aggregate MRA Purchase Price when added to the Purchase Price for the requested Transaction, shall not exceed, as of any date of determination, the lesser of (a) the Maximum Aggregate Purchase Price (less the Aggregate EPF Purchase Price) and (b) the Asset Base; (vi) The Purchase Price for the requested Transaction shall not be less than $1,000,000; - 50 -


 
(vii) Satisfaction of any conditions precedent to the initial Transaction as set forth in clause (a) of this Section 11 that were not satisfied prior to such initial Purchase Date; (viii) Purchaser shall have determined that all actions necessary to establish or maintain Purchaser’s perfected security interest in the Purchased Assets have been taken; (ix) Purchaser or its designee shall have received any other documents reasonably requested by Purchaser; (x) There is no Margin Deficit at the time immediately prior to entering into a new Transaction (other than a Margin Deficit that will be cured contemporaneous with such Transaction in accordance with the provisions of Section 7 hereof) and no Margin Deficit will exist immediately after giving effect thereto; (xi) None of the following shall have occurred and/or be continuing: (A) an event or events shall have occurred in the good faith determination of Purchaser resulting in the effective absence of a “repo market” or comparable “lending market” for financing debt obligations secured by mortgage loans or securities or an event or events shall have occurred resulting in Purchaser not being able to finance Eligible Mortgage Loans through the “repo market” or “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or (B) an event or events shall have occurred resulting in the effective absence of a “securities market” for securities backed by mortgage loans or an event or events shall have occurred resulting in Purchaser not being able to sell securities backed by mortgage loans at prices which would have been reasonable prior to such event or events; or (C) there shall have occurred a material adverse change in the financial condition of Purchaser which affects (or can reasonably be expected to affect) materially and adversely the ability of Purchaser to fund its obligations under this Agreement. (xii) Delivery of all due diligence results to the extent diligence is performed by Purchaser or Agent with respect to such Transaction; (xiii) All Mortgage Loans referenced on the related Seller Mortgage Loan Schedule are Eligible Mortgage Loans; and (xiv) From and after the thirtieth (30th) day after the Effective Date, the Electronic Tracking Agreement shall be entered into, duly executed and delivered by the - 51 -


 
parties thereto and being in full force and effect, free of any modification, breach or waiver unless agreed to in writing by the parties thereto. 12. RELEASE OF PURCHASED ASSETS Upon timely payment in full of the Repurchase Price and all other Obligations (if any) then owing with respect to a Purchased Asset pursuant to Section 3(f) hereof, unless a Margin Deficit or an Event of Default shall have occurred and be continuing: (a) Purchaser shall automatically and without any further action terminate any security interest that Purchaser may have in such Purchased Asset, (b) the Purchaser shall automatically and without further action sell and release to the Seller or the applicable Takeout Investor, as the case may be, such Purchased Asset, and (c) with respect to such Purchased Asset, Purchaser shall or shall direct Custodian to release such Purchased Asset to Seller or the applicable Takeout Investor, as the case may be. If such a Margin Deficit is applicable, Purchaser shall notify Seller of the amount thereof and Seller may thereupon satisfy the Margin Call in the manner specified in Section 7. 13. RELIANCE With respect to any Transaction, Purchaser may conclusively rely upon, and shall incur no liability to Seller in acting upon, any request or other communication that Purchaser reasonably believes to have been given or made by a person authorized to enter into a Transaction on Seller’s behalf. 14. REPRESENTATIONS AND WARRANTIES Seller hereby represents and warrants to Purchaser and Agent, and shall on and as of the Purchase Date for any Transaction and on and as of each date thereafter through and including the related Repurchase Date be deemed to represent and warrant to Purchaser and Agent that: (a) Due Organization, Qualification, Power, Authority and Due Authorization. Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and it has qualified to do business in each jurisdiction in which it is legally required to do so. Seller has the power and authority under its certificate of formation, operating agreement and applicable law to enter into this Agreement and the Program Documents and to perform all acts contemplated hereby and thereby or in connection herewith and therewith; this Agreement and the Program Documents and the transactions contemplated hereby and thereby have been duly authorized by all necessary action and do not require any additional approvals or consents or other action by, or any notice to or filing with, any Person other than any that have heretofore been obtained, given or made. (b) Noncontravention. The consummation of the transactions contemplated by this Agreement and Program Documents are in the ordinary course of business of Seller and will not conflict with, result in the breach of or violate any provision of the certificate of formation and operating agreement of Seller or result in the breach of any provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any agreement, indenture, loan or credit agreement or other instrument to which Seller, the Purchased Assets or - 52 -


 
any of Seller’s Property is or may be subject to, or result in the violation of any law, rule, regulation, order, judgment or decree to which Seller, the Purchased Assets or Seller’s Property is subject. (c) Legal Proceeding. Except as disclosed to the Agent, there is no action, suit, proceeding or investigation, at law or in equity, or before or by any court, public board or body pending or, to Seller’s knowledge, threatened against or affecting Seller (or, to Seller’s knowledge, any basis therefor) wherein an unfavorable decision, ruling or finding would adversely affect the validity of the Purchased Assets or the validity or enforceability of this Agreement, the Program Documents could adversely affect the proceedings of Seller in connection herewith or would or could materially and adversely affect Seller’s ability to carry out its obligations hereunder. (d) Valid and Binding Obligations. This Agreement, the Program Documents and every other document to be executed by Seller in connection with this Agreement is and will be the legal, valid, binding and subsisting obligations of Seller, enforceable in accordance with their respective terms, except that (A) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (e) Financial Statements. The financial statements of Seller, copies of which have been furnished to Purchaser, (i) are, as of the dates and for the periods referred to therein, complete and correct in all material respects, (ii) present fairly the financial condition and results of operations of Seller as of the dates and for the periods indicated and (iii) have been prepared in accordance with GAAP consistently applied, except as noted therein (subject as to interim statements to normal year-end adjustments). Since the date of the most recent financial statements, there has been no Material Adverse Change with respect to Seller. Except as disclosed in such financial statements or pursuant to Section 15(i) hereof, Seller is not subject to any contingent liabilities or commitments that, individually or in the aggregate, have a reasonable possibility of causing a Material Adverse Change with respect to Seller. (f) Accuracy of Information. Neither this Agreement nor any representations and warranties or information relating to Seller that Seller has delivered or caused to be delivered to Purchaser, including, but not limited to, all documents related to this Agreement, the Program Documents or Seller’s financial statements, contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein or herein in light of the circumstances under which they were made, not misleading. Since the furnishing of such documents or information, to Seller’s knowledge, there has been no change, nor any development or event involving a prospective change that would render any of such documents or information untrue or misleading in any material respect, unless Seller delivered such other documents or information informing Purchaser or Agent of such change. (g) No Consents. No consent, license, approval or authorization from, or registration, filing or declaration with, any regulatory body, administrative agency or other governmental instrumentality, nor any consent, approval, waiver or notification of any creditor, lessor or other - 53 -


 
non-governmental Person, is required in connection with the execution, delivery and performance by Seller of this Agreement or any other Program Document to which it is a party, other than any that have heretofore been obtained, given or made. (h) Compliance With Law, Etc. No practice, procedure or policy employed by Seller in the conduct of its businesses violates any law, regulation, judgment, agreement, regulatory consent, order or decree applicable to it which, if enforced, would result in a Material Adverse Effect. (i) Solvency. Seller is solvent and will not be rendered insolvent by any Transaction and, after giving effect to each such Transaction, Seller will not be left with an unreasonably small amount of capital with which to engage in its business. Seller does not intend to incur, nor believes that it has incurred, debts beyond its ability to pay such debts as they mature. Seller is not contemplating the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Seller or any of its assets. The audited annual financial statements of Seller or the notes thereto or other opinions or conclusions stated therein have not been qualified or limited by reference to the status of such Person as a “going concern” or a reference of similar import or indicate that Seller has a negative net worth or is insolvent. (j) Fraudulent Conveyance. The amount of consideration being received by Seller in respect of each Transaction, taken as a whole, constitutes reasonably equivalent value and fair consideration for the related Purchased Assets. Seller is not transferring any Purchased Assets with any intent to hinder, delay or defraud any of its creditors. The Agreement and the Program Documents, any other document contemplated hereby or thereby and each Transaction have not been entered into fraudulently by Seller hereunder, or with the intent to hinder, delay or defraud any creditor or Purchaser. (k) Investment Company Act Compliance. Seller is not required to be registered as an “investment company” as defined under the Investment Company Act nor is an entity “controlled by” an entity required to be registered as an “investment company” as defined under the Investment Company Act. (l) Taxes. Seller has timely filed all federal and state income and other material tax returns that are required to be filed by it and has paid all taxes, including any assessments received by it, to the extent that such taxes are reflected on such returns and have become due or otherwise are federal, state income or other material taxes (other than for taxes that are being contested in good faith or for which it has established adequate reserves). Any taxes, fees and other governmental charges payable by Seller in connection with a Transaction and the execution and delivery of the Program Documents have been paid prior to becoming delinquent. (m) Additional Representations. With respect to each Purchased Asset to be sold hereunder by Seller to Purchaser, Seller hereby makes all of the applicable representations and warranties set forth in Exhibit B as of the date the related Mortgage File is delivered to Purchaser or the Custodian with respect to the Purchased Assets and continuously while such Purchased Asset is subject to a Transaction. Further, as of each Purchase Date, Seller shall be deemed to have represented and warranted in like manner that Seller has no knowledge that any - 54 -


 
such representation or warranty may have ceased to be true in a material respect as of such date, except as otherwise stated in a written notice to the Purchaser, any such exception to identify the applicable representation or warranty and specify in reasonable detail the related knowledge of Seller. (n) No Broker. Seller has not dealt with any broker, investment banker, agent, or other person, except for Purchaser, who may be entitled to any commission or compensation in connection with the sale of Purchased Assets pursuant to this Agreement; provided, that if Seller has dealt with any broker, investment banker, agent, or other person, except for Purchaser, who may be entitled to any commission or compensation in connection with the sale of Purchased Assets pursuant to this Agreement, such commission or compensation shall have been paid in full by Seller. (o) [Reserved]. (p) Approvals. Seller has all requisite Approvals. With respect to each Approval, Seller is in good standing, with no event having occurred or Seller having any reason whatsoever to believe or suspect will occur which would either make Seller unable to comply with the eligibility requirements for maintaining all such Approvals or require notification to any Agency, HUD, FHA or VA. (q) Custodian and Disbursement Agent. The Custodian and Disbursement Agent are not Affiliates of Seller. (r) Approved Mortgagee. As of the date of this Agreement, Seller is an approved FHA, VA, RD, Ginnie Mae, Fannie Mae and/or Freddie Mac seller, mortgagee and/or servicer and is in good standing with these agencies. (s) Unsecured Term Loan. For so long as such Unsecured Term Loan is outstanding, Seller is not in breach of any representation, warranty, covenant, or other provision of the Unsecured Term Loan related to the delinquency of Ginnie Mae mortgage loans. The representations and warranties set forth in this Agreement shall survive transfer of the Purchased Assets to Purchaser and shall continue for so long as the Purchased Assets are subject to this Agreement. 15. COVENANTS OF SELLER Seller hereby covenants and agrees with Purchaser and Agent as follows: (a) Defense of Title. Seller warrants and will defend the right, title and interest of Purchaser in and to all Purchased Assets against all adverse claims and demands. (b) No Amendment or Compromise. None of Seller or those acting on Seller’s behalf shall amend, modify, or waive any term or condition of, or settle or compromise any claim in respect of, any item of the Purchased Assets, any related rights or any of the Program Documents without the prior written consent of Purchaser, except if such amendment or modification does not (i) affect the amount or timing of any payment of principal or interest payable with respect to - 55 -


 
a Purchased Asset, extend its scheduled maturity date, modify its interest rate, or constitute a cancellation or discharge of its outstanding principal balance or (ii) materially and adversely affect the security afforded by the real property, furnishings, fixtures, or equipment securing the Purchased Asset. Notwithstanding the foregoing, the Seller may amend, modify or waive any term or condition of the individual Mortgage Loans in accordance with Accepted Servicing Practices and the Agency Guides; provided, that Seller shall promptly notify Purchaser of any amendment, modification or waiver that causes any Purchased Mortgage Loan to cease to be an Eligible Mortgage Loan. (c) No Assignment; No Liens. Except as permitted herein, Seller shall not sell, assign, transfer or otherwise dispose of, or grant any option with respect to, or pledge, hypothecate or grant a security interest in, or Lien on or otherwise encumber (except pursuant to the Program Documents) any of the Purchased Assets or any interest therein, provided that this Section 15(c) shall not prevent any of the following: any contribution, sale, assignment, transfer or conveyance of Purchased Assets in accordance with the Program Documents and any forward purchase commitment or other type of take out commitment for the Purchased Assets (without vesting rights in the related purchasers as against Purchaser). (d) No Economic Interest. Neither Seller nor any Affiliate thereof will acquire any economic interest in or obligation with respect to any Purchased Mortgage Loan except for record title to the Mortgage relating to such Purchased Mortgage Loan and the right and obligation to repurchase the Mortgage Loan hereunder and the right to receive amounts pursuant to Section 17. (e) Preservation of Purchased Assets. Seller shall take all actions necessary or, in the opinion of Purchaser, desirable, to preserve the Purchased Assets so that they remain subject to a first priority perfected security interest hereunder and deliver evidence that such actions have been taken, including, without limitation, duly completed and filed Uniform Commercial Code financing statements on Form UCC1. Without limiting the foregoing, Seller will comply with all applicable laws, rules, regulations and other laws of any Governmental Authority applicable to Seller relating to the Purchased Assets and cause the Purchased Assets to comply with all applicable laws, rules, regulations and other laws of any such Governmental Authority. Seller will not allow any default to occur for which Seller is responsible under any Purchased Assets or any Program Documents and Seller shall fully perform or cause to be performed when due all of its obligations under any Purchased Assets or the Program Documents. (f) Maintenance of Papers, Records and Files. (i) Seller shall maintain all Records relating to the Purchased Assets not in the possession of Custodian or released in accordance with the Custodial Agreement in good and complete condition in accordance with industry practices and preserve them against loss. Seller shall collect and maintain or cause to be collected and maintained all such Records in accordance with industry custom and practice, and all such Records shall be in Purchaser’s or Custodian’s possession unless Purchaser otherwise approves in writing. Seller will not cause or authorize any such papers, records or files that are an original or an only copy to leave Custodian’s possession, except for individual items removed in connection with servicing a specific Mortgage Loan, in which event Seller - 56 -


 
will obtain or cause to be obtained a receipt from the Custodian for any such paper, record or file, or as otherwise permitted under the Custodial and Disbursement Agreement. (ii) For so long as Purchaser has an interest in or Lien on any Purchased Asset, Seller will hold or cause to be held all related Records for the sole benefit of Purchaser. (iii) Upon reasonable advance notice from Custodian or Purchaser, Seller shall (x) make any and all such Records available to Custodian or Agent for examination, either by its own officers or employees, or by agents or contractors, who are bound by confidentiality obligations with Custodian or Agent, as applicable, or both, and make copies of all or any portion thereof, (y) permit Agent or its authorized agents to discuss the affairs, finances and accounts of Seller with its chief operating officer and chief financial officer and to discuss the affairs, finances and accounts of Seller with its independent certified public accountants; provided, that Seller shall have the right to have a representative present during any such discussion. (g) Financial Statements and Other Information; Financial Covenants. (i) Seller shall keep or cause to be kept in reasonable detail books and records setting forth an account of its assets and business and, as applicable, shall clearly reflect therein the transfer of Purchased Assets to Purchaser. Seller shall furnish or cause to be furnished to Purchaser the following: (A) Financial Statements. (1) Within ninety (90) days after the end of each fiscal year of Seller, the consolidated audited balance sheets of Seller and its consolidated Subsidiaries, which will be in conformity with GAAP, and the related consolidated audited statements of income and changes in equity showing the financial condition of Seller and its consolidated Subsidiaries as of the close of such fiscal year and the results of operations during such year, and consolidated audited statements of cash flows, as of the close of such fiscal year, setting forth, in each case, in comparative form the corresponding figures for the preceding year. The foregoing consolidated financial statements are to be reported on by, and to carry the unqualified report (in a form substantially similar to the form of financial statements attached hereto as Exhibit J, or in a form otherwise acceptable to Purchaser and Agent) of, an independent public accountant of national standing acceptable to Purchaser and Agent, which shall include KPMG LLP, PricewaterhouseCoopers LLP, Deloitte LLP, BDO USA, LLP, Ernst & Young, and any other similarly situated independent public account; (2) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Seller, consolidated unaudited balance sheets and consolidated statements of income and changes in equity, (in a form substantially similar to the form of financial statements attached hereto as Exhibit - 57 -


 
K, or in a form otherwise acceptable to Purchaser and Agent), showing the financial condition and results of operations of Seller and its consolidated Subsidiaries, each on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, setting forth, in each case, in comparative form the corresponding figures for the corresponding periods of the preceding fiscal year, certified by a financial officer of Seller who is qualified to make such certification as presenting fairly the financial position and results of operations of Seller and its consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year-end audit adjustments; (3) As soon as is practicable, but in any event within thirty (30) days after the end of each of the first two months of a fiscal quarter, consolidated unaudited balance sheets and consolidated statements of income and changes in equity (in a form substantially similar to the form of financial statements attached hereto as Exhibit K, or in a form otherwise acceptable to Purchaser and Agent) showing the financial condition and results of operations of Seller and its consolidated Subsidiaries on a consolidated basis as of the end of each such month and for the then elapsed portion of the fiscal year, setting forth, in each case, in comparative form the corresponding figures for the corresponding month of the preceding fiscal year, certified by a financial officer of Seller who is qualified to make such certification as presenting fairly the financial position and results of operations of Seller and its consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year-end audit adjustments; (4) Promptly upon becoming available, copies of any annual and quarterly financial reports that Seller may be required to file with the SEC or any federal banking agency, or any report which Seller may be required to file with the SEC or any federal banking agency containing such financial statements and other information concerning Seller’s business and affairs as is required to be included in such reports in accordance with the rules and regulations of the SEC or such federal banking agency, as may be promulgated from time to time. Seller’s obligation to deliver any report or other document under this 15(g)(i)(A) shall be deemed to have been satisfied if, and as of the date, such report or other document is filed with the SEC pursuant to the SEC’s Electronic Data Gathering & Analysis Recovery system (5) The audited annual financial statements of Seller or the notes thereto or other opinions or conclusions stated therein shall not be qualified or limited by reference to the status of Seller as a “going concern” or a reference of similar import nor shall indicate that such Seller has a negative net worth or is insolvent (B) Reserved. - 58 -


 
- 59 - (iii) Certifications. Seller shall execute and deliver a certification (i) substantially in the form of Exhibit A-1 attached hereto within thirty (30) days after the end of each of the first two calendar months of each fiscal quarter of Seller, and substantially in the form of Exhibit A-2 attached hereto within (x) forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Seller, and (y) ninety (90) days after the end of each fiscal year of Seller. Each certification to be executed and delivered hereunder shall be sent via electronic mail to USResiFinancing@barclayscapital.com, CoreRMBSBanking@barclayscapital.com and CreditSecuritizedP1@barclayscapital.com or such other email address as the Agent may furnish to the Seller from time to time by written notice.5871 (h) Agency Reporting. Seller shall comply with the applicable reporting requirements of each Agency Guide and HUD. (i) Notice of Material Events. Seller shall promptly inform Purchaser and Agent in writing (via electronic mail to USResiFinancing@barclayscapital.com and CoreRMBSBanking@barclayscapital.com or such other email address as the Agent may furnish to the Seller from time to time by written notice) of any of the following of which any Responsible Officer is aware) of any of the following:5972 (i) any Default, Event of Default by Seller of any material obligation under any Program Document or any Servicer Termination Event, or any default or event of default by Seller under any Other Agreement, in each case, to the extent not waived or deemed not to exist after application of any applicable waiver or cure period; (ii) any material and adverse change in the insurance coverage of Seller as required to be maintained pursuant to Section 15(q) hereof, with copy of evidence of same attached; (iii) the commencement of, or any determination in, any material dispute, litigation, investigation, proceeding, sanctions or suspension between Seller or its Parent (C) Other Information. As soon as reasonably practical, but in no event later than thirty (30) days after the written request of Purchaser or Agent, such other information or reports as Purchaser or Agent may from time to time reasonably request; provided, however, such request will not cause Seller any undue material expense. (ii) Seller shall at all times comply with the financial covenants sets forth in Section 4 of the Pricing Side Letter. 5871 Section 15(g)(iii) was amended by Amendment No. 1, dated as of September 24, 2021. 5972 Section 15(i)(ii) and (ix) were amended by Amendment No. 1, dated as of September 24, 2021.


 
Company, on the one hand, and any Governmental Authority or any other Person, on the other; (iv) any material change in accounting policies or financial reporting practices of Seller which could reasonably be expected to have a Material Adverse Effect; (v) any event, circumstance or condition that has resulted, or has a reasonable likelihood of resulting in either a Material Adverse Change or a Material Adverse Effect with respect to Seller; (vi) any material modifications to Seller’s underwriting or acquisition guidelines; (vii) upon Seller’s becoming aware of any Control Failure with respect to a Purchased Mortgage Loan or any eNote Replacement Failure; (viii) any penalties, sanctions or charges levied, or threatened in writing to be levied, against Seller or Servicer or any change, or change threatened in writing, in Approval status, or actions taken, or threatened in writing to be taken, against Seller or Servicer by or disputes in writing between Seller or Servicer and any Applicable Agency, or any supervisory or regulatory Governmental Authority (including, but not limited to HUD, FHA and VA) supervising or regulating the origination or servicing of mortgage loans by, or the issuer status of, Seller or Servicer (which, in the event of a Governmental Authority, could reasonably be expected to have a Material Adverse Effect); (ix) any consolidation or merger of Seller, any Change in Control of Seller, or any sale of all or substantially all of Seller’s Property; or (x) upon Seller becoming aware of any termination or threatened termination by an Agency of the Custodian as an eligible custodian. (j) Maintenance of Approvals. Seller shall take all reasonably necessary actions to maintain its Approvals at all times during the term of this Agreement. If, for any reason, Seller ceases to maintain any such Approval, Seller shall notify Purchaser and Agent within two (2) Business Days. (k) Maintenance of Licenses. Seller shall (i) maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Documents, (ii) remain in good standing to the extent required under, and comply in all material respects with, all laws of each state in which it conducts business or any Mortgaged Property is located, and (iii) conduct its business strictly in accordance with applicable law. (l) Taxes, Etc. Seller shall pay and discharge or cause to be paid and discharged, when due all federal and state income and other material taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits or upon any of its Property, real, personal or mixed (including without limitation, the Purchased Assets) or upon any part thereof, as well as any other lawful claims which, if unpaid, might become a Lien upon such properties or any part thereof, except for any such taxes, assessments and governmental charges, - 60 -


 
- 61 - levies or claims as are appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves are provided. Seller shall file or cause to be filed on a timely basis all federal and state income tax returns and other material tax and information returns, reports and any other information statements or schedules required to be filed by or in respect of it.6073 (m) Nature of Business. Seller shall not make any material change in the nature of its business from Current Business Operations.. (n) Limitation on Distributions. Seller shall have the right to pay dividends so long as such dividend distribution does not result in any breach of the financial covenants set forth in Section 4 of the Pricing Side Letter. Notwithstanding the foregoing, if an Event of Default has occurred and is continuing, Seller shall not make any payment of any dividends or make distributions on account of, or set apart assets for a sinking or other analogous fund for the purchase, redemption, defeasance, retirement or other acquisition of, any capital stock, senior or subordinate debt of Seller or other equity interests, respectively, thereof, whether now or hereafter outstanding, or make any other distribution in respect thereof, other than stock dividends and Permitted Tax Distributions, either directly or indirectly, whether in cash or Property or in obligations of Seller, without the prior written consent of Purchaser, which consent may not be unreasonably withheld. (o) Use of Custodian. Without the prior written consent of Purchaser, Seller shall not use a third party custodian as document custodian other than the Custodian for the Mortgage File relating to the Purchased Mortgage Loans. (p) Change of Control. Seller shall not, at any time, directly or indirectly (i) be subject to a Change in Control; (ii) form or enter into any partnership, joint venture, syndicate or other combination which would have a Material Adverse Effect with respect to Seller; or (iii) make any Material Adverse Change with respect to Seller. (q) Insurance. Seller shall obtain and maintain insurance with responsible companies in such amounts and against such risks as are customarily carried by business entities engaged in similar businesses similarly situated, including without limitation, the insurance required to be obtained and maintained by each Agency pursuant to the Agency Guides, and will furnish Purchaser on request full information as to all such insurance, and provide within fifteen (15) days after receipt of such request the certificates or other documents evidencing renewal of each such policy. Seller shall continue to maintain coverage, for itself and its Subsidiaries, that encompasses employee dishonesty, forgery or alteration, theft, disappearance and destruction, robbery and safe burglary, Property (other than money and securities), and computer fraud in an aggregate amount of at least such amount as is required by each Agency. (r) Affiliate Transaction. Seller shall not, at any time, directly or indirectly, sell, lease or otherwise transfer any Property or assets to, or otherwise acquire any Property or assets from, or otherwise engage in any transactions with, any of its Affiliates unless in the ordinary course of Seller’s business and the terms thereof are no less favorable to Seller than those that could be 6073 Section 15(l) was amended by Amendment No. 1, dated as of September 24, 2021.


 
obtained at the time of such transaction in an arm’s length transaction with a Person who is not such an Affiliate. For the avoidance of doubt, nothing herein prohibits Seller from making or paying any dividend or distribution to its members or shareholders on account of their equity interests in Seller. (s) Change of Fiscal Year. Seller shall not, at any time, directly or indirectly, except upon ninety (90) days’ prior written notice to Purchaser, change the date on which its fiscal year begins from its current fiscal year beginning date. (t) Transfer of Servicing Rights, Servicing Files and Servicing. With respect to the Servicing Rights of each Purchased Mortgage Loan, Seller shall transfer such Servicing Rights to Purchaser or its designee on the related Purchase Date. With respect to the Servicing Files and the physical and contractual servicing of each Purchased Mortgage Loan to the extent in the possession of Seller, Seller shall deliver such Servicing Files and the physical and contractual servicing to Purchaser or its designee upon the expiration of the Servicing Term unless either such Servicing Term is renewed by Purchaser or the termination of the Seller as servicer pursuant to Section 17. Seller’s transfer of the Servicing Rights, Servicing Files and the physical and contractual servicing under this Section shall be in accordance with customary standards in the industry including the transfer of the gross amount of all escrows, if any, held for the related Mortgagors (without reduction for unreimbursed advances or “negative escrows”). (u) Audit and Approval Maintenance. Seller shall (i) at all times maintain copies of relevant portions of all final written Agency audits, examinations, evaluations, monitoring reviews and reports of its origination and servicing operations (including those prepared on a contract basis for any such agency) in which there are material adverse findings, including without limitation notices of defaults, notices of termination of approved status, notices of imposition of supervisory agreements or interim servicing agreements, and notices of probation, suspension, or non-renewal, and all necessary approvals from each Agency, and (ii) take all actions reasonably necessary to maintain its respective Approvals. Seller shall (x) disclose to Agent any portion of such information that is not confidential, (y) notify Agent of any material event in a level of specificity that would not violate the confidentiality requirements and (z) promptly seek permission to disclose the information from the necessary parties and shall provide Agent such information to the extent of such permission. (v) MERS. The Seller is a member of MERS in good standing and current in the payment of all fees and assessments imposed by MERS, and has complied in all material respects with all rules and procedures of MERS. In connection with the assignment of any Purchased Mortgage Loan registered on the MERS System, the Seller agrees that it will, at the Seller’s own cost and expense, promptly cause the MERS System to indicate that such Mortgage Loan has been transferred to the Purchaser in accordance with the terms of this Agreement by including in MERS’ computer files (a) the code in the field which identifies the specific owner of the Mortgage Loans and (b) the code in the field “Pool Field” which identifies the series in which such Mortgage Loans were sold. The Seller further agrees that it will not alter codes referenced in this paragraph with respect to any Mortgage Loan at any time that such Mortgage Loan is subject to this Agreement, and the Seller shall retain its membership in MERS at all times during the term of this Agreement. For eMortgage Loans, Seller shall comply in all - 62 -


 
material respects with all rules and procedures in connection with the maintenance of the related eNotes on the MERS eRegistry for so long as such Purchased Mortgage Loans are so registered. (w) Fees and Expenses. Seller shall timely pay to Purchaser all reasonable fees and documented out of pocket expenses as set forth in the Pricing Side Letter. (x) Agency Status. Once the Seller or any of its subservicers has obtained any status with an Agency’s mortgage loan pool for which Seller is issuer or servicer, Seller shall not take or omit to take any act that (i) would result in the suspension or loss of any of such status, or (ii) after which Seller or any such relevant subservicer would no longer be in good standing with respect to such status, or (iii) after which Seller or any such relevant subservicer would no longer satisfy all applicable Agency net worth requirements, if both (x) all of the material effects of such act or omission shall not have been cured by Seller or waived by the applicable Agency before termination of such status and (y) the termination of such status could reasonably be expected to have a Material Adverse Effect. (y) Further Documents. Seller shall, upon request of Purchaser or Agent, promptly execute and deliver to Purchaser or Agent all such other and further documents and instruments of transfer, conveyance and assignment, and shall take such other action as Purchaser or Agent may require to more effectively transfer, convey, assign to and vest in Purchaser and to put Purchaser in possession of the Property to be transferred, conveyed, assigned and delivered hereunder and otherwise to carry out more effectively the intent of the provisions under this Agreement. (z) Due Diligence. Seller will permit Purchaser, Agent or their respective agents or designees to perform due diligence reviews on the Mortgage Loans subject to each Transaction hereunder up to the Due Diligence Review Amount within thirty (30) days following the related Purchase Date. Seller shall cooperate in all respects with such diligence and shall provide Purchaser, Agent or their respective agents or designees who are bound by confidentiality requirements with all loan files and other information (including, without limitation, Seller’s quality control procedures and results) reasonably requested by Purchaser, Agent or their respective agents or designees and shall bear all costs and expenses associated with such due diligence. (aa) [Reserved]. (bb) Non-Utilization Fee. Seller shall pay to Purchaser the due and owing portion of the Non-Utilization Fee if and as required under Section 2 of the Pricing Side Letter; provided that Purchaser may, in its sole discretion, net any Non-Utilization Fee from the proceeds of any Purchase Price paid by Purchaser to Seller to the extent such amounts were not otherwise received by Purchaser in accordance with this clause (bb). (cc) Opinion of Counsel. Within three (3) Business Days of the Effective Date, Seller shall deliver to Purchaser an opinion of Seller’s counsel as to such matters as Purchaser may reasonably request (including, without limitation, with respect to Purchaser’s perfected security interest in the Purchased Assets, a non-contravention, enforceability and corporate opinion with - 63 -


 
- 64 - respect to Seller, and an opinion with respect to the inapplicability of the Investment Company Act to Seller), each in form and substance reasonably acceptable to Purchaser. 16. REPURCHASE OF PURCHASED ASSETS Upon discovery by Seller of a breach of any of the representations and warranties set forth on Exhibit B to this Agreement, Seller shall give prompt written notice thereof to Purchaser. Upon any such discovery by Purchaser, Purchaser will notify Seller. It is understood and agreed that the representations and warranties set forth in Exhibit B to this Agreement with respect to the Purchased Assets shall survive delivery of the respective Mortgage Files to the Purchaser or Custodian with respect to the Purchased Assets and shall inure to the benefit of Purchaser. The fact that Purchaser has conducted or has failed to conduct any partial or complete due diligence investigation in connection with its purchase of any Purchased Asset shall not affect Purchaser’s right to demand repurchase or any other remedy as provided under this Agreement. Seller shall, within five (5) Business Days of the earlier of Seller’s discovery or receipt of notice with respect to any Purchased Asset of (i) any breach of a representation or warranty contained in Exhibit B of this Agreement or (ii) any failure to deliver any of the items required to be delivered as part of the Mortgage File within the time period required for delivery pursuant to the Custodial and Disbursement Agreement, promptly cure such breach or delivery failure in all material respects. If within five (5) Business Days after the earlier of Seller’s discovery of such breach or delivery failure or receipt of notice thereof that such breach or delivery failure has not been remedied by Seller, Seller shall promptly upon receipt of written instructions from Purchaser, at Purchaser’s option, repurchase such Purchased Asset at a purchase price equal to the Repurchase Price with respect to such Purchased Asset by wire transfer to the account designated by Purchaser. 17. SERVICING OF THE MORTGAGE LOANS; SERVICER TERMINATION (a) Subservicing. (i) Upon payment of the Initial Purchase Price, Purchaser shall own the Servicing Rights related to the Purchased Mortgage Loans including the Mortgage File related to such Purchased Mortgage Loans. Seller and Purchaser each agrees and acknowledges that the Mortgage Loans sold hereunder shall be sold to Purchaser on a servicing released basis, and that Purchaser is engaging and hereby does engage Seller to provide subservicing of each such Mortgage Loan for the benefit of Purchaser; provided that with respect to one or more Purchased Mortgage Loans, Cenlar FSB may subservice the Mortgage Loans for the benefit of Purchaser.6174 (ii) So long as a Purchased Mortgage Loan is outstanding, Seller shall neither assign, encumber or pledge its obligation to subservice such Mortgage Loans in whole or in part, nor delegate its rights or duties under this Agreement (to other than a subservicer) without the prior written consent of Purchaser, the granting of which consent shall be in the sole discretion of Purchaser. Seller hereby acknowledges and agrees that (i) Purchaser is entering into this Agreement in reliance upon Seller’s representations as to 6174 Section 17(a)(i) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 65 - the adequacy of its financial standing, servicing facilities, personnel, records, procedures, reputation and integrity, and the continuance thereof; and (ii) Seller’s engagement hereunder to provide mortgage servicing for the benefit of Purchaser is intended by the parties to be a “personal service contract” and Seller is hereunder intended by the parties to be an “independent contractor”. (iii) Servicer shall subservice and administer the Mortgage Loans it is subservicing on behalf of Purchaser in accordance with Accepted Servicing Practices. Servicer shall have no right to modify or alter the terms of any such Mortgage Loan or consent to the modification or alteration of the terms of any such Mortgage Loan except in Strict Compliance with the related Agency Program. Servicer shall at all times maintain accurate and complete records of its servicing of the Mortgage Loans it is subservicing on behalf of Purchaser, and Agent may, at any time during Servicer’s business hours on reasonable notice, examine and make copies of such Servicing Records. Seller agrees that Purchaser is the 100% beneficial owner of all Servicing Records relating to the Mortgage Loans. Seller covenants to hold or cause to be held such Servicing Records for the benefit of Purchaser and to safeguard such Servicing Records and to deliver them promptly to Agent or its designee (including the Custodian) at Agent’s request or otherwise as required by operation of this Section 17. (b) Servicing Term. Seller shall service or cause the Servicer to service such Mortgage Loans on behalf of Purchaser for commencing as of the related Purchase Date until the first next Monthly Payment Date, which term may be extended in writing by Agent in its sole reasonable discretion, until the next following Monthly Payment Date (each, a “Servicing Term”) . Notwithstanding the forgoing, Purchaser and/or Agent shall have the right to immediately terminate the Seller or any Servicer at any time following a Servicer Termination Event. If such Servicing Term is not extended by Agent or if Purchaser or Agent has terminated Seller or Servicer as a result of a Servicer Termination Event, Seller shall transfer or shall cause such Servicer to transfer such servicing to Purchaser or its designee at no cost or expense to Purchaser as provided in Section 15(t). Seller shall hold or cause to be held all Escrow Payments collected with respect to the Mortgage Loans it or a Servicer is subservicing on behalf of Purchaser in segregated accounts for the sole benefit of the related Mortgagor and shall apply the same for the purposes for which such funds were collected. If Seller or Servicer should discover that, for any reason whatsoever, it or the Servicer has failed to fully perform its servicing obligations in any respect with respect to the Mortgage Loans it is subservicing on behalf of Purchaser, Seller shall promptly notify Purchaser and Agent.6275 (c) Servicing Reports. As requested by Purchaser from time to time, Seller shall furnish to Purchaser reports in form and scope satisfactory to Purchaser, setting forth (i) data regarding the performance of the individual Mortgage Loans, (ii) a summary report of all Mortgage Loans serviced by the Seller and originated pursuant to an Agency Guide, HUD and/or FHA guidelines (on a portfolio basis), in each case, for the immediately preceding month, 6275 Section 17(b) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 66 - including, without limitation, all collections, delinquencies, defaults, defects, claim rates, losses and recoveries, and (iii) any other information reasonably requested by Purchaser. (d) Backup Servicer. The Agent, in its sole discretion, may appoint a backup servicer at any time during the term of this Agreement. In such event, Seller shall commence monthly delivery to such backup servicer of the servicing information required to be delivered to Purchaser pursuant to Section 17(d) hereof and any other information reasonably requested by backup servicer, all in a format that is reasonably acceptable to such backup servicer. Solely in the event that such backup servicer is appointed by Agent as a result of the occurrence and continuation of an Event of Default, Seller shall pay all costs and expenses of such backup servicer, including, but not limited to all fees of such backup servicer in connection with the processing of such information and the maintenance of a servicing file with respect to the Purchased Mortgage Loans. Seller shall cooperate fully with such backup servicer in the event of a transfer of servicing hereunder and will provide such backup servicer with all documents and information necessary for such backup servicer to assume the servicing of the Purchased Mortgage Loans. (e) Collection Account. Prior to the initial Purchase Date, Seller shall establish and maintain a separate account (the “Collection Account”) with the Collection Account Bank in the Agent’s name for the sole and exclusive benefit of the Purchaser. Such account shall be subject to the Collection Account Control Agreement. Following the occurrence and during the continuance of an Event of Default, Servicer shall deposit or credit (irrespective of any right of setoff or counterclaim arising in favor of Seller (or any third party claiming through it) under any other agreement or arrangement) to the Collection Account all amounts collected on account of the Purchased Mortgage Loans within two (2) Business Days of receipt, and remit such collections in accordance with Section 17(f) hereof. (f) Income Payments. Upon the occurrence and continuance of an Event of Default, all amounts deposited in the Collection Account shall be applied to reduce the Obligations hereunder to zero and all remaining amounts (if any) shall be paid to Seller. (g) FHA Buyout Loans. With respect to each FHA Buyout Loan, (i) Seller shall deposit FHA claims payments on such FHA Buyout Loan into the Collection Account within one Business Day of receipt and (ii) Seller shall service such FHA Buyout Loan in Strict Compliance with all FHA requirements.6376 (h) VA Buyout Loans. With respect to each VA Buyout Loan, Purchaser shall be entitled to, and Seller shall pay (or shall cause Servicer to pay) directly to Purchaser (except in the case of VA Claim Proceeds that are paid directly to Purchaser), (i) in the case of a VA Claim, the VA Claim Proceeds and (ii) in the case of a loan repurchased by Seller, the Repurchase Price. With respect to each VA Buyout Loan, (i) Seller shall deposit VA Claim Proceeds on such VA Buyout Loan into the Collection Account within one Business Day of receipt. Seller shall 6376 The subsection 17(g) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 67 - cause each Servicer to service the VA Buyout Loans in Strict Compliance with all VA requirements.6477 (i) Reserved. (j) Servicer Termination. Purchaser, in its sole discretion, may terminate Servicer’s rights and obligations as subservicer of the affected Mortgage Loans that it is subservicing on behalf of Purchaser and require Servicer to deliver the related Servicing Records to Purchaser or its designee upon the occurrence of (i) an Event of Default or (ii) upon the expiration of the Servicing Term as set forth in Section 17(b) by delivering written notice to Seller and Servicer requiring such termination. Such termination shall be effective upon Seller’s receipt of such written notice; provided, that Servicer’s subservicing rights shall be terminated immediately upon the occurrence a Servicer Termination Event, regardless of whether notice of such event shall have been given to or by Purchaser or Seller. Upon any such termination, all authority and power of Servicer respecting its rights to subservice and duties under this Agreement relating thereto, shall pass to and be vested in the successor servicer appointed by Purchaser and Purchaser is hereby authorized and empowered to transfer such rights to subservice the Mortgage Loans for such price and on such terms and conditions as Purchaser shall reasonably determine. Seller shall promptly take such actions and furnish to Purchaser such documents that Purchaser deems necessary or appropriate to enable Purchaser to enforce such Mortgage Loans and shall perform all acts and take all actions so that the Mortgage Loans and all files and documents relating to such Mortgage Loans held by Servicer, together with all escrow amounts relating to such Mortgage Loans, are delivered to successor Servicer, including but not limited to preparing, executing and delivering to the successor Servicer any and all documents and other instruments, placing in the successor Servicer’s possession all Servicing Records pertaining to such Mortgage Loans and doing or causing to be done, all at Seller’s sole expense. To the extent that the approval of the Applicable Agency is required for any such sale or transfer, Seller shall fully cooperate with Purchaser to obtain such approval. All amounts paid by any purchaser of such rights to service or subservice the Mortgage Loans shall be the property of Purchaser. The subservicing rights required to be delivered to successor Servicer in accordance with this Section 17(i) shall be delivered free of any servicing rights in favor of Seller or any third party (other than Purchaser) and free of any title, interest, lien, encumbrance or claim of any kind of Seller other than record title to the Mortgages relating to the Mortgage Loans and the right and obligation to repurchase the Mortgage Loans hereunder. No exercise by Purchaser of its rights under this Section 17(i) shall relieve Seller of responsibility or liability for any breach of this Agreement. (k) Conflicts. For the avoidance of doubt, if a Servicer Side Letter conflicts with any provision set forth in this Section 17, the applicable Servicer Side Letter shall control with respect to such provision. 6477 The subsection 17(h) was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 68 - 18. EVENTS OF DEFAULT With respect to any Transactions covered by or related to this Agreement, the occurrence of any of the following events shall constitute an “Event of Default”: (a) Seller fails to transfer the Purchased Assets to the Purchaser on the applicable Purchase Date (provided the Purchaser has tendered the related Initial Purchase Price and Seller has not repaid such Initial Purchase Price on the same day as such tender);6578 (b) Seller either fails to repurchase the Purchased Assets on the applicable Repurchase Date or fails to perform its obligations under Section 7 (including, without limitation, the failure to timely cure a Margin Deficit) or the last sentence of Section 16; (c) Seller shall fail to (i) remit to Purchaser when due any payment required to be made under the terms of this Agreement, any of the other Program Documents or any other contracts or agreements delivered in connection herewith or therewith, or (ii) perform, observe or comply with any material term, condition, covenant or agreement contained in this Agreement or any of the other Program Documents (other than the other “Events of Default” set forth in this Section 18) or any other contracts or agreements delivered in connection herewith or therewith, and such failure is not cured within the time period expressly provided for therein, or, if no such cure period is provided, within three (3) Business Days of the earlier of (x) Seller’s receipt of written notice from Purchaser or Custodian of such breach or (y) the date on which Seller obtains notice or knowledge of the facts giving rise to such breach; (d) Any representation or warranty made by Seller (or any of Seller’s officers) in the Program Documents or in any other document delivered in connection therewith, or in any other contract or agreement, shall have been incorrect or untrue in any material respect when made or repeated or deemed by the terms thereof to have been incorrect or untrue in any material respect when made or repeated (other than the representations or warranties in Exhibit B which shall be considered solely for the purpose of determining whether the related Purchased Asset is an Eligible Mortgage Loan, unless (i) Seller shall have made any such representation or warranty with the knowledge that it was materially false or misleading at the time made or repeated or deemed to have been made or repeated, or (ii) any such representation or warranty shall have been determined by Purchaser in its sole good faith discretion to be materially false or misleading on a regular basis); (e) an Event of Default (as defined in the Other Agreement) shall have occurred and be continuing beyond any applicable cure period under any Other Agreement to which Seller or any of its Affiliates or Subsidiaries is a party; (f) Any Event of Insolvency of Seller; 6578 The subsection 18(a) was amended by Amendment No. 1, dated as of September 24, 2021.


