FALSE000183163100018316312024-01-252024-01-25
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 (or date of earliest event reported): January 25, 2024
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loanDepot, Inc.
(Exact Name of Registrant as Specified in its Charter)
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| Delaware | | 001-40003 | | 85-3948939 |
(State or other jurisdiction of incorporation) | | (Commission File Number) | | (I.R.S. Employer Identification Number) |
6561 Irvine Center Drive
Irvine, California 92618
(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:
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| ☐ | | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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| ☐ | | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| ☐ | | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | | 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:
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| Title of each class | | Trading Symbol(s) | | Name of each exchange on which registered |
| Class A Common Stock, $0.001 Par Value | | LDI | | New 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 1.02 Termination of a Material Definitive Agreement.
loanDepot.com, LLC (“Company”), is a Delaware limited liability company and an indirect subsidiary of loanDepot, Inc.
In August 2017, Company entered into a participation agreement pursuant to which the Company, as initial participant, was issued participation certificates representing beneficial interests in excess spread and advance reimbursement amounts (the “Excess Spread PC”) relating to Ginnie Mae mortgage servicing rights (the “GNMA MSRs”) owned by Company. Company entered into a master repurchase agreement with one of its wholly-owned subsidiaries, loanDepot GMSR Master Trust (“Issuer”), and pledged the Excess Spread PC and the GNMA MSRs to Issuer, which in turn entered into a base indenture (the “Original Base Indenture”) to finance the Excess Spread PC and the GNMA MSRs. Pursuant to the terms of the Original Base Indenture, Issuer may, from time to time pursuant to the terms of any supplemental indenture, issue to institutional investors variable funding notes or one or more series of term notes, in each case secured by participation certificates relating to the GNMA MSRs held by Issuer (collectively, the “Original GMSR Facility”). On November 15, 2021, the Original GMSR Facility was amended and restated pursuant to which the Excess Spread PC was amended to reflect a participation interest in only the portfolio excess spread and entitle the holder to receive collections solely with respect to the portfolio excess spread, and Company created a separate participation interest in the advance reimbursement amounts that entitle the holder to receive collections with respect to such advance reimbursement amounts (the “P&I Advance PC”), and a separate participation interest in the servicing advance reimbursement amounts that entitle the holder to receive collections with respect to such servicing advance reimbursement amounts (the “Servicing Advance PC”).
In connection with the Original GMSR Facility, Company was a party to: (i) the Second Amended and Restated Base Indenture, dated as of November 15, 2021, by and among Issuer, Citibank, N.A., as indenture trustee (“Indenture Trustee”), calculation agent (“Calculation Agent”), paying agent (“Paying Agent”) and securities intermediary (“Securities Intermediary”), the Company, as servicer and administrator, Atlas Securitized Products, L.P. (“Atlas”), as administrative agent (in such capacity, the “Resigning Administrative Agent”), and Pentalpha Surveillance LLC, as credit manager (“Credit Manager”), as the same may be amended, restated, supplemented or otherwise modified from time to time; (ii) the Amended and Restated Series 2017-VF1 Indenture Supplement, dated as November 15, 2021, by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and the Resigning Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time; (iii) the Series 2021-SAVF1 Indenture Supplement, dated as of November 15, 2021, by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Resigning Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time; (iv) the Series 2021-PIAVF1 Indenture Supplement, dated as of November 15, 2021, by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Resigning Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time; (v) the Series 2017-MBSADV1 Indenture Supplement, dated as of August 11, 2017, by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Resigning Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time; (vi) the Series 2018-GT1 Indenture Supplement, dated as of October 31, 2018, by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Resigning Administrative Agent, as the same may be amended, restated, supplemented or otherwise modified from time to time; (vii) the Second Amended and Restated Master Repurchase Agreement, dated as of November 15, 2021, by and between the Issuer, as buyer, and Company, as seller, as the same may be amended, restated, supplemented or otherwise modified from time to time; (viii) the Administration Agreement, dated as of August 11, 2017, by and between the Issuer and Company, as administrator, as the same may be amended, restated, supplemented or otherwise modified from time to time; (ix) the Amended and Restated Trust Agreement, dated as of August 11, 2017, by and between Company, as settlor and administrator, and Wilmington Savings Fund Society, FSB, as trustee, as the same may be amended, restated, supplemented or otherwise modified from time to time; (x) the Amended and Restated Series 2017-VF1 Master Repurchase Agreement, dated as November 15, 2021, by and among Atlas, Nexera Holding LLC (“Nexera”) and Company, as the same may be amended, restated, supplemented or otherwise modified from time to time; (xi) the Series 2021-SAVF1 Master Repurchase Agreement, dated as February 10, 2022, by and among Atlas, Nexera and Company, as the same may be amended, restated, supplemented or otherwise modified from time to time; (xii) the Series 2021-PIAVF1 Master Repurchase Agreement, dated as February 10, 2022, by and among Atlas, Nexera and Company, as the same may be amended, restated, supplemented or otherwise modified from time to time; and (xiii) the Series 2017-MBSADV1 Note Purchase Agreement, dated as of August 11, 2017, among the Issuer, Resigning Administrative Agent, and Company. The agreements listed in clauses (i) through (ix) above, together with the other Transaction documents (as defined in the Base Indenture) are referred to herein collectively as the “Existing Transaction Documents” and the agreements listed in clauses (x) through (xiii) above are referred to herein as the “Existing VFN Documents.”
On January 25, 2024, Atlas resigned as administrative agent under the Existing Transaction Documents and Company, Atlas and Nexera mutually agreed to terminate the Existing VFN Documents, and the Existing Transaction Documents have been amended and restated as described under Item 1.01 below.
1.01 Entry into a Material Definitive Agreement.
In connection with Atlas’s resignation and the termination of the Existing VFN Documents, on January 25, 2024, Nomura Corporate Funding Americas, LLC (“NCFA”) was appointed as successor administrative agent (in such capacity, the “Successor Administrative Agent”) under the Existing Transaction Documents and Company entered into the following amended and restated documents: (i) the Third Amended and Restated Base Indenture, dated as of January 25, 2024, by and among the Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, Successor Administrative Agent, and Credit Manager, as the same may be amended, restated, supplemented or otherwise modified from time to time; (ii) the Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as January 25, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Series 2017-VF1 Indenture Supplement”), by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Successor Administrative Agent; (iii) the Amended and Restated Series 2021-SAVF1 Indenture Supplement, dated as January 25, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Series 2021-SAVF1 Indenture Supplement”), by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Successor Administrative Agent; (iv) the Amended and Restated Series 2021-PIAVF1 Indenture Supplement, dated as January 25, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Series 2021-PIAVF1 Indenture Supplement”), by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Successor Administrative Agent; (v) the Amended and Restated Series 2017-MBSADV1 Indenture Supplement, dated as January 25, 2024 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Series 2017-MBSADV1 Indenture Supplement”), by and among Issuer, Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, Company, as servicer and administrator, and Successor Administrative Agent; (vi) the Third Amended and Restated Participation Agreement, dated as of January 25, 2024, between Company, as company and as initial participant; (vii) the Third Amended and Restated Master Repurchase Agreement, dated as of January 25, 2024, by and between the Issuer, as buyer, and Company, as seller; and (viii) the Third Amended and Restated Acknowledgment Agreement, dated as of January 25, 2024, by and among the Indenture Trustee, as secured party, Company, as issuer, and the Government National Mortgage Association. The agreements listed in clauses (i) through (viii) above are referred to herein as the “Amended Transaction Documents”.
Company entered into the Amended Transaction Documents for the purpose of amending and restating the Existing Transaction Documents to remove references to Atlas, as administrative agent, and Nexera, as noteholder, adding references to NCFA, as administrative agent and as noteholder, updating Company’s notice information, removing the concept of “Pledged Eligible Security,” and with respect to the Series 2017-VF1 Indenture Supplement, the Series 2017-MBSADV1 Indenture Supplement, the Series 2021-SAVF1 Indenture Supplement, and the Series 2021-PIAVF1 Indenture Supplement, to update the benchmark provisions and remove references to LIBOR, to update the Cumulative Interest Shortfall Amount Rate and Default Supplemental Fee Rate, and to extend the maturity date to January 24, 2025.
Pursuant to the terms of the Series 2017-VF1 Indenture Supplement, the Series 2017-VF1 Notes (the “Series 2017-VF1 Notes”) were re-issued in the name of NCFA and loanDepot sold all of its rights, title and interest in the Series 2017-VF1 Notes to, and the Series 2017-VF1 Notes are financed by, NCFA pursuant to the Series 2017-VF1 Master Repurchase Agreement, dated as January 25, 2024, by and between NCFA and loanDepot (the “Series 2017-VF1 Repurchase Agreement”).
Pursuant to the terms of the Series 2021-SAVF1 Indenture Supplement, the Series 2021-SAVF1 Notes (the “Series 2021-SAVF1 Notes”) were re-issued in the name of NCFA and loanDepot sold all of its rights, title and interest in the Series 2021-SAVF1 Notes to, and the Series 2021-SAVF1 Notes are financed by, NCFA pursuant to the Series 2021-SAVF1 Master Repurchase Agreement, dated as January 25, 2024, by and between NCFA and loanDepot (the “Series 2021-SAVF1 Repurchase Agreement”).
Pursuant to the terms of the Series 2021-PIAVF1 Indenture Supplement, the Series 2021-PIAVF1 Notes (the “Series 2021-PIAVF1 Notes”) were be re-issued in the name of NCFA and loanDepot sold all of its rights, title and interest in the Series 2021-PIAVF1 Notes to, and the Series 2021-PIAVF1 Notes are financed by, NCFA pursuant to the Series 2021-PIAVF1 Master Repurchase Agreement, dated as January 25, 2024, by and between NCFA and loanDepot (the “Series 2021-PIAVF1 Repurchase Agreement”).
LD Holdings Group LLC, as further credit enhancement delivered a Guaranty, dated as of January 25, 2024, in favor of Nomura Corporate Funding Americas, LLC, as buyer (the “Guaranty”).
Pursuant to the terms of the Series 2017-MBSADV1 Indenture Supplement, the Series 2017-MBSADV1 Notes (the “Series 2017-MBSADV1 Notes,” and collectively, with the Series 2017-VF1 Notes, the Series 2021-SAVF1 Notes and the 2021-PIAVF1 Notes, the “VFNs”) were re-issued in the name of NCFA and were purchased by NCFA pursuant to the Series 2017-MBSADV1 Note Purchase Agreement, dated as of January 25, 2024 (the “Note Purchase Agreement,” and collectively
with the Amended Transaction Documents, the Series 2017-VF1 Repurchase Agreement, the Series 2021-SAVF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Guaranty, the “GMSR MSR Program”).
The foregoing description of the GMSR MSR Program does not purport to be complete and is subject to, and qualified in its entirety by reference to the full text of the principal program documents, which are attached to this report as Exhibits 10.1 through 10.11.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information contained in Item 1.01 above is hereby incorporated in this Item 2.03 by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. | Description |
| 10.1 | Third Amended and Restated Participation Agreement, dated as of January 25, 2024, by and between loanDepot.com, LLC, as the company, and loanDepot.com, LLC, as the initial participant, and consented to by Nomura Corporate Funding Americas, LLC, as administrative agent and as noteholder of 100% of the outstanding VFNs. |
| 10.2 | Third Amended and Restated Master Repurchase Agreement, dated as of January 25, 2024, by and between loanDepot GMSR Master Trust, as buyer, and loanDepot.com, LLC, as seller, and consented to by Citibank, N.A., as indenture trustee, and Nomura Corporate Funding Americas, LLC, as administrative agent and as noteholder of 100% of the outstanding VFNs. |
| 10.3 | Third Amended and Restated Base Indenture, dated as of January 25, 2024, by and among loanDepot GMSR Master Trust, as issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, loanDepot.com, LLC, as servicer and administrator, Nomura Corporate Funding Americas, LLC, as administrative agent, and Pentalpha Surveillance LLC, as credit manager, and consented to by Nomura Corporate Funding Americas, LLC, as noteholder of 100% of the outstanding VFNs. |
| 10.4 | Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of January 25, 2024, to Third Amended and Restated Base Indenture, dated as of January 25, 2024 (see exhibit 10.3 hereof), MSR Collateralized Notes, Series 2017-VF1, by and among loanDepot GMSR Master Trust, as issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, loanDepot.com, LLC, as servicer and administrator, and Nomura Corporate Funding Americas, LLC, as administrative agent, and consented to by Nomura Corporate Funding Americas, LLC, as noteholder of 100% of the outstanding VFNs. |
| 10.5 | Amended and Restated Series 2017-MBSADV1 Indenture Supplement, dated as of January 25, 2024, to Third Amended and Restated Base Indenture, dated as of January 25, 2024 (see exhibit 10.3 hereof), MSR Collateralized Notes, Series 2017-MBSADV1, by and among loanDepot GMSR Master Trust, as issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, loanDepot.com, LLC, as servicer and administrator, and Nomura Corporate Funding Americas, LLC, as administrative agent, and consented to by Nomura Corporate Funding Americas, LLC, as noteholder of 100% of the outstanding VFNs. |
| 10.6 | Amended and Restated Series 2021-SAVF1 Indenture Supplement, dated as of January 25, 2024, to Third Amended and Restated Base Indenture, dated as of January 25, 2024 (see exhibit 10.3 hereof), MSR Collateralized Notes, Series 2021-SAVF1, by and among loanDepot GMSR Master Trust, as issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, loanDepot.com, LLC, as servicer and administrator, and Nomura Corporate Funding Americas, LLC, as administrative agent, and consented to by Nomura Corporate Funding Americas, LLC, as noteholder of 100% of the outstanding VFNs. |
| 10.7 | Amended and Restated Series 2021-PIAVF1 Indenture Supplement, dated as of January 25, 2024, to Third Amended and Restated Base Indenture, dated as of January 25, 2024 (see exhibit 10.3 hereof), MSR Collateralized Notes, Series 2021-PIAVF1, by and among loanDepot GMSR Master Trust, as issuer, Citibank, N.A., as indenture trustee, calculation agent, paying agent and securities intermediary, loanDepot.com, LLC, as servicer and administrator, and Nomura Corporate Funding Americas, LLC, as administrative agent, and consented to by Nomura Corporate Funding Americas, LLC, as noteholder of 100% of the outstanding VFNs. |
| 10.8 | Master Repurchase Agreement, dated as of January 25, 2024, by and among Nomura Corporate Funding Americas, LLC, as administrative agent and as buyer, and loanDepot.com, LLC, as seller, with respect to loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2017-VF1. |
| 10.9 | Master Repurchase Agreement, dated as of January 25, 2024, by and among Nomura Corporate Funding Americas, LLC, as administrative agent and as buyer, and loanDepot.com, LLC, as seller, with respect to loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-SAVF1. |
| 10.10 | Master Repurchase Agreement, dated as of January 25, 2024, by and among Nomura Corporate Funding Americas, LLC, as administrative agent and as buyer, and loanDepot.com, LLC, as seller, with respect to loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-PIAVF1. |
| 10.11 | |
104 | Cover 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.
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loanDepot, Inc. |
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By: | /s/ David Hayes | |
Name: David Hayes |
Title: Chief Financial Officer |
Date: January 31, 2024
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
EXECUTION VERSION
THIRD AMENDED AND RESTATED GMSR PARTICIPATION AGREEMENT
Dated as of January 25, 2024
by and between
LOANDEPOT.COM, LLC
as the Company
and
LOANDEPOT.COM, LLC
as the Initial Participant
This THIRD AMENDED AND RESTATED GMSR PARTICIPATION AGREEMENT, dated as of January 25, 2024 (the “Effective Date”) (as may be amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), is made by and between LOANDEPOT.COM, LLC (the “Company”) and LOANDEPOT.COM, LLC (the “Initial Participant”), and is consented to by loanDepot GMSR Master Trust, as repo buyer (in such capacity, the “Buyer”), NOMURA CORPORATE FUNDING AMERICAS, LLC, as administrative agent (the “Administrative Agent”) and NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”) as noteholder of the Outstanding VFNs (in such capacity, the “Noteholder”). Capitalized terms used herein have the meanings specified in Section 1.
W I T N E S S E T H:
WHEREAS, the Company and the Initial Participant have entered into that certain GMSR Participation Agreement, dated as of August 11, 2017 (the “Original Participation Agreement”), which was amended and restated by that certain Amended and Restated GMSR Participation Agreement, dated as of October 31, 2018, and further amended and restated by that certain Second Amended and Restated GMSR Participation Agreement, dated as of November 15, 2021 (the “Amended Participation Agreement”);
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, the Company and the Initial Participant have agreed, subject to the terms of this Agreement, that the Amended Participation Agreement be amended and restated on the Effective Date;
WHEREAS, loanDepot GMSR Master Trust, as issuer (in such capacity, the “Issuer”), Citibank, N.A. (“Citibank”), as indenture trustee (in such capacity, the “Indenture Trustee”), as calculation agent (in such capacity, the “Calculation Agent”), as paying agent (in such capacity, the “Paying Agent”) and as securities intermediary (in such capacity, the “Securities Intermediary”), the Company, as administrator (in such capacity, the “Administrator”) and as servicer (in such capacity, the “Servicer”), the Administrative Agent and Pentalpha Surveillance LLC, as credit manager, are parties to that certain Third Amended and
Restated Base Indenture, dated as of the date hereof (as may be amended, restated, supplemented, or otherwise modified from time to time, the “Base Indenture”), as supplemented by the Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (as may be amended, restated, supplemented, or otherwise modified from time to time, the “Series 2017-VF1 Indenture Supplement”), the Amended and Restated Series 2017-MBSADV1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2017-MBSADV1 Indenture Supplement”), the Series 2018-GT1 Indenture Supplement, dated as of October 31, 2018, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2018-GT1 Indenture Supplement”), the Amended and Restated Series 2021-SAVF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2021-SAVF1 Indenture Supplement”), the Amended and Restated Series 2021-PIAVF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2021-PIAVF1 Indenture Supplement”), and any other indenture supplements entered into from time to time in accordance with the terms of the Base Indenture;
WHEREAS, currently there are four (4) Outstanding Series of Variable Funding Notes and one (1) Outstanding Series of Term Notes: (i) the Series 2017-VF1 Note (the “Series 2017-VF1 Note”), which was issued to the Company pursuant to the terms of the Series 2017-VF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms set forth in the Series 2017-VF1 Master Repurchase Agreement, dated as of the date hereof, between the Company, the Administrative Agent and NCFA (the “2017-VF1 Repurchase Agreement”), pursuant to which the Company sold all of its rights, title and interest in the Series 2017-VF1 Note to the Noteholder; (ii) the Series 2017-MBSADV1 Note (the “Series 2017-MBSADV1 Note”), which was issued pursuant to the Series 2017-MBSADV1 Indenture Supplement and which has been transferred to NCFA and is subject to the terms of the Note Purchase Agreement, dated as of the date hereof, among the Issuer, the Administrative Agent and the Noteholder (the “Series 2017-MBSADV1 Note Purchase Agreement”); (iii) the Series 2021-SAVF1 Note (the “Series 2021-SAVF1 Note”), which was issued to the Company pursuant to the terms of the Series 2021-SAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-SAVF1 Master Repurchase Agreement, dated as of the date hereof, between the Company, the Administrative Agent and NCFA (the “2021-SAVF1 Repurchase Agreement”), pursuant to which the Company sold all of its rights, title and interest in the Series 2021-SAVF1 Note to the Noteholder; (iv) the Series 2021-PIAVF1 Note (the “Series 2021-PIAVF1 Note”), which was issued to the Company pursuant to the terms of the Series 2021-PIAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-PIAVF1 Master Repurchase Agreement, dated as of the date hereof, between the Company, the Administrative Agent and NCFA (the “2021-PIAVF1 Repurchase Agreement”), pursuant to which the Company sold all of its rights, title and interest in the Series 2021-PIAVF1 Note to the Noteholder; and (v) the Series 2018-GT1 Notes (the “Series 2018-GT1 Notes”), which were issued pursuant to the Series 2018-GT1 Indenture Supplement and sold to third party purchasers pursuant to the terms of the Term Note Purchase Agreement, dated as of October 26, 2018, among the Issuer, the Company, as seller, servicer and administrator, and Credit Suisse Securities (USA) LLC, as initial purchaser (the “Series 2018-GT1 Term Note Purchase Agreement”);
WHEREAS, pursuant to Section 10.3(g)(iii) of the Base Indenture, so long as any Note is Outstanding and until all obligations have been paid in full, the Company shall not consent to any amendment, modification or waiver of any term or condition of any Transaction Document, without the prior written consent of the Administrative Agent;
WHEREAS, the Amended Participation Agreement is a Transaction Document;
WHEREAS, pursuant to Section 4.1(a)(iii) of the Trust Agreement, the consent of each of the Owners (as defined in the Trust Agreement) (unless an Event of Default has occurred and is continuing), the Administrative Agent and the Series Required Noteholders of all Variable Funding Notes is required for the amendment or other change to any Transaction Document in circumstances where the consent of any Noteholder or the Administrative Agent is required (other than an amendment or supplement to the Base Indenture pursuant to Section 12.1 thereof);
WHEREAS, Section 2(c) of the Amended Participation Agreement requires the consent of the Buyer and Ginnie Mae in order to issue additional Participation Certificates hereunder;
WHEREAS, the Company owns and may from time to time originate, or acquire from third parties, Servicing Rights;
WHEREAS, the Servicing Rights consist of the right to receive, among other things, Portfolio Excess Spread and Advance Reimbursement Amounts;
WHEREAS, in order to obtain greater liquidity, the Company created a Participation Interest in the Portfolio Excess Spread and Advance Reimbursement Amounts relating to MBS Advances pursuant to which the holder of such Participation Interest is entitled to receive Portfolio Collections with respect to such Portfolio Excess Spread and MBS Advance Reimbursement Amounts and created the Original Participation Certificate to evidence such Participation Interest;
WHEREAS, in order to obtain greater liquidity, the Company and the Initial Participant entered into the Amended Participation Agreement to expand the Participation Interest in Advance Reimbursement Amounts to include Servicing Advance Reimbursement Amounts;
WHEREAS, the Company and the Initial Participant amended and restated the Original Participation Certificate, so that such Excess Spread Participation Certificate would reflect a Participation Interest in only the Portfolio Excess Spread and entitle the holder to receive Portfolio Collections solely with respect to the Portfolio Excess Spread;
WHEREAS, the Company and the Initial Participant created a P&I Advance Participation Certificate which reflects a Participation Interest in the MBS Advance Reimbursement Amounts and entitles the Participant to receive Portfolio Collections with respect to such MBS Advance Reimbursement Amounts and a Servicing Advance Participation Certificate which reflects a Participation Interest in the Servicing Advance Reimbursement Amounts and entitles the Participant to receive Portfolio Collections with respect to such Servicing Advance Reimbursement Amounts; and
WHEREAS, the Initial Participant sold the Excess Spread Participation Certificate, the P&I Advance Participation Certificate and the Servicing Advance Participation
Certificate to the Buyer pursuant to that certain Second Amended and Restated Master Repurchase Agreement, dated as of November 15, 2021, between the Company and the Buyer, and consented to by the Indenture Trustee, the Administrative Agent, and the noteholder of the Outstanding VFNs, which is being amended and restated as of the date hereof, between the Company and the Buyer, and consented to by the Indenture Trustee, the Administrative Agent, and NCFA, as noteholder of the Outstanding VFNs (as amended and restated by that certain Third Amended and Restated Master Repurchase Agreement, dated as of the date hereof, between the Company and the Buyer, and as may be further amended, restated, replaced, supplemented or otherwise modified from time to time, the “Master Repurchase Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties hereto mutually agree as follows:
Section 1.Definitions. References to a “Section” or the “recitals” are, unless otherwise specified, to a Section or the recitals of this Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Master Repurchase Agreement or the Base Indenture, as applicable. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or”, and the term “including” is not limiting. Whenever used in this Agreement, the following terms shall have the respective meanings set forth below. Any capitalized terms defined in the body of this Agreement but not listed below shall have the meaning ascribed to such capitalized terms in the body of this Agreement.
“Accredited Investor” shall have the meaning assigned to such term in Section 5(e).
“Acknowledgment Agreement” means, the Third Amended and Restated Acknowledgment Agreement, dated as of the date hereof, by and among Ginnie Mae, the Company and the Indenture Trustee.
“Acquired MSRs” means Servicing Rights related to previously issued Ginnie Mae MBS that the Servicer acquired, provided that Ginnie Mae has acknowledged that the Servicer is deemed the “issuer” of the Pooled Mortgages related to such acquired mortgage servicing rights by execution of the Assignment Agreement in the form of Appendix VIII-3 of the Ginnie Mae Guide, or any such successor form approved by Ginnie Mae from time to time.
“Advance Reimbursement Amounts” means, with respect to any MBS Advance or Servicing Advance, any amount collected on a Mortgage Pool, withdrawn from a custodial account in accordance with the Ginnie Mae Contract, free and clear from any Ginnie Mae rights or other restrictions on transfer set forth therein, or received from any Successor Issuer, to reimburse any such MBS Advance or Servicing Advance, including any Liquidation Proceeds, FHA Claim Proceeds, USDA Claim Proceeds, PIH Claim Proceeds or VA Claim Proceeds; provided that “Advance Reimbursement Amounts” shall not include any such amounts that constitute Excluded Reimbursement Rights.
“Agency Requirements” means with respect to any Portfolio Mortgage Loan, (a) the Ginnie Mae Contract and (b) the statutes and implementing regulations governing the mortgage loan insurance or guarantee program of the FHA, PIH, USDA or VA, as applicable, and any agreements, announcements, directives and correspondence related thereto, and all amendments to any of the foregoing.
“Agreement” shall have the meaning assigned to such term in the preamble.
“Ancillary Income” means all income derived from a Portfolio Mortgage Loan (other than payments or collections in respect of principal, interest, escrow payments and prepayment penalties attributable to such Portfolio Mortgage Loan) and to which the Company or any subservicer, as the servicer or subservicer of the Portfolio Mortgage Loan, is entitled to in accordance with the applicable Agency Requirements, including (i) all late charges, fees received with respect to checks or bank drafts returned by the related bank for insufficient funds, assumption fees, optional insurance administrative fees, all interest, income, or credit on funds deposited in the escrow accounts and custodial accounts or other receipts on or with respect to such Mortgage Loan (subject to Applicable Law and the Ginnie Mae Contract), (ii) reconveyance fees, subordination fees, speedpay fees, mortgage pay on the web fees, automatic clearing house fees, demand statement fees, modification fees, if any, and other similar types of fees arising from or in connection with any Mortgage Loan to the extent not otherwise payable by the mortgagor under Applicable Law or pursuant to the terms of the related Mortgage Note, and (iii) any incentive fees payable by FHA under the applicable FHA Mortgage Insurance Contract, by USDA under the USDA Loan Guarantee Document, or by VA under the applicable VA Loan Guaranty Agreement, as applicable, to the Servicer or any subservicer, as servicer or subservicer of the Mortgage Loans, including incentive amounts payable in connection with Mortgage Loan modifications and other loss mitigation activities.
“Applicable Laws” means laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA Patriot Act of the United States.
“Business Day” means any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, the State of California, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
“Buyer” shall have the meaning assigned to such term in the preamble.
“Company” shall have the meaning assigned to such term in the preamble.
“Corporate Advance” means any advance disbursed by or on behalf of the Company with respect to any Mortgage Pool as required by the Ginnie Mae Contract with respect to any Mortgage Loan included in the related Mortgage Pool (other than amounts advanced as MBS Advances or Escrow Advances), excluding any advance disbursed by an Interim Servicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer and pays the Interim Servicer for such advances.
“Corporate Trust Office” means the corporate trust office of the Indenture Trustee.
“Debtor” shall have the meaning assigned to such term in the Acknowledgment Agreement.
“Effective Date” shall have the meaning assigned to such term in the preamble.
“Escrow Advance” means any advance disbursed by or on behalf of the Company with respect to any Mortgage Pool as required by the Ginnie Mae Contract in order to pay tax
obligations or insurance premiums due under any Mortgage Loan included in the related Mortgage Pool when the funds on deposit in any escrow custodial account or any other account containing escrow funds related to the applicable Mortgage Pool are insufficient to make the required payment, excluding any advance disbursed by an Interim Servicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer and pays the Interim Servicer for such advances.
“Excess Spread Participation Certificate” or “Excess Spread PC” shall mean each participation certificate in the form of Exhibit B-1 attached hereto, including the Original Participation Certificate, as amended and restated, which evidences the related Participation Interest in the Portfolio Excess Spread related to the Portfolio Mortgage Loans.
“Excluded Advances” means any Advance related to an Excluded Mortgage Loan that was made after the time such Mortgage Loan became subject to a Permitted Disposition.
“Excluded Assets” shall mean, collectively, the Excluded Advances, Excluded Mortgage Loans, Excluded Mortgage Pools, Excluded MSRs, and Excluded Reimbursement Rights.
“Excluded Mortgage Loan” shall mean a mortgage loan included in an Excluded Mortgage Pool.
“Excluded Mortgage Pool” shall mean any Mortgage Pool with respect to which the related servicing rights are either ineligible pursuant to the Master Repurchase Agreement or have been sold or are otherwise committed to be sold and have been previously listed on Schedule I to a Participation Certificate (subject to the provisions of Section 3).
“Excluded MSRs” means the servicing rights related to any Excluded Mortgage Pool.
“Excluded Reimbursement Rights” means the rights to reimbursement with respect to any of the Excluded Advances.
“FHA” means the Federal Housing Administration, an agency within HUD, or any successor thereto, and including the Federal Housing Commissioner and the Secretary of HUD where appropriate under the FHA Regulations.
“FHA Claim Proceeds” means the portion of insurance proceeds which are received from FHA under an FHA Mortgage Insurance Contract in the event of a default with respect to an FHA Loan and are permitted reimbursements to the Servicer for MBS Advances or Servicing Advances in accordance with the Ginnie Mae Contract, including any debenture interest on such MBS Advances or Servicing Advances.
“FHA Loan” means a Mortgage Loan which is the subject of an FHA Mortgage Insurance Contract.
“FHA Mortgage Insurance Contract” means the contractual obligation of the FHA respecting the insurance of a Mortgage Loan.
“FHA Regulations” means the regulations promulgated by HUD under the National Housing Act, as amended from time to time and codified in 24 Code of Federal
Regulations, and other HUD issuances relating to FHA Loans, including the related handbooks, circulars, notices and mortgagee letters.
“Ginnie Mae” means the Government National Mortgage Association, or any successor thereto.
“Ginnie Mae Contract” means (a) 12 U.S.C. Section 1721(g) and the implementing regulations governing the Ginnie Mae mortgage-backed securities program, 24 C.F.R. Part 300, (b) the applicable guaranty agreements and contractual agreements between Ginnie Mae and the Company, and (c) the Ginnie Mae Guide and other applicable guides, and all amendments to any of the foregoing.
“Ginnie Mae Guide” means the Ginnie Mae Mortgage-Backed Securities Guide, Handbook 5500.3, Rev. 1, and any related announcements, directives and correspondence issued by Ginnie Mae, all as may be amended from time to time.
“Ginnie Mae MBS” means a Ginnie Mae I MBS or a Ginnie Mae II MBS with respect to which the Company is the issuer of record and that is guaranteed by Ginnie Mae, backed by pools of Ginnie Mae eligible mortgage loans in accordance with Section 306(g) of the National Housing Act, 12 U.S.C. Section 1721(g), the issuance of which and the servicing of such Ginnie Mae eligible mortgage loans by the Company are governed in all respects by the Ginnie Mae Contract.
“Guaranty Fee” means, the monthly guarantee fee required to be paid by the Servicer to Ginnie Mae pursuant to the Ginnie Mae Contract and Ginnie Mae Guide.
“HUD” means the United States Department of Housing and Urban Development, or any successor thereto.
“Initial Participant” shall have the meaning assigned to such term in the preamble.
“Interim Servicer” means the transferor of an Acquired MSR acting in its capacity as subservicer for the benefit of the Servicer in connection with the purchase thereof.
“Liquidated Asset” means a Mortgage Loan that has been either (a) repurchased from a Mortgage Pool underlying a Ginnie Mae MBS or (b) released from a Mortgage Pool following (i) a short sale or (ii) a sale of the mortgaged property (including REO Property resulting from the foreclosure, or deed in lieu of foreclosure, of the related mortgaged property).
“Liquidation Proceeds” means, with respect to any Mortgage Loan that becomes a Liquidated Asset, the portion of Advance Reimbursement Amounts recovered in accordance with the Ginnie Mae Contract from the proceeds received on account of the liquidation of such Mortgage Loan.
“Master Repurchase Agreement” shall have the meaning assigned to such term in the recitals.
“MBS” means a mortgage backed security guaranteed by Ginnie Mae pursuant to the Ginnie Mae Contract.
“MBS Advance” means any advance disbursed by or on behalf of the Servicer from its own funds with respect to any Mortgage Pool as required by the Ginnie Mae Contract in
order to provide for the payment of principal and interest amounts due on the related MBS on its remittance date under the Ginnie Mae Contract, specifically excluding (a) the Servicer’s use of excess funds from one Mortgage Pool to cover MBS Advances attributable to another Mortgage Pool in either (i) Servicer’s “Ginnie Mae I MBS Program P&I Custodial Account” or (ii) Servicer’s “Ginnie Mae II MBS Program P&I Custodial Account,” in either case, to cover shortfalls caused by delinquent loans sharing the same “P&I Custodial Account,” as permitted under Section 15-5(A) of the Ginnie Mae Guide, and (b) any advance disbursed by an Interim Servicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer and pays the Interim Servicer for such advances.
“MBS Advance Reimbursement Amounts” means any Advance Reimbursement Amounts related to reimbursements for previously made MBS Advances.
“MBS Entry Date” shall mean the date, during the term of this Agreement and subsequent to the date hereof, on which the Company issues or becomes the issuer with respect to one or more Ginnie Mae MBSs.
“Mortgage” means, with respect to a Mortgage Loan, a mortgage, deed of trust or other security instrument encumbering a fee simple interest in real property securing a Mortgage Note.
“Mortgage Loan” means a loan secured by a Mortgage on real property (including REO Property resulting from the foreclosure of the real property that had secured such loan), which loan has been included in a Mortgage Pool underlying Ginnie Mae MBS.
“Mortgage Loan Documents” means the Mortgages, Mortgage Notes, assignments and any documents between the mortgagor and the applicable borrower related to the Mortgage Loan.
“Mortgage Note” means the promissory note or other evidence of indebtedness of a mortgagor that is secured by a Mortgage under a Mortgage Loan, and all amendments, modifications and attachments thereto.
“Mortgage Pool” means a pool or package of Mortgage Loans insured by the FHA or guaranteed by the PIH, USDA or VA backing a Ginnie Mae MBS.
“Original Participation Certificate” shall mean the participation certificate issued in connection with the Original Participation Agreement, which evidenced the related Participation Interest in the Portfolio Excess Spread and the MBS Advance Reimbursement Amounts.
“P&I Advance Participation Certificate” or “P&I Advance PC” shall mean each participation certificate in the form of Exhibit B-2 attached hereto, which evidences the related Participation Interest in the MBS Advance Reimbursement Amounts related to the Portfolio Mortgage Loans.
“Participant” shall mean the Initial Participant or any subsequent holder of a Participation Interest in accordance with the terms hereof.
“Participation Certificate” shall mean each participation certificate in the form of Exhibit B attached hereto, which evidences the related Participation Interest.
“Participation Certificate Register” shall have the meaning assigned to such term in Section 20.
“Participation Certificate Registrar” shall have the meaning assigned to such term in Section 20.
“Participation Interest” shall mean each participating beneficial ownership interest (of the type and nature contemplated by 11 U.S.C. § 541(d) of the United States Bankruptcy Code) in the Portfolio Excess Spread, MBS Advance Reimbursement Amounts or Servicing Advance Reimbursement Amounts with respect to the Portfolio, and proceeds thereof together with the other rights and privileges specified in this Agreement as evidenced by the issuance of a Participation Certificate.
“PIH” means the Office of Public and Indian Housing within the United States Department of Housing and Urban Development, or any successor thereto.
“PIH Claim Proceeds” means the portion of guaranty claim proceeds which are received from PIH in the event of a default with respect to a PIH Loan and are permitted reimbursements to the Servicer for MBS Advances or Servicing Advances in accordance with the Ginnie Mae Contract, including any accrued unpaid interest on such MBS Advances or Servicing Advances.
“PIH Loan” means a Mortgage Loan which is the subject of a PIH Mortgage Insurance Contract.
“PIH Mortgage Insurance Contract” means the contractual obligation of the PIH respecting the insurance of a Mortgage Loan.
“Pooled Mortgages” shall have the meaning assigned to such term in Section 2(f).
“Portfolio” means, except with respect to an Excluded Mortgage Pool (and any related Excluded Assets) specified on Schedule I of the related Participation Certificate (as may be updated from time to time pursuant to Sections 2(b) and 3), all of the Mortgage Loans included in all Mortgage Pools related to a Ginnie Mae MBS, whether now existing or hereafter created, for so long as such Ginnie Mae MBS shall remain outstanding, each such Ginnie Mae MBS to be listed on Schedule I to such Participation Certificate (subject to the provisions of Section 3).
“Portfolio Collections” means, with respect to the Portfolio, the funds collected on the related Portfolio Mortgage Loans and allocated as the servicing compensation payable to the Company as servicer of such Portfolio Mortgage Loans pursuant to one or more Servicing Agreements, or as Advance Reimbursement Amounts received by the Company pursuant to such Servicing Agreements, but excluding Ancillary Income and any Guaranty Fee.
“Portfolio Excess Spread” means, with respect to the Portfolio, the rights of the Company, severable from any and all other rights and obligations under the applicable Servicing Agreements, to the Portfolio Total Spread minus the Base Servicing Fee on the Portfolio.
“Portfolio Mortgage Loan” means each Mortgage Loan included in a Mortgage Pool related to a Ginnie Mae MBS that is part of the Portfolio.
“Portfolio Total Spread” means, with respect to the Portfolio, for each Collection Period, the Portfolio Collections received during such Collection Period, but excluding Ancillary Income, any Guaranty Fee, and Advance Reimbursement Amounts.
“QIB” shall have the meaning assigned to such term in Section 11.
“REO Property” means a mortgaged property in which the owner of the related Mortgage Loan has acquired title to such mortgaged property through foreclosure or by deed in lieu of foreclosure.
“Rule 144A” shall have the meaning assigned to such term in Section 11.
“Secured Party” shall have the meaning assigned to such term in the Acknowledgment Agreement.
“Securities Act” shall have the meaning assigned to such term in Section 5(e).
“Security Interest” shall have the meaning assigned to such term in the Acknowledgment Agreement.
“Servicer” means the Company in its capacity as the servicer or sub-servicer under the Ginnie Mae Contract in servicing the related Portfolio Mortgage Loans, and any successor issuer appointed as servicer or subservicer under the Ginnie Mae Contract.
“Servicing Advance Participation Certificate” or “Servicing Advance PC” shall mean each participation certificate in the form of Exhibit B-3 attached hereto, which evidences the related Participation Interest in the Servicing Advance Reimbursement Amounts related to the Portfolio Mortgage Loans.
“Servicing Advance Reimbursement Amounts” means any Advance Reimbursement Amounts related to reimbursements for previously made Servicing Advances.
“Servicing Advances” means Corporate Advances and Escrow Advances.
“Servicing Agreement” means, with respect to each Portfolio Mortgage Loan, any servicing agreement applicable thereto, including the applicable Agency Requirements, and any other agreements under which such Portfolio Mortgage Loan is serviced and administered.
“Servicing Rights” means, with respect to each Portfolio Mortgage Loan, the right to do any and all of the following in accordance with the Ginnie Mae Contract: (a) service and administer such Portfolio Mortgage Loan; (b) collect any payments or monies payable or received for servicing such Portfolio Mortgage Loan (including all Portfolio Total Spread and Advance Reimbursement Amounts); (c) collect any Ancillary Income with respect to such Portfolio Mortgage Loan; (d) enforce the provisions of all agreements or documents creating, defining or evidencing any such servicing rights and all rights of the servicer thereunder, including any clean-up calls and termination options; (e) collect and apply any escrow payments or other similar payments with respect to such Portfolio Mortgage Loan; (f) control and maintain all accounts and other rights to payments related to any of the property described in the other clauses of this definition; (g) possess and use any and all documents, files, records, servicing files, servicing documents, servicing records, data tapes, computer records, or other information pertaining to such Portfolio Mortgage Loan or pertaining to the past, present or prospective
servicing of such Portfolio Mortgage Loan; and (h) enforce any and all rights, powers and privileges incident to any of the foregoing.
“Transfer” shall have the meaning assigned to such term in Section 11.
“USDA” means the Rural Housing Service of the Rural Development unit of the United States Department of Agriculture, or any successor.
“USDA Claim Proceeds” means the portion of guarantee claim proceeds which are received from USDA in the event of a default with respect to a USDA Loan and are permitted reimbursements to the Servicer for MBS Advances or Servicing Advances in accordance with the Ginnie Mae Contract, including any accrued unpaid interest on such MBS Advances or Servicing Advances.
“USDA Loan” means a Mortgage Loan which is guaranteed by USDA, as evidenced by a USDA Loan Guarantee Document.
“USDA Loan Guarantee Document” means a loan guarantee document issued by USDA in accordance with 7 C.F.R. § 3555.107.
“VA” means 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.
“VA Claim Proceeds” means the portion of guaranty claim proceeds which are received from VA in the event of a default with respect to a VA Loan and are permitted reimbursements to the Servicer for MBS Advances or Servicing Advances in accordance with the Ginnie Mae Contract any accrued unpaid interest on such MBS Advances or Servicing Advances.
“VA Loan” means a Mortgage Loan which is subject of a VA Loan Guaranty Agreement as evidenced by a loan guaranty certificate, or a Mortgage Loan which is a vendor loan sold by the VA.
“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, restated, supplemented or otherwise modified from time to time.
“WSFS” shall have the meaning assigned to such term in Section 26.
Section 2.Intent; Creation of Participation Interests; Termination of Participation Interests.
(a)In order to obtain greater liquidity, the Company created (i) an Excess Spread Participation Certificate which reflects a Participation Interest in the Portfolio Excess Spread and entitles the Participant to receive Portfolio Collections solely with respect to the Portfolio Excess Spread; (ii) a P&I Advance Participation Certificate which reflects a Participation Interest in the MBS Advance Reimbursement Amounts and entitles the Participant to receive Portfolio Collections with respect to such MBS Advance Reimbursement Amounts; and (iii) a Servicing Advance Participation Certificate which reflects a Participation Interest in the Servicing Advance Reimbursement Amounts and entitles the Participant to receive Portfolio Collections with respect to such Servicing Advance Reimbursement Amounts.
(b)Unless Schedule I to a Participation Certificate is updated on the applicable MBS Entry Date to reflect that the related Mortgage Pool is an Excluded Mortgage Pool, on each MBS Entry Date, the Portfolio Excess Spread and Advance Reimbursement Amounts related to the Mortgage Loans included in a Mortgage Pool related to a Ginnie Mae MBS on that date shall, automatically and without further action on the part of any Person, become subject to this Agreement and to the related Participation Certificate and shall be a part of the Portfolio. The Company shall on a monthly basis (and may on a more frequent basis in the Company’s discretion), update Schedule I to each Participation Certificate (which may be maintained in electronic form) to reflect any issuance of Ginnie Mae MBS, if applicable, on the applicable MBS Entry Date and deliver such updated Schedule I to the Participant to be attached to such Participation Certificate; provided, however, that a failure to update or deliver Schedule I, or to attach the updated Schedule I to any Participation Certificate, shall have no effect on the rights and obligations of the parties under this Agreement or such Participation Certificate.
(c)On the date of the Original Participation Agreement, the Company issued the Original Participation Certificate. On the date of the Amended Participation Agreement, the Company amended and restated the Original Participation Certificate into the Excess Spread PC, evidencing a Participation Interest in the Portfolio Excess Spread and issued two new Participation Certificates, each in the related form of Exhibit B hereto, in the name of the Initial Participant, dated the date of the Amended Participation Agreement and evidencing: (i) with respect to the P&I Advance PC, a Participation Interest in the MBS Advance Reimbursement Amounts and (ii) with respect to the Servicing Advance PC, a Participation Interest in the Servicing Advance Reimbursement Amounts, in each case, with respect to the Portfolio as it exists on the date of the Amended Participation Agreement, as further described in Schedule I to the related Participation Certificate. Thereafter, Participant was deemed the owner of the applicable Participation Interest described therein. As of the Effective Date, the Excess Spread PC, P&I Advance PC and Servicing Advance PC will have been returned and replaced in accordance with Section 24. During the term of the Master Repurchase Agreement, there shall only be one Excess Spread PC, one P&I Advance PC and one Servicing Advance PC, unless otherwise consented to in writing by the Buyer and Ginnie Mae.
(d)Administration of the Portfolio Excess Spread and the Advance Reimbursement Amounts shall be governed by the terms of this Agreement and each applicable Servicing Agreement, and the servicing and administration of the underlying Portfolio Mortgage Loans and/or REO Properties that support the Portfolio Excess Spread and the Advance Reimbursement Amounts shall be subject in all respects to the provisions of this Agreement and each applicable Servicing Agreement. The Company shall retain record legal title to any payments, distributions and other collections on the Portfolio Excess Spread and the Advance Reimbursement Amounts, in its capacity as the owner of the Servicing Rights, but subject to the Participation Interests, and each Participant shall only be deemed to be in privity with the Company and in no event whatsoever shall any Participant be construed to be in privity with any underlying investor or owner of any Portfolio Mortgage Loan.