 
(g) Any final judgment or order for the payment of money in excess of $10,000,000 in the aggregate (to the extent that it is, in the reasonable determination of Purchaser, uninsured and provided that any insurance or other credit posted in connection with an appeal shall not be deemed insurance for these purposes) shall be rendered against Seller by one or more courts, administrative tribunals or other bodies having jurisdiction over them and the same shall not be discharged (or provisions shall not be made for such discharge) satisfied, or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the date of entry thereof and Seller 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; (h) Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority (i) shall have taken any action to condemn, seize or appropriate, or to assume custody or control of, all or any substantial part of the Property of Seller or any of Seller’s Affiliates, or shall have taken any action to displace the management of Seller or any of Seller’s Affiliates or to curtail its authority in the conduct of the business of Seller or any of Seller’s Affiliates, or (ii) takes any action in the nature of enforcement to remove, limit or restrict the approval of Seller or any of Seller’s Affiliates as an issuer, purchaser or a seller/servicer of Mortgage Loans or securities backed thereby; (i) Seller, shall fail to comply with any of the financial covenants set forth in Section 4 of the Pricing Side Letter; (j) Any Material Adverse Effect shall have occurred and not have been waived; (k) Neither of the following is true: This Agreement shall for any reason cease to create a valid first priority security interest or ownership interest upon transfer (except to the extent a security interest may not be perfected by possession, control or filing of a UCC financing statement) in any material portion of the Purchased Assets purported to be covered hereby; (l) A Change in Control of Seller shall have occurred that has not been approved by Agent; (m) [Reserved]; (n) A material event of default shall have occurred and be continuing beyond the expiration of any applicable cure periods under any of the Program Documents or the EPF Program Documents; (o) Seller ceases to be a member of MERS in good standing (unless MERS is no longer acting in such capacity) for any reason at any time Seller is servicing MERS Loans and has not been reinstated within thirty (30) days following receipt of notice or knowledge thereof; (p) [Reserved]; (q) Failure of Seller or its Affiliate as Servicer to service the Mortgage Loans in accordance with Accepted Servicing Practices and such breach is not waived by Agent in writing - 69 -


 
within thirty (30) days or Seller has failed to appoint a successor servicer acceptable to Agent within thirty (30) days; or (r) Failure of Seller to meet the qualifications to maintain all requisite Approvals, such Approvals are revoked or such Approvals are materially and modified. 19. REMEDIES Upon the occurrence and continuation of an Event of Default, the Purchaser, may, at its option (which option shall be deemed to have been exercised immediately upon the occurrence of an Event of Default referred to in Section 18(f)), declare an Event of Default to have occurred hereunder and, upon the exercise or deemed exercise of such option, shall have the right to exercise any or all of the following rights and remedies. (a) (i) The Repurchase Date for each Transaction hereunder shall, if it has not already occurred, be deemed immediately to occur (except that, in the event that the Purchase Date for any Transaction has not yet occurred as of the date of such exercise or deemed exercise, such Transaction shall be deemed immediately canceled). Seller’s Obligations hereunder, to repurchase all Purchased Assets at the Repurchase Price therefor on the Repurchase Date in such Transactions shall thereupon become immediately due and payable; all Income paid after such exercise or deemed exercise shall be remitted to and retained by Purchaser and applied to the aggregate Repurchase Prices and any other amounts owing by Seller hereunder; Seller shall immediately deliver to Purchaser or its designee the Mortgage Files relating to the Purchased Assets subject to such Transaction then in its possession and/or control; and all right, title and interest in and entitlement to such Purchased Assets and Servicing Rights thereon shall become property of Purchaser. (ii) Purchaser may (A) sell, on or following the Business Day following the date on which the Repurchase Price becomes due and payable pursuant to Section 19(a)(i) without notice or demand of any kind, at a public or private sale and at such price or prices as Purchaser may deem commercially reasonable, any or all or portions of the Purchased Assets on a servicing-released or servicing-retained basis, as Purchaser may determine in its sole discretion and/or (B) in its sole discretion elect, in lieu of selling all or a portion of such Purchased Assets, to give Seller credit for such Purchased Assets (including credit for the Servicing Rights in respect of sales on a servicing-retained basis) in an amount equal to the Market Value of the Purchased Assets against the aggregate unpaid Repurchase Price and any other amounts owing by Seller hereunder. Seller shall remain liable to Purchaser for any amounts that remain owing to Purchaser following a sale and/or credit under the preceding sentence. The proceeds of any disposition of Purchased Assets shall be applied first to the reasonable costs and expenses including but not limited to legal fees incurred by Purchaser in connection with or as a result of an Event of Default; second to costs of cover and/or related hedging transactions; third to the aggregate Repurchase Prices; fourth to all other Obligations; and fifth to Seller. (iii) The parties recognize that it may not be possible to purchase or sell all of the Purchased Assets on a particular Business Day, or in a transaction with the same - 70 -


 
purchaser, or in the same manner because the market for such Purchased Assets may not be liquid. In view of these characteristics of the Purchased Assets, the parties agree that liquidation of a Transaction or the underlying Purchased Assets does not require a public purchase or sale and that a good faith private purchase or sale shall be deemed to have been made in a commercially reasonable manner. Accordingly, Purchaser may elect the time and manner of liquidating any Purchased Asset and nothing contained herein shall obligate Purchaser to liquidate any Purchased Asset upon the occurrence of an Event of Default or to liquidate all Purchased Assets in the same manner or on the same Business Day or shall constitute a waiver of any right or remedy of Purchaser. Notwithstanding the foregoing, the parties to this Agreement agree that the Transactions have been entered into in consideration of and in reliance upon the fact that all Transactions hereunder constitute a single business and contractual obligation and that each Transaction has been entered into in consideration of the other Transactions. (iv) The Purchaser may terminate the Agreement. (b) Seller hereby acknowledges, admits and agrees that Seller’s obligations under this Agreement are recourse obligations of Seller. In addition to its rights hereunder, upon the occurrence of an Event of Default, Purchaser shall have the right to proceed against any of Seller’s assets related to any other warehouse, repurchase, or mortgage servicing rights facility or related trade line, which may be in the possession of Purchaser, any of Purchaser’s Affiliates or their designee (including the Custodian), including the right to liquidate such assets and to set-off the proceeds against monies owed by Seller to Purchaser pursuant to this Agreement. Purchaser may set off cash, the proceeds of the liquidation of the Purchased Assets and Additional Purchased Mortgage Loans and all other sums or obligations owed by Purchaser to Seller or against all of Seller’s Obligations to Purchaser, or Seller’s obligations to Purchaser under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line between the parties, or otherwise, whether or not such obligations are then due, without prejudice to Purchaser’s right to recover any deficiency. (c) Purchaser shall have the right to obtain physical possession of the Records and all other Mortgage Files relating to the Purchased Assets which are then or may thereafter come into the possession of Seller or any third party acting for Seller and Seller shall deliver to Purchaser such assignments as Purchaser shall request. (d) Purchaser shall have the right to direct all Persons servicing the Purchased Assets to take such action with respect to the Purchased Assets as Purchaser determines appropriate, including, without limitation, using its rights under a power of attorney granted pursuant to Section 10(b) hereof. (e) Purchaser shall, without regard to the adequacy of the security for the Obligations, be entitled to seek the appointment of a receiver by any court having jurisdiction, without notice, to take possession of and protect, collect, manage, liquidate, and sell the Purchased Assets or any portion thereof, collect the payments due with respect to the Purchased Assets or any portion thereof, and do anything that Purchaser is authorized hereunder to do. Seller shall pay all reasonable and documented out-of-pocket costs and expenses incurred by - 71 -


 
Purchaser in connection with the appointment and activities of such receiver, and such shall be deemed part of the Obligations hereunder. (f) Purchaser may, at its option, enter into one or more hedging transactions covering all or a portion of the Purchased Assets, and Seller shall be responsible for all reasonable and documented out-of-pocket damages, judgments, costs and expenses which may be imposed on, incurred by or asserted against Purchaser in good faith relating to or arising out of such hedging transactions; including without limitation any losses resulting from such hedging transactions, and such shall be deemed part of the Obligations hereunder. (g) In addition to all the rights and remedies specifically provided herein, Purchaser shall have all other rights and remedies provided by applicable federal, state, foreign and local laws, whether existing at law, in equity or by statute, including, without limitation, all rights and remedies available to a purchaser/secured party under the Uniform Commercial Code. Except as otherwise expressly provided in this Agreement, Purchaser shall have the right to exercise any of its rights and/or remedies without presentment, demand, protest or further notice of any kind, other than as expressly set forth herein, all of which are hereby expressly waived by Seller. Purchaser may enforce its rights and remedies hereunder without prior judicial process or hearing, and Seller hereby expressly waives, to the extent permitted by law, any right Seller might otherwise have to require Purchaser to enforce its rights by judicial process. Seller also waives, to the extent permitted by law, any defense Seller might otherwise have to the Obligations, or any guaranty thereof, arising from use of nonjudicial process, enforcement and sale of all or any portion of the Purchased Assets or from any other election of remedies. Seller recognizes that nonjudicial remedies are consistent with the usages of the trade, are responsive to commercial necessity and are the result of a bargain at arm’s length. (h) Seller shall cause all sums received by it with respect to the Purchased Assets to be deposited in the Collection Account promptly upon receipt thereof in accordance with Section 17. 20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE No failure on the part of Purchaser to exercise, and no delay by Purchaser in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by Purchaser of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All rights and remedies of Purchaser provided for herein are cumulative and in addition to any and all other rights and remedies provided by law, the Program Documents and the other instruments and agreements contemplated hereby and thereby, and are not conditional or contingent on any attempt by Purchaser to exercise any of its rights under any other related document. Purchaser may exercise at any time after the occurrence of an Event of Default one or more remedies permitted hereunder, as it so desires, and may thereafter at any time and from time to time exercise any other remedy or remedies permitted hereunder. - 72 -


 
21. USE OF EMPLOYEE PLAN ASSETS No assets of an employee benefit plan subject to any provision of ERISA shall be used by either party hereto in a Transaction. 22. INDEMNITY (a) Seller agrees to indemnify and hold harmless Purchaser, Agent and their Affiliates and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against (and will reimburse each Indemnified Party as the same is incurred within thirty (30) days following receipt of an invoice therefor) any and all claims, damages, losses, liabilities and all other reasonable and documented expenses including out-of-pocket expenses (including, without limitation, reasonable fees and expenses of outside counsel) that may be incurred by or asserted or awarded against any Indemnified Party, in each case arising out of or in connection with or by reason of (including without limitation, in connection with) (i) any investigation, litigation or other proceeding relating to, resulting from or arising out of any of the Program Documents, any breach by Seller of any representation or warranty or covenant in this Agreement or any other Program Document, and all actions taken pursuant thereto, (ii) the Transactions, the actual or proposed use of the proceeds of the Transactions, this Agreement or any of the transactions contemplated hereby, including, without limitation, any acquisition or proposed acquisition, or any indemnity payable under the servicing agreement or other servicing arrangement, (iii) the actual or alleged presence of hazardous materials on any Property or any environmental action relating in any way to any Property, (iv) the actual or alleged violation of any federal, state, municipal or local predatory lending laws by Seller, or (v) the reduction of the Principal Balance due to a cram down or similar action authorized by any bankruptcy proceeding or other case arising out of or relating to any petition under the Bankruptcy Code, in each case, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted directly from such Indemnified Party’s gross negligence or willful misconduct or is the result of a claim made by Seller against the Indemnified Party, and Seller is ultimately the successful party in any resulting litigation or arbitration. Paragraph (a) of this section shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim. (b) Seller hereby agrees not to assert any claim against Purchaser or any of its Affiliates, or any of their respective officers, directors, employees, attorneys and agents, on any theory of liability, for special, indirect, consequential or punitive damages arising out of or otherwise relating to the Program Documents, the actual or proposed use of the proceeds of the Transactions, this Agreement or any of the transactions contemplated thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES. (c) If Seller fails to pay when due any costs, expenses or other amounts payable by it under this Agreement, including, without limitation, reasonable fees and expenses of counsel and indemnities, such amount may be paid on behalf of Seller by Purchaser, in its reasonable discretion and Seller shall remain liable for any such payments by Purchaser and such amounts - 73 -


 
shall be deemed part of the Obligations hereunder. No such payment by Purchaser shall be deemed a waiver of any of Purchaser’s rights under the Program Documents. (d) Without prejudice to the survival of any other agreement of Seller hereunder, the covenants and obligations of Seller contained in this Section 22 shall survive the payment in full of the Repurchase Price and all other amounts payable hereunder and delivery of the Purchased Assets by Purchaser against full payment therefor. 23. WAIVER OF ORDER OF DISPOSITION RIGHTS Seller hereby expressly waives, to the fullest extent permitted by law, every statute of limitation on a deficiency judgment, any reduction in the proceeds of any Purchased Assets as a result of restrictions upon Purchaser or Custodian contained in the Program Documents or any other instrument delivered in connection therewith, and any right that they may have to direct the order in which any of the Purchased Assets shall be disposed of in the event of any disposition pursuant hereto. 24. REIMBURSEMENT; SET-OFF (a) Seller agrees to pay on demand all reasonable out-of-pocket costs and expenses of Purchaser in connection with the initial and subsequent negotiation, modification, renewal and amendment of the Program Documents (including, without limitation, (A) all collateral review and UCC search and filing fees and expenses and (B) the reasonable fees and expenses of outside counsel for Purchaser with respect to advising Purchaser as to its rights and responsibilities, or the perfection, protection or preservation of rights or interests, under this Agreement and any other Program Document, with respect to negotiations with Seller or with other creditors of Seller arising out of any Default or any events or circumstances that may give rise to a Default and with respect to presenting claims in or otherwise participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto). Seller agrees to pay on demand, with interest at the Default Rate to the extent that an Event of Default has occurred, all costs and expenses, including without limitation, reasonable attorneys’ fees and disbursements (and fees and disbursements of Purchaser’s outside counsel) expended or incurred by Purchaser and/or Custodian in connection with the modification, renewal, amendment and enforcement (including any waivers) of the Program Documents (regardless of whether a Transaction is entered into hereunder), the taking of any action, including legal action, required or permitted to be taken by Purchaser (without duplication to Purchaser) and/or Custodian pursuant thereto or by refinancing or restructuring in the nature of a “workout.” Further, Seller agrees to pay, with interest at the Default Rate to the extent that an Event of Default has occurred, all costs and expenses, including without limitation, reasonable attorneys’ fees and disbursements (and fees and disbursements of Purchaser’s outside counsel) expended or incurred by Purchaser in connection with (a) the rendering of legal advice as to Purchaser’s rights, remedies and obligations under any of the Program Documents, (b) the collection of any sum which becomes due to Purchaser under any Program Document, (c) any proceeding for declaratory relief, any counterclaim to any proceeding, or any appeal, or (d) the protection, preservation or enforcement of any rights of Purchaser. For the purposes of this Section 24(a), attorneys’ fees shall include, without limitation, fees incurred in connection with the following: (1) discovery; (2) any motion, - 74 -


 
proceeding or other activity of any kind in connection with a bankruptcy proceeding or case arising out of or relating to any petition under the Bankruptcy Code, as the same shall be in effect from time to time, or any similar law; (3) garnishment, levy, and debtor and third party examinations; and (4) post-judgment motions and proceedings of any kind, including without limitation any activity taken to collect or enforce any judgment. Any and all of the foregoing amounts referred to in this Section 24(a) shall be deemed a part of the Obligations hereunder. Without prejudice to the survival of any other agreement of Seller hereunder, the covenants and obligations of Seller contained in this Section 24(a) shall survive the payment in full of the Repurchase Price and all other amounts payable hereunder and delivery of the Purchased Assets by Purchaser against full payment therefor. (b) In addition to any rights and remedies of Purchaser hereunder and at law, upon the occurrence and continuation of an Event of Default, Purchaser and its Affiliates shall have the right, without prior notice to Seller, any such notice being expressly waived by Seller to the extent permitted by applicable law, upon any amount becoming due and payable (whether at the stated maturity, by acceleration or otherwise) by Seller hereunder, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand, to set-off and appropriate and apply against such amount any and all Property and deposits (general or special, time or demand, provisional or final), in any currency, or any other credits, indebtedness or claims, in any currency, or any other collateral (in the case of collateral not in the form of cash or such other marketable or negotiable form, by selling such collateral in a recognized market therefor or as otherwise permitted by law or as may be in accordance with custom, usage or trade practice), in each case, whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Purchaser or any Affiliate thereof to or for the credit or the account of Seller except and to the extent that any of the same are held by Seller for the account of another Person. Upon the occurrence of an Event of Default, Purchaser may also set-off cash and all other sums or obligations owed by Purchaser or its Affiliates to Seller (whether under this Agreement, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand) against all of Seller’s obligations to Purchaser or its Affiliates (whether under this Agreement, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand), whether or not such obligations are then due. The exercise of any such right of set-off shall be without prejudice to Purchaser’s or its Affiliate’s right to recover any deficiency. Purchaser agrees to promptly notify Seller after any such set-off and application made by Purchaser; provided that the failure to give such notice shall not affect the validity of such set-off and application. 25. FURTHER ASSURANCES Seller agrees to do such further acts and things and to execute and deliver to Purchaser such additional assignments, acknowledgments, agreements, powers and instruments as are reasonably required by Purchaser to carry into effect the intent and purposes of this Agreement, - 75 -


 
to perfect the interests of Purchaser in the Purchased Assets or to better assure and confirm unto Purchaser its rights, powers and remedies hereunder. 26. ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION This Agreement supersedes and integrates all previous negotiations, contracts, agreements and understandings between the parties relating to a sale and repurchase of Purchased Assets and Additional Purchased Mortgage Loans, and it, together with the other Program Documents, and the other documents delivered pursuant hereto or thereto, contains the entire final agreement of the parties. No prior negotiation, agreement, understanding or prior contract shall have any validity hereafter. 27. TERMINATION This Agreement shall remain in effect until the Termination Date. However, no such termination shall affect Seller’s outstanding obligations to Purchaser at the time of such termination. Seller’s obligations to indemnify Purchaser pursuant to this Agreement and the other Program Documents shall survive the termination hereof. 28. REHYPOTHECATION; ASSIGNMENT (a) Purchaser may, in its sole election, and without the consent of the Seller but after providing at least ten (10) Business Days’ prior written notice to Seller, engage in repurchase transactions with the Purchased Assets or otherwise pledge, hypothecate, assign, transfer or otherwise convey the Purchased Assets with a counterparty of Purchaser’s choice, in all cases subject to Purchaser’s obligation to reconvey the Purchased Assets (and not substitutes therefor) on the Repurchase Date, all at no cost to the Seller. In the event Purchaser engages in a repurchase transaction with any of the Purchased Assets or otherwise pledges or hypothecates any of the Purchased Assets, (i) Purchaser shall have the right to assign to Purchaser’s counterparty any of the applicable representations or warranties in Exhibit B to this Agreement and the remedies for breach thereof, as they relate to the Purchased Assets that are subject to such repurchase transaction, (ii) the Purchaser’s obligations under this Agreement shall remain unchanged, (iii) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iv) Seller shall continue to deal solely and directly with Purchaser in connection with Purchaser’s rights and obligations under this Agreement and the other Program Documents. (b) The Program Documents and the Seller’s rights and obligations thereunder are not assignable by Seller without the prior written consent of Purchaser. Any Person into which Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which Seller shall be a party, or any Person succeeding to the business of Seller, shall be the successor of Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Subject to the consent of the Seller (such consent not to be unreasonably withheld) and at no cost or expense to the Seller, each of Purchaser and Agent may, in its sole election, assign or participate all or a portion of its rights and obligations under this Agreement and the Program Documents with a counterparty of Purchaser’s or Agent’s choice; provided, - 76 -


 
that any assignment or participation to an Affiliate of Purchaser or any of the additional purchasers identified in Section 1 hereof or pursuant to Purchaser’s rehypothecation programs shall not require the consent of Seller. Purchaser or Agent shall notify Seller of any such assignment and participation and Agent shall maintain at its offices located in the United States, for review by Seller upon written request, a register of assignees and participants (the “Register”) and a copy of any executed assignment and acceptance by Purchaser or Agent and assignee (“Assignment and Acceptance”), on which the Agent shall enter the name and address of each assignee or participant and specify therein the percentage or portion of such rights and obligations assigned. The entries in the Register shall be conclusive absent manifest error, and Seller, the Agent and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the preceding sentence as a Purchaser hereunder. The Seller agrees that, for any such permitted assignment, Seller will cooperate with the prompt execution and delivery of documents reasonably necessary for such assignment process to the extent that Seller incurs no cost or expense that is not paid by the Purchaser or Agent, as applicable. Upon such assignment, (a) such assignee shall be a party hereto and to each Program Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Purchaser or Agent hereunder, and (b) Purchaser or Agent shall, to the extent that such rights and obligations have been so assigned by it to either (i) an Affiliate of Purchaser or Agent which assumes the obligations of Purchaser or Agent hereunder or (ii) to another Person which assumes the obligations of Purchaser or Agent hereunder, be released from their obligations hereunder accruing thereafter and under the Program Documents. (c) Purchaser and Agent may distribute to any prospective assignee, participant or pledgee any document or other information delivered to Purchaser by Seller subject to the confidentiality restrictions contained in Section 35 hereof; accordingly, such prospective assignee, participant or pledgee shall be required to agree to confidentiality provisions similar to those set forth in Section 35. 29. AMENDMENTS, ETC. No amendment or waiver of any provision of this Agreement nor any consent to any failure to comply herewith or therewith shall in any event be effective unless the same shall be in writing and signed by Seller, Purchaser and Agent, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. 30. SEVERABILITY If any provision of any Program Document is declared invalid by any court of competent jurisdiction, such invalidity shall not affect any other provision of the Program Documents, and each Program Document shall be enforced to the fullest extent permitted by law. 31. BINDING EFFECT; GOVERNING LAW This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES - 77 -


 
THEREOF (EXCEPT FOR SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). 32. WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROGRAM DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS, ON BEHALF OF ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS IN ANY ACTION OR PROCEEDING. EACH OF SELLER, PURCHASER AND AGENT HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO, NON-EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN THE COURTS OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS. EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS IN ANY ACTION, CLAIM OR PROCEEDING BROUGHT BY ANOTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE OTHER PROGRAM DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS, ON BEHALF OF ITSELF OR ITS PROPERTY, IN THE MANNER SPECIFIED IN THIS SECTION 31 AND TO SUCH PARTY’S REGISTERED AGENT OR SUCH OTHER ADDRESS AS SUCH PARTY SHALL HAVE PROVIDED IN WRITING TO THE OTHER PARTIES HERETO. NOTHING IN THIS SECTION 31 SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO (I) SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW, OR (II) BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY OR ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS. 33. SINGLE AGREEMENT Seller, Purchaser and Agent acknowledge that, and have entered hereinto and will enter into each Transaction hereunder in consideration of and in reliance upon the fact that, all Transactions hereunder constitute a single business and contractual relationship and have been made in consideration of each other. Accordingly, Seller, Purchaser and Agent each agree (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, and (ii) that payments, deliveries and other transfers made by any of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries - 78 -


 
and other transfers in respect of any other Transaction hereunder, and the obligations to make any such payments, deliveries and other transfers may be applied against each other and netted. 34. INTENT (a) Seller, Purchaser and Agent intend and acknowledge that (i) this Agreement and each Transaction hereunder is a “repurchase agreement” as that term is defined in Section 101 of the Bankruptcy Code (except insofar as the type of assets subject to such Transaction or the term of such Transaction would render such definition inapplicable), a “securities contract” as that term is defined in Section 741 of the Bankruptcy Code (except insofar as the type of assets subject to such Transaction or the term of such Transaction would render such definition inapplicable), a “master netting agreement” as that term is defined in Section 101(38A)(A) of the Bankruptcy Code and a “qualified financial contract” as that term is defined in the Federal Deposit Insurance Act, as applicable (except insofar as the type of assets subject to such Transaction or the term of such Transaction would render such definition inapplicable); (ii) any payments or transfers of property made with respect to this Agreement or any Transaction (e.g., to satisfy a for example Margin Deficit) shall be considered a “margin payment” or “settlement payment” as such terms are defined in Bankruptcy Code Sections 741(5) and 741(8); (iii) each Purchased Asset constitutes either a “security,” “mortgage loan” or “an interest in a mortgage” as such terms are used in the Bankruptcy Code; and (iv) each grant of a security interest/pledge of the Purchased Assets in Section 8 constitutes “a security agreement or other arrangement or other credit enhancement” that is “related to” this Agreement and Transactions hereunder within the meaning of Sections 101(38A)(A), 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code. Without limiting the generality of the foregoing, the parties recognize and intend that each Transaction is a “repurchase transaction” or “reverse repurchase transaction” of “mortgage loans” or “interests” in “mortgage loans” (as such terms are used in Section 741(7) of the Bankruptcy Code). Each party hereto further agrees that it shall not challenge, and hereby waives to the fullest extent available under applicable law its right to challenge, the characterization of this Agreement or any Transaction hereunder as a “master netting agreement,” “repurchase agreement” and/or “securities contract” within the meaning of the Bankruptcy Code. (b) Seller, Purchaser and Agent further intend and acknowledge that (i)(1) for so long as Purchaser is a “financial institution,” “financial participant” or another entity listed in Sections 555, 559, 561, 362(b)(6), 362(b)(7) or 362(b)(27) of the Bankruptcy Code, Purchaser shall be entitled to, without limitation, the liquidation, termination, acceleration, netting, set-off, and non-avoidability rights afforded to parties such as Purchaser to “repurchase agreements” pursuant to Sections 559, 362(b)(7) and 546(f) of the Bankruptcy Code, “securities contracts” pursuant to Sections 555, 362(b)(6) and 546(e) of the Bankruptcy Code, “master netting agreements” pursuant to Sections 561, 362(b)(27) and 546(j) of the Bankruptcy Code and “qualified financial contracts” pursuant to Section 1821(e)(8)(A)(i) of the Federal Deposit Insurance Act, as applicable, and (2) Purchaser’s right to liquidate the Purchased Assets delivered to it in connection with the Transactions hereunder or to accelerate or terminate this Agreement or otherwise exercise any other remedies pursuant to Section 18 hereof is a contractual right to liquidate, accelerate or terminate such Transaction as described in Bankruptcy Code Sections 555, 559 and 561 and Section 1821(e)(8)(A)(i) of the Federal Deposit Insurance Act, as amended (“FDIA”), as applicable, and (ii) Purchaser’s right to set-off claims - 79 -


 
- 80 - and appropriate and apply any and all deposits of money or property or any other indebtedness at any time held or owing by Purchaser to or for the credit of the account of any Affiliate against and on account of the obligations and liabilities of Seller pursuant to Section 23 hereof is a contractual right as described in Bankruptcy Code Section 561. The parties hereby intend that any provisions hereof or in any other document, agreement or instrument that is related in any way to the servicing of the individual Mortgage Loans shall be deemed “related to” this Agreement within the meaning of Sections 101(38A)(A) and 101(47)(A)(v) of the Bankruptcy Code and part of the “contract” as such term is used in Section 741 of the Bankruptcy Code. (c) The parties further agree that if a party hereto is an “insured depository institution” as such term is defined in the FDIA, then each Transaction hereunder is a “qualified financial contract” as that term is defined in the FDIA, and any rules, orders or policy statement thereunder. (d) It is understood and agreed Seller, Purchaser and Agent by that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment obligation under any Transaction hereunder shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation”, respectively, as defined in and subject to FDICIA (except insofar as one or both of the parties is not a “financial institution” as that term is defined in FDICIA). (e) Seller, Purchaser and Agent agree that this Agreement is intended to create mutuality of obligations among the parties, and as such, the Agreement constitutes a contract which (i) is between all of the parties and (ii) places each party in the same right and capacity. 35. NOTICES AND OTHER COMMUNICATIONS6679 Except as provided herein, all notices required or permitted by this Agreement shall be in writing (including without limitation by Electronic Transmission, email or facsimile) and shall be effective and deemed delivered only when received by the party to which it is sent; provided that notices of Events of Default and exercise of remedies or under Sections 6 or 18 shall be sent via overnight mail and by Electronic Transmission. Any such notice shall be sent to a party at the address, electronic mail or facsimile transmission number set forth below: if to Seller: loanDepot.com, LLC 26642 Towne Centre Drive Foothill Ranch, California 92610 6679 Address was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 81 - email: CM_Legal@loandepot.com6881 if to Purchaser: Barclays Bank PLC 745 Seventh Avenue, 2nd Floor New York, New York 10019 Attention: US Residential Financing Telephone: (212) 412-7990 E-mail: USResiFinancing@barclays.com Barclays Bank PLC 745 Seventh Avenue, 5th Floor New York, New York 10019 Attention: RMBS Banking Telephone: (212) 528-7482 E-mail: CoreRMBSBanking@barclayscapital.com With copies to: Barclays Bank PLC – Operations US 400 Jefferson Park Whippany, New Jersey 07981 Attention: Whole Loan Operations Telephone: (201) 499-4456 E-Mail: WholeLoanOperati@barclayscapital.com if to Agent: Barclays Bank PLC Attention: Sheila Mayes, EVP, Treasurer6780 Email: smayes@loandepot.com with copies to: loanDepot.com, LLC 26642 Towne Centre Drive Foothill Ranch, California 92610 Attention: Patrick Flanagan, Chief Financial Officer email: pflanagan@loandepot.com Attention: Office of General Counsel 6780 Contact information was amended by Amendment No. 1, dated as of September 24, 2021. 6881 Contact information was amended by Amendment No. 1, dated as of September 24, 2021.


 
745 Seventh Avenue, 2nd Floor New York, New York 10019 Attention: US Residential Financing Telephone: (212) 412-7990 E-mail: USResiFinancing@barclays.com Barclays Bank PLC 745 Seventh Avenue, 5th Floor New York, New York 10019 Attention: RMBS Banking Telephone: (212) 528-7482 E-mail: CoreRMBSBanking@barclayscapital.com With copies to: Barclays Bank PLC – Operations US 400 Jefferson Park Whippany, New Jersey 07981 Attention: Whole Loan Operations Telephone: (201) 499-4456 E-Mail: WholeLoanOperati@barclayscapital.com or to such other address, e-mail address or facsimile number as either party may notify to the others in writing from time to time. 36. CONFIDENTIALITY Seller, Purchaser and Agent each hereby acknowledge and agree that all written or computer-readable information provided by one party to the other in connection with the Program Documents or the Transactions contemplated thereby, including without limitation, Seller’s Mortgagor information in the possession of Purchaser (the “Confidential Terms”) shall be kept confidential and shall not be divulged to any party without the prior written consent of such other party except for (i) disclosure to Seller’s direct and indirect parent companies, directors, attorneys, agents or accountants, provided that such parties likewise agree to be bound by this covenant of confidentiality, or are otherwise subject to confidentiality restrictions or (ii) with prior (if feasible) written notice to Purchaser, disclosure required by law, rule, regulation or order of a court or other regulatory body or (iii) with prior (if feasible) written notice to Purchaser, disclosure to any approved hedge counterparty to the extent necessary to obtain any Hedge Instrument hereunder or (iv) with prior (if feasible) written notice to Purchaser, any disclosures or filing required under Securities and Exchange Commission (“SEC”) or state securities’ laws; provided that in the case of clause (iv), Seller shall not file the Pricing Side Letter. Notwithstanding anything herein to the contrary, except as reasonably necessary to comply with applicable securities laws, each party (and each employee, representative, or other agent of each party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. For this purpose, tax treatment and tax structure shall not include (i) the identity of any existing or - 82 -


 
future party (or any Affiliate of such party) to this Agreement or (ii) any specific pricing information or other commercial terms, including the amount of any fees, expenses, rates or payments arising in connection with the transactions contemplated by this Agreement, in each case which are not requested by a Governmental Authority and which do not relate to the “tax treatment” and “tax structure” (as defined in the Code and the Federal Income Tax Regulations promulgated thereunder) of the transactions contemplated by the Program Documents. Notwithstanding anything in this Agreement to the contrary, Seller, Purchaser and Agent shall comply with all applicable local, state and federal laws, including, without limitation, all privacy and data protection law, rules and regulations that are applicable to the Purchased Assets and any applicable terms of this Agreement, including information relating to any Mortgage Loan that is not purchased hereunder and information relating to any other Mortgage Loans of Seller that is delivered to Purchaser or Agent by another lender under an intercreditor agreement or other agreement (the “Confidential Information”). Seller, Purchaser and Agent understand that the Confidential Information may contain “nonpublic personal information”, as that term is defined in Section 509(4) of the Gramm-Leach-Bliley Act (the “GLB Act”), and each agrees to maintain such nonpublic personal information that it receives hereunder in accordance with the GLB Act and other applicable federal and state privacy laws. Seller, Purchaser and Agent shall each implement such physical and other security measures as shall be necessary to (a) ensure the security and confidentiality of the “nonpublic personal information” of the “customers” and “consumers” (as those terms are defined in the GLB Act) of the Mortgagors, (b) protect against any threats or hazards to the security and integrity of such nonpublic personal information, and (c) protect against any unauthorized access to or use of such nonpublic personal information. Seller, Purchaser and Agent shall notify the other party immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of the nonpublic personal information of any Mortgagor by providing notice directly to the other party. 37. DUE DILIGENCE Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, no more than one time during any 12-month period (unless an Event of Default has occurred and is continuing, in which case the foregoing limitation of one examination during any 12-month period shall not be applicable), to conduct on-site inspection and perform continuing on-site due diligence reviews of (x) Seller, including, without limitation, for the purpose of verifying compliance with the representations, warranties and covenants made under the Program Documents, (y) the Servicing File and (z) the Purchased Assets. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the foregoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Purchased Assets or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours no more than one time during any 12-month period (unless an Event of Default has occurred and is continuing, in which case the foregoing limitation shall not be applicable), a knowledgeable financial or accounting officer of - 83 -


 
- 84 - Seller for the purpose of answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into Transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the representations, warranties and covenants contained herein, and that Purchaser and/or Agent, at its option, shall have the right at any time to conduct itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller agrees to reimburse Purchaser and/or Agent for all reasonable out-of-pocket due diligence costs and expenses incurred with one examination during any 12-month period (or in connection with any additional examinations conducted following the occurrence and continuation of an Event of Default) pursuant to this Section 37. 38. USA PATRIOT ACT; OFACSANCTIONS AND ANTI-TERRORISM82 Each of Purchaser and Agent hereby notifies the Seller that pursuant to the requirements of the USA PATRIOT Improvement and Reauthorization Act, Title III of Pub. L. 109-177 (signed into law March 9, 2009) (the “Act”), it is required to obtain, verify, and record information that identifies the Seller, which information includes the name and address of the Seller and other information that will allow each of Purchaser and Agent, as applicable, to identify the Seller in accordance with the Act. Seller hereby represents and warrants to each of Purchaser and Agent, and shall on and as of the Purchase Date for any Transaction and on and as of each date thereafter through and including the related Repurchase Date be deemed to represent and warrant to each of Purchaser and Agent that: (a) (i) Neither the Seller, nor the Parent Company nor, to the Seller’s actual knowledge, any director, officer, or employee of the Seller or any of its subsidiaries, or any originator of a Purchased Asset is named on the list of Specifically Designated Nationals maintained by OFAC or any similar sanctions list issued by OFAC, OFSI, or any other Governmental Authority (collectively, the “OFACSanctions Lists”) or is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC, OFSI, or any other Governmental Authority; and (ii) no Person or Persons on the OFACSanctions Lists owns an equity interest in, whether individually or in the aggregate, directly or indirectly, a fifty percent or greater interest, or otherwise controls, the Seller, the Parent Company or any Originator.; and (iii) to the knowledge of the Seller, neither the Purchaser nor Agent is precluded by any Economic and Trade Sanctions and Anti-Terrorism Laws from entering into this Agreement or any transactions pursuant to this Agreement with the Seller due to the ownership or control by any person or entity of stocks, shares, bonds, debentures, notes, drafts or other securities or obligations of the Seller. (b) (i) Seller will not knowingly conduct business with or engage in any transaction with any Obligor that the Seller or any originator of a Purchased Asset 82 Section 38 was amended by Amendment No. 2, dated as of April 28, 2022.


 
knows, after reasonable due diligence, (x) is named on any of the OFACSanctions Lists or is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide sanctions imposed by OFAC or any other Governmental Authority; (y) is owned, directly or indirectly, or otherwise controlled, by a Person named on any OFACSanctions List; (ii) if the Seller obtains actual knowledge, after reasonable due diligence, that any Obligor is named on any of the OFACSanctions Lists or that any Person named on an OFAC List owns an equity interest inor Persons on the Sanctions Lists owns, whether individually or in the aggregate, directly or indirectly, ora fifty percent or greater interest, or otherwise controls, the Obligor, or the Seller, as applicable, Seller will give prompt written notice to the Purchaser and Agent of such fact or facts; and (iii) the Seller will (x) comply at all times with the requirements of the Economic and Trade Sanctions and Anti-Terrorism Laws applicable to any transactions, dealings or other actions relating to this Agreement, except to the extent such non-compliance does not result in a violation of applicable law by any of the Purchaser or Agent and (y) will, upon the Purchaser’s or Agent’s reasonable request from time to time during the term of this Agreement, deliver a certification confirming its compliance with the covenants set forth in this Section 3738. 39. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts. The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties. The original documents shall be promptly delivered, if requested. The parties agree that this Agreement, any addendum, exhibit or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with E-Sign, UETA and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate document access tracking, electronic signature tracking and document retention as may be reasonably chosen by a signatory hereto, including but not limited to DocuSign. 40. CONTRACTUAL RECOGNITION OF BAIL-IN Seller acknowledges and agrees that notwithstanding any other term of this Agreement or any other agreement, arrangement or understanding with Purchaser, any of Purchaser’s liabilities, as the Bank of England (or any successor resolution authority) may determine, arising under or in connection with this Agreement may be subject to Bail-In Action and Seller accepts to be bound by the effect of: (a) any Bail-In Action in relation to such liability, including (without limitation): - 85 -


 
(i) a reduction, in full or in part, of any amount due in respect of any such liability; (ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, Seller; and (iii) a cancellation of any such liability; and (b) a variation of any term of this Agreement to the extent necessary to give effect to Bail-In Action in relation to any such liability. 41. CONTRACTUAL RECOGNITION OF UK STAY IN RESOLUTION (a) Where a resolution measure is taken in relation to any BRRD undertaking or any member of the same group as that BRRD undertaking and that BRRD undertaking or any member of the same group as that BRRD undertaking is a party to this Agreement (any such party to this Agreement being an “Affected Party”), each other party to this Agreement agrees that it shall only be entitled to exercise any termination right under this Agreement against the Affected Party to the extent that it would be entitled to do so under the Special Resolution Regime if this Agreement were governed by the laws of any part of the United Kingdom. (b) For the purpose of this Section 41, “resolution measure” means a ‘crisis prevention measure’, ‘crisis management measure’ or ‘recognised third-country resolution action’, each with the meaning given in the “PRA Rulebook: CRR Firms and Non-Authorised Persons: Stay in Resolution Instrument 2015”, as may be amended from time to time (the “PRA Contractual Stay Rules”), provided, however, that ‘crisis prevention measure’ shall be interpreted in the manner outlined in Rule 2.3 of the PRA Contractual Stay Rules; “BRRD undertaking”, “group”, “Special Resolution Regime” and “termination right” have the respective meanings given in the PRA Contractual Stay Rules. 42. NOTICE REGARDING CLIENT MONEY RULES. Purchaser, as a CRD credit institution (as such term is defined in the rules of the FCA), holds all money received and held by it hereunder as banker and not as trustee. Accordingly, money that is received and held by Purchaser from you will not be held in accordance with the provisions of the FCA’s Client Asset Sourcebook relating to client money (the “Client Money Rules”) and will not be subject to the statutory trust provided for under the Client Money Rules. In particular, Purchaser shall not segregate money received by it from you from Purchaser money and Purchaser shall not be liable to account to you for any profits made by Purchaser use as banker of such cash and upon failure of Purchaser, the client money distribution rules within the Client Asset Sourcebook (the “Client Money Distribution Rules”) will not apply to these sums and so you will not be entitled to share in any distribution under the Client Money Distribution Rules. - 86 -


 
[SIGNATURE PAGE FOLLOWS] - 87 -


 
IN WITNESS WHEREOF, Seller, Agent and Purchaser have caused their names to be signed to this Master Repurchase Agreement by their respective officers thereunto duly authorized as of the date first above written. LOANDEPOT.COM, LLC, as Seller By: Name: Title: BARCLAYS BANK PLC, as Purchaser and Agent By: Name: Title: Signature Page to Master Repurchase Agreement


 
EXHIBIT A-1 MONTHLY CERTIFICATION I, _______________________, _______________________ of loanDepot.com, LLC (the “Seller”), in accordance with that certain Master Repurchase Agreement (“Agreement”), dated as of August 25, 2020, by and between Barclays Bank PLC and Seller do hereby certify that: (i) To the best of my knowledge, no Default or Event of Default has occurred and is continuing. (ii) Attached hereto is a report containing details of Seller’s debt outstanding and debt maturities by lender for the last thirty (30) days. (iii) Attached hereto is a report of Seller’s origination production volume, categorized as purchase or refinance, for the last thirty (30) days. (iv) Attached hereto are certified copies of Seller’s balance sheet and income statement for the last thirty (30) days. (v) Attached hereto is a year-to-date report of Seller’s loan repurchases. [Signature Page Follows] A-1 - 1


 
Capitalized terms used but not defined herein have the meanings assigned thereto in the Agreement. IN WITNESS WHEREOF, I have signed this certificate. Date: , 20[ ] LOANDEPOT.COM, LLC By:_________________________ Name: Title: A-1 - 2


 
EXHIBIT A-2 QUARTERLY CERTIFICATION I, _______________________, _______________________ of loanDepot.com, LLC (the “Seller”), in accordance with that certain Master Repurchase Agreement (“Agreement”), dated as of August 25, 2020, by and between Barclays Bank PLC and Seller do hereby certify that: (i) To the best of my knowledge, no Default or Event of Default has occurred and is continuing; and (ii) Seller has complied with each of the covenants set forth in Section 4 of the Pricing Side Letter, as evidenced by the worksheet attached hereto as Schedule One. (iii) Attached hereto is a report containing details of Seller’s debt outstanding and debt maturities by lender for the last fiscal quarter. (iv) Attached hereto is a report of Seller’s origination production volume, categorized as purchase or refinance, for the last fiscal quarter. (v) Attached hereto are certified copies of Seller’s balance sheet and income statement for the last fiscal quarter. (vi) Attached hereto is a year-to-date report of Seller’s loan repurchases. [Signature Page Follows] A-2 - 1


 
Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Agreement. IN WITNESS WHEREOF, I have signed this certificate. Date: , 20[ ] LOANDEPOT.COM, LLC By:_________________________ Name: Title: A-2 - 2


 
SCHEDULE ONE TO EXHIBIT A OTHER FINANCIAL COVENANTS A-2 - 3


 
EXHIBIT B REPRESENTATIONS AND WARRANTIES WITH RESPECT TO MORTGAGE LOANS Capitalized terms used but not defined in this Exhibit B have the meanings assigned to such terms in the Master Repurchase Agreement dated as of August 25, 2020 (the “Agreement”), by and between Barclays Bank PLC (“Purchaser” or “Agent”) and loanDepot.com, LLC (“Seller”). Seller hereby represents and warrants to the Purchaser and Agent that, for each Mortgage Loan as of the related Purchase Date and the related Repurchase Date and on each date that such Mortgage Loan is subject to a Transaction: (a) All information set forth in the Seller Mortgage Loan Schedule or required to be delivered by Seller to Purchaser and/or Custodian under the Custodial Agreement is true and correct in all material respects; (b) Such Mortgage Loan is an Eligible Mortgage Loan; (c) Such Mortgage Loan was owned solely by Seller on the related Purchase Date, is not subject to any lien, claim or encumbrance, including, without limitation, any such interest pursuant to a loan or credit agreement for warehousing mortgage loans, and, other than an Agency Scratch and Dent Mortgage Loan, was originated, underwritten and serviced in either (A) Strict Compliance (with respect to Fannie Mae Mortgage Loans and Freddie Mac Mortgage Loans) or (B) compliance with Seller’s underwriting guidelines (with respect to Jumbo Mortgage Loans) with all applicable law and regulations, including without limitation the Federal Truth-in-Lending Act, the Real Estate Settlement Procedures Act, regulations issued pursuant to any of the aforesaid, and any and all rules, requirements, guidelines and announcements of each Agency, and, as applicable, the FHA, HUD and VA, as the same may be amended from time to time; (d) The improvements on the land securing such Mortgage Loan are and will be kept insured at all times by responsible insurance companies reasonably acceptable to Purchaser and the Applicable Agency against fire and extended coverage hazards under policies, binders or certificates of insurance with a standard mortgagee clause in favor of Seller and its assigns, providing that such policy may not be canceled without prior notice to Seller. Any proceeds of such insurance shall be held in trust for the benefit of Purchaser. The scope and amount of such insurance shall satisfy the rules, requirements, guidelines and announcements of the Applicable Agency, and shall in all cases be at least equal to the lesser of (A) the principal amount of such Mortgage Loan or (B) the maximum amount permitted by applicable law, and shall not be subject to reduction below such amount through the operation of a coinsurance, reduced rate contribution or similar clause; (e) Each Mortgage is a valid first lien on the Mortgaged Property and is covered by an attorney’s opinion of title acceptable to the Applicable Agency or by a policy of title insurance on a standard ALTA or similar lender’s form (or a binding commitment therefor) in favor of Seller and its assigns, subject only to exceptions permitted by the applicable Agency Program. Seller shall hold for the benefit of Purchaser such policy of title insurance, and, upon B - 1


 
request of Purchaser, shall immediately deliver such policy to Purchaser or to the Custodian on behalf of Purchaser; (f) Except with respect to a Jumbo Mortgage Loan and an Agency Scratch and Dent Mortgage Loan (other than any Agency Scratch and Dent Mortgage Loan in which the Seller Mortgage Loan Schedule indicates there is insurance with respect to such Agency Scratch and Dent Mortgage Loan), such Mortgage Loan is either (i) insured by the FHA under the National Housing Act, guaranteed by the VA under the Servicemen’s Readjustment Act of 1944 or (ii) with respect to Fannie Mae Mortgage Loans and Freddie Mac Mortgage Loans, is otherwise eligible to be insured or guaranteed in accordance with the requirements of the applicable Agency Program and, in either case, such Mortgage Loan is not subject to any defect that would prevent recovery in full or in part against the FHA, VA or other insurer or guarantor, as the case may be; (g) A mortgage identification number (“MIN”) has been assigned by MERS and such MIN is accurately provided on the Seller Mortgage Loan Schedule. Either the Mortgage is in favor of MERS or an Assignment of Mortgage to MERS has been duly and properly recorded or in the process of being recorded; (h) Seller has not received any notice of liens or legal actions with respect to such Mortgage Loan; (i) Each Mortgage Loan (other than a Jumbo Mortgage Loan or an Agency Scratch and Dent Mortgage Loan) is eligible for sale to the Applicable Agency and fully complies with all of the terms and conditions, including any covenants, representations and warranties, in the applicable Agency Guide and eligible for securitization by and/or sale to Fannie Mae or Freddie Mac or eligible for inclusion in a Ginnie Mae MBS pool; (j) [Reserved]; (k) Such Mortgage Loan will not result in Negative Amortization; (l) The Mortgagor is one or more natural persons and/or trustees for an Illinois land trust or a trustee under a “living trust” and such “living trust” is in compliance with Applicable Agency guidelines for such trusts; (m) Such Mortgage Loan is not a High Cost Mortgage Loan; (n) No predatory, abusive or deceptive lending practices, including but not limited to, the extension of credit to a Mortgagor without regard for the Mortgagor’s ability to repay the Mortgage Loan and the extension of credit to a Mortgagor which has no tangible net benefit to the Mortgagor, were employed in connection with the origination of the Mortgage Loan. Such Mortgage Loan is in compliance with the anti-predatory lending eligibility for purchase requirements of the Fannie Mae Guide; (o) At origination the related Mortgagor’s FICO Score was equal to or greater than 620 (for this purpose, it being acknowledged that the related Mortgagor shall be deemed to have a FICO Score of zero where no FICO Score is available) unless it is a part of an FHA Streamline B - 2


 
or VA IRRRLs (Interest Rate Reduction Loan) program for which a current FICO Score is not required for credit purposes; (p) If such Mortgage Loan was pledged to another warehouse, credit, repurchase or other financing facility immediately prior to the related Purchase Date, then (i) such pledge has been released immediately prior to, or concurrently with, the related Purchase Date hereunder and (ii) Purchaser has received a Warehouse Lender’s Release Letter in respect of such Mortgage Loan; (q) Such Mortgage Loan has not been released from the possession of the Custodian under Section 5 of the Custodial and Disbursement Agreement to Seller or its bailee for a period in excess of forty-five (45) calendar days (or if such day is not a Business Day, the next succeeding Business Day) or such earlier time period as indicated on the related Request for Release of Documents; (r) [RESERVED]; (s) [RESERVED]; (t) Other than with respect to any Agency Scratch and Dent Mortgage Loan, such Mortgage Loan is a MERS Designated Mortgage Loan; (u) [RESERVED]; (v) With respect to each Mortgage Loan that is a Wet-Ink Mortgage Loan, the Settlement Agent has been instructed in writing by Seller to hold the related Mortgage File as agent and bailee for Purchaser or Agent and to promptly forward such Mortgage File in accordance with the provisions of the Custodial and Disbursement Agreement and the Escrow Instruction Letter (if applicable); (w) [RESERVED]; (x) Except for Mortgage Loans which are eligible for FHA’s 203(k) loan program solely with respect to the initial drawl thereunder, each Mortgage Loan has been fully disbursed and is secured by a first lien on an underlying property as a “closed-end” Mortgage Loan with no further disbursements required by any party; (y) The Mortgage Loan does not have a loan-to-value ratio on 1st mortgages over 97.5% for government insured first loans, 95% on any other loan, or a combined loan-to-value on second loans over 95%; (z) The Mortgage Loan is not secured by property located in a state where the Seller is not licensed as a lender/mortgage banker ; (aa) The Mortgage Loan has not been converted to an ownership interest in real property through foreclosure or deed-in-lieu of foreclosure; B - 3


 
(bb) The Mortgage Loan relates to Mortgaged Property that consists of (i) a detached single family dwelling, (ii) a two-to-four family dwelling, (iii) a one-family dwelling unit in a Freddie Mac eligible condominium project, (iv) a townhouse, or (v) a detached single family dwelling in a planned unit development none of which is a cooperative or commercial property; and is not related to Mortgaged Property that consists of (a) mixed use properties, (b) log homes, (c) earthen homes, (d) underground homes, (e) mobile homes or manufactured housing units (whether or not secured by real property), (f) any dwelling situated on more than ten acres of property or (h) any dwelling situated on a leasehold estate; (cc) Such Mortgage Loan is not a Restricted Mortgage Loan; (dd) Other than with respect to any MERS Designated Mortgage Loan, Seller has submitted the original or a copy of the Mortgage in respect of each Mortgage Loan for recordation in the appropriate public recording office in the applicable jurisdictions wherein such recordation is necessary to perfect the lien thereof as against creditors of the Seller; (ee) Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any individual Mortgage Loan subject to a Transaction to any person other than any sale, assignment, transfer, pledge or hypothecation that is released in conjunction with the sale to Purchaser hereunder, and upon delivery of such Mortgage Loan to Purchaser, Purchaser will be the sole owner thereof (other than for tax and accounting purposes), free and clear of any lien, claim or encumbrance other than those arising under this Agreement; and (ff) In connection with the assignment of any Mortgage Loan registered on the MERS System, the Seller agrees that it will, at the Seller’s own cost and expense, promptly cause the MERS System to indicate that such Mortgage Loan has been transferred to the Purchaser in accordance with the terms of this Agreement by including in MERS’ computer files (a) the code in the field which identifies the specific owner of the Mortgage Loans and (b) the code in the field “Pool Field” which identifies the series in which such Mortgage Loans were sold. The Seller further agrees that it will not alter codes referenced in this paragraph with respect to any Mortgage Loan at any time that such Mortgage Loan is subject to this Agreement, and the Seller shall retain its membership in MERS at all times during the term of this Agreement. B - 4


 
EXHIBIT C TRANSACTION REPRESENTATIONS Reference is made to the Master Repurchase Agreement, dated as of August 25, 2020 (the “Repurchase Agreement”), by and between Barclays Bank PLC (“Purchaser” and “Agent”) and loanDepot.com, LLC (“Seller”). Capitalized terms used but not otherwise defined herein have the meaning given them in the Repurchase Agreement. Seller hereby represents and warrants to each of Purchaser and Agent, as of the related Purchase Date, that: the Eligible Mortgage Loans have the characteristics on the electronic file or computer tape or disc delivered by Seller to Purchaser. no Default or Event of Default has occurred and is continuing on the related Purchase Date (or to the extent existing, shall be cured after giving effect to the Transaction to be effected on such Purchase Date) and no Default or Event of Default will occur after giving effect to the Transaction to be effected on such Purchase Date as a result of such Transaction; each of the representations and warranties made by the Seller in or pursuant to the Program Documents is true and correct in all material respects on and as of such date as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); each of the representations and warranties made by Seller in or pursuant to the Program Documents is true and correct in all material respects on and as of such Purchase Date as if made on and as of such Purchase Date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); Seller has all requisite Approvals; and the Seller has satisfied all applicable conditions precedent in Sections 11(a) and (b) of the Repurchase Agreement and all other requirements of the Program Documents to the extent such conditions and requirements are within its control. The Seller further represents and warrants that (1)(a) with respect to the Eligible Mortgage Loans subject to the requested Transaction that are not Wet-Ink Mortgage Loans, the documents constituting the Mortgage Files (as defined in the Custodial and Disbursement Agreement) and (b) with respect to Eligible Mortgage Loans that are Wet-Ink Mortgage Loans, the Transaction Representations and the Seller Mortgage Loan Schedule, in each case as more specifically identified on the Seller Mortgage Loan Schedule delivered to the Purchaser and the Custodian (the “Receipted Assets”), have been or are hereby submitted to Custodian and such required documents are to be held by the Custodian for the Purchaser, (2) all other documents related to such Receipted Assets (including, but not limited to, mortgages, insurance policies, loan applications and appraisals) have been or will be created and held by Seller for Purchaser, C - 1


 
(3) all documents related to such Receipted Assets withdrawn from Custodian shall be held by Seller for Purchaser, and (4) upon Purchaser’s wiring of the Initial Purchase Price pursuant to Section 3(b) of the Repurchase Agreement, Purchaser will have purchased the Receipted Assets from the Seller. C - 2


 
D - 1 EXHIBIT D6983 FORM OF PREFUNDING REQUEST [insert date] [VIA ELECTRONIC TRANSMISSION] Barclays Bank PLC 745 Seventh Avenue, 2nd Floor New York, New York 10019 Attention: US Residential Financing Deutsche Bank National Trust Company 1761 East St. Andrew Place Santa Ana, California 92705 Attention: Custody Administration – LD201C Telephone: (714) 247-6000 Facsimile: (714) 247-6082 Email: christopher.p.corcoran@db.com With a copy to: Deutsche Bank National Trust Company 1761 East St. Andrew Place Santa Ana, California 92705 Attention: Custody Administration – LD201C Telephone: (714) 247-6000 Facsimile: (714) 656-2626 Email: hang-thai.luu@db.com Re: Master Repurchase Agreement, dated as of August 25, 2020, by and between Barclays Bank PLC (“Purchaser” and “Agent”) and loanDepot.com, LLC (“Seller”) Ladies/Gentlemen: Reference is made to the above-referenced Master Repurchase Agreement (the “Repurchase Agreement”; capitalized terms used but not otherwise defined herein have the meaning given them in the Repurchase Agreement). 6983 Exhibit D was amended by Amendment No. 1, dated as of September 24, 2021.