(e)During the term of the Master Repurchase Agreement, the Participation Interest shall be subject to the Buyer’s lien under the Master Repurchase Agreement on the Servicing Rights and such other rights afforded the Buyer with respect thereto.
(f)Notwithstanding anything to the contrary contained herein:
(1)The property subject to the security interest reflected in the Participation Certificates includes all of the right, title and interest of the Company in certain mortgages and/or participation interests
related to such mortgages (“Pooled Mortgages”), and pooled under the mortgage-backed securities program of Ginnie Mae, pursuant to section 306(g) of the National Housing Act, 12 U.S.C. § 1721(g);
(2)To the extent that the security interest reflected in the Participation Certificates relates in any way to the Pooled Mortgages, such security interest is subject and subordinate to all rights, powers and prerogatives of Ginnie Mae, whether now existing or hereafter arising, under and in connection with: (i) 12 U.S.C. § 1721(g) and any implementing regulations; (ii) the terms and conditions of that certain Second Amended and Restated Acknowledgment Agreement, dated as of February 10, 2022, with respect to the Security Interest, by and among Ginnie Mae, the Company and the Indenture Trustee; (iii) applicable Guaranty Agreements and contractual agreements between Ginnie Mae and the Company and (iv) the Ginnie Mae Mortgage-Backed Securities Guide, Handbook 5500.3 Rev. 1, and other applicable guides;
(3)Such rights, powers and prerogatives of Ginnie Mae include, but are not limited to, Ginnie Mae’s right, by issuing a letter of extinguishment to the Company, to effect and complete the extinguishment of all redemption, equitable, legal or other right, title or interest of the Company in the Pooled Mortgages, in which event the security interest as it relates in any way to the Pooled Mortgages shall instantly and automatically be extinguished as well; and
(4)For purposes of clarification, “subject and subordinate” in clause (2) above means, among other things, that any cash held by the Secured Party as collateral and any cash proceeds received by the Secured Party in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the collateral may only be applied by the Secured Party to the extent that such proceeds have been received by, or for the account of, the Debtor free and clear of all Ginnie Mae rights and other restrictions on transfer under applicable Ginnie Mae guidelines; provided that this clause (4) shall not be interpreted as establishing rights in favor of Ginnie Mae except to the extent that such rights are reflected in, or arise under, the Ginnie Mae Contract.
Section 3.Removal of Portfolio Mortgage Loans. From time to time, the Company may remove Mortgage Loans and/or Mortgage Pools from the Portfolio in connection with a Permitted Disposition. The Company and the Participant shall cooperate to promptly update the schedule to each Participation Certificate to reflect any such removal. In accordance with such removal, which removal may occur prior to a transfer of economic interests, the Company and the Participant acknowledge that there may be a discrepancy between the timing of such removal and the transfer of interests to a prospective buyer, as well as recognition thereof by Ginnie Mae’s systems. Consequently, such status may be reflected on the applicable schedule to indicate that such Mortgage Pools are Excluded Mortgage Pools (and assets related thereto are Excluded Assets). The Participant shall execute any instruments of release as may be reasonably required by the Company in connection with such removal.
Section 4.Portfolio Collections and Cash Proceeds. In the event that the Company receives any amounts on account of Portfolio Excess Spread, Advance Reimbursement Amounts, or Cash Proceeds (to the extent required to avoid an Event of Default and to ensure that the VFN Principal Balance for the related Outstanding VFN does not exceed the related Maximum Permitted Amount), the Company shall or shall cause its designee to remit such amounts as directed by the related Participant in writing on or prior to the date such distribution is made; provided that, during the term of the Master Repurchase Agreement, any remittances shall be made in accordance with the deposit and remittance requirements as set forth in Sections 2.12 and 6.12 of the Master Repurchase Agreement.
Section 5.Representations and Warranties of Each Participant. Each Participant represents and warrants to the Company, as of the date hereof and as of the date of any Transfer, and it is specifically understood and agreed, that:
(a)Such Participant is duly organized and validly existing under the laws of the jurisdiction of its formation.
(b)The execution and delivery of this Agreement by such Participant, and the performance of, and compliance with, the terms of this Agreement by such Participant, will not violate such Participant’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets.
(c)Such Participant has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement and has duly executed and delivered this Agreement.
(d)Such Participant has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in connection with the sale of the Participation Interest or the consummation of any of the transactions contemplated herein.
(e)Such Participant is either (a) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”) and is acquiring the related Participation Interest for its own account or for the account of one or more qualified institutional buyers for whom it is authorized to act or (B) an “accredited investor” within the meaning of Rule 501 under the Securities Act (an “Accredited Investor”) that is acquiring such Participation Interest for its own account or for the account of one or more Accredited Investors, for investment purposes and not with a view to, or for offer or sale in connection with any distribution in violation of the Securities Act, provided that the provisions of this Section 5(e) did not apply with respect to the Transfer from the Initial Participant to the Buyer pursuant to the Master Repurchase Agreement.
The representations and warranties of each Participant contained in this Section 5 are personal to such Participant and no successor or assign of such Participant shall have any liability therefrom.
Section 6.Representations and Warranties of Company. The Company, as of the date hereof and as of any MBS Entry Date, hereby represents and warrants to, and covenants with, each Participant that:
(a)The Company is a limited liability company duly organized, existing and in good standing under the laws of the State of Delaware and will remain the same.
(b)The execution and delivery of this Agreement by the Company, and the performance of, and compliance with, the terms of this Agreement by the Company, will not violate the Company’s organizational documents or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which it is a party or which is applicable to it or any of its assets, in each case which materially and adversely affect the ability of the Company to carry out the transactions contemplated by this Agreement.
(c)The Company has the full power and authority to enter into and consummate all transactions contemplated by this Agreement, has duly authorized the execution, delivery and performance of this Agreement, and has duly executed and delivered this Agreement.
(d)The Company has not dealt with any broker, investment banker, agent or other Person that may be entitled to any commission or compensation in connection with the sale of each Participation Interest or the consummation of any of the other transactions contemplated hereby.
(e)The Company is, and will remain, in compliance with all federal, state and local laws, regulations and orders applicable to the Company and its assets to the extent material to this Agreement.
(f)Neither the Company nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of any of the Participation Certificates, any interest in the Participation Certificates or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Participation Certificates, any interest in the Participation Certificates or any other similar security from, or otherwise approached or negotiated with respect to the Participation Certificates, any interest in the Participation Certificates or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Participation Certificates under the Securities Act or which would render the disposition of the Participation Certificates a violation of Section 5 of the Securities Act or require registration pursuant thereto. The foregoing representations and warranties of the Company shall survive (i) the delivery and Transfer of the applicable Participation Interest and Participation Certificate to each Participant and (ii) any transfer by the Company of its rights hereunder.
Section 7.Servicing and Other Matters.
(a)Company’s Duties With Respect to Servicing.
(i)The Company agrees for the benefit of the Participant to service the related Portfolio Mortgage Loans at all times in strict accordance in all material respects with the related Servicing Agreement. In connection with the Portfolio Mortgage Loans related to each Participation Certificate, the Company shall not, without the express written consent of the Participant (which consent may be withheld in its absolute discretion), (a) terminate or amend any Servicing Rights, or (b) enter into any termination, modification, waiver or amendment of any applicable Servicing Agreement or its
rights and duties thereunder, except as required by Ginnie Mae. Notwithstanding anything to the contrary herein or any of the other Program Agreements, it is understood by the parties that Ginnie Mae has the absolute and unconditional right to modify the Ginnie Mae Contract at any time.
(ii)Under no circumstances shall the Participant be responsible for the servicing acts and omissions of the Company or any other servicer, subservicer or any originator of the Portfolio Mortgage Loans, or for any servicing related obligations or liabilities of any servicer under the Servicing Agreements or any Person under the Mortgage Loan Documents, or for any other obligations or liabilities of the Company.
(iii)Upon the termination of the Company as issuer or servicer under the applicable Servicing Agreement, the Company shall remain liable to the Participant and the applicable loan owner or master servicer for all liabilities and obligations incurred by the Company while the Company was acting as the servicer thereunder.
(b)Base Servicing Fees. The Company agrees that, notwithstanding the provisions of the applicable Servicing Agreements, as between the parties hereto, the Company shall be entitled to servicing fees on the Portfolio only to the extent of the applicable Base Servicing Fee and only to the extent that funds available for the payment of such Base Servicing Fee are available. Under no circumstances shall the Participant be liable to the Company for the payment of any Base Servicing Fee.
Section 8.Independent Analysis of Each Participant. Each Participant acknowledges that it has, independently and without reliance upon the Company and based on such documents and information as such Participant has deemed appropriate, made the Participant’s own credit analysis and decision to purchase the applicable Participation Interest. Each Participant hereby acknowledges that the Company has made no representations or warranties with respect to the Portfolio Excess Spread, the Advance Reimbursement Amounts or the Participation Interest (except as set forth hereinabove or otherwise in the Program Agreements), and subject to the terms and provisions of this sentence, that the Participant assumes all risk of loss in connection with its Participation Interest.
Section 9.No Creation of a Partnership. Nothing contained in this Agreement, and no action taken pursuant hereto shall be deemed to constitute the Company with any Participant, a partnership, association, joint venture or other entity.
Section 10.Article 8 Opt-In. The Company hereby irrevocably elects that each Participation Certificate shall constitute and shall remain a “security” for purposes of Article 8 of the Uniform Commercial Code.
Section 11.Sale of Each Participant’s Interest. Each Participant agrees that it will not sell, assign, transfer, pledge, syndicate, hypothecate, contribute, encumber or otherwise dispose of all or any portion of its applicable Participation Interest (a “Transfer”) without the prior written consent of the Company; provided, that any Transfer permitted by the Program Agreements shall not require such consent. No transfer of any Participation Certificate shall be made (other than the transfer to the Buyer under the Master Repurchase Agreement) unless (A) such transfer is to a Person that (i) the transferor believes is a qualified institutional buyer (a “QIB”) as defined in Rule 144A (“Rule 144A”) under the Securities Act and is aware that the transferor of such Participation Certificate may be relying on the exemption from the
registration requirements of the Securities Act provided by Rule 144A and is acquiring such Participation Certificate for its own account or for the account of one or more QIBs for whom it is authorized to act and (ii) is also a “qualified purchaser” as defined in Section 2(a)(51) of the Investment Company Act and (B) a fully-executed Assignment and Assumption, in the form attached to the applicable Exhibit B to this Agreement is delivered to the Participation Certificate Registrar. The registered Participant shall have the right to inspect the Participation Certificate Register, subject to such reasonable regulations as the Participation Certificate Registrar shall prescribe. The person listed as the owner of a Participation Certificate on the Participation Certificate Register shall be treated as the Participant for purposes of this Agreement and otherwise. Upon surrender for registration of transfer of any Participation Certificate to the Participation Certificate Registrar, the Company shall execute and deliver, in the name of the designated transferee or transferees, one or more new Participation Certificates.
Section 12.No Pledge or Loan. This Agreement is intended to effect the creation of Participation Interests and shall not be deemed to represent a pledge of any interest of the Company to any Participant, or a loan from any Participant to the Company. Notwithstanding the parties’ stated intent, in the event that any of the sales of the Participation Interests hereunder shall be re-characterized to be a loan, the Company, as security for the performance by it of its obligations hereunder, previously granted, assigned and pledged to the Initial Participant a fully perfected first priority security interest in all of Company’s right, title and interest in, to and under the related Portfolio Excess Spread and Advance Reimbursement Amounts, whether now owned or hereafter acquired, now existing or hereafter created and wherever located; which such grant remains in full force and effect.
Section 13.GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT AND THE RESPECTIVE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW, WHICH SHALL GOVERN). EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
Section 14.SUBMISSION TO JURISDICTION; WAIVERS . EACH PARTY HERETO HEREBY IRREVOCABLY (I) SUBMITS, FOR ITSELF IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY WITH RESPECT TO MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL CLAIMS WITH RESPECT TO ANY ACTION OR PROCEEDING REGARDING SUCH MATTERS MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE EXTENT, WITH RESPECT TO SUCH COURTS, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
Section 15.Modifications. Except as expressly provided herein, this Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the parties hereto.
Section 16.Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Except for transferees of Transfers permitted pursuant to the terms hereof, none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto.
Section 17.Counterparts; Facsimile Execution. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Agreement, any addendum 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 the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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.
Section 18.Captions. The titles and headings of the paragraphs of this Agreement have been inserted for convenience of reference only and are not intended to summarize or otherwise describe the subject matter of the paragraphs and shall not be given any consideration in the construction of this Agreement.
Section 19.Notices. All notices required hereunder shall be given by telephone (confirmed in writing) or shall be in writing and personally delivered or sent by facsimile transmission, reputable overnight delivery service or certified United States mail, postage prepaid, and addressed to the respective parties at their addresses set forth on Exhibit A or otherwise as informed to the other parties by written notice given as aforesaid. All written notices so given shall be deemed effective upon receipt or, if mailed, upon the earlier to occur of receipt or the expiration of the fourth day following the date of mailing.
Section 20.Participant Register. The ownership of each Participation Interest shall be registered on a record of ownership located in the United States (the “Participation Certificate Register”) maintained by the Company (the “Participation Certificate Registrar”). The Participation Certificate Register shall contain the name and address of the holder of each Participation Certificate and the name and address of any transferee of such Participation Certificate, together with wire instructions for such holder or transferee, of which the Participation Certificate Registrar has received actual notice, which requirements are intended to comply with U.S. Treasury regulations section 5f.103-1(c). Subject to the Transfers contemplated in Section 11 hereof, each Participation Certificate shall be registered as to its percentage Participation Interest and may be transferred to any third person only by surrendering such Participation Certificate to the Participation Certificate Registrar and the issuance of a new Participation Certificate to the transferee in compliance with the requirements of this Agreement,
which is intended to comply with U.S. Treasury regulations section 1.871-14(c). The Participation Certificate Register shall be available for inspection from time to time during normal business hours and upon reasonable prior notice to the Participation Certificate Registrar. Each Participation Certificate is intended to qualify as a “pass-through certificate” within the meaning of U.S. Treasury Regulations Section 1.871-14(d). Notwithstanding anything else in this Agreement to the contrary, the right to receive payments with respect to a Participation Interest hereunder may be transferred only if the Transfer is registered on such record of ownership and the transferee is identified as the owner of an interest in the obligation. The Participants shall be entitled to treat the registered holder of each Participation Interest (as recorded on such record of ownership) as the owner in fact thereof for all purposes and shall not be bound to recognize any equitable or other claim to or interest in such Participation Interest or hereunder on the part of any other person or entity.
Section 21.Third Party Costs. The Company agrees to pay the reasonable out of pocket costs of Participant related (i) to the negotiation, execution, and closing of the transactions contemplated by this Agreement and (ii) the ongoing administrative costs of the Participant related to the tracking, reporting and administration of the investments made pursuant to this Agreement.
Section 22.Tax Information. To facilitate each Participant’s annual tax reporting the Company shall provide to such Participant the relevant IRS Form 1065 K-1s and other necessary tax information, provided to the Company, which corresponds to all of such Participant’s Portfolio Collections arising from or related to applicable Participation Interests.
Section 23.Conflicts. In the event of any conflict between the terms of this Agreement and the Master Repurchase Agreement the terms of the Master Repurchase Agreement shall prevail.
Section 24.Conditions Precedent Satisfied. In order for this Agreement to be effective, the Participant shall have delivered to the Company the Excess Spread PC, P&I Advance PC and Servicing Advance PC and each such Participation Certificate shall be replaced with a Excess Spread PC, P&I Advance PC and Servicing Advance PC in the form of Exhibits B-1, B-2 and B-3 attached hereto, respectively.
Section 25.Amendment and Restatement; Consent. As of the date hereof, the terms and conditions of the Amended Participation Agreement shall be amended and restated as set forth herein and the Amended Participation Agreement shall be superseded by this Agreement. The rights and obligations of the parties evidenced by the Amended Participation Agreement shall be evidenced by this Agreement and shall continue to be in full force and effect as set forth in this Agreement. Each of the Company, the Initial Participant, the Buyer, the Administrative Agent and NCFA, as Noteholder of 100% of the Outstanding VFN, hereby consents to this Agreement and acknowledges and agrees that the amendments effected by this Agreement shall become effective on the Effective Date.
Section 26.Owner Trustee Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Savings Fund Society, FSB (“WSFS”), not individually or personally but solely as trustee of Buyer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, undertakings and agreements herein made on the part of Buyer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only Buyer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to
perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by Buyer in this Agreement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of Buyer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Buyer under this Agreement or any other related documents.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the Company and the Initial Participant have caused this Agreement to be duly executed as of the day and year first above written.
LOANDEPOT.COM, LLC, as the Company
By: /s/ David Hayes
Name: David Hayes
Title: CFO
LOANDEPOT.COM, LLC, as the Initial Participant
By: /s/ David Hayes
Name: David Hayes
Title: CFO
loanDepot GMSR Master Trust – Third Amended and Restated GMSR Participation Agreement
LEGAL02/43438676v8
CONSENTED TO BY:
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Noteholder of 100% of the Outstanding VFNs
By:/s/ Sanil Patel
Name: Sanil Patel
Title: Managing Director
CONSENTED TO BY:
loanDepot GMSR Master Trust – Third Amended and Restated GMSR Participation Agreement
LEGAL02/43438676v8
| | |
LOANDEPOT GMSR MASTER TRUST, as Buyer By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee |
By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
loanDepot GMSR Master Trust – Third Amended and Restated GMSR Participation Agreement
LEGAL02/43438676v8
EXHIBIT A
[***]
EXHIBIT B -1
[***]
Exhibit B-1
LEGAL02/43438676v8
Schedule I to Exhibit B-1
LEGAL02/43438676v8
EXHIBIT B-2
[***]
Exhibit B-2
LEGAL02/43438676v8
EXHIBIT B-3
[***]
Exhibit B-3
LEGAL02/43438676v8
Schedule I to Exhibit B-3
LEGAL02/43438676v8
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
EXECUTION VERSION
THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
between
LOANDEPOT GMSR MASTER TRUST
(“Buyer”)
and
LOANDEPOT.COM, LLC
(“Seller”)
Dated as of January 25, 2024
TABLE OF CONTENTS
Page
Schedule 1-A – Representations and Warranties Regarding the Assets
Schedule 1-B – Representations and Warranties Regarding the Assets Consisting of a Participation Certificate
Schedule 2 – Form of Asset Schedule
Schedule 3 – Responsible Officers of Seller
Exhibit A – Form of Transaction Notice
Exhibit B – Form of Margin Excess Notice
THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
This Third Amended and Restated Master Repurchase Agreement (this “Agreement”) is made as of January 25, 2024 (the “Effective Date”), among LOANDEPOT GMSR MASTER TRUST (the “Issuer”), as buyer (“Buyer”), LOANDEPOT.COM, LLC (“loanDepot”), as seller (“Seller”), and is consented to by CITIBANK, N.A. (“Citibank”), as indenture trustee (the “Indenture Trustee”), NOMURA CORPORATE FUNDING AMERICAS, LLC, as administrative agent (the “Administrative Agent”) and NOMURA CORPORATE FUNDING AMERICAS LLC (“NCFA”), as noteholder of the Outstanding VFNs (the “Noteholder”). Capitalized terms have the meanings specified in Sections 1.01 and 1.02.
W I T N E S S E T H :
WHEREAS, Buyer and Seller have entered into that certain Master Repurchase Agreement, dated as of August 11, 2017, which was amended and restated by the Amended and Restated Master Repurchase Agreement, dated as of October 31, 2018, and further amended and restated by that certain Second Amended and Restated Master Repurchase Agreement, dated as of November 15, 2021 (the “Original PC Repurchase Agreement”);
WHEREAS, the Buyer and Seller have agreed, subject to the terms of this Agreement, that the Original PC Repurchase Agreement be amended and restated on the Effective Date;
WHEREAS, the Issuer, Citibank, as Indenture Trustee, as calculation agent (in such capacity, the “Calculation Agent”), as paying agent (in such capacity, the “Paying Agent”) and as securities intermediary (in such capacity, the “Securities Intermediary”), loanDepot, as administrator (in such capacity, the “Administrator”) and as servicer (in such capacity, the “Servicer”), the Administrative Agent and Pentalpha Surveillance LLC, as credit manager, are parties to that certain Third Amended and Restated Base Indenture, dated as of the Effective Date (as may be amended, restated, supplemented, or otherwise modified from time to time, the “Base Indenture”), as supplemented by the Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (as may be amended, restated, supplemented, or otherwise modified from time to time, the “Series 2017-VF1 Indenture Supplement”), the Amended and Restated Series 2017-MBSADV1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2017-MBSADV1 Indenture Supplement”), the Series 2018-GT1 Indenture Supplement, dated as of October 31, 2018, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2018-GT1 Indenture Supplement”), the Amended and Restated Series 2021-SAVF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2021-SAVF1 Indenture Supplement”), the Amended and Restated Series 2021-PIAVF1 Indenture Supplement, dated as of the date hereof, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent (the “Series 2021-PIAVF1 Indenture Supplement”), and any other indenture supplements entered into from time to time in accordance with the terms of the Base Indenture;
WHEREAS, currently there are four (4) Outstanding Series of Variable Funding Notes and one (1) Outstanding Series of Term Notes: (i) the Series 2017-VF1 Note (the “Series
2017-VF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2017-VF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms set forth in the Series 2017-VF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2017-VF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2017-VF1 Note to the Noteholder; (ii) the Series 2017-MBSADV1 Note (the “Series 2017-MBSADV1 Note”), which was issued pursuant to the Series 2017-MBSADV1 Indenture Supplement and which has been transferred to NCFA and is subject to the terms of the Note Purchase Agreement, dated as of the date hereof, among the Issuer, the Administrative Agent and the Noteholder (the “Series 2017-MBSADV1 Note Purchase Agreement”); (iii) the Series 2021-SAVF1 Note (the “Series 2021-SAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-SAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-SAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-SAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-SAVF1 Note to the Noteholder; (iv) the Series 2021-PIAVF1 Note (the “Series 2021-PIAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-PIAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-PIAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-PIAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-PIAVF1 Note to the Noteholder; and (v) the Series 2018-GT1 Notes (the “Series 2018-GT1 Notes”), which were issued pursuant to the Series 2018-GT1 Indenture Supplement and sold to third party purchasers pursuant to the terms of the Term Note Purchase Agreement, dated as of October 26, 2018, among the Issuer, loanDepot, as seller, servicer and administrator, and Credit Suisse Securities (USA) LLC, as initial purchaser (the “Series 2018-GT1 Term Note Purchase Agreement”);
WHEREAS, pursuant to Section 10.15 of the Original PC Repurchase Agreement, any provision providing for the exercise of any action or discretion by Buyer shall be exercised by the Indenture Trustee at the written direction of either 100% of the VFN Noteholders or the Majority Noteholders of all Outstanding Notes;
WHEREAS, pursuant to Section 10.3(g)(iii) of the Base Indenture, so long as any Note is Outstanding and until all obligations have been paid in full, loanDepot shall not consent to any amendment, modification or waiver of any term or condition of any Transaction Document, without the prior written consent of the Administrative Agent;
WHEREAS, pursuant to Section 4.1(a)(iii) of the Trust Agreement, the consent of each of the Owners (as defined in the Trust Agreement) (unless an Event of Default has occurred and is continuing), the Administrative Agent and the Series Required Noteholders of all Variable Funding Notes is required for the amendment or other change to any Transaction Document in circumstances where the consent of any Noteholder or the Administrative Agent is required (other than an amendment or supplement to the Base Indenture pursuant to Section 12.1 thereof);
WHEREAS, the Original PC Repurchase Agreement is a Transaction Document;
WHEREAS, (i) pursuant to the Trust Agreement, loanDepot is the sole Owner of the Issuer, (ii) pursuant to the Series 2017-VF1 Indenture Supplement, with respect to the Series 2017-VF1 Note, any Action provided by the Base Indenture or the Series 2017-VF1 Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2017-VF1 Note under the 2017-VF1 Repurchase Agreement, (iii) pursuant to the Series 2017-MBSADV1 Indenture Supplement, with respect to the Series 2017-ADV1 Note, any
Action provided by the Base Indenture or the Series 2017-ADV1 Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2017-ADV1 Note in accordance with the terms of the Series 2017-MBSADV1 Note Purchase Agreement, (iv) pursuant to the Series 2021-SAVF1 Indenture Supplement, with respect to the Series 2021-SAVF1 Note, any Action provided by the Base Indenture or the Series 2021-SAVF1 Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-SAVF1 Note under the 2021-SAVF1 Repurchase Agreement, (v) pursuant to the Series 2021-SAVF1 Indenture Supplement, with respect to the Series 2021-SAVF1 Note, any Action provided by the Base Indenture or the Series 2021-SAVF1 Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-SAVF1 Note under the 2021-SAVF1 Repurchase Agreement, and therefore, NCFA is the Noteholder of 100% of the VFNs;
WHEREAS, the Seller has made, and may in the future make, Participation Certificates that evidence Participation Interests in Portfolio Excess Spread, MBS Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts related to the MSRs that are subject to this Agreement;
WHEREAS, from time to time the parties hereto may enter into Transactions; and
WHEREAS, Seller has pledged to Buyer certain MSRs in connection with the Transactions.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01Certain Defined Terms. Capitalized terms used herein shall have the indicated meanings:
“Accepted Servicing Practices” means with respect to any Mortgage Loan, (i) those mortgage servicing practices of prudent mortgage lending institutions which service mortgage loans of the same type as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located, and (ii) those practices required by Ginnie Mae.
“Administrative Agent” means Nomura Corporate Funding Americas, LLC or any other party identified as an “Administrative Agent” pursuant to the Indenture.
“Advance PC” means, the P&I Advance PC and the Servicing Advance PC.
“Advance Reimbursement Balance” means, on any date of determination, the aggregate outstanding balance in U.S. dollars of all Advance Reimbursement Amounts owed with respect to all Portfolio Mortgage Loans.
“Adverse Claim” means a lien, security interest, charge, encumbrance or other right or claim of any Person (other than (A) the liens created in favor of Buyer or assigned to or by Buyer by (i) this Agreement, (ii) the Indenture or (iii) any other Program Agreement, (B) the rights, remedies, powers and prerogatives created in favor of Ginnie Mae by the Acknowledgment Agreement and the Ginnie Mae Contract and (C) the Owner Trustee Lien).
“Agreement” shall have the meaning set forth in the preamble.
“Asset” means (a) the Participation Certificates and (b) the related MSRs, in each case, sold or pledged to secure the Obligations hereunder.
“Asset Base” means, for any date of determination, the sum of, for each Participation Certificate, an amount that is equal to the product of (1) the related Purchase Price Percentage and (2) the related then-current Market Value.
“Asset Schedule” means a schedule, in the form attached hereto as Schedule 2, listing as of the date of such schedule (i) each Participation Certificate and its related Participation Agreement and (ii) if applicable, any Excluded Mortgage Pool or other Excluded Assets, as such schedule shall be updated from time to time in accordance with Section 2.02 or Section 6.04 hereof.
“Base Indenture” means the Third Amended and Restated Base Indenture, dated as of January 25, 2024, among Buyer, as issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, Seller, as administrator and as servicer, the Administrative Agent, and the Credit Manager, including the schedules and exhibits thereto.
“Buyer” means loanDepot GMSR Master Trust, together with its successors, and any assignee of any Participant or Transferee in the Transaction.
“Buyer MBS Advance” means any advance disbursed on behalf of Buyer by a third party pursuant to the Base Indenture with respect to any Mortgage Pool pursuant to the Ginnie Mae Contract in order to provide for the payment of principal and interest amounts due on the related MBS on the required remittance date under the Ginnie Mae Contract.
“Buyer Parties” means any or all of the Buyer, any Administrative Agent, the Indenture Trustee, the Owner Trustee, the Credit Manager and any other parties acting on behalf of Buyer.
“Capital Leases” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
“Cash Proceeds” means the cash proceeds received in connection with a Permitted Disposition.
“Change in Control” means:
(1)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 Securities Exchange Act of 1934, as amended), 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 Securities Exchange Act of 1934, as amended) 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;
(2)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
(3)if Seller is a Delaware limited liability company, Seller enters into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated.
“Closing Date” means August 11, 2017.
“Code” means the Internal Revenue Code of 1986.
“Collection Policy” means Seller’s policies regarding Collections and remittance in accordance with Accepted Servicing Practices and with the provisions of this Agreement and the Servicing Contracts and shall include the charging and collection of fees for servicing functions, including the charging of late fees, assumption fees, modification fees and other clerical or administrative fees in the ordinary course of servicing.
“Collections” means, (i) with respect to the Excess Spread PC, the Portfolio Excess Spread and upon the occurrence of, and during the continuation of an Event of Default, any amounts representing reimbursements of Buyer MBS Advances, but excluding all or any portion of any Cash Proceeds with respect to any Mortgage Loan repurchased by Seller from the related Mortgage Pool in accordance with the Ginnie Mae Contract, (ii) with respect to the P&I Advance PC, any MBS Advance Reimbursement Amounts, (iii) with respect to the Servicing Advance PC, any Servicing Advance Reimbursement Amounts and (iv) Cash Proceeds ((a) to the extent required to avoid an Event of Default and (b) to ensure that the related Outstanding VFN Principal Balance does not exceed the related Maximum Permitted Amount).
“Commitment Period” means the period from and including the Closing Date to but not including the Termination Date or such earlier date on which the obligations of the Buyer under this Agreement shall have terminated pursuant to the terms of this Agreement.
“Confidential Information” has the meaning set forth in Section 10.10(b).
“Consideration” means (a) in the context of delivery thereof by the Buyer, any or all of (i) the Owner Trust Certificate, including increases in the value thereof pursuant to Sections 4.4(d) or 4.5(e) of the Base Indenture, (ii) one or more Variable Funding Notes and (iii) cash, and (b) in the context of delivery thereof by the Seller in satisfaction of a Margin Deficit, any or all of (i) a reduction in the value of the Owner Trust Certificate pursuant to Section 2.05(a) and (ii) any Margin Call Payment.
“Credit Manager” means Pentalpha Surveillance LLC or any successor thereto.
“Current Business Operations” means 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; real estate services; title insurance; settlement services; appraisal management services; default-related services to servicers and asset managers; title services; insurance brokerage; issuing, sponsoring, providing placement services, pooling of or acquisition of publicly offered and privately issued mortgage-backed securities, mortgage participation certificates and pools of un-securitized mortgage loans and related ancillary
activities. Placement services include, but are not limited to, providing structuring advice, writing marketing materials and soliciting investors.
“Debtor” has the meaning set forth in Section 4.04.
“Dedicated Account” means, so long as there are any Notes Outstanding, the Collection and Funding Account under the Indenture.
“Default” means an event, condition or default that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Division” means, with respect to any Person that is a limited liability company organized under the laws of the State of Delaware, that any such Person (a) divides into two or more Persons (whether or not the original Person or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware, including Section 18-217 of the Delaware Limited Liability Company Act.
“Dollars” and “$” means dollars in lawful currency of the United States of America.
“Effective Date” shall have the meaning set forth in the preamble.
“Eligible Asset” means any Asset which meets all of the following criteria (as applicable):
(a)relates to a Servicing Contract for Mortgage Loans in an Eligible Securitization Transaction in which Seller is acting in the capacity of servicer;
(b)complies with all Applicable Laws and other legal requirements, whether federal, state or local;
(c)provides for payment in Dollars;
(d)was not originated in or subject to the Laws of a jurisdiction whose Laws would make such Asset, or the financing thereof contemplated hereby, unlawful, invalid or unenforceable and is not subject to any legal limitation on transfer;
(e)is owned solely by Seller subject to the relevant Servicing Contract free and clear of all Liens other than Liens in favor of Buyer and has not been sold, conveyed, pledged or assigned to any lender, purchaser, investor or other Person;
(f)in respect of which Seller has complied in all material respects with the Collection Policy and the related Servicing Contract or Participation Agreement, as applicable;
(g)is not an obligation of the United States of America, any State or any agency or instrumentality or political subdivision thereof (other than Ginnie Mae, FHA, USDA, PIH or VA);
(h)in respect of which the information set forth in the Asset Schedule and the related Servicing Contract and, with respect to the Participation Certificates, the Participation Agreement, is true and correct in all material respects;
(i)in respect of which Seller has obtained from each Person that may have an interest in such Asset all acknowledgments or approvals, if any, that are necessary to pledge such Asset as contemplated hereby;
(j)complies with the representations and warranties set forth on Schedules 1-A and 1-B, as applicable, hereto;
(k)with respect to any Asset that constitutes an MSR:
(i)constitutes an “account” or a “general intangible” as defined in the Uniform Commercial Code and is not evidenced by an “instrument,” as defined in the Uniform Commercial Code as so in effect;
(ii)relates to an Eligible Securitization Transaction, where the related Participation Certificate is sold to the Buyer hereunder;
(iii)arose pursuant to a Servicing Contract that is in full force and effect and under which the Servicer has not been terminated; and
(iv)relates to a Participation Certificate that is an Eligible Asset hereunder; and
(l)with respect to any Asset that constitutes a Participation Certificate:
(i)is intended to constitute a “security” as defined in the Uniform Commercial Code and is evidenced by a certificate;
(ii)for which the related MSRs relate to an Eligible Securitization Transaction and have been pledged to the Buyer hereunder;
(iii)arose pursuant to a Participation Agreement that is in full force and effect; and
(iv)relates to MSRs that are Eligible Assets hereunder;
in each case as of the related Purchase Date and as of each day that such Asset shall be subject to a Transaction hereunder.
“Eligible Securities” means any residential mortgage-backed securities, including mezzanine and residual securitization securities.
“Eligible Securitization Transaction” means any Ginnie Mae MBS with respect to which, as of the date of the related Transaction and as of each day that any Asset shall be subject to a Transaction hereunder (unless expressly agreed upon in writing by Buyer to the contrary), (i) the related Servicing Contract is in full force and effect, and (ii) under which the servicer has not been terminated, resigned or become subject to a right of termination or other “trigger event.”
“Eligible Subservicer” means an established mortgage servicer that (i) has been a Ginnie Mae approved issuer for at least five (5) years, (ii) services mortgage loans with an aggregate unpaid principal balance greater than or equal to $50,000,000,000, (iii) has a servicer rating of at least “Average” by S&P, “SQ3” by Moody’s and “RPS3” by Fitch, and (iv) is party to an Eligible Subservicing Agreement.
“Eligible Subservicing Agreement” means a subservicing agreement (i) that has been approved in writing by Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders), (ii) the subservicer of which is an Eligible Subservicer, and (iii) that has not been assigned or amended in any respect that is adverse to Noteholders with respect to the remittance of servicing fees or advance reimbursements without the prior written consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders).
“EO13224” has the meaning set forth in Section 3.18.
“ERISA Affiliate” means any corporation or trade or business that, together with Seller is treated as a single employer under Section 414(b) or (c) of the Code or solely for purposes of Section 302 of ERISA and Section 412 of the Code is treated as a single employer described in Section 414(m) or (n) of the Code.
“Event of Default” shall have the meaning assigned to such term in Section 7.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Buyer or other recipient of any payment hereunder or required to be withheld or deducted from a payment to such Buyer or such other recipient: (a) Taxes based on (or measured by) net income or net profits, franchise Taxes and branch profits Taxes that are imposed on a Buyer or other recipient of any payment hereunder as a result of (i) 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) a present or former connection between such Buyer or other recipient and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof (other than connections arising from such Buyer or other recipient 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 under this Agreement or any Program Agreement, or sold or assigned an interest in any Purchased Mortgage Loan); (b) any withholding Tax that is imposed on amounts payable to or for the account of such Buyer or other recipient of a payment hereunder pursuant to a law in effect on the date such person becomes a party to or under this Agreement, or such person changes its lending office, except in each case to the extent that amounts with respect to Taxes were payable either to such person’s assignor immediately before such person became a party hereto or to such person immediately before it changed its lending office; and (c) any U.S. federal withholding Taxes imposed under FATCA.
“Expenses” means all present and future expenses reasonably incurred by or on behalf of Buyer in connection with the negotiation, execution or enforcement or the ongoing operations relating to this Agreement, the Indenture or any of the other Program Agreements and Participation Agreement, and any amendment, supplement or other modification or waiver related hereto or thereto, whether incurred heretofore or hereafter, which expenses shall include any Buyer MBS Advance amounts, any trustee or other service provider fees, indemnification payments, MSR transfer costs, the cost of title, lien, judgment and other record searches, reasonable attorneys’ fees, any ongoing audits or due diligence costs in connection with valuation, entering into Transactions or determining whether a Margin Deficit may exist, and costs of preparing and recording any UCC financing statements or other filings necessary to perfect the security interest created hereby, in each case subject to the limitations thereon (if applicable) as specified hereunder or under the other Program Agreements.
“FDIA” has the meaning set forth in Section 10.12(c).
“FDICIA” has the meaning set forth in Section 10.12(d).
“FHA Approved Mortgagee” means a corporation or institution approved as a mortgagee by the FHA under the National Housing Act and applicable FHA Regulations, and eligible to own and service mortgage loans such as the FHA Loans.
“Fidelity Insurance” means insurance coverage with respect to employee errors, omissions, dishonesty, forgery, theft, disappearance and destruction, robbery and safe burglary, property (other than money and securities) and computer fraud in an aggregate amount that is satisfactory to Ginnie Mae.
“Financial Statements” means the consolidated financial statements of Seller prepared in accordance with GAAP for the year or other period then ended.
“Ginnie Mae Approvals” shall have the meaning set forth in Section 6.10.
“GLB Act” shall have the meaning set forth in Section 10.10(b).
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions over Seller or Buyer, as applicable.
“GSE” means any financial services corporation chartered by the United States Congress as a government-sponsored enterprise, including Fannie Mae and Freddie Mac.
“Guarantee” means[***].
“Hsieh Investors” means each of [***], the JLSSAA Family Trust, 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.
“Indebtedness” means, for any Person, at any date, without duplication: [***]
“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 Seller under any Program Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
“Indenture” means the Base Indenture, collectively with each Indenture Supplement thereto.
“Indenture Supplement” means each supplement to the Base Indenture, executed and delivered in conjunction with the issuance of the related Series of Notes, including the schedules and exhibits thereto.
“Indenture Trustee” means Citibank, N.A. or its permitted successors and assigns.
“Key Servicing Contract Documentation” means the approval letter and the commitment letters from Ginnie Mae and other documentation, if any, that creates a variance from the Ginnie Mae Guide.
“Laws” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority.
“License” means any license, permit, approval, right, privilege, quota, concession, or franchise issued, granted, conferred or otherwise created by a Governmental Authority.
“loanDepot” has the meaning given to such term in the Preamble.
“Margin Call” has the meaning set forth in Section 2.05(a).
“Margin Call Payment” means the transfer of cash to Buyer.
“Margin Deadlines” has the meaning set forth in Section 2.05(b).
“Margin Deficit” has the meaning set forth in Section 2.05(a).
“Margin Excess” has the meaning set forth in Section 2.05(d).
“Margin Excess Notice” means, in connection with a funding of Margin Excess pursuant to Section 2.05(d), an irrevocable notice delivered by Seller to Buyer, with a copy to the Administrative Agent and the Indenture Trustee, which notice (i) shall be substantially in the form of Exhibit B hereto, (ii) shall be signed by a Responsible Officer of Seller and be received by Buyer [***], (iii) shall specify (A) the Dollar amount of the requested Margin Excess, (B) the requested Interim Payment Date, and (C) shall include a copy of the related “Funding Certification” being delivered pursuant to the Indenture in connection with such funding of Margin Excess, if applicable, and (iv) shall have attached to it a revised Asset Schedule dated the date of such notice.
“Market Value” means, as of any date of determination,
(a) with respect to the Excess Spread PC, the product of (i) the Market Value Percentage (as calculated pursuant to clause (a) of the definition of Market Value Percentage) as of the most recent Market Value Report and (ii) the aggregate unpaid principal balance of the Mortgage Loans included in the Mortgage Pool related to the MSRs evidenced by the related Excess Spread PC as of the last day for which such information is available;
(b) with respect to the P&I Advance PC, the aggregate outstanding balance in U.S. dollars of all Eligible Advance Reimbursement Amounts attributable to MBS Advance Reimbursement Amounts; and
(c) with respect to the Servicing Advance PC, the aggregate outstanding balance in U.S. dollars of all Eligible Advance Reimbursement Amounts attributable to the Servicing Advance Reimbursement Amounts.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, condition (financial or otherwise) or prospects of Seller or any Affiliate thereof that is a party to any Program Agreement taken as a whole; (b) a material impairment of the ability of Seller or any Affiliate thereof that is a party to any Program Agreement to perform under any Program Agreement and to avoid any Event of Default; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Agreement against Seller or any Affiliate thereof that is a party to any Program Agreement.
“MRA Payment Date” means the Business Day immediately preceding a “Payment Date” as defined in the Base Indenture.
“MSR” means with respect to the Mortgage Loans, the mortgage servicing rights, including any and all of the following: (a) any and all rights to service the Mortgage Loans; (b) any payments to or monies received by the Servicer for servicing the Mortgage Loans including any Portfolio Total Spread and Advance Reimbursement Amounts; (c) any late fees, penalties or similar payments with respect to the Mortgage Loans; (d) all agreements or documents creating, defining or evidencing any such servicing rights to the extent they relate to such servicing rights and all rights of the Servicer thereunder; (e) escrow or other similar payments with respect to the Mortgage Loans and any amounts actually collected by the Servicer with respect thereto; (f) all accounts and other rights to payment related to any of the property described in this paragraph; and (g) any and all documents, files, records, servicing files, servicing documents, servicing records, data tapes, computer records, or other information pertaining to the Mortgage Loans or pertaining to the past, present or prospective servicing of the Mortgage Loans; provided, that “MSR” shall not include Excluded Assets or rights to payment in respect thereof.
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA (i) to which contributions have been made during the preceding five (5) years or are required to be made by Seller or any ERISA Affiliate and (ii) that is covered by Title IV of ERISA.
“Notice” or “Notices” means all requests, demands and other communications, in writing (including facsimile transmissions and e-mails), sent by overnight delivery service, facsimile transmission, electronic transmission or hand-delivery to the intended recipient at the address specified in Section 10.04 or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.
“Obligations” means (a) all of Seller’s indebtedness, obligations to pay the Repurchase Price on the Termination Date, the Price Differential on each MRA Payment Date, and other obligations and liabilities, to Administrative Agent, Buyer or their respective Affiliates arising under, or in connection with, the Program Agreements, whether now existing or hereafter arising; (b) any and all sums reasonably incurred and paid by Buyer or on behalf of Buyer in order to preserve any Repurchase 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 this definition, the reasonable Expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Repurchase Asset, or of any exercise by Buyer of its rights under the Program Agreements, including reasonable attorneys’ fees and disbursements and court costs; and (d) all of Seller’s indemnity obligations to Buyer pursuant to the Program Agreements.
“OFAC” has the meaning set forth in Section 3.18.
“Officer’s Compliance Certificate” shall have the meaning assigned to such term in the Pricing Side Letter.
“Optional Payment” has the meaning set forth in Section 2.03(c).
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Program Agreement.
“Owner Trustee” means WSFS, or any successor thereto.
“Parthenon Investors” means each of [***] and each of their respective affiliates.
“Participation Agreement” means that certain Third Amended and Restated GMSR Participation Agreement, dated as of January 25, 2024, between Seller, as company, and Seller, as initial participant.
“Permitted Holders” means any of the Hsieh Investors and the Parthenon Investors.
“Plan” means an employee benefit or other plan established or maintained by any Seller or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
“Plan Assets” means “plan assets” within the meaning of 29 CFR §2510.3 - 101, as amended by Section 3(42) of ERISA.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Price Differential” means [***].
“Price Differential Statement Date” has the meaning set forth in Section 2.04.
“Pricing Rate” shall have the meaning set forth in the Pricing Side Letter.
“Pricing Side Letter” means the letter agreement, dated as of the Effective Date, between Buyer and Seller, as the same may be amended from time to time.
“Proceeds” means “proceeds” as defined in Section 9-102(a)(64) of the UCC.
“Program Agreements” means this Agreement, the Pricing Side Letter, the Indenture and the Participation Agreement, as each of the same may hereafter be amended, restated, supplemented or otherwise from time to time.
“Prohibited Person” has the meaning set forth in Section 3.18 hereof.
“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, subject to the satisfaction of the conditions precedent set forth in Article V hereof, any Payment Date or Interim Payment Date, as set forth in the Base Indenture, in each case on which a Transaction is entered into by Buyer pursuant to Section 2.02 or such other mutually agreed upon date as more particularly set forth on Exhibit A hereto.
“Purchase Price” means [***].
“Purchase Price Percentage” shall have the meaning assigned to the term in the Pricing Side Letter.
“Purchased Assets” means the collective reference to the Participation Certificates together with the Repurchase Assets related to the Participation Certificates. For the sake of clarity, notwithstanding that related MSRs are pledged, and not sold, to Buyer hereunder, such MSRs will nevertheless be included herein as Purchased Assets.
“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 the Purchased Assets.
“Related Security” means with respect to any Asset, (a) all security interests or Liens and property subject thereto from time to time, if any, purporting to secure payment of such Asset, whether pursuant to the related Servicing Contract related to such Asset or otherwise, together with all financing statements covering any collateral securing such Asset; (b) all guarantees, indemnities, letters of credit, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Asset whether pursuant to the related Servicing Contract related to such Asset or otherwise; and (c) any and all Proceeds of the foregoing.
“Repurchase Assets” has the meaning set forth in Section 4.02(a).
“Repurchase Price” means the price at which Purchased Assets are to be transferred from Buyer to Seller (other than the MSRs, which are pledged, and not sold, to Buyer) upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price for such Purchased Assets and the accrued but unpaid Price Differential as of the date of such determination.
“Required Payment” means, with respect to the Purchased Assets, the amounts required to be paid by Seller to Buyer on an MRA Payment Date, equal to the net Servicing Advance Reimbursement Amounts available, if any, any MBS Advance Reimbursement Amounts available, any “Scheduled Principal Payment Amounts,” “Early Amortization Event Payment Amounts,” and “Early Termination Event Payment Amounts,” if any, due on such MRA Payment Date under the Base Indenture.
“Requirement of Law” means, with respect to any Person, any law, treaty, rule or regulation or determination of an arbitrator, a court or other Governmental Authority, 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 as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer or treasurer of such Person. The Responsible Officers of Seller as of the Effective Date are listed on Schedule 3 hereto.
“Restricted Payment” means, with respect to Seller, collectively, all dividends or other distributions of any nature (cash, securities, assets or otherwise), and all payments, by virtue of redemption or otherwise, on any class of equity securities (including, warrants, options or rights therefor) issued by Seller, which may hereafter be authorized or outstanding and any distribution in respect of any of the foregoing, whether directly or indirectly; provided, that in no event shall any Tax Distributions or “earn-out” payments made to sellers of assets or stock (or other equity interests) to Seller or any Affiliate in connection with any acquisition by Seller or any Affiliate or other investment be treated as Restricted Payments for any purpose hereunder.
“Sanctions” has the meaning set forth in Section 3.18.
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Seller” means loanDepot or its permitted successors and assigns.
“Seller Termination Option” means (i) Buyer has or shall incur costs in connection with those matters provided for in Section 2.09 and (ii) Buyer requests that Seller pay to Buyer those costs in connection therewith.
“Servicing Contract” means, with respect to each Portfolio Mortgage Loan, the servicing agreement with Ginnie Mae applicable thereto, including, the applicable Agency Requirements, and any other agreements under which such Portfolio Mortgage Loan is serviced and administered.
“Subsidiary” means, with respect to any Person, (i) a trust as to which at least a majority of the common equity interest 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 or (ii) 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.
“Successor Issuer” means any party designated as successor to Seller by Ginnie Mae on behalf of Buyer.
“Synthetic Leases” means, at any time, any lease (including leases that may be terminated by the lessee at any time) of any property (a) that is accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or obtains ownership of the property so leased for U.S. federal income tax purposes, other than any such lease under which such Person is the lessor.
“Taxes” means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings (including backup withholding), assessments, fees or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” shall have the meaning assigned to such term in the Pricing Side Letter.
“Transaction” means a transaction pursuant to which Seller transfers a Participation Certificate to Buyer or designates additional MSRs to a Participation Certificate, against the delivery of Consideration by Buyer, with a simultaneous agreement by Buyer to transfer such Participation Certificate back to Seller at a date certain or on demand, against the transfer of funds by Seller.
“Transaction Notice” means, in connection with a Purchase pursuant to Section 2.02, an irrevocable notice delivered by Seller to Buyer, with a copy to the Administrative Agent and the Indenture Trustee, which notice (i) shall be substantially in the form of Exhibit A hereto, (ii) shall be signed by a Responsible Officer of Seller and be received by Buyer [***], (iii) shall specify (A) the Dollar amount of the requested Purchase Price, (B) the requested Purchase Date, and (C) a copy of the related “Funding Certification” being delivered pursuant to the Indenture in connection with such Transaction, if applicable, and (iv) shall have attached to it a revised Asset Schedule dated the date of such notice.
“Transaction Register” shall have the meaning assigned to such term in Section 9.03(b).
“Transferee” has the meaning set forth in Section 9.02(a).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect on the Effective Date in the State of New York or the Uniform Commercial Code as in effect in the applicable jurisdiction.
“VA Approved Lender” means a lender which is approved by the VA to act as a lender in connection with the origination of VA Loans.
“WSFS” means Wilmington Savings Fund Society, FSB.
Section 1.02Other Defined Terms; Interpretation. Any capitalized terms used and not defined herein shall have the meaning set forth in the Participation Agreement or, if not therein defined, in the Base Indenture or incorporated therein by reference to another Program Agreement. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
(i)reference to and the definition of any document (including this Agreement) shall be deemed a reference to such document as it may be amended or modified from time to time;
(ii)all references to an “Article,” “Section,” “Schedule” or “Exhibit” are to an Article or Section hereof or to a Schedule or an Exhibit attached hereto;
(iii)defined terms in the singular shall include the plural and vice versa and the masculine, feminine or neuter gender shall include all genders;
(iv)the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
(v)unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or” and the term “including” is not limiting;
(vi)in the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein, the words “commencing on” mean “commencing on and including,” the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;
(vii)periods of days referred to in this Agreement shall be counted in calendar days unless Business Days are expressly prescribed and references in this Agreement to months and years shall be to months and calendar years unless otherwise specified;
(viii)accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under GAAP;
(ix)“including” and words of similar import will be deemed to be followed by “without limitation”;
(x)references to any statute, law, rule or regulation shall be deemed a reference to such statute, law, rule or regulation as it may be amended or modified from time to time;
(xi)references to any Program Agreement (including this Agreement) and any other agreement shall be deemed a reference to such Program Agreement or such Program Agreement as it may be amended, restated, supplemented or otherwise modified from time to time; and
(xii)all references to payments or deliveries of “cash” shall be understood to mean “immediately available funds” or “available funds held in a deposit account,” as the context may require.
ARTICLE II
GENERAL TERMS
Section 1.01Transactions. During the Commitment Period, and subject to the terms and conditions of this Agreement, Buyer agrees to enter into Transactions with Seller for the applicable Purchase Price. Seller may pay the Repurchase Price at any time during the Commitment Period, and additional Transactions may be entered into in accordance with the terms and conditions hereof; provided, however, Seller may not repurchase one Participation Certificate without repurchasing all Participation Certificates unless otherwise consented to by the Buyer, at the direction of the Indenture Trustee on behalf of the Noteholders. Buyer’s obligation to enter into Transactions pursuant to the terms of this Agreement shall terminate on the Termination Date. Notwithstanding the foregoing, Buyer shall have no commitment or obligation to enter into Transactions to the extent the Purchase Price of such Transaction exceeds the Asset Base (determined after giving effect to such proposed purchase).
Section 1.02Procedure for Entering into Transactions.
(a)Seller may enter into Transactions with Buyer during the Commitment Period on any Purchase Date; provided, that Seller shall have given Buyer a Transaction Notice. Each Transaction Notice on any Purchase Date shall be in an amount equal to at least $[***].
(b)If Seller shall deliver to Buyer a Transaction Notice that satisfies the requirements of Section 2.02(a), Buyer will notify Seller prior to the requested Purchase Date of its intent to remit the requested Purchase Price, and the form or forms of the Consideration that will be provided, including (i) the portion of such Purchase Price that will paid in cash, if any (ii) the Note Balance, or increased Note Balance, of any Variable Funding Note and (iii) the increased value of the Owner Trust Certificate, which increase will result from the deemed capital contribution to Buyer of any portion of the Purchase Price not paid pursuant to Clause (i) or (ii) above. If all applicable conditions precedent set forth in Article V have been satisfied on or prior to the Purchase Date, then subject to the foregoing, on the Purchase Date, Buyer shall deliver the Consideration to Seller, including remitting any cash portion of the requested Purchase Price identified by Buyer in Dollars and in immediately available funds to the account specified by Seller in Schedule 6 to the Base Indenture.
(c)Upon entering into each Transaction hereunder, the Asset Schedule shall be deemed automatically updated to include each of the Assets listed on the Asset Schedule attached to the Transaction Notice, as well as any Excluded Assets referenced thereon.
Section 1.03Repurchase; Payment of Repurchase Price; Optional Payments.
(a)Seller hereby promises to (i) repurchase the Purchased Assets and pay the Repurchase Price and all other outstanding Obligations on the related Termination Date, (ii) pay any and all Required Payments on the related MRA Payment Date, and (iii) satisfy any Margin Calls in accordance with Section 2.05 hereof (including through the payment of cash).
(b)Without limiting the foregoing, on each MRA Payment Date, Seller shall sweep all amounts received with respect to MSRs (including Advance Reimbursement Amounts) to the Dedicated Account in accordance with Section 6.12 hereof to be applied in accordance with Section 2.07 hereof.
(c)[Reserved.]
(d)If Seller, at its option makes a payment (an “Optional Payment”), so that Buyer can use such Optional Payment to effect a redemption of any portion of a Class of Notes pursuant to Section 13.1 of the Base Indenture, Seller shall contemporaneously pay to Buyer all accrued and unpaid Price Differential on the amount so prepaid, together with the applicable Specified Call Premium Amounts (as defined in any applicable Indenture Supplement) then due and payable, if any. Any such Optional Payment shall be made to the Dedicated Account and shall be applied to the outstanding Purchase Price attributable to each Participation Certificate on a pro rata basis.
Section 1.04Price Differential.
(a)On each MRA Payment Date, Seller hereby promises to pay to Buyer all accrued and unpaid Price Differential on the Transactions, as invoiced by Buyer [***] (the “Price Differential Statement Date”); provided that if Buyer fails to deliver such statement on the Price Differential Statement Date, on such MRA Payment Date Seller shall pay the amount which Seller calculates as the Price Differential due and upon delivery of the statement, Seller shall remit to Buyer any shortfall, or Buyer shall refund to Seller any excess, in the Price Differential paid. Price Differential shall accrue each day on the Purchase Price at a rate per annum equal to the Pricing Rate.
(b)In addition to the payment of the Price Differential, on each MRA Payment Date, Seller hereby promises to pay to Buyer all accrued and unpaid amounts representing Expenses, if any.
Section 1.05Margin Maintenance.
(a)If at any time the aggregate outstanding amount of the Purchase Price with respect to any Participation Certificate exceeds the Asset Base with respect to such Participation Certificate in effect at such time, as determined on each Payment Date after taking into account any Transaction being effected on such date (such excess, a “Margin Deficit”), then Buyer may, by notice to Seller, require Seller to eliminate the Margin Deficit (such requirement, a “Margin Call”) by (i) making a Margin Call Payment, or (ii) if there is no Borrowing Base Deficiency at such time, the reduction of the value of the Owner Trust Certificate.
(b)Notice delivered pursuant to Section 2.05(a) may be given by any written or electronic means. With respect to a Margin Call, any notice given [***] shall be met, and the related Margin Call satisfied, no later than [***]. With respect to a Margin Call, any notice given after [*** shall be met, and the related Margin Call satisfied, no later than [***]. The foregoing time requirements for satisfaction of a Margin Call are referred to as the “Margin Deadlines.” The failure of Buyer, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date. Seller and Buyer each agree that a failure or delay by
Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
(c)In the event that a Margin Deficit exists, Buyer may retain any funds received by it to which Seller would otherwise be entitled hereunder, which funds (i) may be held by Buyer against the related Margin Deficit or (ii) may be applied by Buyer against the Purchase Price. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 2.05.
(d)If at any time the aggregate outstanding amount of the Asset Base in effect at such time exceeds the Purchase Price, after giving effect to any change in the Asset Base resulting from the addition of new MSRs (including the addition or reimbursement of Advance Reimbursement Amounts) (such excess, a “Margin Excess”), then Seller may deliver a Margin Excess Notice to Buyer and request Buyer to deliver additional Consideration in an amount not to exceed the amount of such Margin Excess indicated in such Margin Excess Notice. Seller shall deliver such Margin Excess Notice [***on which Seller wishes to receive such amount. If the Margin Excess Notice has been timely provided, Buyer shall provide Consideration to Seller in the requested amount on the specified Interim Payment Date, which Consideration shall consist of (i) cash, to the extent Buyer has excess cash or is able to obtain cash by effectuating an increase in the VFN Principal Balance and (ii) otherwise, an increase in the value of the Owner Trust Certificate.
(e)Notwithstanding the foregoing, to the extent that the Buyer maintains excess cash, then, if requested by the Seller, the additional Consideration set forth in the applicable Margin Excess Notice shall be satisfied (in whole or in part) by the payment of such excess cash (i) if the Margin Excess Notice is delivered[***, then no later than [***], and (ii) if the Margin Excess Notice is delivered after [***], on [***] following delivery of such Margin Excess Notice.
Section 1.06Payment Procedure. Seller shall deposit or cause to be deposited all amounts constituting collections, payments and proceeds of Assets (including all fees and proceeds of sale) in the Dedicated Account as set forth in Section 6.12. Only to the extent that such amounts are received free and clear of all Ginnie Mae rights and other restrictions on transfer, Seller shall cause the Subservicer (if any) to remit directly to the Dedicated Account all amounts that constitute collections, payments and proceeds of Assets owed by Subservicer to Seller. Seller shall absolutely, unconditionally, and irrevocably, make (or cause its subservicer to make) all payments required to be made by Seller hereunder whether or not sufficient amounts are on deposit in the Dedicated Account. All or any part of the amounts under this Section 2.06 may only be applied by the Buyer to the extent that such proceeds have been received by, or for the account of, the Seller free and clear of all Ginnie Mae rights and other restrictions on transfer under applicable Ginnie Mae guidelines.
Section 1.07Payments.
(a)On each MRA Payment Date, Seller shall pay all amounts due and owing under Sections 2.03, 2.04 or 2.05 hereof.
(b)Notwithstanding any other provision of this Agreement, Seller shall be entitled to retain, from payments on, or relating to, the Mortgage Loans, all Ancillary Income. Ancillary Income shall not be required to be deposited into the Dedicated Account, and shall not be subject to any offset, netting or withdrawal under this Agreement.
Section 1.08Recourse. Notwithstanding anything else to the contrary contained or implied herein or in any other Program Agreement, Buyer shall have full, unlimited recourse against Seller and its assets in order to satisfy the Obligations.
Section 1.09Taxes.
(a)Any and all payments by Seller under or in respect of this Agreement or any other Program Agreements to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of any Taxes, unless required by law. If Seller shall be required under any applicable Requirement of Law (as determined in the good faith discretion of the applicable withholding agent) to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Program Agreements to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) to the extent the withheld or deducted Tax is an Indemnified Tax or Other Tax, the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 2.09) such Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)In addition, Seller hereby agrees to pay any Other Taxes.
(c)Seller hereby agrees to indemnify Buyer for any Indemnified Taxes or Other Taxes imposed on such Buyer (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.09) and any liability including penalties, additions to tax, interest and expenses arising therefrom or with respect thereto. The indemnity by Seller provided for in this Section 2.09 shall apply and be made whether or not the Indemnified Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by Seller under the indemnity set forth in this Section 2.09(c) shall be paid within [***] from the date on which Buyer makes written demand therefor.
(d)Without prejudice to the survival of any other agreement of the Seller hereunder, each party’s obligations contained in this Section 2.09 shall survive the termination of this Agreement and the other Program Agreements. Nothing contained in this Section 2.09 shall require any Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.
Section 1.10[Reserved].
Section 1.11Indemnity. The Seller agrees to indemnify the Buyer and to hold the Buyer harmless from any loss or expense that the Buyer may sustain or incur as a consequence of (i) a default by the Seller in payment when due of the Repurchase Price, Required Payment, Margin Deficit or Price Differential or (ii) a default by the Seller in making any prepayment of Repurchase Price after the Seller has given a notice thereof in accordance with Section 2.03.
Section 1.12Dedicated Account. Collections received on account of MSRs, including Advance Reimbursement Amounts and Portfolio Excess Spread, and retained by Seller pursuant to the related Servicing Contract or Participation Agreement, as the case may be, shall, subject to Section 6.12, promptly be deposited in the Dedicated Account. Funds on deposit in the Dedicated Account may be applied to satisfy the Seller’s obligation to pay the Required Payments on the related MRA Payment Date.
Section 1.13[Reserved].
Section 1.14Termination.
(a)Notwithstanding anything to the contrary set forth herein, if a Seller Termination Option occurs, Seller may, upon [***] prior notice of such event, terminate this Agreement and the Termination Date shall be deemed to have occurred (upon the expiration of the [***]).
(b)In the event that a Seller Termination Option has occurred and Seller has notified Buyer of its option to terminate this Agreement, Buyer shall have the right to withdraw such request for payment within [***] of Seller’s notice of its exercise of the Seller Termination Option and Seller shall no longer have the right to terminate this Agreement.
(c)Seller shall remain responsible for all costs incurred by Buyer pursuant to Section 2.09 hereunder and any cost or expenses incurred by Buyer under the Indenture.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer as of the Closing Date, as of the Effective Date and as of each Purchase Date for any Transaction that:
Section 1.01Seller Existence. Seller has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware.
Section 1.02Power. Seller has the requisite power and authority and legal right to own, sell and grant a lien on all of its right, title and interest in and to the Assets. Seller has the requisite power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement, each Program Agreement, any Transaction Notice and any Excess Margin Funding Notice.
Section 1.03License and Government Authorization. Seller has all requisite governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a Material Adverse Effect, and Seller is not in default of any applicable federal, state or local laws, rules or regulations, unless, in any instance, the failure to take actions is not reasonably likely to cause a Material Adverse Effect.
Section 1.04Due Authorization. Seller has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations under each of the Program Agreements, as applicable. This Agreement, any Transaction Notice and the Program Agreements have been (or, in the case of Program Agreements and any Transaction Notice not yet executed, will be) duly authorized, executed and delivered by Seller, all requisite or other corporate action having been taken, and each is valid, binding and enforceable against Seller in accordance with its terms except as such enforcement may be affected by bankruptcy, by other insolvency laws, or by general principles of equity.
Section 1.05No Event of Default. There exists no Event of Default hereunder.
Section 1.06Solvency. Seller is solvent and will not be rendered insolvent by any Transaction and, after giving effect to such Transaction, will not be left with an unreasonably small amount of capital with which to engage in its business. Seller neither intends to incur, nor believes that it has incurred, debts beyond its ability to pay such debts as they mature and 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 such entity or any of its assets. Seller is not selling and/or pledging any Repurchase Assets with any intent to hinder, delay or defraud any of its creditors.
Section 1.07No Conflicts. The execution, delivery and performance by Seller of this Agreement, any Transaction Notice hereunder and the Program Agreements do not conflict with any term or provision of the organizational documents of Seller or any law, rule, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller, which conflict would have a Material Adverse Effect, and will not result in any violation of any such mortgage, instrument, agreement, obligation or Servicing Contract to which Seller is a party.
Section 1.08True and Complete Disclosure. All information, reports, exhibits, schedules, financial statements or certificates of Seller or any Affiliate thereof or any of their officers furnished or to be furnished to Buyer in connection with the initial or any ongoing due diligence of Seller or any Affiliate thereof or officer thereof, negotiation, preparation, or delivery of the Program Agreements, taken as a whole, are true and complete in all material respects and do not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading.
Section 1.09Approvals. No consent, approval, authorization or order of, registration or filing with, or notice to any Governmental Authority or court is required under Applicable Law in connection with the execution, delivery and performance by Seller of this Agreement, any Transaction Notice and the Program Agreements.
Section 1.10Ownership. In each case subject to the priority interest of Ginnie Mae, as applicable:
(i)Seller has good title to all of the Repurchase Assets, free and clear of all mortgages, security interests, restrictions, Liens and encumbrances of any kind other than the Liens created hereby or contemplated herein;
(ii)each item of the Repurchase Assets was acquired by Seller in the ordinary course of its business, in good faith, for value and without notice of any defense against or claim to it on the part of any Person;
(iii)there are no agreements or understandings between Seller and any other party which would modify, release, terminate or delay the attachment of the security interests granted to Buyer under this Agreement;
(iv)the provisions of this Agreement are effective to create in favor of Buyer a valid security interest in all right, title and interest of Seller in, to and under the Repurchase Assets; and
(v)upon the filing of financing statements on Form UCC-1 naming Buyer as “Secured Party” and Seller as “Debtor,” and describing the Repurchase Assets, in the recording offices of the Secretary of State of Delaware the security interests granted hereunder in the Repurchase Assets will constitute fully perfected first priority security
interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Repurchase Assets to the extent such security interests can be perfected by filing under the Uniform Commercial Code.
Section 1.11The Servicing Contracts and Participation Agreement. Buyer has received copies of the Key Servicing Contract Documentation related to each Servicing Contract and the Participation Agreement (including all exhibits and schedules referred to therein or delivered pursuant thereto), all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof and all agreements and other material documents relating thereto, and Seller hereby certifies that the copies delivered to Buyer by Seller are true and complete. None of such documents has been amended, supplemented or otherwise modified (including waivers) since the respective dates thereof, except by amendments, copies of which have been delivered to Buyer. Each such document to which Seller is a party has been duly executed and delivered by Seller and is in full force and effect, and no default or material breach by Seller, and to Seller’s knowledge, any other party thereto, has occurred and is continuing thereunder.
Section 1.12Investment Company. Neither Seller nor any of its Subsidiaries is an “investment company,” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act.
Section 1.13Chief Executive Office; Jurisdiction of Organization. As of the Closing Date and on the Effective Date, Seller’s chief executive office, is, and has been, located at the address specified in Section 10.04 for notices to Seller. On the date hereof, Seller’s jurisdiction of organization is the State of Delaware. Seller shall provide Buyer with [***]) days advance notice of any change in Seller’s principal office or place of business or jurisdiction. Seller has no trade name. During the preceding five (5) years, Seller has not been known by or done business under any other name, corporate or fictitious, and has not filed or had filed against it any bankruptcy receivership or similar petitions nor has it made any assignments for the benefit of creditors.
Section 1.14Location of Books and Records. The location where Seller keeps its books and records, including all computer tapes and records relating to the Repurchase Assets is its chief executive office or at the offices of the Eligible Subservicer; provided, however, that electronic records may also be maintained at backup data centers or via cloud-based storage.
Section 1.15ERISA. Either Seller and its ERISA Affiliates (i) have no Plans in effect, or (ii) except as would not reasonably be expected to result in a Material Adverse Effect, each Plan to which Seller or its Subsidiaries make direct contributions, and, to the knowledge of Seller, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law.
Section 1.16Ginnie Mae Approvals; Servicing Facilities. Seller has or has engaged qualified subcontractors (including Eligible Subservicers) that have adequate financial standing, servicing facilities, procedures and experienced personnel necessary for the sound servicing of mortgage loans of the same types as may from time to time constitute Mortgage Loans and in accordance with Accepted Servicing Practices. To the extent necessary, Seller is (i) an FHA Approved Mortgagee in good standing with the FHA, (ii) a VA Approved Lender and in good standing with the VA, (iii) approved by the USDA as an approved lender and in good standing with the USDA, (iv) approved by Ginnie Mae as an approved issuer and in good standing with Ginnie Mae, (v) approved by Fannie Mae as an approved lender and in good standing with Fannie Mae, (vi) approved by Freddie Mac as an approved seller/servicer and in good standing with Freddie Mac, and (vii) approved by the Secretary of HUD pursuant to
Sections 203 and 211 of the National Housing Act and in good standing with the Secretary of HUD.
Section 1.17Plan Assets. Seller is not and is not acting on behalf of an employee benefit plan as defined in Section 3(3) of Title I of ERISA that is subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code that is subject to 4975 of the Code or any entity that is deemed to hold Plan Assets, and the Purchased Assets and Repurchase Assets are not Plan Assets. Seller is not subject to any state or local statute regulating investments or fiduciary obligations with respect to governmental plans within the meaning of Section 3(32) of ERISA which would be violated by the Transactions contemplated hereunder.
Section 1.18No Prohibited Persons. Neither Seller nor any of its officers, directors, partners or members, nor, to the knowledge of Seller, any of its Affiliates, is an entity or person (or to the Seller’s knowledge, majority owned or controlled by an entity or person): (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specially Designated National and Blocked Persons” (which list may be published from time to time in various mediums including the OFAC website, https://www.treasury.gov/ofac/downloads/sdnlist.pdf); (iii) who commits, threatens to commit or supports “terrorism,” as that term is defined in EO13224; (iv) that is (1) the subject of any sanctions administered or enforced by OFAC, the U.S. Department of State, the U.S. Department of Commerce, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Sanctions”) or (2) located, organized or resident in a country or territory that is, or whose government is, the subject of comprehensive Sanctions; or (v) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “Prohibited Person”).
Section 1.19Compliance with 1933 Act. Except as contemplated by the Program Agreements, neither Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Participation Certificates, any interest in the Participation Certificates or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Participation Certificates, any interest in the Participation Certificates or any other similar security from, or otherwise approached or negotiated with respect to the Participation Certificates, any interest in the Participation Certificates or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Participation Certificates under the 1933 Act or which would render the disposition of the Participation Certificates a violation of Section 5 of the 1933 Act or require registration pursuant thereto.
Section 1.20Eligible Assets. All Assets that are subject to a Transaction under this Agreement are Eligible Assets.
ARTICLE IV
CONVEYANCE; REPURCHASE ASSETS; SECURITY INTEREST
Section 1.01Ownership. Upon payment (or deemed payment in the case of an increase in the value of the Owner Trust Certificate) of the Purchase Price, Buyer shall become the sole owner of the Purchased Assets and related Repurchase Assets (other than the related MSRs, which are pledged, and not sold, to Buyer, and the Excluded Assets), free and clear of all liens and encumbrances, but subject to the rights of Ginnie Mae pursuant to the Acknowledgment Agreement with Ginnie Mae.
Section 1.02Security Interest.
(a)Although the parties intend that all Transactions hereunder be sales and purchases and not loans (other than the MSRs, which are pledged, and not sold, to Buyer), in the event any such Transactions are deemed to be loans, and in any event, Seller hereby pledges to Buyer as security for the performance by Seller of its Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in all of Seller’s right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located, is hereinafter referred to as the “Repurchase Assets”:
(i)the Participation Certificates and all MSRs related thereto, including Acquired MSRs, whether such MSRs are in existence on the date such Participation Certificate becomes the subject of a Transaction hereunder or arise thereafter, and whether or not such Assets or the related Mortgage Pools are listed on an Asset Schedule;
(ii)all MSRs arising under or related to any Servicing Contract;
(iii)all rights to reimbursement or payment of Assets and/or amounts due in respect thereof under the related Servicing Contract, Ginnie Mae MBS or Participation Agreement, including MBS Advances;
(iv)any rights in the Dedicated Account and to the amounts on deposit therein;
(v)all rights under the Participation Agreement;
(vi)all records, instruments or other documentation evidencing any of the foregoing;
(vii)all “general intangibles,” “accounts,” “chattel paper,” “securities accounts,” “investment property,” “deposit accounts” and “money” as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including all of Seller’s rights, title and interest in and under the Participation Agreement and the Servicing Contracts); and
(viii)any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing;
provided, however, that the Repurchase Assets shall not include any Excluded Assets.
(b)Seller hereby assigns, pledges, conveys and grants a security interest in all of its right, title and interest in, to and under the Repurchase Assets to Buyer to secure the Obligations. Seller agrees to mark its computer records and tapes to evidence the interests granted to Buyer hereunder.
(c)The parties acknowledge that Ginnie Mae has certain rights under the Acknowledgment Agreement, including the right to cause the Seller to transfer servicing to Buyer or Buyer’s designee under certain circumstances as more particularly set forth therein. To the extent that Ginnie Mae requires a transfer of MSRs to a Successor Issuer, and in order to secure Seller’s obligations to effect such transfer, when and if such transfer is required, Seller hereby assigns, pledges, conveys and grants a security interest in all of its right, title and interest in, to and under the MSRs to such Successor Issuer, whether now owned or hereafter acquired,
now existing or hereafter created and wherever located. The parties acknowledge that, to the extent that Ginnie Mae exercises its rights to cause Seller to transfer the MSRs, including Advance Reimbursement Amounts and Portfolio Excess Spread, to a Successor Issuer (and, if accepted by Buyer, to cause a Successor Issuer to accept and assume the responsibility for performing Seller’s servicing duties under, and otherwise complying with the related Servicing Contract) without the requirement of payment therefor, such transfer shall be deemed a transfer in exchange for debt forgiveness by Buyer in an amount equal to the lesser of (x) the fair market value of such MSRs, including Advance Reimbursement Amounts and Portfolio Excess Spread and (y) the outstanding balance of the Repurchase Price attributable to such MSRs, including Advance Reimbursement Amounts and Portfolio Excess Spread, each as determined by Buyer. The Successor Issuer shall have all the rights and remedies against Seller and the Purchased Assets and Repurchase Assets as set forth herein and under the UCC.
(d)The foregoing provisions of this Section are intended to constitute a security agreement or other arrangement or other credit enhancement related to this Agreement and the Transactions hereunder as defined under Sections 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code.
Section 1.03Further Documentation. At any time and from time to time, upon the written request of Buyer, and at the sole expense of Seller, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any applicable jurisdiction with respect to the Liens created hereby.
Section 1.04Limited Pledge of Ginnie Mae Servicing. The Buyer acknowledges and agrees that (x) the Seller is entitled to servicing income with respect to a given mortgage pool and reimbursement for advance amounts only so long as Seller is a Ginnie Mae approved issuer; (y) upon the Seller’s loss of such approved issuer status, the Buyer’s rights to any servicing income and reimbursement for advance amounts related to a given mortgage pool also terminate; and (z) the pledge of the Seller’s rights to servicing income and reimbursement for advance amounts conveys no rights (such as a right to become a substitute servicer or issuer) that are not otherwise specifically provided for in the Ginnie Mae Contract, provided that this sentence shall automatically be deemed amended or modified if and to the extent Ginnie Mae amends the Ginnie Mae Contract, the applicable Acknowledgment Agreement, if any, or published announcements and provided further that the security interest created hereby is subject to the following provision to be included in each financing statement filed in respect hereof (defined terms used below shall have the meaning set forth in the applicable Acknowledgment Agreement):
Notwithstanding anything to the contrary set forth herein:
(1) The property subject to the security interest reflected in this instrument includes all of the right, title and interest of loanDepot.com, LLC (“Debtor”) in certain mortgages and/or participation interests related to such mortgages (“Pooled Mortgages”), and pooled under the mortgage-backed securities program of the Government National Mortgage Association (“Ginnie Mae”), pursuant to section 306(g) of the National Housing Act, 12 U.S.C. § 1721(g);
(2) To the extent that the security interest reflected in this instrument relates in any way to the Pooled Mortgages, such security interest is subject and subordinate to all rights, powers and prerogatives of Ginnie Mae, whether now existing or
hereafter arising, under and in connection with: (i) 12 U.S.C. § 1721(g) and any implementing regulations; (ii) the terms and conditions of that certain Third Amended and Restated Acknowledgment Agreement, dated as of January 25, 2024, with respect to the Security Interest, by and among Ginnie Mae, Debtor and Citibank, N.A., as indenture trustee; (iii) applicable Guaranty Agreements and contractual agreements between Ginnie Mae and the Debtor; and (iv) the Ginnie Mae Mortgage-Backed Securities Guide, Handbook 5500.3 Rev. 1, and other applicable guides (items (i), (iii) and (iv), collectively, the “Ginnie Mae Contract”);
(3) Such rights, powers and prerogatives of Ginnie Mae include, but are not limited to, Ginnie Mae’s right, by issuing a letter of extinguishment to Debtor, to effect and complete the extinguishment of all redemption, equitable, legal or other right, title or interest of the Debtor in the Pooled Mortgages, in which event the security interest as it relates in any way to the Pooled Mortgages shall instantly and automatically be extinguished as well; and
(4) For purposes of clarification, “subject and subordinate” in clause (2) above means, among other things, that any cash held by Citibank as collateral and any cash proceeds received by Citibank in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the collateral may only be applied by Citibank to the extent that such proceeds have been received by, or for the account of, the Debtor free and clear of all Ginnie Mae rights and other restrictions on transfer under applicable Ginnie Mae guidelines; provided that this clause (4) shall not be interpreted as establishing rights in favor of Ginnie Mae except to the extent that such rights are reflected in, or arise under, the Ginnie Mae Contract.
Section 1.05Changes in Locations, Name, etc. Seller shall not (a) change the location of its chief executive office/chief place of business from that specified in Section 3.13, (b) change its jurisdiction of organization from the jurisdiction referred to in Section 3.13, or (c) change its name or identity, in each case unless it shall have given Buyer at least [***] prior written notice thereof and shall have delivered to Buyer all Uniform Commercial Code financing statements and amendments thereto as Buyer shall request and taken all other actions deemed necessary by Buyer to continue its perfected status in the Repurchase Assets with the same or better priority.
Section 1.06Buyer’s Appointment as Attorney-in-Fact.
(a)Seller hereby irrevocably constitutes and appoints Buyer 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 Buyer’s discretion 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 necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, Seller hereby gives Buyer the power and right, on behalf of Seller, without assent by, but with notice to, Seller to do the following:
(i)in the name of Seller or 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 Repurchase Assets and to file any claim or to take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by Buyer for the purpose of collecting any and all such moneys due with respect to any Repurchase Asset whenever payable;
(ii)to pay or discharge taxes and Liens levied or placed on or threatened against the Repurchase Assets;
(iii)except to the extent inconsistent with the related Servicing Contracts and the Acknowledgment Agreement, request that MSRs be transferred to Buyer or to another servicer approved by Ginnie Mae and perform (without assuming or being deemed to have assumed any of the obligations of Seller thereunder) all aspects of each Servicing Contract that is a Purchased Asset;
(iv)request distribution to Buyer of sale proceeds or applicable contract termination fees, if any, arising from the sale or termination of such MSRs and remaining after satisfaction of Seller’s relevant obligations to Ginnie Mae, including costs and expenses related to any such sale or transfer of such MSRs and other amounts due for unmet obligations of Seller to Ginnie Mae under the Ginnie Mae Contract and any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs;
(v)deal with investors and any and all subservicers and master servicers in respect of any of the Repurchase Assets in the same manner and with the same effect as if done by Seller; and
(vi)(A) to direct any party liable for any payment under any Repurchase Assets to make payment of any and all moneys due or to become due thereunder directly to Buyer or as Buyer shall direct; (B) 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 Repurchase Asset; (C) to sign and endorse any invoices, assignments, verifications, notices and other documents in connection with any of the Repurchase Assets; (D) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Repurchase Assets or any portion thereof and to enforce any other right in respect of any Repurchase Assets; (E) to defend any suit, action or proceeding brought against Seller with respect to any Repurchase Assets; (F) to settle, compromise or adjust any suit, action or proceeding described in clause (E) above and, in connection therewith, to give such discharges or releases as Buyer may deem appropriate; and (G) generally, to sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Repurchase Assets as fully and completely as though Buyer were the absolute owner thereof for all purposes, and to do, at Buyer’s option and Seller’s expense, at any time, and from time to time, all acts and things which Buyer deems necessary to protect, preserve or realize upon the Repurchase Assets and Buyer’s Liens thereon and to effect the intent of this Agreement, all as fully and effectively as Seller might do.
(b)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 until such time as all Obligations have been paid in full and this Agreement is terminated.
(c)Seller also authorizes Buyer, at any time and from time to time, to execute, in connection with any sale provided for in Section 4.08 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Repurchase Assets.
(d)The powers conferred on Buyer are solely to protect Buyer’s interests in the Repurchase Assets and shall not impose any duty upon Buyer to exercise any such powers. Buyer shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither Buyer nor any of its officers, directors, or employees shall be responsible to Seller for any act or failure to act hereunder, except for Buyer’s own gross negligence or willful misconduct.
Notwithstanding anything to the contrary herein or any of the other Program Agreements, any appointment set forth in this Section 4.06, as well as Buyer’s exercise (or purported exercise) of any right, power or authority given by Seller hereunder, shall be subject to the Ginnie Mae Contract, the Acknowledgment Agreement and any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs.
Section 1.07Performance by Buyer of Seller’s Obligations. If Seller fails to perform or comply with any of its agreements contained in the Program Agreements and Buyer may itself perform or comply, or otherwise cause performance or compliance, with such agreement, the reasonable (under the circumstances) out-of-pocket expenses of Buyer actually incurred in connection with such performance or compliance, together with interest thereon at a rate per annum equal to the Pricing Rate shall be payable by Seller to Buyer on demand and shall constitute Obligations. Such interest shall be computed on the basis of the actual number of days elapsed from and including the preceding MRA Payment Date to and excluding such date of determination and a 360 day year.
Section 1.08Proceeds. If an Event of Default shall occur and be continuing, (a) all proceeds of Repurchase Assets received by Seller consisting of cash, checks and other liquid assets readily convertible to cash items shall be held by Seller in trust for Buyer, segregated from other funds of Seller, and shall forthwith upon receipt by Seller be turned over to Buyer in the exact form received by Seller (duly endorsed by Seller to Buyer, if required) and (b) any and all such proceeds received by Buyer (whether from Seller or otherwise) may, in the sole discretion of Buyer, be held by Buyer as collateral security for, and/or then or at any time thereafter may be applied by Buyer against, the Obligations (whether matured or unmatured), such application to be in such order as Buyer shall elect. Any balance of such proceeds remaining after the Obligations shall have been paid in full and this Agreement shall have been terminated shall be paid over to Seller or to whomsoever may be lawfully entitled to receive the same. Notwithstanding anything to the contrary herein or in any of the other Program Agreements, the provisions of this Section 4.08 shall be subject to the applicable Servicing Contracts and the Acknowledgment Agreement entered into with Ginnie Mae.
Section 1.09Remedies. If an Event of Default shall occur and be continuing, Buyer may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Uniform Commercial Code (including Buyer’s rights to a strict foreclosure under Section 9-620 of the Uniform Commercial Code). Without limiting the generality of the foregoing, Buyer may seek the appointment of a receiver, liquidator, conservator, trustee, or similar official in respect of Seller or any of Seller’s property. Without limiting the generality of the foregoing, Buyer may terminate a Participation Interest in accordance with the applicable Participation Agreement. Without limiting the generality of the foregoing, Buyer without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required under this Agreement or by law referred to below) to or upon Seller or any other Person (each and all of which demands, presentments, protests, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Repurchase Assets, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Repurchase Assets or any part thereof (or contract to do any
of the foregoing), in one or more parcels or as an entirety at public or private sale or sales, at any exchange, broker’s board or office of Buyer or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Buyer shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Repurchase Assets so sold, free of any right or equity of redemption in Seller, which right or equity is hereby waived or released. Seller further agrees, at Buyer’s request, to assemble the Repurchase Assets and make them available to Buyer at places which Buyer shall reasonably select, whether at Seller’s premises or elsewhere. Buyer shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable (under the circumstances) out-of-pocket costs and expenses of every kind actually incurred therein or incidental to the care or safekeeping of any of the Repurchase Assets or in any way relating to the Repurchase Assets or the rights of Buyer hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as Buyer may elect, and only after such application and after the payment by Buyer of any other amount required or permitted by any provision of law, including Section 9-615 of the Uniform Commercial Code, need Buyer account for the surplus, if any, to Seller. To the extent permitted by Applicable Law, Seller waives all claims, damages and demands it may acquire against Buyer arising out of the exercise by Buyer of any of its rights hereunder, other than those claims, damages and demands arising from the gross negligence or willful misconduct of Buyer. If any notice of a proposed sale or other disposition of Repurchase Assets shall be required by law, such notice shall be deemed reasonable and proper if given at least [***] before such sale or other disposition. Seller shall remain liable for any deficiency (plus accrued interest thereon as contemplated herein) if the proceeds of any sale or other disposition of the Repurchase Assets are insufficient to pay the Obligations and the fees and disbursements in amounts reasonable under the circumstances, of any attorneys engaged by Buyer to collect such deficiency. Notwithstanding anything to the contrary herein or in any of the other Program Agreements, the remedies set forth in this Section 4.09 shall be subject to the applicable Servicing Contracts and the Acknowledgment Agreement entered into with Ginnie Mae.
Section 1.10Limitation on Duties Regarding Preservation of Repurchase Assets. Indenture Trustee’s duty with respect to the custody, safekeeping and physical preservation of the Repurchase Assets in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as Buyer deals with similar property for its own account. Neither Buyer nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Repurchase Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Repurchase Assets upon the request of Seller or otherwise.
Section 1.11Powers Coupled with an Interest. All authorizations and agencies herein contained with respect to the Repurchase Assets are irrevocable and powers coupled with an interest.
Section 1.12Release of Security Interest. Upon the latest to occur of (a) the repayment to Buyer of all Obligations and the performance of all obligations under the Program Agreements, and (b) the occurrence of the Termination Date, Buyer shall release its security interest in any remaining Repurchase Assets hereunder and shall promptly execute and deliver to Seller such documents or instruments as Seller shall reasonably request to evidence such release; provided, that such release shall not be required until such time as the Acknowledgment Agreement is terminated. In connection with a Permitted Disposition and any Excluded Assets, the Buyer shall promptly execute and deliver to Seller a release of lien substantially in the form set forth in Exhibit H to the Base Indenture, and such further documents or instruments as Seller shall reasonably request to evidence a release of any security interest hereunder.
Section 1.13Reinstatement. All security interests created by this Article IV shall continue to be effective, or be reinstated, as the case may be, if at any time any payment, or any part thereof, of any Obligation of Seller is rescinded or must otherwise be restored or returned by the Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Seller or any substantial part of its property, or otherwise, all as if such release had not been made. For the avoidance of doubt, the foregoing shall not apply with respect to any Excluded Assets.
Section 1.14Subordination.
(a)Seller agrees to not assert any objection to, and shall be deemed to have otherwise consented to, a disposition of any assets subject to the Program Agreements during an Insolvency Event of Seller, free and clear of any lien, encumbrance, pledge or other claims under Section 363 of the Bankruptcy Code (or any similar bankruptcy law) if Buyer has consented to such disposition.
(b)If an Insolvency Event of Seller occurs, the Seller agrees not to contest (or support any other Person contesting) any request by Buyer for adequate protection, or any objection by Buyer to any motion, relief, action or proceeding based on Buyer claiming a lack of adequate protection.
(c)Until the obligations under the Program Agreements are paid in full, the Seller shall not oppose any request by Buyer for relief from the automatic stay or any other stay in any Insolvency Event of Seller.
(d)Seller shall not oppose or seek to challenge any claim by Buyer for allowance and payment in any Insolvency Event of Seller, of obligations under the Program Agreements consisting of post-petition interest, fees, costs or other charges to the extent of the value of Buyer’s lien, encumbrance, pledge or other claims on the assets that are the subject of this Agreement, without regard to the existence of a lien, encumbrance, pledge or other claims applicable to the obligations of the other parties to the Program Agreements.
(e)Seller shall not seek in any Insolvency Event of Seller, to be treated as part of the same class of creditors as Buyer and shall not oppose any pleading or motion by Buyer advocating that Buyer and Seller should be treated as separate classes of creditors. Seller acknowledges and agrees that its rights with respect to the Repurchase Assets are and shall continue to be at all times junior and subordinate to the rights of Buyer under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
Section 1.01Initial Transaction. The obligation of Buyer to enter into Transactions with the Seller hereunder is subject to the satisfaction, immediately prior to or concurrently with the entering into such Transaction, of the condition precedent that Buyer shall have received all of the following items, each of which shall be satisfactory to Buyer and its counsel in form and substance:
(a)Program Agreements. The Program Agreements, in all instances duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver.
(b)Security Interest. Evidence that all other actions necessary or, in the opinion of Buyer, desirable to perfect and protect Buyer’s interest in the Purchased Assets and Repurchase Assets have been taken, including duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1.
(c)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s charter, bylaws and corporate resolutions approving the Program Agreements 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 Agreements.
(d)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Effective Date.
(e)Incumbency Certificate. An incumbency certificate of the corporate secretary of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(f)Servicing Contracts. Fully executed copies of the Key Servicing Contract Documentation related to each Servicing Contract certified as true, correct and complete by Seller.
(g)Fees. Buyer shall have received payment in full of all fees and Expenses which are payable hereunder to Buyer on or before such date.
(h)Insurance. Evidence that Seller has added Buyer as an additional loss payee under the Seller’s Fidelity Insurance.
Section 1.02All Transactions. The obligation of Buyer to enter into each Transaction pursuant to this Agreement is subject to the following conditions precedent:
(a)Due Diligence Review. Without limiting the generality of Section 10.08 hereof, Buyer shall have completed, to its satisfaction, its due diligence review of the related Assets and Seller.
(b)Transaction Notice and Asset Schedule. In accordance with Section 2.02 hereof, Buyer shall have received from Seller a Transaction Notice with an Asset Schedule that has been updated to include Assets related to a proposed Transaction hereunder as of the date of such Transaction Notice.
(c)No Margin Deficit. After giving effect to each new Transaction, the aggregate outstanding amount of the Purchase Price shall not exceed the Asset Base then in effect.
(d)No Default. No Default or Event of Default shall have occurred and be continuing.
(e)Requirements of Law. Buyer 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 Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into any Transaction.
(f)Representations and Warranties. Both immediately prior to the related Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in each Program Agreement shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such 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).
(g)Servicing Contracts; Assets. Buyer shall have:
(i)received the Key Servicing Contract Documentation related to each Servicing Contract relating to any Purchased Assets, which Buyer shall have determined prior to financing the first Asset that relates to such Servicing Contract that such Servicing Contract is in form and substance satisfactory to Buyer in its sole discretion;
(ii)received copies of all other consents and notices required under the related Servicing Contract and with respect to the MSRs, the Acknowledgment Agreement, each in form and substance satisfactory to Buyer; and
(iii)received a copy of the Participation Agreement, which Buyer shall have determined, prior to entering into the first Transaction related to an Asset that relates to such Participation Agreement, is in form and substance satisfactory to Buyer in its sole discretion.