 
In accordance with Section 3(c) of the Repurchase Agreement, the undersigned Seller hereby requests Purchaser to remit to the following account (the “Disbursement Account”) an amount equal to $________ [which amount shall not be less than $5,000,000] in connection with our subsequent delivery of one or more Seller Mortgage Loan Schedules requesting Purchaser to purchase certain Eligible Mortgage Loans and all related Servicing Rights, on ____________________ [insert requested Purchase Date, which shall be on the date on which Seller delivers such written notice, except that, if Seller delivers such notice after 4:30 p.m. (New York City time) the date shall be one Business Day after the date in which Seller delivers such written notice] (the “Purchase Date”). Wire instructions for the Disbursement Account are as follows: Bank: Deutsche Bank National Trust Company Address: 1761 East St. Andrew Place Santa Ana, California 92705 ABA: 021001033 DDA: 01419647 Ref: NYLTD Funds Control - NY Attention: PORT LD201C.1 By submitting this Prefunding Request, Seller is deemed to have represented that no Responsible Officer of Seller has knowledge of any fact or circumstance that would cause such Responsible Officer to reasonably believe Seller could not represent that all conditions precedent to the Transactions expected to occur the following day shall be satisfied and that all Mortgage Loans to be purchased will be Eligible Mortgage Loans. Very truly yours, LOANDEPOT.COM, LLC By: Name: Title: D - 2


 
E - 1 EXHIBIT E FORM OF WAREHOUSE LENDER’S RELEASE (Date) Barclays Bank PLC 745 Seventh Avenue, 2nd Floor New York, New York 10019 Attention: US Residential Financing Barclays Bank PLC – Legal Department 745 Seventh Avenue, 20th Floor New York, New York 10019 Attention: General Counsel Barclays Capital – Operations 1301 Sixth Ave, 8th Floor New York, New York 10019 Attention: Roger Billotto Telephone: (212) 320-7303 Email: roger.billotto@barclays.com loanDepot.com, LLC 26642 Towne Centre Drive Foothill Ranch, California 92610 Attention: Sheila Mayes, EVP, Treasurer7084 Email: smayes@loandepot.com and EnterpriseTreasuryWarehouse@loandepot.com Re: Certain Mortgage Loans Identified on Schedule A hereto and owned by loanDepot.com, LLC Capitalized terms used herein but not defined herein have the meanings ascribed to such terms in the Master Repurchase Agreement, dated as of August 25, 2020 (the “Repurchase Agreement”), between Barclays Bank, PLC and loanDepot.com, LLC. The undersigned hereby releases all right, interest, lien or claim of any kind with respect to the Mortgage Loans described in the attached Schedule A, such release to be effective automatically without any further action by any party upon receipt in the account identified below in immediately available funds of $__________________, representing a loan count of _________, in accordance with the following wire instructions: 7084 Contact information was amended by Amendment No. 1, dated as of September 24, 2021.


 
[ ] Very truly yours, [WAREHOUSE LENDER] By: Name: Title: [SCHEDULE A TO EXHIBIT E – LIST OF MORTGAGE LOANS TO BE RELEASED] E - 2


 
EXHIBIT F LIST OF DISAPPROVED MEMBERS OF THE MORTGAGE BACKED SECURITIES DIVISION OF THE FIXED INCOME CLEARING CORPORATION [NONE] F - 1


 
EXHIBIT G RESERVED G - 2


 
EXHIBIT H FORM OF SELLER MORTGAGE LOAN SCHEDULE ORIGINATOR_LOAN_ID SERVICER_LOAN_ID CURRENT_BALANCE ADJUSTED_RATE_TYPE CURRENT_RATE NEXT_DUE_DATE ORIGINAL_FICO_SCORE Nradate Pay String ADDRESS CITY STATE_CD ZIP PROPERTY_TYPE_CD NUMBER_OF_UNITS Loan Purpose DOC_LEVEL_CD Loan type AGENCY_PROGRAM_CD IS_NEGAM LIEN_POS ORIGINAL_BALANCE ORIGINAL_APPRAISAL_AMOUNT Sale price First Mortgage Balance Second Mortgage Balance FIRST_PAYMENT_DATE MATURITY_DATE ORIGINATION_DATE ORIGINAL_TERM CURRENT_TERM OWNER_OCCUPANCY_CD IS_BALLOON INDEX_CD Original Rate ARM_MARGIN Payment Frequency RESET_FREQUENCY LIFE_RATE_INCREASE ARM_MIN ARM_MAX ORIGINAL_PNI_PMT FIRST_RATE_ADJ_DATE Self Employed Interest Type INTEREST_ONLY_TERM IS_IO Initial Cap ARM_PERCAP PMI Company PMIPCT PMICertnum Originator Servicer FUNDING_DATE BORROWER_FIRSTNAME BORROWER_LASTNAME BORROWER_SSN CO-BORROWER_FIRSTNAME CO-BORROWER_LASTNAME CO-BORROWER_SSN VA_FLAG VA_Certnum FHA_FLAG FHA_CASE_NUMBER ORIGINAL_DTI FRONT END DTI CURRENT_LTV CURRENT_CLTV ORIGINAL_LTV CHANNEL_CD FUNDING_TYPE Apprform Funddate Servicing_Fee LPMI_Fee IS_PMI Fannie_Eligible Freddie_Eligible Investor_Name Takeout_Percent Du_Case_ LP_Case_ FNMA_REFI_PLUS IS_HARP IS_JUMBO SECTION32_CD MERS_ID H - 1


 
Cash Out PURPOSE_CD ARM_IPERCAP FIRST_PAY_ADJ_DATE FIXED_PERIOD LOOKBACK DAYS CURRENT APPRAISAL DATE CURRENT APPRAISAL AMOUNT Arm_Lookback Armround c_first_pmt_change_date Warehouse Lender Escrow Flag FIRST_LEGAL_ACTION_DATE SCHEDULED_FC_SALE SALE_HELD FHA_BUYOUT_DATE FORECLOSURE_STATUS_CODE IS_HARP MOD_FLAG INSPECTION_COMPLETED_DATE Forbearance Type Forbearance Start Date Forbearance End Date Modification Date H - 2


 
I - 1 EXHIBIT I CORRESPONDENT SELLER’S RELEASE [Insert Date] loanDepot.com, LLC 26642 Towne Centre Drive Foothill Ranch, California 92610 Attention: Sheila Mayes, EVP, Treasurer7185 Email: smayes@loandepot.com Re: Correspondent Seller Release Effective immediately upon the receipt (the date and time of such receipt, the “Date and Time of Sale”) by [Name of Correspondent Seller] of $____________, [Name of Correspondent Seller] hereby relinquishes any and all right, title and interest it may have in and to the mortgage loans described in Exhibit A attached hereto (the “Loans”), including any security interest therein, and certifies that all notes, mortgages, assignments and other documents in its possession or in the possession of its custodial agent relating to such Loans have been released to loanDepot.com, LLC or its designee as of the Date and Time of Sale. [NAME OF CORRESPONDENT SELLER] By:________________________________ Name: Title: 7185 Contact information was amended by Amendment No. 1, dated as of September 24, 2021.


 
EXHIBIT J FORM OF SELLER FINANCIAL STATEMENTS (ANNUAL) J - 1


 
EXHIBIT K FORM OF SELLER FINANCIAL STATEMENTS (PERIODIC) K - 1


 
L - 1 Piscataqua Savings Bank PennyMac (PMAC Lending Services Inc) East Cambridge Savings Bank (ECSB) BOFI Federal Bank Peoples United American Financial Resources, Inc. Planet Home Lending, LLC Envoy Mortgage, Ltd Platinum Home Mortgage Corp Plaza Home Mortgage, Inc. EverBank Caliber Home Loans Provident Funding Provident Funding Associates First Guaranty Mortgage Corp (Reverse Bailee Only) Scottrade EXHIBIT L TAKEOUT INVESTORS Servisolutions (Alabama Housing) First Mortgage Chenoa Fund Program SG Capital Partners Amerisave Mortgage Corporation Sovereign Bank (Santander) First Priority Credit Union Station Place Securitization Freddie Mac - Account Manager Stonegate Mortgage Corporation Flagstar Bank Cenlar FSB Sun West Mortgage Company SunTrust Bank Franklin American Mortgage Company The Money Source dba Endeavor AML Reverse Bailee Only Texas Capital Bank Freedom Mortgage Corporation (Reverse Bailee Only) Chase (Correspondent & Investment Bank) Texas Capital Bank (Doctors Loan Program) Banc of California US Bank Haven Savings WebsterBank (WebsterBank) - Construction to Permament prog. Wells Fargo Hudson City Savings Bank Chase Rural Housing AIG Home Loans 1, LLC Alliant Credit Union Impac Mortgage Corporation (Reverse Bailee Only) Ally Bank American Portfolio Direct Investors Bank Citi Global Markets American Portfolio Mortgage BAML AmeriHome Mortgage Company M&T (MANDT) Annaly - Onslow Bay Financial LLC. Ginnie Mae Associated Bank Nations Direct Mortgage, LLC Citizens Bank of Pennsylvania Associated Bank (HELP) Program Astoria Nationstar Mortgage BAML (Jumbo) Fannie Mae - Account Manager Banc Home Loans Pacific Union Financial, LLC. CMC Funding Bank of Hope BB&T Bank of InternetParamount Residential Mortgage Group, Inc. Bank of the Internet Bank United PHH Mortgage Deutsche Bank Bayview Loan Servicing, LLC


 
L - 2 CIT Bank, N.A. eResi Mortgage by Soros MidFirst Bank BB&T Correspondent Lending Morgan Stanley EverBank Mountain View / Western Alliance BNY Mellon, N.A. National Homebuyers Fund Inc. (NHF) & Sapphire program Citadel Fifth Third Nationstar Mortgage Inc. dba Mr. Cooper Nationwide Bank First Guaranty Mortgage Corp New Penn NexBank CitiMortgage First Key Mortgage North American Savings Bank Northpointe Bank First National Bank of America NYMT (New York Mortgage Trust) CarVal Investors Onslow Bay Financial LLCCiti Freedom Mortgage Corporation PenFed BBVA Pentagon Fed Gateway Mortgage Group a division of Gateway First Bank PennyMac (PMAC Lending Services Inc) Peoples United Citi Global Markets Goldman Sachs PNC Bank Belmont Savings Principal Bank Green Tree Servicing Provident Savings Bank Chase - JP Morgan Chase Acq. Quorum Federal Credit Union Columbia State Bank Haven Savings Raymond James Redwood Trust HomeStreet Scottrade Security Services Federal Credit Union Credit Suisse UBS Bank USA SG Capital Partners (40 Yr I/O only on Jefferies) Stearns Lending, LLC Kondaur Capital TIAA-CREF FSB Chase - JP Morgan Bank N.A. The Money Source DeepHaven Lakeview Loan Servicing LLC TD Bank TruMark Financial Credit Union LDC Master Trust Two Harbors UBS Bank USA DiTech Manufacturers and Traders Trust Company. United Bank BMO US Bank Mello Warehouse Securitization Trust 2018-1 WebsterBank (WebsterBank) Chase 1st Wells Fargo Funding DLJ Mortgage Capital Mello Warehouse Securitization Trust 2019-1 Western Alliance ( BW Real Estate, Inc) WinWater Home Mortgage, LLC (Out of Business) Mello Warehouse Securitization Trust 2019-2 Alabama Housing Finance Authority (Servisolutions) CalHFA (Lakeview) Elliott Homes MetLife City of Aurora City of BostonMFA Financial


 
L - 3 ILL HOUSING - I Refi Program (Illinois Housing Development Authority) NJHMFA - NJ Housing & Mtge Finance Agency North Carolina Housing Authority HFA of Miami-Dade County Indiana Housing & Community Development Authority NV Housing Colorado (CHFA) (COHFA) Orange County HFA Invest Atlanta (Atlanta Development Authority) - US Bank Oregon Housing (Including Habitat For Humanity) Georgia Housing and Finance Authority Oklahoma Housing Finance AgencyHFA of Palm Beach County Kentucky Housing Corporation PENNSYLVANIA HOUSING FINANCE (PA HOUSING) REI Down Payment Assistance (Oklahoma) MAHFA - MA Housing Finance Agency RIHMFC - RI Housing & Mtge Finance Corp SONYMA - State of NY Mtge Agency HFA of Pinellas County Florida (HFA of Hillsborough County) Maricopa County IDA/Phoenix IDA (Home in 5) South Carolina Housing Finance Authority Tennessee Housing Development Agency MHCD - Maryland Housing & Community Development Texas Veterans Land Board (Citibank Bond) Georgia Dept of Community Affair (DBA State Home Mortgage) The Bank of New York Mellon Trust Company IDA City of Phoenix and Maricopa County Michigan State Housing Development Authority (MISHDA) US Bank Bond Program Utah Housing Corporation Montgomery County - Housing Opportunities Virginia Housing Washington Housing Idaho Housing and Finance Association Nevada Rural Housing Authority West Virginia Housing Development Fund (WVHDF) DuPage Homestead Program, IL Wisconsin Housing and Economic Development Authority (WHEDA) New Mexico Housing (New Mexico Mortgage Finance Agency) Galton (GMRF) HFA of Lee County New York Mortgage Trust (NYMT) ILL HOUSING - IL Housing Dev Authority MNHFA - MN Housing Finance Agency Bank2Online Hatteras NHHFA - NH Housing Finance Authority


 
Execution Version 1 AMENDMENT NO. 2 TO MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT This Amendment No. 2 (this “Amendment”), dated as of April 28, 2022, amends that certain Mortgage Loan Participation Purchase and Sale Agreement, dated as of August 25, 2020 (as amended by that certain Amendment No. 1, dated as of September 24, 2021, and as further amended, restated, supplemented, or otherwise modified from time to time, the “MLPPSA”), by and between Barclays Bank PLC, as administrative agent and purchaser (“Purchaser”), and loanDepot.com, LLC, as seller (“Seller”), in connection with that certain Master Repurchase Agreement, dated as of August 25, 2020 (as amended by that certain Amendment No. 1, dated as of September 24, 2021, that certain Amendment No. 2, dated as of April 28, 2022, and as further amended, restated, supplemented, or otherwise modified from time to time, the “Repurchase Agreement”), by and between Purchaser and Seller. Capitalized terms used herein but not otherwise defined shall have the meanings given to such terms in the MLPPSA. WHEREAS, the parties hereto desire to amend the MLPPSA as described below. NOW, THEREFORE, in consideration of the amendments, agreements and other provisions herein contained and of certain other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the parties hereto, it is hereby agreed between Purchaser and Seller as follows: Section 1. Amendments. Effective as of the date hereof, the MLPPSA is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in Exhibit A hereto. Section 2. Fees and Expenses. Seller agrees to pay to Purchaser all fees and out of pocket expenses incurred by Purchaser in connection with this Amendment, including, without limitation, all reasonable fees and out of pocket costs and expenses of the legal counsel to Purchaser incurred in connection with this Amendment, in accordance with Section 2 and Section 3 of that certain Master Repurchase Agreement Pricing Side Letter, dated as of August 25, 2020 (as amended by that certain Amendment No. 1, dated as of September 29, 2020, that certain Amendment No. 2, dated as of November 24, 2020, that certain Amendment No. 3, dated as of December 18, 2020, that certain Amendment No. 4, dated as of March 10, 2020, that certain Amendment No. 5, dated as of April 16, 2021, that certain Amendment No. 6, dated as of August 18, 2021, that certain Amendment No. 7, dated as of September 24, 2021, and that certain Amendment No. 8, dated as of April 28, 2022, and as further amended, restated, supplemented, or otherwise modified from time to time, the “MRA Pricing Side Letter”), by and between Purchaser and Seller, and Section 24(a) of the Repurchase Agreement. Section 3. Effectiveness of Amendment. The parties hereto agree that this Amendment shall not be effective until the execution and delivery to Purchaser of this Amendment by the parties hereto, the execution and delivery to Purchaser of (i) Amendment No. 8 to the MRA Pricing Side Letter, dated as of April 28, 2022, (ii) Amendment No. 2 to the


 
2 Repurchase Agreement, dated as of April 28, 2022, and (iii) Amendment No. 1 to Mortgage Loan Participation Purchase and Sale Agreement Pricing Side Letter, dated as of April 28, 2022, in each case, by the parties thereto. Section 4. Effect of Amendment. Except as expressly amended and modified by this Amendment, all provisions of the MLPPSA shall remain in full force and effect and all such provisions shall apply equally to the terms and conditions set forth herein. After this Amendment becomes effective, all references in the MLPPSA (or in any other document relating to the Mortgage Loans) to “this Agreement,” “the Mortgage Loan Participation Purchase and Sale Agreement,” “hereof,” “herein” or words of similar effect referring to such Agreement shall be deemed to be references to such Agreement as amended by this Amendment. This Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the MLPPSA other than as set forth herein. Section 5. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns. Section 6. Section Headings. The various headings and sub-headings of this Amendment are inserted for convenience only and shall not affect the meaning or interpretation of this Amendment or the MLPPSA or any provision hereof or thereof. Section 7. Representations. In order to induce Purchaser to execute and deliver this Amendment, Seller hereby represents to Purchaser that as of the date hereof (i) it is in full compliance with all of the terms and conditions of the Program Documents and remains bound by the terms thereof and (ii) no Default or Event of Default has occurred and is continuing under the Program Documents. Section 8. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (EXCEPT FOR 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 9. Counterparts. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Amendment by signing and delivering one or more counterparts. The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties. The original documents shall be promptly delivered, if requested. The parties agree that this Amendment, any addendum, exhibit or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Amendment may be accepted, executed or agreed to through the use of an electronic signature in accordance with E-Sign, UETA and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate


 
3 document access tracking, electronic signature tracking and document retention as may be reasonably chosen by a signatory hereto, including but not limited to DocuSign. [Signature Pages to Follow]


 
Signature Page to Amendment No. 2 to Barclays-loanDepot Mortgage Loan Participation Purchase and Sale Agreement IN WITNESS WHEREOF, each undersigned party has caused this Amendment No. 2 to the MLPPSA to be duly executed by one of its officers thereunto duly authorized as of the date and year first above written. BARCLAYS BANK PLC, as Purchaser and Agent By: Name: Title: Grace Park MD


 
Signature Page to Amendment No. 2 to Barclays-loanDepot Mortgage Loan Participation Purchase and Sale Agreement LOANDEPOT.COM, LLC, as Seller, By: Name: Title:


 
EXHIBIT A 065037.0000231 EMF_US 89666478v2


 
CONFORMED THROUGH AMENDMENT NO. 12, DATED AS OF SEPTEMBER 24APRIL 28, 20212022 MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT between LOANDEPOT.COM, LLC Seller and BARCLAYS BANK PLC Purchaser and Agent Dated August 25, 2020


 
- i - TABLE OF CONTENTS1 Page Section 1. Definitions................................................................................................................2 Section 2. Procedures for Purchases of Participation Certificates. .....................................1723 Section 3. Takeout Commitments. ......................................................................................2026 Section 4. Completion Fee. .................................................................................................2026 Section 5. Issuance of Securities. ........................................................................................2127 Section 6. Servicing of the Mortgage Loans; Servicer Termination; Backup Servicer. .....2329 Section 7. Transfers of Participation Certificates and Securities by Purchaser ..................2834 Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest. ...............2934 Section 9. Representations and Warranties. ........................................................................3035 Section 10. Covenants of Seller ............................................................................................3338 Section 11. Term ...................................................................................................................3642 Section 12. Set-Off................................................................................................................3642 Section 13. Indemnification ..................................................................................................3743 Section 14. Exclusive Benefit of Parties; Assignment ..........................................................3743 Section 15. Amendments; Waivers; Cumulative Rights .......................................................3844 Section 16. Execution in Counterparts ..................................................................................3844 Section 17. Effect of Invalidity of Provisions .......................................................................3844 Section 18. Governing Law; Waiver of Jury Trial; Consent to Jurisdiction and Venue; Service of Process ...........................................................................................................3844 Section 19. Notices ...............................................................................................................3945 Section 20. Entire Agreement ...............................................................................................3945 Section 21. Costs of Enforcement .........................................................................................4045 Section 22. Securities Contract; Netting Agreement. ...........................................................4046 1 The Table of Contents was amended by Amendment No. 2, dated as of April 28, 2022.


 
- ii - Section 23. Consent to Service .............................................................................................4146 Section 24. Construction .......................................................................................................4146 Section 25. Further Assurances.............................................................................................4147 Section 26. Due Diligence ....................................................................................................4147 Section 27. Confidentiality ...................................................................................................4247 Section 28. Contractual Recognition of Bail-In. ...................................................................4348 Section 29. USA Patriot Act; OFACSanctions and Anti-Terrorism. ..................................4349 Section 30. Contractual Recognition of UK Stay In Resolution ..........................................4750 Section 31. Notice Regarding Client Money Rules. .............................................................4850 Section 32. Effect of Benchmark Transition Event. .............................................................4850 EXHIBITS Exhibit A Participation Certificate Exhibit B Trade Assignment Exhibit C Reserved Exhibit D Warehouse Lender’s Release Exhibit E Assignment Exhibit F Form of Confirmation Annex A Purchaser Notices/Agent Notices/Seller Notices


 
MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT This is a MORTGAGE LOAN PARTICIPATION PURCHASE AND SALE AGREEMENT (“Agreement”), dated as of August 25, 2020, between Barclays Bank PLC, as administrative agent (“Agent”) and purchaser (“Purchaser”) and loanDepot.com, LLC, as Seller (“Seller”). PRELIMINARY STATEMENT Seller desires to sell to Purchaser from time to time all of Seller’s beneficial right, title and interest in and to designated pools of fully amortizing first lien residential Mortgage Loans eligible in the aggregate to back Securities, and the servicing rights relating thereto, with the terms described in related Takeout Commitments, each in the form of a 100% undivided beneficial ownership interest evidenced by a Participation Certificate. Purchaser desires and may, in its sole discretion, purchase such Participation Certificates from Seller in accordance with the terms and conditions set forth in this Agreement. Seller, subject to the terms hereof, will cause (a) the Related Mortgage Loans to back a Security issued by Seller and guaranteed by the Applicable Agency, and (b) Delivery of such Security by the Applicable Agency to Purchaser or its designee in exchange for the Related Participation Certificate, which Security will be purchased by a Takeout Investor. Purchaser’s willingness to purchase any Participation Certificate evidencing a beneficial interest in the Related Mortgage Loans and the servicing rights related thereto is at the sole discretion of Purchaser and based on Purchaser’s expectation, in reliance upon Seller’s representations and warranties herein, that (a) such Mortgage Loans in the aggregate, constitute a pool or pools of mortgage loans that are eligible to back a Security, (b) such Mortgage Loans are sufficient for Seller to issue and the Applicable Agency to guarantee the Security, (c) such Security will be issued in the amount and with the terms described in the related Takeout Commitment, (d) Purchaser’s broker-dealer affiliate, Barclays Capital Inc. (“BCI”) will receive Delivery of such Security on the specified Anticipated Delivery Date on behalf of Purchaser, and (e) such Security will be purchased by the related Takeout Investor. The amount of the Purchase Price and the Completion Fee to be paid by Purchaser to Seller with respect to each Participation Certificate will be calculated on the expectation of Purchaser, based upon the representations and warranties of Seller herein, that Purchaser or BCI, on behalf of Purchaser, will receive Delivery of the Security to be backed by the Related Mortgage Loans on the specified Anticipated Delivery Date, that failure to receive such Delivery will result in a material decrease in the market value of the Participation Certificate and the Related Mortgage Loans considered as a whole and that the related Takeout Investor will purchase the Security from Purchaser or BCI, on behalf of Purchaser. During the period from the purchase of a Participation Certificate to Delivery of the related Security, Purchaser expects to rely entirely upon Seller (or its designated subservicer) to subservice the Related Mortgage Loans for the benefit of Purchaser, it being acknowledged that the continued effectiveness of Seller’s (or such subservicer’s) Approvals during such period constitutes an essential factor in the calculation by Agent of the Purchase Price and the Completion Fee paid to Seller for the Related Participation Certificate and that loss of such


 
- 2 - Approvals by Seller would result in a material decrease in the market value of the Participation Certificate and the Related Mortgage Loans considered as a whole. In consideration of the mutual promises and agreements herein contained the receipt and sufficiency of which are hereby acknowledged, the parties hereto as follows: Section 1. Definitions. Capitalized terms used but not defined herein shall have the meanings set forth in the Custodial Agreement or the Master Repurchase Agreement, each as defined below. As used in this Agreement, the following terms shall have the following meanings: “30+ Day Delinquent Mortgage Loan” means any Mortgage Loan that, as of any determination date, using the MBA Methodology, is thirty (30) or more days delinquent (inclusive of any grace period). “Accepted Servicing Practices” means with respect to any Mortgage Loan, those accepted, customary and prudent mortgage servicing practices (including collection procedures) of prudent mortgage banking institutions that service mortgage loans of the same type as the Mortgage Loans in the jurisdiction where the related Mortgaged Property is located, and which are in accordance with the requirements of each Agency Program, applicable law, FHA regulations and VA regulations, if applicable, and the requirements of any private mortgage insurer so that the FHA insurance, VA guarantee or any other applicable insurance or guarantee in respect of any Mortgage Loan is not voided or reduced. “Adjustable Rate Mortgage Loan” means a Mortgage Loan that provides for the adjustment of the Mortgage Interest Rate payable in respect thereto. “Affiliate” means with respect to any specified entity, any other entity controlling or controlled by or under common control with such specified entity. For the purposes of this definition, “control” when used with respect to a specified entity means the power to direct the management and policies of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” having meanings correlative to the foregoing. For the avoidance of doubt, none of (a) MTH Mortgage, LLC, MSC Mortgage, LLC, TRI Pointe Connect, LLC, Day One Mortgage, LLC, Farm Bureau Mortgage, LLC, LGI Mortgage Solutions LLC, Henlopen Mortgage, LLC, BRP Home Mortgage, LLC, CUSA Affordable Housing, LLC, Commercial Agency USA, LLC, (b) any Permitted Holder or (c) any joint venture formed by Seller or the Permitted Holders after the date hereof in which (i) Seller holds a non-controlling interest and (ii) whose financial performance has no material impact on Seller’s financial performance; in all cases shall be considered an Affiliate for purposes of this Agreement or any other Program Document. 12 “Agency” means Freddie Mac, Fannie Mae or Ginnie Mae, as applicable. 12 The definition of “Affiliate” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 3 - “Agency Guide” means the Freddie Mac Guide, the Fannie Mae Guide, or the Ginnie Mae Guide, as applicable. “Agency Mortgage Loans” means Fannie Mae Mortgage Loans, Freddie Mac Mortgage Loans, and Ginnie Mae Mortgage Loans. For the avoidance of doubt, the term “Agency Mortgage Loans” does not include Agency Scratch and Dent Mortgage Loans. “Agency Program” means the Freddie Mac Program, the Fannie Mae Program, or the Ginnie Mae Program, as applicable. “Agency Scratch and Dent Mortgage Loan” means a first lien Mortgage Loan originated by Seller and intended to be originated in accordance with the criteria of Fannie Mae, Freddie Mac or Ginnie Mae, as applicable, except such Mortgage Loan is not eligible for sale to or pooling with the Agency. “Agent” means Barclays Bank PLC and its successors in interest, as administrative agent for Purchaser and any additional purchasers that may become a party hereto. “Aggregate EPF Purchase Price” means, as of any date of determination, an amount equal to the aggregate Outstanding Purchase Price for all Participation Certificates then owned by Purchaser and subject to the terms of this Agreement.23 “Aggregate MRA Purchase Price” means as of any date of determination, an amount equal to the aggregate Outstanding Purchase Price (as defined in the Master Repurchase Agreement) for all Purchased Assets (as defined in the Master Repurchase Agreement) then subject to Transactions under the Master Repurchase Agreement.34 “Anticipated Delivery Date” means, with respect to a Security, the date specified in the related Form HUD 11705 (Schedule of Subscribers), Fannie Mae Form 2014 (Delivery Schedule) or Freddie Mac Form 939 (Settlement and Information Multiple Registration Form), as applicable, on which it is anticipated that Delivery of the Security by the Applicable Agency will be made, which date shall occur no more than thirty (30) days following the related Purchase Date. “Applicable Agency” means Ginnie Mae, Fannie Mae, or Freddie Mac, as applicable. “Applicable Margin” has the meaning assigned thereto in the Pricing Side Letter. “Appraised Value” means the value set forth in an appraisal made in connection with the origination of the related Mortgage Loan as the value of the Mortgaged Property. “Approvals” means with respect to Seller, the approvals obtained from the Applicable Agency or HUD in designation of Seller as a Ginnie Mae-approved issuer, an FHA- 23 The definition of “Aggregate EPF Purchase Price” was amended by Amendment No. 1, dated as of September 24, 2021. 34 The definition of “Aggregate MRA Purchase Price” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 4 - approved mortgagee, a VA-approved lender, a Fannie Mae-approved lender or a Freddie Mac- approved Seller/Servicer, as applicable, in good standing. “Assignee” shall have the meaning assigned thereto in Section 7. “Assignment of Mortgage” means, with respect to any Mortgage, an assignment of the Mortgage, notice of transfer or equivalent instrument in recordable form, sufficient under the laws of the jurisdiction wherein the related Mortgaged Property is located to reflect the assignment of the Mortgage to Purchaser. “ATR Rules” means the “ability to repay” rules specified in the federal Truth-in- Lending Act as amended pursuant to rulemaking authority provided under the federal Dodd-Frank Act which require lenders to make a reasonable, good-faith determination that a Mortgagor has an ability to repay the loan as determined by the following eight (8) underwriting factors: (i) current or reasonably expected income or assets (other than the value of the property that secures the loan) that the Mortgagor will rely on to repay the loan, (ii) current employment status (if the originator relies on employment income when assessing the Mortgagor’s ability to repay), (iii) monthly mortgage payment for the loan, (iv) monthly payment on any simultaneous loans secured by the same property, (v) monthly payments for property taxes and required insurance, and certain other costs related to the property such as homeowners association fees or ground rent, (vi) debts, alimony, and child-support obligations, (vii) monthly debt-to-income ratio or residual income, calculated using the total of all of the mortgage and nonmortgage obligations listed above, as a ratio of gross monthly income and (viii) credit history. “Bail-In Action” means the exercise by the Bank of England (or any successor resolution authority) of any write-down or conversion power existing from time to time (including, without limitation, any power to amend or alter the maturity of eligible liabilities of an institution under resolution or amend the amount of interest payable under such eligible liabilities or the date on which interest becomes payable, including by suspending payment for a temporary period and together with any power to terminate and value transactions) under, and exercised in compliance with, any laws, regulations, rules or requirements in effect in the United Kingdom relating to the transposition of the European Banking Recovery and Resolution Directive as amended from time to time, including but not limited to, the Banking Act 2009 as amended from time to time, and the instruments, rules and standards created thereunder, pursuant to which Purchaser’s obligations (or those of Purchaser’s affiliates) can be reduced (including to zero), canceled or converted into shares, other securities, or other obligations of Purchaser or any other person. “Bank” means (i) Deustche Bank National Trust Company and its successors and permitted assigns or (ii) such other bank as may be mutually acceptable to the Seller and the Purchaser. “Bankruptcy Code” means 11 U.S.C. §§ 101 et seq., as amended from time to time. “Benchmark” means, initially LIBOR, Term SOFR; provided that if a replacementBenchmark Transition Event has occurred pursuant to Section 32with respect to Term SOFR or the then-current Benchmark, then “"Benchmark”" means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced thesuch


 
- 5 - prior benchmark rate. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof.4 pursuant to Section 32.5 “Benchmark Replacement” means the sum of: (1) For purposes of Section 32(b), the first alternative set forth below that can be determined by the Agent: (a) the sum of: (i) Term SOFR and (ii) 0.11448% (11.448 basis points) for a tenor of one-month’s duration, or (b) the sum of: (i) Daily Compounded SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of LIBOR with a SOFR-based rate having approximately the same length as the Net Carry Adjustment Period; and (1) (2) For purposes of Section 32(c), the sum of (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Agent and the Purchaser as the replacement for the relevant tenor of such Benchmark giving due consideration to (a) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body at such time or (b) any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated for determining a rate of interest for Dollar-denominated syndicated or bilateral credit facilities at such time; and (2) the Benchmark Replacement Adjustment, provided that, if at any time, the Benchmark Replacement as so determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and theany other Program Documents.56 “Benchmark Replacement Adjustment” means, for each applicable Accrual Period, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by 4 The definition of “Benchmark” was amended by Amendment No. 1, dated as of September 24, 2021. 5 The definition of “Benchmark” was amended by Amendment No. 1, dated as of September 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022. 5 The definition of “Benchmark Replacement” was amended by Amendment No. 1, dated as of September 24, 2021. 6 The definition of “Benchmark Replacement Adjustment” was deletedamended by Amendment No. 1, dated as of September 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022.


 
- 6 - Purchaser giving due consideration to the factors set forth in clauses (1)(a) and (1)(b) in the definition of Benchmark Replacement. 7 “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Net Carry AdjustmentAccrual Period,” timing and frequency of determining rates and making payments of interest, timing of seller requests orfor repurchase, the applicability and length of lookback periods and other technical, administrative or operational matters) that the Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Agent in a manner substantially consistent with market practice (or, if the Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Agent decides is reasonably necessary in connection with the administration of this Agreement).789 “Benchmark Replacement Date” means the date on which a Benchmark Replacement becomes effective pursuant to Section 32.10 “Benchmark Transition Event” means, with respect to any then-current Benchmark other than LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all applicable tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any applicable tenor of such Benchmark or, (b) all applicable tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored.9 or that such Benchmark is or will not be in compliance or aligned with the International Organization of Securities Commissions Principals for Financial Benchmarks, (c) Agent determines in its sole discretion that, by reason of 7 The definition of “Benchmark Replacement Adjustment” was deleted by Amendment No. 1, dated as of September 24, 2021, and added by Amendment No. 2, dated as of April 28, 2022. 7 The definition of “Benchmark Replacement Conforming Changes” was amended by Amendment No. 1, dated as of September 24, 2021. 8 The definitionsdefinition of “Benchmark Transition Start Date” and “Benchmark Unavailability Period” was deletedReplacement Conforming Changes” was amended by Amendment No. 1, dated as of September 24, 2021, and amended by Amendment No. 2, dated as of April 28, 2022. 9 The definitions of “Benchmark Transition Start Date” and “Benchmark Unavailability Period” were deleted by Amendment No. 1, dated as of September 24, 2021. 10 The definition of “Benchmark Replacement Date” was added by Amendment No. 2, dated as of April 28, 2022. 9 The definition of “Benchmark Transition Event” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 7 - circumstances affecting the relevant market, adequate and reasonable means do not exist for ascertaining such Benchmark, or (d) Agent determines in its sole discretion that the adoption of any Change in Law or in the interpretation or application thereof shall make it unlawful for Purchaser to accrue Price Differential based on such Benchmark.11 “Business Day” means (A) any day other than (i) a Saturday or Sunday, or (ii) a day upon which the New York Stock Exchange or the Federal Reserve Bank of New York is closed., or (iii) with respect to any day on which the parties hereto have obligations to the Custodian or on which the Custodian has obligations to any party hereto, a day upon which the Custodian’s offices are closed, and (B) with respect to any calculation of Term SOFR, a U.S. Government Securities Business Day.12 “Change in Control” means (a) any event or series of events by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), but excluding any employee benefit plan of such person or its Subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), other than the Permitted Holders becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of 51% or more of the equity securities of loanDepot, Inc., a Delaware corporation, entitled to vote for members of the board of directors or equivalent governing body of Seller on a fully-diluted basis, (b) the sale, transfer, or other disposition of all or substantially all of Seller’s assets (excluding any such action taken in connection with any securitization transaction or routine sales of Mortgage Loans) or (c) the consummation of a merger or consolidation of Seller with or into another entity or any other corporate reorganization, if more than 50% of the combined voting power of the continuing or surviving entity’s equity outstanding immediately after such merger, consolidation or such other reorganization is owned by persons who were not equityholders of the Seller immediately prior to such merger, consolidation or other reorganization.1013 “Client Money Distribution Rules” has the meaning assigned thereto in Section 31(b) hereof. “Client Money Rules” has the meaning assigned thereto in Section 31(a) hereof. “Collateral” has the meaning assigned thereto in Section 8(c). “Completion Fee” means, with respect to each Participation Certificate, an amount equal to the Discount plus the Net Carry Adjustment, less any reduction pursuant to Section 5(b), which amount shall be payable to Seller by Purchaser in two installments as provided in Section 4(a), the Initial Completion Fee Installment and the Final Completion Fee Installment, as 11 The definition of “Benchmark Transition Event” was amended by Amendment No. 1, dated as of September 24, 2021, and Amendment No. 2, dated as of April 28, 2022. 12 The definition of “Business Day” was amended by Amendment No. 2, dated as of April 28, 2022. 1013 The definition of “Change in Control” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 8 - compensation to Seller for its services in connection with the issuance of the related Security and performance of its obligations under this Agreement.14 “Compounded SOFR” means the compounded average of SOFRs for the applicable month, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Accrual Period) being established by the Agent in accordance with: (a) the rate, or methodology for this rate, and conventions for this rate selected or recommended by the Relevant Governmental Body for determining compounded SOFR; or (b) if, and to the extent that, the Agent determines that Compounded SOFR cannot be determined in accordance with clause (a) above, then the rate, or methodology for this rate, and conventions for this rate that the Agent determines in its reasonable discretion are substantially consistent with any evolving or then-prevailing market convention for determining compounded SOFR for U.S. dollar-denominated syndicated credit facilities at such time; provided that if the Agent decides that any such rate, methodology or convention determined in accordance with clause (a) or clause (b) above is not administratively feasible for the Agent, then Compounded SOFR will be deemed unable to be determined for purposes of the definition of “Benchmark Replacement.” “Confirmation” means a written confirmation of Purchaser’s intent to purchase a Participation Certificate, which written confirmation shall be substantially in the form attached hereto as Exhibit F. “Custodial Account” has the meaning ascribed thereto in the Custodial Account Control Agreement. “Custodial Account Control Agreement” means the Custodial Account Control Agreement, dated of even date herewith, among Seller, Purchaser and Bank entered into in connection with this Agreement, as amended, supplemented or otherwise modified from time to time. “Custodial Agreement” means that certain Custodial and Disbursement Agreement, dated as of August 25, 2020, among Seller, Purchaser, Agent, Disbursement Agent and Custodian, entered into in connection with this Agreement and the Master Repurchase Agreement, as the same may be amended, modified or supplemented from time to time. “Custodian” means Deutsche Bank National Trust Company, and its successors and permitted assigns, or such other entity as mutually agreed upon by Agent and Seller.15 14 The definition of “Compounded SOFR” was deleted by Amendment No. 2, dated as of April 28, 2022. 15 The definition of “Daily Compounded SOFR” was amended by Amendment No. 1, dated as of September 24, 2021, and deleted by Amendment No. 2, dated as of April 28, 2022.


 
- 9 - “Daily Compounded SOFR” means, for any day, SOFR, with interest accruing on a compounded daily basis, with the methodology and conventions for this rate (which will include compounding in arrears with a lookback) being established by the Agent in accordance with a methodology and the conventions for this rate selected or recommended by the Relevant Governmental Body for determining "Daily Compounded SOFR" for syndicated or bilateral business loans; provided that, if the Agent decides that any such convention is not administratively feasible for the Agent, then the Agent may establish another convention in its reasonable discretion.11 “Daily Completion Fee Reduction Amount” shall have the meaning assigned thereto in the Pricing Side Letter. “Defective Mortgage Loan” means, with respect to a Participation Certificate, a Related Mortgage Loan that is not in Strict Compliance with the Ginnie Mae Program, Fannie Mae Program, or Freddie Mac Program, as applicable. “Delinquent” means, with respect to any Mortgage Loan, that a monthly payment due thereon is not made by the close of business on the Due Date. “Delivery” means the later to occur of (a) the issuance of the related Security and (b) the transfer of all of the right, title and ownership interest in that Security to Purchaser or its designee. “Disbursement Agent” means Deutsche Bank National Trust Company and its successors and permitted assigns, or such other entity as mutually agreed upon by Agent and Seller. “Discount” has the meaning set forth in the Pricing Side Letter. “Due Date” means the day of the month on which the Monthly Payment is due on a Mortgage Loan, exclusive of any days of grace. “Due Diligence Review Amount” has the meaning set forth in the MRA Pricing Side Letter.16 “Early Opt-in Election” means the occurrence of: (1) (i) a determination by the Agent or (ii) a notification by the Purchaser to the Agent (with a copy to the Seller) that the Purchaser have determined that U.S. dollar-denominated syndicated or bilateral credit facilities being executed at such time, contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based on SOFR) as a benchmark rate, and 11 The definition of “Daily Compounded SOFR” was amended by Amendment No. 1, dated as of September 24, 2021. 16 The definition of “Early Opt-in Election” was amended by Amendment No. 1, dated as of September 24, 2021, and deleted by Amendment No. 2, dated as of April 28, 2022


 
- 10 - (2) (i) the election by the Agent or (ii) the election by the Purchaser to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Agent of written notice of such election to the Seller and the Purchaser or by the Purchaser of written notice of such election to the Agent.12 “Effective Date” shall have the meaning assigned thereto in the Master Repurchase Agreement. “Electronic Agent” shall have the meaning assigned thereto in Section 2 of the Electronic Tracking Agreement. “Electronic Tracking Agreement” means one or more Electronic Tracking Agreements with respect to (x) the tracking of changes in the ownership, mortgage servicers and servicing rights ownership of Purchased Mortgage Loans held on the MERS System, and (y) the tracking of the Control of eNotes held on the MERS eRegistry, each in a form acceptable to Agent. “Electronic Transmission” means the delivery of information in an electronic format acceptable to the applicable recipient thereof. An Electronic Transmission shall be considered written notice for all purposes hereof (except when a request or notice by its terms requires execution). “Eligible Mortgage Loan” means a Mortgage Loan that (i) satisfies each of the representations and warranties in Exhibit B to the Master Repurchase Agreement in all material respects, (ii) if such Mortgage Loan is (a) a Fannie Mae Mortgage Loan, a Freddie Mac Mortgage Loan, or a Ginnie Mae Mortgage Loan, it is in Strict Compliance with the eligibility requirements of the Ginnie Mae Program, Fannie Mae Program or Freddie Mac Program, as applicable, (b) a Jumbo Mortgage Loan, (iii) with respect to all Mortgage Loans other than Wet-Ink Mortgage Loans, contains all required documents in the Mortgage File without exceptions unless otherwise waived by Purchaser or permitted pursuant to the terms of this Agreement or the Custodial and Disbursement Agreement, and (iv) satisfies the Additional Eligible Loan Criteria. “eMortgage Loan” means a Mortgage Loan with respect to which there is an eNote and as to which some or all of the other documents comprising the related Mortgage File may be created electronically and not by traditional paper documentation with a pen and ink signature. “eNote” means, with respect to any eMortgage Loan, the electronically created and stored Mortgage Note that is a Transferable Record. “E-Sign” means the federal Electronic Signatures in Global and National Commerce Act, as amended from time to time. “Escrow Agreement” means that certain Fourth Amended and Restated Escrow Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Escrow Agreement, dated as of the date hereof, by and 12 The definition of “Early Opt-in Election” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 11 - among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Escrow Payments” means, with respect to a Mortgage Loan, the amounts constituting ground rents, taxes, assessments, water charges, sewer rents, municipal charges, mortgage insurance premiums, fire and hazard insurance premiums, condominium charges and other payments as may be required to be escrowed by the Mortgagor with the Mortgagee pursuant to the terms of the Mortgage or any other document. “E-Sign” means the federal Electronic Signatures in Global and National Commerce Act, as amended from time to time.17 “Event of Insolvency” means, with respect to any Person, (i) the filing of a voluntary petition (or the consent by such Person to the filing of any such petition against it), commencing, or authorizing the commencement of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or suffering any such petition or proceeding to be commenced by another; or such Person shall consent or seek to the appointment of or taking possession by a custodian, receiver, conservator, trustee, liquidator, sequestrator or similar official of such Person, or for any substantial part of its Property, or any general assignment for the benefit of creditors; (ii) a proceeding shall have been instituted against such Person under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, moratorium, delinquency or liquidation law of any jurisdiction, whether now or subsequently in effect, or a custodian, receiver, conservator, liquidator, trustee, sequestrator or similar official for such Person or such Person’s Property (as a debtor or creditor protection procedure) is appointed by any Governmental Authority having the jurisdiction to do so or takes possession of such Property and any such proceeding is not stayed or dismissed within sixty (60) days of filing; (iii) that such Person or any Affiliate shall become insolvent as such term is defined in Section 101(32)(A) of the Bankruptcy Code; (iv) that such Person shall (a) admit in writing its inability to pay or discharge its debts or obligations generally as they become due or mature, (b) admit in writing its inability to, or intention not to, perform any of its material obligations, or (c) generally fail to pay any of its debts or obligations as they become due or mature; or (v) any Governmental Authority shall have seized or appropriated, or assumed custody or control of, all or any substantial part of the Property of such Person, or shall have taken any action to displace the management of such Person. 17 The definition of “E-Sign” was moved pursuant to Amendment No. 2, dated as of April 28, 2022.


 
- 12 - “Fannie Mae” means the Federal National Mortgage Association or any successor thereto. “Fannie Mae Guide” means the Fannie Mae MBS Selling and Servicing Guide, as such Guide may hereafter from time to time be amended. “Fannie Mae Mortgage Loan” means, with respect to any Fannie Mae Participation Certificate or any Fannie Mae Security, a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Fannie Mae Program described in the Fannie Mae Guide. “Fannie Mae Participation Certificate” means, with respect to the Fannie Mae Program, a certificate, substantially in the form of Exhibit A, authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Fannie Mae Mortgage Loans set forth on Fannie Mae Form 2005 (Schedule of Mortgages). “Fannie Mae Program” means the Fannie Mae Guaranteed Mortgage-Backed Securities Programs, as described in the Fannie Mae Guide. “Fannie Mae Security” means an ownership interest in a pool of Fannie Mae Mortgage Loans, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York, issued and guaranteed, with respect to timely payment of interest and ultimate payment of principal, by Fannie Mae and backed by a pool of Fannie Mae Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Fannie Mae Security in the related Takeout Commitment, if any. “FCA” means the United Kingdom Financial Conduct Authority. “FDIA” means Title 12 United States Code, Section 1811 et seq., as amended from time to time. “FDIC” means the Federal Deposit Insurance Corporation or any successor thereto. “FHA” means the Federal Housing Administration, an agency within HUD, or any successor thereto, and including the Federal Housing Commissioner and the Secretary of Housing and Urban Development where appropriate under the FHA regulations. “FHA 203k Loan” means a Mortgage Loan that is eligible for FHA’s 203(k) loan program. “FHA Buyout Loan” means an Eligible Mortgage Loan that (a) is insured by FHA, (b) is a Ginnie Mae Mortgage Loan, (c) has been purchased out of a Ginnie Mae Security, and (d) is not a Modified Loan.1318 1318 The definition of “FHA Buyout Loan” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 13 - “FICO Score” means the credit score of the Mortgagor provided by Fair, Isaac & Company, Inc. or such other organization providing credit scores on or immediately prior to the origination of a Mortgage Loan. “Final Completion Fee Installment” means the amount equal to the difference between the Completion Fee and the Initial Completion Fee Installment. “Final Purchase Price Installment” means the amount equal to the difference between the Trade Principal and the Initial Purchase Price Installment. “First-Lien State Bond Loans” means a State Bond Loan with respect to which the Mortgage represents a first lien on the related Mortgaged Property. “Floor” shall have the meaning assigned thereto in the Pricing Side Letter.19 “Freddie Mac” means the Federal Home Loan Mortgage Corporation, and its successors in interest. “Freddie Mac as Custodian” means, with respect to Freddie Mac Participation Certificates, the circumstances in which Seller elects to appoint Freddie Mac (as opposed to some other third party as permitted by the Freddie Mac Guide) as Custodian for the Freddie Mac Mortgage Loans subject to the Freddie Mac Participation Certificates to be purchased by Purchaser hereunder. “Freddie Mac Guide” means the Freddie Mac Sellers’ and Servicers’ Guide, as such Guide may hereafter from time to time be amended. “Freddie Mac Mortgage Loan” means, with respect to any Freddie Mac Participation Certificate or any Freddie Mac Security, a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Freddie Mac Program described in the Freddie Mac Guide. “Freddie Mac Participation Certificate” means, with respect to the Freddie Mac Program, a certificate, substantially in the form of Exhibit A, issued by Seller and authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Freddie Mac Mortgage Loans that are either (a) set forth on a copy of the Freddie Mac Form 1034 (Fixed-Rate Custodial Certification Schedule) attached to such Participation Certificate or (b) identified on a computer tape compatible with Selling System as belonging to the mortgage loan pool described in such Participation Certificate. “Freddie Mac Program” means the Freddie Mac Home Mortgage Guarantor Program or the Freddie Mac FHA/VA Home Mortgage Guarantor Program, as described in the Freddie Mac Guide. “Freddie Mac Security” means a modified pass-through mortgage-backed participation certificate, evidenced by a book-entry account in a depository institution having 19 The definition of “Floor” was added by Amendment No. 2, dated as of April 28, 2022.