(h)Reserved.
(i)Participation Certificates. With respect to any Asset that constitutes a Participation Certificate, Buyer shall have received the original Participation Certificate registered into the name of the Indenture Trustee as designee of the Buyer.
(j)Financing Statements. All financing statements, amendments to financing statements and other documents required to be recorded or filed in order to perfect the Buyer’s security interest in such Assets, and protect such Assets and the other related Assets against all creditors of, and purchasers from, Seller and all other Persons whatsoever have been duly filed in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings have been paid in full.
ARTICLE VI
COVENANTS
Seller covenants and agrees that until the payment and satisfaction in full of all Obligations, whether now existing or arising hereafter, shall have occurred:
Section 1.01Financial Covenants. Seller shall at all times comply with all financial covenants and/or financial ratios set forth in Section 2 of the Pricing Side Letter.
Section 1.02Prohibition of Fundamental Changes. Seller shall not enter into any transaction of merger or consolidation, change its business beyond its Current Business Operations, liquidate or dissolve itself (or suffer any liquidation or dissolution) or discontinue its business unless Seller is the continuing entity following such merger or consolidation; provided, that after giving effect thereto, no Default would exist hereunder. If, notwithstanding the requirement set forth in the preceding sentence, Seller is not the continuing entity following any such transaction, the successor Person formed by such consolidation or into which Seller, as the
case may be, is merged shall automatically succeed to, and be substituted for, and may exercise every right and power of, Seller under this Agreement with the same effect as if such successor Person had been named as such; provided, that the Seller and any successor in interest shall remain obligated under this Agreement.
Section 1.03Sale of Assets. Seller shall not sell, lease (as lessor) or transfer (as transferor) or otherwise dispose of any property or assets, whether now owned or hereafter acquired if such sale, lease or transfer would reasonably be expected to have a Material Adverse Effect.
Section 1.04Asset Schedule. Seller shall at all times maintain a current list (which may be stored in electronic form) of all Assets and Excluded Assets. Seller shall deliver to Buyer (and Ginnie Mae, promptly upon request) on each Determination Date for any MRA Payment Date, a cumulative Asset Schedule as of the last Business Day of the preceding week which, when so delivered, shall replace the current Asset Schedule, together with an updated copy of Schedule I to each Participation Certificate (which may reflect the removal of Mortgage Loans and/or Mortgage Pools from the Portfolio in connection with a Permitted Disposition, or to otherwise indicate that the applicable Mortgage Pools are Excluded Mortgage Pools and the related servicing rights are Excluded MSRs). As of each date an updated Asset Schedule and Schedule I to each Participation Certificate are delivered in accordance with this Section 6.04, Seller hereby certifies, represents and warrants to Buyer that each such updated Asset Schedule and Schedule I to each Participation Certificate are true, complete and correct in all material respects.
Section 1.05No Adverse Claims. Seller warrants and will defend the right, title and interest of Buyer in and to all Purchased Assets against all adverse claims and demands.
Section 1.06Assignment. 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 Agreements), any of the Purchased Assets or any interest therein, provided that this Section 6.06 shall not prevent any transfer of Purchased Assets in accordance with the Program Agreements.
Section 1.07Security Interest. Seller shall do all things necessary to preserve the Purchased Assets and the related Repurchase Assets so that they remain subject to a first priority perfected security interest hereunder. Without limiting the foregoing, Seller will comply with all rules, regulations and other laws of any Governmental Authority and cause the Purchased Assets or the related Repurchase Assets to comply with all applicable rules, regulations and other laws. Seller will not allow any default for which Seller is responsible to occur under any Purchased Assets or the related Repurchase Assets or any Program Agreement and Seller shall fully perform or cause to be performed when due all of its obligations under any Purchased Assets or the related Repurchase Assets and any Program Agreement.
Section 1.08Records.
(a)Seller shall collect and maintain or cause to be collected and maintained all Records relating to the Purchased Assets in accordance with industry custom and practice for assets similar to the Purchased Assets, including those maintained pursuant to Section 6.09, and all such Records shall be in Seller’s possession or in the possession of an Eligible Subservicer unless Buyer otherwise approves. Seller will not allow any such papers, records or files that are an original or an only copy to leave Seller’s possession (or the possession of the Eligible Subservicer, if applicable), except for individual items removed in connection with servicing or subservicing a specific Mortgage Loan, in which event Seller or the Eligible Subservicer (as
applicable) will obtain or cause to be obtained a receipt (which may be a bailee letter) from a financially responsible person for any such paper, record or file. Seller or an Eligible Subservicer will maintain all such Records in good and complete condition in accordance with industry practices for assets similar to the Purchased Assets and preserve them against loss.
(b)For so long as Buyer has an interest in or lien on any Purchased Assets or Repurchase Assets, Seller will hold or cause to be held all related Records in trust for Buyer. Seller shall notify, or cause to be notified, every other party holding any such Records of the interests and liens in favor of Buyer granted hereby.
(c)Upon reasonable advance notice from Buyer, Seller shall (x) make any and all such Records available to Buyer to examine any such Records, either by its own officers or employees, or by agents or contractors, or both, and make copies of all or any portion thereof, and (y) permit Buyer 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.
Section 1.09Books. Seller shall keep or cause to be kept in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Purchased Assets (other than the related MSRs, which are pledged, and not sold to Buyer) to Buyer.
Section 1.10Approvals. Seller shall maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Agreements, and Seller shall conduct its business strictly in accordance with Applicable Law. Seller shall maintain its status as an approved Ginnie Mae issuer (“Ginnie Mae Approvals”). Seller shall service all Assets in accordance with the Ginnie Mae Contract and any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs in all material respects. Should Seller, for any reason, cease to possess all such Ginnie Mae Approvals, or should notification to Ginnie Mae or to HUD, FHA, USDA or VA as described in Section 3.16 hereof be required, Seller shall so notify Buyer promptly in writing. Notwithstanding the preceding sentence, Seller shall take all necessary action to maintain all of its Ginnie Mae Approvals at all times during the term of this Agreement.
Section 1.11Material Change in Business. Seller shall not engage in any business other than Current Business Operations and business reasonably related thereto.
Section 1.12Collections on Assets and the Dedicated Account. Prior to the Seller making any withdrawal from a custodial account or any other clearing account maintained under the related Servicing Contract, the Seller shall instruct the related depository institution to remit all Collections to the Dedicated Account (but only to the extent that such funds are payable to Seller free and clear of any Ginnie Mae rights or other restrictions on transfer set forth in such Servicing Contract); provided, however that with respect to any Pooled Mortgage and Collections received with respect thereto, Seller shall reimburse itself for any unreimbursed MBS Advances and Servicing Advances, and shall ensure that any Interim Servicers reimburse themselves for any unreimbursed MBS Advances and Servicing Advances, in accordance with current market practice for Ginnie Mae issuers from (i) with respect to MBS Advances, any amounts collected on Mortgage Loans in the same principal and interest custodial account and (ii) with respect to Servicing Advances, from any amounts collected on the same Mortgage Loan, in each case, following the date of such Advance; provided, further, that in all events, such reimbursements shall only be made to the extent permitted under the Ginnie Mae Contract. Servicer shall cause (i) any MBS Advance Reimbursement Amounts withdrawn from a custodial account in accordance with the applicable Servicing Contract to be deposited into the Dedicated Account within one (1) Business Day following the receipt of such funds and (ii) any MBS
Advance Reimbursement Amounts recovered from FHA Claim Proceeds, PIH Claim Proceeds, USDA Claim Proceeds VA Claim Proceeds or Liquidation Proceeds to be deposited into the Dedicated Account within one (1) Business Day following the remittance of such funds into the custodial account. In addition, no later than the ninth (9th) Business Day of each calendar month, Servicer shall remit to the Dedicated Account the net amount of Servicing Advance Reimbursement Amounts received during the prior calendar month; provided, however, upon the occurrence of an Event of Default (as defined in the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement or the Series 2021-SAVF1 Repurchase Agreement, as applicable) under the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement or the Series 2021-SAVF1 Repurchase Agreement, Seller shall remit the gross amount of all Servicing Advance Reimbursement amounts received during the prior calendar month. Seller shall not withdraw or direct the withdrawal or remittance of any Collections from any custodial account into which such amounts have been deposited other than to remit to the Dedicated Account, as applicable in accordance with Section 2.07 hereof. Seller shall be permitted to retain the Base Servicing Fee at all times. All or any part of the amounts under this Section 6.12 may only be applied by the Seller to the extent that such proceeds have been received by, or for the account of, the Seller free and clear of all Ginnie Mae rights and other restrictions on transfer under applicable Ginnie Mae guidelines.
Section 1.13Applicable Law. Seller shall comply with the requirements of all Applicable Laws of any Governmental Authority.
Section 1.14Existence. Seller shall preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises.
Section 1.15Chief Executive Office; Jurisdiction of Organization. Seller shall not move its chief executive office from the address referred to in Section 3.13 or change its jurisdiction of organization from the jurisdiction referred to in Section 3.13 unless it shall have provided Buyer at least [***] prior written notice of such change.
Section 1.16Taxes. Seller shall timely file all tax returns that are required to be filed by it and shall timely pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained.
Section 1.17Termination of Servicing Notice. Seller shall give notice to Buyer promptly upon (a) receipt or notice or knowledge of any default, notice of termination of servicing for cause under any Servicing Contract or other Ginnie Mae or GSE related mortgage-related servicing agreement, regardless of whether such agreement or the rights thereunder constitute “Purchased Assets” or “Repurchase Assets” hereunder or (b) receipt or notice or knowledge of any resignation of servicing, termination of servicing or notice of resignation of or termination of servicing, under any Servicing Contract or other mortgage-related servicing agreement regardless of whether such agreement or the rights thereunder constitute “Purchased Assets” or “Repurchase Assets” hereunder.
Section 1.18True and Correct Information. All required financial statements and other accounting reports delivered by Seller to Buyer pursuant to this Agreement shall be prepared in accordance with GAAP.
Section 1.19Servicing. Seller shall, or shall cause its Eligible Subservicer to, maintain adequate financial standing, servicing facilities, procedures and experienced personnel necessary for the sound servicing of mortgage loans of the same types as may from time to time
constitute Mortgage Loans and in accordance with Accepted Servicing Practices and the Servicing Contracts.
Section 1.20No Pledge. Except as contemplated herein or in the Base Indenture (including in connection with a Permitted Disposition), Seller shall not (a) pledge, transfer or convey any security interest in the Dedicated Account to any Person without the express written consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders) or (b) pledge, grant a security interest or assign any existing or future rights to service any of the Repurchase Assets or to be compensated for servicing any of the Repurchase Assets, or pledge or grant to any other Person any security interest in any Assets or Servicing Contracts.
Section 1.21Plan Assets. Seller shall not act on behalf of an employee benefit plan as defined in Section 3(3) of Title I of ERISA that is subject to Title I of ERISA, or a plan described in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code. Transactions to or with Seller shall not be subject to any state or local statute regulating investments of or fiduciary obligations with respect to governmental plans within the meaning of Section 3(32) of ERISA which would be violated by the Transactions contemplated hereunder.
Section 1.22Sharing of Information. Seller shall allow Buyer to exchange information related to Seller and the Transactions hereunder with noteholders or other third party lenders or investors and Seller shall permit each such person to share such information with Buyer.
Section 1.23Modification of the Servicing Contracts and Participation Agreement. Seller shall not consent with respect to any Servicing Contracts or Participation Agreement related to any Asset that constitutes a Purchased Asset or Repurchase Asset, to (i) the modification, amendment or termination of such Servicing Contracts or Participation Agreement, (ii) the waiver of any provision of such Servicing Contracts or Participation Agreement, (iii) the resignation of Seller as servicer under the Servicing Contracts, or (iv) the assignment, transfer, or material delegation of any of its rights or obligations, under such Servicing Contracts or Participation Agreement, without the prior written consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders) and with respect to clause (iv), without the prior written consent of Ginnie Mae; provided, however, that with respect to any disposition under clause (iv) of this Section 6.23, Seller shall be permitted to make Permitted Dispositions without the prior written consent of Buyer. Notwithstanding anything to the contrary herein or any of the other Program Agreements, the parties hereto acknowledge that Ginnie Mae has the absolute and unconditional right to modify the Ginnie Mae Contract at any time.
Section 1.24Subservicing; Servicing by Seller. If Seller at any time uses or intends to use, as applicable, an independent third-party subservicer to service the Portfolio Mortgage Loans, Seller shall, prior to the related servicing transfer date, (i) provide the Administrative Agent and the Indenture Trustee with the related subservicing agreement pursuant to which such subservicer shall service such Portfolio Mortgage Loans, which subservicing agreement shall be acceptable to the Administrative Agent in its reasonable discretion, (ii) obtain the Administrative Agent’s prior written consent to the use of such subservicer in the performance of such servicing duties and obligations, which consent may be withheld in Administrative Agent’s reasonable discretion, (iii) such subservicer shall be an Eligible Subservicer and (iv) provide the Administrative Agent with a fully executed Eligible Subservicing Agreement and related subservicer side letter agreement (if any) with respect to such subservicer. Upon obtaining knowledge of any Eligible Subservicer ceasing to meet the criteria required of an Eligible Subservicer hereunder, the Seller shall, within thirty (30) days identify a replacement subservicer that meets the qualifications of an Eligible Subservicer, and within sixty (60) days following identification of the replacement Eligible Subservicer,
accomplish a transfer of servicing to such replacement Eligible Subservicer. For the avoidance of doubt, the Seller may, subject to consent of the Administrative Agent and in compliance with the terms of this Section 6.24, at any time in its discretion, directly service any of the Portfolio Mortgage Loans.
Section 1.25Restricted Payments. Seller shall not make any Restricted Payments at any time while an Event of Default has occurred and is continuing under a Program Agreement.
Section 1.26Reporting Requirements.
(a)Financing Statements. Seller shall deliver to Noteholders upon request, on or before March 31 on an annual basis, beginning on March 31, 2022, the Seller’s most recent balance sheet and profit and loss and retained earnings statements, and similar audited financial statements, along with comparatives for the prior year.
(b)Officer’s Certificates. Seller will furnish to Buyer on a monthly basis, an Officer’s Compliance Certificate of Seller in the form of Exhibit A to the Pricing Side Letter.
ARTICLE VII
DEFAULTS/RIGHTS AND REMEDIES OF BUYER UPON DEFAULT
Section 1.01Events of Default. Each of the following events or circumstances shall constitute an “Event of Default”:
(a)Payment Failure. Failure of Seller (which failure continues for a period of [***] following written notice (which may be in electronic form) from Buyer) to (i) make any payment of Price Differential or Repurchase Price or any other sum which has become due, on an MRA Payment Date or otherwise, whether by acceleration or otherwise, under the terms of this Agreement, or (ii) cure any Margin Deficit when due pursuant to Section 2.05 hereof.
(b)Assignment. Assignment or attempted assignment by Seller of this Agreement or any rights hereunder without first obtaining the specific written consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders), or the granting by Seller of any security interest, lien or other encumbrances on any Purchased Assets or Repurchase Assets to any person other than Buyer, in each case except as provided in the Program Agreements (including in connection with a Permitted Disposition, which for the avoidance of doubt does not require the consent of Buyer).
(c)Insolvency. An Insolvency Event shall have occurred with respect to Seller.
(d)Immediate Breach of Representation or Covenant or Obligation. A breach by Seller of any of the representations, warranties or covenants or obligations set forth in [***] of this Agreement.
(e)Additional Breach of Representation or Covenant. A material breach by Seller of any other material representation, warranty or covenant set forth in this Agreement (and not otherwise specified in Section 7.01(d) above), if such breach is not cured within [***].
(f)Change in Control. The occurrence of a Change in Control.
(g)Government Action. Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority 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 Affiliate thereof, or shall have taken any action to displace the management of Seller or any Affiliate thereof or to curtail its authority in the conduct of the business of Seller or any Affiliate thereof, or takes any action in the nature of enforcement to remove, limit or restrict the approval of Seller or any Affiliate thereof as an issuer, buyer or a seller/servicer of Mortgage Loans or securities backed thereby, and such action provided for in this subparagraph (g) shall not have been discontinued or stayed within [***].
(h)Security Interest. This Agreement shall for any reason cease to create a valid, first priority security interest in any material portion of the Repurchase Assets purported to be covered hereby.
(i)Financial Statements. Seller’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of Seller as a “going concern” or a reference of similar import.
(j)Validity of Agreement. For any reason, this Agreement at any time shall not be in full force and effect in all material respects or shall not be enforceable in all material respects in accordance with its terms, or Seller or any Affiliate of Seller shall seek to disaffirm, terminate, limit or reduce its Obligations hereunder.
(k)Dedicated Account. Seller or any other Person shall have withdrawn any amounts on deposit in the Dedicated Account without the consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders) other than funds deposited or withdrawn in error.
(l)Deposit and Remittance Requirements. Seller shall fail to comply with the deposit and remittance requirements set forth in the Ginnie Mae Contract and any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs (subject to any cure period provided therein) or Section 4.2(a) of the Base Indenture (and such failure under Section 4.2(a) of the Base Indenture continues unremedied for a period of [***] after a Responsible Officer of the Seller obtains actual knowledge of such failure, or receives written notice from the Indenture Trustee or any Noteholder of such failure).
(m)Approved Ginnie Mae Issuer.
(i)The failure of Seller to be an approved issuer under the Ginnie Mae Contract related to the Participation Certificates pledged under the Indenture; or
(ii)Seller shall cease to be approved by Ginnie Mae as an issuer or its approval shall be revoked, suspended, rescinded, halted, eliminated, withdrawn, annulled, repealed, voided or terminated.
(n)Approved Mortgagee; Approved Servicer.
(i)Seller ceases to be (A) a HUD approved mortgagee pursuant to Section 203 of the National Housing Act or (B) a Fannie Mae or Freddie Mac approved servicer (only to the extent Seller services loans for Fannie Mae or Freddie Mac) or HUD, Fannie Mae or Freddie Mac, as applicable, suspends, rescinds, halts, eliminates, withdraws, annuls, repeals, voids or terminates the status of Seller as either (1) a HUD approved mortgagee pursuant to Section 203 of the National Housing Act or (2) a Fannie Mae or Freddie Mac approved servicer.
(ii)Seller receives (A) a notice that HUD may take such action set forth in clause (i) above or (B) a notice from Ginnie Mae of a default by Seller under the Ginnie Mae Contract (a “Ginnie Mae Default Notice”); provided, however, that the receipt of such Ginnie Mae Default Notice shall not become an Event of Default unless and until the earlier of (A) Seller receives a notice from Ginnie Mae which provides for the termination and extinguishment of Seller’s rights or (B) Seller receives a second Ginnie Mae Default Notice for the occurrence and continuation of the same default for which it received the initial Ginnie Mae Default Notice.
(o)Fraud; Violation of Requirements. (i) Seller engages or has engaged in fraud or other reckless or intentional wrongdoing in connection herewith or any other Program Agreement or any document submitted pursuant thereto or otherwise in connection with any MBS, or in connection with any federal mortgage insurance or loan guaranty program, or other federal program related to any of the Mortgage Loans; or (ii) Seller has used any payments, collections, recoveries or other funds pertaining in any way to the Mortgage Loans in violation of the requirements of the Ginnie Mae Contract, any Guaranty Agreement or any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs.
(p)Change to Guaranty Agreement or Ginnie Mae Contract. Any change to a Guaranty Agreement, the Ginnie Mae Contract or any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs that would result in a Material Adverse Effect on Seller.
(q)Improper Transfer of Participation Certificates. loanDepot sells and/or contributes any Participation Certificate to any Person other than the Buyer or the Indenture Trustee.
(r)Cross Acceleration. (i) An Event of Default (as defined in the Base Indenture) has occurred and is continuing under the Indenture, (ii) Seller or Affiliates thereof shall be in default under any Indebtedness, in the aggregate, in excess of $[***] of Seller or any Affiliate thereof which default (1) involves the failure to pay a matured obligation, or (2) has resulted in the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness, or (iii) any other contract or contracts, in the aggregate in excess of $[***] to which Seller or any Affiliate thereof is a party which default (1) involves the failure to pay a matured obligation, or (2) has resulted in the acceleration of the maturity of obligations by any other party to or beneficiary of such contract.
Section 1.02No Waiver. An Event of Default shall be deemed to be continuing unless expressly waived by the Indenture Trustee on behalf of the Noteholders in writing.
Section 1.03Due and Payable. Upon the occurrence of any Event of Default which has not been waived in writing by Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders), Buyer may (at the written direction of the Indenture Trustee on behalf of the Noteholders), by notice to Seller, declare all Obligations to be immediately due and payable, and any obligation of Buyer to enter into Transactions with Seller shall thereupon immediately terminate. Upon such declaration, the Obligations shall become immediately due and payable, both as to Purchase Price outstanding and Price Differential, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein or other evidence of such Obligations to the contrary notwithstanding, except with respect to any Event of Default set forth in Section 7.01(d), in which case all Obligations shall automatically become immediately due and payable without the necessity of any notice or other demand, and any obligation of Buyer to enter into Transactions with Seller shall immediately terminate. Buyer may enforce payment of the same and exercise any or all of the
rights, powers and remedies possessed by Buyer, whether under this Agreement or any other Program Agreement or afforded by Applicable Law.
Section 1.04Fees. The remedies provided for herein are cumulative and are not exclusive of any other remedies provided by law. Seller agrees to pay to Buyer reasonable attorneys’ fees and reasonable legal expenses incurred in enforcing Buyer’s rights, powers and remedies under this Agreement and each other Program Agreement.
Section 1.05Default Rate. Without regard to whether Buyer has exercised any other rights or remedies hereunder, if an Event of Default shall have occurred and be continuing, the applicable Pricing Rate shall be increased as set forth in the Pricing Side Letter, but in no event shall the Pricing Rate exceed the maximum amount permitted by law.
ARTICLE VIII
ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS; SEPARATE ACTIONS BY BUYER
Section 1.01Entire Agreement; Amendments. This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties hereto and supersedes any and all prior or contemporaneous agreements, written or oral, as to the matters contained herein, and no modification or waiver of any provision hereof or any of the Program Agreements, nor consent to the departure by Seller therefrom, shall be effective unless the same is in writing, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which it is given. Any amendment of this Agreement which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
Section 1.02Waivers, Separate Actions by Buyer. Any amendment or waiver effected in accordance with this Article VIII shall be binding upon Buyer and Seller; and Buyer’s failure to insist upon the strict performance of any term, condition or other provision of this Agreement or any of the Program Agreements, or to exercise any right or remedy hereunder or thereunder, shall not constitute a waiver by Buyer of any such term, condition or other provision or Default or Event of Default in connection therewith, nor shall a single or partial exercise of any such right or remedy preclude any other or future exercise, or the exercise of any other right or remedy; and any waiver of any such term, condition or other provision or of any such Default or Event of Default shall not affect or alter this Agreement or any of the Program Agreements, and each and every term, condition and other provision of this Agreement and the Program Agreements shall, in such event, continue in full force and effect and shall be operative with respect to any other then existing or subsequent Default or Event of Default in connection therewith. An Event of Default hereunder or under any of the Program Agreements shall be deemed to be continuing unless and until cured or waived in writing by Buyer, as provided in Section 7.02.
ARTICLE IX
SUCCESSORS AND ASSIGNS
Section 1.01Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, any portion thereof, or any interest therein. Seller shall not have the right to assign all or any part of this Agreement or any interest herein without the prior written consent of Buyer (at the written direction of the Indenture Trustee on behalf of the Noteholders).
Section 1.02Transfers.
(a)Buyer may in accordance with Applicable Law at any time assign, pledge, hypothecate, or otherwise transfer to one or more banks, financial institutions, investment companies, investment funds or any other Person (each, a “Transferee”) all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements; provided, that (i) Seller has consented to such assignment, pledge, hypothecation, or other transfer; provided, however, Seller’s consent shall not be required in the event that (A) such Transferee is an Affiliate of the Administrative Agent or (B) an Event of Default has occurred (ii) absent an Event of Default, Buyer shall give at least [***] prior notice thereof to Seller; and (iii) that each such sale shall represent an interest in the Transactions in an aggregate Purchase Price of $[***]or more. In the event of any such assignment, pledge, hypothecation or transfer by Buyer of Buyer’s rights under this Agreement and the other Program Agreements, Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement.
(b)Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller.
Section 1.03Buyer and Transaction Register.
(a)Subject to acceptance and recording thereof pursuant to paragraph (b) of this Section 9.03, from and after the effective date specified in each assignment and acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and acceptance, have the rights and obligations of Buyer under this Agreement.
(b)Seller or an agent of Seller shall maintain a register (the “Transaction Register”) on which it will record the Transactions entered into hereunder, and each assignment and acceptance and participation. The Transaction Register shall include the names and addresses of Buyers (including all assignees, successors and Participants), and the Purchase Price of the Transactions entered into by Buyer. Failure to make any such recordation, or any error in such recordation shall not affect Seller’s obligations in respect of such Transactions. If Buyer sells a participation in any Transaction, it shall provide Seller, or maintain as agent of Seller, the information described in this paragraph and permit Seller to review such information as reasonably needed for Seller to comply with its obligations under this Agreement or under any Applicable Law or governmental regulation or procedure.
ARTICLE X
MISCELLANEOUS
Section 1.01Survival. This Agreement and the other Program Agreements and all covenants, agreements, representations and warranties herein and therein and in the certificates delivered pursuant hereto and thereto, shall survive the entering into of the Transaction and shall continue in full force and effect so long as any Obligations are outstanding and unpaid.
Section 1.02Nonliability of Buyer Parties. The parties hereto agree that, notwithstanding any affiliation that may exist between Seller and Buyer, the relationship between Seller and Buyer shall be solely that of arms-length participants. No Buyer Party shall have any fiduciary responsibilities to Seller. Seller (i) agrees that no Buyer Party shall have any liability to Seller (whether sounding in tort, contract or otherwise) for losses suffered by Seller in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by this agreement, the other loan documents or any other agreement
entered into in connection herewith or any act, omission or event occurring in connection therewith, unless it is determined by a judgment of a court that is binding on such Buyer Party (which judgment shall be final and not subject to review on appeal), that such losses were the result of acts or omissions on the part of such Buyer Party constituting gross negligence or willful misconduct and (ii) waives, releases and agrees not to sue upon any claim against each Buyer Party (whether sounding in tort, contract or otherwise), except a claim based upon gross negligence or willful misconduct. Whether or not such damages are related to a claim that is subject to such waiver and whether or not such waiver is effective, no Buyer Party shall have any liability with respect to, and Seller hereby waives, releases and agrees not to sue upon any claim for, any special, indirect, consequential or punitive damages suffered by Seller in connection with, arising out of, or in any way related to the transactions contemplated or the relationship established by this Agreement, the other loan documents or any other agreement entered into in connection herewith or therewith or any act, omission or event occurring in connection herewith or therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such damages were the result of acts or omissions on the part of a Buyer Party, as applicable, constituting willful misconduct or gross negligence.
Section 1.03Governing Law; Jurisdiction, Waiver of Jury Trial: Waiver of Damages.
(a)This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller acknowledges that the obligations of Buyer hereunder or otherwise are not the subject of any guaranty by, or recourse to, any direct or indirect parent or other Affiliate of Buyer or any Buyer Party. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE ARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b)THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY. EACH PARTY HERETO HEREBY IRREVOCABLY CONSENTS TO THE 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, ARISING OUT OF OR RELATING TO THE PROGRAM AGREEMENTS DOCUMENTS IN ANY ACTION OR PROCEEDING. EACH PARTY HERETO HEREBY SUBMITS TO, AND WAIVES ANY OBJECTION IT MAY HAVE TO, 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 AGREEMENTS.
(c)Each party hereto further irrevocably consents to the service of process of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to the address set forth in Section 10.04 hereof.
(d)Nothing herein shall affect the right of either party to serve process in any other manner permitted by law.
(e)Each party waives the posting of any bond otherwise required of the claimant in connection with any judicial process or proceeding to enforce any judgment or other court order entered in favor of such claimant, or to enforce by specific performance, temporary restraining order or preliminary or permanent injunction this Agreement or any of the other Program Agreements.
Section 1.04Notices. Any and all notices (with the exception of Transaction Notices, which shall be delivered via electronic transmission only), statements, demands or other communications hereunder may be given by a party to the other by mail, email, messenger or otherwise to the address specified below, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and requests hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence.
If to Seller:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: General Counsel
Email: [***]
If to Buyer:
LoanDepot GMSR Master Trust
c/o Wilmington Savings Fund Society, FSB, as
Owner Trustee
500 Delaware Avenue, 11th Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Administration
Phone Number: [***]
E-mail: [***]
with a copy to the Seller:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, CA 92618
Attention: General Counsel
Email: [***]
Counsel
Email[***]
with a copy to the Administrative Agent:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Attention: [***]
Phone Number: [***]
Fax Number: [***]
Email: [***]
with a copy to the Credit Manager:
Pentalpha Surveillance LLC
375 N. French Rd., Suite 100
Amherst, New York 14228
Attention: loanDepot GMSR Master Trust
E-mail: [***]
Section 1.05Severability. 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. In case any provision in or obligation under this Agreement or any other Program Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 1.06Section Headings. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement.
Section 1.07Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Agreement, any addendum 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 the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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.
Section 1.08Periodic Due Diligence Review. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller and the Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agrees that upon reasonable (but no less than [***]’) prior notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours, and in a manner that does not unreasonably interfere with the ordinary conduct of Seller’s business, to examine, inspect, and make copies and extracts of, any and all documents, records, agreements, instruments or information relating to such Assets in the possession or under the control of Seller. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into a Transaction related to any Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Assets related to a Transaction. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller.
Section 1.09Hypothecation or Pledge of Repurchase Assets. Subject to the applicable Acknowledgment Agreement, Buyer shall have free and unrestricted use of all Repurchase Assets and nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with all or a portion of the Repurchase Assets or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating all or a portion of the Repurchase Assets; provided, however, that nothing under this Section 10.09 shall relieve the Buyer of its obligations to transfer Purchased Assets and Repurchase Assets to Seller (and not substitutions thereof) pursuant to the terms hereof.
Section 1.10Non-Confidentiality of Tax Treatment.
(a) This Agreement and its terms, provisions, supplements and amendments, and notices hereunder, are proprietary to Buyer or Seller, and shall be held by each party hereto in strict confidence and shall not be disclosed to any third party without the written consent of Buyer (at the written direction of the Administrative Agent) or Seller, except for (i) disclosure to Buyer’s or Seller’s direct and indirect Affiliates and Subsidiaries, attorneys or accountants, but only to the extent such disclosure is necessary and such parties agree to hold all information in strict confidence, (ii) disclosure to the parties to the Indenture, including noteholders and investors related thereto, but only to the extent such disclosure is necessary and such parties
agree to hold all information in strict confidence, or (iii) disclosure required by law, rule, regulation or order of a court or other regulatory body. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Program Agreements, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Seller may not disclose the name of or identifying information with respect to Buyer any pricing terms (including the Pricing Rate, Purchase Price Percentage and Purchase Price) or other nonpublic business or financial information (including any sublimits and financial covenants) that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of the affected party (and in the case of the Buyer, at the written direction of the Administrative Agent).
(b)Notwithstanding anything in this Agreement to the contrary, Seller shall comply with all applicable local, state and federal laws, including all privacy and data protection law, rules and regulations that are applicable to the Repurchase Assets and/or any applicable terms of this Agreement (the “Confidential Information”). Each party hereto understands 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 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. Each party hereto shall 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 each other party hereto and their Affiliates which such party holds, (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. Each party shall implement and maintain appropriate measures to meet the objectives of Section 501(b) of the GLB Act and of the applicable standards adopted pursuant thereto, as now or hereafter in effect. Upon request, each party will provide evidence reasonably satisfactory to allow the other party to confirm that it has satisfied its obligations as required under this section. Without limitation, this may include review of audits, summaries of test results, and other equivalent evaluations (in each case to the extent the party asked to disclose such information has the authority to do so). Each party shall notify the other party immediately following discovery of any material breach or material compromise of the security, confidentiality, or integrity of nonpublic personal information of the customers and consumers of the other party or its Affiliates, to the extent such information was provided directly to the notifying party by such affected party or its Affiliate. Each party experiencing such material breach or compromise shall provide such notice by personal delivery, by overnight courier with confirmation of receipt to the other party.
(c)In addition, Seller may disclose the Confidential Information with prior written notice to Buyer (if feasible) in any disclosures or filings required under Securities and Exchange Commission or state securities’ laws; provided that Seller shall not file the Pricing Side Letter without Buyer’s prior written consent.
Section 1.11Set-off. In addition to any rights and remedies of Buyer hereunder and by law, Buyer shall have the right, without prior notice to Seller, any such notice being expressly waived by Seller to the extent permitted by Applicable Law to set-off and appropriate and apply against any Obligation from Seller or any Affiliate thereof to Buyer, any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other obligation (including to return funds to Seller), credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by or due from Buyer, to or for the credit or the account of Seller or any Affiliate thereof. Buyer agrees promptly to notify Seller after any such set off and application made by Buyer; provided that the failure to give such notice shall not affect the validity of such set off and application.
Section 1.12Intent.
(a)The parties recognize that each Transaction is a “master netting agreement” as that term is defined in Section 101 of Title 11 of the United States Code and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code and that all payments hereunder are deemed “margin payments” or “settlement payments” as defined in Title 11 of the United States Code.
(b)It is understood that either party’s right to liquidate Purchased Assets delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 7.03 hereof is a contractual right to liquidate such Transaction as described in Section 555 and Section 561 of Title 11 of the United States Code.
(c)The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in 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 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)This Agreement is intended to be a “securities contract,” within the meaning of Section 555 under the Bankruptcy Code, and a “master netting agreement,” within the meaning of Section 561 under the Bankruptcy Code.
Section 1.13Third Party Beneficiaries. The Administrative Agent, the Owner Trustee and the Indenture Trustee shall be express third party beneficiaries of this Agreement.
Section 1.14Owner Trustee Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by WSFS, not individually or personally but solely as trustee of Buyer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, undertakings and agreements herein made on the part of Buyer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only Buyer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by Buyer in this Agreement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of Buyer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by Buyer under this Agreement or any other related documents.
Section 1.15Actions and Discretion of Buyer. Any provision providing for the exercise of any action or discretion by Buyer shall be exercised by the Indenture Trustee at the written direction of either [***]% of the VFN Noteholders or the Majority Noteholders of all Outstanding Notes. To the extent there are conflicting directions between [***]% of the VFN Noteholders and the Majority Noteholders, the Indenture Trustee will take its direction from 100% of the VFN Noteholders. In addition, and notwithstanding any other provision in this Agreement to the contrary, any approvals, consents, votes or other rights exercisable by Buyer under this Agreement shall be exercised by the Indenture Trustee on behalf of Noteholders.
Section 1.16Amendment and Restatement; Consent. As of the date hereof, the terms and conditions of the Original PC Repurchase Agreement shall be amended and restated as set forth herein and the Original PC Repurchase Agreement shall be superseded by this Agreement. The rights and obligations of the parties evidenced by the Original PC Repurchase Agreement shall be evidenced by this Agreement and shall continue to be in full force and effect as set forth in this Agreement. Each of the Buyer, Seller, the Administrative Agent, the Indenture Trustee and NCFA, as 100% of the VFN Noteholders, hereby consents to this Agreement and acknowledges and agrees that the amendments effected by this Agreement shall become effective on the Effective Date. NCFA, as 100% of the VFN Noteholders, hereby directs the Indenture Trustee to execute this Agreement.
IN WITNESS WHEREOF, Seller, Buyer, Indenture Trustee, Administrative Agent and 100% of the VFN Noteholders have caused this Agreement to be executed and delivered by their duly authorized officers or trustees as of the date first above written.
| | |
LoanDepot GMSR Master Trust, as Buyer By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee |
By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
[Signature page to 3rd A&R PC Master Repurchase Agreement—loanDepot GMSR Master Trust]
LEGAL02/43438678v9
LOANDEPOT.COM, LLC, as Seller
By: /s/ David Hayes
Name: David Hayes
Title: CFO
[Signature page to 3rd A&R PC Master Repurchase Agreement—loanDepot GMSR Master Trust]
LEGAL02/43438678v9
CONSENTED AND AGREED TO BY:
CITIBANK, N.A., as Indenture Trustee and not in its individual capacity
By: /s/Valerie Delgado
Name:Valerie Delgado
Title: Senior Trust Officer
[Signature page to 3rd A&R PC Master Repurchase Agreement—loanDepot GMSR Master Trust]
LEGAL02/43438678v9
CONSENTED TO BY:
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Administrative Agent
By:/s/ Sanil Patel
Name: Sanil Patel
Title: Managing Director
:
[Signature page to 3rd A&R PC Master Repurchase Agreement—loanDepot GMSR Master Trust]
LEGAL02/43438678v9
CONSENTED TO BY:
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Noteholder of 100% of the Outstanding VFNs
By:/s/ Sanil Patel
Name: Sanil Patel
Title: Managing Director
[Signature page to 3rd A&R PC Master Repurchase Agreement—loanDepot GMSR Master Trust]
LEGAL02/43438678v9
SCHEDULE 1-A
[***]
Schedule 1-A-1
LEGAL02/43438678v9
SCHEDULE 1-B
[***].
Schedule 1-B-1
LEGAL02/43438678v9
SCHEDULE 2
[***]
Schedule 2-1
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SCHEDULE 3
[***]
Schedule 3-1
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EXHIBIT A
[***]
Exhibit A-1
LEGAL02/43438678v9
EXHIBIT B
[***]
Exhibit C-1
LEGAL02/43438678v9
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed.
EXECUTION VERSION
THIRD AMENDED AND RESTATED BASE INDENTURE
LOANDEPOT GMSR MASTER TRUST,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
LOANDEPOT.COM, LLC,
as Servicer and Administrator
and
NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent
and
PENTALPHA SURVEILLANCE LLC,
as Credit Manager
Dated as of January 25, 2024
LOANDEPOT GMSR MASTER TRUST
MSR COLLATERALIZED NOTES, ISSUABLE IN SERIES
TABLE OF CONTENTS
Page
SCHEDULES AND EXHIBITS
Schedule 1 Participation Certificates Schedule
Schedule 2 Participation Agreement Schedule
Schedule 3 Reserved
Schedule 4 Required Information Regarding Mortgages and Mortgage Pools
Schedule 5 Wire Instructions
Exhibit A-1 Form of Global Rule 144A Note
Exhibit A-2 Form of Definitive Rule 144A Note
Exhibit A-3 Form of Global Regulation S Note
Exhibit A-4 Form of Definitive Regulation S Note
Exhibit B-1 Form of Transferee Certificate for Transfers of Notes pursuant to Rule 144A
Exhibit B-2 Form of Transferee Certificate for Transfer of Notes pursuant to Regulation S
Exhibit C-1 Authorized Representatives of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
Exhibit C-2 Authorized Representatives of the Servicer and the Administrator
Exhibit C-3 Authorized Representatives of the Administrative Agent
Exhibit C-4 Authorized Representatives of the Issuer
Exhibit C-5 Authorized Representatives of Credit Manager
Exhibit D Form of Certificate of Authentication of Indenture Trustee and Authenticating Agent
Exhibit E Form of Indenture Supplement
Exhibit F Form of Risk Retention Certification
Exhibit G Supplemental Information Report
Exhibit H Form of Notice and Release of Lien
Exhibit I Form of Funding Certification
PREAMBLE
This Third Amended and Restated Base Indenture (together with the exhibits and schedules hereto, as amended, supplemented, restated, or otherwise modified from time to time, the “Base Indenture,” and collectively with the Indenture Supplements (as defined herein), the “Indenture”), is made and entered into as of January 25, 2024 (the “Effective Date”), by and among LOANDEPOT GMSR MASTER TRUST, a statutory trust organized under the laws of the State of Delaware (the “Issuer”), Citibank, N.A., a national banking association, in its capacity as Indenture Trustee (the “Indenture Trustee”), and as Calculation Agent, Paying Agent and Securities Intermediary (in each case, as defined herein), LOANDEPOT.COM, LLC, a limited liability company organized under the laws of the State of Delaware (“loanDepot”), as Administrator (as defined herein) and as Servicer (as defined herein), NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), a Delaware limited liability company, as an Administrative Agent (as defined herein), and PENTALPHA SURVEILLANCE LLC, a Delaware limited liability company (“Pentalpha”), as Credit Manager (as defined herein) and is consented to by NCFA, as Noteholder of 100% of the Outstanding VFNs. Capitalized terms have the meanings specified in Section 1.1.
PRELIMINARY STATEMENT
WHEREAS, the Issuer entered into a Second Amended and Restated Base Indenture, dated as of November 15, 2021 (as amended, restated, supplemented or otherwise modified from time to time, the “Original Indenture”), among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Servicer, the Administrator, the Administrative Agent and the Credit Manager, providing for, among other things, the Issuer’s authority to issue different Series of Notes from time to time, on the terms and subject to the conditions set forth therein and the related Indenture Supplement for such Series;
WHEREAS, pursuant to Section 12.1(b) of the Original Indenture, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent, without the consent of any of the Noteholders or any other Person, and with prior notice to each Note Rating Agency that is then rating any Outstanding Notes, upon delivery of an Issuer Tax Opinion, and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future, may enter into an amendment of the Original Indenture;
WHEREAS, as of the date hereof, there are no Classes or Series of Outstanding Notes rated by any Note Rating Agency;
WHEREAS, pursuant to Section 12.3 of the Original Indenture, in executing or accepting the additional trusts created by any amendment or Indenture Supplement of the Original Indenture permitted by Article XII of the Original Indenture or the modifications thereby of the trusts created by the Original Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 of the Original Indenture) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized and permitted by the Original Indenture and that all conditions precedent thereto have been satisfied (the “Authorization Opinion”); provided, that no such Authorization Opinion shall be required in connection with any amendment or Indenture Supplement consented to by all Noteholders if all of the Noteholders have directed the Indenture Trustee in writing to execute such amendment or Indenture Supplement;
WHEREAS, pursuant to Section 1.3 of the Original Indenture, the Issuer shall also furnish to the Indenture Trustee an Officer’s Certificate stating that all conditions precedent, if
any, relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all conditions precedent to a proposed action, if any, have been complied with, which has been included in the Authorization Opinion;
WHEREAS, pursuant to Section 6.24 of each of the Series 2017-VF1 Repurchase Agreement, the Series 2021-SAVF1 Repurchase Agreement and the Series 2021-PIA Repurchase Agreement (each, as defined below), loanDepot shall not consent to any modification, amendment or termination of the Base Indenture, without the prior written consent of NCFA, as buyer under the Series 2017-VF1 Repurchase Agreement, the Series 2021-SAVF1 Repurchase Agreement and the Series 2021-PIAVF1 Repurchase Agreement, respectively;
WHEREAS, pursuant to Section 11.1 of the Trust Agreement, prior to the execution of any amendment to any Transaction Documents to which the Trust is a party, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, the parties hereto have agreed to amend the Original Indenture to, among other changes, reflect NCFA as the Administrative Agent;
WHEREAS, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent hereby agree that, pursuant to this Base Indenture, the Original Indenture continues in full force and effect as amended hereby and except with respect to the terms that have been amended pursuant to this Base Indenture, all obligations of the parties under the Original Indenture will remain outstanding and continue in full force and effect, unpaid, unimpaired and undischarged, and all liens created under the Original Indenture will continue in full force and effect, unimpaired and undischarged, having the same perfection and priority for payment and performance of the obligations of the Issuer and the Indenture Trustee as were in place under the Original Indenture;
WHEREAS, on the Effective Date, the parties are amending and restating the Original Indenture, pursuant to this Base Indenture; and
WHEREAS, all things necessary to make this Base Indenture a valid agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows.
GRANTING CLAUSE
Subject to the interests of Ginnie Mae as set forth below and in the Acknowledgment Agreement, the Issuer hereby reaffirms the Grants and pledges of the security interest in the “Collateral” pursuant to the Original Indenture. The Issuer further hereby reaffirms the Grant to the Indenture Trustee for the benefit and security of the Noteholders, and solely with respect to
the Expense Reserve Account, to the Indenture Trustee, in its individual capacity (each, a “Secured Party” and collectively, the “Secured Parties”), a security interest in all its right, title and interest in and to the following, whether now owned or hereafter acquired and wherever located (collectively, the “Collateral”), and all monies, “securities,” “instruments,” “accounts,” “general intangibles,” “payment intangibles,” “goods,” “letter of credit rights,” “chattel paper,” “financial assets,” “investment property” (the terms in quotations are defined in the UCC) and other property consisting of, arising from or relating to any of the following:
(i) all right, title and interest of the Issuer in, to and under (A) the Excess Spread PC, the P&I Advance PC and the Servicing Advance PC and (B) all monies due or to become due thereon, and all amounts received or receivable with respect thereto, and all proceeds thereof (including “proceeds” as defined in the UCC in effect in all relevant jurisdictions, including all amounts collected by the Servicer or any Subservicer on its behalf for servicing compensation and Advance Reimbursement Amounts (not including Ancillary Income) under any Participation Certificate);
(ii) all rights and claims of the Issuer as Repo Buyer under the PC Repurchase Agreement;
(iii) all rights and claims of the Issuer to the additional collateral pledged to the Issuer to support loanDepot’s obligations under the PC Repurchase Agreement, including any and all rights (A) as assignee of loanDepot to rights to payment on the Participation Certificates, and under all related documents, instruments and agreements pursuant to which loanDepot acquired, or acquired an interest in, any of the Participation Certificates and (B) as pledgee of the MSRs;
(iv) all rights and claims of the Issuer under the Acknowledgment Agreement;
(v) the Trust Accounts and all amounts and property on deposit or credited to the Trust Accounts from time to time (whether or not constituting or derived from payments, collections or recoveries received, made or realized in respect of the Participation Certificates);
(vi) all other monies, securities, reserves and other property now or at any time in the possession of the Indenture Trustee or its bailee, agent or custodian and relating to any of the foregoing; and
(vii) all present and future claims, demands, causes and choses in action in respect of any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in respect of, any and all of the foregoing and all payments on or under, and all proceeds of every kind and nature whatsoever in conversion thereof, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, checks, deposit accounts, rights to payment of any and every kind, and other forms of obligations and receivables, instruments and other property which at any time constitute all or part of or are included in the proceeds of any of the foregoing; provided, however, that the Collateral shall not include any Excluded Assets.
The Security Interest in the Trust Estate is Granted to secure the Notes issued pursuant to this Base Indenture (and the obligations under this Base Indenture and any Indenture Supplement) equally and ratably without prejudice, priority or distinction between any Note and any other Note by reason of difference in time of issuance or otherwise, except as otherwise expressly provided in this Base Indenture or in any Indenture Supplement, and to secure (1) the payment of all amounts due on such Notes, (2) the payment of all other sums payable by the
Issuer under this Base Indenture or any Indenture Supplement and (3) compliance by the Issuer with the provisions of this Base Indenture or any Indenture Supplement. This Base Indenture, as it may be supplemented, including by each Indenture Supplement, is a security agreement within the meaning of the UCC.
The Indenture Trustee acknowledges the Grant of such Security Interest, and agrees to perform the duties herein in accordance with the terms hereof.
Notwithstanding anything to the contrary in this Base Indenture or any of the other Transaction Documents, the security interest of the Indenture Trustee for the benefit of the Noteholders created hereby with respect to the Participation Certificates and the MSRs is subject to the following provisions, which provisions shall be included in each financing statement filed in respect hereof:
(1) The property subject to the security interest reflected in this instrument includes all of the right, title and interest of loanDepot GMSR Master Trust, as debtor (the “Debtor”), in certain mortgages and/or participation interests related to such mortgages (“Pooled Mortgages”), and pooled under the mortgage-backed securities program of the Government National Mortgage Association (“Ginnie Mae”), pursuant to section 306(g) of the National Housing Act, 12 U.S.C. § 1721(g);
(2) To the extent that the security interest reflected in this instrument relates in any way to the Pooled Mortgages, such security interest is subject and subordinate to all rights, powers and prerogatives of Ginnie Mae, whether now existing or hereafter arising, under and in connection with: (i) 12 U.S.C. § 1721(g) and any implementing regulations; (ii) the terms and conditions of that certain Third Amended and Restated Acknowledgment Agreement, dated as January 25, 2024, with respect to the Security Interest, by and among Ginnie Mae, loanDepot.com, LLC (the “Ginnie Mae Issuer”) and Citibank, N.A. (the “Indenture Trustee”); (iii) applicable guaranty agreements and contractual agreements between Ginnie Mae and the Ginnie Mae Issuer; and (iv) the Ginnie Mae Mortgage-Backed Securities Guide, Handbook 5500.3 Rev. 1, and other applicable guides (items (i), (iii) and (iv), collectively, the “Ginnie Mae Contract”);
(3) Such rights, powers and prerogatives of Ginnie Mae include, but are not limited to, Ginnie Mae’s right, by issuing a letter of extinguishment to the Ginnie Mae Issuer, to effect and complete the extinguishment of all redemption, equitable, legal or other right, title or interest of the Debtor in the Pooled Mortgages, in which event the security interest as it relates in any way to the Pooled Mortgages shall instantly and automatically be extinguished as well; and
(4) For purposes of clarification, “subject and subordinate” in clause (2) above means, among other things, that any cash held by the Indenture Trustee as collateral and any cash proceeds received by the Indenture Trustee in respect of any sale or other disposition of, collection from, or other realization upon, all or any part of the collateral may only be applied by the Indenture Trustee to the extent that such proceeds have been received by, or for the account of, the Debtor free and clear of all Ginnie Mae rights and other restrictions on transfer under applicable Ginnie Mae guidelines; provided that this clause (4) shall not be interpreted as establishing rights in favor of Ginnie Mae except to the extent that such rights are reflected in, or arise under, the Ginnie Mae Contract.
The Issuer hereby authorizes the Administrator, on behalf of the Issuer and the Indenture Trustee, and its assignees, successors and designees to file one or more UCC financing statements, financing statement amendments and continuation statements to perfect the security interest granted above. In addition, the Issuer hereby consents to the filing of a financing
statement describing the Collateral covered thereby as “all assets of the Debtor, now owned or hereafter acquired,” or such similar language as the Administrator, on behalf of the Indenture Trustee, and its assignees, successors and designees may deem appropriate.
Any financing statement filed in connection with this Base Indenture or the security interest created hereby, and any and all other instruments that establish such security interest shall include the language set forth above, and (ii) any and all such documents that are amended after the date of this Base Indenture shall include the language specified above and such language shall be a valid and legally enforceable part thereof. The language above meets the requirements of Section 4 of the Acknowledgment Agreement. The Issuer and the Administrator acknowledge and agree that the Indenture Trustee is relying on the representations and warranties in this Granting Clause to make the representations and warranties as Secured Party in Section 4 of the Acknowledgment Agreement.
Subject to the interests and rights of Ginnie Mae as set forth in this Base Indenture and in the Acknowledgment Agreement, the parties hereto intend that the Security Interest Granted under this Base Indenture shall give the Indenture Trustee on behalf of the Secured Parties a first priority perfected security interest in, to and under the Collateral, and all other property described in this Base Indenture as a part of the Trust Estate and all proceeds of any of the foregoing in order to secure the obligations of the Issuer to the Indenture Trustee and the Noteholders under the Notes, this Base Indenture, the related Indenture Supplement, and all of the other Transaction Documents. The Indenture Trustee on behalf of the Secured Parties shall have all the rights, powers and privileges of a secured party under the UCC. The Issuer agrees to execute and file all filings (including filings under the UCC) and take all other actions reasonably necessary in any jurisdiction to provide third parties with notice of the Security Interest Granted pursuant to this Base Indenture and to perfect such Security Interest under the UCC.
AGREEMENTS OF THE PARTIES
To set forth or to provide for the establishment of the terms and conditions upon which the Notes are to be authenticated, issued and delivered, and in consideration of the premises and the purchase of Notes by the Noteholders thereof, it is mutually covenanted and agreed as set forth in this Base Indenture, for the equal and proportionate benefit of all Noteholders of the Notes or of a Series or Class thereof, as the case may be.
LIMITED RECOURSE
The obligation of the Issuer to make payments of principal, interest and other amounts on the Notes is limited in recourse as set forth in Section 8.9.
Article I
Definitions and Other Provisions of General Application
Section 1.1. Definitions.
Capitalized terms used herein shall have the meanings indicated below:
1933 Act: The Securities Act of 1933.
1934 Act: The Securities Exchange Act of 1934.
Acknowledgment Agreement: The Third Amended and Restated Acknowledgment Agreement, dated as of January 25, 2024, by and among Ginnie Mae, loanDepot and the Indenture Trustee.
Acquired MSRs: MSRs related to previously issued Ginnie Mae MBS that the Servicer acquired, provided that Ginnie Mae has acknowledged that loanDepot is deemed the “issuer” of the Pooled Mortgages related to such acquired MSRs by execution of the Assignment Agreement in the form of Appendix VIII-3 of the Ginnie Mae Guide, or any such successor form approved by Ginnie Mae from time to time.
Act: When used with respect to any Noteholder, as defined in Section 1.5.
Action: When used with respect to any Noteholder, as defined in Section 1.5.
Adjusted Tangible Net Worth: As defined in the Pricing Side Letter (as defined in the PC Repurchase Agreement).
Administration Agreement: The Administration Agreement, dated as of the Closing Date, by and between the Issuer and the Administrator.
Administrative Agent: (a) As of the Effective Date, NCFA or any Affiliate thereof or any successor thereto in respect of the Series of Notes for which it is designated as an Administrative Agent therefor in the related Indenture Supplement, and (b) in respect of any Series, the Person(s) specified in the related Indenture Supplement. Unless the context indicates otherwise in any Indenture Supplement for such Indenture Supplement, each reference to the “Administrative Agent” herein or in any other Transaction Document shall be deemed to constitute a collective reference to each Person that is an Administrative Agent. If (x) any Person that is an Administrative Agent resigns as an Administrative Agent in respect of all Series for which it was designated as the Administrative Agent or (y) all of the Notes in respect of each Series for which any Person was designated as the Administrative Agent are repaid or redeemed in full, such Person shall cease to be an “Administrative Agent” for purposes hereof and each other Transaction Document.
Administrative Expenses: Any amounts due from or accrued for the account of the Issuer with respect to any period for any administrative expenses incurred by the Issuer, including, (i) to any accountants, agents, counsel and other advisors of the Issuer (other than the Owner Trustee) for reasonable and customary fees and expenses; (ii) to any other person in respect of any governmental fee, charge or tax; (iii) to any other Person (other than the Owner Trustee) in respect of any other fees or expenses permitted under this Base Indenture (including indemnities) and the documents delivered pursuant to or in connection with this Base Indenture and the Notes; (iv) any and all fees and expenses of the Issuer incurred in connection with its entry into and the performance of its obligations under any of the agreements contemplated by this Base Indenture; (v) the orderly winding up of the Issuer following the cessation of the transactions contemplated by this Base Indenture; and (vi) any and all other reasonable and customary fees and expenses incurred by the Issuer in connection with the transactions contemplated by this Base Indenture, but not in duplication of any amounts specifically provided for in respect of the Indenture Trustee, the Owner Trustee, the Administrator or any VFN Noteholder.
Administrator: loanDepot, in its capacity as the Administrator on behalf of the Issuer, and any successor to loanDepot in such capacity.
Advance: Collectively, any Servicing Advance and any MBS Advance.
Advance Rate: With respect to any Series of Notes, and for any Class within such Series, if applicable, the percentage specified as its “Advance Rate” in the Indenture Supplement for such Series.
Advance Rate Reduction Event: The occurrence of any of the following events:
(i) a breach of any of the Servicer Financial Tests; or
(ii) the occurrence of any of the Key Performance Indicators.
Advance Rate Reduction Event Reserve Amount: Amounts on deposit in the Collection and Funding Account that are designated as “Advance Rate Reduction Event Reserve Amounts” therein and are reserved for the purpose of satisfying the Advance Rate Reduction Event Reserve Required Amount.
Advance Rate Reduction Event Reserve Required Amount: For any Payment Date during the Advance Rate Reduction Event Trigger Period, if such Advance Rate Reduction Event has been in effect for: (i) [***] with respect to the MSR Notes as of such Payment Date; (ii) [***] with respect to the MSR Notes as of such Payment Date; (iii) [***] with respect to the MSR Notes as of such Payment Date and (iv) [***]with respect to the MSR Notes as of such Payment Date.
Advance Rate Reduction Event Trigger Period: The period of time that begins upon the occurrence of an Advance Rate Reduction Event, and ends on earliest of (i) the date on which an Advance Rate Reduction Event is no longer in effect, pursuant to the requirements set forth in Section 4.12, (ii) commencement of the Early Amortization Period, (iii) commencement of the Early Termination Event Period or (iv) commencement of the Full Amortization Period.
Advance Reimbursement Amount: With respect to any Advance, any amount collected on a Mortgage Pool, withdrawn from a custodial account in accordance with the Ginnie Mae Contract, or received from any successor servicer, to reimburse any such Advance, including any Liquidation Proceeds, FHA Claim Proceeds, USDA Claim Proceeds, PIH Claim Proceeds or VA Claim Proceeds; provided that “Advance Reimbursement Amounts” shall not include any such amounts that constitute Excluded Reimbursement Rights.
Advance Reimbursement Balance: Collectively, the sum of the MBS Advance Reimbursement Balance and Servicing Advance Reimbursement Balance.
Advance Verification Agent: An independent third party accounting firm acceptable to Ginnie Mae and the Administrative Agent, or any successor third party mortgage servicing rights advance verification agent appointed by loanDepot in accordance with the terms of this Base Indenture.
Advance Verification Agent Agreement: The advance verification agent letter agreement, dated as of January 4, 2022, between the Advance Verification Agent and loanDepot, as amended, restated, supplemented or otherwise modified from time to time.
Advance Verification Agent Fee: The fees and expenses payable to the Advance Verification Agent pursuant to the terms of the Advance Verification Agent Agreement; provided, any invoice submitted by the Advance Verification Agent to the Indenture Trustee shall have been approved by loanDepot as set forth in the Advance Verification Agent Agreement (provided the Indenture Trustee shall have no duty, obligation or responsibility to confirm such, and may conclusively rely on its receipt of such notice that such invoice has been approved) in its reasonable discretion.
Advance Verification Report: As defined in Section 3.3(g)(2).
Adverse Claim: A lien, security interest, charge, encumbrance or other right or claim of any Person (other than (A) the liens created in favor of the Secured Parties or assigned to the Secured Parties by (i) this Base Indenture, (ii) the PC Repurchase Agreement or (iii) any other Transaction Document, (B) the rights of Ginnie Mae under the Ginnie Mae Contract and (C) the Owner Trustee Lien).
Adverse Effect: Whenever used in this Base Indenture with respect to any Series or Class of Notes and any event, means that such event is reasonably likely, at the time of its occurrence, to (i) result in the occurrence of an Event of Default relating to such Series or Class of Notes, (ii) materially adversely affect (A) the amount of funds available to be paid to the Noteholders of such Series or Class of Notes pursuant to this Base Indenture, (B) the timing of such payments or (C) the rights or interests of the Noteholders of such Series or Class, (iii) materially adversely affect the Security Interest of the Indenture Trustee for the benefit of the Secured Parties in the Collateral unless otherwise permitted by this Base Indenture, or (iv) materially adversely affect the collectability of the Collateral.
Affiliate: With respect to any specified Person, 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; provided, however, any Permitted Holder or any joint venture for which Seller or LD Holdings Group LLC owns less than fifty percent (50%) of the equity interests therein shall not be considered an Affiliate for purposes of this Agreement or any other Program Agreement.
Ancillary Income: All income derived from a Mortgage Loan (other than payments or other collections in respect of principal, interest, escrow payments and prepayment penalties (if any) attributable to such Mortgage Loan) and to which the Servicer or any Subservicer, as the servicer or subservicer of the Mortgage Loan, is entitled in accordance with the Ginnie Mae Contract, including, (i) all late charges, fees received with respect to checks or bank drafts returned by the related bank for insufficient funds, assumption fees, optional insurance administrative fees, all interest, income, or credit on funds deposited in the escrow accounts and custodial accounts or other receipts on or with respect to such Mortgage Loan (subject to Applicable Law and the Ginnie Mae Contract), (ii) reconveyance fees, subordination fees, speedpay fees, mortgage pay on the web fees, automatic clearing house fees, demand statement fees, modification fees, if any, and other similar types of fees arising from or in connection with any Mortgage Loan to the extent not otherwise payable by the mortgagor under Applicable Law or pursuant to the terms of the related Mortgage Note, and (iii) any incentive fees payable by FHA under the applicable FHA Mortgage Insurance Contract, by USDA under the USDA Loan Guarantee Document, or by VA under the applicable VA Loan Guaranty Agreement, as applicable, to the Servicer or any Subservicer, as servicer or subservicer of the Mortgage Loans, including incentive amounts payable in connection with Mortgage Loan modifications and other loss mitigation activities.
Applicable Law: As defined in Section 4.1.
Applicable Rating: For each Class of Notes, the rating(s) specified as such for such Class in the related Indenture Supplement, if applicable. Only those rating(s) specified for any Class of Notes that are made at the request of Issuer shall be applicable for purposes of this Base Indenture.
Asset File: The documents described in Section 2.2 pertaining to a particular Participation Certificate.
Authenticating Agent: Any Person authorized by the Indenture Trustee to authenticate Notes under Section 11.12.
Authorized Representative: As defined in Section 14.10.
Authorized Signatory: With respect to any entity, each Person duly authorized to act as a signatory of such entity at the time such Person signs on behalf of such entity.
Available Funds: With respect to:
(i) any Interim Payment Date, (A) all Collections on the Participation Certificates received during the related Collection Period and on deposit in the Collection and Funding Account, plus (B) any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” with respect to any Series of Notes for such Interim Payment Date (including any cash amounts that are on deposit in the Collection and Funding Account which the Administrator has instructed the Indenture Trustee to apply in accordance with Section 4.4(a)(iii), Section 4.4(b)(iii), or Section 4.4(c)(iii)); and
(ii) any Payment Date, (A) all Collections on the Participation Certificates received during the related Collection Period and on deposit in the Collection and Funding Account, plus (B) any income from Permitted Investments in Trust Accounts included in P&I Advance Reimbursement Available Funds with respect to amounts on deposit in the P&I Advance Reimbursement Available Funds Account, included in Servicing Advance Reimbursement Available Funds with respect to amounts on deposit in the Servicing Advance Reimbursement Available Funds Account and included in the Servicing Spread Available Funds with respect to amounts on deposit in the Servicing Spread Available Funds Account plus (C) any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Available Funds” with respect to any Series of Notes for such Payment Date (including any cash amounts that are on deposit in the Collection and Funding Account which the Administrator has instructed the Indenture Trustee to apply in accordance with Section 4.5(a)(1)(viii), Section 4.5(a)(2)(iii) and Section 4.5(a)(3)(iii)).
Bankruptcy Code: The Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et seq.
Base Indenture: As defined in the Preamble.
Base Servicing Fee: For any Mortgage Loan, a monthly fee equal to [***]% (i) multiplied by the unpaid principal balance of such Mortgage Loan (a) as of the first day of the Collection Period, or (b) with respect to a Mortgage Loan added to the Portfolio during the Collection Period, as of the applicable MBS Entry Date, and (ii) divided by 12.
Book-Entry Notes: A note registered in the name of the Depository or its nominee, ownership of which is reflected on the books of the Depository or on the books of a Person maintaining an account with such Depository (directly or as an indirect participant in accordance with the rules of such Depository); provided, that after the occurrence of a condition whereupon Definitive Notes are to be issued to Note Owners, such Book-Entry Notes shall no longer be “Book-Entry Notes”.
Borrowing Base: As of any date of determination, with respect to the MSR Notes, an amount equal to the aggregate related Collateral Value (as calculated using clause (b) of the
definition of Market Value Percentage) of the Portfolio and, with respect to the PIA VFNs and SA Notes, the related Collateral Value.
Borrowing Base Deficiency: With respect to:
(x) the MSR Notes, the positive difference, if any, of:
(i) the aggregate VFN Principal Balances of all Outstanding Series of MSR VFNs; and
(ii) the sum of:
(a) the product of: (1) the difference between (A) the more recent of the Borrowing Base on the Borrowing Base Determination Date preceding such date of determination, or the Interim Borrowing Base on the Interim Borrowing Base Determination Date preceding such date of determination and (B) the aggregate of the Term Note Series Invested Amounts for all MSR Notes, and (2) (A) the Weighted Average Advance Rate in respect of all Outstanding Series of MSR VFNs or (B) if the calculation in clause (1) above is a negative number, the highest Advance Rate in respect of any Class of MSR VFNs; and
(b) [reserved];
(c) any cash amounts that are on deposit in the Collection and Funding Account that were deposited by the Administrator and allocated as Servicing Spread Available Funds prior to the Payment Date or Interim Borrowing Base Payment Date, as applicable, which the Administrator has instructed the Indenture Trustee to reserve in the Collection and Funding Account pursuant to this Indenture; provided, however, that after making the allocations specified in Section 4.4(a) and 4.5(a)(1) of this Indenture on the applicable Payment Date or Interim Borrowing Base Payment Date, for the purposes of subsequently determining the Borrowing Base or if a Borrowing Base Deficiency exists, credit shall be given to cash amounts that are on deposit in the Collection and Funding Account that the Administrator has specified that it intends to retain therein after such Payment Date or Interim Borrowing Base Payment Date (including any amounts deposited therein to cure a Borrowing Base Deficiency);
(y) the PIA VFNs, the positive difference, if any, of: (i) the aggregate VFN Principal Balances of all Outstanding Series of PIA VFNs, and (ii) the product of (1) the related Collateral Value on such date of determination and (2) the Weighted Average Advance Rate in respect of all Outstanding Series of PIA VFNs; or
(z) the SA Notes, the positive difference, if any, of: (i) the aggregate VFN Principal Balances of all Outstanding Series of SA VFNs, and (ii) the product of (1) the difference between (A) the related Collateral Value on such date of determination and (B) the aggregate Term Note Series Invested Amounts for all SA Term Notes and (2) (A) the Weighted Average Advance Rate in respect of all Outstanding Series of SA VFNs or (B) if the calculation is clause (1) above is a negative number, the highgest Advance Rate of any SA VFNs.
Borrowing Base Determination Date: The Business Day of the month on which the interest rate indices were quoted and that will subsequently be used by the MSR Valuation Agent to prepare its Market Value Report based on the information contained in the MSR and Advance Monthly Report.
Borrowing Capacities: For any Outstanding Series of VFNs on any date, the difference between (i) the related Maximum VFN Principal Balance on such date and (ii) the related VFN Principal Balance on such date.
Business Day: For any Class of Notes, any day other than (i) a Saturday or Sunday or (ii) any other day on which (x) national banking associations or state banking institutions in New York, New York, the State of California or the city and state where the Corporate Trust Office is located or (y) the Federal Reserve Bank of New York are authorized or obligated by law, executive order or governmental decree to be closed.
Buyer MBS Advance: As defined in the PC Repurchase Agreement.
Calculation Agent: The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as calculation agent pursuant to the terms of this Base Indenture.
Cash Equivalents: As defined in the Pricing Side Letter (as defined in the PC Repurchase Agreement).
Cash Proceeds: means the cash proceeds received by the Seller in connection with a Permitted Disposition.
Certificate of Authentication: The certificate of the Indenture Trustee or the alternative certificate of the Authenticating Agent, substantially in the form attached hereto in Exhibit D.
Certificate Registrar: As defined in the Trust Agreement.
Certificateholder: As defined in the Trust Agreement.
Citibank: Citibank, N.A. and any successor or assign thereto.
Class: With respect to any Notes, the class designation assigned to such Note in the related Indenture Supplement. A Series issued in one class, with no class designation in the related Indenture Supplement, may be referred to herein as a “Class”.
Class Invested Amount: As of any date of determination:
(i) for any Class of a Series of Variable Funding Notes, an amount equal to: (i) the sum of (A) the outstanding Note Balance of such Class (as reduced by (1) the Scheduled Principal Payment Amount actually paid on such Class on such Payment Date, if applicable, (2) the Advance Rate Reduction Event Reserve Amount on deposit in the Collection and Funding Account on such Payment Date in respect of such Class, if applicable, (3) the Early Amortization Event Payment Amount actually paid on such Class on such Payment Date, if applicable, and (4) the Early Termination Event Payment Amount actually paid on such Class on such Payment Date, if applicable), plus (B) the aggregate outstanding Note Balances of all Classes of Variable Funding Notes (as reduced by (1) the Scheduled Principal Payment Amount actually paid on such Classes on such Payment Date, if applicable, (2) the Advance Rate Reduction Event Reserve Amount on deposit in the Collection and Funding Account on such Payment Date in respect of such Classes, if applicable, (3) the Early Amortization Event Payment Amount actually paid on such Classes on such Payment Date, if applicable, and (4) the Early Termination Event Payment Amount actually paid on such Classes on such Payment Date, if applicable) within the same Series of Variable Funding Notes that are senior to or pari passu with such Class on such date and not otherwise captured in clause (A), divided by (ii) the Advance Rate in respect of such Class of Variable Funding Notes; and
(ii) for any Class of a Series of Term Notes, an amount equal to: (i) the sum of (A) the outstanding Note Balance of such Class (as reduced by (1) the Scheduled Principal Payment Amount actually paid on such Class on such Payment Date, if applicable, (2) the Advance Rate Reduction Event Reserve Amount on deposit in the Collection and Funding Account in respect of such Class on such Payment Date, if applicable, (3) the Early Amortization Event Payment Amount actually paid on such Class on such Payment Date, if applicable, and (4) the Early Termination Event Payment Amount actually paid on such Class on such Payment Date, if applicable), plus (B) the aggregate outstanding Note Balances of all Classes of Term Notes within the same Series of Term Notes (as reduced by (1) the Scheduled Principal Payment Amount actually paid on such Classes on such Payment Date, if applicable, (2) the Advance Rate Reduction Event Reserve Amount on deposit in the Collection and Funding Account on such Payment Date in respect of such Classes, if applicable, (3) the Early Amortization Event Payment Amount actually paid on such Classes on such Payment Date, if applicable, and (4) the Early Termination Event Payment Amount actually paid on such Classes on such Payment Date, if applicable) that are senior to or pari passu with such Class on such date and not otherwise captured in clause (A), divided by (ii) the highest Advance Rate in respect of such Class of Term Notes.
Clearing Corporation: As defined in Section 8-102(a)(5) of the UCC.
Clearstream: Clearstream Banking, S.A., and any successor thereto.
Closing Date: Shall mean August 11, 2017.
Code: The Internal Revenue Code of 1986.
Collateral: As defined in the Granting Clause.
Collateral Value: As of the applicable Determination Date, (1) with respect to the MSR Notes, the product of (A) the related Market Value Percentage and (B) unpaid principal balance of the Portfolio as of the close of business on such date of determination; provided, however, that (i) the unpaid principal balance of any Mortgage Loans being serviced by an Interim Servicer shall be eligible to be included in the calculation of “Collateral Value” for a period of time no longer than [***] unless consented to by the Administrative Agent, and (ii) the aggregate unpaid principal balance of the Mortgage Loans serviced by an Interim Servicer may not exceed [***] % of the Collateral Value of all MSRs, unless, in either case, consented to by the Administrative Agent, (2) with respect to the SA Notes, the aggregate Servicing Advance Reimbursement Balance of all Eligible Advance Reimbursement Amounts with respect to all Portfolio Mortgage Loans and (3) with respect to the PIA VFNs, the aggregate MBS Advance Reimbursement Balance of all Eligible Advance Reimbursement Amounts with respect to all Portfolio Mortgage Loans.
Collection and Funding Account: Each of the Servicing Spread Available Funds Account, the P&I Advance Reimbursement Available Funds Account and the Servicing Advance Reimbursement Available Funds Account, as applicable, each of which shall be a separate non-interest-bearing trust account or accounts and an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.7 and entitled “[***],” “[***]” or [***],” respectively or such of the foregoing that can be reflected on the account systems of the institution maintaining such account. For the avoidance of doubt, each of the aforementioned trust accounts shall each be a separate non-interest bearing trust account, but shall be deemed to constitute the Collection and Funding Account.
Collection Period: (i) For the first Interim Payment Date or Payment Date, the period beginning on the Cut-off Date and ending at the end of the day before the Determination Date for such Interim Payment Date or Payment Date, and (ii) for each subsequent Interim Payment Date or Payment Date, the period beginning at the opening of business on the most recent preceding monthly Determination Date and ending as of the close of business on the day before the Determination Date for such Interim Payment Date or Payment Date.
Collections: As defined in the PC Repurchase Agreement.
Control, Controlling or Controlled: The possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
Corporate Advance: Any advance disbursed by or on behalf of the Servicer from its own funds with respect to any Mortgage Pool as required by the Ginnie Mae Contract with respect to any Mortgage Loan included in the related Mortgage Pool (other than amounts advanced as MBS Advances or Escrow Advances), excluding any advance disbursed by an Interim Servicer or Subservicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer or Subservicer and pays the Interim Servicer or Subservicer for such advances.
Corporate Trust Office: For each Series of Notes, as specified in the related Indenture Supplement.
Credit Management Agreement: The Credit Management Agreement, dated as of the Closing Date, among the Credit Manager, loanDepot, the Administrative Agent and the Indenture Trustee.
Credit Manager: Pentalpha and any successor thereto in such capacity.
Credit Manager Expense Reserve Account: The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.6, and entitled “[***]”.
Credit Manager Expense Reserve Required Amount: With respect to any date of determination, $[***].
Credit Manager Fee: Shall have the meaning set forth in the Credit Management Agreement.
Cumulative Default Supplemental Fee Shortfall Amount: For each Payment Date and each Class of Notes, any portion of the Default Supplemental Fee (including the Cumulative Default Supplemental Fee Shortfall Amount for that Class for a previous Payment Date as set forth in the definition of “Default Supplemental Fee”) that has not been paid, if any, plus accrued and unpaid interest at the applicable Note Interest Rate plus the Default Supplemental Fee Rate on such shortfall from the Payment Date on which the shortfall first occurred through but excluding the current Payment Date.
Cumulative Interest Shortfall Amount: For each Payment Date and each Class of Notes, any portion of the Interest Payment Amount (calculated under clause (i) or clause (ii), as applicable, of the definition thereof, if applicable) for that Class for all previous Payment Dates that has not been paid if any, plus accrued and unpaid interest at the applicable Note Interest Rate
plus the Cumulative Interest Shortfall Amount Rate on each such shortfall from the Payment Date on which such shortfall first occurred to but excluding the current Payment Date.
Cumulative Interest Shortfall Amount Rate: As defined in the related Indenture Supplement.
Cumulative Step-Up Fee Shortfall Amount: For each Payment Date and each Class of Notes, any portion of the Step-Up Fee (including the Cumulative Step-Up Fee Shortfall Amount for that Class for a previous Payment Date as set forth in the definition of “Step-Up Fee”) that has not been paid, if any, plus accrued and unpaid interest at the applicable Note Interest Rate and plus the Step-Up Fee Rate on such shortfall from the Payment Date on which the shortfall first occurred through but excluding the earlier of the current Payment Date, or the date such amounts are paid, as applicable.
Current Business Operations: 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; real estate services; title insurance; settlement services; appraisal management services; default-related services to servicers and asset managers; title services; insurance brokerage; issuing, sponsoring, providing placement services, pooling of or acquisition of publicly offered and privately issued mortgage-backed securities, mortgage participation certificates and pools of un-securitized mortgage loans and related ancillary activities. Placement services include, but are not limited to, providing structuring advice, writing marketing materials and soliciting investors.
Custodian: As defined in Section 2.3(a).
Cut-off Date: Shall mean the Closing Date.
Debtor: As defined in the Granting Clause.
Default Supplemental Fee: As defined in the related Indenture Supplement, if applicable.
Default Supplemental Fee Rate: As defined in the related Indenture Supplement, if applicable.
Definitive Note: A Note issued in definitive, fully registered form evidenced by a physical Note, substantially in the form of one or more of the Definitive Notes hereto as Exhibit A-2 and Exhibit A-4.
Depository: Initially, DTC, the nominee of which is Cede & Co., and any permitted successor depository. The Depository shall at all times be a Clearing Corporation.
Depository Agreement: For any Series or Class of Book-Entry Notes, the agreement among the Issuer, the Indenture Trustee and the Depository, dated as of the related Issuance Date, relating to such Notes.
Depository Participant: A broker, dealer, bank or other financial institution or other Person for whom from time to time the Depository effects book-entry transfers and pledges of securities deposited with the Depository.
Determination Date: In respect of any Payment Date or Interim Payment Date, two (2) Business Days before such Payment Date or Interim Payment Date.
Determination Date Report: A report delivered by the Administrator as described in Section 3.2(a), which shall be delivered in the form of one or more electronic files.
Distribution Compliance Date: The last day of the Distribution Compliance Period.
Distribution Compliance Period: In respect of any Regulation S Global Note or Regulation S Definitive Note, the forty (40) consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S under the 1933 Act) pursuant to Regulation S and (b) the Issuance Date for such Notes.
DQP Delinquency Ratio: As of the first day of any calendar month, the ratio calculated by Ginnie Mae equal to (x) the aggregate amount of delinquent principal and interest payments (delinquency being determined in accordance with the provisions of the Ginnie Mae Contract), divided by (y) the aggregate monthly Fixed Installment Control for all Mortgage Pools due to the Servicer.
DQ2+ Delinquency Ratio: As of the first day of any calendar month, with respect to the Servicer, the ratio calculated by Ginnie Mae equal to (x) the number of Mortgage Loans in the Servicer’s portfolio that are in foreclosure or delinquent (with delinquency being determined in accordance with the provisions of the Ginnie Mae Contract) for two (2) or more months, divided by (y) the total number of Mortgage Loans in the Servicer’s portfolio.
DQ3+ Delinquency Ratio: As of the first day of any calendar month, with respect to the Servicer, the ratio calculated by Ginnie Mae equal to (x) the number of Mortgage Loans in the Servicer’s portfolio that are in foreclosure or delinquent (with delinquency being determined in accordance with the applicable provision of the Ginnie Mae Contract) for three (3) or more months, divided by (y) the total number of Mortgage Loans remaining in the Servicer’s portfolio.
DTC: The Depository Trust Company, the nominee of which is Cede & Co.
Early Amortization Event: As defined in the related Indenture Supplement, if applicable.
Early Amortization Event Payment Amount: As defined in the related Indenture Supplement, if applicable.
Early Amortization Period: For all Series of Notes, the period that begins upon the occurrence of an Early Amortization Event and ends on the date when the Early Amortization Event is no longer in effect, pursuant to the requirements set forth in Section 4.12.
Early Termination Event: For each Series of Notes, as defined in the related Indenture Supplement, if applicable.
Early Termination Event Payment Amount: For each Series of Notes, as defined in the related Indenture Supplement, if applicable.
Early Termination Event Period: For all Series of Notes, the period that begins upon the occurrence of an Early Termination Event and ends on the date when the Early Termination Event is no longer in effect, pursuant to the requirements set forth in Section 4.12.
Effective Date: As defined in the Preamble.
Eligible Account: Any of (i) an account or accounts maintained with an insured depository institution that meets the rating requirements adopted by Ginnie Mae and set forth in
the Ginnie Mae Contract, and that is (w) a federal savings and loan association duly organized, validly existing and in good standing under the federal banking laws of the United States, (x) a banking or savings and loan association duly organized, validly existing and in good standing under the applicable laws of any state, (y) a national banking association duly organized, validly existing and in good standing under the federal banking laws of the United States, or (z) a principal subsidiary of a bank holding company; or (ii) a trust account maintained in the trust department of a federal or state chartered depository institution or trust company in the United States, acting in its fiduciary capacity, having capital and surplus of not less than $50,000,000, and that meets the rating requirements adopted by Ginnie Mae and set forth in the Ginnie Mae Contract.
Eligible Advance Reimbursement Amounts: For each Series of Notes, as specified in the related Indenture Supplement, if applicable.
Eligible Securities Account: The trust account or accounts, each of which shall be a Securities Account and an Eligible Account, established and maintained pursuant to Sections 4.1 and 4.7 of the Base Indenture and entitled “Citibank, N.A., as Indenture Trustee for the loanDepot GMSR Master Trust Collateralized Notes, Eligible Securities Account” or such of the foregoing that can be reflected on the account systems of the institution maintaining such account.
Eligible Security: Any of the following obligations and securities: (i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; or (ii) mortgage backed securities issued or guaranteed by Fannie Mae, Freddie Mac or Ginnie Mae.
Eligible Subservicer: As defined in the PC Repurchase Agreement.
Eligible Subservicing Agreement: As defined in the PC Repurchase Agreement.
Entitlement Order: As defined in Section 8-102(a)(8) of the UCC.
ERISA: The Employee Retirement Income Security Act of 1974.
Escrow Advance: Any advance disbursed by or on behalf of the Servicer from its own funds with respect to any Mortgage Pool as required by the Ginnie Mae Contract in order to pay tax obligations or insurance premiums due under any Mortgage Loan included in the related Mortgage Pool when the funds on deposit in any escrow custodial account or any other account containing escrow funds related to the applicable Mortgage Pool are insufficient to make the required payment, excluding any advance disbursed by an Interim Servicer or Subservicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer or Subservicer and pays the Interim Servicer or Subservicer for such advances.
Euroclear: Euroclear Bank S.A./N.V. as operator of the Euroclear System, and any successor thereto.
Event of Default: As defined in Section 8.1.
Examination: As defined in Section 3.4.
Examining Parties: As defined in Section 3.4.
Excess Spread PC: The Participation Certificate issued pursuant to the Participation Agreement which evidences the Participation Interest in the Portfolio Excess Spread related to the Portfolio Mortgage Loans.
Excluded Advances: As defined in the Participation Agreement.
Excluded Assets: Collectively, the Excluded Advances, Excluded Mortgage Loans, Excluded Mortgage Pools, Excluded MSRs, and Excluded Reimbursement Rights.
Excluded Mortgage Loan: A mortgage loan included in an Excluded Mortgage Pool.
Excluded Mortgage Pool: As defined in the Participation Agreement.
Excluded MSR: As defined in the Participation Agreement.
Excluded Reimbursement Rights: As defined in the Participation Agreement.
Expense Limit: With respect to: (i) expenses and indemnification amounts (A) in any year, for the [***], and (B) for any single Payment Date, [***]; and (ii) Administrative Expenses, [***]; provided, that the Expense Limit shall only apply to payments made pursuant to Sections 4.5(a)(1)(i) and (ii), and Sections 4.5(a)(4)(i) and (ii), to the extent provided in such sections; and provided, further, that any amounts in excess of the Expense Limit that have not been paid pursuant to Section 4.5 may be applied toward and subject to the Expense Limit for the subsequent year and may be paid in a subsequent year.
Expense Reserve Account: The segregated non-interest-bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.6, and entitled “Citibank, N.A., as Indenture Trustee for the loanDepot GMSR Master Trust MSR Collateralized Notes, Expense Reserve Account”.
Expense Reserve Required Amount: With respect to any date of determination, $[***] (with $[***]).
Facility Entity: As defined in Section 9.5(i).
Fannie Mae: The Federal National Mortgage Association.
FATCA: Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code, or any U.S. or non-U.S. fiscal or regulatory legislation, guidance notes, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
FCPA : As defined in Section 10.1(h).
FCPA Entity : As defined in Section 10.1(h).
Fee Letter: For any Series, as defined in the related Indenture Supplement, if applicable.
Fees: Collectively, with respect to any Interest Accrual Period, the Indenture Trustee Fee, the Owner Trustee Fee, the Credit Manager Fee, the Advance Verification Agent Fee and the MSR Valuation Agent Fee.
FHA: As defined in the Participation Agreement.
FHA Claim Proceeds: As defined in the Participation Agreement.
FHA Mortgage Insurance Contract: As defined in the Participation Agreement.
Final Payment Date: For any Class of Notes, the earliest of (i) the Stated Maturity Date for such Class, (ii) after the end of the related Revolving Period, the Payment Date on which the Note Balance of the Notes of such Class has been reduced to zero, and (iii) the Payment Date which follows the Payment Date on which all proceeds of the sale of the Trust Estate are distributed pursuant to Section 8.6.
Financial Asset: As defined in Section 8-102(a)(9) of the UCC.
Fixed Installment Control: The scheduled principal and interest due on a Mortgage Pool in a given month.
Freddie Mac: The Federal Home Loan Mortgage Corporation.
Full Amortization Period: For all Series of Notes, the period that begins upon the commencement of the Full Amortization Period pursuant to Section 4.12 hereof and ends on the date on which the Notes of all Series are paid or redeemed in full or such Event of Default is waived in accordance with the terms hereof.
Funding Certification: A report delivered by the Administrator in respect of each Funding Date pursuant to Section 4.3(a).
Funding Conditions: With respect to any proposed Funding Date, the following conditions:
(i) no Borrowing Base Deficiency shall exist following the proposed funding (without giving effect to the cash amounts on deposit in the Collection and Funding Account), and the Administrative Agent shall be satisfied in its sole discretion that it has a current accurate valuation of the Portfolio and, if a proposed funding relates to any PIA VFN and SA VFN verification of the Advance Reimbursement Balance to support such determination;
(ii) no breach of representation, warranty or covenant of the Servicer, the Administrator or the Issuer, or with respect to the Participation Certificates, hereunder or under any Transaction Document, which could reasonably be expected to have a material Adverse Effect, shall exist;
(iii) (A) (unless (and to the extent) each related VFN Noteholder and VFN Funding Source has agreed to waive this condition for purposes of fundings under its related Variable Funding Note), no Funding Interruption Event shall be continuing and (B) (unless (and to the extent) each related VFN Noteholder and VFN Funding Source have agreed to waive this condition for purposes of fundings under its related Variable Funding Note), no Event of Default shall have occurred and be continuing;
(iv) the Administrator shall have provided the Indenture Trustee, no later than [***] (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), a Determination Date Report reporting information with respect to the Participation Certificates in the Trust Estate and demonstrating the satisfaction of the Borrowing Base and that a Borrowing Base Deficiency does not exist with respect to any VFN, and no later than [***], a Funding Certification certifying that all Funding Conditions have been satisfied; provided,
however, that no Variable Funding Note Noteholder shall have any liability for failing to fund a requested draw of a Variable Funding Note unless it has received a Funding Certification by [***];
(v) the full amount of the Required Available Funds shall be on deposit in the Collection and Funding Account after the release of cash from such account to fund the purchase price of any Participation Certificate (if such Participation Certificate is being purchased on such Funding Date);
(vi) the payment of the VFN Draw shall not result in a material adverse United States federal income tax consequence to the Trust Estate or any Noteholders; and
(vii) none of the Early Amortization Period, the Early Termination Event Period or the Full Amortization Period shall be in effect.
Funding Date: Any Interim Payment Date, Payment Date or any Business Day agreed to among the Issuer, the Administrator, the Indenture Trustee and the Administrative Agent following [***] written notice from the Issuer or the Administrator to the Administrative Agent and Indenture Trustee, with respect to which the Administrator shall have delivered (i) a Funding Certification in accordance with Section 4.3(a) or (ii) a VFN Note Balance Adjustment Request in accordance with Section 4.3(b); provided, no Early Amortization Period, Early Termination Event Period, or Full Amortization Period shall have occurred and shall be continuing on such Funding Date.
Funding Interruption Event: The occurrence of an event which with the giving of notice or the passage of time, or both, would constitute an Event of Default, whether or not the Indenture Trustee, the Administrative Agent and/or any Noteholders have provided notice sufficient to cause the Full Amortization Period to commence as a result of such event.
GAAP: U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of loanDepot and its subsidiaries; provided, that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
Ginnie Mae: The Government National Mortgage Association or any successor thereto.
Ginnie Mae I MBS Program: Shall have the meaning set forth in the Ginnie Mae Guide.
Ginnie Mae II MBS Program: Shall have the meaning set forth in the Ginnie Mae Guide.
Ginnie Mae Contract: Such term includes (a) 12 U.S.C. § 1721(g) and the implementing regulations governing the Ginnie Mae mortgage-backed securities program, 24 C.F.R. Part 300, (b) applicable guaranty agreements and contractual agreements between Ginnie Mae and Servicer, and (c) the Ginnie Mae Guide and other applicable guides, and all amendments to any of the foregoing.
Ginnie Mae Guide: The Ginnie Mae Mortgage-Backed Securities Guide, Handbook 5500.3, Rev. 1, as amended from time to time, and any related announcements, directives and correspondence issued by Ginnie Mae.
Ginnie Mae Requirements: Such term includes the Ginnie Mae Contract (whether specific to loanDepot or of general application; provided, however, that agreements, terms, waivers, or provisions specific to loanDepot which have been provided to the Administrative Agent shall supersede those of general application), in addition to the contracts (including any related guaranty agreement, master servicing agreement, master agreement for servicer’s principal and interest custodial account, master agreement for servicer’s escrow custodial account, master custodial agreement, schedule of subscribers and Ginnie Mae Guaranty Agreement or other agreement or arrangement), and all applicable rules, regulations, communications, memoranda and other written directives, procedures, manuals, guidelines, including the Ginnie Mae Eligibility Requirements, and any other information or material incorporated therein, defining the rights and obligations of Ginnie Mae and Servicer, with respect to the Mortgage Loans.
Ginnie Mae Eligibility Requirements: As defined in Section 3.1(a).
Global Note: A Note issued in global form and deposited with or on behalf of the Depository, substantially in the form of one or more of the Global Notes attached hereto as Exhibit A-1 and Exhibit A-3.
Grant, Granting or Granted: Pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Base Indenture. A Grant of collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of such collateral or other agreement or instrument and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Guaranty Agreement: Has the meaning assigned to such term in the Ginnie Mae Contract and refers to the contract between Ginnie Mae and an issuer that establishes the rights and obligations of each party in connection with a Mortgage Pool and the related MBS, which term includes any “Contractual Agreements” (as defined in the Ginnie Mae Contract) in effect with respect to certain Mortgage Pools and the related MBS.
Hedging Instrument: For each Series of Notes, as specified in the related Indenture Supplement.
Hsieh Investors: Each of [***], the JLSSAA Family Trust, 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.
HUD: United States Department of Housing and Urban Development or any successor thereto.
Indebtedness: As defined in the PC Repurchase Agreement.
Indemnified Party: As defined in Section 10.4(a).