 
- 14 - book-entry accounts at the Federal Reserve Bank of New York, issued and guaranteed, with respect to timely payment of interest and ultimate payment of principal, by Freddie Mac and backed by a pool of Freddie Mac Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Freddie Mac Security in the related Takeout Commitment, if any. “GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America. “Ginnie Mae” means the Government National Mortgage Association and its successors in interest, a wholly-owned corporate instrumentality of the government of the United States of America. “Ginnie Mae Guide” means the Ginnie Mae Mortgage-Backed Securities Guide, as such Guide may hereafter from time to time be amended. “Ginnie Mae Mortgage Loan” means, with respect to any Ginnie Mae Participation Certificate or any Ginnie Mae Security, a mortgage loan that is in Strict Compliance on the related Purchase Date with the eligibility requirements specified for the applicable Ginnie Mae Program in the applicable Ginnie Mae Guide. “Ginnie Mae Participation Certificate” means, with respect to the Ginnie Mae Program, a certificate, substantially in the form of Exhibit A, issued by Seller and authenticated by Custodian, evidencing the 100% undivided beneficial ownership interest in the Ginnie Mae Mortgage Loans set forth on the Form HUD 11706 (Schedule of Pooled Mortgages). “Ginnie Mae Program” means the Ginnie Mae Mortgage-Backed Securities Programs, as described in the Ginnie Mae Guide. “Ginnie Mae Security” means a modified pass-through mortgage-backed certificate guaranteed by Ginnie Mae, evidenced by a book-entry account in a depository institution having book-entry accounts at the Federal Reserve Bank of New York and backed by a pool of Ginnie Mae Mortgage Loans, in substantially the principal amount and with substantially the other terms as specified with respect to such Ginnie Mae Security in the related Takeout Commitment.1420 “Governmental Authority” means any nation or government, any state or other political subdivision, agency or instrumentality thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over Seller. “High Cost Mortgage Loan” means a Mortgage Loan that is (a) subject to, covered by or in violation of the provisions of the Homeownership and Equity Protection Act of 1994, as amended, (b) a “high cost,” “covered,” “threshold,” “abusive,” “predatory” or “high risk” mortgage loan under any federal, state or local law, or any similarly classified loan using different terminology under any law imposing heightened regulation, scrutiny or additional legal liability 1420 The definition of “Ginnie Mae Security” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 15 - for residential mortgage loans having high interest rates, points and/or fees, or any other state or other regulation providing assignee liability to holders of such mortgage loans, (c) subject to or in violation of any such or comparable federal, state or local statutes or regulations, or (d) a “High Cost Loan” or “Covered Loan,” as applicable, as such terms are defined in the current version of the Standard & Poor’s LEVELS® Glossary Revised, Appendix E. “Hsieh Investors” shall mean each of the JLSSAA Trust, established September 4, 2014, JLSA, LLC, Trilogy Mortgage Holdings, Inc., Trilogy Management Investors Six, LLC, Trilogy Management Investors Seven, LLC and Trilogy Management Investors Eight, LLC and each of their respective Affiliates. 1521 “HUD” means the Department of Housing and Urban Development, or any federal agency or official thereof which may from time to time succeed to the functions thereof with regard to FHA mortgage insurance. The term “HUD,” for purposes of this Agreement, is also deemed to include subdivisions thereof such as the FHA and Ginnie Mae. “Indebtedness” has the meaning assigned thereto in the MRA Pricing Side Letter. “Initial Completion Fee Installment” shall have the meaning assigned thereto the Pricing Side Letter. “Initial Purchase Price Installment” means, with respect to any Participation Certificate, the excess of the related Trade Principal over the Discount. “Intercreditor Agreement” means that certain Fourth Amended and Restated Intercreditor Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Intercreditor Agreement, dated as of the date hereof, by and among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Issuance Date” means, with respect to a Security, the first day of the month in which the Security is issued. “Joint Securities Account Control Agreement” means that certain Fourth Amended and Restated Joint Securities Account Control Agreement, dated as of August 16, 2016, as amended through that certain Amendment No. 7 and Joinder to Fourth Amended and Restated Joint Securities Account Control Agreement, dated as of the date hereof, by and among Seller, Purchaser and the other parties thereto, as the same may be amended, supplemented or otherwise modified from time to time. “Jumbo Mortgage Loan” means a first lien Mortgage Loan which (i) conforms with all requirements of Seller’s underwriting guidelines, which are subject to Purchaser’s approval in its sole good faith discretion, as the same may be amended, supplemented or otherwise modified 1521 The definition of “Hsieh Investors” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 16 - from time to time and (ii) has the benefit of the safe harbor from liability under the ATR Rules or a rebuttable presumption for such liability.22 “LIBOR” means for each day, the rate (adjusted for statutory reserve requirements for eurocurrency liabilities) for eurodollar deposits for a period equal to one month appearing on Bloomberg Screen US 0001M Page or if such rate ceases to appear on Bloomberg Screen US 0001M Page, or any other service providing comparable rate quotations as selected by Purchaser or Agent on behalf of Purchaser in good faith from time to time for purposes of providing quotations of interest rates applicable to U.S. dollar deposits in the London interbank market) for deposits in Dollars with a term equivalent to such Net Carry Adjustment Period, determined as of approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such Net Carry Adjustment Period; provided that if the first day of such Net Carry Adjustment Period is not a Business Day, then LIBOR shall be determined as of the immediately preceding Business Day, and provided further that LIBOR for any such day shall not be less than the Floor.16 “Lien” means any mortgage, deed of trust, lien, claim, pledge, charge, security interest or similar encumbrance. “Loan-to-Value Ratio” means, as of any date of determination, the fraction, expressed as a percentage, the numerator of which is the principal balance of the related Mortgage Loan at such date and the denominator of which is the lesser of (a) the Appraised Value of the Mortgaged Property at the origination or, if no appraisal was required, the “AUS estimated value,” of such Mortgage Loan, and (b) if the Mortgaged Property was purchased within twelve (12) months of the origination of the Mortgage Loan, the purchase price of the related Mortgaged Property. “Losses” means any and all claims, damages, losses, liabilities and all other reasonable and documented expenses including out-of-pocket expenses (including, without limitation, reasonable fees and expenses of outside counsel) imposed on, incurred by or asserted against any Person specified. “Master Netting Agreement” means that certain Global Netting and Security Agreement, dated as of August 25, 2020, among Purchaser, Seller, and certain Affiliates of Purchaser, entered into in connection with this Agreement and the Master Repurchase Agreement, as the same shall be amended, supplemented or otherwise modified from time to time. “Master Repurchase Agreement” means that certain Master Repurchase Agreement, dated as of the date hereof, by and among Purchaser, Agent and Seller, as the same shall be amended, supplemented or otherwise modified from time to time. “Material Adverse Change” means, with respect to a Person, any material adverse change in the business, financial condition, operations or Property of such Person including the insolvency of such Person or its Parent Company, if applicable. 22 The definition of “LIBOR” was amended by Amendment No. 1, dated as of September 24, 2021, and deleted by Amendment No. 2, dated as of April 28, 2022. 16 The definition of “Libor” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 17 - “Material Adverse Effect” means (a) a Material Adverse Change with respect to Seller or any of its Affiliates that is a party to any Program Document; (b) a material impairment of the ability of Seller or Servicer or any of their respective Affiliates that is a party to any Program Document to perform under any Program Document to which it is a party; (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Document against Seller or any of its Affiliates that is a party to any Program Document; (d) a material adverse effect on the Market Value of the Purchased Assets, taken as a whole; or (e) a material adverse effect on the Approvals of Seller. “Maturity Date” has the meaning assigned thereto in the MRA Pricing Side Letter. “Maximum Aggregate Purchase Price” has the meaning assigned thereto in the MRA Pricing Side Letter. “MERS” means Mortgage Electronic Registration Systems, Inc., a Delaware corporation, or any successor in interest thereto. “MERS Designated Mortgage Loan” means any Mortgage Loan as to which the related Mortgage or Assignment of Mortgage, has been recorded in the name of MERS, as agent for the holder from time to time of the Mortgage Note. “MERS System” means the system of recording transfers of mortgages electronically maintained by MERS. “MIN” means the mortgage identification number of Mortgage Loans registered with MERS on the MERS System. “Modified Loan” means an Eligible Mortgage Loan that (a) is insured by FHA or guaranteed by the VA, (b) (1) was purchased out of a Ginnie Mae Security or from a third-party whole loan investor solely as a result of modifications to such Eligible Mortgage Loan, or (2) was purchased out of a Ginnie Mae Security or from a third-party whole loan investor as a result of delinquent mortgage payments, but, without any loan modifications, subsequently became reperforming and (c) is a Ginnie Mae Mortgage Loan. “Monthly Payment” means the scheduled monthly payment of principal and interest on a Mortgage Loan as adjusted in accordance with changes in the Mortgage Interest Rate pursuant to the provisions of the Mortgage Note for an Adjustable Rate Mortgage Loan. “Mortgage” means a mortgage, deed of trust or other security instrument, securing a Mortgage Note. “Mortgage File” has the meaning assigned thereto in the Custodial Agreement. “Mortgage Loan” means a Ginnie Mae Mortgage Loan, a Fannie Mae Mortgage Loan, an FHA 203k Loan, a Freddie Mac Mortgage Loan, a Jumbo Mortgage Loan, an Agency Scratch and Dent


 
- 18 - Mortgage Loan, an FHA Buyout Loan, a VA Buyout Loan, a Modified Loan, or a Wet-Ink Mortgage Loan.1723 “Mortgage Interest Rate” means, with respect to each Mortgage Loan, the annual rate at which interest accrues on such Mortgage Loan from time to time in accordance with the provisions of the related Mortgage Note. “Mortgage Note” means a promissory note or other evidence of indebtedness of the obligor thereunder, evidencing a Mortgage Loan, and secured by the related Mortgage. “Mortgaged Property” means the real property (or leasehold estate, if applicable) securing repayment of the debt evidenced by a Mortgage Note. “Mortgagee” means the record holder of a Mortgage Note secured by a Mortgage. “Mortgagor” means the obligor or obligors on a Mortgage Note, including any person who has assumed or guaranteed the obligations of the obligor thereunder. “MRA Collection Account Control Agreement” means that certain Collection Account Control Agreement, dated as of the date hereof, among Seller, Purchaser and the Bank entered into in connection with the Master Repurchase Agreement, as the same shall be amended, supplemented or otherwise modified from time to time. “MRA Pricing Side Letter” means that certain Master Repurchase Agreement Pricing Side Letter, dated as of the date hereof, between Seller and Purchaser, entered into in connection with this Agreement, as the same may be amended, modified or supplemented from time to time. “MRA Program Documents” means the Master Repurchase Agreement, the MRA Pricing Side Letter, the MRA Collection Account Control Agreement, any assignment of Hedge Instrument, the Electronic Tracking Agreement, the Master Netting Agreement, the Escrow Agreement, the Intercreditor Agreement, the Joint Securities Account Control Agreement, and all other agreements, documents and instruments entered into by Seller on the one hand, and Purchaser or one of its Affiliates (or Custodian on its behalf) and/or Agent or one of its Affiliates on the other, in connection therewith with respect to the Transactions contemplated thereunder and all amendments, restatements, modifications or supplements thereto. “Negative Amortization” means the portion of interest accrued at the Mortgage Interest Rate in any month which exceeds the Monthly Payment on the related Mortgage Loan for such month and which, pursuant to the terms of the Mortgage Note, is added to the principal balance of such Mortgage Loan. “Net Carry Adjustment” means an amount (which may be a negative number) equal to (a) the difference between (i) the product of (A) the rate of interest to be borne by the related Security multiplied by the aggregate principal amount of the Related Mortgage Loans evidenced by the related Participation Certificate, and (B) the number of days in the period beginning on the 1723 The definition of “Mortgage Loan” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 19 - Issuance Date of such Security, but excluding the related Settlement Date, and (ii) the product of (A) the daily application of the applicable Transaction Rate to the Purchase Price, and (B) the number of days in the period beginning on the date of the purchase of the related Participation Certificate under this Agreement, but excluding the related Settlement Date, (b) divided by 360. “Non-First-Lien State Bond Loans” means a State Bond Loan that is not a First- Lien State Bond Loan.” “Non-QM Mortgage Loan” means either (a) a Mortgage Loan which does not have the benefit of the safe harbor from liability under the ATR Rules or a rebuttable presumption for such liability or (b) a Mortgage Loan secured by a one-to four-family residential investor property, which in either case was underwritten and originated in accordance with underwriting guidelines reasonably acceptable to Purchaser. “Non-Utilization Fee” shall have the meaning assigned thereto in the MRA Pricing Side Letter. “Obligor” means a Person obligated to make payments pursuant to a Contract; provided, that in the event that any payments in respect of a Contract are made by any other Person, such other Person shall also be deemed to be an Obligor. “OFAC” means the Office of Foreign Assets Control of the United States Department of Treasury. “OFAC Lists” has the meaning ascribed to it in Section 29(a). “OFSI” means the Office of Financial Sanctions Implementation of the United Kingdom’s HM Treasury.24 “Other Agreement” means any (i) warehouse, credit, repurchase, line of credit, financing or hedging agreements or other similar agreement relating to any Indebtedness in an amount greater than $10,000,000 between Seller or any of its Affiliates or Subsidiaries, on the one hand, and any Person, on the other hand, or (ii) warehouse, credit, repurchase, line of credit, financing or hedging agreements or other agreement relating to any Indebtedness (including, without limitation, the Program Documents and the EPF Program Documents) in any amount entered into between Seller or any of its Affiliates or Subsidiaries, on the one hand, and Purchaser or any of its Affiliates, on the other hand. “OTS” means Office of Thrift Supervision or any successor thereto. “Parthenon Investors” shall mean each of Parthenon Investors III, L.P., PCap Associates, Parthenon Capital Partners Fund, L.P., Parthenon Investors IV, L.P., Parthenon Capital Partners Fund II, L.P. and PCP Managers, L.P. and each of their respective Affiliates. 1825 24 The definition of “OFSI” was added by Amendment No. 2, dated as of April 28, 2022; and the definition of “OFAC Lists” was deleted by Amendment No. 2, dated as of April 28, 2022. 1825 The definition of “Parthenon Investors” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 20 - “Pass Through Rate” means with respect to a Security, the rate of interest to be borne by such Security, which rate or rates shall be set forth in the related Confirmation. “Parent Company” means a corporation or other entity owning at least 50% of the membership interests of Seller. “Participation Certificate” means a Ginnie Mae Participation Certificate, a Fannie Mae Participation Certificate or a Freddie Mac Participation Certificate, as applicable. “Permitted Holders” means the Parthenon Investors and the Hsieh Investors. 1926 “Person” means any legal person, including any individual, corporation, partnership, association, joint stock company, trust, limited liability company, unincorporated organization, governmental entity or other entity of similar nature. “Pricing Side Letter” means the Pricing Side Letter, dated as of even date herewith, between Seller and Purchaser entered into in connection with this Agreement, as amended, supplemented or otherwise modified from time to time. “Program Documents” means this Agreement, the Pricing Side Letter, the Custodial Agreement, the Custodial Account Control Agreement, the Master Netting Agreement, the Participation Certificates, the MRA Program Documents, any intercreditor agreement, and all other agreements, entered into by Seller on the one hand, and Purchaser (or Custodian on its behalf) and/or Agent or one of its Affiliates on the other, in connection herewith or therewith with respect to the transactions contemplated hereunder or thereunder and all amendments, restatements, modifications or supplements thereto. “Property” means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. “Purchase Date” means, with respect to a Participation Certificate, the date on which such Participation Certificate is purchased by Purchaser. “Purchase Price” has the meaning assigned thereto in the Pricing Side Letter. “Purchaser’s Wire Instructions” shall have the meaning assigned thereto in the Pricing Side Letter. “Purchaser” has the meaning set forth in the preamble hereof. “Related Mortgage Loan” means a Mortgage Loan in which a Participation Certificate evidences the 100% undivided beneficial ownership interest. 1926 The definition of “Permitted Holder” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 21 - “Related Participation Certificate” means the Participation Certificate relating to a pool of Mortgage Loans. “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto. “Request for Release and Receipt” means the Request for Release and Receipt set forth as Annex 5 to the Custodial Agreement. “Responsible Officer” means (i) as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer of such Person and (ii) as to Seller, Chief Executive Officer, Chief Financial Officer or Treasurer. “Restricted Mortgage Loan” means (i) a “Manufactured Home Loan,” “Graduated Payment Loan,” “Buydown Loan,” “Project Loan,” “Construction Loan” or “HECM Loan,” each as defined in the applicable Agency Guide, (ii) a 30+ Day Delinquent Mortgage Loan, (iii) a Mortgage Loan for which the related Escrow Payments have not been made by the next succeeding Due Date, or (iv) a High Cost Mortgage Loan. “Sanctions List” has the meaning ascribed to it in Section 29(a).27 “SEC” means the Securities Exchange Commission or any successor thereto. “Security” means a Ginnie Mae Security, a Fannie Mae Security or a Freddie Mac Security, as applicable. “Security Issuance Failure” means failure of the Security to be issued for any reason whatsoever by the Anticipated Delivery Date. “Security Settlement Fee” shall have the meaning assigned thereto in the Pricing Side Letter. “Selling System” means the Freddie Mac automated system by which sellers and servicers of mortgage loans to Freddie Mac transfer mortgage summary and record data or mortgage accounting and servicing information from their computer system or service bureau to Freddie Mac, as more fully described in the Freddie Mac Guide. “Servicer Side Letter” has the meaning assigned thereto in the Master Repurchase Agreement. “Servicing File” means with respect to each Mortgage Loan, the file retained by Seller or its designee consisting of all documents that are customarily retained by servicers that service mortgage loans substantially similar to such Mortgage Loan, which would include copies of the Mortgage File, all documents necessary to document and service the Mortgage Loans and 27 The definition of “Sanctions List” was added by Amendment No. 2, dated as of April 28, 2022.


 
- 22 - any and all documents required to be delivered in connection with any transfer of servicing pursuant to the Program Documents. “Servicing Records” means, with respect to a Related Mortgage Loan, the related servicing records, including but not limited to any and all servicing agreements, files, documents, records, data bases, computer tapes, copies of computer tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation, payment history records, and any other records relating to or evidencing the servicing of such Related Mortgage Loan. “Servicing Term” shall have the meaning assigned thereto in Section 6(a). “Servicing Termination Events” shall have the meaning assigned thereto in Section 6(e). “Settlement Date” means the date specified in a Takeout Commitment upon which the related Security is scheduled to be delivered to the specified Takeout Investor on a “delivery versus payment” basis. “SOFR” means a rate per annum equal to, with respect to any day, the secured overnight financing rate for such Business Day published by the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate) on the website of the Federal Reserve Bank of New Yorkpublished for such day by the SOFR Administrator on the SOFR Administrator’s website, currently at http://www.newyorkfed.org (, or any successor source for the secured overnight financing rate identified as such by the administrator of the secured overnight financing rateSOFR Administrator from time to time).20212829 “SOFR Administrator” means the Federal Reserve Bank of New York, as administrator of SOFR (or a successor administrator).30 “Strict Compliance” means compliance of Seller and the Related Mortgage Loans with the requirements of the Agency Guide as amended by any agreements between Seller or a Takeout Investor, on the one hand, and the Applicable Agency, on the other hand, sufficient to enable Seller to issue and to service and Ginnie Mae to guarantee or Fannie Mae or Freddie Mac to issue and guarantee a Security. “Subsidiary” means, 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 20 The definition of “SOFR” was amended by Amendment No. 1, dated as of September 24, 2021. 2128 The definition of “SOFR Based Rate” was removedamended by Amendment No. 1, dated as of September 24, 2021., and Amendment No. 2, dated as of April 28, 2022. 29 The definition of “SOFR Based Rate” was deleted by Amendment No. 1, dated as of September 24, 2021. 30 The definition of “SOFR Administrator” was added Amendment No. 2, dated as of April 28, 2022.


 
- 23 - 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. Notwithstanding the foregoing, none of ) Farm Bureau Mortgage, LLC, LGI Mortgage Solutions LLC, Henlopen Mortgage, LLC, BRP Home Mortgage, LLC, MTH Mortgage, LLC, MSC Mortgage, LLC, TRI Pointe Connect, LLC, Day One Mortgage, LLC, CUSA Affordable Housing, LLC, Commercial Agency USA, LLC, LD Escrow, Inc. or any joint venture formed by Seller after the date hereof, shall be considered a Subsidiary for purposes of this Agreement or any other Program Document.2231 “Successor Servicer” means an entity with the necessary Approvals, as the circumstances may require, and designated by Purchaser, in conformity with Section 6(f), to replace Seller as issuer and subservicer, mortgagee or seller/servicer of the Related Mortgage Loans or the Securities related thereto. “Takeout Commitment” means a (i) a trade confirmation (which may be delivered electronically) from the related Takeout Investor to Seller confirming the details of a forward trade between the Takeout Investor and Seller with respect to one or more Securities relating to a Participation Certificate, which trade confirmation shall be enforceable and in full force and effect, and shall be validly and effectively assigned to BCI pursuant to a Trade Assignment, and relate to pools of Related Mortgage Loans that satisfy the “good delivery standards” of the Securities Industry and Financial Markets Association as set forth in the Securities Industry and Financial Markets Association Uniform Practices Manual, as amended from time to time or (ii) a commitment of Seller (a) to swap one or more identified Related Mortgage Loans with a Takeout Investor that is an Agency for a Security and (b) to sell the related Security or Takeout MBS to a Takeout Investor. “Takeout Investor” means (x) for non-Jumbo Mortgage Loans, any of (i) Barclays Capital, Inc., or any successor thereto, (ii) any member of the Mortgage Backed Securities Division of the Fixed Income Clearing Corporation, unless such member is disapproved by Agent in its reasonable discretion or (iii) any other Person listed on Exhibit J to the Master Repurchase Agreement, which may be updated from time with the consent of the Agent (such consent not to be unreasonably withheld) by delivery of an updated Exhibit J to the Master Repurchase Agreement and (y) for Jumbo Mortgage Loans, either (i) Barclays Bank PLC or (ii) any other Person listed on Exhibit J to the Master Repurchase Agreement, which may be updated from time with the consent of the Agent (such consent not to be unreasonably withheld) by delivery of an updated Exhibit J to the Master Repurchase Agreement. “Termination Date” means the earliest to occur of (i) the Maturity Date, (ii) the termination of the Master Repurchase Agreement, or (iii) at the option of Purchaser, the occurrence of a Servicing Termination Event under this Agreement after the expiration of any applicable grace period. “Term SOFR” means, with respect to any date of determination, the forward- looking term rate based on SOFR, for a corresponding tenor of one month, as of two (2) 2231 The definition of “Subsidiary” was amended by Amendment No. 1, dated as of September 24, 2021.


 
- 24 - Business Days prior to the first day of the corresponding Accrual Period containing such date of determination, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any such date Term SOFR has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to Term SOFR has not occurred, then Term SOFR will be the Term SOFR as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR was published by the Term SOFR Administrator so long as such first preceding Business Day is not more than three (3) Business Days prior to such determination date.32 “Term SOFR” means the Administrator” means CME Group Benchmark Administration Limited (or any successor administrator of a forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.rate approved by Purchaser in its sole discretion).33 “Trade Assignment” means a letter substantially in the form of Exhibit B. “Trade Price” means the price (expressed as a percentage of the initial principal amount of the Security), as specified in the related Takeout Commitment at which the related Takeout Investor is obligated to purchase such Security as specified in such Takeout Commitment. “Trade Principal” means an amount equal to the product of (a) the Trade Price and (b) the initial principal amount of the related Security, as specified in the related Takeout Commitment. “Transaction Fee” shall have the meaning assigned thereto in the MRA Pricing Side Letter. “Transaction Rate” shall have the meaning assigned thereto in the Pricing Side Letter. “Unsecured Term Loan” shall have the meaning assigned thereto in the Master Repurchase Agreement. “U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the U.S. Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.34 “VA” means the United States Department of Veterans Affairs or any successor thereto. 32 The definition of “Term SOFR” was amended by Amendment No. 2, dated as of April 28, 2022. 33 The definition of “Term SOFR Administrator” was added by Amendment No. 2, dated as of April 28, 2022. 34 The definition of “U.S. Government Securities Business Day” was added by Amendment No. 2, dated as of April 28, 2022.


 
- 25 - “VA Buyout Loan” means an Eligible Mortgage Loan that (a) is guaranteed by VA, (b) is a Ginnie Mae Mortgage Loan, (c) has been purchased out of a Ginnie Mae Security, and (d) is not a Modified Loan.2335 “Warehouse Lender” means any lender providing financing to Seller for the purpose of warehousing, originating or purchasing a Mortgage Loan, which lender has a security interest in such Mortgage Loan to be purchased by Purchaser. “Warehouse Lender’s Release” means a letter, in the form of Exhibit D, from a Warehouse Lender to Purchaser, unconditionally releasing all of Warehouse Lender’s right, title and interest in certain Mortgage Loans identified therein upon payment to the Warehouse Lender. “Wet-Ink Mortgage Loan” means a Mortgage Loan that Seller is selling to Purchaser simultaneously with the origination thereof that is funded as part, either directly or indirectly, with the Initial Purchase Price paid by Purchaser hereunder and for which the Custodian shall not have received a complete Mortgage File.2436 Section 2. Procedures for Purchases of Participation Certificates. (a) Purchaser may, in its sole discretion from time to time until the Termination Date, but shall have no obligation to, purchase one or more Participation Certificates from Seller; provided, that the sum of (i) the Aggregate MRA Purchase Price and (ii) the Aggregate EPF Purchase Price shall not exceed, as of any date of determination, the Maximum Aggregate Purchase Price. In connection with Purchaser’s purchase of any such Participation Certificate, Seller, on behalf of Purchaser, shall arrange for the Delivery to BCI of a Security backed by the Related Mortgage Loans, which Security shall be subject to a Takeout Commitment. The purchase of any Participation Certificate shall be subject to the receipt by Purchaser of the items listed in Section 2(f) and (g) from Seller, in form and substance satisfactory to Agent. In accordance with the provisions of the Electronic Tracking Agreement, the Seller shall, at its sole cost and expense, (1) cause each Related Mortgage Loan with respect to which a Participation Certificate is to be sold to the Purchaser on a Purchase Date, the Mortgage for which is recorded in the name of MERS, to be designated a MERS Mortgage Loan and (2) cause the Purchaser to be designated an “associated member” (as defined in the Electronic Tracking Agreement) with respect to each such MERS Mortgage Loan. Notwithstanding the satisfaction of the conditions specified in this Section 2(a) or anything else herein or in any other Program Document to the contrary, Purchaser is not obligated to purchase any Participation Certificate offered to it hereunder. (b) If Purchaser elects to purchase any Participation Certificate, the parties shall execute a Confirmation with respect to such Participation Certificate reflecting the agreed-upon terms of the transaction, and shall pay to Seller, on the Purchase Date, the amount of the Initial Purchase Price Installment for such Participation Certificate upon receipt of a duly executed and properly completed original Participation Certificate. Effective upon execution and delivery of such Participation Certificate to Purchaser, Seller hereby assigns to Purchaser all of Seller’s right, title and interest in and to, and control over, such Participation Certificate and a 100% undivided 2335 The definition of “VA Buyout Loan” was added by Amendment No. 1, dated as of September 24, 2021. 2436 The definition of “Wet-Ink Mortgage Loan” was added by Amendment No. 1, dated as of September 24, 2021.


 
- 26 - beneficial interest in the Related Mortgage Loans. In the event that Purchaser does not transmit the Initial Purchase Price Installment, (i) any Participation Certificate delivered by Custodian to Purchaser in anticipation of such purchase shall automatically be null and void and Purchaser shall promptly return it to Seller, (ii) Purchaser will not deliver the applicable Trade Assignment to the applicable Takeout Investor (or, if already delivered, will revoke it) or consummate the transactions contemplated in the applicable Trade Assignment and (iii) to the extent that Purchaser shall nevertheless receive the Security backed by the Related Mortgage Loans prior to the Participation Certificate becoming null and void as provided in clause (i) above, Purchaser shall take all reasonable actions necessary to ensure that such Security shall be delivered in accordance with delivery instructions provided by Seller. (c) The terms and conditions of the purchase of each Participation Certificate shall be as set forth in this Agreement. Each Participation Certificate shall be deemed to incorporate, and Seller shall be deemed to make as of the applicable dates specified in Section 9, for the benefit of Purchaser and each Assignee of such Participation Certificate, the representations and warranties set forth in Section 9. (d) Purchaser shall provide a Confirmation to Seller on or before the Purchase Date or as soon as practicable after the Purchase Date. In the event of any conflict between the terms of a Confirmation and this Agreement, the Confirmation shall prevail. (e) For the avoidance of any doubt, it is hereby understood and agreed that Purchaser’s purchase of the beneficial ownership interest in and to Related Mortgage Loans, as evidenced by a Participation Certificate, shall include a beneficial ownership interest in and to all of the servicing rights relating to such Mortgage Loans. (f) On or prior to the Effective Date, except as otherwise specified below, Purchaser shall have received the following, in form and substance reasonably satisfactory to Purchaser and Agent and duly executed by each party thereto (as applicable): (i) Each of the Program Documents duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver; (ii) A copy of an officer’s certificate in a form reasonably satisfactory to Purchaser, together with (1) the certificate of formation of Seller and any amendments thereto, certified by the Secretary of State of Seller’s state of formation, (2) a copy of Seller’s operating agreement, together with any amendments thereto, (3) a copy of the duly authorized corporate resolutions, authorizing Seller to enter into this Agreement and the other Program Documents to which it is a party, and authorizing one or more of Seller’s officers to execute the documents related to this Agreement and the other Program Documents to which it is a party; (iii) No later than three (3) Business Days after the Effective Date, an opinion of Seller’s counsel as to such matters as Purchaser or Agent may reasonably request (including, without limitation, a non-contravention, enforceability and corporate opinion with respect to Seller; an opinion with respect to the inapplicability of the


 
- 27 - Investment Company Act to Seller), each in form and substance reasonably acceptable to Purchaser and Agent; and (iv) No later than ten (10) Business Days after the Effective Date, an opinion of Seller’s counsel that the relevant provisions of this Agreement constitute a “securities contract” within the meaning of the Bankruptcy Code and that none of the transactions contemplated hereunder constitute an avoidable transfer under Section 546(f) of the Bankruptcy Code, in form and substance reasonably acceptable to Purchaser and Agent; and (v) Evidence that all other actions necessary or, in the opinion of Agent, desirable to perfect and protect Purchaser’s interest in the Related Mortgage Loans and other Collateral have been taken, including, without limitation, duly filed Uniform Commercial Code financing statements on Form UCC1. (g) In addition to those items listed in Section 2(a) and (b), prior to each Purchase Date, the following shall have occurred: (i) Seller shall have paid to Purchaser: (A) all accrued and unpaid fees and expenses owed to Purchaser that have been invoiced in accordance with the Program Documents in U.S. dollars, in immediately available funds, without deduction, setoff or counterclaim; and (B) the Security Settlement Fee for the related Participation Certificate as required under Section 2 of the Pricing Side Letter in U.S. dollars, in immediately available funds, without deduction, setoff or counterclaim; provided that Purchaser may, in its sole discretion, net any unpaid Security Settlement Fee from the proceeds of any Purchase Price paid by Purchaser to Seller. (ii) The fully completed, executed and authenticated Participation Certificate together with the certifications of the Custodian provided by Section 2 of the Custodial Agreement or, with respect to a Security, such Security shall have been delivered to the Purchaser; (iii) A Trade Assignment (unless Purchaser is the Takeout Investor), fully completed and duly executed by Seller and the related Takeout Investor, together with either (a) a copy of a Takeout Commitment with respect to the Security to be backed by the Related Mortgage Loans evidenced by such Participation Certificate or (b) a letter from Seller confirming the details of such Takeout Commitment shall have been delivered to Purchaser; (iv) A letter from any warehouse lender having a security interest in the Related Mortgage Loans, substantially in the form of Exhibit D, addressed to Purchaser, releasing any and all right, title and interest in such Related Mortgage Loans shall have been delivered to Purchaser;


 
- 28 - (v) All representations and warranties made by Seller in this Agreement are true and correct in all material respects; and (vi) No Servicing Termination Event has occurred and is continuing. Section 3. Takeout Commitments. Seller hereby assigns to BCI, free of any security interest, lien, claim or encumbrance of any kind, Seller’s rights under each Takeout Commitment to deliver the Security specified therein to the related Takeout Investor and to receive the purchase price therefor from such Takeout Investor. Subject to Purchaser’s rights hereunder, Purchaser agrees that it will cause BCI to satisfy the obligation under the Takeout Commitment to deliver the Security to the Takeout Investor on the Settlement Date specified therein. Seller understands that, as a result of this Section 3 and each Trade Assignment, BCI will succeed to the rights and obligations of Seller with respect to each Takeout Commitment subject to a Trade Assignment, and that in satisfying each such Takeout Commitment, BCI will stand in the shoes of Seller and, consequently, will be acting as a non-dealer in exercising its rights and fulfilling its obligations assigned pursuant to this Section 3 and each Trade Assignment. Each Trade Assignment delivered by Seller to Purchaser shall be delivered by Seller in a timely manner sufficient to enable BCI to facilitate the settlement of the related trade on the trade date in accordance with Chapter 8 of the Securities Industry and Financial Markets Association’s Uniform Practices for the Clearance and Settlement of Mortgage Backed Securities and other Related Securities, as amended from time to time. Section 4. Completion Fee. (a) Subject to the terms of this Agreement, Purchaser shall pay to Seller the Completion Fee for each Participation Certificate that Purchaser elects to purchase hereunder as follows: (i) the Initial Completion Fee Installment shall be paid on the date of Delivery of the related Security and (ii) the Final Completion Fee Installment shall be paid on the later to occur of the Settlement Date of the related Security and the date of receipt by BCI of the Trade Price with respect to such related Security. (b) Except as otherwise provided in this Section 4 and in Section 5(b), and subject to Purchaser’s right of set-off set forth in Section 12, the Completion Fee owed by Purchaser with respect to a Participation Certificate, if any, shall be paid by Purchaser to Seller in full by not later than the Settlement Date of the related Security in accordance with the following wire instructions: Wire Transfer Field Description ABA Number 121000248 Bank Name Wells Fargo Bank, N.A. Bank Address, City, State 420 Montgomery Street San Francisco, CA 94104 (regardless of where the account is located) BIC (SWIFT Routing) WFBIUS6S Beneficiary Account Number 4988640066


 
- 29 - Beneficiary Name LD MBS Amount of Wire Optional Originator to Beneficiary information (any additional information that you want to note within the wire). For International Transfer Only International SWIFT BIC WFBIUS6S CHIPS Participant Only UID ABA 0407 (c) Upon exercise by Purchaser of its remedies under Section 6(f), Purchaser’s obligation to pay and Seller’s right to receive any portion of the Completion Fee relating to such Related Mortgage Loans shall automatically be canceled and become null and void; provided, that such cancellation shall in no way relieve Seller or otherwise affect the obligation of Seller to indemnify and hold Purchaser and Agent harmless as specified in Section 13. At no time shall Seller have any beneficial interest in the servicing rights with respect to Related Mortgage Loans while the related Participation Certificate is outstanding. (d) If a Participation Certificate is purchased by Purchaser after the first day of the month in which the Settlement Date occurs, Purchaser shall also pay to Seller on the date of Delivery to Purchaser of the Security backed by the related Mortgage Loans an amount equal to the accrued interest on the related Security at the rate specified in the related Takeout Commitment from the first day of such month to and including the day immediately preceding the date Purchaser purchased such Participation Certificate. If a Participation Certificate is purchased by Purchaser in the month prior to the month in which the Settlement Date occurs, the Completion Fee shall be reduced by an amount equal to all interest payments which accrue on such Participation Certificate during the period from the date of purchase of such Participation Certificate through and including the last day of the month prior to the month in which such Settlement Date occurs. Section 5. Issuance of Securities. (a) (i) In connection with the purchase of a Participation Certificate, Seller shall instruct (and, if Seller fails to instruct, then Agent may instruct) Custodian to deliver to the Applicable Agency, the documents listed in Annex 19-A, 19-B or 19-C of the Custodial Agreement, as applicable, in respect of the Related Mortgage Loans, in the manner and at the time set forth in the Custodial Agreement. Seller shall thereafter promptly deliver to the Applicable Agency any and all additional documents requested by the Applicable Agency to enable the Applicable Agency to make Delivery to Purchaser of a Security backed by such Mortgage Loans on the related Anticipated Delivery Date. Seller shall not revoke such instructions to Custodian and shall not revoke its instructions to the Applicable Agency to make Delivery to Purchaser or its designee of a Security backed by such Mortgage Loans. The Delivery to Purchaser of a Security shall be made in accordance with the following delivery instructions: Fed Book Entry Securities (MBS) ABA: 021000018 Bank of NYC/BCMBS


 
- 30 - (ii) Seller shall notify Purchaser, not later than 12:00 noon, Eastern Time, on the second (2nd) Business Day prior to the applicable Settlement Date (a) of the amount of any change in the principal amount of the Mortgage Loans backing each such Security related to such Settlement Date and (b) with respect to Freddie Mac Securities, the Freddie Mac mortgage loan pool number applicable to each Security to which such Settlement Date relates. Upon Delivery of such Security to BCI or its designee, Purchaser shall cease to have any interest under such Participation Certificate and in exchange shall have a 100% ownership interest in the related Security. It is understood and agreed that for so long as Seller is subservicing Related Mortgage Loans, Seller shall retain only record title to the Mortgages (and not an equitable interest) in all such Mortgage Loans (other than MERS Designated Mortgage Loans) for the sole purpose of subservicing such Mortgage Loans on a servicing-released basis. (b) If Delivery of a Security backed by the Mortgage Loans evidenced by a Participation Certificate purchased hereunder has not occurred by 12:00 noon (Eastern Time) on the related Settlement Date as a result of a Security Issuance Failure or otherwise, then subject to the exercise by Purchaser of its rights set forth in Section 4(c), the Completion Fee relating to such Participation Certificate shall be reduced on each day during the period from the Settlement Date to (but not including) the earlier of (x) the date of Delivery of such Security, and (y) the date of satisfaction of the obligations of Seller pursuant to the exercise by Purchaser of any remedial election authorized by this Section 5, by an amount equal to the Daily Completion Fee Reduction Amount. The Completion Fee (reduced by the applicable Daily Completion Fee Reduction Amounts) relating to such Participation Certificate, if any, shall not be payable until the end of the period specified in the preceding sentence. (c) If a breach by Seller of this Agreement results in any Related Mortgage Loan being a Defective Mortgage Loan on the Purchase Date of the related Participation Certificate to Purchaser, Agent in its sole discretion may require that Seller, upon receipt of notice from Purchaser or Agent of its exercise of such right, to either (x) immediately repurchase Purchaser’s beneficial ownership interest in such Defective Mortgage Loan by remitting to Purchaser the allocable amount paid by Purchaser for such beneficial interest plus accrued interest at the rate specified in the related Mortgage Note on the principal amount thereof from the date of Purchaser’s purchase of such Participation Certificate to the date of such repurchase together with any Losses suffered by Purchaser relating to such repurchase (including, without limitation, any Losses incurred by Purchaser resulting from adjustments to the trade required by the Takeout Investor), or (y) deliver to Custodian a Mortgage Loan eligible to back such Security in exchange for such Defective Mortgage Loan, which newly delivered Mortgage Loan shall be in all respects acceptable to Agent in Agent’s reasonable discretion, and such newly delivered Mortgage Loan will thereupon become one of the Related Mortgage Loans relating to the Participation Certificate. If the aggregate principal balance of any Mortgage Loans that are accepted by Purchaser pursuant to clause (y) of the immediately preceding sentence is less than the aggregate principal balance of any Defective Mortgage Loan that is being replaced by such Mortgage Loan, Seller shall remit with such Mortgage Loan to Purchaser an amount equal to the difference between the aggregate principal balance of the new Mortgage Loan accepted by Purchaser and the aggregate principal balance of the Defective Mortgage Loan being replaced thereby plus accrued interest on such Defective Mortgage Loan at the rate specified in the related Mortgage Note on the principal amount thereof from the Purchase Date of Purchaser’s purchase of such Participation Certificate to the date of substitution.


 
- 31 - (d) If any Related Mortgage Loan becomes thirty (30) days or more Delinquent with respect to the first scheduled monthly payment due Purchaser after the date on which such Related Mortgage Loan was originated and prior to the Anticipated Delivery Date, Seller shall repurchase the beneficial interest in such Related Mortgage Loan as if it were a Defective Mortgage Loan upon direction by Agent given no later than one hundred twenty (120) days after the Purchase Date. (e) No exercise by Purchaser or Agent of their respective rights under this Section 5 shall relieve Seller of responsibility or liability for any breach of this Agreement. Section 6. Servicing of the Mortgage Loans; Servicer Termination; Backup Servicer. (a) Upon payment of the Initial Purchase Price Installment with respect to a Participation Certificate and so long as such Participation Certificate remains outstanding (subject to Section 4), Purchaser shall own a 100% undivided beneficial interest in the servicing rights related to the Related Mortgage Loans, including the Mortgage File related to such Related Mortgage Loans. Seller and Purchaser each agrees and acknowledges that a 100% undivided beneficial interest in Related Mortgage Loans shall be sold to Purchaser on a servicing released basis, and that Purchaser is engaging and hereby does engage Seller (or a subservicer designated by Seller) to provide subservicing of each Related Mortgage Loan for the benefit of Purchaser (and any other registered holder of the related Participation Certificate) for each transaction for a term of thirty (30) days from the related Purchase Date (subject to the termination rights provided in this Agreement, including, without limitation, Section 6(f) of this Agreement), which term may be extended in writing by Purchaser, in its sole discretion, for additional thirty (30) day periods (each, a “Servicing Term”). If such Servicing Term is not extended by Purchaser or if Purchaser has terminated Seller as a result of a Servicing Termination Event, Seller shall transfer such servicing to Purchaser or its designee at no cost or expense to Purchaser as provided in Section 6(g) of this Agreement. Seller shall hold or cause to be held all Escrow Payments collected with respect to the Related Mortgage Loans in segregated accounts for the sole benefit of the Mortgagors and shall apply the same for the purposes for which such funds were collected. If Seller should discover that, for any reason whatsoever, it has failed to perform fully its servicing obligations in any material respect with respect to the Related Mortgage Loans, Seller shall promptly notify Purchaser. The parties hereto acknowledge and agree that as of the Effective Date, Seller may delegate its obligations hereunder to subservice any or all of the Related Mortgage Loans to Cenlar FSB. For so long as a Participation Certificate is outstanding, Seller shall neither assign, encumber or pledge its right to servicing compensation hereunder or its obligation to subservice the Related Mortgage Loans in whole or in part, nor delegate its rights or duties under this Agreement (other than to a subservicer (including, without limitation, Cenlar FSB)) without the prior written consent of Agent, the granting of which consent shall be in the sole discretion of Agent. Seller hereby acknowledges and agrees that (i) Purchaser is entering into this Agreement in reliance upon Seller’s representations as to the adequacy of its financial standing, servicing facilities, personnel, records, procedures, reputation and integrity, and the continuance thereof; and (ii) Seller’s engagement hereunder to provide mortgage servicing for the benefit of Purchaser (and any other registered holder of the Participation Certificate) is intended by the parties to be a


 
- 32 - “personal service contract” and Seller is hereunder intended by the parties to be an “independent contractor”. (b) (i) Seller (or a subservicer designated by Seller (including, without limitation, Cenlar FSB)) shall subservice and administer the Related Mortgage Loans relating to a Participation Certificate on behalf of Purchaser in accordance with Accepted Servicing Practices. Seller shall have no right to modify or alter the terms of any Related Mortgage Loan or consent to the modification or alteration of the terms of any Related Mortgage Loan except in Strict Compliance with the related Agency Program. Seller (or a subservicer designated by Seller (including, without limitation, Cenlar FSB)) shall at all times maintain accurate and complete records of its servicing of the Related Mortgage Loans, and Agent may, at any time during Seller’s business hours on reasonable notice, examine and make copies of such Servicing Records. Seller agrees that Purchaser is the 100% beneficial owner of all Servicing Records relating to the Related Mortgage Loans. Seller covenants to hold or cause any designated subservicer to hold such Servicing Records for the benefit of Purchaser and to safeguard such Servicing Records and to deliver them promptly to Agent or its designee (including the Custodian) at Agent’s request or otherwise as required by operation of this Section 6. (ii) If Delivery of a Security is not made to Purchaser on or before the Anticipated Delivery Date, Seller (or a subservicer designated by Seller (including, without limitation, Cenlar FSB)) shall deliver to Purchaser, upon reasonable request by Purchaser, reports regarding the status of those Related Mortgage Loans for which a Security has not yet been issued, which reports shall include, but shall not be limited to, a description of those Related Mortgage Loans thirty (30) days or more Delinquent, and such other circumstances with respect to any Related Mortgage Loans (whether or not such Related Mortgage Loans are included in the foregoing list) that could materially adversely affect any of such Related Mortgage Loans, Purchaser’s beneficial interest in such Related Mortgage Loans or the collateral securing any of such Related Mortgage Loans. Seller (or a subservicer designated by Seller (including, without limitation, Cenlar FSB)) shall deliver such a report to Purchaser upon such request of Purchaser until (i) Delivery of the related Security to Purchaser or (ii) the exercise by Purchaser of any remedial election pursuant to Section 5. In no event shall Seller delegate any of its subservicing duties hereunder (other than to Cenlar FSB) to any other Person without first obtaining the prior written consent of Purchaser. (iii) Upon the request of Purchaser or Agent from time to time, Seller shall furnish to Purchaser and Agent reports in form and scope satisfactory to Agent, setting forth (i) data regarding the performance of the individual Related Mortgage Loans, (ii) a summary report of all Related Mortgage Loans serviced by the Seller and originated pursuant to an Agency Guide, HUD and/or FHA guidelines (on a portfolio basis), in each case, for the immediately preceding month, including, without limitation, all collections, delinquencies, defaults, defects, claim rates, losses and recoveries, and (iii) any other information reasonably requested by Purchaser or Agent. (c) Seller, as servicer, shall establish and maintain the “Custodial Account” with Bank entitled “loanDepot.com, LLC Custodial Account, for the benefit of Barclays Bank PLC and its assignees.” The Custodial Account shall be subject to the terms and conditions of the


 
- 33 - Custodial Account Control Agreement. Following the occurrence and during the continuance of an Event of Default, Seller shall deposit or cause to be deposited into such account in the form received within two (2) Business Days of receipt thereof, with any necessary endorsements, all collections received in respect of the Related Mortgage Loans relating to Participation Certificates purchased by Purchaser hereunder. (d) Upon the occurrence and continuance of an Event of Default, amounts deposited in the Custodial Account with respect to any Related Mortgage Loan relating to Participation Certificates purchased by Purchaser hereunder shall be held in trust for the benefit of Purchaser and shall be released only as follows: (i) Except as otherwise provided in Section 6(d)(ii), upon either (x) the Settlement Date (unless there is a Securities Issuance Failure) or (y) if earlier, on the date required by the applicable Agency Guide, amounts deposited in the Custodial Account shall be released to Seller. Notwithstanding the foregoing, all amounts relating to Participation Certificates purchased by Purchaser hereunder and deposited in the Custodial Account shall be released to Seller upon the Settlement Date of the related Security (unless there is a Securities Issuance Failure) only if, and to the extent that, the amounts due and payable to Purchaser hereunder have been set-off against the Purchase Price for the Related Participation Certificate or the Completion Fee. The amounts paid to Seller (if any) pursuant to this Section 6(d)(i) shall constitute Seller’s sole compensation for subservicing the Related Mortgage Loans as provided in this Section 6. (ii) If Successor Servicer takes delivery of such Mortgage Loans either under the circumstances set forth in Section 6(f) or otherwise, all amounts deposited in the Custodial Account shall be paid to Purchaser promptly upon such delivery. (iii) If a Security is not issued solely as a result of a Security Issuance Failure during the month in which the related Settlement Date occurs, in any period thereafter during which Seller remains as subservicer, all amounts deposited in the Custodial Account shall be released only in accordance with the Agent’s written instructions. (e) Purchaser (or any other registered holder of the Related Participation Certificate) shall be entitled to effect termination of Seller’s subservicing rights and obligations respecting the affected Related Mortgage Loans in the event any of the following circumstances or events (“Servicing Termination Events”) occur and are continuing: (i) any failure by Seller to remit to Purchaser (or other registered holder of the Participation Certificate) when due any payment required to be made under the terms of this Agreement or such Participation Certificate and such failure is not cured within three (3) Business Days of the earlier of (x) Seller’s receipt of written notice from Purchaser of such breach or (y) the date on which Seller obtains notice or knowledge of the facts giving rise to such breach; or (ii) failure by Seller duly to observe, perform or comply with any material term, condition, covenant or agreement set forth in this Agreement or in the