Indenture: As defined in the Preamble.
Indenture Supplement: With respect to any Series of Notes, a supplement to this Base Indenture, substantially in the form of Exhibit E, executed and delivered in conjunction with the issuance of such Notes pursuant to Section 6.1, together with any amendment to the Indenture Supplement executed pursuant to Section 12.1 or 12.2, and, all exhibits and schedules thereto.
Indenture Trustee: The Person named as the Indenture Trustee in the Preamble until a successor Indenture Trustee shall have become such pursuant to the applicable provisions of this Base Indenture, and thereafter “Indenture Trustee” means and includes each Person who is then an Indenture Trustee hereunder.
Indenture Trustee Authorized Officer: With respect to the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary, any officer of the Indenture Trustee, Calculation Agent, Paying Agent, Note Registrar or Securities Intermediary assigned to its corporate trust services, including any vice president, assistant vice president, assistant treasurer or trust officer, who is customarily performing functions with respect to corporate trust matters and, with respect to a particular corporate trust matter under this Base Indenture, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject, in each case, having direct responsibility for the administration of this Base Indenture.
Indenture Trustee Fee: The fee payable to the Indenture Trustee hereunder on each Payment Date in a monthly amount as agreed in the Indenture Trustee Fee Letter, which includes the fees to Citibank, and its successors and assigns in its capacities as Calculation Agent, Paying Agent, Securities Intermediary and Note Registrar; provided, that the Indenture Trustee shall also be entitled to receive payment of (i) separate fees and expenses pursuant to Section 11.7 in connection with tax filings made by the Indenture Trustee and (ii) other expenses permitted, in each case, to the extent provided for pursuant to the terms of the Indenture Trustee Fee Letter.
Indenture Trustee Fee Letter: The fee letter agreement between Citibank and the Issuer, dated April 21, 2017, setting forth the fees to be paid to Citibank for the performance of its duties as Indenture Trustee and in all other capacities under the Indenture.
Initial Note Balance: For any Note or for any Class of Notes, the unpaid principal balance of such Note upon the related Issuance Date as specified in the related Indenture Supplement.
Insolvency Event: With respect to a specified Person, (i) an involuntary case or other proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced against any Person or any substantial part of its property, or a petition shall be filed against such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, seeking the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the winding-up or liquidation of such Person’s business and (A) such case or proceeding shall continue undismissed and unstayed and in effect for a period [***] or (B) an order for relief in respect of such Person shall be entered in such case or proceeding under such laws or a decree or order granting such other requested relief shall be granted; or (ii) the commencement by such Person of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for any substantial part of its property, or the making by such Person of any general assignment for the benefit of creditors, or the failure by such Person generally to pay its debts as such debts become due or the admission by such Person of its inability to pay its debts generally as they become due.
Insolvency Proceeding: Any proceeding of the sort described in the definition of Insolvency Event.
Interest Accrual Period: For any Class of Notes and any Payment Date, the period specified in the related Indenture Supplement.
Interest Amount: For each Interest Accrual Period and each Class of Notes, interest accrued on such Class during such period, in an amount equal to interest on such Class’s Note Balance at the applicable Note Interest Rate.
Interest Day Count Convention: For any Series or Class of Notes, the fraction specified in the related Indenture Supplement to indicate the number of days counted in an Interest Accrual Period divided by three hundred sixty (360), for purposes of calculating the Interest Payment Amount for each Interest Accrual Period in respect of such Series or Class.
Interest Payment Amount: For any Series or Class of Notes, as applicable and with respect to any Payment Date:
(i) for any Series or Class of Term Notes, the related Cumulative Interest Shortfall Amount plus the product of: (A) the Note Balance for such Series or Class as of the close of business on the preceding Payment Date; (B) the related Note Interest Rate for such Series or Class and for the related Interest Accrual Period; and (C) the number of days in the related Interest Accrual Period divided by 360; and
(ii) for any Series or Class of Variable Funding Notes, the lesser of (1) the related Cumulative Interest Shortfall Amount plus the product of: (A) the average daily aggregate VFN Principal Balance for such Series or Class during the related Interest Accrual Period (calculated based on the average of the aggregate VFN Principal Balances on each day during the related Interest Accrual Period); (B) the related Note Interest Rate for such Series or Class during the related Interest Accrual Period; and (C) the Interest Day Count Convention specified in the related Indenture Supplement; and (2) such other amount as determined by the Administrative Agent and reported to the Indenture Trustee [***] prior to the Payment Date.
Interested Noteholders: For any Class, any Noteholder or group of Noteholders holding Notes evidencing not less than [***]% of the aggregate Voting Interests of such Class.
Interim Borrowing Base: As of any Interim Borrowing Base Determination Date, with respect to the MSR Notes, an amount equal to the aggregate related Collateral Value (as calculated using clause (c) of the definition of Market Value Percentage) of the Portfolio and, with respect to the PIA VFNs and the SA Notes, the related Collateral Value.
Interim Borrowing Base Determination Date: Provided that the applicable Modified Valuation Trigger is outstanding on such date, the Business Day following the day in which the Modified Valuation Trigger has occurred.
Interim Borrowing Base Payment Date: Provided that the applicable Modified Valuation Trigger is outstanding on such date, the [***] following an Interim Borrowing Base Determination Date; provided, however, an Interim Borrowing Base Payment Date shall not occur if the Modified Valuation relates to an immediately preceding Market Value Report and a Payment Date using a new Market Value Report occurs on or prior to the Interim Borrowing Base Payment Date.
Interim Payment Date: With respect to any Series of Notes, (i) each Interim Borrowing Base Payment Date, and (ii) on any Business Day agreed to among the Issuer, the Administrator,
the Indenture Trustee and the Administrative Agent following [***] written notice from the Issuer or the Administrator to the Administrative Agent and Indenture Trustee. If an Interim Payment Date falls on the same date as a Payment Date, the Interim Payment Date shall be disregarded. No Interim Payment Dates shall occur during the Full Amortization Period.
Interim Payment Date Report: As defined in Section 3.2(c).
Interim Servicer: The transferor of an Acquired MSR acting in its capacity as subservicer for the benefit of the Servicer in connection with the purchase thereof.
Invested Amount: For any Series or Class of Notes, the related Series Invested Amount or Class Invested Amount, as applicable.
Investment Company Act: The Investment Company Act of 1940.
Issuance Date: For any Series of Notes, the date of issuance of such Series, as set forth in the related Indenture Supplement.
Issuer: As defined in the Preamble.
Issuer Affiliate: Any person involved in the organization or operation of the Issuer or an Affiliate of such a person which is also an affiliate within the meaning of Rule 3a-7 promulgated under the Investment Company Act.
Issuer Authorized Officer: Any director or any authorized officer of the Owner Trustee or the Administrator who may also be an officer or employee of loanDepot, its managing member or an Affiliate of loanDepot or its managing member.
Issuer Certificate: A certificate (including an Officer’s Certificate) signed in the name of an Issuer Authorized Officer, or signed in the name of the Issuer by an Issuer Authorized Officer. Wherever this Base Indenture requires that an Issuer Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Base Indenture) may be an employee of loanDepot or an Affiliate.
Issuer Indemnified Party: As defined in Section 9.2(a).
Issuer Tax Opinion: With respect to any undertaking, an Opinion of Counsel to the effect that, for United States federal income tax purposes, (i) such undertaking will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, (ii) if any Notes (other than MBS Advance VFNs) are issued or deemed issued as a result of such undertaking, any Notes (other than MBS Advance VFNs) issued or deemed issued on such date that are not Retained Notes will be debt, (iii) if the MBS Advance VFNs are outstanding for United States federal income tax purposes, such undertaking will not adversely affect the status of the MBS Advance VFNs as debt, and, (iv) if requested by the Administrative Agent, such undertaking will not cause the Noteholders or beneficial owners of Notes that are not Retained Notes to be treated as having sold or exchanged such Notes under section 1001 of the Code (excluding, for this purpose, sales or exchanges of the Notes that result in gain or loss of zero for federal income tax purposes). For any Series of VFNs that are Retained Notes, clauses (ii) and (iv) shall apply to the repurchase agreement financing of such Series of VFNs, if any (rather than to the VFNs subject to such financing).
Key Performance Indicators: The occurrence of any of the following indicators:
(i) the fair market value of the Base Servicing Fee (as determined by the MSR Valuation Agent) is less than $[***];
(ii) the MBS Advance Balance outstanding exceeds [***];
(iii) the Servicer’s DQ3+ Delinquency Ratio is greater than [***]%;
(iv) the Servicer’s DQ2+ Delinquency Ratio is greater than [***]%; or
(v) the Servicer’s DQP Delinquency Ratio is greater than [***]%.
Letter of Extinguishment: As defined in Section 7.4.
Lien: With respect to any property or asset of any Person (a) any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property or asset or (b) the interest of a vendor or lessor arising out of the acquisition of or agreement to acquire such property or asset under any conditional sale agreement, lease purchase agreement or other title retention agreement.
Liquidated Asset: A Mortgage Loan that has been (a) repurchased from a Mortgage Pool underlying Ginnie Mae MBS or (b) released from a Mortgage Pool following (i) a short sale or (ii) a sale of the Mortgaged Property (including REO Property resulting from the foreclosure, or deed in lieu of foreclosure, of the related Mortgaged Property).
Liquidation Proceeds: With respect to any Mortgage Loan that becomes a Liquidated Asset, the portion of Advance Reimbursement Amounts recovered in accordance with the Ginnie Mae Contract from the proceeds received on account of the liquidation of such Mortgage Loan.
Liquidity: With respect to any Person, [***].
Majority Noteholders: With respect to any Series or Class of Notes or all Outstanding Notes, the Noteholders of greater than 50% of the Note Balance of the Outstanding Notes of such Series or Class or of Outstanding Notes, as the case may be, measured by Voting Interests in any case.
Margin Excess: As defined in the PC Repurchase Agreement.
Market Value: As defined in the PC Repurchase Agreement.
Market Value Percentage: Means with respect to the Portfolio Total Spread: [***]
Market Value Report: As defined in Section 3.3(g)(1).
Maximum Permitted Amount: An amount equal to: [***].
Maximum VFN Principal Balance: For any VFN Class, the amount specified in the related Indenture Supplement.
MBS: A mortgage backed security guaranteed by Ginnie Mae pursuant to the Ginnie Mae Contract.
MBS Advance: Any advance disbursed by or on behalf of the Servicer from its own funds with respect to any Mortgage Pool as required by the Ginnie Mae Contract in order to provide for the payment of principal and interest amounts due on the related MBS on its
remittance date under the Ginnie Mae Contract, specifically excluding (a) the Servicer’s use of excess funds from one Mortgage Pool to cover MBS Advances attributable to another Mortgage Pool in either (i) Servicer’s “Ginnie Mae I MBS Program P&I Custodial Account” or (ii) Servicer's “Ginnie Mae II MBS Program P&I Custodial Account,” in either case, to cover shortfalls caused by delinquent loans sharing the same “P&I Custodial Account,” as permitted under Section 15-5(A) of the Ginnie Mae Guide, and (b) any advance disbursed by an Interim Servicer related to Acquired MSRs until such time as Servicer completes reconciliation of such advances with the Interim Servicer and pays the Interim Servicer for such advances.
MBS Advance Balance: On any date of determination, the aggregate monetary value of all out-of-pocket MBS Advances unreimbursed to, or not netted from subsequent collections by, the Servicer reported as a net aggregate balance and indicating the portion of such balance attributable to Mortgage Loans in the Ginnie Mae I MBS Program and the portion of such balance attributable to Mortgage Loans in the Ginnie Mae II MBS Program.
MBS Advance Reimbursement Amounts: Any Advance Reimbursement Amounts related to reimbursements for previously made MBS Advances.
MBS Advance Reimbursement Balance: On any date of determination, the aggregate outstanding balance in U.S. dollars of all MBS Advance Reimbursement Amounts owed with respect to all Portfolio Mortgage Loans.
MBS Advance VFN: Any Series of Variable Funding Notes designated in the related Indenture Supplement as available and solely to be drawn upon following the Servicer’s failure to pay a required MBS Advance, or following any other default by the Servicer under the Ginnie Mae Contract, to make the full required cure payment on the related MBS and preserve the Indenture Trustee’s rights under the Acknowledgment Agreement. As of the Effective Date, the Series 2017-MBSADV1 Notes shall be the sole Series of MBS Advance VFNs.
MBS Entry Date: As defined in the Participation Agreement.
Modified Valuation: The fair market values and the valuation percentages of the Portfolio provided by the MSR Valuation Agent in the Market Value Report assuming that a Modified Valuation Trigger has occurred; provided, however, that in the event that a Modified Valuation Trigger is no longer in effect, the Modified Valuation shall be the fair market values and valuation percentages of the Portfolio provided by the MSR Valuation Agent in the most recent Market Value Report for such Borrowing Base Determination Date assuming that no Modified Valuation Trigger is applicable.
Modified Valuation Trigger: Occurs when [***].
Monthly Payment: With respect to any Mortgage Loan, the scheduled combined payment of principal and interest payable by an Obligor under the related Mortgage Note on each due date.
Mortgage: With respect to a Mortgage Loan, a mortgage, deed of trust or other instrument encumbering a fee simple interest in real property securing a Mortgage Note.
Mortgage Loan: A loan secured by a Mortgage on real property (including REO Property resulting from the foreclosure of the real property that had secured such loan), which loan has been included as a Pooled Mortgage in a Mortgage Pool underlying Ginnie Mae guaranteed MBS; provided, however, that “Mortgage Loans” shall not include any “Excluded Assets.”
Mortgage Note: The note or other evidence of the indebtedness of a mortgagor secured by a Mortgage under a Mortgage Loan and all amendments, modifications and attachments thereto.
Mortgage Pool: A pool or loan package securing a MBS for which the Servicer owns the related MSRs, and that are listed on Schedule I of a Participation Certificate (and not designated therein as Excluded Mortgage Pools). For the avoidance of doubt, the pools listed on Schedule I of a Participation Certificate shall, except for Excluded Mortgage Pools, be deemed to include all mortgage pools securing a MBS for which the Servicer is the Ginnie Mae Issuer of record.
Mortgaged Property: The real property (including all improvements, buildings, fixtures and building equipment thereon and all additions, alterations and replacements made at any time with respect to the foregoing) and all other collateral securing repayment of the related Mortgage Loan.
MSR and Advance Monthly Report: As defined in Section 3.3(f).
MSR Notes: Collectively, the MSR Term Notes and the MSR VFNs.
MSR Term Note: Notes of any Series or Class designated as “Term Notes” in the related Indenture Supplement that are also designated with “GT” in the related Series designation.
MSR Trust & Credit Report: As defined in Section 3.3(h).
MSR Valuation Agent: [***], or any successor third-party mortgage servicing rights valuation agent appointed by loanDepot in accordance with the terms of this Base Indenture.
MSR Valuation Agent Agreement: Statement of Work No. 2, dated as of August 11, 2017, between loanDepot and the MSR Valuation Agent.
MSR Valuation Agent Fee: The fees and expenses payable to the MSR Valuation Agent pursuant to the terms of the MSR Valuation Agent Agreement.
MSR VFN: Any Series of Variable Funding Notes designated in the related Indenture Supplement solely as Series “VF.” As of the Effective Date, the Series 2017-VF1 Notes are the sole Series of MSR VFNs.
MSRs: With respect to the Mortgage Loans, the mortgage servicing rights, including any and all of the following: (a) any and all rights to service the Mortgage Loans; (b) any payments to or monies received by the Servicer for servicing the Mortgage Loans, including, without limitation, any Servicing Fees and Advance Reimbursement Amounts; (c) any rights to Advance Reimbursement Amounts; (d) any late fees, penalties or similar payments with respect to the Mortgage Loans; (e) all agreements or documents creating, defining or evidencing any such servicing rights to the extent they relate to such servicing rights and all rights of the Servicer thereunder; (f) escrow or other similar payments with respect to the Mortgage Loans and any amounts actually collected by the Servicer with respect thereto; (g) all accounts and other rights to payment related to any of the property described in this paragraph; and (h) any and all documents, files, records, servicing files, servicing documents, servicing records, data tapes, computer records, or other information pertaining to the Mortgage Loans or pertaining to the past, present or prospective servicing of the Mortgage Loans; provided, that “MSRs” shall not include Excluded Assets or rights to payment in respect thereof.
NCFA: As defined in the Preamble.
Net Excess Cash Amount: On any Payment Date or Interim Payment Date, the amount of funds available after application of Sections 4.4(a)(i)-(iii), Sections 4.4(b)(i)-(iii), Sections 4.4(c)(i)-(iii), Sections 4.5(a)(1)(i)-(ix), Sections 4.5(a)(2)(i)-(iii), Sections 4.5(a)(3)(i)-(iv) or Sections 4.5(a)(4)(i)-(vi), as applicable, and which are to be distributed to loanDepot pursuant to Section 4.4(a)(iv), Section 4.4(b)(iv), Section 4.4(c)(iv), Section 4.5(a)(1)(x), Section 4.5(a)(2)(iv), Section 4.5(a)(3)( v) or Section 4.5(a)(4)(vii), as applicable.
Nonpublic Personal Information: Any consumer’s nonpublic personal information as defined in the Gramm-Leach-Bliley Act.
Note or Notes: Any note or notes of any Class authenticated and delivered from time to time under this Base Indenture and the related Indenture Supplement including, but not limited to, any Variable Funding Note.
Note Balance: On any date (i) for any Term Note, or for any Series or Class of Term Notes, as the context requires, the Initial Note Balance of such Term Note or the aggregate of the Initial Note Balances of the Term Notes of such Series or Class, as applicable, less all amounts paid to the Noteholder of such Term Note or Noteholders of such Term Notes with respect to principal, and (ii) for any Variable Funding Note, its VFN Principal Balance on such date.
Note Interest Rate: For any Note, or for any Series or Class of Notes as the context requires, the interest rate specified, or calculated as provided in, the related Indenture Supplement.
Note Owner: With respect to a Book Entry Note, the Person who is the owner of such Book Entry Note, as reflected on the books of the Depository, or on the books of a Person maintaining an account with such Depository (directly as a Depository Participant or as an indirect participant, in each case in accordance with the rules of such Depository) and with respect to any Definitive Notes, the Noteholder of such Note.
Note Payment Account: The segregated non-interest bearing trust account or accounts, each of which shall be an Eligible Account, established and maintained pursuant to Section 4.1 and Section 4.8 and entitled “Citibank, N.A., as Indenture Trustee in trust for the Noteholders of the loanDepot GMSR Master Trust MSR Collateralized Notes, Note Payment Account”.
Note Purchase Agreement: An agreement with one or more initial purchasers or placement agents under which the Issuer will sell the Notes to such initial purchaser(s), or contract with such placement agent(s) for the initial private placement of the Notes, in each case as further defined in the related Indenture Supplement.
Note Rating Agency: Any nationally recognized rating agency, and, with respect to any Outstanding Class of Notes, each rating agency, if any, specified in the related Indenture Supplement. References to Note Rating Agencies or “each” or “any” Note Rating Agency in this Base Indenture refer to Note Rating Agencies that were engaged to rate any Notes issued under this Base Indenture, which Notes are still Outstanding.
Note Register: As defined in Section 6.5.
Note Registrar: The Person who keeps the Note Register specified in Section 6.5.
Noteholder: The Person in whose name a Note is registered in the Note Register, except that, solely for the purposes of giving certain consents, waivers, requests or demands as may be specified in this Base Indenture, the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, loanDepot or any Person
that is an Affiliate of either or both of the Issuer and loanDepot, shall not be taken into account in determining whether the requisite percentage necessary to effect any such consent, waiver, request or demand shall have been obtained (unless such Person is the sole holder of the Notes). The Indenture Trustee shall have no responsibility to count any Person as a Noteholder who is not permitted to be so counted hereunder pursuant to the definition of “Outstanding” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is an Affiliate of either or both of the Issuer and loanDepot.
NRSRO: A nationally recognized statistical rating organization that is a credit rating agency that issues credit ratings that the U.S. Securities and Exchange Commission permits other financial firms to use for certain regulatory purposes.
Obligor: Any Person who owes or may be liable for payments under a Mortgage Loan.
OFAC: As defined in Section 10.1(j).
Officer’s Certificate: A certificate signed by an Issuer Authorized Officer and delivered to the Indenture Trustee. Wherever this Base Indenture requires that an Officer’s Certificate be signed also by an accountant or other expert, such accountant or other expert (except as otherwise expressly provided in this Base Indenture) may be an employee of the Servicer.
Opinion of Counsel: A written opinion of counsel reasonably acceptable to the Indenture Trustee, which counsel may, without limitation, and except as otherwise expressly provided in this Base Indenture and except for any opinions related to tax matters or material adverse effects on Noteholders, be an employee of the Issuer, loanDepot or any of their Affiliates.
Optional Payment: As defined in the PC Repurchase Agreement.
Organizational Documents: The Issuer’s Trust Agreement (including the related Owner Trust Certificate).
Original Indenture: As defined in the Preliminary Statement.
Original Participation Certificate: As defined in the Participation Agreement.
Other Loan: Any Mortgage Loan other than an FHA Loan or a VA Loan.
Outstanding: With respect to all Notes and, with respect to a Note or with respect to Notes of any Series or Class means, as of the date of determination, all such Notes theretofore authenticated and delivered under this Base Indenture, except:
(i) any Notes theretofore canceled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation, or canceled by the Issuer and delivered to the Indenture Trustee pursuant to Section 6.9;
(ii) any Notes to be redeemed for whose full payment (including principal and interest) redemption money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Noteholders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given if required pursuant to this Base Indenture, or provision therefore satisfactory to the Indenture Trustee has been made;
(iii) any Notes which are canceled pursuant to Section 7.3; and
(iv) any Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Base Indenture (except with respect to any such Note as to which proof satisfactory to the Indenture Trustee is presented that such Note is held by a person in whose hands such Note is a legal, valid and binding obligation of the Issuer).
For purposes of determining the amounts of deposits, allocations, reallocations or payments to be made, unless the context clearly requires otherwise, references to “Notes” will be deemed to be references to “Outstanding Notes”. In determining whether the Noteholders of the requisite principal amount of such Outstanding Notes have taken any Action hereunder, Notes owned by the Issuer, loanDepot, or any Affiliate of the Issuer or loanDepot (except with respect to any MSR VFNs, PIA VFNs or SA VFNs which have been sold by loanDepot to NCFA under a VFN Repurchase Agreement and any Action to be given or taken by a Noteholder hereunder shall be taken by NCFA, as Repo Buyer under the related VFN Repurchase Agreement) shall be disregarded. In determining whether the Indenture Trustee will be protected in relying upon any such Action, only Notes which an Indenture Trustee Authorized Officer has actual knowledge are owned by the Issuer or loanDepot, or any Affiliate of the Issuer or loanDepot, will be so disregarded. Notes so owned which have been sold pursuant to a repurchase transaction or pledged in good faith may be regarded as Outstanding if the pledgee proves to the satisfaction of the Indenture Trustee the pledgee’s right to act as owner with respect to such Notes and that the Repo Buyer or pledgee is not the Issuer or loanDepot or any Affiliate of the Issuer or loanDepot. Retained Notes shall not constitute Notes “Outstanding” to the extent contemplated by the applicable Indenture Supplement.
Owner: When used with respect to a Note, any related Note Owner.
Owner Trust Certificate: A certificate evidencing a 100% undivided beneficial interest in the Issuer.
Owner Trustee: WSFS, not in its individual capacity but solely as owner trustee under the Trust Agreement, and any successor Owner Trustee thereunder.
Owner Trustee Fee: The annual fee of $[***], paid on the Closing Date and thereafter paid annually on the Payment Date occurring in December of each year.
Owner Trustee Lien: The lien in favor of the Owner Trustee granted pursuant to Section 8.3 of the Trust Agreement, which lien is subordinated to the lien of the Indenture Trustee as provided in such Section 8.3 and is subject and subordinate to any and all rights of Ginnie Mae under the Ginnie Mae Contract or the Acknowledgment Agreement.
P&I Advance PC: The Participation Certificate issued pursuant to the Participation Agreement which evidences the Participation Interest in the MBS Advance Reimbursement Amounts related to the Portfolio.
P&I Advance Reimbursement Available Funds: All Available Funds resulting from Collections on the P&I Advance PC.
P&I Advance Reimbursement Available Funds Account: Has the meaning set forth in Section 4.7.
Parthenon Investors: Each of [***]and each of their respective affiliates.
Participation Agreement: As defined in the PC Repurchase Agreement.
Participation Certificate: As defined in the Participation Agreement.
Participation Certificate Schedule: As of any date, the list attached as Schedule 1 hereto, as it may be amended from time to time in accordance with Section 2.1(b).
Participation Interest: As defined in the Participation Agreement.
Party: Any party to this Indenture.
Paying Agent: The same Person who serves at any time as the Indenture Trustee, or an Affiliate of such Person, as paying agent pursuant to the terms of this Base Indenture.
Payment Date: The 16th day of such month or, if such 16th day is not a Business Day, the next Business Day following such 16th day.
Payment Date Report: As defined in Section 3.2(b).
PC Documents: Collectively, the Participation Certificates and the PC Repurchase Agreement.
PC Repurchase Agreement: The Third Amended and Restated Master Repurchase Agreement, dated as of the date hereof, among loanDepot, as Repo Seller and the Issuer, as Repo Buyer, and consented to by Citibank, as Indenture Trustee, NCFA, as Administrative Agent, and NCFA, as Noteholder of the Outstanding VFNs, pursuant to which loanDepot has sold to the Issuer, all of its right, title and interest in, to and under the Participation Certificates (including all rights to the Portfolio Excess Spread and Advance Reimbursement Amounts related thereto).
Pentalpha: As defined in the Preamble.
Performance Report Card: As defined in the Credit Management Agreement.
Permitted Dispositions: The assignment, transfer, or material delegation of any of the Servicer’s rights or obligations, under the Servicing Contracts which (A) does not violate the terms and conditions of the Ginnie Mae Contract, (B) has been approved by Ginnie Mae, and (C) immediately after giving effect to such removal, such disposition shall not result in an Event of Default and the VFN Principal Balance for any Outstanding VFN shall not exceed the related Maximum Permitted Amount.
Permitted Holders: Any of the Hsieh Investors and the Parthenon Investors.
Permitted Investments: At any time, any one or more of the following obligations and securities:
(i) (a) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, the United States or (b) direct obligations of, or obligations fully guaranteed as to timely payment of principal and interest by, any agency or instrumentality of the United States, provided that such obligations are backed by the full faith and credit of the United States; and provided further that the short-term debt obligations of such agency or instrumentality at the date of acquisition thereof have been rated (x) “A-1” or the equivalent by any NRSRO if such obligations have a maturity of less than sixty (60) days after the date of acquisition or (y) “A-1+” or the equivalent by any NRSRO if such obligations have a maturity greater than sixty (60) days after the date of acquisition;
(ii) repurchase agreements on obligations specified in clause (a) maturing not more than three months from the date of acquisition thereof; provided that the short-term unsecured debt obligations of the party agreeing to repurchase such obligations are at the time rated “A-1+” or the equivalent by any NRSRO;
(iii) certificates of deposit, time deposits and bankers’ acceptances of any U.S. depository institution or trust company incorporated under the laws of the United States or any state thereof and subject to supervision and examination by a federal and/or state banking authority of the United States; provided that the unsecured short-term debt obligations of such depository institution or trust company at the date of acquisition thereof have been rated “A-1+” or the equivalent by any NRSRO;
(iv) commercial paper of any entity organized under the laws of the United States or any state thereof which on the date of acquisition has been rated “A-1+” or the equivalent by any NRSRO;
(v) interests in any U.S. money market fund which, at the date of acquisition of the interests in such fund (including any such fund that is managed by the Indenture Trustee or an Affiliate of the Indenture Trustee or for which the Indenture Trustee or an Affiliate acts as advisor) and throughout the time as the interest is held in such fund, has a rating of “AAAm” or the equivalent by any NRSRO; or
(vi) other obligations or securities that are acceptable to the NRSRO as Permitted Investments hereunder and if the investment of account funds therein will not result in a reduction in the then current rating of the Notes, as evidenced by a letter to such effect from the NRSRO;
provided, that each of the foregoing investments shall mature no later than the Business Day prior to the Payment Date immediately following the date of purchase thereof (other than in the case of the investment of monies in instruments of which the Indenture Trustee is the obligor, which may mature on the related Payment Date), and shall be required to be held to such maturity; and provided further, that each of the Permitted Investments may be purchased by the Indenture Trustee through an Affiliate of the Indenture Trustee.
Permitted Lien: Any liens for taxes, assessments, or similar charges incurred in the ordinary course of business and which are not yet due or as to which the period of grace, if any, related thereto has not expired or which are being contested in good faith and by appropriate proceedings if adequate reserves are maintained to the extent required by GAAP.
Person: Any individual, corporation, estate, partnership, limited liability company, limited liability partnership, joint venture, association, joint-stock company, business trust, trust, unincorporated organization, government or any agency or political subdivision thereof, or other entity of a similar nature.
PIA VFN: Any Series of Variable Funding Notes designated in the related Indenture Supplement as Series “PIAVF.” As of the Effective Date, the Series 2021-PIAVF1 Notes will be the sole Series of PIA VFNs.
PIA VFN Advance Rate Reduction Event: As defined in the related Indenture Supplement, if applicable.
PIH: As defined in the Participation Agreement.
PIH Claim Proceeds: As defined in the Participation Agreement.
Place of Payment: With respect to any Class of Notes issued hereunder, the city or political subdivision so designated with respect to such Class of Notes by the Indenture Trustee.
Plan Asset Regulations: As defined in Section 6.5(k).
Pooled Mortgages: As defined in the Granting Clause.
Portfolio: As defined in the Participation Agreement.
Portfolio Excess Spread: As defined in the Participation Agreement.
Portfolio Mortgage Loan: Any Mortgage Loan included in a Portfolio.
Portfolio Total Spread: As defined in the Participation Agreement.
Predecessor Notes: Of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 6.6 in lieu of a mutilated, lost, destroyed or stolen Note will be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
PTCE: As defined in Section 6.5(k).
Ratings Effect: A reduction, qualification with negative implications or withdrawal of any then current rating of any Outstanding Notes by an applicable Note Rating Agency (other than as a result of the termination of such Note Rating Agency).
Record Date: For the interest or principal payable on any Note on any applicable Payment Date or Interim Payment Date, (i) for a Book Entry Note, the last Business Day before such Payment Date or Interim Payment Date, as applicable, and (ii) for a Definitive Note, the last day of the month preceding such Payment Date or Interim Payment Date, as applicable, unless otherwise specified in the related Indenture Supplement.
Redemption Amount: With respect to a redemption of any Series or Class of Notes by the Issuer pursuant to Section 13.1 or pursuant to the related Indenture Supplement, an amount, which when applied together with other Available Funds allocable to such Series or Class pursuant to Section 4.5, shall be sufficient to pay an amount equal to the sum of (i) the Note Balance of all Outstanding Notes of such Series or Class as of the applicable Redemption Payment Date or Redemption Date, (ii) all accrued and unpaid interest on the Notes of such Series or Class through the day prior to such Redemption Payment Date or Redemption Date, (iii) any and all amounts allocable to such Series or Class and then owing or owing in connection with such redemption to the Indenture Trustee or the Securities Intermediary, from the Issuer pursuant to the terms hereof, and (iv) any and all other amounts allocable to such Series or Class then due and payable hereunder (including all accrued and unpaid Default Supplemental Fees or Step-Up Fees on the Notes of such Series or Class through the day prior to such Redemption Payment Date or Redemption Date and any Specified Call Premium Amount, if any) and, in the case of redemption of all Outstanding Notes, sufficient to authorize the satisfaction and discharge of this Base Indenture pursuant to Section 7.1.
Redemption Date: As defined in Section 13.1.
Redemption Notice: As defined in Section 13.2.
Redemption Payment Date: As defined in Section 13.1.
Redemption Percentage: For any Class, 10% or such other percentage set forth in the related Indenture Supplement.
Regulation AB: Subpart 229.1100 – Asset Backed Securities (Regulation AB), 17 C.F.R. §§ 229.1100 229.1125, as such may be amended from time to time, and subject to such clarification and interpretation as have been provided by the U.S. Securities and Exchange Commission or by the staff of the U.S. Securities and Exchange Commission, or as may be provided by the U.S. Securities and Exchange Commission or its staff from time to time.
Regulation RR: Regulations required under Section 15G of the 1934 Act, added pursuant to Section 941(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
Regulation S: Regulation S promulgated under the 1933 Act or any successor provision thereto, in each case as the same may be amended from time to time; and all references to any rule, section or subsection of, or definition contained in, Regulation S means such rule, section, subsection, definition or term, as the case may be, or any successor thereto, in each case as the same may be amended from time to time.
Regulation S Definitive Note: As defined in Section 5.2(c)(ii).
Regulation S Global Note: As defined in Section 5.2(c)(ii).
Regulation S Note: As defined in Section 5.2(c)(ii).
Regulation S Note Transfer Certificate: As defined in Section 6.5(i)(ii).
REO Property: A Mortgaged Property in which a Mortgage Pool or owner of the related Mortgage Loan has acquired title to such Mortgaged Property through foreclosure or by deed in lieu of foreclosure.
Repo Buyer: The purchaser under a repurchase agreement. With respect to the PC Repurchase Agreement, the Issuer is the Repo Buyer. With respect to the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, NCFA is the Repo Buyer.
Repo Seller: The seller under a repurchase agreement. With respect to the PC Repurchase Agreement, the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, loanDepot is the Repo Seller.
Repurchase Price: The price for which loanDepot is entitled to repurchase a Participation Certificate and all MSRs related thereto from the Issuer under the PC Repurchase Agreement.
Required Available Funds: An amount that, in connection with each Funding Date, shall remain on deposit in the Collection and Funding Account, which amount shall equal (i) the amounts payable in respect of Fees and invoiced or regularly occurring expenses payable from Servicing Spread Available Funds on the next Payment Date, plus (ii) all accrued and unpaid interest due on the Notes on the next Payment Date following such Funding Date, plus (iii) all amounts required to be deposited into each Series Reserve Account, if applicable, on the next Payment Date, plus (iv) all amounts required to be deposited into the Expense Reserve Account on the next Payment Date, plus (v) all amounts required to be deposited into the Credit Manager Expense Reserve Account on the next Payment Date, plus (vi) all accrued and unpaid Default
Supplemental Fees, if any, due on the Notes on the next Payment Date following such Funding Date, plus (vii) all accrued and unpaid Step-Up Fees, if any, due on the Notes on the next Payment Date following such Funding Date, plus (viii) all amounts required to be deposited into the Collection and Funding Account in respect of the Advance Rate Reduction Event Reserve Required Amounts due on the next Payment Date, plus (ix) all amounts required to be deposited into the Collection and Funding Account in respect of any Early Amortization Event Payment Amounts (if any), Scheduled Principal Payment Amounts (if any) or Early Termination Event Payment Amounts (if any) due on the next Payment Date as of such Funding Date. All Required Available Funds shall be reserved from Servicing Spread Available Funds in the Servicing Spread Available Funds Account, except that with respect to clauses (ii), (iii), (vi) and (ix), the portion of such amounts allocable to PIA VFNs or the SA Notes shall be reserved from P&I Advance Reimbursement Available Funds in the P&I Advance Reimbursement Available Funds Account or Servicing Advance Reimbursement Available Funds in the Servicing Advance Reimbursement Available Funds Account, respectively.
Responsible Officer:
(i) When used with respect to the Indenture Trustee, the Calculation Agent, the Note Registrar, the Securities Intermediary or the Paying Agent, an Indenture Trustee Authorized Officer;
(ii) when used with respect to the Issuer, any Issuer Authorized Officer who is an officer of the Issuer or is an officer of the Administrator of the type referred to in clause (iii) below; and
(iii) when used with respect to the Servicer or the Administrator, the chief executive officer, the chief financial officer, any vice president or any managing director of the Servicer or the Administrator, as the case may be.
Restricted Cash: As defined in the Pricing Side Letter (as defined in the PC Repurchase Agreement).
Retained Note: A Note retained by the Issuer or a single beneficial owner of the equity of the Issuer for U.S. federal income tax purposes or an affiliate of the Issuer whose ownership would cause the Notes to be treated as equity under Treasury regulations promulgated under section 385 of the Code.
Revolving Period: For any Series or Class of Notes, the period of time beginning on, and including, the related Issuance Date and ending on, but excluding, commencement of the earliest to occur of (A) Early Amortization Period, (B) the Early Termination Event Period or (C) the Full Amortization Period. For the avoidance of doubt, the occurrence of an Advance Rate Reduction Event shall not cause the termination of the Revolving Period.
Rule 144A: Rule 144A promulgated under the 1933 Act.
Rule 144A Definitive Note: As defined in Section 5.2(c)(i).
Rule 144A Global Note: As defined in Section 5.2(c)(i).
Rule 144A Note: As defined in Section 5.2(c)(i).
Rule 144A Note Transfer Certificate: As defined in Section 6.5(i)(iii).
SA Advance Rate Reduction Event: Either of an SA Term Note Advance Rate Reduction Event or an SA VFN Advance Rate Reduction Event.
SA Notes: Collectively, the SA Term Notes and the SA VFNs.
SA Term Note: Notes of any Series or Class designated as “Term Notes” in the related Indenture Supplement that are also designated with “SA” in the related Series designation.
SA Term Note Advance Rate Reduction Event: As defined in the related Indenture Supplement, if applicable.
SA VFN: Any Series of Variable Funding Notes designated in the related Indenture Supplement as Series “SAVF.” As of the Effective Date, the Series 2021-SAVF1 Notes are the sole Series of SA VFNs.
SA VFN Advance Rate Reduction Event: As defined in the related Indenture Supplement, if applicable.
Sale: Any sale of any portion of the Trust Estate pursuant to Section 8.15.
Sanctions: As defined in Section 10.1(j).
Scheduled Principal Payment Amount: For each Series of Notes and each Payment Date, as and to the extent specified in the related Indenture Supplement.
Secured Party: As defined in the Granting Clause.
Securities Account: As defined in Section 8-501(a) of the UCC.
Securities Intermediary: As defined in Section 8-102(a)(14) of the UCC, and where appropriate, shall mean Citibank or its successor, in its capacity as securities intermediary pursuant to Section 4.9.
Security Entitlement or Securities Entitlements: As defined in Section 8-102(a)(17) of the UCC.
Security Interest: The security interest in the Collateral Granted to the Indenture Trustee pursuant to the Granting Clause.
Series: One or more Class or Classes of Notes assigned a series designation, as specified in the related Indenture Supplement.
Series 2017-MBSADV1 Indenture Supplement: The Amended and Restated Indenture Supplement, dated as of January 25, 2024, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, loanDepot, as Administrator and as Servicer, and NCFA, as Administrative Agent.
Series 2017-MBSADV1 Notes: The Notes issued pursuant to the Series 2017-MBSADV1 Indenture Supplement.
Series 2017-VF1 Indenture Supplement: The Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of January 25, 2024, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, loanDepot, as Administrator and as Servicer, and NCFA, as Administrative Agent.
Series 2017-VF1 Notes: The Notes issued pursuant to the Series 2017-VF1 Indenture Supplement.
Series 2017-VF1 Repurchase Agreement: The Master Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as Repo Seller, NCFA, as Repo Buyer, and NCFA, as Administrative Agent, related to the Series 2017-VF1 Notes.
Series 2021-PIAVF1 Indenture Supplement: The Amended and Restated Indenture Supplement, dated as of January 25, 2024, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, loanDepot, as Administrator and as Servicer, and NCFA, as Administrative Agent.
Series 2021-PIAVF1 Notes: The Notes issued pursuant to the Series 2021-PIAVF1 Indenture Supplement.
Series 2021-PIAVF1 Repurchase Agreement: The Master Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as Repo Seller, NCFA, as Repo Buyer and NCFA, as Administrative Agent, that may be entered into after the date hereof related to the Series 2021-PIAVF1 Notes.
Series 2021-SAVF1 Indenture Supplement: The Amended and Restated Indenture Supplement, dated as of January 25, 2024, by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, loanDepot, as Administrator and as Servicer, and NCFA, as Administrative Agent.
Series 2021-SAVF1 Notes: The Notes issued pursuant to the Series 2021-SAVF1 Indenture Supplement.
Series 2021-SAVF1 Repurchase Agreement: The Master Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as Repo Seller, NCFA, as Repo Buyer and NCFA, as Administrative Agent, related to the Series 2021-SAVF1 Notes.
Series Allocation Percentage: For any Series as of any date of determination:
(i) as of any date prior to the Full Amortization Period, the percentage obtained by dividing (a) the Series Invested Amount for such Series by (b) the aggregate of the Series Invested Amounts for all Outstanding Series; and
(ii) as of any date during the Full Amortization Period, the percentage obtained by dividing (a) the Series Invested Amount for such Series as of the first day of the Full Amortization Period by (b) the aggregate of the Series Invested Amounts as of the first day of the Full Amortization Period for all Outstanding Series.
Series Invested Amount: The VFN Series Invested Amount or the Term Note Series Invested Amount, as applicable.
Series Required Noteholders: For any Series (a) if not specified in the related Indenture Supplement, Noteholders of any Series constituting the Majority Noteholders of such Series and (b) if specified in the related Indenture Supplement, as set forth in the related Indenture Supplement.
Series Reserve Account: An account established for each Series which shall be a non-interest bearing trust account which is an Eligible Account, established and maintained pursuant
to Section 4.1 and Section 4.6, and in the name of the Indenture Trustee and identified by each relevant Series.
Series Reserve Required Amount: For each Series, the amount calculated as described in the related Indenture Supplement, if applicable.
Servicer: loanDepot in all its capacities as an MBS issuer under Ginnie Mae’s MBS program and as the servicer under the Ginnie Mae Contract in servicing the related Portfolio Mortgage Loans, and any successor issuer appointed as servicer under the Ginnie Mae Contract.
Servicer Financial Tests: With respect to the Servicer, means that the Servicer has maintained, at all times since the date of the most recent MSR Trust & Credit Report:
[***].
Servicer Termination Event: With respect to the Ginnie Mae Contract, the occurrence of any events or conditions, and the passage of any cure periods and giving to and receipt by the Servicer of any required notices, as a result of which any Person has the current right to terminate the Servicer as servicer or issuer, as applicable, under the Ginnie Mae Contract.
Servicing Advance: Means any Corporate Advance or Escrow Advance.
Servicing Advance PC: The Participation Certificate issued pursuant to the Participation Agreement which evidences the Participation Interest in the Servicing Advance Reimbursement Amounts related to the Portfolio.
Servicing Advance Reimbursement Amounts: Any Advance Reimbursement Amounts related to reimbursements for previously made Servicing Advances.
Servicing Advance Reimbursement Available Funds: All Available Funds resulting from Collections on the Servicing Advance PC.
Servicing Advance Reimbursement Available Funds Account: Has the meaning set forth in Section 4.7.
Servicing Advance Reimbursement Balance: On any date of determination, the aggregate outstanding balance in U.S. dollars of all Servicing Advance Reimbursement Amounts attributable to Servicing Advances owed with respect to the related Portfolio Mortgage Loans.
Servicing Contract: As defined in the PC Repurchase Agreement.
Servicing Fee: With respect to any Mortgage Loan, the aggregate monthly fee payable to the Servicer in servicing such Mortgage Loan pursuant to the Ginnie Mae Contract, not including any Ancillary Income or Advance Reimbursement Amounts.
Servicing Spread Available Funds: All Available Funds resulting from Collections on the Excess Spread PC.
Servicing Spread Available Funds Account: Has the meaning set forth in Section 4.7.
Servicing Standards: As defined in Section 10.2(i).
Shortfall Amount: As defined in Section 4.5.
Similar Law: As defined in Section 6.5(k).
Single-Family Issuer Minimum Liquidity Requirement: The minimum liquidity requirement set forth in Chapter 3, Section 3-8(B)(1) of the Ginnie Mae Contract whereby the Servicer shall be permitted to exclude the Excluded MSRs; provided, however, that Excluded MSRs shall only include Excluded MSRs that are subject to an Assignment Agreement that has been acknowledged by Ginnie Mae.
Single-Family Issuer Minimum Net Worth Requirement: The minimum net worth requirement set forth in Chapter 3, Section 3-8(A)(1) of the Ginnie Mae Contract whereby the Servicer shall be permitted to exclude the Excluded MSRs; provided, however, that Excluded MSRs shall only include Excluded MSRs that are subject to an Assignment Agreement that has been acknowledged by Ginnie Mae.
Specified Call Premium Amount: As defined in the related Indenture Supplement, if applicable.
STAMP: As defined in Section 6.5(d).
Stated Maturity Date: For each Class of Notes, the date specified in the Indenture Supplement for such Note as the fixed date on which the outstanding principal and all accrued interest for such Series or Class of Notes is due and payable.
Step-Up Fee: As defined in the related Indenture Supplement, if applicable.
Step-Up Fee Rate: As defined in the related Indenture Supplement, if applicable.
Subsidiary: With respect to any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interest 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.
Subservicer: With respect to any MSR, any subservicer engaged by the Servicer to subservice the Mortgage Loans related to such MSR so long as such subservicing arrangement with respect to such MSR is subject to an Eligible Subservicing Agreement.
Subservicer Termination Event: The Servicer has terminated the Person acting as Subservicer and has not either (a) taken over the servicing of such Mortgage Loans itself or (b) (i) within thirty (30) days of such termination identified a replacement subservicer that meets the qualifications of an Eligible Subservicer and (ii) within sixty (60) days following identification of the replacement Eligible Subservicer meeting the requirements of Section 10.2(x) accomplish a transfer of servicing to such replacement Eligible Subservicer.