 
- 34 - Custodial Agreement which continues unremedied for a period of five (5) Business Days of the earlier of (x) Seller’s receipt of written notice from Purchaser, Agent or Custodian of such breach or (y) the date on which Seller obtains notice or knowledge of the facts giving rise to such breach; or (iii) any representation or warranty made by Seller (or any of Seller’s officers) in the Program Documents, including, but not limited to, all documents related to this Agreement, shall have been incorrect or untrue in any material respect when made or repeated or deemed by the terms thereof to have been incorrect or untrue in any material respect when made or repeated (other than the representations or warranties in Section 9(b) and 9(c) related to the representations and warranties in Exhibit B of the Master Repurchase Agreement); or (iv) an Event of Insolvency with respect to Seller or any of its Affiliates; or (v) Seller ceases to meet the qualifications to maintain all requisite Approvals, such Approvals are revoked or such Approvals are materially modified; or (vi) [Reserved]; or (vii) Seller fails to operate or conduct its business operations or any material portion thereof in the ordinary course; or (viii) Seller ceases to be a member of MERS in good standing and has not been reinstated within fifteen (15) calendar days following receipt of notice or knowledge thereof; or (ix) an Event of Default (as defined in the Other Agreement) shall have occurred and be continuing beyond any applicable cure period under any Other Agreement to which Seller or any of its Affiliates or Subsidiaries is a party; or (x) [Reserved]; or (xi) in the event of a Security Issuance Failure, which continues unremedied for a period of two (2) Business Days; or (xii) a Change in Control of Seller shall have occurred that has not been approved by Agent. (f) Purchaser, in its sole discretion, may terminate Seller’s rights and obligations as subservicer of the affected Related Mortgage Loans and require Seller to deliver the related Servicing Records to Purchaser or its designee upon the occurrence of (i) a Servicing Termination Event or (ii) Seller’s failure to comply with any of its obligations set forth in Section 5(c) or (d), by delivering written notice to Seller requiring such termination. Such termination shall be effective upon Seller’s receipt of such written notice; provided, that Seller’s subservicing rights shall be terminated immediately upon the occurrence of any event described in Section 6(e)(iv), regardless of whether notice of such event shall have been given to or by Purchaser or Seller. Upon


 
- 35 - any such termination, all authority and power of Seller respecting its rights to subservice and duties under this Agreement relating thereto, shall pass to and be vested in the Successor Servicer appointed by Purchaser and Purchaser is hereby authorized and empowered to transfer such rights to subservice the Related Mortgage Loans for such price and on such terms and conditions as Purchaser shall reasonably determine; provided, that to the extent the Applicable Agency proceeds to issue a Security with respect to the Related Mortgage Loans, Purchaser shall convey the servicing rights and the rights to subservice such Related Mortgage Loans in accordance with such Applicable Agency’s instructions. Seller shall promptly take such actions and furnish to Purchaser such documents that Purchaser deems necessary or appropriate to enable Purchaser to obtain a Security backed by such Related Mortgage Loans or to enforce such Related Mortgage Loans, as appropriate, and shall perform all acts and take all actions so that the Related Mortgage Loans and all files and documents relating to such Related Mortgage Loans held by Seller, together with all escrow amounts relating to such Related Mortgage Loans, are delivered to Successor Servicer, including but not limited to preparing, executing and delivering to the Successor Servicer any and all documents and other instruments, placing in the Successor Servicer’s possession all Servicing Records pertaining to such Related Mortgage Loans and doing or causing to be done, all at Seller’s sole expense. To the extent that the approval of the Applicable Agency is required for any such sale or transfer, Seller shall fully cooperate with Purchaser to obtain such approval. All amounts paid by any purchaser of such rights to service or subservice the Related Mortgage Loans shall be the property of Purchaser. The subservicing rights required to be delivered to Successor Servicer in accordance with this Section 6(f) shall be delivered free of any servicing rights in favor of Seller or any third party (other than Purchaser) and free of any title, interest, lien, encumbrance or claim of any kind of Seller other than record title to the Mortgages relating to the Related Mortgage Loans. No exercise by Purchaser of its rights under this Section 6(f) shall relieve Seller of responsibility or liability for any breach of this Agreement. (g) With respect to the Servicing Files and the physical and contractual servicing of each Mortgage Loan to the extent in the possession of Seller, Seller shall deliver such Servicing Files and the physical and contractual servicing to Purchaser or its designee upon the expiration of the Servicing Term (unless such Servicing Term is renewed by Purchaser) or the termination of the Seller as subservicer pursuant to this Section 6. Seller’s transfer of the servicing rights, Servicing Files and the physical and contractual servicing under this Section 6(g) shall be in accordance with customary standards in the industry including the transfer of the gross amount of all escrows held for the related Mortgagors (without reduction for unreimbursed advances or “negative escrows”). (h) The Agent, in its sole discretion, may appoint a backup servicer at any time during the term of this Agreement. In such event, Seller shall commence monthly delivery to such backup servicer of the servicing information required to be delivered to Purchaser pursuant to Section 6(b)(ii) and any other information reasonably requested by backup servicer, all in a format that is reasonably acceptable to such backup servicer. Solely in the event that such backup servicer is appointed by Agent as a result of the occurrence and continuation of an Event of Default, Seller shall pay all costs and expenses of such backup servicer, including, but not limited to all fees of such backup servicer in connection with the processing of such information and the maintenance of a servicing file with respect to the Related Mortgage Loans. Seller shall cooperate fully with such backup servicer in the event of a transfer of servicing hereunder and will provide such backup


 
- 36 - servicer with all documents and information necessary for such backup servicer to assume the servicing of the Related Mortgage Loans. Section 7. Transfers of Participation Certificates and Securities by Purchaser¶. Purchaser may, in its sole discretion and without the consent of Seller, sell, assign or otherwise transfer all of its right, title and interest or grant a security interest in any Participation Certificate, any Mortgage Note, Mortgage and Assignment of Mortgage related to such Participation Certificate and the related servicing rights, each Security in respect thereof of which Delivery is made to Purchaser and all rights of Purchaser under this Agreement (including, but not limited to, the Custodial Account) in respect of such Participation Certificate, any such Mortgage Note, Mortgage, Assignment of Mortgage and such Security, to any person (an “Assignee”), all at no cost to Seller, subject only to an obligation on the part of the Assignee to deliver each such Security to the Takeout Investor or to Purchaser to permit Purchaser or its designee to make delivery thereof to the Takeout Investor. In the event Purchaser engages in an assignment of a Participation Certificate and the related servicing rights as provided in this Section 7, (i) the Purchaser’s obligations under this Agreement shall remain unchanged, (ii) the Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Seller shall continue to deal solely and directly with Purchaser in connection with Purchaser’s rights and obligations under this Agreement. Without limitation of the foregoing, an assignment of a Participation Certificate and the related servicing rights to an Assignee, as described in this Section 7, shall be effective upon delivery of the Participation Certificate to the Assignee or its designee, together with a duly executed Assignment substantially in the form of Exhibit E (with a copy to Seller). Section 8. Record Title to Mortgage Loans; Intent of Parties; Security Interest. (a) From and after the issuance and delivery of the Related Participation Certificate, and subject to the remedies of Purchaser in Section 5, Seller (or its designated subservicer) as subservicer shall remain the last named payee or endorsee of each Mortgage Note related to a Related Mortgage Loan and the mortgagee or assignee of record of each Mortgage related to a Related Mortgage Loan (except with respect to any MERS Designated Mortgage Loan) and shall retain only record title to the Mortgages (and not an equitable interest) in the Related Mortgage Loan, all for the benefit of Purchaser for the sole purpose of facilitating the subservicing of such Related Mortgage Loan and the issuance of a Security backed by such Related Mortgage Loan. Where Seller has appointed Freddie Mac as Custodian, the parties hereto acknowledge that the Mortgage Notes related to a Participation Certificate acquired hereunder have been deposited with Freddie Mac to facilitate the issuance of Freddie Mac Securities with respect thereto and that prior to such issuance Freddie Mac is holding such Mortgage Notes as Custodian for Purchaser. (b) Seller shall maintain a complete set of books and records for each Related Mortgage Loan which shall be clearly marked to reflect the beneficial ownership interest in each Related Mortgage Loan of the holder of the Related Participation Certificate. Seller shall notify MERS of the beneficial ownership interest of Purchaser in each MERS Designated Mortgage Loan through the MORNET system or any other comparable system acceptable to MERS. (c) Purchaser and Seller confirm that the transactions contemplated herein are intended to be sales of the Participation Certificates by Seller to Purchaser rather than borrowings


 
- 37 - secured by the Participation Certificates. In the event, for any reason, any transaction is construed by any court or regulatory authority as a borrowing rather than as a sale, Seller and Purchaser intend that Purchaser or its Assignee, as the case may be, shall have a perfected first priority security interest in the Participation Certificates, and all of Seller’s interest in all of the servicing rights with respect to the Related Mortgage Loans, the Custodial Account and all amounts on deposit therein, the Related Mortgage Loans subject to each Participation Certificate, all documents, records (including Servicing Records), instruments and data evidencing the Related Mortgage Loans and the servicing thereof, the Securities to be issued as contemplated hereunder, all principal and interest collected thereon and all proceeds thereof, the Takeout Commitments and the proceeds of any and all of the foregoing (collectively, the “Collateral”), free and clear of adverse claims. In furtherance thereof, Seller hereby grants to Purchaser (as defined in the introductory paragraph of this Agreement) a first priority security interest in and lien upon the Collateral, free and clear of adverse claims. In such event, this Agreement shall constitute a security agreement, the Custodian shall be deemed to be an independent custodian for purposes of perfection of the security interest herein granted to Purchaser, and Purchaser or each such Assignee shall have all of the rights of a secured party under applicable law. Upon request of Purchaser, Seller shall prepare and deliver to MERS an Assignment of Mortgage from MERS to Purchaser or its designee. Upon due execution by MERS, Seller shall cause such Assignment of Mortgage to be recorded in the public land records upon request of Purchaser. Section 9. Representations and Warranties. (a) Seller hereby represents and warrants to Purchaser and Agent as of the date hereof and with respect to the Related Mortgage Loans as of the date of each issuance and delivery of a Participation Certificate that: (i) Seller will not be rendered insolvent by any transaction contemplated by this Agreement and, after giving effect to each such transaction, Seller will not be left with an unreasonably small amount of capital with which to engage in its business. Seller does not intend to incur, nor believes that it has incurred, debts beyond its ability to pay such debts as they mature. Seller is not contemplating the commencement of insolvency, bankruptcy, liquidation or consolidation proceedings or the appointment of a receiver, liquidator, conservator, trustee or similar official in respect of Seller or any of its assets; (ii) The consideration received by Seller upon the sale of each Participation Certificate, taken as a whole, will constitute reasonably equivalent value and fair consideration for the beneficial ownership interest in the Mortgage Loans evidenced by that Participation Certificate; (iii) Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and it has qualified to do business in each jurisdiction in which it is legally required to do so. Seller has the power and authority under its certificate of formation, operating agreement and applicable law to enter into this Agreement and the Custodial Agreement and to perform all acts contemplated hereby and


 
- 38 - thereby or in connection herewith and therewith; this Agreement, the Custodial Agreement, the Pricing Side Letter, the Custodial Account Control Agreement and the transactions contemplated hereby and thereby have been duly authorized by all necessary action and do not require any additional approvals or consents or other action by, or any notice to or filing with, any Person other than any that have heretofore been obtained, given or made; (iv) The consummation of the transactions contemplated by this Agreement and the Program Documents are in the ordinary course of business of Seller and will not conflict with, result in the breach of or violate any provision of the certificate of formation or operating agreement of Seller or result in the breach of any provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under, any material agreement, indenture, loan or credit agreement or other instrument to which Seller, the Related Mortgage Loans or any of Seller’s Property is or may be subject to, or result in the violation of any law, rule, regulation, order, judgment or decree to which Seller, the Related Mortgage Loans or Seller’s Property is or may be subject. Without limiting the generality of the foregoing, the consummation of the transactions contemplated herein or therein will not violate any policy, regulation or guideline of the FHA or VA or result in the voiding or reduction of the FHA insurance, VA guarantee or any other insurance or guarantee in respect of any Mortgage Loan, or otherwise render such Mortgage Loans, individually or in the aggregate, ineligible (pursuant to the applicable Agency Guide or otherwise) for inclusion in a pool of mortgages supporting a Security, and such FHA insurance or VA guarantee is in full force and effect or shall be in full force and effect as required by the applicable Agency Guide; (v) No practice, procedure or policy employed by Seller in the conduct of its businesses violates any law, regulation, judgment, agreement, regulatory consent, order or decree applicable to it which, if enforced, would result in a Material Adverse Effect; (vi) This Agreement, the Custodial Agreement and every other Program Document to be executed by Seller is the legal, valid, binding and subsisting obligations of Seller, enforceable in accordance with their respective terms, except that (A) the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, receivership and other similar laws relating to creditors’ rights generally and (B) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (vii) No consent, license, approval or authorization from, or registration, filing or declaration with, any regulatory body, administrative agency or other governmental instrumentality, nor any consent, approval, waiver or notification of any creditor, lessor or other non-governmental Person, is required in connection with the execution, delivery and performance by Seller of this Agreement or any other Program Document to which it is a party, other than any that have heretofore been obtained, given or made;


 
- 39 - (viii) Seller has not sold, assigned, transferred, pledged or hypothecated any interest in any Participation Certificate or Related Mortgage Loan to any person other than any sale, assignment, transfer, pledge or hypothecation that is released in conjunction with the sale to Purchaser pursuant to the Master Repurchase Agreement or hereunder, and upon delivery of a Participation Certificate to Purchaser, Purchaser will be the sole owner thereof, free and clear of any lien, claim or encumbrance other than those arising under this Agreement; (ix) Neither this Agreement nor any representations and warranties or information relating to Seller that Seller has delivered or caused to be delivered to Purchaser, including, but not limited to, all documents related to this Agreement, the Custodial Agreement or Seller’s financial statements, contains any untrue statement of a material fact or when taken as a whole omits to state a material fact necessary to make the statements made therein or herein in light of the circumstances under which they were made, not misleading. Since the furnishing of such documents or information, to Seller’s knowledge, there has been no change, nor any development or event involving a prospective change that would render any of such documents or information untrue or misleading in any material respect, unless Seller delivered such other documents or information informing Purchaser or Agent of such change; (x) Except as disclosed to the Agent, no action, suit, proceeding or investigation, at law or in equity, or before or by any court, public board or body pending or, to Seller’s knowledge, threatened against or affecting Seller (or, to Seller’s knowledge, any basis therefor) wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of this Agreement, the Custodial Agreement or could adversely affect Seller’s ability to carry out its obligations hereunder; (xi) Seller has all requisite Approvals; (xii) The Custodian is not an Affiliate of Seller; (xiii) The Bank is not an Affiliate of Seller; (xiv) The Agreement and the other Program Documents, any other document contemplated hereby or thereby and each transaction have not been entered into fraudulently by Seller hereunder, or with the intent to hinder, delay or defraud any creditor or Purchaser; and (xv) [Reserved]; (xvi) [Reserved]; (xvii) [Reserved; (xviii) As of the date of this Agreement, Seller is an approved FHA, VA, RD, Ginnie Mae, Fannie Mae and/or Freddie Mac seller, mortgagee and/or servicer and is in good standing with these agencies.


 
- 40 - (xix) For so long as such Unsecured Term Loan is outstanding, Seller is not in breach of any representation, warranty, covenant, or other provision of the Unsecured Term Loan related to the delinquency of Ginnie Mae mortgage loans. (b) Seller hereby represents and warrants to Purchaser and Agent with respect to each Related Mortgage Loan, as of the Purchase Date for the Related Participation Certificate that each of the representations and warranties set forth on Exhibit B to the Master Repurchase Agreement is true and accurate. The representations and warranties of Seller in this Section 9 are unaffected by and supersede any provision in any endorsement of any Related Mortgage Loan or in any assignment with respect to such Mortgage Loan to the effect that such endorsement or assignment is without recourse or without representation or warranty. Section 10. Covenants of Seller¶. Seller hereby covenants and agrees with Purchaser and Agent as of the date hereof and for so long as any Participation Certificate remains outstanding as follows: (a) Seller shall keep or cause to be kept in reasonable detail books and records setting forth an account of its assets and business and, as applicable, shall clearly reflect therein the transfer of Seller’s beneficial right, title and interest in and to the Related Mortgage Loans. (b) Seller shall deliver to Purchaser and Agent: (i) Within ninety (90) days after the end of each fiscal year of Seller, the consolidated audited balance sheets of Seller and its consolidated Subsidiaries, which will be in conformity with GAAP, and the related consolidated audited statements of income and changes in equity showing the financial condition of Seller and its consolidated Subsidiaries as of the close of such fiscal year and the results of operations during such year, and consolidated audited statements of cash flows, as of the close of such fiscal year, setting forth, in each case, in comparative form the corresponding figures for the preceding year. The foregoing consolidated financial statements are to be reported on by, and to carry the unqualified report (in a form substantially similar to the form of financial statements attached to the Master Repurchase Agreement as Exhibit J, or in a form otherwise acceptable to Purchaser and Agent) of, an independent public accountant of national standing acceptable to Purchaser and Agent, which shall include KPMG LLP, PricewaterhouseCoopers LLP, Deloitte LLP, BDO USA, LLP, Ernst & Young, and any other similarly situated independent public account; (ii) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of Seller, consolidated unaudited balance sheets and consolidated statements of income and changes in equity, (in a form substantially similar to the form of financial statements attached to the Master Repurchase Agreement as Exhibit K, or in a form otherwise acceptable to Purchaser and Agent), showing the financial condition and results of operations of Seller and its consolidated Subsidiaries, each on a consolidated basis as of the end of each such quarter and for the then elapsed portion of the fiscal year, setting forth, in each case, in comparative form the corresponding figures for


 
- 41 - the corresponding periods of the preceding fiscal year, certified by a financial officer of Seller who is qualified to make such certification as presenting fairly the financial position and results of operations of Seller and its consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year-end audit adjustments; (iii) As soon as is practicable, but in any event within thirty (30) days after the end of each of the first two months of a fiscal quarter, consolidated unaudited balance sheets and consolidated statements of income and changes in equity (in a form substantially similar to the form of financial statements attached to the Master Repurchase Agreement as Exhibit K, or in a form otherwise acceptable to Purchaser and Agent) showing the financial condition and results of operations of Seller and its consolidated Subsidiaries on a consolidated basis as of the end of each such month and for the then elapsed portion of the fiscal year, setting forth, in each case, in comparative form the corresponding figures for the corresponding month of the preceding fiscal year, certified by a financial officer of Seller who is qualified to make such certification as presenting fairly the financial position and results of operations of Seller and its consolidated Subsidiaries and as having been prepared in accordance with GAAP consistently applied, in each case, subject to normal year-end audit adjustments; (iv) [Reserved]; (v) Promptly upon any Responsible Officer becoming aware of the commencement of, or any determination in, any material dispute, litigation, investigation, proceeding, sanctions or suspension between Seller, on the one hand, and any Governmental Authority or any other Person, on the other (other than any investigation or proceeding conducted in the ordinary course of business by a state licensing authority) that is reasonably likely to have a Material Adverse Effect; (vi) Promptly upon becoming available, copies of all financial statements, reports, notices and proxy statements sent by its Parent Company, Seller or any of Seller’s consolidated Subsidiaries in a general mailing to their respective stockholders and of all reports and other material (including copies of all registration statements under the Securities Act of 1933, as amended) filed by any of them with any securities exchange or with the SEC or any governmental authority succeeding to any or all of the functions of the SEC; (vii) [Reserved]; (viii) Such supplements to the aforementioned documents and such other information regarding the operations, business, affairs and financial condition of its Parent Company, Seller or any of Seller’s consolidated Subsidiaries as Purchaser or Agent may reasonably request; (ix) [Reserved]; (x) [Reserved];


 
- 42 - (xi) To the extent not otherwise prohibited from disclosing, promptly upon a Responsible Officer becoming aware thereof, any penalties, sanctions or charges levied, or reasonably threatened in writing to be levied, against Seller or any change, or change threatened in writing, in Approval status against Seller by any Applicable Agency, or any supervisory or regulatory Governmental Authority (including, but not limited to HUD, FHA and VA) supervising or regulating the origination or servicing of mortgage loans by, or the issuer status of, Seller (which, in the event of a Governmental Authority, could reasonably be expected to have a Material Adverse Effect). Seller’s obligation to deliver any report or other document under this Section 10(b) shall be deemed to have been satisfied if, and as of the date, such report or other document is filed with the SEC pursuant to the SEC’s Electronic Data Gathering & Analysis Recovery system. (c) Neither Seller nor any Affiliate thereof will acquire at any time any Participation Certificate or any other economic interest in or obligation with respect to any Related Mortgage Loan except for the subservicing rights relating thereto and record title to the Mortgage relating to any Related Mortgage Loan. (d) Seller shall take all commercially reasonable actions necessary or, in the reasonable opinion of Purchaser, desirable, to preserve the Related Mortgage Loans and other Collateral so that they remain subject to a first priority perfected security interest hereunder and deliver evidence that such actions have been taken, including, without limitation, duly completed and filed Uniform Commercial Code financing statements on Form UCC1. (e) Seller will not be rendered insolvent by, any sale of a Participation Certificate to Purchaser. (f) Seller will not sell any Participation Certificate to Purchaser with any intent to hinder, delay or defraud any of Seller’s creditors. (g) Seller shall take all reasonably necessary actions to maintain its Approvals at all times during the term of this Agreement. If, for any reason, Seller ceases to maintain any such Approval, Seller shall so notify Purchaser and Agent within two (2) Business Days. (h) Seller shall (i) maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Documents, (ii) remain in good standing to the extent required under, and comply in all material respects with, all laws of each state in which it conducts business or any Mortgaged Property is located, and (iii) conduct its business strictly in accordance with applicable law. (i) Seller shall, upon request of Purchaser or Agent, promptly execute and deliver to Purchaser all such other and further documents and instruments of transfer, conveyance and assignment, and shall take such other action as Purchaser or Agent may require to more effectively transfer, convey, assign to and vest in Purchaser and to put Purchaser in possession of the property to be transferred, conveyed, assigned and delivered hereunder and otherwise to carry out more effectively the intent of the provisions under this Agreement.


 
- 43 - (j) The Seller is a member of MERS in good standing and current in the payment of all fees and assessments imposed by MERS, and has complied with all rules and procedures of MERS. In connection with the assignment of any Related Mortgage Loan registered on the MERS System, the Seller agrees that it will, at the Seller’s own cost and expense, promptly cause the MERS System to indicate that such Mortgage Loan has been transferred to the Purchaser in accordance with the terms of the Master Repurchase Agreement by including in MERS’ computer files (a) the code in the field which identifies the specific owner of the Mortgage Loans and (b) the code in the field “Pool Field” which identifies the series in which such Mortgage Loans were sold. The Seller further agrees that it will not alter codes referenced in this paragraph with respect to any Mortgage Loan at any time that such Mortgage Loan is subject to the Master Repurchase Agreement, and the Seller shall retain its membership in MERS at all times during the term of this Agreement. For eMortgage Loans, Seller shall comply in all material respects with all rules and procedures in connection with the maintenance of the related eNotes on the MERS eRegistry for so long as such Related Mortgage Loans are so registered. (k) Seller will permit Purchaser, Agent or their respective agents or designees to perform due diligence reviews on the Related Mortgage Loans subject to each Participation Certificate purchased hereunder up to the Due Diligence Review Amount within the thirty (30) days following the related Purchase Date. Seller shall cooperate in all respects with such diligence and shall provide Purchaser, Agent or their respective agents or designees who are bound by confidentiality requirements with all loan files and other information (including, without limitation, Seller’s quality control procedures and results) reasonably requested by Purchaser, Agent or their respective agents or designees and shall bear all costs and expenses associated with such due diligence. (l) Except as permitted herein or in the Master Repurchase Agreement, Seller shall not sell, assign, transfer or otherwise dispose of, or grant any option with respect to, or pledge, hypothecate or grant a security interest in, or Lien on or otherwise encumber (except pursuant to the Program Documents) any of the Related Mortgage Loans or any interest therein, provided that this Section 10(l) shall not prevent any of the following: any contribution, sale, assignment, transfer or conveyance of Related Mortgage Loans in accordance with the Program Documents and any forward purchase commitment or other type of take out commitment for the Related Mortgage Loans (without vesting rights in the related purchasers as against Purchaser). (m) Seller shall comply with the financial covenants set forth in Section 15(g)(ii) of the Master Repurchase Agreement and Section 4 of the Pricing Side Letter. (n) Seller shall (i) at all times maintain copies of relevant portions of all final written Applicable Agency audits, examinations, evaluations, monitoring reviews and reports of its origination and servicing operations (including those prepared on a contract basis for any such agency) in which there are material adverse findings, including without limitation notices of defaults, notices of termination of approved status, notices of imposition of supervisory agreements or interim servicing agreements, and notices of probation, suspension, or non-renewal, and all necessary approvals from each Applicable Agency. Seller shall (x) disclose to Agent any portion of such information that is not confidential, (y) notify Agent of any material event in a level of specificity that would not violate the confidentiality requirements and (z) promptly seek


 
- 44 - permission to disclose the information from the necessary parties and shall provide Agent such information to the extent of such permission. (o) [Reserved]. (p) Seller shall timely pay to Purchaser all reasonable fees and documented out of pocket expenses required to be paid by Seller hereunder and under any other Program Document to Purchaser in immediately available funds, and without deduction, set-off or counterclaim in accordance with Purchaser’s Wire Instructions. Section 11. Term¶. This Agreement shall continue in effect until terminated as to future transactions on the Termination Date; provided, that no termination will affect the obligations hereunder as to any of the Participation Certificates then outstanding hereunder or any Security not yet delivered to the related Takeout Investor. Seller’s obligations to indemnify Purchaser and Agent pursuant to this Agreement and the other Program Documents shall survive the termination hereof. Section 12. Set-Off¶. In addition to any rights and remedies of Purchaser hereunder and at law, upon the occurrence and continuation of a default hereunder or under any of the Program Documents, Purchaser and its Affiliates shall have the right, without prior notice to Seller, any such notice being expressly waived by Seller to the extent permitted by applicable law, upon any amount becoming due and payable (whether at the stated maturity, by acceleration or otherwise) by Seller hereunder, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand, to set-off and appropriate and apply against such amount any and all Property and deposits (general or special, time or demand, provisional or final), in any currency, or any other credits, indebtedness or claims, in any currency, or any other collateral (in the case of collateral not in the form of cash or such other marketable or negotiable form, by selling such collateral in a recognized market therefor or as otherwise permitted by law or as may be in accordance with custom, usage or trade practice), in each case, whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by Purchaser or any Affiliate thereof to or for the credit or the account of Seller except and to the extent that any of the same are held by Seller for the account of another Person. Upon the occurrence of a default hereunder or under any of the Program Documents, Purchaser may also set-off cash and all other sums or obligations owed by Purchaser or its Affiliates to Seller or its Affiliates (whether under this Agreement, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand) against all of Seller’s obligations to Purchaser or its Affiliates (whether under this Agreement, under the Mortgage Loan Participation Purchase and Sale Agreement or under any other warehouse, repurchase, or mortgage servicing rights facility or related trade line entered into between Seller, on the one hand, and Purchaser or any of its Affiliates, on the other hand), whether or not such obligations are then due. The exercise of any such right of set-off shall be without prejudice to Purchaser’s or its Affiliate’s right to recover any deficiency. Purchaser agrees to promptly notify Seller after any such set-off and application made by Purchaser; provided that the failure to give such notice shall not affect the validity of such set-off and application.


 
- 45 - Section 13. Indemnification¶. Seller shall indemnify and hold Purchaser and Agent harmless against any and all Losses (including, without limitation, Losses incurred by Purchaser on account of fees paid by Purchaser to the Applicable Agency to cause the Securities to be issued or any Losses in connection with any indemnification by Purchaser of the Applicable Agency) resulting from, relating to or otherwise arising in connection with the breach by Seller of any representation, warranty or covenant in this Agreement (including, without limitation, any failure to perform servicing obligations). Without prejudice to the survival of any other agreement of Seller hereunder, the covenants and obligations of Seller contained in this Section 13 shall survive the termination of this Agreement. Section 14. Exclusive Benefit of Parties; Assignment¶. This Agreement is for the exclusive benefit of the parties hereto and their respective successors and assigns and shall not be deemed to give any legal or equitable right to any other person, including any Takeout Investor or the Custodian. In addition to the rights of Purchaser as provided in Section 7, subject to the consent of the Seller (such consent not to be unreasonably withheld) and at no cost or expense to the Seller, each of Purchaser and Agent may, in its sole election, assign or participate all or a portion of its rights and obligations under this Agreement and the Program Documents with a counterparty of Purchaser’s or Agent’s choice. Purchaser or Agent shall notify Seller of any such assignment and participation and shall maintain, for review by Seller upon written request, a register of assignees and participants and a copy of any executed assignment and acceptance by Purchaser or Agent and assignee (“Assignment and Acceptance”), specifying the percentage or portion of such rights and obligations assigned. The Seller agrees that, for any such permitted assignment, Seller will cooperate with the prompt execution and delivery of documents reasonably necessary for such assignment process to the extent that Seller incurs no cost or expense that is not paid by the Purchaser or Agent, as applicable. Upon such assignment, (a) such assignee shall be a party hereto and to each Program Document to the extent of the percentage or portion set forth in the Assignment and Acceptance, and shall succeed to the applicable rights and obligations of Purchaser or Agent hereunder, and (b) Purchaser or Agent shall, to the extent that such rights and obligations have been so assigned by it to either (i) an Affiliate of Purchaser or Agent which assumes the obligations of Purchaser or Agent hereunder or (ii) to another Person which assumes the obligations of Purchaser or Agent hereunder, be released from their obligations hereunder accruing thereafter and under the Program Documents. Purchaser and Agent may distribute to any prospective assignee, participant or pledgee any document or other information delivered to Purchaser by Seller subject to the confidentiality restrictions contained in Section 27 hereof; accordingly, such prospective assignee, participant or pledgee shall be required to agree to confidentiality provisions similar to those set forth in Section 27. The Program Documents and the Seller’s rights and obligations thereunder are not assignable by Seller without the prior written consent of Purchaser and Agent. Any Person into which Seller may be merged or consolidated, or any corporation resulting from any merger, conversion or consolidation to which Seller shall be a party, or any Person succeeding to the business of Seller, shall be the successor of Seller hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.


 
- 46 - Section 15. Amendments; Waivers; Cumulative Rights¶. No amendment or waiver of any provision of this Agreement nor any consent to any failure to comply herewith or therewith shall in any event be effective unless the same shall be in writing and signed by Seller, Purchaser and Agent, and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Section 16. Execution in Counterparts¶. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts. The parties intend that faxed signatures and electronically imaged signatures such as .pdf files shall constitute original signatures and are binding on all parties. The original documents shall be promptly delivered, if requested. The parties agree that this Agreement, any addendum, exhibit or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Agreement may be accepted, executed or agreed to through the use of an electronic signature in accordance with E-Sign, UETA and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate document access tracking, electronic signature tracking and document retention as may be reasonably chosen by a signatory hereto, including but not limited to DocuSign. Section 17. Effect of Invalidity of Provisions¶. In case any one or more of the provisions contained in this Agreement should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. Section 18. Governing Law; Waiver of Jury Trial; Consent to Jurisdiction and Venue; Service of Process¶. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and assigns. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF (EXCEPT FOR SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW). EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PROGRAM DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS, ON BEHALF OF ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS IN ANY ACTION OR PROCEEDING. EACH OF SELLER, PURCHASER AND AGENT HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO, NON-EXCLUSIVE PERSONAL JURISDICTION AND VENUE IN THE COURTS OF


 
- 47 - THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS. EACH OF SELLER, PURCHASER AND AGENT HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF A SUMMONS AND COMPLAINT AND OTHER PROCESS IN ANY ACTION, CLAIM OR PROCEEDING BROUGHT BY ANOTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE OTHER PROGRAM DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS, ON BEHALF OF ITSELF OR ITS PROPERTY, IN THE MANNER SPECIFIED IN THIS SECTION 31 AND TO SUCH PARTY’S REGISTERED AGENT OR SUCH OTHER ADDRESS AS SUCH PARTY SHALL HAVE PROVIDED IN WRITING TO THE OTHER PARTIES HERETO. NOTHING IN THIS SECTION 31 SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO (I) SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW, OR (II) BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY OR ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTIONS. Section 19. Notices¶. Any notices, consents, elections, directions and other communications given under this Agreement shall be in writing and shall be deemed to have been duly given when telecopied or delivered by overnight courier to, personally delivered to, or on the third day following the placing thereof in the mail, first class postage prepaid to, the parties hereto at the related address set forth in Annex A or to such other address as either party shall give notice to the other party pursuant to this Section. Notices to any Assignee shall be given to such address as the Assignee shall provide to Seller in writing. Section 20. Entire Agreement¶. This Agreement, the Participation Certificates, the Custodial Agreement and the other Program Documents contain the entire agreement between the parties hereto with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements between them, oral or written, of any nature whatsoever with respect to the subject matter hereof. Section 21. Costs of Enforcement¶. (a) In addition to any other indemnity specified in this Agreement, Seller agrees to pay as and when billed by Purchaser or Agent all of the reasonable out-of-pocket costs and expenses incurred by Purchaser and Agent in connection with the development, preparation, and execution of, and any amendment, supplement or modification to, and enforcement of this Agreement, any other related document or any other documents prepared in connection herewith or therewith. (b) If Seller fails to pay when due any costs, expenses or other amounts payable by it under this Agreement, including, without limitation, reasonable fees and expenses of counsel and indemnities, such amount may be paid on behalf of Seller by Purchaser or Agent, in its sole discretion and Seller shall remain liable for any such payments by Purchaser or Agent, as applicable. No such payment by Purchaser or Agent shall be deemed a waiver of any of Purchaser’s or Agent’s respective rights under this Agreement. (c) In addition to any other indemnity specified in this Agreement, in the event of a breach by Seller of this Agreement, the Custodial Agreement, a Participation Certificate or a


 
- 48 - Takeout Commitment, Seller agrees to pay the reasonable attorneys’ fees and expenses of Purchaser, Agent and/or any Assignee incurred as a consequence of such breach. Section 22. Securities Contract; Netting Agreement. (a) Seller, Purchaser and Agent recognize that each sale of a Participation Certificate (including the related servicing rights) under this Agreement is a “securities contract” and a “master netting agreement” as those terms are defined in Section 741 and Section 101(38A)(A) of the Bankruptcy Code, respectively, and a “qualified financial contract” as that term is defined in the FDIA. Seller and Purchaser further recognize that the beneficial interest in the Related Mortgage Loans evidenced by a Participation Certificate shall constitute an “interest in a mortgage loan” as that term is used in Section and 741(7)(A)(i) of Bankruptcy Code. (b) It is understood that the Purchaser shall have the right to liquidate, terminate and accelerate, or exercise any other remedies permitted upon the occurrence of any Servicing Termination Event, and that such liquidation, termination and acceleration rights constitute contractual rights to liquidate, terminate and accelerate the transactions under a “securities contract” and a “master netting agreement” as described in Section 555 and Section 561 of the Bankruptcy Code, respectively, and a “qualified financial contract” as described Section 1821(e)(8)(A)(i) of the FDIA. (c) The parties hereto agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the FDIA, then each transaction hereunder is a “qualified financial contract,” as that term is defined in the FDIA and any rules, orders or policy statements thereunder (except insofar as the type of assets subject to such transaction would render such definition inapplicable). (d) It is understood that this Agreement constitutes a “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance Corporation Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment obligation hereunder shall constitute a “covered contractual payment entitlement” or “covered contractual payment obligation,” respectively, as defined in and subject to FDICIA. Section 23. Consent to Service¶. Each party irrevocably consents to the service of process by registered or certified mail, postage prepaid, to it at its address provided pursuant to Section 19. Section 24. Construction¶. The headings in this Agreement are for convenience only and are not intended to influence its construction. References to Sections, Exhibits and Annexes in this Agreement are to the Sections of and Exhibits and Annexes to this Agreement. The Exhibits and Annexes are part of this Agreement. In this Agreement, the singular includes the plural, the plural the singular, and the words “and” and “or” are used in the conjunctive or disjunctive as the sense and circumstances may require. Section 25. Further Assurances¶. Seller, Purchaser and Agent each agree to execute and deliver to the other such reasonable and appropriate additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of this Agreement.


 
- 49 - Section 26. Due Diligence¶. Purchaser, Agent or any of their respective agents, representatives or permitted assigns shall have the right, upon reasonable prior notice and during normal business hours, subject to Section 10(k), no more than one time during any 12-month period (unless a Servicer Termination Event has occurred and is continuing, in which case the foregoing limitation of one examination during any 12-month period shall not be applicable), to conduct on-site inspection and perform continuing on-site due diligence reviews of (x) Seller, including, without limitation, for the purpose of verifying compliance with the representations, warranties and covenants made under the Program Documents, (y) the Servicing File and (z) the Related Mortgage Loans. Seller agrees promptly to provide Purchaser, Agent and their respective agents with access to, copies of and extracts from any and all documents, records, agreements, instruments or information (including, without limitation, any of the foregoing in computer data banks and computer software systems) relating to Seller’s respective business, operations, servicing, financial condition, performance of their obligations under the Program Documents, the documents contained in the Servicing Files or the Related Mortgage Loans or assets proposed to be sold hereunder in the possession, or under the control, of Seller. In addition, Seller shall also make available to Purchaser and/or Agent, upon reasonable prior notice and during normal business hours no more than one time during any 12-month period (unless a Servicer Termination Event has occurred and is continuing, in which case the foregoing limitation of one examination during any 12-month period shall not be applicable), a knowledgeable financial or accounting officer of Seller for the purpose of answering questions respecting the Related Mortgage Loans. Without limiting the generality of the foregoing, Seller acknowledges that Purchaser shall enter into transactions with Seller based solely upon the information provided by Seller to Purchaser and/or Agent and the representations, warranties and covenants contained herein, and that Purchaser and/or Agent, at its option, shall have the right at any time to conduct itself or through its agents, or require Seller to conduct quality reviews and underwriting compliance reviews of the individual Related Mortgage Loans at the expense of Seller. Any such diligence conducted by Purchaser and/or Agent shall not reduce or limit the Seller’s representations, warranties and covenants set forth herein. Seller agrees to reimburse Purchaser and/or Agent for all reasonable out-of-pocket due diligence costs and expenses incurred with one examination during any 12- month period (or in connection with any additional examinations conducted following the occurrence and continuation of Servicer Termination Event) shall not be applicable) pursuant to this Section 26. Section 27. Confidentiality. Seller, Purchaser and Agent each hereby acknowledge and agree that all written or computer-readable information provided by one party to the other in connection with the Program Documents or the transactions contemplated thereby, including without limitation, Seller’s Mortgagor information in the possession of Purchaser (the “Confidential Terms”) shall be kept confidential and shall not be divulged to any party without the prior written consent of such other party except for (i) disclosure to Seller’s direct and indirect parent companies, directors, attorneys, auditors, taxing authorities, equity holders, representatives, investors, lenders, officers, employees, agents or accountants, provided that such parties likewise agree to be bound by this covenant of confidentiality, or are otherwise subject to confidentiality restrictions, (ii) with prior (if feasible) written notice to Purchaser, disclosure required by law, rule, regulation or order of a court or other regulatory body, (iii) with prior (if feasible) written notice to Purchaser, (iv) any disclosures or filing required under SEC or state securities’ laws; provided that in the case of clause (iv), Seller shall not file the Pricing Side Letter. Notwithstanding any provision herein to the contrary, Seller may provide copies of the Program Documents (other than


 
- 50 - the Pricing Side Letter) and relevant excerpts (but not specific pricing information) from the Pricing Side Letter to the Seller’s other Creditors (to the extent required by such other Creditors). Notwithstanding anything herein to the contrary, except as reasonably necessary to comply with applicable securities laws, each party (and each employee, representative, or other agent of each party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure. For this purpose, tax treatment and tax structure shall not include (i) the identity of any existing or future party (or any Affiliate of such party) to this Agreement or (ii) any specific pricing information or other commercial terms, including the amount of any fees, expenses, rates or payments arising in connection with the transactions contemplated by this Agreement. Purchaser and Agent each agree that it will not purchase, sell or trade any class of security of the Seller on the basis of any material nonpublic information that is included in the Confidential Terms in violation of U.S. securities laws. Notwithstanding anything in this Agreement to the contrary, Seller, Purchaser and Agent shall comply with all applicable local, state and federal laws, including, without limitation, all privacy and data protection law, rules and regulations that are applicable to the Related Mortgage Loans, the Participation Certificates and any applicable terms of this Agreement, including information relating to any Mortgage Loan that is not related to a Participation Certificate purchased hereunder and information relating to any other Mortgage Loans of Seller that is delivered to Purchaser or Agent by another lender under an intercreditor agreement or other agreement (the “Confidential Information”). Seller, Purchaser and Agent understand that the Confidential Information may contain “nonpublic personal information”, as that term is defined in Section 509(4) of the Gramm-Leach-Bliley Act (the “GLB Act”), and each agrees to maintain such nonpublic personal information that it receives hereunder in accordance with the GLB Act and other applicable federal and state privacy laws. Seller, Purchaser and Agent shall each implement such physical and other security measures as shall be necessary to (a) ensure the security and confidentiality of the “nonpublic personal information” of the “customers” and “consumers” (as those terms are defined in the GLB Act) of the Mortgagors, (b) protect against any threats or hazards to the security and integrity of such nonpublic personal information, and (c) protect against any unauthorized access to or use of such nonpublic personal information. Seller, Purchaser and Agent shall notify the other party immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of the nonpublic personal information of any Mortgagor by providing notice directly to the other party. Section 28. Contractual Recognition of Bail-In. Seller acknowledges and agrees that notwithstanding any other term of this Agreement or any other agreement, arrangement or understanding with us, any of our liabilities, as the Bank of England (or any successor resolution authority) may determine, arising under or in connection with this Agreement may be subject to Bail-In Action and Seller accepts to be bound by the effect of: (a) any Bail-In Action in relation to such liability, including (without limitation): (i) a reduction, in full or in part, of any amount due in respect of any such liability;


 
- 51 - (ii) a conversion of all, or part of, any such liability into shares or other instruments of ownership that may be issued to, or conferred on, Seller; and (iii) a cancellation of any such liability; and (b) a variation of any term of this Agreement to the extent necessary to give effect to Bail- In Action in relation to any such liability. Section 29. USA Patriot Act; OFACSanctions and Anti-Terrorism.37 Each of Purchaser and Agent hereby notifies the Seller that pursuant to the requirements of the USA PATRIOT Improvement and Reauthorization Act, Title III of Pub. L. 109-177 (signed into law March 9, 2009) (the “Act”), it is required to obtain, verify, and record information that identifies the Seller, which information includes the name and address of the Seller and other information that will allow each of Purchaser and Agent, as applicable, to identify the Seller in accordance with the Act. Accordingly, the Seller hereby represents and warrants to each of Purchaser and Agent, and shall on and as of the Purchase Date for any Transaction and on and as of each date thereafter through and including the related SettlementRepurchase Date be deemed to represent and warrant to each of Purchaser and Agent that: (a) (i) Neither the Seller, nor the Parent Company nor, to the Seller’s actual knowledge, any director, officer, or employee of the Seller or any of its subsidiaries, or any originator of Collateral,a Purchased Asset is named on the list of Specifically Designated Nationals maintained by OFAC or any similar sanctions list issued by OFAC, OFSI, or any other Governmental Authority (collectively, the “OFACSanctions Lists”) or is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC; and, OFSI, or any other Governmental Authority; (ii) no Person or Persons on the OFACSanctions Lists owns, whether individually or in the aggregate, directly or indirectly, a fifty percent or greater interest, or otherwise controls, the Seller or, the Parent Company. or any Originator; and (iii) to the knowledge of the Seller, neither the Purchaser nor Agent is precluded by any Economic and Trade Sanctions and Anti-Terrorism Laws from entering into this Agreement or any transactions pursuant to this Agreement with the Seller due to the ownership or control by any person or entity of stocks, shares, bonds, debentures, notes, drafts or other securities or obligations of the Seller. (b) (i) Seller will not knowingly conduct business with or engage in any transaction with any Obligor that the Seller or any originator of Collaterala Purchased Asset knows, after reasonable due diligence, that, (x) is named on any of the OFACSanctions Lists or is located, organized, or resident in a country or territory that is, or whose government currently is, the target of countrywide sanctions imposed by OFAC or any other Governmental Authority; (y) is owned, directly or indirectly, or otherwise controlled, by a Person named on any OFACSanctions List; (ii) if the Seller obtains actual knowledge, after reasonable due diligence, that any Obligor is named on any of the 37 Section 29 was amended by Amendment No. 2, dated as of April 28, 2022.


 
- 52 - OFACSanctions Lists or that any Person named on an OFAC List owns,or Persons on the Sanctions Lists owns, whether individually or in the aggregate, directly or indirectly, a fifty percent or greater interest, or otherwise controls, the Obligor, or the Seller, as applicable, Seller will give prompt written notice to the Purchaser and Agent of such fact or facts; and (iii) the Seller will (x) comply at all times with the requirements of the Economic and Trade Sanctions and Anti-Terrorism Laws applicable to any transactions, dealings or other actions relating to this Agreement, except to the extent such non-compliance does not result in a violation of applicable law by any of Purchaser or Agent and (y) will, upon the Purchaser’s or Agent’s reasonable request from time to time during the term of this Agreement, deliver a certification confirming its compliance with the covenants set forth in this Section 29. Section 30. Contractual Recognition of UK Stay In Resolution¶. (a) Where a resolution measure is taken in relation to any BRRD undertaking or any member of the same group as that BRRD undertaking and that BRRD undertaking or any member of the same group as that BRRD undertaking is a party to this Agreement (any such party to this Agreement being an “Affected Party”), each other party to this Agreement agrees that it shall only be entitled to exercise any termination right under this Agreement against the Affected Party to the extent that it would be entitled to do so under the Special Resolution Regime if this Agreement were governed by the laws of any part of the United Kingdom. (b) For the purpose of this Section 30 “resolution measure” means a ‘crisis prevention measure’, ‘crisis management measure’ or ‘recognised third-country resolution action’, each with the meaning given in the “PRA Rulebook: CRR Firms and Non-Authorised Persons: Stay in Resolution Instrument 2015”, as may be amended from time to time (the “PRA Contractual Stay Rules”), provided, however, that ‘crisis prevention measure’ shall be interpreted in the manner outlined in Rule 2.3 of the PRA Contractual Stay Rules ; “BRRD undertaking”, “group”, “Special Resolution Regime” and “termination right” have the respective meanings given in the PRA Contractual Stay Rules. Section 31. Notice Regarding Client Money Rules. ¶ (a) The Purchaser, as a CRD credit institution (as such term is defined in the rules of the FCA), holds all money received and held by it hereunder as banker and not as trustee. Accordingly, money that is received and held by Purchaser from Seller will not be held in accordance with the provisions of the FCA’s Client Asset Sourcebook relating to client money (the “Client Money Rules”) and will not be subject to the statutory trust provided for under the Client Money Rules. (b) In particular, the Purchaser shall not segregate money received by it from Seller from the Purchaser money and the Purchaser shall not be liable to account to Seller for any profits made by the Purchaser use as banker of such cash and upon failure of the Purchaser, the client money distribution rules within the Client Asset Sourcebook (the “Client Money Distribution Rules”) will not apply to these sums and so Seller will not be entitled to share in any distribution under the Client Money Distribution Rules.


 
- 53 - Section 32. Effect of Benchmark Transition Event.38 (a) Notwithstanding anything to the contrary herein or in any other Program Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, the Agent and the Seller may amend this Agreement to replace LIBOR with a Benchmark Replacement. Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Agent has posted such proposed amendment to the Purchaser and the Seller. Any such amendment with respect to an Early Opt-in Election will become effective on the date that the Purchaser has delivered to the Agent written notice that the Purchaser accepts such amendment. No replacement of LIBOR with a Benchmark Replacement pursuant to this Section titled “Effect of Benchmark Transition Event” will occur prior to the applicable Benchmark Transition Start Date. (a) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Program Document in respect of any Benchmark setting at or after 5:00 p.m. on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to Purchaser and Seller without any amendment to, or further action or consent of any other party to, this Agreement or any other Program Document so long as the Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Purchaser [or Seller]. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Seller may revoke any request for a transaction to be made or continued hereunder that would bear interest by reference to such Benchmark until the Seller’s receipt of notice from the Agent that a Benchmark Replacement has replaced such Benchmark. (b) In connection with the implementation and administration of a Benchmark Replacement, the Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Program Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement. (c) The Agent will promptly notify the Seller and the Purchaser of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date and Benchmark Transition Start Date, (ii) the implementation of any Benchmark Replacement, and (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes and (iv) the commencement or conclusion of any Benchmark Unavailability Period. 38 Section 32 was amended by Amendment No. 2, dated as of April 28, 2022.


 
- 54 - (d) Any determination, decision or election that may be made by the Agent or Purchaser pursuant to this Section titled “Effect of Benchmark Transition Event,”32, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section titled “Effect of Benchmark Transition Event.” 32. (e) Upon the Seller’s receipt of notice of the commencement of a Benchmark Unavailability Period and until such Benchmark Unavailability Period ends, the Seller shall apply an alternate benchmark rate (which may be a SOFR-Based Rate) that has been mutually agreed upon by the Agent and the Seller.


 
Mortgage Loan Participation Purchase and Sale Agreement Signature Page IN WITNESS WHEREOF, Purchaser, Agent and Seller have duly executed this Agreement as of the date and year set forth on the cover page hereof. BARCLAYS BANK PLC By: Name: Title: LOANDEPOT.COM, LLC By: Name: Title: Acknowledged and Agreed with respect to Section 3: BARCLAYS CAPITAL INC. By: Name: Title:


 
A-1 Exhibit A PARTICIPATION CERTIFICATE POOL NO. (or Freddie Mac CONTRACT NO.): This participation certificate evidences a one hundred percent (100%) undivided beneficial ownership interest in (including the right to receive the payments of principal of and interest on) the Mortgage Loans (the “Participation Certificate”) identified: (Check Box) (a) Form HUD 11706 (Schedule of Pooled Mortgages); (b) Fannie Mae Form 2005 (Schedule of Mortgages); or (c) Freddie Mac Form 1034 (Fixed-Rate Custodial Certification Schedule) or Selling System computer tape. This Participation Certificate has been sold to Purchaser (as defined herein) pursuant to the terms of that certain Mortgage Loan Participation Purchase and Sale Agreement, dated August 25, 2020 (the “Agreement”) between loanDepot.com, LLC, as seller (the “Seller”), and Barclays Bank PLC, as purchaser (the “Purchaser”) and as agent (the “Agent”). Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement, the terms of which are hereby incorporated by reference and made a part of this Participation Certificate. Upon Delivery of the related Security to Purchaser or its Assignee, Purchaser’s beneficial ownership interest in the Mortgage Loans evidenced in this Participation Certificate shall terminate in exchange for such Security, and this Participation Certificate shall be void and of no further effect. Purchaser and Seller confirm that the transaction contemplated herein pursuant to the Agreement is intended to be a sale of this Participation Certificate by Seller to Purchaser rather than borrowings secured by this Participation Certificate. In the event, for any reason, this transaction is construed by any court or regulatory authority as a borrowing rather than as a sale, Seller and Purchaser intend that Purchaser shall have a perfected first priority security interest in this Participation Certificate and all of Seller’s interest in all of the servicing rights with respect to the above-described Mortgage Loans ("Mortgage Loan Pool"); the Custodial Account and all amounts on deposit therein; all documents, records (including Servicing Records), instruments and data evidencing the Mortgage Loan Pool and the servicing thereof; all principal and interest collected thereon and all proceeds thereof; the Takeout Commitments related to the Participation Certificate; and the proceeds of any and all of the foregoing (all of the foregoing property, collectively, the “Collateral”), free and clear of adverse claims. In furtherance thereof, Seller hereby grants to Purchaser a first priority security interest in and lien upon the Collateral, free and clear of adverse claims.


 
A-2 This Participation Certificate may be amended only by a written agreement between Seller, Purchaser and Agent. LOANDEPOT.COM, LLC By: Its: Date:


 
A-3 AGGREGATE PRINCIPAL BALANCES OF THE MORTGAGE LOANS (GIVING EFFECT TO PAYMENTS MADE AS OF _______, ____): $_____________________ Hereby authenticated by Deutsche Bank National Trust Company pursuant to the Custodial Agreement (May not be applicable for Freddie Mac) By: Its: Date:


 
B-1 Exhibit B TRADE ASSIGNMENT __________ (“Takeout Investor”) (Address) Attention: Fax No.: Ladies and Gentlemen: Attached hereto is a correct and complete copy of your confirmation of commitment (the “Commitment”), trade-dated _________ __, ____, to purchase $______ of __% ___ year, (Check Box) Government National Mortgage Association; Federal National Mortgage Association; or Federal Home Loan Mortgage Corporation. mortgage-backed pass-through securities (“Securities”) at a purchase price of ___________ from _________ on (insert Settlement Date). Our intention is to assign $_____ of this Commitment’s full amount, which assignment shall be effective and shall be fully enforceable by the assignee on the Settlement Date. This is to confirm that (i) the form of this assignment conforms to the SIFMA guidelines, (ii) the Commitment is in full force and effect, (iii) effective as of the Settlement Date, the Commitment is hereby assigned to Barclays Capital Inc. (“BCI”), whose acceptance of such assignment is indicated below, (iv) you will accept delivery of such Securities directly from BCI, (v) you will pay BCI for such Securities, (vi) effective as of the Settlement Date and provided the Securities have been issued, BCI is obligated to make delivery of such Securities to you in accordance with the attached Commitment and (vii) effective as of the Settlement Date and provided the Securities have been issued, you have released Seller from its obligation to deliver the Securities to you under the Commitment. Payment will be made “delivery versus payment (DVP)” to BCI in immediately available funds. Please acknowledge your acceptance of the foregoing by countersigning below and delivering an executed copy of this Trade Assignment to _______________ at fax # (___) ___- ____. Notification of incorrect information or rejection of this Trade Assignment or any questions regarding this Trade Assignment should be immediately made to [_____]. Very truly yours, loanDepot.com, LLC


 
B-2 By: Title: Date: Acknowledged and agreed to: BARCLAYS CAPITAL INC. By:________________________ Title:______________________ Date:______________________ Provided the Securities have been issued, notice of delivery and confirmation of receipt will be the obligations of Barclays. Acknowledged and agreed to: [TAKEOUT INVESTOR] By:________________________ Title:______________________ Date:______________________


 
C-1 Exhibit C RESERVED


 
D-1 Exhibit D WAREHOUSE LENDER’S RELEASE Barclays Bank PLC 745 Seventh Avenue, 2nd Floor New York, New York 10019 Attention: US Residential Financing2539 Ladies and Gentlemen: Capitalized terms used herein but not defined herein shall have the meanings ascribed to such terms in the Custodial Agreement, dated as of August 25, 2020, among Barclays Bank PLC, loanDepot.com, LLC and Deutsche Bank National Trust Company. We hereby release all right, interest or claim of any kind, including any security interest or lien, with respect to the mortgage loans referenced in the attached schedule (Ginnie Mae/Fannie Mae/Freddie Mac Pool/Contract #__________), such release to be effective automatically without any further action by any party, upon payment, in one or more installments, from Barclays Bank PLC, in accordance with the Wire Instructions in effect on the date of such payment, in immediately available funds, of an aggregate amount equal to the product of A multiplied by B (such product being rounded to the nearest $0.01) multiplied by C.* Very truly yours, [WAREHOUSE LENDER] *A = weighted average Trade Price (expressed as a percentage of the initial aggregate principal balance of the Mortgage Loans) B = principal amount of the Mortgage Loans backing the Security C = 1 minus the Discount 2539 The notice address was amended by Amendment No. 1, dated as of September 24, 2021.


 
E-1 Exhibit E ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sell(s) and assign(s) and transfer(s) unto (Please print or typewrite name and address, including postal zip code of assignee) an undivided Participation Interest Equal to % of the beneficial interest in the Mortgage Loans relating to the within Participation Certificate, Pool No. (Freddie Mac Contract No.) , Pass- Through Rate , Discount and hereby authorize(s) the transfer of registration of such interest to assignee. [Assignor] By: Name: Title: Dated:________________


 
F-1 Exhibit F FORM OF CONFIRMATION TO: loanDepot.com, LLC 26642 Towne Centre Drive Foothill Ranch, California 92610 Attention: Sheila Mayes, EVP, Treasurer2640 email: smayes@loandepot.com Attention: Patrick Flanagan, Chief Financial Officer email: pflanagan@loandepot.com Attention: Office of General Counsel email: CM_Legal@loandepot.com.2741 DATE: RE: Confirmation of Purchase of a beneficial interest in Mortgage Loans relating to a Participation Certificate Barclays Bank PLC (“Purchaser” and “Agent”) is pleased to confirm its agreement to purchase and your agreement to sell a 100% undivided, beneficial interest in the Mortgage Loans relating to a Participation Certificate relating to the pool number (or Freddie Mac Contract Number) referred to herein, pursuant to the Mortgage Loan Participation Purchase and Sale Agreement, dated as of August 25, 2020 (the “Agreement”), between Purchaser, Agent and Seller, under the following terms and conditions. 2640 Contact information was amended by Amendment No. 1, dated as of September 24, 2021. 2741 Contact information was amended by Amendment No. 1, dated as of September 24, 2021.


 
F-2 Pool No. (or Freddie Mac Contract No.) Applicable Agency Purchase Date Anticipated Delivery Date Settlement Date Trade Price Purchase Price: Initial Purchase Price Installment Final Purchase Price Installment Face Amount of the Security_________________________ Pass Through Rate [Other information TBD]


 
F-3 Capitalized terms used and not otherwise defined herein shall have the meanings ascribed in the Agreement. Very truly yours, BARCLAYS BANK PLC By: Name: Title: Agreed to by: LOANDEPOT.COM, LLC By: ______________________________ Name: Title:


 

FOURTEEENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT

THIS FOURTEENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT (this “Amendment”) is entered into as of April 28, 2022, between LOANDEPOT.COM, LLC, a Delaware limited liability company (“Borrower”), and NEXBANK  (with its participants, successors and assigns, “Lender”).
R E C I T A L S
A.    Borrower and Lender are parties to that certain Credit and Security Agreement dated as of October 29, 2014 (as amended, modified, supplemented, restated or amended and restated from time to time, the “Loan Agreement”). Unless otherwise indicated herein, all terms used with their initial letter capitalized are used herein with their meaning as defined in the Loan Agreement and all Section references are to Sections in the Loan Agreement.
B.    Borrower has requested that Lender amend the Loan Agreement as provided below.
C.    Borrower and Lender desire to amend the Loan Documents, subject to the terms, conditions, and representations set forth herein, as requested by Borrower.
D.    Borrower and Lender agree to the other terms and provisions provided below, subject to the terms, conditions, and representations set forth herein.
NOW, THEREFORE, in consideration of these premises and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree, as follows:
1.Amendments to Loan Agreement. Subject to the satisfaction of the conditions set forth herein, the Loan Agreement is amended as reflected on Annex A attached hereto.
2.Conditions Precedent. Notwithstanding any contrary provision, this Amendment shall be effective on the first Business Day upon which all of the following conditions precedent have been satisfied (the “Effective Date”):
(a)Lender shall have received counterparts of this Amendment executed by Borrower, Lender, and each other party set forth on the signature pages hereto;
(b)Lender shall have received counterparts of the Side Letter executed by Borrower;
(c)Lender shall have received satisfactory evidence that Borrower has paid the fees and expenses of counsel described in Section 5;
(d)No Default or Event of Default shall have occurred and be continuing or shall result after giving effect to this Amendment; and
(e)Lender shall have received such other instruments and documents incidental and appropriate to the transactions provided for herein as Lender or its counsel may reasonably request, and all such documents shall be in form and substance satisfactory to Lender (it being agreed that execution of this Amendment by Lender shall evidence that the foregoing conditions have been fulfilled).
3.Reaffirmation of Loan Documents and Liens. Except as amended and modified hereby, any and all of the terms and provisions of the Loan Agreement and the other Loan Documents shall remain in full force and effect and are hereby in all respects ratified and confirmed by Borrower. Borrower hereby agrees that, except as expressly provided in this Amendment, the amendments and modifications herein contained shall in no manner affect or impair the liabilities, duties and obligations of Borrower under the Loan Agreement and the other Loan Documents or the Liens securing the payment and performance thereof. Borrower further confirms that the liens and security interests in the Collateral created under the Loan Documents secure, among other indebtedness, Borrower’s obligations under




the Loan Documents, and all modifications, amendments, renewals, extensions, and restatements thereof.
4.Representations and Warranties. As a material inducement for Lender to enter into this Amendment, Borrower hereby represents and warrants to Lender (with the knowledge and intent that Lender is relying upon the same in consenting to this Amendment) that as of the Effective Date, and after giving effect to the transactions contemplated by this Amendment: (a) all representations and warranties in the Loan Agreement and in all other Loan Documents are true and correct in all material respects, as though made on the date hereof, except to the extent that (i) any of them speak to a different specific date; or (ii) the facts or circumstances on which any of them were based have been changed by transactions or events not prohibited by the Loan Documents; (b) no Default or Event of Default exists under the Loan Documents or will exist after giving effect to this Amendment; (c) this Amendment has been duly authorized and approved by all necessary organizational action and requires the consent of no other Person, and is binding and enforceable against Borrower in accordance with its terms; and (d) the execution, delivery and performance of this Amendment in accordance with its terms, does not and will not, by the passage of time, the giving of notice, or otherwise: (i) require any governmental approval, other than such as have been obtained and are in full force and effect, or violate any applicable law relating to Borrower; (ii) conflict with, result in a breach of, or constitute a default under the Constituent Documents of Borrower thereof, or any indenture, agreement, or other instrument to which Borrower is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by Borrower.
5.Fees, Costs and Expenses. Borrower agrees to pay promptly the reasonable fees and expenses of counsel to Lender for services rendered in connection with the preparation, negotiation, reproduction, execution, and delivery of this Amendment and all related documents; and
6.Miscellaneous.
(a)This Amendment shall be deemed to constitute a Loan Document for all purposes and in all respects. Each reference in the Loan Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference in the Loan Agreement or in any other Loan Document, or other agreements, documents or other instruments executed and delivered pursuant to the Loan Agreement to the “Loan Agreement”, shall mean and be a reference to the Loan Agreement as amended by this Amendment.
(b)The Loan Documents shall remain unchanged and in full force and effect, except as provided in this Amendment, and are hereby ratified and confirmed. The execution, delivery, and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any rights of Lender under any Loan Document, nor constitute a waiver under any of the Loan Documents.
(c)All of the terms and provisions of this Amendment shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.
(d)This Amendment may be executed in one or more counterparts and by different parties hereto in separate counterparts each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Facsimiles, documents executed, scanned and transmitted electronically and electronic signatures shall be deemed original signatures for purposes of this Amendment and all matters related thereto, with such facsimile, scanned and electronic signatures having the same legal effect as original signatures. The parties agree that this Amendment may be accepted, executed or agreed to through the use of an electronic signature in accordance with E-SIGN, UETA, and any applicable state law. To the extent this Amendment is accepted, executed or agreed to in conformity with such laws, it will be binding on each party hereto to the same extent as if it were physically executed and each party




hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereto.
(e)THIS AMENDMENT, THE LOAN AGREEMENT, AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

(f)The headings, captions and arrangements used in this Amendment are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of this Amendment, nor affect the meaning thereof.

(g)Any provision of this Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

(h)This Amendment shall be construed in accordance with and governed by the laws of the State of Texas without regard to its principles of conflicts of laws.

(i)The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of Lender under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents
[Remainder of Page Intentionally Left Blank; Signature Page Follows]



IN WITNESS WHEREOF, the parties hereto have executed this Amendment in multiple counterparts on the date stated on the signature pages hereto, but effective as of Effective Date.


BORROWER:

loanDepot.com, LLC,
a Delaware limited liability company


By:        
    Name: Patrick Flanagan
    Title:
Chief Financial Officer


LENDER:

NEXBANK



By:    
    
    Name: Kevin Olding
    Title: Senior Vice President


Signature Page to Fourteenth Amendment




ANNEX A TO FOURTEENTH AMENDMENT TO CREDIT AND SECURITY AGREEMENT
Annex A
CREDIT AND SECURITY AGREEMENT



between



loanDepot.com, LLC
as Borrower



and



NEXBANK
as Lender



DATED AS OF OCTOBER 29, 2014





TABLE OF CONTENTS
    Page
SECTION 1 Definitions
Section 1.1    Definitions.
Section 1.2    Accounting Matters.
Section 1.3    ERISA Matters.
Section 1.4    Other Definitional Provisions.
SECTION 2 Borrowings
Section 2.1    Borrowings.
Section 2.2    General Provisions Regarding Interest; Etc.
Section 2.3    Reserved.
Section 2.4    Use of Proceeds.
Section 2.5    Extension of Termination Date
Section 2.6    Increase in the Maximum Commitment
SECTION 3 Payments
Section 3.1    Method of Payment.
Section 3.2    Prepayments.
Section 3.3    Taxes
SECTION 4 Security
Section 4.1    Grant of Security Interest.
Section 4.2    Limited Pledge of Servicing
Section 4.3    Acknowledgment Agreements
Section 4.4    Lender Requires Acknowledgment Agreements and Consent Agreements
Section 4.5    Further Assurances Concerning Collateral
Section 4.6    Financing Statements Filing Authorization
Section 4.7    Borrower Remains Liable
Section 4.8    Rights after Occurrence of Default
Section 4.9    Attorney-In-Fact Appointment
Section 4.10    Periodic Valuations of Servicing Rights
Section 4.11    Collections in General
Section 4.12    Setoff.
Section 4.13    Schedules 4.1(a)(2)
SECTION 5 Conditions Precedent
Section 5.1    Initial Extension of Credit.
Section 5.2    All Extensions of Credit.
SECTION 6 Representations and Warranties
Section 6.1    Entity Existence.
Section 6.2    Financial Statements; Etc.
Section 6.3    Action; No Breach.
Section 6.4    Operation of Business.
Section 6.5    Litigation and Judgments.
    i    Credit and Security Agreement

        
Section 6.6    Rights in Properties; Liens.
Section 6.7    Enforceability.
Section 6.8    Approvals.
Section 6.9    Taxes.
Section 6.10    Use of Proceeds; Margin Securities.
Section 6.11    ERISA.
Section 6.12    Disclosure.
Section 6.13    Subsidiaries.
Section 6.14    Agreements.
Section 6.15    Compliance with Laws.
Section 6.16    Regulated Entities.
Section 6.17    Environmental Matters
Section 6.18    Membership and Standing.
Section 6.19    Foreign Assets Control Regulations and Anti-Money Laundering.
Section 6.20    Patriot Act.
Section 6.21    Nature of Business
Section 6.22    Borrower’s Address
Section 6.23    Special Representations Concerning Collateral
SECTION 7 Affirmative Covenants
Section 7.1    Reporting Requirements.
Section 7.2    Maintenance of Existence; Conduct of Business.
Section 7.3    Maintenance of Properties.
Section 7.4    Taxes and Claims.
Section 7.5    Insurance.
Section 7.6    Inspection Rights.
Section 7.7    Keeping Books and Records.
Section 7.8    Compliance with Laws.
Section 7.9    Compliance with Agreements.
Section 7.10    Further Assurances.
Section 7.11    ERISA.
Section 7.12    Additional Subsidiaries.
Section 7.13    Reserved.
Section 7.14    Provide Monthly Servicing Appraisals
Section 7.15    Special Affirmative Covenants Concerning Collateral
SECTION 8 Negative Covenants
Section 8.1    Reserved.
Section 8.2    Limitation on Liens
Section 8.3    Mergers
Section 8.4    Restricted Payments.
Section 8.5    Reserved.
Section 8.6    Transactions With Affiliates.
    ii    Credit and Security Agreement

        
Section 8.7    Disposition of Assets.
Section 8.8    Reserved.
Section 8.9    Reserved.
Section 8.10    Nature of Business.
Section 8.11    Environmental Protection.
Section 8.12    Accounting.
Section 8.13    No Negative Pledge.
Section 8.14    Reserved.
Section 8.15    Reserved.
Section 8.16    OFAC.
Section 8.17    Reserved.
Section 8.18    Conditional Repurchase, Indemnity or Other Recourse Obligations
Section 8.19    Special Negative Covenants Concerning Collateral.
Section 8.20    Termination of Servicing Agreements or Servicing Rights
Section 8.21    No Amendments
SECTION 9 RESERVED
SECTION 10 Default
Section 10.1    Events of Default.
Section 10.2    Remedies Upon Default.
Section 10.3    Application of Funds.
Section 10.4    Performance by Lender.
SECTION 11 Miscellaneous
Section 11.1    Expenses.
Section 11.2    INDEMNIFICATION.
Section 11.3    Limitation of Liability.
Section 11.4    No Duty.
Section 11.5    Lender Not Fiduciary.
Section 11.6    Equitable Relief.
Section 11.7    No Waiver; Cumulative Remedies.
Section 11.8    Successors and Assigns.
Section 11.9    Survival.
Section 11.10    Amendment.
Section 11.11    Notices.
Section 11.12    GOVERNING LAW; VENUE; SERVICE OF PROCESS.
Section 11.13    Counterparts.
Section 11.14    Severability.
Section 11.15    Headings.
Section 11.16    Participations; Etc.
Section 11.17    Construction.
Section 11.18    Independence of Covenants.
Section 11.19    WAIVER OF JURY TRIAL
    iii    Credit and Security Agreement

        
Section 11.20    Additional Interest Provision.
Section 11.21    Ceiling Election.
Section 11.22    USA Patriot Act Notice.
Section 11.23    NOTICE OF FINAL AGREEMENT.

    iv    Credit and Security Agreement


INDEX TO EXHIBITS
    Exhibit    Description of Exhibit    Section
    D-1    U.S. Tax Compliance Certificate
        (For Foreign Lenders That Are Not
        Partnerships For U.S. Federal
        Income Tax Purposes)    3.3
    D-2    U.S. Tax Compliance Certificate
        (For Foreign Participants That Are Not
        Partnerships For U.S. Federal
        Income Tax Purposes)    3.3
    D-3    U.S. Tax Compliance Certificate
        (For Foreign Participants That Are
        Partnerships For U.S. Federal
        Income Tax Purposes)    3.3
INDEX TO SCHEDULES
    Schedule    Description of Schedule    Section
    4.1(a)(1)    Servicing Rights Subject to Lien    4.1(a)
    4.1(a)(2)    Pledged Servicing Rights    4.1(a)
    5.1(r)    Additional Conditions Precedent    5.1(r)
    6.2    Existing Debt    6.2
    6.5    Litigation and Judgments    6.5
    6.13    Subsidiaries, Ventures, Etc.    6.14
    8.5    Existing Debt owed to Borrower    8.5

    
    v    Credit and Security Agreement


CREDIT AND SECURITY AGREEMENT
THIS CREDIT AND SECURITY AGREEMENT (the “Agreement”), dated as of October 29, 2014 (the “Closing Date”) is between loanDepot.com, LLC, a Delaware limited liability company (“Borrower”), and NEXBANK (“Lender”).
RECITALS
WHEREAS, Borrower has requested that Lender extend a revolving line of credit to Borrower as described in this Agreement. Lender is willing to make such credit available to Borrower upon and subject to the provisions, terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and the mutual covenants contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1

Definitions
Section 1.1Definitions.
As used in this Agreement, all exhibits, appendices and schedules hereto and in any note, certificate, report or other Loan Documents made or delivered pursuant to this Agreement, the following terms will have the meanings given such terms in this Section 1 or in the provision, section or recital referred to below:
Acknowledgment Agreement” means an acknowledgment agreement in the form prescribed by a Designated Agency to be executed by Borrower, the Lender and such Designated Agency as a condition to Borrower’s pledging any Agency Servicing Rights in respect of Mortgage Loans owned by such Designated Agency to the Lender.
Affiliate” means, as to any Person, any other Person (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Person; (b) that directly or indirectly beneficially owns or holds twenty percent (20%) or more of any class of voting stock of such Person; or (c) twenty percent (20%) or more of the voting stock of which is directly or indirectly beneficially owned or held by such Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise. Notwithstanding the foregoing, (A) in no event shall Lender be deemed an Affiliate of Borrower or any Obligated Party, or any of their Subsidiaries or Affiliates; and (B) in no event shall any Person that is controlled by Sponsor or any of its Controlled Investment Affiliates (other than Borrower and its Subsidiaries) constitute an Affiliate of Borrower or its Subsidiaries.
Agency means Freddie Mac or any successors thereto or (upon the agreement of Borrower and Lender), any other government mortgage loan program and any successor thereto.
Agency Guidelines” means, with respect to an Agency, the servicing valuation procedural guidelines set forth by such Agency.
Agency Servicing Rights” means all of Borrower’s rights and interests under any Servicing Agreement with any Agency, including the rights to (a) service the Serviced Loans that are the subject matter of such Servicing Agreement and (b) be compensated, directly or indirectly, for doing so.
Agency’s Interest” means the interest of the related Agency in the Collateral pursuant to the terms of the Approved Servicing Agreement and the Acknowledgment Agreement.
D-2294739_9.doc    1    Credit and Security Agreement


Aggregate Advance Rate” means 70%.
Agreement” has the meaning set forth in the introductory paragraph hereto, and includes all schedules, exhibits and appendices attached or otherwise identified therewith.
Appraisal” means an appraisal of Mortgaged Premises by a licensed or otherwise qualified, disinterested and independent appraiser who (a) meets the standards of the Financial Institutions Reform, Recovery & Enforcement Act of 1989 and all requirements of the applicable Agency Guidelines, (b) unless approved by the Lender on a case-by-case basis, is not a director, officer or employee of Borrower or any Affiliate of Borrower and, to the actual knowledge of any corporate vice president and/or more senior officer of Borrower (without independent investigation), is not related as the spouse of, or a parent, sibling, child or first cousin of any customer who is a maker, mortgagor, guarantor or assumptor of the related Mortgage Note or Mortgage or of any of Borrower’s or any of its Affiliates’ respective directors or officers or any of their spouses and (c) if selected by Borrower, was selected reasonably and in good faith.
Appraisal Report” means a written report of an Appraisal or a Broker’s Price Opinion of the value of Mortgaged Premises, a signed copy of which is in the possession of Borrower or the Servicer of the related Mortgage Loan, setting forth the relevant appraiser’s or broker’s opinion and method of determination of the fair market value of such Mortgaged Premises, including a statement of all material assumptions made, and dated and signed, by such appraiser or broker, who, and the form of which report, must not be unacceptable to the Lender in its reasonable discretion, it being understood that an appraisal on a form generally acceptable to an Agency will be acceptable to the Lender.
Approved Servicing Agreement” means (a) in respect of Agency Servicing Rights, a Servicing Agreement between Borrower and an Agency, (b) in respect of Non-Agency Servicing Rights, a Servicing Agreement between any Person approved by Lender in each case that is not a Recourse Servicing Agreement and (c) with respect of Non-Agency Servicing Rights owned by the Borrower, prudent mortgage loan servicing standards and procedures generally accepted in the mortgage banking industry for mortgage loans of the same type as the Serviced Mortgage Loans in the jurisdiction where Mortgaged Premises is located
Approved Servicing Appraiser” means MountainView Capital Markets or any other servicing appraiser acceptable to the Lender.
    “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
    “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
Borrower” means the Person identified as such in the introductory paragraph hereto, and its successors and assigns to the extent permitted by Section 11.8.
Borrowing” means any advance by Lender to Borrower pursuant to Section 2.
Borrowing Base” means, on any Determination Date, the Collateral Values of the Eligible Servicing Rights that are then Pledged to the Lender; provided that, at any time, the portion of the Borrowing Base attributable to the Non-Agency Servicing Rights shall not exceed 15% of the total Borrowing Base.
Borrowing Base Deficiency” has the meaning for such term set forth in Section 3.2(b).
Borrowing Base Report” means, as of any date of preparation, a certificate, substantially in the form of Exhibit A as set forth in the Pricing Side Letter, prepared by and certified by a Responsible Officer.
Borrowing Request Form” means a certificate, in a form approved by Lender, properly completed and signed by Borrower requesting a Borrowing, which certificate shall include a List of Eligible Agency Servicing Rights, a calculation of the Borrowing Base and such other supporting
    2    Credit and Security Agreement


documentation and information that the Lender may reasonably request, and that, when appropriately completed and submitted with the foregoing required documentation attached, may include requests for Borrowings to finance Eligible Agency Servicing Rights.
Broker’s Price Opinion” means the written opinion of the value of Mortgaged Premises, issued by a real estate broker duly licensed as such by the jurisdiction in which such Mortgaged Premises are located, reasonably acceptable to the Lender and that is not an Affiliate of Borrower or of any of Borrower’s or its Subsidiaries’ or Affiliates’ directors, members, managers or officers and is not an employee of any of them, selected reasonably and in good faith by Borrower.
Business Day” has the meaning assigned to it in the Revolving Credit Note.
Capitalized Lease Obligation” means, with respect to any Person, the amount of Debt under a lease of Property by such Person that would be shown as a liability on a balance sheet of such Person prepared for financial reporting purposes in accordance with GAAP.
“Change of Control” means the occurrence of either of the following: (i) the Sponsor and its Controlled Investment Affiliates and Anthony Hsieh and his Family Affiliates, collectively, cease to own, directly or indirectly, at least 50.01% of Borrower or (ii) Anthony Hsieh and his Family Affiliates, collectively, cease to own, directly or indirectly, at least 25% of Borrower.

“Closing Date” has the meaning set forth in the introductory paragraph hereto.
Code” means the Internal Revenue Code of 1986.
Collateral” has the meaning for such term set forth in Section 4.1; provided, however, that “Collateral” shall not include any Excluded Collateral.
Collateral Value” means, as of any Determination Date, 65.0% of the Market Value of all Eligible Agency Servicing Rights as updated for the most recent unpaid principal balance and as most recently determined by a Servicing Appraisal. Such value shall be as determined in accordance with the terms and conditions of this Agreement. The Lender may accept as correct any value proposed by Borrower that is not obviously and materially incorrect on its face, and each determination by the Lender of Collateral Value (and of each element of each such determination, including Market Value) may be computed using any reasonable averaging, interpolation and attribution method and, absent manifest error, shall be conclusive and binding.
Commitment” means the obligation of Lender to make Borrowings pursuant to Section 2 in an aggregate principal amount at any time outstanding up to but not exceeding $248,000,000, subject, however, to increase pursuant to Section 2.6 and termination pursuant to Section 10.2.
Compliance Certificate” means a certificate, substantially in the form of Exhibit B as set forth in the Pricing Side Letter, prepared by and certified by a Responsible Officer.
Constituent Documents” means (a) in the case of a corporation, its articles or certificate of incorporation and bylaws; (b) in the case of a general partnership, its partnership agreement; (c) in the case of a limited partnership, its certificate of limited partnership and partnership agreement; (d) in the case of a trust, its trust agreement; (e) in the case of a joint venture, its joint venture agreement; (f) in the case of a limited liability company, its certificate of formation and limited liability company agreement; and; and (g) in the case of any other entity, its organizational and governance documents and agreements.
Consumer Lending Business” means the businesses of (i) making residential mortgage loans and other secured and unsecured loans to borrowers who are primarily consumers (as opposed to commercial entities) and (ii) providing real estate services.
Controlled Investment Affiliates” means, with respect to Sponsor, any fund or investment vehicle that (i) is organized by Sponsor for the purpose of making investments in one or more companies
    3    Credit and Security Agreement


and is controlled by Sponsor or (ii) has the same principal fund advisor or manager as Sponsor or an Affiliate of such advisor or manager (provided that for purposes of the use of the term “Affiliate” in this definition, the term “control” shall have a control threshold of a majority (more than 50%) rather than 20%). For purposes of this definition “control” means the power to direct or cause the direction of management and policies of a Person, whether by contract or otherwise
Customer” means and includes each maker of a Mortgage Note and each cosigner, guarantor, endorser, surety and assumptor thereof, and each mortgagor or grantor under a Mortgage, whether or not such Person has personal liability for its payment of the Mortgage Loan evidenced or secured thereby, in whole or in part.
Debt” means, of any Person as of any date of determination (without duplication): (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, notes, debentures, or other similar instruments; (c) all obligations of such Person to pay the deferred purchase price of Property or services, except trade accounts payable of such Person arising in the Ordinary Course of Business that are not past due by more than ninety (90) days; (d) all Capitalized Lease Obligations of such Person; (e) all Debt or other obligations of others Guaranteed by such Person; (f) all obligations secured by a Lien existing on Property owned by such Person, whether or not the obligations secured thereby have been assumed by such Person or are non-recourse to the credit of such Person; (g) any other obligation for borrowed money or other financial accommodations which in accordance with GAAP would be shown as a liability on the balance sheet of such Person; (h) any repurchase obligation or liability of a Person with respect to accounts, chattel paper or notes receivable sold by such Person; (i) any liability under a sale and leaseback transaction that is not a Capitalized Lease Obligation; (j) any obligation under any so-called “synthetic leases;” (k) any obligation arising with respect to any other transaction that is the functional equivalent of borrowing but which does not constitute a liability on the balance sheets of a Person; (l) all payment and reimbursement obligations of such Person (whether contingent or otherwise) in respect of letters of credit, bankers’ acceptances, surety or other bonds and similar instruments; and (m) all liabilities of such Person in respect of unfunded vested benefits under any Plan.
Default” means the occurrence of an event or condition which with notice or lapse of time or both would become an Event of Default.
Default Interest Rate” has the meaning assigned to it in the Revolving Credit Note.
Defaulted Mortgage Loan” means, a Mortgage Loan with respect to which any Mortgage Note payment or escrow payment is unpaid for 30 days or more after its due date (whether or not Borrower has allowed any grace period or extended the due date thereof by any means) or another material default has occurred and is continuing, including the commencement of foreclosure proceedings or the commencement of a case in bankruptcy for any Customer under such Mortgage Loan.
Designated Agency” means an Agency that is a party to one or more Approved Servicing Agreements.
Determination Date” means the date as of, or for, which a specified subject matter is being determined for purposes of a provision of this Agreement or another Loan Document.
Dollars” and “$” mean lawful money of the United States of America.
Eligible Servicing Rightsmeans, as of any Determination Date, Pledged Servicing Rights as to which each of the representations and warranties with respect to such Servicing Rights set forth in this Agreement are true and correct on the date of each Borrowing and the date of each submission of a Borrowing Base Report, including, without limitation: (a) such Servicing Rights are held by Borrower giving Borrower the right to service (and be compensated as servicer for servicing) a portfolio of Single-family Mortgage Loans pursuant to an Approved Servicing Agreement, (b) such Servicing Rights have not been rejected by the Lender, (c) such Servicing Rights are held by Borrower free and clear of all Liens (other than the Lender’s Lien) and the Lender has been granted and continues to hold a readily enforceable, first priority perfected Lien on such Servicing Rights, subject and subordinate to all rights,
    4    Credit and Security Agreement


powers and prerogatives of Freddie Mac under and in connection with the Freddie Mac Guide and the Purchase Documents (as defined in the Freddie Mac Guide) or any owner of the related Mortgage Loan, (d) in the case of each Servicing Agreement between Borrower and any Agency, is subject to an Acknowledgment Agreement with such Agency, (e) the Mortgage Loans related to such Servicing Rights are with a holder or custodian for a holder of such Mortgage Loans who is acceptable to the Lender, (f) the Servicing Agreement related to such Servicing Rights is not a subservicing arrangement, (g) the Servicing Agreement related to such Servicing Rights is in full force and effect and is legal, valid and enforceable in accordance with its terms, and no default or event that, with notice or lapse of time or both, would become a default, exists under such Servicing Agreement and (h) Borrower’s rights to payment under the related Servicing Agreement are genuine and enforceable without defense, offset, bona fide counterclaim or bona fide defense.
Environmental Laws” means any and all federal, state, and local laws, regulations, judicial decisions, orders, decrees, plans, rules, permits, licenses, and other governmental restrictions and requirements pertaining to health, safety, or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., and the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.
Environmental Liabilities” means, as to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs, and expenses (including, without limitation, all reasonable fees, disbursements and expenses of counsel, expert and consulting fees and costs of investigation and feasibility studies), fines, penalties, sanctions, and interest incurred as a result of any claim or demand, by any Person, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute, including any Environmental Law, permit, order or agreement with any Governmental Authority or other Person, arising from environmental, health or safety conditions or the Release or threatened Release of a Hazardous Material into the environment, resulting from the past, present, or future operations of such Person or its Affiliates.
ERISA” means the Employee Retirement Income Security Act of 1974.
ERISA Affiliate” means any corporation or trade or business which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as Borrower or any Obligated Party or is under common control (within the meaning of Section 414(c) of the Code and Sections 414(m) and (o) of the Code for purposes of the provisions relating to Section 412 of the Code) with Borrower or any Obligated Party.
ERISA Event” means (a) a Reportable Event with respect to a Plan, (b) a withdrawal by Borrower or any Obligated Party or any ERISA Affiliate from a Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as such a withdrawal under Section 4062(e) of ERISA, (c) a complete or partial withdrawal by Borrower or any Obligated Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization, (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Plan or Multiemployer Plan, (e) the occurrence of an event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan, (f) the imposition of any liability to the PBGC under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower or any Obligated Party or any ERISA Affiliate, (g) the failure of Borrower or any Obligated Party or ERISA Affiliate to meet any funding obligations with respect to any Plan or Multiemployer Plan, or (h) a Plan becomes subject to the at-risk requirements in Section 303 of ERISA and Section 430 of the Code.
Event of Default” has the meaning set forth in Section 10.1.
    5    Credit and Security Agreement


Excluded Collateral” means (a) Agency Servicing Rights that as of the Closing Date are identified as “Excluded Collateral” on Schedule 4.1(a)(1) delivered by Borrower to Lender on the Closing Date and (b) payments of principal, interest, taxes and/or insurance made by Borrower in respect of a Mortgage Loan owned or guaranteed by Freddie Mac.
Excluded Taxes” means any of the following Taxes imposed on or with respect to a recipient or required to be withheld or deducted from a payment to a recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Borrowings or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Borrowings or Commitment or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.3, amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such recipient’s failure to comply with Section 3.3 and (d) any U.S. federal withholding Taxes imposed under FATCA.
Existing Unsecured Term Loan” means the $250,000,000 unsecured term loan dated as of August 3, 2017, among loanDepot.com, LLC, as borrower and US Bank National Association, as Paying Agent.
Facility Increase Request” means a notice substantially in the form of Exhibit C as set forth in the Pricing Side Letter pursuant to which Borrower requests an increase in the amount of the Maximum Commitment in accordance with Section 2.06.
    “Family Affiliates” means any member of Anthony Hsieh’s family or trust established or controlled by Anthony Hsieh.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.
Fitch” means Fitch Ratings, Inc., or any successor thereto.
Freddie Mac” means the Federal Home Loan Mortgage Corporation and any successor.
Freddie Mac Guide” shall mean the Freddie Mac Single-Family Seller/Servicer Guide, as it may be amended from time to time.
GAAP” means generally accepted accounting principles, applied on a consistent basis, as set forth in opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants and/or in statements of the Financial Accounting Standards Board and/or their respective successors and which are applicable in the circumstances as of the date in question. Accounting principles are applied on a “consistent basis” when the accounting principles applied in a current period are comparable in all material respects to those accounting principles applied in a preceding period.
Governmental Authority” means any nation or government, any state or political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, or administrative functions of or pertaining to government.
Guarantee” by any Person means any obligation or liability, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt or other obligation of any other Person as well as any obligation or liability, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation or liability (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets,
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goods, securities or services, to operate Property, to take-or-pay, or to maintain net worth or working capital or other financial statement conditions or otherwise) or (b) entered into for the purpose of indemnifying or assuring in any other manner the obligee of such Debt or other obligation or liability of the payment thereof or to protect the obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the Ordinary Course of Business. The term “Guarantee” used as a verb has a corresponding meaning.
Hazardous Material” means any substance, product, waste, pollutant, material, chemical, contaminant, constituent, or other material which is or becomes listed, regulated, or addressed under any Environmental Law, including, without limitation, asbestos, petroleum, and polychlorinated biphenyls.
Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under this Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
Intellectual Property” means all copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses and other types of intellectual property, in whatever form, now owned or hereafter acquired.
Interest Credit” has the meaning set forth in Section 2.3.
Interest Rate Sensitivity Analysis” means an analysis with respect to the Serviced Loans that demonstrates the effect of a 25 basis point, 50 basis point, and 100 basis point increase and decrease in market interest rates on such Serviced Loans.
IRS” means the Internal Revenue Service or any entity succeeding to all or any of its functions.
I-Unitholder” means each holder of a Class I Common Unit of LD Holdings, which have no voting rights but are entitled to distributions under certain circumstances as described in LD Holdings’ limited liability company agreement.

Laws” means any law, statute, code, ordinance, order, rule, regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or other determination, direction or requirement (including any of the foregoing which relate to environmental standards or controls, energy regulations and occupational safety and health standards or controls) of any (domestic or foreign) arbitrator, court or other Governmental Authority.

LD Holdings” shall mean LD Holdings Group LLC, a Delaware limited liability company.

LD Investment Holdings” shall mean LD Investment Holdings, a Delaware corporation.

Lender” means the Person identified as such in the introductory paragraph hereto, and includes its successors and assigns.
Lien” means any lien, mortgage, security interest, tax lien, pledge, charge, hypothecation, assignment, preference, priority, or other encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or title retention agreement), whether arising by contract, operation of law, or otherwise, but not including any licenses to use any Intellectual Property granted by Borrower in the Ordinary Course of Business.
List of Eligible Servicing Rights” means a list in a form acceptable to the Lender, signed by a Responsible Officer and submitted to the Lender from time to time with the Borrowing Request Form listing all Mortgage Loans related to the Pledged Servicing Rights (Mortgage Loans in pools shall be listed by pool number although the Lender shall have the right to require lists of Mortgage Loans in such pools) and stating the portion of the current Borrowing Base evidenced by such Pledged Servicing Rights.
Loan” means any Borrowing.
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Loan Documents” means this Agreement, the Security Documents, the Revolving Credit Note, the Pricing Side Letter and all other promissory notes, security agreements, deeds of trust, assignments, letters of credit, guaranties, and other instruments, documents, or agreements executed and delivered pursuant to or in connection with this Agreement or the Security Documents.
LTV Ratio” means, at any time, the ratio of (a) the outstanding principal amount of the Revolving Credit Note to (b) the Market Value of all Eligible Servicing Rights as updated for the most recent unpaid principal balance and as most recently determined by a Servicing Appraisal as determined in accordance with the terms and conditions of this Agreement.
“Mandatory Prepayment Event” has the meaning set forth in Section 3.2(b).
Market Value” means, with respect to any Servicing Rights, as of any Determination Date, the value for such Servicing Rights that is equal to the product of (a) the low end price of such Servicing Rights (stated as a percentage of the unpaid principal balance of the subject Serviced Loans) as determined by the most recent (no less than monthly) appraisal thereof by an Approved Servicing Appraiser and stated in a Servicing Appraisal (provided, however, that if no range of prices for such Servicing Rights is available, then the price shall be the stated fair market value of the Servicing Rights as determined by the Approved Servicing Appraiser) times (b) the aggregate principal balances on the relevant Determination Date of the Servicing Portfolio. The appraised value shall be determined by an Approved Servicing Appraiser selected by Borrower; provided, however, that if a Default has occurred that has not been cured by Borrower or an Event of Default has occurred that has not been declared in writing by the Lender to have been cured or waived, then (i) Lender, in its sole discretion, may select and approve the Approved Servicing Appraiser that will determine such value and/or (ii) the Lender, using its customary methods, systems and procedures, may in its reasonably discretion determine such value, taking into account customary factors, including current market conditions and the fact that the Servicing Rights may be sold or otherwise disposed of (including termination by settlement agreement with the counterparty to the relevant Servicing Agreement). The Lender’s determination of Market Value hereunder shall be conclusive and binding upon the parties, absent manifest error.
Material Adverse Event” means any act, event, condition, or circumstance which could materially and adversely affect: (a) the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of Borrower or Borrower and its Subsidiaries, taken as a whole; (b) the ability of Borrower or any Obligated Party to perform its obligations under any Loan Document to which it is a party; or (c) the legality, validity, binding effect or enforceability against Borrower or any Obligated Party of any Loan Document to which it is a party.
Maximum Commitment” has the meaning set forth in the Pricing Side Letter.
Maximum Rate” means, at all times, the maximum rate of interest which may be charged, contracted for, taken, received or reserved by Lender in accordance with applicable Texas law (or applicable United States federal law to the extent that such law permits Lender to charge, contract for, receive or reserve a greater amount of interest than under Texas law). The Maximum Rate shall be calculated in a manner that takes into account any and all fees, payments, and other charges in respect of the Loan Documents that constitute interest under applicable law. Each change in any interest rate provided for herein based upon the Maximum Rate resulting from a change in the Maximum Rate shall take effect without notice to Borrower at the time of such change in the Maximum Rate.
MBS” means a mortgage pass-through security, collateralized mortgage obligation, REMIC or other security that (a) is based on and backed by an underlying pool of Mortgage Loans and (b) provides for payment by its issuer to its holder of specified principal installments and/or a fixed or floating rate of interest on the unpaid balance and for prepayments to be passed through to the holder, whether issued in certificated or book-entry form and whether or not issued, guaranteed, insured or bonded by an Agency, an insurance company, a private issuer or any other Person.
MERS” means Mortgage Electronic Registration Systems, Inc., or any successor thereto.
Moody’s” means Moody’s Investors Service, Inc. or any successors thereto.
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Mortgage” means a mortgage, deed of trust, deed to secure debt, security deed or other mortgage instrument or similar evidence of lien legally effective in the U.S. jurisdiction where the relevant real property is located to create and constitute a valid and enforceable Lien, subject only to Liens permitted under Section 8.2 hereunder, on the fee simple or long term ground leasehold estate in improved real property.
Mortgage Loan” means any loan evidenced by a Mortgage Note and includes all right, title and interest of the lender or mortgagee of such loan as a holder of both the beneficial and legal title to such loan, including (a) all loan documents, files and records of the lender or mortgagee for such loan, (b) the monthly payments, any prepayments, insurance and other proceeds, (c) the unseparated rights to service such loan and (d) all other rights, interests, benefits, security, proceeds, remedies and claims in favor or for the benefit of the lender or mortgagee arising out of or in connection with such loan.
Mortgage Note” means a promissory note secured by a Mortgage.
Mortgaged Premises” means the Property securing a Mortgage Note.
Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions are being made or have been made by, or for which there is an obligation to make by or there is any liability, contingent or otherwise, with respect to Borrower or any Obligated Party or any ERISA Affiliate and which is covered by Title IV of ERISA.
Non-Agency Servicing Rights” means all of Borrower’s rights and interests under any Servicing Agreement between Borrower and any Person (other than any Agency), including the rights to (a) service the Serviced Loans that are the subject matter of such Servicing Agreement and (b) be compensated, directly or indirectly, for doing so.
Obligated Party” means Borrower or any other Person who is or becomes party to any agreement that obligates such Person to pay or perform, or that Guarantees or secures payment or performance of, the Obligations or any part thereof.
Obligations” means all obligations, indebtedness, and liabilities of Borrower and any other Obligated Party to Lender or any Affiliate of Lender, or both, now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, including, without limitation, the obligations, indebtedness, and liabilities under this Agreement, the other Loan Documents, any and all guarantees executed by Borrower or any other Obligated Party in favor of Lender for third-party indebtedness, any cash management or treasury services agreements and all interest accruing thereon (whether a claim for post-filing or post-petition interest is allowed in any bankruptcy, insolvency, reorganization or similar proceeding) and all attorneys’ fees and other expenses incurred in the enforcement or collection thereof.
OFAC” means the U.S. Department of Treasury, Office of Foreign Assets Control.
“Ordinary Course of Business” means the ordinary course of the respective businesses of Borrower and any Obligated Party, consistent with past practice, but excluding any event, action, circumstance or omission that would constitute or give rise to (a) a violation of applicable law, (b) a breach, default or violation of any contract of Borrower or any Obligated Party or (c) a breach of any representation, warranty or covenant of Borrower or any Obligated Party set forth in the Loan Documents.
“Organic Change” means any of the following: (a) any sale, assignment, lease conveyance, exchange, transfer, sale-leaseback or other disposition of substantially all of the assets, business, equity securities or properties of Borrower, whether in one or a series of transactions, other than in the Ordinary Course of Business and whether or not directly or indirectly or through the sale or other disposition of equity securities of any of the other Subsidiaries of Borrower, and (b) any (i) merger, consolidation or other combination to which Borrower or any its Subsidiaries is a party or (ii) liquidation, winding up or dissolution of Borrower or any of its Subsidiaries, other than (1) those not prohibited elsewhere in this Agreement (2) the merger of Borrower with an Affiliate organized solely for the purpose of reorganizing
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Borrower in another jurisdiction to realize tax or other benefits and (3) those transactions expressly consented to in writing by the Lender.
Other Connection Taxes” means, with respect to any recipient, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax.
Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement.
Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56, signed into law October 26, 2001).
PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to all or any of its functions under ERISA.
"Permitted Distributions" means (a)Tax Distributions and (b) any I-Unitholder distributions.