Supplemental Report: As defined in Section 3.1(a).
Term Note: Notes of any Series or Class designated as “Term Notes” in the related Indenture Supplement.
Term Note Series Available Funds: For each Series of Term Notes as of any Payment Date occurring during the Full Amortization Period, after paying any amounts owed under Section 4.5(a)(4)(i), (ii) and (iii), the sum of the following:
(i) such Series’ Series Allocation Percentage of any income from Permitted Investments in the Collection and Funding Account;
(ii) such Series’ Series Allocation Percentage of all Collections on deposit in the Trust Accounts that are not Series Reserve Accounts (prior to giving effect to any payments on such Payment Date);
(iii) such Series’ Series Allocation Percentage of any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee in writing to be treated as “Available Funds” as of such Payment Date; and
(iv) such other amounts designated as Term Note Series Available Funds for the benefit of such Series of Term Notes in the related Indenture Supplement.
Term Note Series Invested Amount: As of any date of determination, for any Series of Term Notes, the highest Class Invested Amount for any Class of Term Notes included in such Series of Term Notes.
Total Collections: With respect to:
(i) any Interim Payment Date, all Collections on the Participation Certificates received during the related Collection Period and any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Total Collections” for such Interim Payment Date; and
(ii) any Payment Date, (A) all Collections on the Participation Certificates received during the related Collection Period, plus (B) any income from Permitted Investments in Trust Accounts that have been established for the benefit of all Series of Notes, plus (C) any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee to be treated as “Total Collections” for such Payment Date.
Transaction Documents: Collectively, the Indenture, each Note Purchase Agreement, the PC Repurchase Agreement and the related pricing side letter, the Series 2017-VF1 Repurchase Agreement and the related pricing side letter, the Series 2021-PIAVF1 Repurchase Agreement and the related pricing side letter, the Series 2021-SAVF1 Repurchase Agreement and the related pricing side letter, the Participation Agreement, the Acknowledgment Agreement, the Fee Letter, the Participation Certificate Schedule, all Notes, the Trust Agreement, the Administration Agreement, each Indenture Supplement, the Credit Management Agreement, the MSR Valuation Agent Agreement, the Advance Verification Agent Agreement and each of the other documents, instruments and agreements entered into on the date hereof and thereafter in connection with any of the foregoing or the transactions contemplated thereby.
Transfer: As defined in Section 6.5(h). It is expressly provided that the term “Transfer” in the context of the Notes includes, any distribution of the Notes by (i) a corporation to its shareholders, (ii) a partnership to its partners, (iii) a limited liability company to its members, (iv) a trust to its beneficiaries or (v) any other business entity to the owners of the beneficial interests in such entity.
Trust Account or Trust Accounts: Individually, any of the Collection and Funding Account, the Note Payment Account, the Expense Reserve Account, the Series Reserve Account, the Eligible Securities Account, and any other account required under any Indenture Supplement, if any, and collectively, all of the foregoing.
Trust Agreement: The Amended and Restated Trust Agreement, dated the Closing Date, by and between loanDepot and the Owner Trustee.
Trust Estate: The trust estate established under this Base Indenture for the benefit of the Noteholders, which consists of the property described in the Granting Clause, to the extent not released pursuant to Section 7.1.
Trust Property: The property, or interests in property, constituting the Trust Estate from time to time.
UCC: The Uniform Commercial Code, as in effect in the relevant jurisdiction.
United States and U.S.: The United States of America.
United States Person: (i) A citizen or resident of the United States, (ii) a corporation or partnership (or entity treated as a corporation or partnership for United States federal income tax purposes) created or organized in or under the laws of the United States, any one of the states thereof or the District of Columbia, (iii) an estate the income of which is subject to United States federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the administration of such trust, and one or more such United States Persons have the authority to control all substantial decisions of such trust (or, to the extent provided in applicable Treasury regulations, certain trusts in existence on August 20, 1996 which are eligible to elect to be treated as United States Persons).
U.S. Anti-Money Laundering Laws: As defined in Section 10.1(i).
USDA: As defined in the Participation Agreement.
USDA Claim Proceeds: As defined in the Participation Agreement.
USDA Loan Guarantee Document: As defined in the Participation Agreement.
VA: As defined in the Participation Agreement.
VA Claim Proceeds: As defined in the Participation Agreement.
VA Loan: As defined in the Participation Agreement.
VA Loan Guaranty Agreement: As defined in the Participation Agreement.
Variable Funding Note or VFN: Any Note of a Series or Class designated as “Variable Funding Notes” in the related Indenture Supplement.
VFN Draw: For any Funding Date, the amount to be borrowed on such date in relation to any VFNs pursuant to Section 4.3(b).
VFN Funding Source: With respect to a VFN that is not subject to a repurchase agreement, the VFN Noteholder; with respect to a VFN that is subject to a repurchase agreement, the party that is the Repo Seller.
VFN Noteholder: The Noteholder of a VFN.
VFN Note Balance Adjustment Request: As defined in Section 4.3(b)(i).
VFN Principal Balance: On any date, for any VFN or for any Series or Class of VFNs, as the context requires, the unpaid principal balance thereof as of the opening of business on the first day of the then-current Interest Accrual Period for such Series or Class minus any adjustments made to reduce such balance and all amounts previously paid during such Interest Accrual Period on such Note with respect to principal plus the amount of any increase in the unpaid principal balance of such Note during such Interest Accrual Period prior to such date, which amount shall not exceed the Maximum VFN Principal Balance.
VFN Repurchase Agreement: Each of the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement.
VFN Series Available Funds: For each Series of VFNs as of any Payment Date occurring during the Full Amortization Period, after paying any amounts owed under Section 4.5(a)(4)(i), (ii) and (iii), the sum of the following:
(i) such Series’ Series Allocation Percentage of any income from Permitted Investments in the Collection and Funding Account;
(ii) such Series’ Series Allocation Percentage of all Collections on deposit in the Trust Accounts that are not Series Reserve Accounts (prior to giving effect to any payments on such Payment Date);
(iii) such Series’ Series Allocation Percentage of any other funds of the Issuer that the Issuer (or the Administrator on behalf of the Issuer) identifies to the Indenture Trustee in writing to be treated as “Available Funds” as of such Payment Date; and
(iv) such other amounts designated as VFN Series Available Funds for the benefit of such Series of VFNs in the related Indenture Supplement.
VFN Series Invested Amount: As of any date of determination, for any Series of VFNs, the highest Class Invested Amount for any Class of VFNs included in such Series of VFNs.
Voting Interests: The aggregate voting power evidenced by the Notes, and each Outstanding Note’s Voting Interest within its Series equals the percentage equivalent of the fraction obtained by dividing that Note’s Note Balance by the aggregate Note Balance of all Outstanding Notes within such Series; provided, however, that where the Voting Interests are relevant in determining whether the vote of the requisite percentage of Noteholders necessary to effect any consent, waiver, request or demand shall have been obtained, the Voting Interests shall be deemed to be reduced by the amount equal to the Voting Interests (without giving effect to this provision) represented by the interests evidenced by any Note registered in the name of, or in the name of a Person or entity holding for the benefit of, the Issuer, loanDepot or any Person that is an Affiliate of any of the Issuer or loanDepot (except with respect to the Series 2017-VF1 Notes, the Series 2021-PIAVF1 Notes and the Series 2021-SAVF1 Notes which have been sold by loanDepot to NCFA under the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, respectively, and any Action to be given or taken by a Noteholder hereunder shall be taken by NCFA, as Repo Buyer under the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, respectively). The Indenture Trustee shall have no liability for counting a Voting Interest of any
Person that is not permitted to be so counted hereunder pursuant to the definition of “Outstanding” unless a Responsible Officer of the Indenture Trustee has actual knowledge that such Person is the Issuer or loanDepot or an Affiliate of either or both of the Issuer and loanDepot (except with respect to the Series 2017-VF1 Notes, the Series 2021-PIAVF1 Notes and the Series 2021-SAVF1 Notes which have been sold by loanDepot to NCFA under the Series 2017-VF1 Repurchase Agreement, the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, respectively).
All actions, consents and votes under the terms and provisions of the Indenture (other than under any Indenture Supplement related to a specific Series) that require a certain percentage of Voting Interests of all Series or any specified Series of Notes, such as the Series Required Noteholders of Series of Notes that are Variable Funding Notes or the Series Required Noteholders of each Series, as opposed to the Majority Noteholders of all Outstanding Notes shall be deemed by each of the parties hereto and the Noteholders to require such designated percentage of Voting Interests of each Outstanding Series and, in the event any one specified Series fails to provide the required percentage of Voting Interests with respect to any such action, consent or vote, then such action, consent or vote shall be deemed by the parties hereto and the Noteholders to be not approved.
Weighted Average Advance Rate: On any date of determination, with respect to (a) all outstanding Series of MSR VFNs, a percentage equal to the weighted average of the Advance Rates for each Series of MSR VFNs then outstanding (weighted based on the VFN Series Invested Amount of each Series of MSR VFNs on such date), (b) all outstanding Series of PIA VFNs, a percentage equal to the weighted average of the Advance Rates for each Series of PIA VFNs then outstanding (weighted based on the VFN Series Invested Amount of each Series of PIA VFNs on such date) and (c) all outstanding Series of SA VFNs, a percentage equal to the weighted average of the Advance Rates for each Series of SA VFNs then outstanding (weighted based on the VFN Series Invested Amount of each Series of SA VFNs on such dated). With respect to a specific Series of VFNs, the “Advance Rate” shall equal the Advance Rate with respect to the Class within such Series of VFNs with the highest Advance Rate.
WSFS: Wilmington Savings Fund Society, FSB, and any successor or assign thereto.
Section 1.2. Interpretation.
For all purposes of this Base Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) reference to and the definition of any document (including this Base Indenture) shall be deemed a reference to such document as it may be amended or modified from time to time;
(b) all references to an “Article,” “Section,” “Schedule” or “Exhibit” are to an Article or Section hereof or to a Schedule or an Exhibit attached hereto;
(c) defined terms in the singular shall include the plural and vice versa and the masculine, feminine or neuter gender shall include all genders;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Base Indenture shall refer to this Base Indenture as a whole and not to any particular provision of this Base Indenture;
(e) unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or” and the term “including” is not limiting;
(f) in the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein, the words “commencing on” mean “commencing on and including,” the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”;
(g) periods of days referred to in this Base Indenture shall be counted in days unless Business Days are expressly prescribed and references in this Base Indenture to months and years shall be to months and years unless otherwise specified;
(h) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under GAAP;
(i) “including” and words of similar import will be deemed to be followed by “without limitation”;
(j) references to any Transaction Document (including this Base Indenture) and any other agreement shall be deemed a reference to such Transaction Document or agreement as it may be amended, restated, supplemented or otherwise modified from time to time; and
(k) references to any statute, law, rule or regulation shall be deemed a reference to such statute, law, rule or regulation as it may be amended or modified from time to time.
Section 1.3. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Base Indenture, the Issuer will furnish to the Indenture Trustee (1) an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Base Indenture relating to the proposed action have been complied with and (2) except as provided below, an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Base Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. No such certificate or opinion shall be required in any instance where 100% of the Noteholders have consented to the related amendment, modification or action and all of the Noteholders have directed the Indenture Trustee in writing to execute such amendment or supplement, or with respect to any other modification or action, directed the Indenture Trustee in writing to permit such modification or action without receiving such certificate or opinion.
Every certificate with respect to compliance with a condition or covenant provided for in this Base Indenture will include:
(a) a statement to the effect that each individual signing such certificate has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based;
(c) a statement to the effect that such individual has made such examination or investigation as is necessary to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.4. Form of Documents Delivered to Indenture Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, one or more specified Persons, one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to the other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless the Issuer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous. Any such certificate or opinion of, or representation by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Base Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.5. Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action (each, an “Action”) provided by this Base Indenture to be given or taken by Noteholders of any Class may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such Action will become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments and any such record (and the Action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Noteholders signing such instrument or instruments and so voting at any meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, will be sufficient for any purpose of this Base Indenture and (subject to Section 11.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 1.5.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness to such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by an officer of a corporation or a member of a partnership, on behalf of such corporation or partnership, such certificate or affidavit will also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes will be proved by the Note Register.
(d) Any Action by a Noteholder will bind all subsequent Noteholders of such Noteholder’s Note, in respect of anything done or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon whether or not notation of such Action is made upon such Note.
(e) Without limiting the foregoing, a Noteholder entitled hereunder to take any Action hereunder with regard to any particular Note may do so with regard to all or any part of
the principal amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or Action taken by a Noteholder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Noteholders of each such different part.
(f) Without limiting the generality of the foregoing, unless otherwise specified pursuant to one or more Indenture Supplements, a Noteholder, including a Depository that is the Noteholder of a Global Note representing Book-Entry Notes, may make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Base Indenture to be made, given or taken by a Noteholder, and a Depository that is the Noteholder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in or security entitlements to any such Global Note through such Depository’s standing instructions and customary practices.
(g) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in or security entitlements to any Global Note held by a Depository entitled under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any Action provided in this Base Indenture to be made, given or taken by Noteholders. If such a record date is fixed, the Noteholders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such Action, whether or not such Noteholders remain Noteholders after such record date. No such Action shall be valid or effective if made, given or taken more than [***] after such record date.
Section 1.6. Notices, etc., to Indenture Trustee, Issuer, Administrator, the Administrative Agent and Note Rating Agencies.
(a) Any Action of Noteholders or other document provided or permitted by this Base Indenture to be made upon, given or furnished to, or filed with, the Indenture Trustee by any Noteholder or by the Issuer will be sufficient for every purpose hereunder if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail to the Indenture Trustee (or the bank serving as Indenture Trustee in any of its capacities) at its Corporate Trust Office, or the Issuer or the Administrator by the Indenture Trustee or by any Noteholder will be sufficient for every purpose hereunder (except with respect to notices to the Indenture Trustee of an Event of Default as provided in Section 8.1) if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail, addressed to it at (i) Citibank, N.A., Agency and Trust, 388 Greenwich Street Trading, New York, NY 10013, Attention: loanDepot GMSR Master Trust MSR Collateralized Notes, email: [***], in the case of the Indenture Trustee, in any of its capacities, (ii) c/o loanDepot.com, LLC, 6561 Irvine Center Drive, Irvine, CA 92618, Attention: [***], email: [***], in the case of the Servicer and any Subservicer, with copies to loanDepot.com, LLC, 6561 Irvine Center Drive, Irvine, CA 92618, Attention: [***], email: [***], and Attention: General Counsel, email: [***] (iii) to the Administrator (with copy to Wilmington Savings Fund Society, FSB, as Owner Trustee, 500 Delaware Avenue, 11th Floor, Wilmington, Delaware 19801, Attention: Corporate Trust Administration, email: [***]), in the case of the Issuer, (iv) Worldwide Plaza, 309 West 49th Street, New York, New York 10019-7316, Attention: Operations, Email: [***], with copy to: Worldwide Plaza, 309 West 49th Street, New York, New York 10019-7316, Attention: [***], Email: [***], in the case of the Administrative Agent, and (v) Pentalpha Surveillance LLC, 375 N. French Rd., Suite 100, Amherst, New York 14228, Attention: loanDepot GMSR Master Trust, email: [***], in the case of the Credit Manager, or, in any case at any other address previously furnished in writing by any such party to the other parties hereto.
(b) Where this Base Indenture provides for notice to or consent from any Note Rating Agency, such notice or consent will only be required to the extent that any Outstanding Class is then currently being rated at the request of loanDepot, and as specified in the related Indenture Supplement, and if no Outstanding Class is being so rated, including in the event ratings unsolicited by loanDepot are being issued, such notice or consent provisions shall be of no force or effect. In the event that an Indenture Supplement provides that one or more Classes obtain a rating, any notice shall be sufficient for every purpose hereunder (except with respect to notices to the Indenture Trustee of an Event of Default as provided in Section 3.3 or Section 8.1) if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail, addressed to it at the address set forth in the related Indenture Supplement. Failure to give such notice will not affect any other rights or obligations created hereunder and will not under any circumstance constitute an Adverse Effect.
(c) Where a Transaction Document provides for notice or reports to be delivered to Ginnie Mae, such notice or reports shall be deemed delivered if in writing (which shall include electronic transmission) and personally delivered, express couriered, electronically transmitted or mailed by registered or certified mail, addressed to it at Government National Mortgage Association, 425 Third Street, S.W., Suite 500, Washington, D.C. 20024, Attention: Senior Vice President, Office of Issuer and Portfolio Management, Email: [***], Facsimile No.: [***].
Section 1.7. Notices to Noteholders; Waiver.
(a) Where this Base Indenture, any Indenture Supplement or any Note provides for notice to registered Noteholders of any event, such notice will be sufficiently given (unless expressly provided otherwise herein, in such Indenture Supplement or in such Note) if in writing and mailed by overnight courier, sent by facsimile, sent by electronic transmission or personally delivered to each Noteholder of a Note affected by such event, at such Noteholder’s address as it appears in the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, facsimile, electronic transmission or delivery, none of the failure to mail, send by facsimile, send by electronic transmission or deliver such notice, or any defect in any notice so mailed, to any particular Noteholders will affect the sufficiency of such notice with respect to other Noteholders and any notice that is mailed, sent by facsimile, sent by electronic transmission or delivered in the manner herein provided shall conclusively have been presumed to have been duly given.
Where this Base Indenture, any Indenture Supplement or any Note provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver will be the equivalent of such notice. Waivers of notice by Noteholders will be filed with the Indenture Trustee, but such filing will not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(b) In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it will be impractical to mail notice of any event to any Noteholder of a Note when such notice is required to be given pursuant to any provision of this Base Indenture, then any method of notification as will be satisfactory to the Indenture Trustee and the Issuer will be deemed to be a sufficient giving of such notice.
(c) The Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary each agree to accept and act upon instructions or directions pursuant to this Base Indenture or any document executed in connection herewith sent by unsecured email, facsimile transmission or other similar unsecured electronic methods; provided, however, that the Indenture Trustee shall have received an incumbency certificate (attached hereto as Exhibits C1-
C5) listing such person as a person designated to provide such instructions or directions, which incumbency certificate may be amended whenever a person is added or deleted from the listing. If such person elects to give the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary email or facsimile instructions (or instructions by a similar electronic method) and the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary in its discretion elects to act upon such instructions, the Indenture Trustee’s, Calculation Agent’s, Paying Agent’s and Securities Intermediary’s reasonable understanding of such instructions, as applicable, shall be deemed controlling.
(d) None of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be liable for any losses, costs or expenses arising directly or indirectly from the Indenture Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflicting with or being inconsistent with a prior written instruction except as a result of their respective willful misconduct, negligence or bad faith. Any Person providing such instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, including the risk of Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary acting on unauthorized instructions, and the risk of interception and misuse by third parties and acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
Section 1.8. Administrative Agent.
(a) Discretion of Administrative Agent. Any provision providing for the exercise of discretion of the Administrative Agent means that such discretion may be executed in the reasonable discretion of the Administrative Agent. In addition, as further provided in the definition of “Administrative Agent” herein and notwithstanding any other provision in this Base Indenture to the contrary, any approvals, consents, votes or other rights exercisable by the Administrative Agent under this Base Indenture (other than any Indenture Supplement related to a specific Series) shall require the approval, consent, vote or other exercise of rights of each Person specified by name under the definition of “Administrative Agent” or in its stead its Affiliate or successor as noticed to the Indenture Trustee, unless otherwise specified in any Indenture Supplement related to a specific Series.
(b) Nature of Duties. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Base Indenture, a related Indenture Supplement or in the other Transaction Documents. The Administrative Agent shall not have by reason of this Base Indenture or any Transaction Document a fiduciary relationship in respect of any Noteholder. Nothing in this Base Indenture or any of the Transaction Documents, express or implied, is intended to or shall be construed to impose upon the Administrative Agent any obligations in respect of this Base Indenture or any of the other Transaction Documents except as expressly set forth herein or therein. Each Noteholder shall make its own independent investigation of the financial condition and affairs of the Issuer in connection with the purchase of any Note and shall make its own appraisal of the creditworthiness of the Issuer and the value of the Collateral, and the Administrative Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Noteholder with any credit or other information with respect thereto, whether coming into its possession before the Closing Date, as applicable, or at any time or times thereafter.
(c) Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or
in connection with this Base Indenture or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including counsel to the Administrative Agent or counsel to the Issuer), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Noteholder and shall not be responsible to any Noteholder for any statements, certificates, warranties or representations made in or in connection with this Base Indenture or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Base Indenture or the other Transaction Documents on the part of any Person, the existence or possible existence of any default or Event of Default, or to inspect the Collateral or other property (including, the books and records) of any Person; (iv) shall not be responsible to any Noteholder for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Base Indenture or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of the Indenture Trustee's Adverse Claim thereon, or any certificate prepared by the Issuer in connection therewith, nor shall the Administrative Agent be responsible or liable to the Noteholders for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Noteholder shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Base Indenture, the Notes or any of the other Transaction Documents in its own interests as a Noteholder or otherwise.
(d) Reliance. The Administrative Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Base Indenture or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and will not affect the construction hereof.
Section 1.10. Successors and Assigns.
All covenants and agreements in this Base Indenture by the Issuer will bind its successors and assigns, whether so expressed or not. All covenants and agreements of the Indenture Trustee in this Base Indenture shall bind its successors, co-trustees and agents of the Indenture Trustee.
Section 1.11. Severability of Provisions.
In case any provision in this Base Indenture or in the Notes will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
Except as otherwise provided in Section 14.7 hereof, nothing in this Base Indenture or in any Notes, expressed or implied, will give to any Person, other than the parties hereto and their successors hereunder, any Authenticating Agent or Paying Agent, the Note Registrar, the
Securities Intermediary, the Calculation Agent, any Secured Party and the Noteholders of Notes (or such of them as may be affected thereby), any benefit or any legal or equitable right, remedy or claim under this Base Indenture.
Section 1.13. Governing Law.
THIS BASE INDENTURE AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS BASE INDENTURE, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
THE SECURITIES INTERMEDIARY, THE ADMINISTRATOR AND THE ISSUER AGREE THAT THEY WILL NOT CHANGE THE APPLICABLE LAW IN FORCE WITH RESPECT TO ISSUES REFERRED TO IN ARTICLE 2(1) OF THE HAGUE SECURITIES CONVENTION TO A STATE OTHER THAN THE STATE OF NEW YORK.
Section 1.14. Counterparts.
This Base Indenture may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Base Indenture, any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Base Indenture may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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.
Section 1.15. Submission to Jurisdiction; Waivers.
EACH OF THE PARTIES HERETO AND THE NOTEHOLDERS, BY THEIR ACCEPTANCE OF THE NOTES, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS BASE INDENTURE, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH EACH OTHER PARTY HERETO SHALL HAVE BEEN NOTIFIED IN WRITING, EXCEPT THAT WITH RESPECT TO THE INDENTURE TRUSTEE, CALCULATION AGENT, PAYING AGENT AND SECURITIES INTERMEDIARY, SERVICE OF PROCESS MAY ONLY BE MADE AS REQUIRED BY APPLICABLE LAW; PROVIDED THAT, AT THE TIME OF SUCH MAILING, AN ELECTRONIC COPY OF SUCH SERVICE OF PROCESS IS ALSO SENT BY ELECTRONIC MAIL TO THE PERSONS SPECIFIED IN THE ADDRESS FOR NOTICES FOR SUCH PARTY IN SECTION 1.6 HERETO (OR SUCH OTHER PERSONS OF WHICH THE OTHER PARTIES HERETO SHALL HAVE BEEN NOTIFIED);
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION;
(e) WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS BASE INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY; AND
(f) AGREES THAT IN THE EVENT THAT ANY TERM OR PROVISION CONTAINED HEREIN SHALL CONFLICT WITH OR BE INCONSISTENT WITH ANY TERM OR PROVISION CONTAINED IN ANY INDENTURE SUPPLEMENT, THE TERMS AND PROVISIONS OF THE APPLICABLE INDENTURE SUPPLEMENT SHALL GOVERN WITH RESPECT TO THE RELATED SERIES OF NOTES, TO THE EXTENT OF SUCH CONFLICT.
Section 1.16. Electronic Signatures and Transmission.
(a) For purposes of this Base Indenture, any reference to “written” or “in writing” means any form of written communication, including, without limitation, electronic signatures, and any such written communication may be transmitted by Electronic Transmission. “Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one (1) or more electronic networks or databases (including one (1) or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process. The Indenture Trustee is authorized to accept written instructions, directions, reports, notices or other communications delivered by Electronic Transmission and shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by Electronic Transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such Electronic Transmission; and the Indenture Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information to the Indenture Trustee, including, without limitation, the risk of the Indenture Trustee acting on unauthorized instructions, notices,
reports or other communications or information, and the risk of interception and misuse by third parties.
(b) Any requirement in the Indenture or the Notes (other than any Definitive Notes) that a document, including the Notes (other than any Definitive Notes), is to be signed or authenticated by “manual signature” or similar language shall not be deemed to prohibit signature to be by facsimile or electronic signature and shall not be deemed to prohibit delivery thereof by Electronic Transmission.
(c) Notwithstanding anything to the contrary in the Indenture, any and all communications (both text and attachments) by or from the Indenture Trustee that the Indenture Trustee in its sole discretion deems to contain confidential, proprietary and/or sensitive information and sent by Electronic Transmission will be encrypted. The recipient of the Electronic Transmission will be required to complete a one-time registration process.
Article II
The Trust Estate
Section 2.1. Contents of Trust Estate.
(a) Grant of Trust Estate. The Issuer has Granted the Trust Estate to the Indenture Trustee, and the Indenture Trustee has accepted this Grant, pursuant to the Granting Clause.
(b) Addition and Removal of Mortgage Loans and Excluded Assets.
(i) Addition and Removal of the Mortgage Loan Pools and Related MSRs.
(A) From time to time, Mortgage Pools may be added to the Portfolio. At such times as an update to Schedule I of each Participation Certificate is made available to the Issuer pursuant to the PC Repurchase Agreement, loanDepot shall provide such updated schedule to the Indenture Trustee and the Administrative Agent, and any new schedule of the Mortgage Pools (which shall be deemed to include the MSRs related thereto), shall automatically become the new updated schedule thereof.
(B) In connection with any Permitted Disposition made in accordance with the Participation Agreement and this Base Indenture, loanDepot may with prior written notice to the Indenture Trustee and Administrative Agent (which may be effected by delivering a notice and release of lien in the form of Exhibit H), cause the removal of the Mortgage Pools or related MSRs underlying the Participation Certificates. Upon delivery of the foregoing written notice and delivery to the Indenture Trustee of an Officer’s Certificate pursuant to Section 1.3, the Mortgage Pools or related MSRs shall constitute Excluded Assets hereunder and shall no longer constitute Collateral for purposes of this Base Indenture; provided, however, that unless (a) there exists Margin Excess equal to or greater than the applicable Repurchase Price for the related Purchased Assets, or (b) remittance of cash to the Collection and Funding Account or the remittance of applicable Cash Proceeds in accordance with the PC Repurchase Agreement in each case sufficient to avoid a Borrowing Base Deficiency following the removal of such Collateral, loanDepot shall have repurchased such applicable Purchased Assets for the full Repurchase Price and shall have deposited such
Repurchase Price into the Collection and Funding Account, for application in accordance with Section 4.5. Upon such removal the Mortgage Pools and the related Mortgage Loans and MSRs, shall constitute Excluded Assets hereunder and be deemed automatically released from the lien of this Indenture. The Indenture Trustee shall execute and deliver a release of lien (which may be effected by countersigning and returning a notice and release of lien in the form of Exhibit H), and such further instruments as the Issuer or loanDepot shall reasonably request to evidence such release; provided, however, that no Opinion of Counsel shall be required in connection with such act as long as an Officer’s Certificate has been provided to the Indenture Trustee as described in this paragraph. loanDepot shall provide an updated Schedule I to the Participation Certificate to the Indenture Trustee and to the Administrative Agent within [***] of such removal.
(C) In connection with any Mortgage Loan that is being repurchased from a Mortgage Pool underlying Ginnie Mae MBS, loanDepot may cause the removal of such Liquidated Asset and related MSRs underlying the Participation Certificates, and the related Liquidated Assets and MSRs shall no longer constitute Collateral for purposes of the Base Indenture; provided, that loanDepot shall have deposited Liquidation Proceeds equal to the full Repurchase Price and shall have deposited such Liquidation Proceeds into the Collection and Funding Account, for application in accordance with Section 4.5.
(c) Protection of Transfers to, and Back-up Security Interests of Issuer. The Administrator shall take all actions as may be necessary to ensure that the Trust Estate is Granted to the Indenture Trustee pursuant to this Base Indenture. The Administrator, at its own expense, shall make (or cause to be made) all initial filings on or about the Closing Date or Effective Date, as applicable, hereunder and shall forward a copy of such filing or filings to the Indenture Trustee. In addition, and without limiting the generality of the foregoing, the Administrator, at its own expense at the reasonable request of the Administrative Agent, shall prepare and forward for filing, or shall cause to be forwarded for filing, all filings necessary to maintain the effectiveness of any original filings necessary under the relevant UCC to perfect and maintain the first priority status of the Indenture Trustee’s security interest in the Trust Estate, including (i) continuation statements, and (ii) such other statements as may be occasioned by (A) any change of name of any of loanDepot or the Issuer, (B) any change of location of the jurisdiction of any of loanDepot or the Issuer, (C) any transfer of any interest of loanDepot or the Issuer in any item in the Trust Estate or (D) any change under the applicable UCC or other applicable laws. The Administrator shall enforce the Servicer’s obligations pursuant to the PC Repurchase Agreement, on behalf of the Issuer and the Indenture Trustee.
Section 2.2. Asset Files.
(a) Indenture Trustee. The Indenture Trustee agrees to hold, in trust on behalf of the Noteholders, upon the execution and delivery of this Base Indenture (or, in the case of the Participation Certificates, no later than [***] following execution and delivery of this Base Indenture), the following documents relating to each Participation Certificate:
(i) each original Participation Certificate;
(ii) a copy of each Determination Date Report in electronic form listing each Participation Certificate Granted to the Trust Estate and any other information required in any related Indenture Supplement;
(iii) a copy of each Funding Certification delivered by the Administrator, which shall be maintained in electronic format;
(iv) the current Participation Certificate Schedule; and
(v) any other documentation provided for in any Indenture Supplement;
provided that the Indenture Trustee shall have no responsibility to ensure the validity or sufficiency of the Participation Certificates.
(b) Administrator as Custodian. To reduce administrative costs, the Administrator will act as custodian for the benefit of the Noteholders of the following documents relating to each Participation Certificate:
(i) a copy of the related Participation Certificate and each amendment and modification thereto;
(ii) any documents other than those identified in Section 2.2(a) received from or made available by the Servicer, securities administrator or other similar party in respect of such Participation Certificate; and
(iii) any and all other documents that the Issuer or loanDepot, as the case may be, shall keep on file, in accordance with its customary procedures, relating to such Participation Certificate.
(c) Delivery of Updated Participation Certificate Schedule.
(i) The Administrator shall deliver to the Indenture Trustee an updated Participation Certificate Schedule prior to the addition or deletion of any Participation Certificate as Collateral or modification and the Indenture Trustee shall hold the most recently delivered version as the definitive Participation Certificate Schedule. The Administrator represents and warrants, as of the date hereof and as of the date any new Participation Certificate is added as Collateral, that the Participation Certificate Schedule, as it may be updated by the Administrator from time to time and delivered to the Indenture Trustee, is a true, complete and accurate description of the Participation Certificates.
(d) Marking of Records. The Administrator shall ensure that, from and after the time of the sale and/or contribution of the Participation Certificates to the Issuer under the PC Repurchase Agreement and the Grant thereof to the Indenture Trustee pursuant to this Base Indenture, any records (including any computer records and back-up archives) maintained by or on behalf of the Servicer that refer to any Participation Certificate indicate clearly the interest of the Issuer and the Security Interest of the Indenture Trustee in such Participation Certificate and that such Participation Certificate is owned by the Issuer and subject to the Indenture Trustee’s Security Interest. Indication of the Issuer’s ownership of a Participation Certificate and the Security Interest of the Indenture Trustee shall be deleted from or modified on such records when, and only when, such Participation Certificate has been paid in full, repurchased, or assigned by the Issuer and released by the Indenture Trustee from its Security Interest.
(e) Separateness. loanDepot, as Repo Seller, the Issuer and the Administrative Agent each confirm, and each Noteholder is deemed to confirm, that it is treating Citibank, in its capacity as a Custodian, as holding each original Participation Certificate as a “custodian” on behalf of the Issuer as a “customer” in connection with a “securities contract” (as each such term is used in Section 101(22) of the Bankruptcy Code), and each such Person confirms (or is
deemed to confirm, in the case of the Noteholders) that in such capacity Citibank is serving as a “financial institution” (as defined in Section 101(22) of the Bankruptcy Code). Citibank confirms that it is a “commercial bank” (as such term is used in such Section 101(22) and acknowledges such treatment by such Persons.
Section 2.3. Duties of Custodian with Respect to the Asset Files.
(a) Safekeeping. The Indenture Trustee or the Administrator, in its capacity as custodian (each, a “Custodian”) pursuant to Section 2.2(b), shall hold the portion of the Asset Files that it is required to maintain under Section 2.2 in its possession from time to time for the use and benefit of all present and future Noteholders, and maintain such accurate and complete accounts, records and computer systems pertaining to each Asset File as shall enable the Calculation Agent and the Indenture Trustee to comply with this Base Indenture. Each Custodian shall promptly report to the Issuer any failure on its part to hold the Asset Files and maintain its accounts, records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. The Indenture Trustee shall have no responsibility or liability for any actions or omissions of the Administrator in its capacity as Custodian or otherwise.
(b) Maintenance of and Access to Records. Each Custodian shall maintain each portion of the Asset File that it is required to maintain under this Base Indenture at its offices at the Corporate Trust Office (in the case of the Indenture Trustee) or 6561 Irvine Center Drive, Irvine, CA 92618 (in the case of the Servicer) as the case may be, or at such other office as shall be specified to the Indenture Trustee and the Issuer by [***] prior written notice. The Administrator shall take all actions necessary, or reasonably requested by the Administrative Agent, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee, to amend any existing financing statements and continuation statements, and file additional financing statements to further perfect or evidence the rights, claims or security interests of the Indenture Trustee under any of the Transaction Documents (including the rights, claims or security interests of the Issuer under the PC Repurchase Agreement which have been assigned to the Indenture Trustee). The Indenture Trustee and the Administrator, in their capacities as Custodian(s), shall make available to the Issuer, the Calculation Agent, the Administrative Agent, any group of Interested Noteholders and the Indenture Trustee (in the case of the Administrator) or their duly authorized representatives, attorneys or auditors the portion of the Asset Files that it is required to maintain under this Base Indenture and the accounts, books and records maintained by the Indenture Trustee or the Administrator with respect thereto as promptly as reasonably practicable following not less than [***] prior written notice for examination during normal business hours and in a manner that does not unreasonably interfere with such Person’s ordinary conduct of business.
Neither a Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence, willful misconduct or bad faith of such Custodian. Knowledge or information acquired by Citibank in its capacity as Custodian hereunder shall not be imputed to Citibank in any other capacity in which it may act hereunder or to any affiliate of Citibank and vice versa. The Custodian shall be deemed to have the same rights, immunities and protections as the Indenture Trustee hereunder, except that the Custodian shall not be subject to a prudent person standard under any circumstances.
Section 2.4. Application of Trust Money.
All money deposited with the Indenture Trustee or the Paying Agent pursuant to Section 4.2 shall be held in trust and applied by the Indenture Trustee or the Paying Agent, as the case may be, in accordance with the provisions of the Notes and this Base Indenture, to the payment to the Persons entitled thereto, of the principal, interest, fees, costs and expenses (or payments in respect of the VFN Draws or other amount) for whose payment such money has been deposited with the Indenture Trustee or the Paying Agent.
Article III
Administration of Participation Certificate; Reporting to Investors
Section 3.1. Duties of the Calculation Agent.
(a) General. The Calculation Agent shall initially be Citibank. The Calculation Agent, as agent for the Noteholders, shall provide all services necessary to fulfill the role of Calculation Agent as set forth in this Base Indenture.
By [***], or with respect to any reporting related to the SA VFN and the PIA VFN, beginning [***] pursuant to the Series 2021-SAVF1 Repurchase Agreement or the Series 2021-PIAVF1 Repurchase Agreement (or such other time as may be agreed to from time to time by the Servicer, the Administrator, the Indenture Trustee and the Administrative Agent), based upon the information provided to the Indenture Trustee and the Calculation Agent by the Administrator pursuant to the Ginnie Mae Contract and the Transaction Documents, as well as each applicable Determination Date Report, the MSR Trust and Credit Report and all available reports issued by the Servicer, any Advance Verification Report issued by the Advance Verification Agent and the Market Value Report issued by the MSR Valuation Agent as of the Determination Date, the Calculation Agent shall deliver to the Indenture Trustee to make available on its website (as set forth in Section 3.5(a)), on a monthly basis, to Noteholders and each Note Rating Agency, and the Credit Manager, a report setting forth the information set forth below plus any Series-specific reporting items for each Series that are specified in the related Indenture Supplement plus any additional information necessary to prepare the Payment Date Report pursuant to Section 3.2(b), in each case, as provided to the Indenture Trustee and Calculation Agent by the Administrator in the format detailed on Exhibit G (the “Supplemental Report”):
(i) Collateral Value of the Portfolio as of the Determination Date, including the related Market Value Percentage and unpaid principal balance of the Portfolio (the Calculation Agent shall only report the information provided to it);
(ii) the aggregate Available Funds collected, separately identifying the Servicing Spread Available Funds, P&I Advance Reimbursement Available Funds and Servicing Advance Reimbursement Available Funds;
(iii) an indication (yes or no) as to whether a Borrowing Base Deficiency exists as of the close of business on the last day of the related Collection Period preceding the upcoming Payment Date (the Calculation Agent shall only be required to verify the mathematical accuracy of the Calculation of the Borrowing Base Deficiency) with respect to each related Series;
(iv) each Weighted Average Advance Rate to be used in calculating whether a Borrowing Base Deficiency exists and for each Series and Class of the Notes;
(v) the Series Invested Amount and, if applicable, the Class Invested Amount for each Series and Class for the upcoming Payment Date;
(vi) the Interest Payment Amount, the Default Supplemental Fee and the Step-Up Fee for each Class of Outstanding Notes for the upcoming Payment Date, and the Interest Amount, the Cumulative Interest Shortfall Amount, the Cumulative Default Supplemental Fee Shortfall Amount and the Cumulative Step-Up Fee Shortfall Amount for each Class of Notes for the Interest Accrual Period related to the upcoming Payment Date;
(vii) a detailing of the Servicer Financial Tests, the Key Performance Indicators, the Borrowing Base calculation and compliance with the Advance Rate Reduction Events, PIA VFN Advance Rate Reduction Events, SA Advance Rate Reduction Events, Early Amortization Events and Events of Default hereunder, including compliance with financial covenants hereunder and under the PC Repurchase Agreement as of the last day of the immediately preceding month or such applicable reporting period (the Calculation Agent shall only report the information provided to it);
(viii) evidence of the Servicer’s compliance with the following Ginnie Mae servicer eligibility requirements (collectively, the “Ginnie Mae Eligibility Requirements”) (the Calculation Agent shall only report the information provided to it):
(a) its DQ3+ Delinquency Ratio is less than or equal to [***]% or such other threshold required by Ginnie Mae;
(b) its DQ2+ Delinquency Ratio is less than or equal to [***]% or such other threshold required by Ginnie Mae;
(c) its DQP Delinquency Ratio is less than or equal to [***]% or such other threshold required by Ginnie Mae;
(d) its Adjusted Tangible Net Worth is equal to or greater than [***]; and
(e) its Liquidity is equal to or greater than the;
(ix) the portfolio stratification in the format detailed in the Supplemental Report (the Calculation Agent shall only report the information provided to it); and
(x) the outstanding MBS Advance Reimbursement Balance or Servicing Advance Reimbursement Balance, as applicable, with respect to FHA Loans, VA Loans or Other Loans and MBS Advances, Corporate Advances and Escrow Advances, as applicable.
Noteholders of any Series of Term Notes shall receive solely the information provided above and shall not receive the Market Value Report prepared by the MSR Valuation Agent or Advance Verification Report prepared by the Advance Verification Agent.
(b) Termination of Calculation Agent. The Issuer (with the consent of the Majority Noteholders for each Series) may at any time terminate the Calculation Agent without cause upon [***]prior notice. If at any time the Calculation Agent shall fail to resign after written request therefor as set forth in this Section 3.1(b), or if at any time the Calculation Agent shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Calculation
Agent or of its property shall be appointed, or if any public officer shall take charge or Control of the Calculation Agent or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Majority Noteholders of all Outstanding Notes may remove the Calculation Agent and if the same entity serves as both Calculation Agent and Indenture Trustee, the Majority Noteholders of all Outstanding Notes shall also remove the Indenture Trustee as provided in Section 11.9(c). If the Calculation Agent resigns or is removed under the authority of the immediately preceding sentence, then a successor Calculation Agent shall be appointed pursuant to Section 11.9. The Issuer shall give each Note Rating Agency and the Noteholders notice of any such resignation or removal of the Calculation Agent and appointment and acceptance of a successor Calculation Agent. Notwithstanding the foregoing, no resignation, removal or termination of the Calculation Agent shall be effective until the resignation, removal or termination of the predecessor Calculation Agent and until the acceptance of appointment by the successor Calculation Agent as provided herein. Any successor Indenture Trustee appointed shall also be the successor Calculation Agent hereunder, if the predecessor Indenture Trustee served as Calculation Agent and no separate Calculation Agent is appointed. Notwithstanding anything to the contrary herein, the Indenture Trustee may not resign as Calculation Agent unless it also resigns as Indenture Trustee pursuant to Section 11.9(b).
(c) Successor Calculation Agents. Any successor Calculation Agent appointed hereunder shall execute, acknowledge and deliver to the Issuer and to its predecessor Calculation Agent an instrument accepting such appointment under this Base Indenture, and thereupon the resignation or removal of the predecessor Calculation Agent shall become effective and such successor Calculation Agent, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties and obligations of its predecessor under this Base Indenture, with like effect as if originally named as Calculation Agent. The predecessor Calculation Agent shall deliver to the successor Calculation Agent all documents and statements held by it under this Base Indenture. The Issuer and the predecessor Calculation Agent shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Calculation Agent all such rights, powers, duties and obligations. Upon acceptance of appointment by a successor Calculation Agent as provided in this Section 3.1, the Issuer shall mail notice of the succession of such successor Calculation Agent under this Base Indenture to all Noteholders at their addresses as shown in the Note Register and shall give notice by mail to each applicable Note Rating Agency. If the Issuer fails to mail such notice within [***] after acceptance of appointment by the successor Calculation Agent, the successor Calculation Agent shall cause such notice to be mailed at the expense of the Administrator.
Section 3.2. Reports by Administrator and Indenture Trustee.
(a) Determination Dates; Determination Date Reports. The Indenture Trustee shall report to the Administrator, by no later than [***] and with respect to any reporting related to the SA VFN and the PIA VFN, beginning on the [***] the Series 2021-SAVF1 Repurchase Agreement or the Series 2021-PIAVF1 Repurchase Agreement (or such other time as may be agreed to from time to time by Administrator, the Indenture Trustee and the Administrative Agent), the amount of Servicing Spread Available Funds with respect to any MSR VFN, Servicing Advance Reimbursement Available Funds with respect to any SA VFN or P&I Advance Reimbursement Available Funds with respect to any PIA VFN that will be available to be applied to pay principal on any applicable Notes on the upcoming Payment Date or Interim Payment Date. If the Administrator supplies no information to the Indenture Trustee in its Determination Date Report concerning payments on any Variable Funding Note in respect of an Interim Payment Date, then (i) the Indenture Trustee shall apply no Servicing Spread Available Funds to make payment on any MSR Note, unless an Event of Default has occurred and is continuing, in which case the Indenture Trustee shall apply the Available Funds pursuant to Section 4.5(a)(4), (ii) with respect to any PIA VFNs, the Indenture Trustee shall apply all P&I
Advance Reimbursement Available Funds to make payment on the PIA VFN on such Interim Payment Date and (iii) with respect to any SA VFNs, the Indenture Trustee shall apply all Servicing Advance Reimbursement Available Funds to make payment on the SA VFN on such Interim Payment Date but shall not apply any Servicing Advance Reimbursement Available Funds to make payment on any SA Term Note, unless an Early Amortization Event has occurred and is continuing, in which case, the Indenture Trustee shall apply the Available Funds pursuant to Section 4.5(a)(3) or unless an Event of Default has occurred and is continuing, in which case the Indenture Trustee shall apply the Available Funds pursuant to Section 4.5(a)(4).
By no later than [***] and by no later [***] and with respect to any reporting related to the SA VFN and the PIA VFN, [***] under the Series 2021-SAVF1 Repurchase Agreement or the Series 2021-PIAVF1 Repurchase Agreement (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent, the Administrative Agent, each VFN Noteholder and the Paying Agent a report (the “Determination Date Report”) (in electronic form) setting forth each data item required to be reported pursuant to Section 4.3 plus any additional information necessary to prepare the Payment Date Report pursuant to Section 3.2(b).