Person” means any individual, corporation, limited liability company, business trust, association, company, partnership, joint venture, Governmental Authority, or other entity, and shall include such Person’s heirs, administrators, personal representatives, executors, successors and assigns.
Plan” means any employee benefit or other plan, other than a Multiemployer Plan, established or maintained by, or for which there is an obligation to make contributions by or there is any liability, contingent or otherwise with respect to Borrower or any ERISA Affiliate and which is covered by Title IV of ERISA or subject to Section 412 of the Code.
Pledged Servicing Rights” has the meaning set forth in Section 4.1(a).
Pledged to the Lender” means:
(a) for Servicing Rights, Servicing Rights that satisfy the definition of “Servicing Rights” set forth herein and have been duly pledged by Borrower to the Lender; and have not been released from the Lien hereunder;
(b) [reserved];
(c) for any investment securities or deposit account, that such investment securities or deposit account have been made subject to a control agreement executed by the relevant securities intermediary or depository and the Lender that gives control of such investment securities or deposit account to the Lender; and
(d) for any other type of property, that Borrower has granted to the Lender a Lien therein and have taken all steps required under applicable Law to perfect such Lien as a first and prior Lien and security interest in all of Borrower’s present and future right, title and interest therein.
Pricing Side Letter” means that certain Pricing Side Letter dated as of April [__], 2022 entered into by and among Borrower and Lender, as amended, modified, supplemented, or restated from time to time.
Principal Office” means the principal office of Lender, presently located at 2515 McKinney Avenue, Suite 1100, Dallas, Texas 75201.
Prohibited Transaction” means any transaction set forth in Section 406 of ERISA or Section 4975 of the Code.
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Property” of a Person means any and all property, whether real, personal, tangible, intangible or mixed, of such Person, or any other assets owned, operated or leased by such Person, including the Collateral.
Recourse Servicing Agreement” means a Servicing Agreement with respect to which the servicer is obligated to repurchase or indemnify the holder of the related Mortgage Loans in respect of defaults on such Mortgage Loans at any time during the term of such Mortgage Loans.
Related Indebtedness” has the meaning set forth in Section 11.20.
Release” means, as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, disbursement, leaching, or migration of Hazardous Materials into the indoor or outdoor environment or into or out of property owned by such Person, including, without limitation, the movement of Hazardous Materials through or in the air, soil, surface water, ground water, or Property.
Remedial Action” means all actions required to (a) clean up, remove, treat, or otherwise address Hazardous Materials in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release of Hazardous Materials so that they do not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment, or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care.
REO Property” means a Mortgaged Premises acquired by Borrower on behalf of a MBS trust through foreclosure or deed-in-lieu of foreclosure.
Reportable Event” means any of the events set forth in Section 4043 of ERISA.
Responsible Officer” means the chief executive officer, president, chief financial officer, chief capital markets officer, chief accounting officer or treasurer of Borrower or any Person designated by a Responsible Officer to act on behalf of a Responsible Officer; provided that such designated Person may not designate any other Person to be a Responsible Officer. Any document delivered hereunder that is signed by a Responsible Officer of Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of Borrower.
Revolving Credit Note” means the Eighteenth Amended and Restated Promissory Note, dated December [__], 2021, made by Borrower payable to the order of Lender, as amended or restated from time to time.
Secured Parties” means the collective reference to Lender and any other Person the Obligations owing to which are, or are purported to be, secured by the Collateral under the terms of the Security Documents.
Security Documents” means each and every security agreement, pledge agreement, mortgage, deed of trust or other collateral security agreement required by or delivered to Lender from time to time that purport to create a Lien in favor of any of the Secured Parties to secure payment or performance of the Obligations or any portion thereof.
Serviced Loans” means all Mortgage Loans serviced or required to be serviced by Borrower under any Servicing Agreement, irrespective of whether the actual servicing is done by another Person (a subservicer) retained by Borrower for that purpose.
Servicer” means a Person (which may, or shall, mean Borrower if the context permits, or requires, it) retained by the owner (or a trustee for the owner) of Mortgage Loans to service them under a Servicing Agreement.
Servicer Downgrade Event” means, if applicable, a servicer rating for Borrower, a Servicer or any sub-servicer is downgraded one or more levels below SQ3 by Moody’s or RPS3 by Fitch.
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Servicing Agreement” means, with respect to any Person, the arrangement pursuant to which that Person acts as servicer of Mortgage Loans, whether or not any of such Mortgage Loan is owned by such Person, including each Approved Servicing Agreement and, if applicable, the Agency Guidelines.
Servicing Appraisal” means a written appraisal or evaluation by an Approved Servicing Appraiser evaluating the fair market value of all of the Pledged Servicing Rights as of a date stated in the written report of such evaluation, each such evaluation and report to be made at Borrower’s expense, to be addressed to the Lender and to be in a form reasonably acceptable to the Lender, it being understood that, for purposes of this Agreement, (i) if the opinion of value in any such independent appraisal or evaluation is expressed as a range of values, then for purposes of this Agreement, the Market Value shall be deemed the low end price of the range (ii) each Servicing Appraisal shall take into account customary factors, including current market conditions and the fact that the Servicing Rights may be terminated by the relevant Servicing Agreement’s counterparty, or sold or otherwise disposed of, under circumstances where Borrower is in default under this Agreement and (iii) each Servicing Appraisal shall include an Interest Rate Sensitivity Analysis. Borrower acknowledges that each Approved Servicing Appraiser’s determination of market value is for the limited purpose of determining an advance rate for purposes of the financing provided in this Agreement
Servicing Payment Account” means Borrower’s non-interest bearing demand deposit account to be maintained with Lender and to be used for (a) the Lender’s deposits of proceeds of Loans made by the Lender to Borrower, and payments constituting the sale proceeds of principal from any Collateral (other than regular principal and interest payments on the Collateral); (b) the Borrower’s deposits of principal and interest payments for the repayment of Loans which payments are made by or on account of Borrower and (c) only if and when (i) no Default has occurred unless it has been either cured by Borrower or waived in writing by the Lender and (ii) no Event of Default has occurred unless the Lender has declared in writing that it has been cured or waived, the Lender’s transfer to Borrower’s designated operating account (or to a controlled disbursement account maintained by Borrower with the Lender) of proceeds of sales or other dispositions of released Collateral permitted hereunder. The Servicing Payment Account shall be a blocked and controlled account from which, if a Default or Event of Default has occurred and is continuing, Borrower shall have no right to directly withdraw funds, but instead such funds may be withdrawn or paid out only against the order of an authorized officer of the Lender.
Servicing Portfolio” means Borrower’s entire portfolio of Serviced Loans.
Servicing Rights” means, collectively, the Agency Servicing Rights and the Non-Agency Servicing Rights.
Single-family” is a preface that means that a Mortgage Loan is secured by a Mortgage covering real property improved by a one-, two-, three- or four-family residence.
Sponsor” means LD Investment Holdings.
Subsidiary” means (a) any corporation of which at least a majority of the outstanding shares of stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether or not at the time stock of any other class or classes of such corporation 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 Borrower or one or more of other Subsidiaries or by Borrower and one or more of such Subsidiaries, and (b) any other entity (i) of which at least a majority of the ownership, equity or voting interest is at the time directly or indirectly owned or controlled by one or more of Borrower and other Subsidiaries and (ii) which is treated as a subsidiary in accordance with GAAP.
Tax Distributions” means distributions by the Borrower for the purpose of enabling LD Holdings to make Tax Distributions, as defined and set forth in the limited liability company agreement of LD Holdings.
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Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
Termination Date” means 11:00 A.M. Dallas, Texas time on June 30, 2021, such later date as shall be established pursuant to Section 2.5 or such earlier date on which the Commitment terminates as provided in this Agreement.
UCC” means Chapters 1 through 11 of the Texas Business and Commerce Code.
“Unfunded Pension Liability” means the excess, if any, of (a) the funding target as defined under Section 430(d) of the Code without regard to the special at-risk rules of Section 430(i) of the Code, over (b) the value of plan assets as defined under Section 430(g)(3)(A) of the Code determined as of the last day of each calendar year, without regard to the averaging which may be allowed under Section 310(g)(3)(B) of the Code and reduced for any prefunding balance or funding standard carryover balance as defined and provided for in Section 430(f) of the Code.
Section 1.2Accounting Matters.
Any accounting term used in this Agreement or any other Loan Document shall have, unless otherwise specifically provided therein, the meaning customarily given such term in accordance with GAAP, and all financial computations thereunder shall be computed, unless otherwise specifically provided therein, with respect to Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; provided, however, that all financial covenants and calculations in the Loan Documents shall be made in accordance with GAAP as in effect on the date of this Agreement unless Borrower and Lender shall otherwise specifically agree in writing. That certain items or computations are explicitly modified by the phrase “in accordance with GAAP” shall in no way be construed to limit the foregoing
Section 1.3ERISA Matters.
If, after the date hereof, there shall occur, with respect to ERISA, the adoption of any applicable law, rule, or regulation, or any change therein, or any change in the interpretation or administration thereof by the PBGC or any other Governmental Authority, then Borrower or Lender may request a modification to this Agreement solely to preserve the original intent of this Agreement with respect to the provisions hereof applicable to ERISA, and the parties to this Agreement shall negotiate in good faith to complete such modification.
Section 1.4Other Definitional Provisions.
All definitions contained in this Agreement are equally applicable to the singular and plural forms of the terms defined. The words “hereof”, “herein”, and “hereunder” and words of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear. Terms used herein that are defined in the UCC, unless otherwise defined herein, shall have the meanings specified in the UCC. Any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document). Any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time. Unilateral revisions by an Agency to its Agency Guidelines, its seller or servicing guide or its other publications or rules shall not constitute an “amendment” of a Servicing Agreement for purposes of this Agreement.
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SECTION 2Borrowings
Section 2.1Borrowings.
(a)Borrowings. Subject to the terms and conditions of this Agreement, Lender agrees to make one or more revolving credit loans to Borrower from time to time from the date hereof to and including the Termination Date in an aggregate principal amount at any time outstanding up to but not exceeding the amount of the Commitment, provided that the aggregate amount of all Borrowings at any time outstanding shall not exceed the lesser of (i) the amount of the Commitment and (ii) the Borrowing Base. Subject to the foregoing limitations, and the other terms and provisions of this Agreement, Borrower may borrow, repay, and reborrow hereunder. No Loan shall be funded or held with “plan assets” within the meaning of Section 3(42) of ERISA.
(i)The Revolving Credit Note. The obligation of Borrower to repay the Borrowings and interest thereon shall be evidenced by the Revolving Credit Note executed by Borrower, and payable to the order of Lender, in the principal amount of the Commitment as originally in effect.
(ii)Repayment of Borrowings. Borrower shall repay the unpaid principal amount of all Borrowings on (A) in the case of Loans that are not converted to a term loan pursuant to Section 2.07, the Termination Date, and (B) in the case of Loans that are converted to a term loan pursuant to Section 2.07, on the Term Loan Maturity Date, in each case unless sooner due by reason of acceleration by Lender as provided in this Agreement.
(iii)Interest. The unpaid principal amount of the Borrowings shall, subject to the following sentence, bear interest as provided in the Revolving Credit Note. If at any time the rate of interest specified in the Revolving Credit Note would exceed the Maximum Rate but for the provisions thereof limiting interest to the Maximum Rate, then any subsequent reduction shall not reduce the rate of interest on the Borrowings below the Maximum Rate until the aggregate amount of interest accrued on the Borrowings equals the aggregate amount of interest which would have accrued on the Borrowings if the interest rate had not been limited by the Maximum Rate. Accrued and unpaid interest on the Borrowings shall be payable as provided in the Revolving Credit Note and on the Termination Date.
(iv)Borrowing Procedure. Borrower shall give Lender notice of each Borrowing by means of a Borrowing Request Form containing the information required therein and delivered (by hand or by mechanically confirmed facsimile) to Lender no later than 1:00 p.m. (Dallas, Texas time) on the day on which the Borrowing is desired to be funded. Lender at its option may accept telephonic requests for such Borrowings, provided that such acceptance shall not constitute a waiver of Lender’s right to require delivery of a Borrowing Request Form in connection with subsequent Borrowings. Any telephonic request for a Borrowing by Borrower shall be promptly confirmed by submission of a properly completed Borrowing Request Form to Lender, but failure to deliver a Borrowing Request Form shall not be a defense to payment of the Borrowing. Lender shall have no liability to Borrower for any loss or damage suffered by Borrower as a result of Lender’s honoring of any requests, execution of any instructions, authorizations or agreements or reliance on any reports communicated to it telephonically, by facsimile or electronically and purporting to have been sent to Lender by Borrower and Lender shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it. Subject to the terms and conditions of this Agreement, each Borrowing shall be made available to Borrower by depositing the same, in immediately available funds, in an account of Borrower designated by Borrower maintained with Lender at the Principal Office. If, after giving effect to a requested Borrowing, there is a Borrowing Base Deficiency, or if the Lender determines (either then or on any later day in the course of reviewing the same) that the Borrowing Request Form submitted to it is incomplete or incorrect in any material respect, then the Lender
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shall withhold the entire Borrowing until Borrower shall have demonstrated to the Lender’s reasonable satisfaction that such Borrowing Request Form is in fact not (or is no longer) incomplete or incorrect in any material respect.
Section 2.2General Provisions Regarding Interest; Etc.
(a)Default Interest Rate. Any outstanding principal of any Borrowing and (to the fullest extent permitted by law) any other amount payable by Borrower under this Agreement or any other Loan Document that is not paid in full when due (whether at stated maturity, by acceleration, or otherwise) shall bear interest at the Default Interest Rate for the period from and including the due date thereof to but excluding the date the same is paid in full. Additionally, at any time that an Event of Default exists, all outstanding and unpaid principal amounts of all of the Obligations shall, to the extent permitted by law, bear interest at the Default Interest Rate. Interest payable at the Default Interest Rate shall be payable from time to time on demand.
(b)Computation of Interest. Interest on the Borrowings and all other amounts payable by Borrower hereunder shall be computed on the basis of a year of 360 days and the actual number of days elapsed (including the first day but excluding the last day) unless such calculation would result in a usurious rate, in which case interest shall be calculated on the basis of a year of 365 or 366 days, as the case may be.
Section 2.3Reserved.
Section 2.4Use of Proceeds.
The proceeds of the Borrowings shall be used by Borrower for (a) acquiring mortgage servicing rights and assets related thereto and (b) other working capital needs and general corporate purposes of the Borrower.
Section 2.5Extension of Termination Date. So long as no Event of Default shall have occurred and be continuing on the date on which notice is given to Lender at least thirty (30) days, but no more than sixty (60) days, prior to the Termination Date then in effect, Borrower may extend the Termination Date to a date that is three hundred and sixty-four (364) days after the then-effective Termination Date, no more than two times, upon delivery by Borrower to Lender of: (a) a written request therefor; and (b) a certificate of Borrower dated the date of such request stating that (i) no Default or Event of Default then exists and is continuing and (ii) Borrower is in compliance with the financial covenants set forth in Section 2 of the Pricing Side Letter. Such extension shall be evidenced by delivery of written confirmation of the same by Lender to Borrower.
Section 2.6Increase in the Maximum Commitment.
(a)Lender may, in its sole discretion, at the request of Borrower, increase the Commitment to the amount requested by the Borrower by increasing its Commitment, subject to the following conditions and Section 1(a)i)(1)(b):
(i)Borrower has delivered to Lender the Facility Increase Request no less than 10 Business Days prior to the date of the proposed increase;
(ii)The Borrower has executed a replacement Note payable to the order of Lender in the outstanding principal amount of the increased Commitment;
(iii)After giving effect to the increase in the Commitment, the Maximum Commitment will not exceed the Maximum Commitment as set forth in the Pricing Side Letter;
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(iv)No Event of Default or Default has occurred and is continuing or would result from such increase in the Commitment;
(v)No Material Adverse Event has occurred;
(vi)Borrower is in compliance with the financial covenants set forth in Section 2 of the Pricing Side Letter;
(vii)As of the date of such increase, the representations and warranties contained in Section 6 and in each other Loan Document are true and correct in all material respects, with the same force and effect as if made on and as of such date; except to the extent that such representations and warranties specifically refer to any earlier date, in which case they were true and correct as of such earlier date and except that for the purposes of this Section 2.6, the representations and warranties contained in Section 6.2 will be deemed, as of the date of such increase, to refer to the then-most recent financial statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.1;
(viii)Lender has received written consent from Freddie Mac, consenting to the increase to the Commitment; and
(ix)Lender has provided Borrower with Lender’s written consent to such increase.
(b)Notwithstanding anything to the contrary set forth herein, any increase in the Commitment is subject in all respects to Lender’s prior written consent.
(c)If Lender deems it advisable in its sole discretion, Borrower and Lender agree to execute an amendment to this Agreement, in form and substance acceptable to Lender, to document an increase in the Commitment pursuant to this Section 2.6.
SECTION 3Payments
Section 3.1Method of Payment.
Subject to Section 3.3, all payments of principal, interest, and other amounts to be made by Borrower under this Agreement and the other Loan Documents shall be made to Lender at the Principal Office in Dollars and immediately available funds, without setoff, deduction, or counterclaim, and free and clear of all taxes at the time and in the manner provided in the Revolving Credit Note.
Section 3.2Prepayments.
(a)Voluntary Prepayments. Borrower may prepay all or any portion of the Revolving Credit Note to the extent and in the manner provided for therein.
(b)Mandatory Prepayment. If on any date of valuation, the LTV Ratio is greater than the Aggregate Advance Rate (a “Borrowing Base Deficiency”), then Borrower shall immediately prepay the outstanding principal amount of the Revolving Credit Note in an amount equal to the aggregate amount necessary to eliminate such Borrowing Base Deficiency. Without limiting the foregoing, if at any time any of the following events occurs (each such event, a “Mandatory Prepayment Event”), then, at the option of the Lender, Borrower shall make a mandatory prepayment of the Loan in whole or in part prior to or simultaneously with such Mandatory Prepayment Event: (i) the consummation of an Organic Change; or (ii) the occurrence of a Change of Control. Borrower shall give written notice to Lender of any Mandatory Prepayment Event not less than fifteen (15) nor more than sixty (60) days prior to the proposed closing date thereof, describing in reasonable detail such transaction and the proposed closing date. Upon receipt of such notice, Lender shall have a period of fifteen (15) days in which to notify Borrower of the principal amount of the Loan or portion thereof to be prepaid. Upon receipt of such notice
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from Lender, Borrower covenants and agrees that it shall prepay, on the closing date of such transaction, the Loan or a portion thereof subject to prepayment.
Section 3.3Taxes
(a)Any and all payments by or on account of any obligation of the Borrower under any this Agreement shall be made without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable withholding agent) requires the deduction or withholding of any Tax from any such payment by a withholding agent, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.3 (including by the payment of additional amounts pursuant to this Section 3.3), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (b) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(c)
(i)Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under this Agreement shall deliver to the Borrower, at the time or times reasonably requested by the Borrower, such properly completed and executed documentation reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower as will enable the Borrower to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.3(c)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(ii)Without limiting the generality of the foregoing,
(1)any Lender that is a Person that is a “United States Person,” as defined in Section 7701(a)(30) of the Code (a “U.S. Person”), shall deliver to the Borrower on or prior to the date on which such Lender becomes a Lender under this Agreement (and
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from time to time thereafter upon the reasonable request of the Borrower), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(2)any Lender that is not a U.S. Person shall, to the extent it is legally entitled to do so, deliver to the Borrower (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower, whichever of the following is applicable:
(A) in the case of a Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement, executed originals of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executed originals of IRS Form W-8ECI;
(C) in the case of a Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit D-1 to the effect that such Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E; or
(D) to the extent a Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-2 or Exhibit D-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Lender is a partnership and one or more direct or indirect partners of such Lender are claiming the portfolio interest exemption, such Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit D-4 on behalf of each such direct and indirect partner;
(3)if a payment made to a Lender under this Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower at the time
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or times prescribed by law and at such time or times reasonably requested by the Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (C), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower in writing of its legal inability to do so.

SECTION 4Security
Section 4.1Grant of Security Interest.
As security for the payment of the Borrowings and for the payment and performance of all of the Obligations, Borrower hereby grants to the Lender a first priority security interest, subject to the terms and conditions of the Acknowledgment Agreement, in all of Borrower’s present and future estate, right, title and interest in and to the following (collectively, the “Collateral”) (although Lender does not assume any of Borrower’s or any other liability or obligation under or in respect of any Collateral and such Collateral shall not include Excluded Collateral):
(a)Servicing Rights. “(x) All Agency Servicing Rights (whether classified as instruments, accounts, payment intangibles or general intangibles under the UCC) identified by the Seller/Servicer Numbers 171441 and 156827 and (y) all Non-Agency Servicing Rights (whether classified as instruments, accounts, payment intangibles or general intangibles under the UCC), including those listed on any List of Eligible Servicing Rights or similar list or schedule delivered by Borrower to the Lender from time to time and including those listed on Schedule 4.1(a)(2) hereto or on any update to Schedule 4.1(a)(2) from time to time submitted to the Lender by Borrower (collectively, the “Pledged Servicing Rights”), together with:
(i)all late charges, fees and other servicing compensation under, for or in respect of the Pledged Servicing Rights, whether or not yet accrued, earned, due or payable;
(ii)all of Borrower’s rights to proceeds of any sale or other disposition of Pledged Servicing Rights and to any payment in respect of the transfer or termination of Pledged Servicing Rights by the counterparty to the relevant Servicing Agreement;
(iii)all other present and future rights and interests of Borrower in, to, and under the Pledged Servicing Rights;
(iv)all insurance and claims for insurance effected or held for the benefit of Borrower or the Lender in respect of the Pledged Servicing Rights;
(v)all of the files, certificates, correspondence, appraisals, accounting entries, journals and reports, other information and data owned by Borrower that describe, catalog or list such information or data, or that otherwise directly relate to the Pledged Servicing Rights, and other information and data that is used or useful for managing and administering the Pledged Servicing Rights;
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(vi)all media (tapes, discs, cards, drives, flash memory or any other kind of physical or virtual data or information storage media or systems) owned by Borrower on which is stored only information or data that relates to the Pledged Servicing Rights, and on which no other material information and data that relates to property other than the Pledged Servicing Rights is stored;
(vii)Reserved;
(viii)all distributions on the Pledged Servicing Rights or products and proceeds of the Pledged Servicing Rights, all accounts, payment intangibles and general intangibles arising from, under or in respect of the Pledged Servicing Rights or relating thereto, and all accessions or additions to and all substitutions for any of the Pledged Servicing Rights;
(ix)all instruments, documents, or writings evidencing any monetary obligation, account, payment intangible, general intangible or security interest in any of the Pledged Servicing Rights, whether now existing or hereafter arising, accruing or acquired; and
(x)all security for or claims against others in respect of the Pledged Servicing Rights;
(b)Reserved;
(c)Servicing Payment Account. The Servicing Payment Account and all sums from time to time on deposit in it (excluding the Minimum Servicing Compensation (as defined in the Acknowledgment Agreement));
(d)Reserved;
(e)Other Property. Any other Property acceptable to the Lender and Pledged to the Lender; and
(f)Other Rights. All rights to have and receive any of the Collateral described above, all accessions or additions to and substitutions for any of such Collateral, together with all renewals and replacements of any of such Collateral, all other rights and interests now owned or hereafter acquired by Borrower in, under or relating to any of such Collateral or referred to above and all proceeds of any of such Collateral; all of Borrower’s present and future accounts, payment intangibles and general intangibles arising from or relating to the Servicing Payment Account or any such other Property as may be specifically Pledged to the Lender in writing by Borrower and acceptable to the Lender; any instruments, documents or writings evidencing any monetary obligation, contract right, account or security interest in any of such property or its proceeds accruing or accrued and all other rights and interests in and to any and all security for or claims against others in respect of any of the property described or referred to above in this Section 4.1; all books, records, contract rights, instruments, documents (including all documents of title), chattel paper and proceeds relating to, arising from or by virtue of or collections with respect to, or comprising part of, any of such property, including all insurance and claims for insurance effected or held for the benefit of Borrower or the Lender respect of any of the foregoing, in each case whether now existing or hereafter arising, accruing or accrued; and all other rights and interests in and to any and all security for or claims against others in respect of any of the rights, interests and property described or referred to above;
provided, however, that the Collateral shall not include: (i) any lease, license, sublicense, permission, contract, covenant, or agreement or any property subject to any of them to the extent that a grant of a security interest therein would violate or invalidate such lease, license, sublicense, permission, contract, covenant, or agreement or would create a right of termination in favor of any other party thereto or would otherwise require consent thereunder; or (ii) any intent-to-use trademark application prior to the filing of a “Statement of Use” with the U.S. Patent and
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Trademark Office and acceptance of such “Statement of Use” by the U.S. Patent and Trademark Office.
Section 4.2Limited Pledge of Servicing. Notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, the pledge of Borrower’s right, title and interest in mortgage servicing rights under Approved Servicing Agreements with a Designated Agency shall only secure Borrower’s debt to the Lender incurred under a facility used in whole or in part for the purposes of, or to refinance a facility used in whole or in part for the purposes of, purchasing Mortgage Loan servicing rights; provided, that the foregoing provisions of this paragraph shall be deemed automatically supplemented or amended if and to the extent such Designated Agency supplements or amends the corresponding requirement, whether in its rules, regulations, guides, Servicing Agreements, Acknowledgment Agreements, or published announcements or otherwise waives or grants exceptions from such requirement, and in each instance, with the same substantive force and effect; and provided further that the security interest created hereby with respect to the Agency Servicing Rights is subject to the following provision to be included in each financing statement filed in respect hereof:
Notice with respect to Freddie Mac Mortgage Loans:
Notwithstanding anything to the contrary herein, the security interest publicized or perfected by this financing statement is subject and subordinate in each and every respect (a) to all rights, powers and prerogatives of the Federal Home Loan Mortgage Corporation (“Freddie Mac”) under and in connection with the Purchase Documents, as that term is defined in the Freddie Mac Single-Family Seller/Servicer Guide, which rights include, without limitation, the right of Freddie Mac to disqualify (in whole or in part) the debtor named herein as an approved Freddie Mac Seller/Servicer, with or without cause, and the right to terminate (in whole or in part) the unitary, indivisible master servicing contract and to transfer and sell all or any portion of said servicing contract rights, as provided in the Purchase Documents; and (b) to all claims of Freddie Mac arising out of or relating to any and all breaches, defaults and outstanding obligations of the debtor to Freddie Mac.
Section 4.3Acknowledgment Agreements. Notwithstanding anything to the contrary in this Agreement or any of the other Loan Documents, all terms and provisions of this Agreement and the other Loan Documents are and shall be subject to the terms and provisions of each Acknowledgement Agreement. To the extent that any conflict necessarily exists or shall be adjudged to exist between the terms and provisions of this Agreement and those of an applicable Acknowledgment Agreement, solely with respect to the relationship and agreements between Borrower, Lender and a Designated Agency, the terms and provisions of such Acknowledgment Agreement shall govern and control.
Section 4.4Lender Requires Acknowledgment Agreements and Consent Agreements. Pledged Servicing Rights under Servicing Agreements with any Agency will have a Market Value of zero for purposes of determining Collateral Value (a) upon the earlier of (i) the termination or (ii) expiration of the Acknowledgment Agreement covering such Pledged Servicing Rights and (b) until a replacement Acknowledgment Agreement covering such Pledged Servicing Rights has been executed and delivered by the Borrower the Lender and an Agency.
Section 4.5Further Assurances Concerning Collateral. In furtherance of the foregoing, Borrower hereby agrees to perform, or cause to be performed, such acts and duly to authorize, execute, acknowledge, deliver, file and record (or cause such actions to be taken with respect to) such financing statements, assignments, security agreements, deeds of trust, mortgages, bond powers and supplements, modifications or amendments to any of them, and such other papers as the Lender may reasonably request in order to establish and preserve the priority of, perfect and protect the Liens granted or intended to be granted to the Lender in and
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to any and all such Collateral and to preserve and protect the Lender’s rights in respect of all present and future Collateral for the Obligations.
Section 4.6Financing Statements Filing Authorization. Borrower hereby irrevocably authorizes the Lender, at any time and from time to time, to file at Borrower’s cost and expense in any filing office in any jurisdiction any initial financing statements and continuations thereof and amendments thereto, including amendments to update the lists of Pledged Servicing Agreements attached as exhibits to such financing statements whenever such lists are updated, that (a) indicate the Servicing Collateral, regardless of whether any particular asset in the Servicing Collateral falls within the scope of Article 9 of the UCC, and (b) provide any other information required for the sufficiency or filing office acceptance of any financing statement or amendment. Borrower agrees to furnish any such information to the Lender promptly upon the Lender’s request.
Section 4.7Borrower Remains Liable. Notwithstanding anything contained in this Agreement to the contrary, Borrower expressly agrees that it shall (a) remain liable under each of the Pledged Servicing Agreements and related agreements included in the Servicing Collateral to keep, observe and perform all of the conditions and obligations to be kept, observed and performed by Borrower (or any predecessor in interest) thereunder and (b) perform all of its duties and obligations thereunder, all in accordance with and pursuant to the terms and provisions of each such agreement. The Lender shall not have any obligation or liability under any such agreement by reason of, or arising out of, this Agreement or the granting to the Lender of a Lien therein or the receipt by the Lender of any payment relating to any such agreement.
Section 4.8Rights after Occurrence of Default. After the occurrence of any Event of Default that the Lender has not declared in writing to have been cured or waived, the Lender shall have the following rights (but no obligations):
(a)in its discretion, to demand, sue for, collect or receive and receipt for (in its own name, in the name of Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b)to direct, and to take any and all other steps necessary to cause, any Servicer of any of the Collateral to pay over directly to the Lender for the account of Borrower (instead of to Borrower or any other Person) all sums from time to time due to Borrower and to take any and all other actions that Borrower or the Lender has the right to take under Borrower’s contract with such Servicer;
(c)to request that Borrower forthwith pay to the Lender at its Principal Office all amounts thereafter received by Borrower upon or in respect of any of the Collateral, advising the Lender as to the sources of such funds, and if the Lender does so request, then Borrower shall diligently and continuously thereafter comply with such request.
(d)All amounts so received and collected by the Lender shall be paid or applied to pay (i) fees owing under the Loan Documents, (ii) the reasonable costs and expenses incurred by the Lender in collecting or enforcing the Revolving Credit Note and the other Loan Documents, defending against any claims made in respect of the Loan Documents or any related transactions, protecting or realizing on Collateral and (iii) accrued and unpaid interest on and principal of the Revolving Credit Note; and
(e)Borrower hereby grants to the Lender a non-exclusive license to use Borrower’s operating systems to manage and administer the Pledged Servicing Rights and any of the data and information relating thereto, together with the media that is owned by Borrower and on which the same are stored to the extent stored with material information or data that relates to property other than the Pledged Servicing Rights (tapes, discs, cards, drives, flash memory or any other kind of physical or virtual data or information storage
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media or systems, and Borrower’s rights to access the same, whether exclusive or nonexclusive, to the extent that such access rights may lawfully be transferred or used by Borrower’s permittees), and any computer programs that are owned by Borrower (or licensed to Borrower under licenses that may lawfully be transferred or used by Borrower’s permittees) and that are used to access, organize, input, read, print or otherwise output and otherwise handle or use such information and data, in each case effective solely upon the occurrence and during the continuance of any Event of Default, to the extent necessary to enable Lender to realize on the Collateral and any permitted successor or assign to enjoy the benefits of the Collateral.  Such license is granted free of charge, without requirement that any monetary payment whatsoever including, without limitation, any royalty or license fee, be made to Borrower or any other Person by Lender or any other Person. Such license shall automatically terminate upon (i) the termination of this Agreement or (ii) payment in full of all Obligations and the termination of the Revolving Credit Note;
provided, however, that any and all rights and remedies of the Lender in this Agreement are expressly subject and subordinate to the prior rights of a Designated Agency as to Collateral subject to an Acknowledgment Agreement with such Designated Agency, and in the event the enforcement by the Lender of any of its rights and remedies under this Article 4 or Article 10 could reasonably be expected to materially and adversely conflict with the provisions of an applicable Acknowledgment Agreement with respect to the Collateral subject to the Acknowledgment Agreement, the restrictions imposed under the Acknowledgment Agreement shall control.
Section 4.9Attorney-In-Fact Appointment. Borrower hereby appoints the Lender as its attorney-in-fact to take all such steps in its name and behalf as are necessary or appropriate to (i) request that any Pledged Servicing Right related to any Agency or any other investor be transferred to the Lender or to another approved servicer approved such Agency or such other investor (as the case may be) and perform (without assuming or being deemed to have assumed any of the obligations of Borrower thereunder) all aspects of each servicing contract that is Collateral, (ii) request distribution to the Lender of sale proceeds or any applicable contract termination fees arising from the sale or termination of such servicing rights and remaining after satisfaction of Borrower’s relevant obligations to such Agency or such other investor (as the case may be), including costs and expenses related to any such sale or transfer of such servicing rights and other amounts due for unmet obligations of Borrower to such Agency or such other investor (as the case may be) under applicable Agency Guideline or such other investor’s contract, (iii) deal with investors and any and all subservicers and master servicers in respect of any of the Collateral in the same manner and with the same effect as if done by Borrower and (iv) take any action and execute any instruments that the Lender deems necessary or advisable to accomplish any of such purposes, and such appointment shall be deemed a power coupled with an interest and shall be irrevocable for so long as any of the Obligations shall be unpaid or Lender shall have any outstanding commitment to lend or to extend any other financial accommodations to or for the account of Borrower. Such appointment shall be effective, automatically and without the necessity of any action (including any transfer of any Collateral on the record books of the issuer thereof) by any Person (including the issuer of such Collateral or any officer or agent thereof), upon the occurrence and during the continuance of an Event of Default.
Section 4.10Periodic Valuations of Servicing Rights. The value of all Pledged Servicing Rights to the Lender shall be periodically determined as provided in Section 7.14 by an Approved Servicing Appraiser and the Borrowing Base shall be adjusted to reflect each such determination and updating of the value of such Collateral; provided that, notwithstanding any other provision hereof to the contrary, the Lender shall have the right, exercisable from time to time (daily or less often) in its sole discretion on any day after the occurrence and during the continuance of any Event of Default to mark the Pledged Servicing Rights to market, whereupon, for purposes of determining the Collateral Value for that day (and for each day thereafter until it shall thereafter be evaluated or re-evaluated by such an approved appraiser or broker or again marked to market by the Lender) such Pledged Servicing Rights shall be equal to 50.0% of its Market Value on that day (which the parties acknowledge may be nominal). Borrower acknowledges that a determination by the Lender of Market Value pursuant to this
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Agreement is for the limited purpose of determining Collateral Value for lending purposes under this Agreement without the ability to perform customary purchaser’s due diligence and is not necessarily equivalent to a determination of the fair market value of Collateral achieved by obtaining competing bids in an orderly market in which the servicer is not in default, insolvent or the subject of a case in bankruptcy and the bidders have adequate opportunity to perform customary diligence.
Section 4.11Collections in General. After the occurrence of any Event of Default that the Lender has not declared in writing to have been cured or waived, the Lender shall have the right (but no obligation) in its sole discretion to take any or all of the following actions with respect to the Collateral, which rights are in addition to, and not in derogation or in lieu of, any other rights available to a secured creditor under any applicable law, rule, or regulation or any order, writ, injunction, or decree of any Governmental Authority or arbitrator:
(a)Demand, sue for, collect or receive and receipt for (in its own name, in the name of Borrower or otherwise) any money or property at any time payable or receivable on account of any of the Collateral, in consideration of its transfer or in exchange for it;
(b)Request Borrower to pay over to the Lender all sums from time to time due Borrower under or in respect of the Approved Servicing Agreements (excluding the Minimum Servicing Compensation (as defined in the Acknowledgment Agreement)), including any and all fees and other compensation under the Approved Servicing Agreements for servicing the Serviced Loans, and to take any and all other actions that, subject to any restrictions imposed by the relevant Approved Servicing Agreement for the benefit of the party to it on whose behalf the Serviced Loans are being serviced (to the extent that such restrictions are valid and enforceable under the applicable UCC and other Laws), Borrower or the Lender has the right to take under that Servicing Agreement, and if the Lender does so request, then Borrower shall diligently and continuously thereafter comply with such request; and
(c)Request that Borrower forthwith pay to the Lender at its principal office all amounts thereafter received by Borrower upon or in respect of any of the Collateral, whether paid to Borrower or withheld or recovered by Borrower from collections and realizations on the Serviced Loans or any other source, advising the Lender as to the source of such funds, and if the Lender does so request, then Borrower shall diligently and continuously thereafter comply with such request.
All amounts so received and collected by the Lender pursuant to this Section 4.11 shall be applied in the same order and manner as is specified in Section 10.3.
Section 4.12Setoff. Subject to the Agency’s Interest or the owner of any related Mortgage Loan in the case of Non-Agency Servicing Rights, if an Event of Default exists, Lender shall have the right to set off and apply against the Obligations in such manner as Lender may determine, at any time and without notice to Borrower or any Obligated Party, any and all deposits (general or special, time or demand, provisional or final) or other sums at any time credited by or owing from Lender to Borrower or any Obligated Party whether or not the Obligations are then due. As further security for the Obligations, Borrower and each Obligated Party hereby grant to Lender a security interest in all money, instruments, and other Property of Borrower and each Obligated Party now or hereafter held by Lender, but expressly excluding Property held in escrow on behalf of Customers or in safekeeping for delivery to an Agency or the owner, as applicable. In addition to Lender’s right of setoff and as further security for the Obligations, Borrower and each Obligated Party hereby grant to Lender a security interest in all deposits (general or special, time or demand, provisional or final) and other accounts of Borrower or any Obligated Party now or hereafter on deposit with or held by Lender and all other sums at any time credited by or owing from Lender to Borrower or any Obligated Party. The rights and remedies of Lender hereunder are in addition to other rights and remedies (including, without limitation, other rights of setoff) which Lender may have.
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Section 4.13Schedules 4.1(a)(2). For the avoidance of doubt, Borrower shall list Agency Servicing Rights that are Pledged to Lender on Schedule 4.1(a)(2). Borrower shall, along with each Borrowing Base Report, deliver to Lender any updates to Schedule 4.1(a)(2).
SECTION 5Conditions Precedent
Section 5.1Initial Extension of Credit.
The obligation of Lender to make the initial Borrowing under the Revolving Credit Note is subject to the condition precedent that Lender shall have received on or before the day of such Borrowing all of the following, each dated (unless otherwise indicated) the date hereof, in form and substance satisfactory to Lender:
(a)Resolutions. Resolutions of the Board of Directors (or other governing body) of Borrower and each other Obligated Party certified by the Secretary or an Assistant Secretary (or other custodian of records) of such Person which authorize the execution, delivery, and performance by such Person of this Agreement and the other Loan Documents to which such Person is or is to be a party;
(b)Incumbency Certificate. A certificate of incumbency certified by a Responsible Officer certifying the names of the individuals or other Persons authorized to sign this Agreement and each of the other Loan Documents to which Borrower and each other Obligated Party is or is to be a party (including the certificates contemplated herein) on behalf of such Person together with specimen signatures of such individual Persons;
(c)Constituent Documents. The Constituent Documents for Borrower and each other Obligated Party certified as of a date acceptable to Lender by the appropriate government officials of the state of formation of Borrower and each other Obligated Party;
(d)Governmental Certificates. Certificates of the appropriate government officials of the state of formation or organization of Borrower and each other Obligated Party as to the existence and good standing of Borrower and each other Obligated Party, each dated within ten (10) days prior to the date of the initial Borrowing;
(e)Revolving Credit Note. The Revolving Credit Note executed by Borrower;
(f)Security Documents. The Security Documents executed by Borrower and other Obligated Parties;
(g)Financing Statements. UCC financing statements reflecting Borrower and the other Obligated Parties, as debtors, and Lender, as secured party, which are required to grant a Lien which secures the Obligations and covering such Collateral as Lender may request;
(h)Agency Approval. Written approval from Freddie Mac approving the Pledge to the Lender of the Collateral hereunder;
(i)Insurance Matters. Copies of insurance certificates describing all insurance policies required by Section 7.5;
(j)Lien Searches. The results of UCC, tax lien and judgment lien searches showing all financing statements and other documents or instruments on file against Borrower and each other Obligated Party in the appropriate filing offices, such search to be as of a date no more than ten (10) days prior to the date of the initial Borrowing;
(k)Opinion of Counsel. Favorable opinions of each of Kirkland & Ellis LLP, outside legal counsel to Borrower (dated as of the Closing Date), and of Peter Macdonald, Esq., General Counsel of Borrower, as to such matters as Lender may reasonably request;
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(l)Attorneys’ Fees and Expenses. Evidence that the costs and expenses (including reasonable attorneys’ fees) referred to in Section 11.1, to the extent incurred, shall have been paid in full by Borrower;
(m)Closing Fees. Evidence that the any fees due at closing have been paid;
(n)Reserved.
(o)Reserved.
(p)Borrowing Base Report. A Borrowing Base Report executed by Borrower;
(q)Acknowledgement Agreement. With respect to each Designated Agency, an Acknowledgment Agreement executed by Borrower and such Designated Agency, as applicable, in a form satisfactory to Lender; and
(r)Additional Items. The additional items set forth on Schedule 5.1(r).
Section 5.2All Extensions of Credit.
The obligation of Lender to make any Borrowing (including the initial Borrowing) is subject to the following additional conditions precedent:
(a)Request for Borrowing. Lender shall have received in accordance with this Agreement, as the case may be, a Borrowing Request Form pursuant to Lender’s requirements and executed by a Responsible Officer of Borrower;
(b)No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing, or would result from or after giving effect to such Borrowing;
(c)No Material Adverse Event. No Material Adverse Event has occurred and no circumstance exists that could be a Material Adverse Event;
(d)Representations and Warranties. All of the representations and warranties contained in Section 6 and in the other Loan Documents shall be true and correct on and as of the date of such Borrowing with the same force and effect as if such representations and warranties had been made on and as of such date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date; and
(e)Additional Documentation. Lender shall have received such additional approvals, opinions, or documents as Lender or its legal counsel may reasonably request.
Each Borrowing hereunder shall be deemed to be a representation and warranty by Borrower and each other Obligated Party that the conditions specified in this Section 5.2 have been satisfied on and as of the date of the applicable Borrowing.
SECTION 6Representations and Warranties
To induce Lender to enter into this Agreement, and to make Borrowings hereunder, and except as set forth in this Agreement and on the Schedules hereto, Borrower represents and warrants to Lender that:
Section 6.1Entity Existence.
Borrower and each Obligated Party (a) is duly formation, validly existing, and in good standing under the laws of the jurisdiction of its formation or organization; (b) has all requisite power and authority to own its assets and carry on its business as now being or as proposed to be conducted; and (c) is
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qualified to do business in all jurisdictions in which the nature of its business makes such qualification necessary and where failure to so qualify could result in a Material Adverse Event. Borrower and each Obligated Party has the power and authority to execute, deliver, and perform its obligations under this Agreement and the other Loan Documents to which it is or may become a party.
Section 6.2Financial Statements; Etc.
Borrower and each Obligated Party has delivered to Lender (a) audited financial statements of Borrower and each Obligated Party as at and for the fiscal year ended December 31, 2013, (b) unaudited financial statements of Borrower and each Obligated Party for the three (3)-month period ended June 30, 2014, and (c) unaudited financial statements of Borrower and each Obligated Party for the two (2)-month period ended August 31, 2014. Such financial statements are true and correct, have been prepared in accordance with GAAP, and fairly and accurately present, on a consolidated basis, the financial condition of Borrower and each Obligated Party as of the respective dates indicated therein and the results of operations for the respective periods indicated therein. Neither Borrower nor any other Obligated Party has any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments, or unrealized or anticipated losses from any unfavorable commitments except as referred to or reflected in such financial statements. No Material Adverse Event has occurred since the effective date of the financial statements referred to in this Section 6.2. All projections delivered by Borrower and each Obligated Party to Lender have been prepared in good faith, with care and diligence and use assumptions that are reasonable under the circumstances at the time such projections were prepared and delivered to Lender and all such assumptions are disclosed in the projections. Neither Borrower nor any Obligated Party has any material Guarantees, contingent liabilities, liabilities for taxes, or any long-term leases or unusual forward or long-term commitments, or any hedge agreement or other transaction or obligation in respect of derivatives, that are not reflected in the most-recent financial statements referred to in this Section 6.2. As of August 31, 2014, other than the Debt listed on Schedule 6.2, Borrower and each Obligated Party had no Debt.
Section 6.3Action; No Breach.
The execution, delivery, and performance by Borrower and each other Obligated Party of this Agreement and the other Loan Documents to which such Person is or may become a party and compliance with the terms and provisions hereof and thereof have been duly authorized by all requisite action on the part of such Person and do not and will not (a) violate or conflict with, or result in a breach of, or require any consent under (i) the Constituent Documents of such Person, (ii) any applicable law, rule, or regulation or any order, writ, injunction, or decree of any Governmental Authority or arbitrator, or (iii) any agreement or instrument to which such Person is a party or by which it or any of its Properties is bound or subject, or (b) constitute a default under any such agreement or instrument, or result in the creation or imposition of any Lien upon any of the revenues or assets of such Person.
Section 6.4Operation of Business.
Borrower and each Obligated Party possess all licenses, permits, franchises, patents, copyrights, trademarks, and trade names, or rights thereto, necessary to conduct its respective businesses substantially as now conducted and as presently proposed to be conducted, and neither Borrower nor any Obligated Party is in violation of any valid rights of others with respect to any of the foregoing. Borrower and the Servicers (if any) of its Mortgage Loans are duly registered as mortgage lenders and servicers in each state in which Mortgage Loans have been or are from time to time originated, to the extent such registration is required by any applicable law, rule, or regulation or any order, writ, injunction, or decree of any Governmental Authority or arbitrator, except where the failure to register could not reasonably be expected to result in a Material Adverse Event.
Section 6.5Litigation and Judgments.
Except as specifically disclosed in Schedule 6.5 as of the date hereof, there is no action, suit, investigation, or proceeding before or by any Governmental Authority or arbitrator pending, or to the knowledge of Borrower or any Obligated Party, threatened against or affecting Borrower or any
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Obligated Party that could, if adversely determined, result in a Material Adverse Event. There are no outstanding judgments against Borrower or any Obligated Party.
Section 6.6Rights in Properties; Liens.
Borrower and each Obligated Party has good and indefeasible title to or valid leasehold interests in its respective Collateral and Properties, including the Collateral and Properties reflected in the financial statements described in Section 6.2, and none of the Collateral of Borrower or any Obligated Party is subject to any Lien, except as permitted by Section 8.2.
Section 6.7Enforceability.
This Agreement constitutes, and the other Loan Documents to which Borrower or any other Obligated Party is a party, when delivered, shall constitute legal, valid, and binding obligations of such Person, enforceable against such Person in accordance with their respective terms, except as limited by bankruptcy, insolvency, or other laws of general application relating to the enforcement of creditors’ rights.
Section 6.8Approvals.
No authorization, approval, or consent of, and no filing or registration with, any Governmental Authority or third party is or will be necessary for the execution, delivery, or performance by Borrower or any other Obligated Party of this Agreement and the other Loan Documents to which such Person is or may become a party or the validity or enforceability thereof.
Section 6.9Taxes.
Borrower and each Obligated Party has filed all income and other material tax returns required to be filed, and has paid all of their respective liabilities for income and other material taxes, assessments, governmental charges, and other levies (in each case, in the nature of a tax) that are due and payable. Borrower and each Obligated Party knows of no pending investigation of Borrower or any Obligated Party by any taxing authority or of any pending but unassessed tax liability of Borrower or any Obligated Party.
Section 6.10Use of Proceeds; Margin Securities.
Neither Borrower nor any Obligated Party is engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying “margin stock” (within the meaning of Regulations T, U, or X of the Board of Governors of the Federal Reserve System). The proceeds of any Borrowing will be used by Borrower solely for the purposes specified in Section 2.4. None of such proceeds will be used to purchase or carry any “margin stock”, or to reduce or retire any indebtedness originally incurred to purchase or carry “margin stock” or for any other purpose that might constitute this transaction a “purpose credit” within the meaning of such Regulation U. Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stocks. Neither Borrower nor any Person acting on behalf of Borrower has taken or will take any action that might cause the Revolving Credit Note or any of the other Loan Documents, including this Agreement, to violate Regulation U or any other regulations of the Board of Governors of the Federal Reserve System or to violate Section 7 of the Securities Exchange Act of 1934 or any rule or regulation thereunder, in each case as now in effect or as the same may hereinafter be in effect. Borrower and its Affiliates own no “margin stock” except for that described in the financial statements referred to in Section 6.2 and, as of the date hereof, the aggregate value of all “margin stock” owned by Borrower and its Affiliates does not exceed twenty-five percent (25%) of all of the value of all of Borrower’s and its Affiliates’ assets.
Section 6.11ERISA.
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Except to the extent that it would not result in a Material Adverse Event, (a) each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS (or may rely on a favorable opinion letter issued by the IRS) or an application for such a letter is currently being processed by the IRS with respect thereto and, to the knowledge of Borrower or any Obligated Party, nothing has occurred which would prevent, or cause the loss of, such qualification, (b) no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan, (c) there are no pending or, to the knowledge of Borrower or Obligated Party, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan, (d) there has been no Prohibited Transaction or violation of the fiduciary responsibility rules with respect to any Plan, (e) no ERISA Event has occurred or is reasonably expected to occur, (f) no Plan has any Unfunded Pension Liability, (g) no Obligated Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Plan (other than premiums due and not delinquent under Section 4007 of ERISA), (h) no Obligated Party or ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan and (i) no Obligated Party or ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
Section 6.12Disclosure.
No statement, information, report, representation, or warranty made by Borrower or any other Obligated Party in this Agreement or in any other Loan Document or furnished to Lender in connection with this Agreement or any of the transactions contemplated hereby contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein not misleading. There is no fact known to Borrower or any Obligated Party which is a Material Adverse Event, or which might in the future be a Material Adverse Event that has not been disclosed in writing to Lender.
Section 6.13Subsidiaries.
Borrower has no Subsidiaries other than those listed on Schedule 6.13 (as such schedule may be updated from time to time pursuant to Section 7.12) and Schedule 6.13 sets forth the jurisdiction of formation or organization of each such Subsidiary and the percentage of Borrower’s ownership interest in such Subsidiary. All of the outstanding capital stock or other equity interests of each Subsidiary described on Schedule 6.13 has been validly issued, is fully paid, and is nonassessable. There are no outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments of any nature relating to any equity interests of Borrower.
Section 6.14Agreements.
Neither Borrower nor any Obligated Party is a party to any indenture, loan, or credit agreement, or to any lease or other agreement or instrument, or subject to any charter or limited liability, corporate or other organizational restriction, in each case which could result in a Material Adverse Event. Neither Borrower nor any Obligated Party is in default in any respect in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument material to its business to which it is a party. No holder of Borrower’s or any Subsidiary’s debt or other obligations has given notice of any asserted default that could reasonably be expected to constitute a Material Adverse Event. No liquidation or dissolution of Borrower is pending or, to Borrower’s knowledge, threatened and no liquidation or dissolution of any Subsidiary is pending or threatened that could reasonably be expected to constitute a Material Adverse Event. No receivership, insolvency, bankruptcy, reorganization or other similar proceedings relative to Borrower or any of its properties is pending, or to Borrower’s knowledge, threatened. No receivership, insolvency, bankruptcy, reorganization or other similar proceedings relative to any Subsidiary of Borrower or any of its properties is pending, or to Borrower’s knowledge, threatened that could reasonably be expected to constitute a Material Adverse Event.
Section 6.15Compliance with Laws.
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Neither Borrower nor any Obligated Party is in violation in any material respect of any law, rule, regulation, order, or decree of any Governmental Authority or arbitrator.
Section 6.16Regulated Entities.
Neither Borrower nor any Obligated Party is (a) an “investment company” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940 or (b) subject to regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities code, or any other federal or state statute, rule or regulation limiting its ability to incur Debt, pledge its assets or perform its obligations under the Loan Documents.
Section 6.17Environmental Matters.
(a)Borrower and each Obligated Party, and all of its respective Properties, assets, and operations are in full compliance with all applicable Environmental Laws, except for any noncompliance that would not result in a Material Adverse Event. Neither Borrower nor the Obligated Parties are aware of, nor have Borrower or any Obligated Party, received notice of, any past, present, or future conditions, events, activities, practices, or incidents which would reasonably be expected to interfere with or prevent the compliance or continued compliance of Borrower and the Obligated Parties with all Environmental Laws and that would reasonably be expected to result in a Material Adverse Event;
(b)Each of Borrower and the Obligated Parties has obtained all permits, licenses, and authorizations that are required under applicable Environmental Laws, and all such permits are in good standing and Borrower and each Obligated Party is in compliance with all of the terms and conditions of such permits, except to the extent failure to obtain any of the foregoing would not result in a Material Adverse Event;
(c)No Hazardous Materials exist on, about, or within or have been used, generated, stored, transported, disposed of on, or Released from any of the Properties or assets of Borrower or any Obligated Party, except as would not reasonably be expected to result in a Material Adverse Event. The use which Borrower and any Obligated Party make and intend to make of their respective Properties and assets is not reasonably expected to result in the use, generation, storage, transportation, accumulation, disposal, or Release of any Hazardous Material on, in, or from any of their Properties or assets, except as would not reasonably be expected to result in a Material Adverse Event;
(d)Neither Borrower nor any Obligated Party nor any of their respective currently or, to the knowledge of Borrower, previously owned or leased Properties or operations is subject to any outstanding or, to the knowledge of Borrower, threatened order from or agreement with any Governmental Authority or other Person or subject to any judicial or docketed administrative proceeding with respect to (i) failure to comply with Environmental Laws, (ii) Remedial Action, or (iii) any Environmental Liabilities arising from a Release or threatened Release, except as would not reasonably be expected to result in a Material Adverse Event;
(e)There are no conditions or circumstances associated with the currently or, to the knowledge of Borrower, previously owned or leased Properties or operations of Borrower or any Obligated Party that would reasonably be expected to give rise to any Environmental Liabilities, except as would not reasonably be expected to result in a Material Adverse Event;
(f)Neither Borrower nor any Obligated Party is a treatment, storage, or disposal facility requiring a permit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., regulations thereunder or any comparable provision of state law. Borrower and each Obligated Party is in compliance with all applicable financial responsibility requirements of all Environmental Laws, except where the failure to comply would not reasonably be expected to result in a Material Adverse Event;
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(g)Neither Borrower nor any Obligated Party has filed or failed to file any notice required under applicable Environmental Law reporting a Release, except where the failure to do so would not reasonably be expected to result in a Material Adverse Event; and
(h)No Lien arising under any Environmental Law has attached to any property or revenues of Borrower or any Obligated Party that would reasonably be expected to result in a Material Adverse Event.
Section 6.18Membership and Standing.
Borrower is an approved member in good standing of the MERS System. Borrower is (a) an approved servicer, seller/servicer or issuer, as applicable, of mortgage loans for Freddie Mac, (b) properly licensed and qualified to do business and in good standing in each jurisdiction in which such licensing and qualification is necessary to act as the servicer under any of the Servicing Agreements and applicable law, and (c) qualified to act as the servicer under the Servicing Agreements, and no event has occurred which would make Borrower unable to comply with all such eligibility requirements or which would require notification to Freddie Mac. Borrower has not received any written notice from any Governmental Authority that it intends to terminate or restrict Borrower’s status as an approved servicer in its programs for which Borrower is registered, approved or authorized.
Section 6.19Foreign Assets Control Regulations and Anti-Money Laundering.
Each Obligated Party and each Subsidiary of each Obligated Party is and will remain in compliance in all material respects with all United States economic sanctions laws, Executive Orders and implementing regulations as promulgated by OFAC, and all applicable anti-money laundering and counter-terrorism financing provisions of the Bank Secrecy Act and all regulations issued pursuant to it. No Obligated Party and no Subsidiary or, to the knowledge of the Borrower, Affiliate of any Obligated Party (a) is a Person designated by OFAC on the list of the Specially Designated Nationals and Blocked Persons with which a United States Person cannot deal with or otherwise engage in business transactions, (b) is organized or located in Cuba, Iran, Sudan or Syria, or (c) is 50 per cent or more owned by any person or entity described in (a) or (b), such that the entry into, or performance under, this Agreement or any other Loan Document would be prohibited under United States law.
Section 6.20Patriot Act.
The Obligated Parties, each of their Subsidiaries, and each of their Affiliates are in compliance with (a) the Patriot Act, (b) the Beneficial Ownership Regulation and (c) all other applicable federal or state laws relating to “know your customer” and anti-money laundering rules and regulations. No part of the proceeds of any Loan will be knowingly used directly or indirectly for any payments to any government official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977.
Section 6.21Nature of Business. As of the date hereof, Borrower and each Obligated Party is engaged directly or through Subsidiaries and Affiliates in the Consumer Lending Business.
Section 6.22Borrower’s Address. Borrower’s chief executive office and principal place of business are at 26642 Towne Centre Drive, Foothill Ranch, CA 92610 or at such other address as shall have been set forth in a written notice to the Lender at any time after the Closing Date.
Section 6.23Special Representations Concerning Collateral.
(a)The List of Eligible Agency Servicing Rights most recently submitted to the Lender is true and complete.
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(b)Borrower has not selected the Collateral in a manner that will adversely affect the Lender’s interests.
(c)Borrower is the legal and equitable owner and/or holder of the Collateral, free and clear of all Liens (other than the Lender’s Lien and the Agency’s Interest or the owner of any related Mortgage Loan in the case of Non-Agency Servicing Rights, as applicable) and the Collateral is validly pledged or assigned to the Lender, subject to no other Liens. Borrower has the sole right to act as servicer with respect to the Mortgage Loans pursuant to and subject to the terms and conditions of the Servicing Agreement.
(d)No fraud and, in addition, no material error, omission, misrepresentation, negligence or similar occurrence with respect to the Collateral and the Mortgage Loans related thereto has taken place on the part of Borrower or any of its Affiliates.
(e)No consent of any obligor or any other Person is required for the grant of the security interest provided in this Agreement by Borrower in any of the Collateral, other than consents that have been obtained, nor will any consent need to be obtained upon the occurrence of an Event of Default for the Lender to exercise its rights with respect to any of the Collateral (other than as provided in any applicable Acknowledgement Agreement).
(f)Each Servicing Agreement is a valid and binding obligation of Borrower, is in full force and effect, and is enforceable by Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity, whether applied in a court of law or a court of equity.
(g)Freddie Mac or, with respect to any Non-Agency Servicing Rights, any other owner of Mortgage Loans, has not provided written notice to Borrower that it will terminate, modify or amend the Servicing Agreement or Borrower’s benefits or the Servicing Rights under any Servicing Agreement.
(h)Borrower has not engaged any subservicers, subcontractors or other agents to perform any of its duties under any of the Servicing Agreements, other than engagements that are permitted by, and are in compliance in all material respects with the requirements of, the applicable Servicing Agreement, and all fees and expenses due and payable to any such subservicer, subcontractor or agent as of the Closing Date in connection therewith have been paid, or will be paid before overdue, by Borrower.
All representations and warranties by Borrower shall survive delivery of the Loan Documents and the making of the Borrowings, and any investigation at any time made by or on behalf of the Lender shall not diminish the Lender’s right to rely on them.
SECTION 7Affirmative Covenants
Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or Lender has any Commitment hereunder:
Section 7.1Reporting Requirements.
Borrower shall, and shall cause each Obligated to, furnish to Lender:
(a)Annual Financial Statements. For the fiscal year ending December 31, 2014, and each fiscal year thereafter, as soon as available, and in any event within ninety (90) days after the last day of each fiscal year of Borrower and each Obligated Party, a copy of the annual audit report of Borrower and each Obligated Party for such fiscal year containing, on a consolidated basis, balance sheets and statements of income, retained earnings, and cash flow as of the end of such fiscal year and for the twelve (12)-month period then ended, in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and audited and
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certified by independent certified public accountants of recognized standing acceptable to Lender, to the effect that such report has been prepared in accordance with GAAP and containing no material qualifications or limitations on scope;
(b)Quarterly Financial Statements. As soon as available, and in any event within forty-five (45) days after the last day of each fiscal quarter of each fiscal year of Borrower and each Obligated Party, a copy of an unaudited financial report of Borrower and each such Obligated Party as of the end of such fiscal quarter and for the portion of the fiscal year then ended, containing, on a consolidated and consolidating basis, balance sheets and statements of income, retained earnings, and cash flow, in each case setting forth in comparative form the figures for the corresponding period of the preceding fiscal year, all in reasonable detail certified by a Responsible Officer to have been prepared in accordance with GAAP and to fairly and accurately present (subject to year-end audit adjustments) the financial condition and results of operations of Borrower and each such Obligated Party, on a consolidated and consolidating basis, as of the dates and for the periods indicated therein;
(c)Borrowing Base Report. As soon as available, and in any event within thirty (30) days after the last day of each calendar month of each fiscal year of Borrower, a Borrowing Base Report;
(d)Compliance Certificate. Concurrently with the delivery of each of the financial statements referred to in Sections 7.1.(a) and 7.1.(b), a certificate of the chief financial officer of Borrower (i) stating that to the best of such officer’s knowledge, no Default or Event of Default has occurred and is continuing, or if a Default or Event of Default has occurred and is continuing, a statement as to the nature thereof and the action which is proposed to be taken with respect thereto, and (ii) showing in reasonable detail the calculations demonstrating compliance with the covenants set forth in Section 2 of the Pricing Side Letter;
(e)Management Letters. Promptly upon receipt thereof, a copy of any management letter or written report submitted to Borrower or any Obligated Party by independent certified public accountants with respect to the business, condition (financial or otherwise), operations, prospects, or Properties of Borrower or any Obligated Party;
(f)Notice of Litigation. Promptly after the commencement thereof, notice of all actions, suits, and proceedings before any Governmental Authority or arbitrator affecting Borrower or any Obligated Party which, if determined adversely to Borrower or such Obligated Party, could be a Material Adverse Event;
(g)Notice of Default. As soon as possible and in any event within five (5) days after the occurrence of any Default or Event of Default, a written notice setting forth the details of such Default or Event of Default and the action that Borrower has taken and proposes to take with respect thereto;
(h)ERISA Reports. Promptly after the filing or receipt thereof, copies of all reports, including annual reports, and notices which Borrower or any ERISA Affiliate files with or receives from the PBGC, the IRS, or the U.S. Department of Labor under ERISA; as soon as possible and in any event within five (5) days after Borrower or any ERISA Affiliate knows or has reason to know that any ERISA Event or Prohibited Transaction has occurred with respect to any Plan, a certificate of the chief financial officer of Borrower setting forth the details as to such ERISA Event or Prohibited Transaction and the action that Borrower proposes to take with respect thereto; annually, copies of the notice described in Section 101(f) of ERISA that Borrower or ERISA Affiliate receives with respect to a Plan or Multiemployer Plan; within thirty (30) days following the execution of this Agreement, Borrower and each ERISA Affiliate shall request in writing from each Multiemployer Plan the information described in Sections 101(k) and 101(l) of ERISA and shall provide a copy of such requests to Lender; promptly upon receiving such information from the Multiemployer Plans, provide such information to Lender, and thereafter, such requests and such information shall only be required to be provided upon Lender’s request, which shall be made no more frequently than annually;
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(i)Reserved.
(j)Notice of Material Adverse Event. As soon as possible and in any event within five (5) days after the occurrence thereof, written notice of any event or circumstance that could result in a Material Adverse Event;
(k)Notice of Attachment. Promptly, and in any event within ten (10) days after the commencement thereof, notice of any attachment, sequestration, or similar proceeding or proceedings against Borrower involving an aggregate amount in excess of $1,000,000 against any of its assets or properties;
(l)Beneficial Ownership.
(i)Promptly (1) of any change in direct or indirect ownership interests in Borrower as reported in a “Beneficial Ownership Certification” or other similar certification provided to Lender prior to or in connection with the execution of this Agreement, or (2) if the individual with significant managerial responsibility identified in the certification ceases to have that responsibility or if the information reported about that individual changes;
(ii)Such information and documentation as Lender may request during the term of this Agreement to confirm or update the continued accuracy of the any information provided in connection with the foregoing;
(m)Reserved.
(n)Other Reports. Borrower shall promptly furnish to the Lender from time to time information regarding the business and affairs of Borrower, including the following and such other information as the Lender may from time to time reasonably request (each report required must be signed by a duly authorized officer of Borrower and the Lender will have no responsibility to verify or track any of the items referenced or conclusions stated in such reports or to verify the authority of its signatory), and Borrower shall
(i)Upon request by the Lender from time to time, expeditiously apply for and, if such counterparties are willing to make such agreements with Borrower (Borrower agrees in good faith to urge them to do so), to execute such acknowledgment agreements and related agreements with the counterparties to Servicing Agreements as are necessary or appropriate, in the Lender’s reasonable opinion, to achieve, maintain or improve establishment and perfection of the Lender’s security interest granted hereby in Collateral.
(ii)Reserved.
(iii)Monthly, a report, to deliver to the Lender in form and substance acceptable to the Lender, detailing the most current unpaid principal balance of all Pledged Servicing Rights, any request for, or resolution of a prior request for, repurchase or indemnity under the Approved Servicing Agreements, updated information from the most recent servicing valuation report and delinquency and foreclosure information.
(iv)To deliver to the Lender such other reports by Borrower in respect of the Collateral, in such detail and at such times as the Lender or any Lender in its reasonable discretion or at the reasonable direction of a Lender may request at any time or from time to time.
(v)As soon as available and in any event within 10 days of the date distributed, deliver to the Lender copies of all definitive prospectuses relating to (i) any public security offerings by Borrower or any of its Subsidiaries (including
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special purpose Subsidiaries) or (ii) any public securities to be based on, backed by or created from any Collateral and to be offered by Borrower or any of its Subsidiaries.
(vi)As soon as available and in any event within 10 days after filing, deliver to the Lender copies of (i) all regular or periodic financial reports, and copies of all extraordinary or non-routine filings, if any, that shall be filed with the U.S. Securities and Exchange Commission or any successor agency by or on behalf of Borrower or any of its Subsidiaries (including special purpose Subsidiaries) and (ii) all such filings relating to any public securities that are or are to be based on, backed by or created from any Collateral and which filings are made by or in respect of Borrower or any of its Subsidiaries; and
(o)General Information. Promptly, such other information concerning Borrower, or any Obligated Party as Lender may from time to time request.
Section 7.2Maintenance of Existence; Conduct of Business.
Borrower shall, and shall cause each Obligated Party to, preserve and maintain its existence and all of its leases, privileges, licenses, permits, franchises, qualifications, and rights that are necessary or desirable in the ordinary conduct of its business. Borrower shall, and shall cause each Obligated Party to, conduct its business in an orderly and efficient manner in accordance with good business practices.
Section 7.3Maintenance of Properties.
Borrower shall, and shall cause each Obligated Party to, maintain, keep, and preserve all of its Properties (tangible and intangible) necessary or useful in the proper conduct of its business in good working order and condition.
Section 7.4Taxes and Claims.
Borrower shall, and shall cause each Obligated Party to, pay or discharge at or before maturity or before becoming delinquent (a) all taxes, levies, assessments, and governmental charges imposed on it or its income or profits or any of its Property, and (b) all lawful claims for labor, material, and supplies, which, if unpaid, might become a Lien upon any of its Property; provided, however, that neither Borrower nor any Obligated Party shall be required to pay or discharge any tax, levy, assessment, or governmental charge which is being contested in good faith by appropriate proceedings diligently pursued, and for which adequate reserves in accordance with GAAP have been established.
Section 7.5Insurance.
Borrower shall, and shall cause each Obligated Party to, maintain insurance with financially sound and reputable insurance companies in such amounts and covering such risks as is usually carried by limited liability companies engaged in similar businesses and owning similar Properties in the same general areas in which Borrower and each Obligated Party operate, provided that in any event Borrower will maintain and cause each Obligated Party to maintain workmen’s compensation insurance, property insurance, comprehensive general liability insurance and business interruption insurance reasonably satisfactory to Lender.
Section 7.6Inspection Rights.
At any reasonable time and from time to time, Borrower shall, and shall cause each Obligated Party to, (a) permit representatives of Lender to examine, inspect, review, evaluate and make physical verifications and appraisals of the inventory and other Collateral in any manner and through any medium that Lender considers advisable, (b) to examine, copy, and make extracts from its books and records, (c) to visit and inspect its Properties, and (d) to discuss its business, operations, and financial condition with its officers, employees, and independent certified public accountants, in each instance, at Borrower’s
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expense provided that Borrower shall not be responsible for costs and expenses more than one time per year unless an Event of Default has occurred and is continuing.
Section 7.7Keeping Books and Records.
Borrower shall, and shall cause each Obligated Party to, maintain proper books of record and account in which full, true, and correct entries in conformity with GAAP shall be made of all dealings and transactions in relation to its business and activities.
Section 7.8Compliance with Laws.
Borrower shall, and shall cause each Obligated Party to, comply in all material respects with all applicable laws, rules, regulations, orders, and decrees of any Governmental Authority or arbitrator.
Section 7.9Compliance with Agreements.
Borrower shall, and shall cause each Obligated Party to, comply in all material respects with all agreements, contracts, and instruments binding on it or affecting its Properties or business.
Section 7.10Further Assurances.
Borrower shall, and shall cause each Obligated Party to, execute and deliver such further agreements and instruments and take such further action as may be requested by Lender to carry out the provisions and purposes of this Agreement and the other Loan Documents and to create, preserve, and perfect the Liens of Lender in the Collateral.
Section 7.11ERISA.
Borrower shall, and shall cause each Obligated Party to, comply with all minimum funding requirements, and all other material requirements, of ERISA, if applicable, so as not to give rise to any liability thereunder that would reasonably be expected to result in a Material Adverse Event.
Section 7.12Additional Subsidiaries.
Borrower shall notify Lender at the time that any Person becomes a Subsidiary that is formed under the laws of the United States or any state thereof, which notification shall be made by means of delivery of an updated version of Schedule 6.13.
Section 7.13Reserved.
Section 7.14Provide Monthly Servicing Appraisals. Borrower shall provide a new Servicing Appraisal to the Lender once each calendar month (with the first such period ending December 31, 2014); provided, that the Lender shall have the right in the Lender’s sole discretion to require independent appraisals or evaluations more frequently than every calendar month; and provided further that the Servicing Appraisal for each calendar month must be provided to the Lender no later than thirty (30) days following the end of such month.
Section 7.15Special Affirmative Covenants Concerning Collateral. Until all of the Obligations shall have been fully paid in cash and satisfied and the Lender has no obligation to lend or provide any other financial accommodations to Borrower under or otherwise in respect of this Agreement, Borrower agrees to:
(a)Warrant and forever defend the right, title and interest of the Lender, for the benefit of itself and the other Secured Parties, in and to the Pledged Servicing Rights against the claims and demands of all Persons whomsoever other than the Agency or the owner of any related Mortgage Loan in the case of Non-Agency Servicing Rights, as applicable, subject to any restrictions imposed by the relevant Servicing Agreement or the
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Acknowledgment Agreement for the benefit of the party to it on whose behalf the Mortgage Loans are being serviced to the extent (if any) that such restrictions are valid and enforceable under the applicable UCC and other Laws.
(b)Diligently fulfill its duties and obligations under each Approved Servicing Agreement, and not be declared by a counterparty to each such Servicing Agreement to be in default; provided that Borrower shall not be in breach of this covenant if a default declared by a counterparty to such Servicing Agreement arose from a failure of the portfolio of Serviced Loans to perform as required by the relevant Servicing Agreement and such counterparty has elected in writing to continue to use Borrower as Servicer thereof and has not rescinded or revoked such election.
(c)Diligently and timely collect its servicing compensation under each Approved Servicing Agreement.
(d)Cause Borrower’s rights to the servicing compensation provided for in each Approved Servicing Agreement to remain in full force and effect until the Borrowings to finance Borrower’s retention of the Pledged Servicing Rights related to such Approved Servicing Agreement have been fully repaid, or until such Servicing Agreement expires in accordance with its terms and without renewal.
(e)Reconfirm the filing authorization given in this Agreement to such UCC financing statements and continuation statements as the Lender may reasonably request from time to time (although no such reconfirmation shall be a condition to the filing of any financing statement, including any “in lieu” financing statement, or continuation statement) and execute and deliver to the Lender such further instruments of sale, pledge, assignment or transfer, and such powers of attorney, as shall be reasonably required by the Lender from time to time, and do and perform all matters and things necessary or desirable to be done or observed, for the purpose of effectively creating, maintaining and preserving the security and benefits intended to be afforded the Lender and the Lenders under this Agreement, the Revolving Credit Note and the other Loan Documents. The Lender shall have all the rights and remedies of a secured party under the UCC and any other applicable law, in addition to all rights provided for in this Agreement.
(f)Use its best efforts to cause each of its Servicers, if any, to keep in force throughout the term of this Agreement (i) a policy or policies of insurance covering errors and omissions for failure to maintain insurance as required by this Agreement and (ii) a fidelity bond. Each such policy and fidelity bond shall be in such form and amount as is generally customary among Persons who service a portfolio of Mortgage Loans having an aggregate principal amount comparable to that of the servicing portfolio of such Servicer or Borrower, respectively, and which are generally regarded as servicers acceptable to institutional investors.
SECTION 8Negative Covenants
Borrower covenants and agrees that, as long as the Obligations or any part thereof are outstanding or Lender has any Commitment hereunder:
Section 8.1Reserved.
Section 8.2Limitation on Liens. Other than the Agency’s Interest, Borrower shall not pledge, grant a security interest or assign any existing or future rights to service any of the Collateral or to be compensated for servicing any of the Collateral, or pledge or grant to any other Person any security interest in any Servicing Rights (other than the Servicing Rights set forth on Schedule 4.1(a)(1) as delivered by Borrower to Lender on the Closing Date). Borrower shall not permit any Servicing Rights, other than the Servicing Rights set forth on Schedule 4.1(a)(1) and delivered by Borrower to Lender as of the Closing Date, to become Excluded Collateral.
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Section 8.3Mergers.
(a)Borrower shall not, and shall not permit any Obligated Party to, directly or indirectly, become a party to a merger or consolidation, or purchase or otherwise acquire all or any part of the assets of any Person or any shares or other evidence of beneficial ownership of any Person, or wind-up, dissolve, or liquidate, if such transaction would constitute an Organic Change.
(b)Borrower shall not, and shall not permit any Obligated Party to, divide into separate Persons (as may be permitted under the Delaware Limited Liability Company Act) without the written consent of the Lender.
Section 8.4Restricted Payments.
At any time an Event of Default has occurred and is continuing or would result therefrom, Borrower shall not pay, make, declare or incur any liability to pay, make, declare or incur any dividends or other distribution, direct or indirect, on or on account of any shares of its stock (or equivalent equity interest) or any redemption or other acquisition, direct or indirect, of any shares of its stock (or equivalent equity interest) or of any warrants, rights or other options to purchase any shares of its stock (or equivalent equity interest), nor purchase, acquire, redeem or retire any stock (or equivalent equity interest) in itself whether now or hereafter outstanding, except that, notwithstanding the foregoing, the Borrower shall be permitted at all times (regardless of whether or not a Default or Event of Default exists) to make Permitted Distributions.
Section 8.5Reserved.
Section 8.6Transactions With Affiliates.
Borrower shall not, and shall not permit any Obligated Party to, directly or indirectly, enter into any transaction, including, without limitation, the purchase, sale, or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate of Borrower or such Obligated Party, except in the Ordinary Course of Business and pursuant to the reasonable requirements of Borrower’s or such Obligated Party’s business, pursuant to a transaction which is otherwise not prohibited under this Agreement, and upon fair and reasonable terms no less favorable to Borrower or such Obligated Party than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate of Borrower or such Obligated Party.
Section 8.7Disposition of Assets.
Borrower shall not, and shall not permit any Obligated Party to, directly or indirectly, sell, lease, assign, transfer, or otherwise dispose of any of the Collateral if, after giving effect to the application of proceeds of such disposition, a Borrowing Base Deficiency would exist.
Section 8.8Reserved.
Section 8.9Reserved.
Section 8.10Nature of Business.
Borrower shall not, and shall not permit any Obligated Party to, engage in any business other than the Consumer Lending Business.
Section 8.11Environmental Protection.
Borrower shall not, and shall not permit any Obligated Party to, directly or indirectly (a) use (or permit any tenant to use) any of their respective Properties or assets for the handling, processing, storage, transportation, or disposal of any Hazardous Material, (b) generate any Hazardous Material, (c) conduct any activity that is likely to cause a Release or threatened Release of any Hazardous Material, or (d)
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otherwise conduct any activity or use any of their respective Properties or assets in any manner that is likely to violate any Environmental Law or create any Environmental Liabilities for which Borrower or any Obligated Party would be responsible.
Section 8.12Accounting.
Borrower shall not, and shall not permit any Obligated Party to, change its fiscal year or make any change (a) in accounting treatment or reporting practices, except as required by GAAP and disclosed to Lender, or (b) in tax reporting treatment, except as required by law and disclosed to Lender.
Section 8.13No Negative Pledge.
Borrower shall not, and shall not permit any Obligated Party to, enter into or permit to exist any arrangement or agreement, other than pursuant to this Agreement or any Loan Document, which directly or indirectly prohibits Borrower or any Obligated Party from creating or incurring a Lien on the Collateral.
Section 8.14Reserved.
Section 8.15Reserved.
Section 8.16OFAC.
Borrower shall not, and shall not permit any Obligated Party to, fail to comply with the laws, regulations and executive orders referred to in Section 6.19 and Section 6.20.
Section 8.17Reserved.
Section 8.18Conditional Repurchase, Indemnity or Other Recourse Obligations
. Borrower shall not undertake or assume any conditional repurchase, indemnity or other recourse obligations in respect of Mortgage Loans sold which obligations and liabilities, when combined with Borrower’s contingent liabilities, constitute contingent liabilities that are required by GAAP either to be accrued as a charge to income or to be disclosed by a note to Borrower’s financial statements in excess of Borrower’s loan loss reserve.
Section 8.19Special Negative Covenants Concerning Collateral.
(a)Without the Lender’s prior written consent, Borrower shall not execute any amendments to any Servicing Agreement that could reasonably be expected to materially and adversely affect the value of any Collateral or to reduce or delay payment or collection of amounts due Borrower from or in respect of any Collateral and Borrower will provide a copy of every supplement, amendment, restatement or replacement of any of such Servicing Agreements to the Lender promptly (and in no event later than five (5) Business Days) after the same shall become effective other than any such supplements or amendments that are imposed by the Agency on all servicers through the Guide or otherwise.
(b)Borrower shall not create, incur, grant, assume or suffer to exist any Lien on any of the Collateral, except only for Liens in favor of the Lender pursuant to this Agreement.
(c)Borrower shall not offer as Collateral any property against which any Person other than the Lender (for the benefit of itself and the Secured Parties) has a Lien.
Section 8.20Termination of Servicing Agreements or Servicing Rights
Borrower shall not, and (except as described in the following proviso) shall not give any Agency advance written notice of any intention to, terminate its contractual rights to the servicing of any Mortgage
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Loans (unless such termination is at Lender’s express direction); provided, that Borrower shall observe any notice or other requirements of any Approved Servicing Agreement in connection with any such termination.
Section 8.21No Amendments
Borrower will make, or permit to be made, any amendments or modifications to its Constituent Documents, which could reasonably be expected to have a material adverse effect on Borrower or its Subsidiaries or Lender.
SECTION 9

RESERVED
SECTION 10Default
Section10.1Events of Default.
Each of the following shall be deemed an “Event of Default”:
(a)Borrower shall fail to pay the Obligations or any part thereof shall not be paid when due or declared due;
(b)Borrower shall fail to provide to Lender timely any notice of Default or Event of Default as required by Section 7.1.(g) of this Agreement or Borrower shall breach (i) any provision of Section 8 of this Agreement or (ii) any provision of Section 2 the Pricing Side Letter;
(c)Any representation or warranty made or deemed made by Borrower or any other Obligated Party (or any of their respective officers) in any Loan Document or in any certificate, report, notice, or financial statement furnished at any time in connection with this Agreement shall be false, misleading, or erroneous in any material respect (without duplication of any materiality qualifier contained therein) when made or deemed to have been made; provided that if any of the Company’s representations in Section 6.23 (titled “Special Representations Concerning Collateral”) for any reason shall be (or shall prove to have been) untrue or incorrect, then such untruth or incorrectness shall not constitute a Default or an Event of Default, although, such untruth or incorrectness will result in the affected items of Collateral each thereupon having a Collateral Value of zero;
(d)Borrower or any Obligated Party shall fail to perform, observe, or comply with any covenant, agreement, or term contained in this Agreement or any other Loan Document (other than as covered by Sections 10.1(a) and (b)), and such failure continues for more than ten (10) days following the date such failure first began;
(e)Borrower or any other Obligated Party shall commence a voluntary proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official of it or a substantial part of its Property or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it or shall make a general assignment for the benefit of creditors or shall generally fail to pay its debts as they become due or shall take any limited liability company action to authorize any of the foregoing;
(f)An involuntary proceeding shall be commenced against Borrower or any Obligated Party seeking liquidation, reorganization, or other relief with respect to it or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, or other similar official for it or a substantial part of its
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Property, and such involuntary proceeding shall remain undismissed and unstayed for a period of thirty (30) days;
(g)Borrower or any other Obligated Party shall fail to pay when due any principal of or interest on any Debt (other than the Obligations), or the maturity of any such Debt shall have been accelerated, or any such Debt shall have been required to be prepaid prior to the stated maturity thereof, or any event shall have occurred that permits (or, with the giving of notice or lapse of time or both, would permit) any holder or holders of such Debt or any Person acting on behalf of such holder or holders to accelerate the maturity thereof or require any such prepayment (provided that no Event of Default shall be deemed to have occurred or be continuing if the holder or holders of such Debt waives their right to accelerate the maturity or require any such prepayment);
(h)A default or event of default occurs with respect to any document that evidences any of the Obligations, or any other event shall occur or condition shall exist if the effect of such, default, event of default, event or condition is to cause, or to permit the holders of any of the Obligations to cause, any Obligation to become due prior to the stated maturity or stated due date thereof;
(i)This Agreement or any other Loan Document shall cease to be in full force and effect or shall be declared null and void or the validity or enforceability thereof shall be contested or challenged by Borrower, any Obligated Party or any of their respective equity holders, or Borrower or any Obligated Party shall deny that it has any further liability or obligation under any of the Loan Documents, or any Lien created by the Loan Documents shall for any reason cease to be a valid, first priority perfected Lien upon any of the Collateral purported to be covered thereby;
(j)Any of the following events shall occur or exist with respect to Borrower or any ERISA Affiliate: (i) any ERISA Event occurs with respect to a Plan or Multiemployer Plan, or (ii) any Prohibited Transaction involving any Plan; and in each case above, such event or condition, together with all other events or conditions, if any, have subjected or could in the reasonable opinion of Lender subject Borrower or any ERISA Affiliate to any tax, penalty, or other liability to a Plan, a Multiemployer Plan, the PBGC, the IRS, the U. S. Department of Labor, or otherwise (or any combination thereof) which in the aggregate exceed or could reasonably be expected to result in a Material Adverse Event;
(k)A Change of Control or an Organic Change shall occur;
(l)Borrower, any of its Subsidiaries, or any Obligated Party, or any of their properties, revenues, or assets, shall become subject to an order of forfeiture, seizure, or divestiture (whether under the Racketeer Influenced and Corrupt Organization Act of 1970 or otherwise) and the same shall not have been discharged within thirty (30) days from the date of entry thereof;
(m)Borrower or any Obligated Party shall fail to discharge, stay or appeal within a period of thirty (30) days after the commencement thereof any attachment, sequestration, or similar proceeding or proceedings involving an aggregate amount in excess of $1,000,000 against any of its assets or Properties;
(n)A final judgment or judgments for the payment of money in excess of $1,000,000 individually or $2,500,000 in the aggregate shall be rendered by a court or courts against Borrower or any Obligated Party and the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within thirty (30) days from the date of entry thereof and Borrower or such Obligated Party shall not, within such period of thirty (30) days, or such longer period during which execution of the same shall have been satisfied, stayed, appeal therefrom or cause the execution thereof to be stayed during such appeal;
(o)Lender determines that a Material Adverse Event has occurred or a circumstance exists that could result in a Material Adverse Event;
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(p)Borrower shall take or omit to take any act (i) that would result in the suspension or loss of any of its statuses, once achieved or any of such statuses of its subservicer, if any, of any Agency’s Mortgage Loans pools for which Borrower is Servicer, as an Agency-approved servicer, or (ii) after which Borrower or any such relevant subservicer would no longer be in good standing as such, or (iii) after which Borrower or any such relevant subservicer would no longer currently satisfy all applicable Agency’s net worth requirements, if all of the material effects of such act or omission shall have not been cured by Borrower or waived by the relevant Agency before termination of such status;
(q)Borrower’s rights to service Mortgage Loans for any one or more investors under Servicing Agreements the value of which rights to Borrower (as reasonably estimated by the Lender) equals or exceeds 5.00% of the aggregate principal amount of Borrower’s Servicing Portfolio shall be terminated for cause (i.e., on account of act(s) or omission(s) by Borrower for which the holder, or a trustee for the holder, of the relevant Serviced Loans has the right under such Servicing Agreement to terminate such servicing rights);
(r)Either Freddie Mac or, with respect to any Non-Agency Servicing Rights, any other owner of Mortgage Loans, terminates any Servicing Right or Servicing Agreement related to the Collateral that has been Pledged to Lender; or
(s)A Servicer Downgrade Event has occurred.
Section10.2Remedies Upon Default.
If any Event of Default shall occur and be continuing, then Lender may without notice terminate the Commitment or declare the Obligations or any part thereof to be immediately due and payable, or both, and the same shall thereupon become immediately due and payable, without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower; provided, however, that upon the occurrence of an Event of Default under Section 10.1(e) or (f), the Commitment shall automatically terminate, and the Obligations shall become immediately due and payable, in each case without notice, demand, presentment, notice of dishonor, notice of acceleration, notice of intent to accelerate, notice of intent to demand, protest, or other formalities of any kind, all of which are hereby expressly waived by Borrower. In addition to the foregoing, if any Event of Default shall occur and be continuing, Lender may exercise all rights and remedies available to it in law or in equity, under the Loan Documents, or otherwise.
Section10.3Application of Funds.
After the exercise of remedies provided for in Section 10.2 (or after the Loans have automatically become immediately due and payable), any amounts received on account of the Obligations shall be applied by Lender in such order as it elects in its sole discretion.
Section10.4Performance by Lender.
If Borrower shall fail to perform any covenant or agreement contained in any of the Loan Documents, then Lender may perform or attempt to perform such covenant or agreement on behalf of Borrower. In such event, Borrower shall, at the request of Lender, promptly pay to Lender any amount expended by Lender in connection with such performance or attempted performance, together with interest thereon at the Default Interest Rate from and including the date of such expenditure to but excluding the date such expenditure is paid in full. Notwithstanding the foregoing, it is expressly agreed that Lender shall not have any liability or responsibility for the performance of any covenant, agreement, or other obligation of Borrower under this Agreement or any other Loan Document.
SECTION 11Miscellaneous
Section11.1Expenses.
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Borrower hereby agrees to pay on demand: (a) all costs and expenses of Lender in connection with the preparation, negotiation, execution, and delivery of this Agreement and the other Loan Documents and any and all amendments, modifications, renewals, extensions, and supplements thereof and thereto, including, without limitation, the reasonable fees and expenses of legal counsel, advisors, consultants, and auditors for Lender; (b) all costs and expenses of Lender in connection with any Default or Event of Default and the enforcement of this Agreement or any other Loan Document, including, without limitation, the fees and expenses of legal counsel, advisors, consultants, and auditors for Lender; (c) all transfer, stamp, documentary, or other similar taxes, assessments, or charges levied by any Governmental Authority in respect of this Agreement or any of the other Loan Documents; (d) all costs, expenses, assessments, and other charges incurred in connection with any filing, registration, recording, or perfection of any Lien contemplated by this Agreement or any other Loan Document; and (e) all other costs and expenses incurred by Lender in connection with this Agreement or any other Loan Document, any litigation, dispute, suit, proceeding or action; the enforcement of its rights and remedies, and the protection of its interests in bankruptcy, insolvency or other legal proceedings, including, without limitation, all costs, expenses, and other charges (including Lender’s internal charges) incurred in connection with evaluating, observing, collecting, examining, auditing, appraising, selling, liquidating, or otherwise disposing of the Collateral or other assets of Borrower.
Section11.2INDEMNIFICATION.
BORROWER SHALL INDEMNIFY LENDER AND EACH AFFILIATE THEREOF AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AND AGENTS FROM, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) TO WHICH ANY OF THEM MAY BECOME SUBJECT WHICH DIRECTLY OR INDIRECTLY ARISE FROM OR RELATE TO (A) THE NEGOTIATION, EXECUTION, DELIVERY, PERFORMANCE, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS, (B) ANY OF THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS, (C) ANY BREACH BY BORROWER OF ANY REPRESENTATION, WARRANTY, COVENANT, OR OTHER AGREEMENT CONTAINED IN ANY OF THE LOAN DOCUMENTS, (D) THE PRESENCE, RELEASE, THREATENED RELEASE, DISPOSAL, REMOVAL, OR CLEANUP OF ANY HAZARDOUS MATERIAL LOCATED ON, ABOUT, WITHIN, OR AFFECTING ANY OF THE PROPERTIES OR ASSETS OF BORROWER OR ANY OF ITS SUBSIDIARIES OR ANY OTHER OBLIGATED PARTY, OR (E) ANY INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY THREATENED INVESTIGATION, LITIGATION, OR OTHER PROCEEDING, RELATING TO ANY OF THE FOREGOING. WITHOUT LIMITING ANY PROVISION OF THIS AGREEMENT OR OF ANY OTHER LOAN DOCUMENT, IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT EACH PERSON TO BE INDEMNIFIED UNDER THIS SECTION SHALL BE INDEMNIFIED FROM AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RESULTING FROM THE SOLE CONTRIBUTORY OR ORDINARY NEGLIGENCE OF SUCH PERSON.
Section11.3Limitation of Liability.
Neither Lender nor any Affiliate, officer, director, employee, attorney, or agent of Lender shall have any liability with respect to, and Borrower hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by Borrower or any other Obligated Party in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. Borrower hereby waives, releases, and agrees not to sue Lender or any of Lender’s Affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents.
Section11.4No Duty.
    43    Credit and Security Agreement


All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Lender shall have the right to act exclusively in the interest of Lender and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to Borrower or any of Borrower’s equity holders, Affiliates, officers, employees, attorneys, agents, or any other Person.
Section11.5Lender Not Fiduciary.
The relationship between Borrower and Lender is solely that of debtor and creditor, and Lender has no fiduciary or other special relationship with Borrower, and no term or condition of any of the Loan Documents shall be construed so as to deem the relationship between Borrower and Lender to be other than that of debtor and creditor.
Section11.6Equitable Relief.
Borrower recognizes that in the event Borrower fails to pay, perform, observe, or discharge any or all of the Obligations, any remedy at law may prove to be inadequate relief to Lender. Borrower therefore agrees that Lender, if Lender so requests, shall be entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.
Section11.7No Waiver; Cumulative Remedies.
No failure on the part of Lender to exercise and no delay in exercising, and no course of dealing with respect to, 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 under this Agreement preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The rights and remedies provided for in this Agreement and the other Loan Documents are cumulative and not exclusive of any rights and remedies provided by law.
Section11.8Successors and Assigns.
This Agreement is binding upon and shall inure to the benefit of Lender and Borrower and its successors and assigns, except that Borrower may assign or transfer any of its rights, duties, or obligations under this Agreement or the other Loan Documents without the prior written consent of Lender.
Section11.9Survival.
All representations and warranties made in this Agreement or any other Loan Document or in any document, statement, or certificate furnished in connection with this Agreement shall survive the execution and delivery of this Agreement and the other Loan Documents, and no investigation by Lender or any closing shall affect the representations and warranties or the right of Lender to rely upon them. Without prejudice to the survival of any other obligation of Borrower hereunder, the obligations of Borrower under Sections 11.1, and 11.2 shall survive repayment of the Obligations and termination of the Commitment.
Section11.10Amendment.
The provisions of this Agreement and the other Loan Documents to which Borrower is a party may be amended or waived only by an instrument in writing signed by the parties hereto.
Section11.11Notices.
Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission) and mailed, faxed or delivered, to the address, facsimile number or subject to the last sentence hereof electronic mail address specified for notices below the signatures hereon or to such other address as shall be designated by such party in a notice to the other parties. All such other notices and other communications shall be deemed to have been
    44    Credit and Security Agreement


given or made upon the earliest to occur of (a) actual receipt by the intended recipient or (b)(i) if delivered by hand or courier, when signed for by the designated recipient; (ii) if delivered by mail, four (4) business days after deposit in the mail, postage prepaid; (iii) if delivered by facsimile, when sent; and (iv) if delivered by electronic mail (which form of delivery is subject to the provisions of the last sentence below), when delivered; provided, however, that notices and other communications pursuant to Section 2 shall not be effective until actually received by Lender. Electronic mail and intranet websites may be used only to distribute routine communications, such as financial statements and other information, and to distribute Loan Documents for execution by the parties thereto, and may not be used for any other purpose.
Section11.12GOVERNING LAW; VENUE; SERVICE OF PROCESS.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS; PROVIDED THAT LENDER SHALL RETAIN ALL RIGHTS UNDER FEDERAL LAW. THIS AGREEMENT HAS BEEN ENTERED INTO IN DALLAS COUNTY, TEXAS, AND IS PERFORMABLE FOR ALL PURPOSES IN DALLAS COUNTY, TEXAS. THE PARTIES HEREBY AGREE THAT ANY LAWSUIT, ACTION, OR PROCEEDING THAT IS BROUGHT (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY, OR THE ACTIONS OF THE LENDER IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN DALLAS COUNTY, TEXAS. BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH LAWSUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND (C) FURTHER WAIVES ANY CLAIM THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREE THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AT THE ADDRESS FOR NOTICES REFERENCED IN SECTION 11.11 HEREOF.
Section11.13Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
Section11.14Severability.
Any provision of this Agreement held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Agreement and the effect thereof shall be confined to the provision held to be invalid or illegal.
Section11.15Headings.
The headings, captions, and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
Section11.16Participations; Etc.
Lender shall have the right at any time and from time to time to grant participations in, and sell and transfer, the Obligations and any Loan Documents. Each actual or proposed participant or assignee, as the case may be, shall be entitled to receive all information received by Lender regarding Borrower and the Obligated Parties, including, without limitation, information required to be disclosed to a participant or assignee pursuant to Banking Circular 181 (Rev., August 2, 1984), issued by the Comptroller of the Currency (whether the actual or proposed participant or assignee is subject to the circular or not).
Section11.17Construction.
    45    Credit and Security Agreement


Borrower and Lender acknowledge that each of them has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel and that this Agreement and the other Loan Documents shall be construed as if jointly drafted by Borrower and Lender.
Section11.18Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a Default or Event of Default if such action is taken or such condition exists.
Section11.19WAIVER OF JURY TRIAL
. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.19.
Section11.20Additional Interest Provision.
It is expressly stipulated and agreed to be the intent of Borrower and Lender at all times to comply strictly with the applicable law governing the maximum rate or amount of interest payable on the indebtedness evidenced by the Revolving Credit Note, any Loan Document, and the Related Indebtedness (or applicable United States federal law to the extent that it permits Lender to contract for, charge, take, reserve or receive a greater amount of interest than under applicable law). If the applicable law is ever judicially interpreted so as to render usurious any amount (a) contracted for, charged, taken, reserved or received pursuant to the Revolving Credit Note, any of the other Loan Documents or any other communication or writing by or between Borrower and Lender related to the transaction or transactions that are the subject matter of the Loan Documents, (b) contracted for, charged, taken, reserved or received by reason of Lender’s exercise of the option to accelerate the maturity of the Revolving Credit Note and/or any and all indebtedness paid or payable by Borrower to Lender pursuant to any Loan Document other than the Revolving Credit Note (such other indebtedness being referred to in this Section as the “Related Indebtedness”), or (c) Borrower will have paid or Lender will have received by reason of any voluntary prepayment by Borrower of the Revolving Credit Note and/or the Related Indebtedness, then it is Borrower’s and Lender’s express intent that all amounts charged in excess of the Maximum Rate shall be automatically canceled, ab initio, and all amounts in excess of the Maximum Rate theretofore collected by Lender shall be credited on the principal balance of the Revolving Credit Note and/or the Related Indebtedness (or, if the Revolving Credit Note and all Related Indebtedness have been or would thereby be paid in full, refunded to Borrower), and the provisions of the Revolving Credit Note and the other Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new document, so as to comply with the applicable law, but so as to permit the recovery of the fullest amount otherwise called for hereunder and thereunder; provided, however, if the Revolving Credit Note or Related Indebtedness has been paid in full before the end of the stated term thereof, then Borrower and Lender agree that Lender shall, with reasonable promptness after Lender discovers or is advised by Borrower that interest was received in an amount in excess of the Maximum Rate, either refund such excess interest to Borrower and/or credit such excess interest against the Revolving Credit Note and/or any Related Indebtedness then owing by Borrower to Lender. Borrower hereby agrees that as a condition precedent to any claim seeking
    46    Credit and Security Agreement


usury penalties against Lender, Borrower will provide written notice to Lender, advising Lender in reasonable detail of the nature and amount of the violation, and Lender shall have sixty (60) days after receipt of such notice in which to correct such usury violation, if any, by either refunding such excess interest to Borrower or crediting such excess interest against the Revolving Credit Note to which the alleged violation relates and/or the Related Indebtedness then owing by Borrower to Lender. All sums contracted for, charged, taken, reserved or received by Lender for the use, forbearance or detention of any debt evidenced by the Revolving Credit Note and/or the Related Indebtedness shall, to the extent permitted by applicable law, be amortized or spread, using the actuarial method, throughout the stated term of the Revolving Credit Note and/or the Related Indebtedness (including any and all renewal and extension periods) until payment in full so that the rate or amount of interest on account of the Revolving Credit Note and/or the Related Indebtedness does not exceed the Maximum Rate from time to time in effect and applicable to the Revolving Credit Note and/or the Related Indebtedness for so long as debt is outstanding. In no event shall the provisions of Chapter 346 of the Texas Finance Code (which regulates certain revolving credit loan accounts and revolving triparty accounts) apply to the Revolving Credit Note and/or any of the Related Indebtedness. Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, it is not the intention of Lender to accelerate the maturity of any interest that has not accrued at the time of such acceleration or to collect unearned interest at the time of such acceleration.
Section11.21Ceiling Election.
To the extent that Lender is relying on Chapter 303 of the Texas Finance Code to determine the Maximum Rate payable on the Revolving Credit Note and/or any other portion of the Indebtedness, Lender will utilize the weekly ceiling from time to time in effect as provided in such Chapter 303. To the extent United States federal law permits Lender to contract for, charge, take, receive or reserve a greater amount of interest than under Texas law, Lender will rely on United States federal law instead of such Chapter 303 for the purpose of determining the Maximum Rate. Additionally, to the extent permitted by applicable law now or hereafter in effect, Lender may, at its option and from time to time, utilize any other method of establishing the Maximum Rate under such Chapter 303 or under other applicable law by giving notice, if required, to Borrower as provided by applicable law now or hereafter in effect.
Section11.22USA Patriot Act Notice.
Lender hereby notifies Borrower that pursuant to the requirements of the Patriot Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies Borrower and each other Obligated Party, which information includes the name and address of Borrower and each other Obligated Party and other information that will allow Lender to identify Borrower and each other Obligated Party in accordance with the Patriot Act and the Beneficial Ownership Regulation. In addition, Borrower agrees to (a) ensure that no Person who owns a controlling interest in or otherwise controls Borrower or any Subsidiary of Borrower is or shall be listed on the Specially Designated Nationals and Blocked Person List or other similar lists maintained by the OFAC, the Department of the Treasury or included in any Executive Order, (b) not to use or permit the use of proceeds of the Obligations to violate any of the foreign asset control regulations of the OFAC or any enabling statute or Executive Order relating thereto, and (c) comply, or cause its Subsidiaries to comply, with the applicable laws.
Section11.23NOTICE OF FINAL AGREEMENT.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]

    47    Credit and Security Agreement


EXECUTED to be effective as of the date first written above.
BORROWER:

loanDepot.com, LLC,
a Delaware limited liability company


By:        
    Name:
    Title:

Address for Notices:
26642 Towne Centre Drive
Foothill Ranch, California 92610
Fax No.:
Telephone No.:

Attention:
                        With a copy to:
26642 Towne Centre Drive
Foothill Ranch, California 92610
Fax No.:
Telephone No.:

Attention:
    
LENDER:

NEXBANK



By:    
    
    Name: Rhett Miller
    Title: Senior Vice President and Chief Credit
     Officer

Address for Notices:
2515 McKinney Avenue, Suite 1100
Dallas, Texas 75201
Telephone No.:
Attention:

Signature Page to Credit Agreement




SCHEDULE 4.1(a)(1)

None.

D-2294739_9.doc        Schedule 4.1(a) to Credit Agreement




SCHEDULE 4.1(a)(2)
PLEDGED SERVICING RIGHTS

Delivered separately to NexBank
D-2294739_9.doc        Schedule 4.1(a) to Credit Agreement




SCHEDULE 5.1(r)
ADDITIONAL CONDITIONS PRECEDENT

None.
        Schedule 5.1(r) to Credit Agreement




SCHEDULE 6.2
EXISTING DEBT

See Attached.1

1 NTD: loanDepot to provide list of Existing Debt.
        Schedule 6.5 to Credit Agreement





SCHEDULE 6.5
LITIGATION AND JUDGMENTS

None.

        Schedule 6.5 to Credit Agreement



SCHEDULE 6.13
SUBSIDIARIES, VENTURES, ETC.
loanDepot Agency Advance Receivables Depositor, LLC
loanDepot BA Warehouse, LLC