(b) Payment Date Report. By no later than [***] and with respect to any reporting related to the SA VFN and the PIA VFN, [***] under the Series 2021-SAVF1 Repurchase Agreement or the Series 2021-PIAVF1 Repurchase Agreement, the Indenture Trustee shall make available on its website to the Issuer, the Credit Manager, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent, each VFN Noteholder, Noteholder of any Outstanding Series of Term Notes, each Note Rating Agency and Ginnie Mae a report (the “Payment Date Report”) reporting the following for such Payment Date and the related Collection Period preceding such Payment Date:
(i) the aggregate unpaid principal balance of the Mortgage Loans subject to the Ginnie Mae Contract as reported by the Administrator in the Determination Date Report;
(ii) the amount of Required Available Funds (including the portion allocable from each of Servicing Spread Available Funds, P&I Advance Reimbursement Available Funds and Servicing Advance Reimbursement Available Funds) for such Payment Date;
(iii) the aggregate Available Funds collected (including each of Servicing Spread Available Funds, Servicing Advance Reimbursement Available Funds and P&I Advance Reimbursement Available Funds) identifying the aggregate amount of proceeds collected during the Collection Period preceding the upcoming Payment Date for each Participation Certificate less any amounts distributed on any Interim Payment Date during such Collection Period; and separately identifying any Repurchase Price;
(iv) (A) the aggregate amount of all Collections received and deposited into the Collection and Funding Account during such Collection Period and the portion allocated to the P&I Advance Reimbursement Available Funds Account, the Servicing Advance Reimbursement Available Funds Account and the Servicing Spread Available Funds Account, (B) the aggregate amount of all Collections (1) received with respect to each of MBS Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts during such Collection Period and (2) disbursed from the P&I Advance Reimbursement Available Funds Account to the related PIA VFN Noteholders during such Collection Period or from the Servicing Advance Reimbursement Available Funds Account to the related SA VFN Noteholders during such Collection Period and (C) the Total Collections for such Payment Date;
(v) all VFN Draws paid during such Collection Period separately identifying the portion thereof paid from funds in the Collection and Funding Account and the portion thereof paid using proceeds of fundings of an increase in VFN Principal Balance(s) for each Class of VFNs;
(vi) all VFN Draws that were paid in respect of any Participation Certificate created or acquired on or after the Cut-off Date and sold by loanDepot to the Issuer under the PC Repurchase Agreement during such Collection Period, separately identifying the portion thereof paid from funds on deposit in the Collection and Funding Account related to proceeds of sale of any new Series of Notes and the portion thereof paid using proceeds of an increase in VFN Principal Balance(s) for each Class of VFNs;
(vii) if the Full Amortization Period is in effect, the VFN Series Available Funds for each Series of VFNs and the Term Note Series Available Funds for each Series of Term Notes for the upcoming Payment Date;
(viii) if required by any VFN Noteholder, the aggregate VFN Draws to be drawn on each Class of VFNs Outstanding in respect of such VFN Draw;
(ix) the amount on deposit in any Trust Accounts set forth under any Indenture Supplement as of the close of business on the last Payment Date;
(x) the amount on deposit in the Series Reserve Account for each Series, and, if applicable, the amount the Indenture Trustee is to withdraw from each such Series Reserve Account and deposit into the Note Payment Account on such Payment Date for application to the related Series of Notes;
(xi) the amount on deposit in the Expense Reserve Account, and, if applicable, the amount the Indenture Trustee is to withdraw from the Expense Reserve Account and deposit into the Note Payment Account on such Payment Date for application to the related Series of Notes;
(xii) the amount on deposit in the Credit Manager Expense Reserve Account;
(xiii) the amount of each payment required to be made by the Indenture Trustee or the Paying Agent pursuant to Section 4.5 on such Payment Date;
(xiv) the unpaid Note Balance for each Class and Series of Notes and for all Outstanding Notes in the aggregate (before and after giving effect to any principal payments to be made on such Payment Date);
(xv) a statement indicating whether a Borrowing Base Deficiency existed at such time, any applicable Series with respect which such Borrowing Base Deficiency exists, and whether it will exist as of the close of business on such Payment Date after all payments and distributions described in Section 4.5(a);
(xvi) the Weighted Average Advance Rate for all Outstanding Series of VFNs to be used in calculating whether a Borrowing Base Deficiency exists; and
(xvii) the Series Invested Amount and, if applicable, the Class Invested Amount for each Series and Class for the upcoming Payment Date.
On each day on which a Payment Date Report is to be delivered, loanDepot shall deliver to the Indenture Trustee a certification substantially in the form attached hereto as Exhibit F.
The Payment Date Report shall also state any other information required pursuant to any related Indenture Supplement necessary for the Paying Agent and the Indenture Trustee to make the payments required by Section 4.5(a) and all information necessary for the Indenture Trustee to make available to Noteholders pursuant to Section 3.5.
(c) Interim Payment Date Reports. By no later than [***] e on which there is a VFN Outstanding and on which the Full Amortization Periods have not yet begun, unless the Administrative Agent has agreed otherwise, the Indenture Trustee shall prepare and deliver to the Issuer, the Calculation Agent, the Administrator, the Paying Agent, the Administrative Agent and each VFN Noteholder a report (an “Interim Payment Date Report”) in electronic form, setting forth the following for such Interim Payment Date and the Collection Period preceding such Interim Payment Date:
(i) the amount of Available Funds (including each of Servicing Spread Available Funds, Servicing Advance Reimbursement Available Funds and P&I Advance Reimbursement Available Funds) and Required Available Funds (including the portion allocable from each of Servicing Spread Available Funds, Servicing Advance Reimbursement Available Funds and P&I Advance Reimbursement Available Funds) for such Interim Payment Date;
(ii) (A) the aggregate amount of all Collections received and deposited into the Collection and Funding Account during such Collection Period and the portion allocated to the P&I Advance Reimbursement Available Funds Account, the portion allocated to the Servicing Advance Reimbursement Available Funds Account and the portion allocated to the Servicing Spread Available Funds Account, (B) the aggregate amount of all Collections (1) received with respect to each of MBS Advance Reimbursement Amounts and Servicing Advance Reimbursement Amounts during such Collection Period and (2) disbursed from the P&I Advance Reimbursement Available Funds Account to the related PIA VFN Noteholders during such Collection Period or from the Servicing Advance Reimbursement Available Funds Account to the related SA VFN Noteholders during such Collection Period and (C) the Total Collections for such Payment Date;
(iii) the total of all (A) payments in respect of each Class of Notes (separately identifying interest and principal paid on each Class of Variable Funding Notes) made on the Interim Payment Date that occurred during such Collection Period and (B) all Net Excess Cash Amounts paid to loanDepot as holder of the Owner Trust Certificate on the Interim Payment Date that occurred during such Collection Period;
(iv) the amount on deposit in the Series Reserve Account for each Series and the Series Reserve Required Amount for such Series Reserve Account, if applicable, and the amount to be deposited into each Series Reserve Account on such Interim Payment Date, if applicable;
(v) the amount on deposit in the Expense Reserve Account for each Series and the Expense Reserve Required Amount for the Expense Reserve Account and the amount to be deposited into the Expense Reserve Account on such Interim Payment Date, if applicable;
(vi) the amount on deposit in the Credit Manager Expense Reserve Account and the Credit Manager Expense Reserve Required Amount for the Credit Manager Expense Reserve Account and the amount to be deposited into the Credit Manager Expense Reserve Account on such Interim Payment Date, if applicable
(vii) the amounts required to be deposited on such Interim Payment Date into any other Trust Account referenced in any related Indenture Supplement;
(viii) (A) the Collateral Value as of the end of such Collection Period and as of the close of business on such Interim Payment Date for each Outstanding Series of Notes, and (B) whether a Borrowing Base Deficiency exists; and
(ix) any other amounts specified in an Indenture Supplement.
On each day on which an Interim Payment Date Report is to be delivered, loanDepot shall deliver to the Indenture Trustee a certification substantially in the form attached hereto as Exhibit F.
(d) No Duty to Verify or Recalculate. Notwithstanding anything contained herein to the contrary, none of the Calculation Agent (except as described in Section 3.1(a)), the Indenture Trustee or the Paying Agent shall have any obligation to verify or recalculate any information provided to them by the Administrator or any other Person, and may rely on such information in making the allocations and payments to be made pursuant to Article IV. The Indenture Trustee may conclusively rely without investigation on the most recent Determination Date Report provided to the Indenture Trustee by the Administrator in preparing the Payment Date Reports and Interim Payment Date Reports (if any).
(e) Other Reports from the Administrator.
(1) On or before the [***], the Administrator shall provide to the Administrative Agent a report detailing outstanding Escrow Advances as of the end of the prior calendar month, and a reconciliation to the prior report delivered.
(2) The Administrator shall deliver the Issuer Feedback Report to the Administrative Agent and the Credit Manager on a monthly basis.
Section 3.3. Annual Statement as to Compliance; Notice of Default; Reports.
(a) Annual Officer’s Certificates.
(i) The Administrator shall deliver to each Note Rating Agency, the Indenture Trustee, the Credit Manager and Ginnie Mae, on or before March 31 of each year, an Officer’s Certificate executed by a Responsible Officer of the Administrator, stating that (A) a review of the activities of the Issuer, the Administrator and, in the event that the Administrator is the same entity as the Servicer, the Servicer, during the preceding 12-month period ended December 31 and of its performance under this Base Indenture and the PC Repurchase Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Administrator and, in the event that the Administrator is the same entity as the Servicer, the Servicer, has fulfilled all its obligations under this Base Indenture and the PC Repurchase Agreement in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof.
(ii) If the Administrator is not the same entity as the Servicer, then the Servicer shall deliver to each Note Rating Agency, the Indenture Trustee, the Credit Manager and Ginnie Mae, on or before March 31 of each year, an Officer’s Certificate executed by a Responsible Officer of the Servicer, stating that (A) a review of the activities of the Servicer during the preceding 12-month period ended December 31 and
of its performance under this Base Indenture and the PC Repurchase Agreement has been made under the supervision of the officer executing the Officer’s Certificate, and (B) the Servicer has fulfilled all its obligations under this Base Indenture and the PC Repurchase Agreement in all material respects throughout such period or, if there has been a default in the fulfillment of any such obligation, specifying each such default and the nature and status thereof.
(b) Notice of Advance Rate Reduction Event, Early Amortization Event, Early Termination Event or Event of Default. The Indenture Trustee shall deliver to the Noteholders, the Issuer, the Credit Manager, Ginnie Mae and each Note Rating Agency promptly after a Responsible Officer has obtained actual knowledge thereof, but in no event later than [***] thereafter or such shorter time period as may be required by any Note Rating Agency, written notice specifying the nature and status of any Advance Rate Reduction Event, PIA VFN Advance Rate Reduction Event, SA Advance Rate Reduction Event, Early Amortization Event, Early Termination Event or any Event of Default, as applicable.
(c) Annual Regulation AB/USAP Report. The Servicer shall, on or before the [***], deliver to the Indenture Trustee who shall forward to each Noteholder a copy of the results of any Regulation AB required attestation report or Uniform Single Attestation Program for Mortgage Bankers or similar review conducted on the Servicer (or if the Mortgage Loans are subserviced by an Eligible Subservicer, the Eligible Subservicer) by its accountants and any other reports reasonably requested by the Administrative Agent, including any notices from Ginnie Mae.
(d) Annual Lien Opinion. Within [***] after the end of each fiscal year of the Administrator, the Administrator shall deliver to the Indenture Trustee an Opinion of Counsel from outside counsel to the effect that, subject to Ginnie Mae Requirements, the Indenture Trustee has a perfected security interest in the Participation Certificate identified in an exhibit to such opinion, and that, based on a review of UCC search reports (copies of which shall be attached thereto) and review of other certifications and other materials, there are no UCC-1 filings indicating an Adverse Claim with respect to the Participation Certificate that has not been released.
(e) Other Information. In addition, the Administrator shall forward to the Administrative Agent, upon its reasonable request, such other information, documents, records or reports respecting (i) loanDepot or any of its Affiliates party to the Transaction Documents, (ii) the condition or operations, financial or otherwise, of loanDepot or any of its Affiliates party to the Transaction Documents, (iii) the Ginnie Mae Contract, the related Mortgage Loans and the Participation Certificate or (iv) the transactions contemplated by the Transaction Documents, including access to the Servicer’s management and records. The Administrative Agent shall and shall cause its respective representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) or the Administrative Agent may reasonably determine that such disclosure is consistent with its obligations hereunder; provided, however, that the Administrative Agent may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder.
(f) MSR and Advance Monthly Report. On a monthly basis and in no event later than the [***] (or, if such day is not a Business Day, the Business Day following such day), loanDepot shall deliver to the Indenture Trustee, the Administrative Agent, the Credit Manager, the Advance Verification Agent and the MSR Valuation Agent the monthly data file with respect to all Collateral (the “MSR and Advance Monthly Report”) subject to the terms and conditions of this Base Indenture, which shall include all updates to the Collateral as of the last day of the immediately preceding month.
(g) Market Value Report and Advance Verification Report.
(1) The MSR Valuation Agent shall calculate the Portfolio Excess Spread, the Base Servicing and the fair market value and the valuation percentage of the MSRs on each Borrowing Base Determination Date in accordance with the MSR Valuation Agent Agreement. The MSR Valuation Agent shall deliver to the Administrator, Indenture Trustee (solely for purposes of posting the report covering the most recent reporting period to its website on each Payment Date upon and during the continuence of an Event of Default), Administrative Agent and Credit Manager a monthly report (the “Market Value Report”) no later than the Determination Date prior to the related Payment Date, stating (i) the Portfolio Excess Spread, the Base Servicing and the fair market value and the valuation percentage of the MSRs as of the Borrowing Base Determination Date, and (ii) the fair market value and the valuation percentage of the MSRs, which assumes that [***]as of the most recent Borrowing Base Determination Date (as determined by the MSR Valuation Agent). In the event that the MSR Valuation Agent does not provide its Market Value Report by the Determination Date for [***], the Servicer shall be required to terminate the MSR Valuation Agent and appoint a replacement MSR Valuation Agent who shall be (i) an eligible MSR Valuation Agent and (ii) required to deliver a Market Value Report no later than the [***] immediately following appointment of the replacement MSR Valuation Agent.
(2) The Advance Verification Agent shall verify that Advances are reasonably calculated by the Servicer in accordance with the Advance Verification Agent Agreement. The Advance Verification Agent shall deliver to the Administrator, Servicer, Indenture Trustee (solely for purposes of posting the report covering the most recent reporting period to its website on each Payment Date upon and during the continuence of an Event of Default) and the Administrative Agent a monthly report (the “Advance Verification Report”) no later than the Determination Date prior to the related Payment Date, stating that the Advance Verification Agent produced such Advance Verification Agent Report in conformance with the requirements set forth in the Advance Verification Agent Agreement. In the event that the Advance Verification Agent does not provide its Advance Verification Report by the Determination Date for [***], loanDepot shall be required to terminate the Advance Verification Agent and appoint a replacement Advance Verification Agent who shall be (i) an eligible Advance Verification Agent and (ii) required to deliver an Advance Verification Report no later than the [***] immediately following appointment of the replacement Advance Verification Agent.
(h) MSR Trust & Credit Report. On each Determination Date preceding a Payment Date (or, with respect to Sections 3.3(h)(vi) and 3.3(h)(vii), such later date as set forth below), loanDepot shall deliver to the Administrative Agent, the Credit Manager and Ginnie Mae a report (the “MSR Trust & Credit Report”) which shall contain:
(i) the number of Mortgage Pools constituting part of the Portfolio and Mortgage Loans contained therein subject to this Base Indenture (A) as of the last date of the calendar month preceding the delivery of such MSR Trust & Credit Report and (B) as of the last date of the calendar month for which the last MSR Trust & Credit Report was provided;
(ii) the unpaid principal balance of all Mortgage Pools in the Portfolio;
(iii) the payments made with respect to the existing Mortgage Pools constituting part of the Portfolio and Mortgage Loans contained therein, shown as a change in their unpaid principal balance;
(iv) the payoff with respect to the existing Mortgage Pools constituting part of the Portfolio and Mortgage Loans contained therein, shown as a change in their unpaid principal balance;
(v) the number of Mortgage Pools constituting part of the Portfolio and Mortgage Loans contained therein that have been paid off, including their paid off principal balance, or added to this Base Indenture, in each case since the date of the preceding MSR Trust & Credit Report;
(vi) a detailing of the Servicer Financial Tests, the Key Performance Indicators, the Borrowing Base calculation and compliance with the Advance Rate Reduction Events, PIA VFN Advance Rate Reduction Events, SA Advance Rate Reduction Events, Early Amortization Events, Early Termination Events and Events of Default hereunder as of the last day of the immediately preceding month; and
(vii) evidence of the Servicer’s compliance with the Ginnie Mae Eligibility Requirements.
With respect to Section 3.3(h)(vii), if the Servicer does not receive reconciled delinquency ratio information from Ginnie Mae by the applicable Determination Date, the Servicer shall deliver such calculations of the delinquency ratios as soon as reasonably practicable. With respect to Sections 3.3(h)(vi) and 3.3(h)(vii), to the extent such information relates to financial calculations, such financial calculations shall be based on loanDepot’s most recent available monthly financial statements, which shall be available [***] after the end of each month.
(i) MSR Valuation Agent. loanDepot shall have the right to remove and replace the MSR Valuation Agent without cause with prior written consent of the Administrative Agent.
(j) Credit Manager. The Credit Manager will have the duties specifically set forth in the Credit Management Agreement, including a requirement that it report to Ginnie Mae in accordance with the terms thereof. Prior to the occurrence and continuation of an Event of Default, [***], loanDepot shall have the right to remove and replace the Credit Manager with or without cause, in accordance with the terms of the Credit Management Agreement, with prior written consent of the Administrative Agent and Ginnie Mae. The Credit Manager shall have the right to resign under the circumstances described in the Credit Management Agreement. No resignation or removal of the Credit Manager and no appointment of a successor Credit Manager will become effective until the acceptance of appointment by a successor Credit Manager. Pursuant to the Credit Management Agreement, if no successor Credit Manager shall have been appointed and shall have accepted appointment within [***] after the giving of a notice of resignation, the resigning Credit Manager may petition any court of competent jurisdiction for the appointment of a successor Credit Manager, and the costs of the Credit Manager in connection with such petition shall be reimbursable in accordance with the Credit Management Agreement.
(k) Advance Verification Agent. loanDepot shall have the right to remove and replace the Advance Verification Agent without cause with prior written consent of the Administrative Agent and with prior written notice to Ginnie Mae.
(l) Reports provided to Ginnie Mae. The Administrator will deliver the report it receives from the MSR Valuation Agent pursuant to Section 3.3(g)(1) and the Advance Verification Agent pursuant to Section 3.3(g)(2) to Ginnie Mae.
Section 3.4. Access to Certain Documentation and Information.
Notwithstanding anything to the contrary contained in this Base Indenture, the Servicer, on reasonable prior written notice (of not less than [***]) from the Administrative Agent or the
Indenture Trustee, shall permit the Examining Parties (as defined below), at the expense of the Administrator (except as provided below) to (i) (A) examine all of the Issuer’s books of account, records, reports, and other papers, (B) make copies and extracts therefrom, (C) cause such books to be audited by independent certified public accountants, and (D) discuss the Issuer’s affairs, finances and accounts of the Issuer’s officers and employees, and (ii) (A) examine all of the Servicer’s books of account, records, reports and other papers of the Servicer relating to the Mortgage Loans, the Ginnie Mae Contract and the Participation Certificates, (B) make copies and extracts therefrom, and (C) discuss the Servicer’s affairs, finances and accounts relating to the Mortgage Loans, Ginnie Mae Contract and the Participation Certificates with the Servicer’s officers, employees and independent certified public accountants (all such actions, collectively, an “Examination”). Each Examination shall be open to, and shall be coordinated among, the Administrative Agent, the Indenture Trustee, the MSR Valuation Agent, the Advance Verification Agent and the Credit Manager, along with any agents or independent certified public accountants selected by the Indenture Trustee (all such Persons, collectively, the “Examining Parties”). Each Examination shall be made during the Servicer’s normal business hours, and in a manner that does not unreasonably interfere with the Servicer’s conduct of its regular business. Notwithstanding anything contained in this Section 3.4 to the contrary, the Examining Parties may not conduct an Examination pursuant to the exercise of any right under this Section 3.4, [***] at the expense of the Administrator, except that, if an Event of Default has occurred, is continuing and has not been waived in accordance with the terms hereof during such [***]Examination may be conducted by the Examining Parties during a [***] at the expense of the Administrator (but any audit as a part of any such additional Examination shall be at the sole expense of the party requesting such audit, except in the case of the reasonable and customary out-of-pocket costs and expenses actually incurred by the Indenture Trustee related to such audit, which shall be borne by the Administrator). Prior to payment of the costs of any Examination, loanDepot shall be provided with commercially reasonable documentation of such costs and expenses.
Any such Person seeking access to any information or documentation pursuant to this Section 3.4 has agreed with the Servicer to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and shall upon request execute and deliver a separate confidentiality agreement memorializing such provisions; provided, however, that the Indenture Trustee may disclose on a confidential basis any such information to its agents, attorneys and auditors in connection with the performance of its responsibilities hereunder. Without limiting the generality of the foregoing, any Person seeking access to any information or documentation pursuant to this Section 3.4, shall not disclose information to any of its Affiliates or any of their respective directors, officers, employees and agents that may provide any financing to loanDepot, the Issuer or any of their Affiliates, except in such Affiliate’s capacity as Noteholder. The parties hereto acknowledge that the Indenture Trustee shall not exercise any right pursuant to this Section 3.4 unless directed to do so by a group of Interested Noteholders, and the Indenture Trustee has been provided with indemnity satisfactory to it by such Interested Noteholders. The Indenture Trustee shall have no liability for action or inaction in accordance with the preceding sentence.
Section 3.5. Indenture Trustee to Make Reports Available.
(a) Monthly Reports on Indenture Trustee’s Website. Notwithstanding any other provision of this Base Indenture that requires Citibank, in any capacity, to deliver or provide to any Person the Payment Date Report (and, at its option, any additional files containing the same information in an alternative format), Citibank, in any capacity, shall be entitled, in lieu of such delivery, to make such report available each month to any interested parties, including Ginnie Mae, via the Indenture Trustee’s internet website and such other information as the Indenture Trustee may have in its possession, but only with the use of a password provided by the
Indenture Trustee. In connection with providing access to the Indenture Trustee’s internet website, the Indenture Trustee may require registration and the acceptance of a disclaimer. The Indenture Trustee’s internet website shall initially be located at [***]. Assistance in using the Indenture Trustee’s website can be obtained by calling the Indenture Trustee’s investor relations desk at [***]. Parties that are unable to use the above distribution option are entitled to have a paper copy mailed to them via first class mail or by overnight courier by calling the investor relations desk and requesting a copy. The Indenture Trustee shall have the right to change the way the Payment Date Reports are distributed in order to make such distribution more convenient and/or more accessible to the above parties and the Indenture Trustee shall provide timely and adequate notification to all above parties regarding any such changes. The Indenture Trustee shall not be required to make available via its website any information that in its judgment is confidential, may include any Nonpublic Personal Information or could otherwise violate applicable law, or could result in personal liability to the Indenture Trustee. In addition, the Indenture Trustee shall have no liability for the failure to include or post any information that it has not actually received or is not in a form or format that will allow it to post any such information on its website. All such information provided to the Indenture Trustee for posting to the Indenture Trustee’s website should be sent to [***] with the subject reference “LoanDepot GMSR Master Trust – For Posting.”
(b) Notwithstanding any provision herein to the contrary, including Sections 3.1, 3.2 and 3.5, the Indenture Trustee, the Administrative Agent and any other party hereto shall deliver only the information set forth in Section 3.1(a) (and shall not provide the Market Value Report prepared by the MSR Valuation Agent or the Advance Verification Report prepared by the Advance Verification Agent) to any Noteholder of any Series of Term Notes prior to the occurrence, or following the cure or waiver, of an Event of Default, but will provide such reports during the occurrence and continuance of an Event of Default; and prior to the occurrence, or during the continuation, of an Event of Default, any Determination Date Report, Interim Payment Date Report, Payment Date Report made available to any Noteholders of Outstanding Series of Term Notes by Citibank, in any capacity, pursuant to this Section 3.5 or otherwise hereunder shall be redacted to remove the Market Value Report and the Advance Verification Report.
(c) Annual Reports. Within [***] after the end of each year, the Indenture Trustee shall furnish to each Person (upon the written request of such Person), who at any time during the year was a Noteholder a statement containing (i) information regarding payments of principal, interest and other amounts on such Person’s Notes, aggregated for such year or the applicable portion thereof during which such person was a Noteholder and (ii) such other customary information as may be deemed necessary or desirable for Noteholders to prepare their tax returns. Such obligation shall be deemed to have been satisfied to the extent that substantially comparable information is provided pursuant to any requirements of the Code as are from time to time in force. The Indenture Trustee shall prepare and provide to the Internal Revenue Service and to each Noteholder any information reports required to be provided under federal income tax law, including IRS Form 1099.
Article IV
The Trust Accounts; Payments
Section 4.1. Trust Accounts.
The Indenture Trustee shall establish and maintain, or cause to be established and maintained, (i) the Trust Accounts, each of which shall be an Eligible Account, for the benefit of the Secured Parties (other than the Expense Reserve Account which is for the benefit of the Indenture Trustee and the MSR Valuation Agent), (ii) an Expense Reserve Account, which shall
be an Eligible Account, for the benefit of the Indenture Trustee and the MSR Valuation Agent, and (iii) a Credit Manager Expense Reserve Account, which shall be an Eligible Account in the name of the Indenture Trustee, for the benefit of the Credit Manager. All amounts held in the Trust Accounts and the Credit Manager Expense Reserve Account shall, to the extent permitted by this Base Indenture and applicable laws, rules and regulations, be invested in Permitted Investments by the depository institution or trust company then maintaining such Trust Account or the Credit Manager Expense Reserve Account only upon written direction of the Administrator to the Indenture Trustee, provided that all such investments must be payable on demand or mature no later than the next Interim Payment Date or Payment Date, and shall not be sold or disposed of prior to their maturity; provided, however, that in the event the Administrator fails to provide such written direction to the Indenture Trustee, and until the Administrator provides such written direction, the Indenture Trustee shall not invest funds on deposit in any Trust Account or the Credit Manager Expense Reserve Account. Investments held in Permitted Investments in the Trust Accounts or the Credit Manager Expense Reserve Account, as applicable, shall not be sold or disposed of prior to their maturity, which maturity shall be not less [***] (unless an Event of Default has occurred). The taxpayer identification number associated with each of the Trust Accounts or the Credit Manager Expense Reserve Account, as applicable, shall be that of the Issuer, and the Issuer shall report for federal, state and local income tax purposes the portion of the income, if any, earned on funds in each relevant Trust Account or the Credit Manager Expense Reserve Account, as applicable. The Administrator hereby acknowledges that all amounts on deposit in each Trust Account (excluding investment earnings on deposit in the Trust Accounts) are held in trust by the Indenture Trustee for the benefit of the Secured Parties, subject to any express rights of the Issuer set forth herein, and shall remain at all times during the term of this Base Indenture under the sole dominion and control of the Indenture Trustee. The Administrator hereby acknowledges that all amounts on deposit in the Credit Manager Expense Reserve Account (excluding investment earnings on deposit in the Credit Manager Expense Reserve Account) are held in trust by the Indenture Trustee for the benefit of the Credit Manager and shall remain at all times during the term of this Base Indenture under the sole dominion and control of the Indenture Trustee.
So long as the Indenture Trustee complies with the provisions of this Section 4.1, the Indenture Trustee shall not be liable for the selection of investments or for investment losses incurred thereon by reason of investment performance, liquidation prior to stated maturity or otherwise in any Trust Account or the Credit Manager Expense Reserve Account. So long as the Indenture Trustee complies with the provisions of this Section 4.1, the Indenture Trustee shall have no liability in respect of losses incurred in any Trust Account or the Credit Manager Expense Reserve Account as a result of the liquidation of any investment prior to its stated maturity or the failure to be provided with timely written investment direction.
In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA Patriot Act of the United States (“Applicable Law”), the Indenture Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Indenture Trustee. Accordingly, each of the parties agrees to provide to the Indenture Trustee upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Indenture Trustee to comply with Applicable Law.
All parties to this Base Indenture agree, and each Noteholder of each Series by its acceptance of the related Note will be deemed to have agreed, that such Noteholder shall have no claim or interest in the amounts on deposit in any Trust Account created under this Base Indenture or any related Indenture Supplement related to an unrelated Series except as expressly provided herein or therein.
The Indenture Trustee or its Affiliates are permitted to receive additional compensation that could be deemed to be for the Indenture Trustee’s economic self-interest for (a) serving as investment adviser, administrator, shareholder and/or servicing agent with respect to certain of the Permitted Investments, (b) using Affiliates to effect transactions in certain Permitted Investments and (c) effecting transactions in certain Permitted Investments. Such compensation is not payable or reimbursable under this Base Indenture.
The State of New York is the Securities Intermediary’s jurisdiction for purposes of the UCC, and the laws of the State of New York are applicable to all issues specified in Article 2(1) of the Hague Securities Convention. This Base Indenture is the only “account agreement” in respect of the Trust Accounts.
Section 4.2. Collections and Disbursements of Collections by Servicer.
(a) Daily Deposits of Portfolio Amounts. The Servicer shall remit all Collections in accordance with the respective Participation Certificate, the Participation Agreement and the PC Repurchase Agreement. Any amounts that shall be remitted to the Issuer shall be remitted directly to the Collection and Funding Account (but only to the extent that such funds are payable to Seller free and clear of Ginnie Mae’s rights or other restrictions on transfer under applicable Ginnie Mae guidelines). MBS Advance Reimbursement Amounts shall be allocated to the P&I Advance Reimbursement Available Funds Account of the Collection and Funding Account. Servicing Advance Reimbursement Amounts shall be allocated to the Servicing Advance Reimbursement Available Funds Account of the Collection and Funding Account. All other Collections shall be allocated to the Servicing Spread Available Funds Account of the Collection and Funding Account.
(b) Payment Dates. On each Payment Date, the Indenture Trustee shall transfer from the Collection and Funding Account (and, with respect to MBS Advance Reimbursement Amounts, all such amounts on deposit in the P&I Advance Reimbursement Available Funds Account) to the Note Payment Account all funds then on deposit therein. Except in the case of Redemption Amounts, which may be remitted by the Issuer directly to the Note Payment Account, none of the Servicer, the Administrator, the Issuer, the Calculation Agent nor the Indenture Trustee shall remit to the Note Payment Account, and each shall take all reasonable actions to prevent other Persons from remitting to the Note Payment Account, amounts which do not constitute payments, collections or recoveries received, made or realized in respect of the Participation Certificates or the other Collateral or the initial cash, if any, deposited by the Noteholders with the Indenture Trustee on the date hereof, and the Indenture Trustee will return to the Issuer or the Servicer any such amounts upon receiving written evidence reasonably satisfactory to the Indenture Trustee that such amounts are not a part of the Trust Estate.
(c) Delegated Authority to Make MBS Advances. The Servicer hereby irrevocably appoints the Noteholder(s) of any Outstanding MBS Advance VFN with the authority (but no obligation) to make any MBS Advance on the Servicer’s behalf to the extent the Servicer fails to make any required payments on the related MBS when required to do so pursuant to the Ginnie Mae Contract (each such advance constituting a Buyer MBS Advance). Any payment of MBS Advances by Noteholders of MBS Advance VFNs shall constitute a draw on such VFN and shall increase its VFN Principal Balance by the amount of such draw.
Section 4.3. Fundings.
(a) Funding Certifications. By [***] (or such other time as may be agreed to from time to time by the Administrator, the Indenture Trustee and the Administrative Agent), the Administrator shall prepare and deliver to the Issuer, the Indenture Trustee, the Calculation Agent and the Administrative Agent (and, on any Interim Payment Date, each applicable VFN
Noteholder) a certification in the form of Exhibit I (each, a “Funding Certification”) containing a list of each Funding Condition and presenting a “yes” or “no” answer beside each indicating whether such Funding Condition has been satisfied and shall state in writing the amount to be funded on that Funding Date.
(b) VFN Draws, Discretionary Paydowns and Permanent Reductions.
With respect to each VFN (other than a MBS Advance VFN):
(i) From time to time, the Collateral Value may (A) increase due to (i) the addition of Mortgage Loans to the Portfolio, (ii) increases in the value of the MSRs that underlie the Portfolio or (iii) increases in the Advance Reimbursement Balance as applicable or (B) decrease due to (i) the removal of Excluded Assets in connection with a Permitted Disposition, (ii) decreases in the value of the MSRs that underlie the Portfolio or (iii) reimbursements of, or ineligibility with respect to, the Advance Reimbursement Balance. By no later than 1: [***] during the Revolving Period for such VFN on which any applicable Variable Funding Note Class is outstanding (or after the Revolving Period but prior to an Event of Default with the consent of the Administrative Agent with respect to any, or all, of the VFNs), the Administrator, on behalf of the Issuer, shall deliver, or cause to be delivered, to each Noteholder of such Variable Funding Notes and to the Indenture Trustee a report (a “VFN Note Balance Adjustment Request”) for such upcoming Interim Payment Date or Payment Date, reflecting any increase or decrease in the Collateral Value and shall request an increase or decrease, as applicable, in the related VFN Principal Balance. If an increase in the VFN Principal Balance is necessitated by such change in Collateral Value, the Administrator, on behalf of the Issuer, shall request that either the VFN Principal Balance is adjusted to reflect the increase or that the VFN Funding Sources fund a VFN Principal Balance increase on any Class or Classes of VFNs in the amount(s) specified in such request, which amount shall cause the VFN Principal Balance with respect to the Variable Funding Notes to equal the Maximum Permitted Amount but not exceed the Maximum VFN Principal Balance, and which request shall instruct the Indenture Trustee to recognize such increase in the related VFN Principal Balance. If a decrease in the VFN Principal Balance is necessitated by such change in related Collateral Value, the Administrator, on behalf of the Issuer, shall either adjust or pay down the VFN Principal Balance of each Outstanding Class of VFNs pro rata, based on their respective Note Balances, to remove any Borrowing Base Deficiency. The VFN Note Balance Adjustment Request shall state the amount, of any principal payment to be made on each outstanding Class of VFNs on the upcoming Interim Payment Date or Payment Date.
(ii) If the related Funding Certification indicates that all Funding Conditions have been met and the related VFN Principal Balance shall be increased by a funding from the VFN Funding Sources rather than by an adjustment, and the Administrative Agent agrees, in its sole discretion, the applicable VFN Funding Sources shall fund the VFN Principal Balance increase by remitting pro rata (based on each such VFN Funding Source’s percentage of the related Maximum VFN Principal Balance) the amount stated in the request to the Indenture Trustee [***], whereupon the Indenture Trustee shall adjust its records to reflect the increase of the VFN Principal Balance (which increase shall be the aggregate of the amounts received by the Indenture Trustee from the applicable VFN Funding Sources) by the later of (i) [***], or (ii) [***]after the receipt by the Indenture Trustee of such funds from the VFN Funding Sources, so long as, after such increase, no Borrowing Base Deficiency will exist, determined based on the VFN Note Balance Adjustment Request and Determination Date Report and the related VFN Principal Balance shall not exceed either (x) the related Maximum VFN Principal Balance or (y) the Maximum Permitted Amount. The Indenture Trustee shall be entitled
to rely conclusively on any VFN Note Balance Adjustment Request and the related Determination Date Report and Funding Certification. The Indenture Trustee shall make available on a password-protected portion of its website to the Issuer or its designee and each applicable VFN Funding Source and any related VFN Noteholder, notice on such Funding Date as reasonably requested by the Issuer of any increase in the VFN Principal Balance. The Indenture Trustee shall apply and remit any such payment by the VFN Funding Sources toward the payment of the related VFN Draws as described in Section 4.3(b)(iii). If on any Funding Date there is more than one Series of MSR VFNs, more than one Series of PIA VFNs or more than one Series of SA VFNs, in each case, with Outstanding Variable Funding Notes, VFN Draws on such Funding Date shall be made on a pro rata basis among all applicable Outstanding Series of MSR VFNs, PIA VFNs or SA VFNs, as applicable, in their Revolving Periods (or after the Revolving Period but prior to an Event of Default with the consent of the Administrative Agent with respect to any, or all, of the VFNs) with the same designation based on their respective available Borrowing Capacities, unless otherwise provided in the related Indenture Supplement and any applicable Note Purchase Agreement. If any VFN Funding Source does not fund its share of a requested VFN Draw, one or more other VFN Funding Sources may fund all or a portion of such draw, but no other VFN Funding Source shall have any obligation to do so. Draws on VFNs of different Classes within the same Series need not be drawn pro rata relative to each other.
(iii) Payment of VFN Draws. Subject to its receipt of a duly executed Funding Certification from the Administrator pursuant to Section 4.3(a) indicating that all Funding Conditions have been satisfied the Indenture Trustee shall remit to the Issuer (or the Issuer’s designee) by the close of business New York City time on each Funding Date occurring at any time when not all Outstanding Notes are in Full Amortization Periods, the amount of the aggregate funds received with respect to any VFN Draw to be funded on such Funding Date, using any amounts funded by VFN Funding Sources in respect of such VFN Draw as described in Section 4.3(b).
(c) This Section 4.3 does not relate to the MBS Advance VFN. If there is a MBS Advance, the MBS Advance VFN may be drawn in accordance with the terms of the related Indenture Supplement.
(d) To the extent the Issuance Date for any Series of SA Term Notes or MSR Term Notes occurs on a Business Day other than a Payment Date or an Interim Payment Date, the Indenture Trustee shall pay the proceeds of any such issuance in accordance with the flows of funds provided to the Indenture Trustee at the joint written direction of the Administrator and the Administrative Agent, with the consent of each SA VFN Noteholder or MSR VFN Noteholder, respectively, so long as the Administrator and the Administrative Agent confirm in such direction (x) that the specified flow of funds is correct; (y) whether there will be an Optional Payment made or deemed to have been made in connection with the issuance of such Series, and after giving effect to such payment, if any, the amount of the related VFN Principal Balance; and (z) that after giving effect to the payment of amounts in accordance with the specified flow of funds and the reduction of the applicable VFN Principal Balance, if any, no Borrowing Base Deficiency will exist. No consent or instruction of any Holder of any Series of Term Notes shall be required in connection with payment amounts in accordance such joint written direction for any Series of Term Notes.
Section 4.4. Interim Payment Dates.
(a) On each Interim Payment Date relating to an MSR VFN, the Indenture Trustee shall allocate and pay or deposit (as specified below) all Servicing Spread Available Funds held in the Servicing Spread Available Funds Account of the Collection and Funding Account as set
forth below, in the following order of priority and in the amounts set forth in the Interim Payment Date Report for such Interim Payment Date:
(i) pro rata, to (A) to the extent required pursuant to the related Indenture Supplement, the Series Reserve Account for each Series of MSR VFN, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of such Series Reserve Account shall be equal to the related Series Reserve Required Amount, (B) to the Expense Reserve Account, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of the Expense Reserve Account shall be equal to the related Expense Reserve Required Amount and (C) to the Credit Manager Expense Reserve Account, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of the Credit Manager Expense Reserve Account shall be equal to the related Credit Manager Expense Reserve Required Amount;
(ii) to be retained in the Collection and Funding Account, the Required Available Funds allocable from Servicing Spread Available Funds;
(iii) at the direction of the Administrator, (A) to pay down the VFN Principal Balance of each Outstanding Class of MSR VFNs pro rata, based on their respective Note Balances, to remove any related Borrowing Base Deficiency on an Interim Payment Date that is an Interim Borrowing Base Payment Date and/or such other amount as may be designated by the Administrator or (B) to reserve cash in the Collection and Funding Account; and
(iv) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, it being understood that no such Net Excess Cash Amounts may be paid to loanDepot under this clause (iv) if, after the payment or distribution of such cash amounts, such payment or distribution would result in a Borrowing Base Deficiency (as calculated using clause (x) of such definition); provided, that amounts due and owing to the Owner Trustee and not previously paid hereunder or under any other Transaction Document shall be paid prior to such payment.
(b) On each Interim Payment Date relating to a PIA VFN, the Indenture Trustee shall allocate and pay or deposit (as specified below) all P&I Advance Reimbursement Available Funds held in the P&I Advance Reimbursement Available Funds Account of the Collection and Funding Account as set forth below, in the following order of priority and in the amounts set forth in the Interim Payment Date Report for such Interim Payment Date:
(i) to the extent required pursuant to the related Indenture Supplement, to the Series Reserve Account for each Series of PIA VFN, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of such Series Reserve Account shall be equal to the related Series Reserve Required Amount;
(ii) to be retained in the Collection and Funding Account, the Required Available Funds allocable from P&I Advance Reimbursement Available Funds;
(iii) (A) to pay down the respective VFN Principal Balances of each Outstanding Class of PIA VFNs and (B) at the direction of the Administrator, to reserve cash in the Collection and Funding Account; and
(iv) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, it being understood that no such Net Excess
Cash Amounts may be paid to loanDepot under this clause (iv) if, after the payment or distribution of such cash amounts, such payment or distribution would result in a Borrowing Base Deficiency (calculated using clause (y) of such definition).
(c) On each Interim Payment Date relating to a SA VFN, the Indenture Trustee shall allocate and pay or deposit (as specified below) all Servicing Advance Reimbursement Available Funds held in the Servicing Advance Reimbursement Available Funds Account of the Collection and Funding Account as set forth below, in the following order of priority and in the amounts set forth in the Interim Payment Date Report for such Interim Payment Date:
(i) to the extent required pursuant to the related Indenture Supplement, to the Series Reserve Account for each Series of SA VFN, the amount required to be deposited therein so that, after giving effect to such deposit, the amount standing to the credit of such Series Reserve Account shall be equal to the related Series Reserve Required Amount;
(ii) to be retained in the Collection and Funding Account, the Required Available Funds allocable from Servicing Advance Reimbursement Available Funds;
(iii) at the direction of the Administrator, (A) to pay down the VFN Principal Balance of each Outstanding Class of SA VFNs pro rata, based on their respective Note Balances, to remove any related Borrowing Base Deficiency or (B) to reserve cash in the Collection and Funding Account; and
(iv) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, it being understood that no such Net Excess Cash Amounts may be paid to loanDepot under this clause (iv) if, after the payment or distribution of such cash amounts, such payment or distribution would result in a Borrowing Base Deficiency (calculated using clause (z) of such definition).
Section 4.5. Payment Dates.
(a) On each Payment Date, the Indenture Trustee shall transfer all funds on deposit in the Collection and Funding Account, and all Available Funds on deposit in the Series Reserve Account and the Expense Reserve Account, for such Payment Date to the Note Payment Account. On each Payment Date, the Paying Agent shall apply such Available Funds, VFN Series Available Funds or Term Note Series Available Funds, as applicable, (and other amounts as specifically noted in clause (a)(1)(iv) below) in the following order of priority and in the amounts set forth in the Payment Date Report for such Payment Date:
(1) Prior to commencement of the Full Amortization Period, the Servicing Spread Available Funds shall be allocated in the following order of priority:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, to the Owner Trustee, the Owner Trustee Fee and to the Credit Manager (to the extent not otherwise paid pursuant to the Credit Management Agreement), the Credit Manager Fee payable on such Payment Date, plus, (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit) all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities), the Credit Manager (such expenses of the Credit Manager subject to loanDepot’s prior approval as set forth in the Credit Management Agreement) and the Owner Trustee on such Payment Date;
(ii) to each Person (other than the Indenture Trustee, the Owner Trustee or the Credit Manager) entitled to receive Fees on such date, the Fees payable to any such Person with respect to the related Collection Period or Interest Accrual Period, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit, and allocated pro rata based on the amounts due to each such Person) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer, pursuant to the Transaction Documents or owed or payable by the Indenture Trustee, in its capacity as such, to Ginnie Mae or any other Person pursuant to the Transaction Documents with respect to expenses, indemnification amounts, and other amounts to the extent such expenses, indemnification amounts and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee, and thereafter from other Servicing Spread Available Funds, if necessary;
(iii) to the Noteholders of each Series of MSR Notes, pro rata based on their respective interest entitlement amounts, the Interest Payment Amount (for all Series) and the Step-Up Fee (for all Series, if any) for the current Payment Date, for each such Series; provided that if the amount of Servicing Spread Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay all amounts in respect of any Series pursuant to this clause (iii), the Indenture Trustee shall withdraw from the Series Reserve Account for such Series an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Series in reduction of such shortfall, with all such amounts paid to a Series under this clause (iii) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(iv) pro rata, to (A) the Series Reserve Account for each Series of MSR Notes, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in such Series Reserve Account on such day equals the related Series Reserve Required Amount, if applicable, (B) the Expense Reserve Account, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in the Expense Reserve Account on such day equals the Expense Reserve Required Amount, and (C) the Credit Manager Expense Reserve Account, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in the Credit Manager Expense Reserve Account on such day equals the Credit Manager Expense Reserve Required Amount;
(v) to the Collection and Funding Account, any amount required to be deposited therein so that, after giving effect to such deposit, the amounts designated as “Advance Rate Reduction Event Reserve Amounts” on such Payment Date equal the Advance Rate Reduction Event Reserve Required Amount related to the Collateral for the MSR Notes, if applicable;
(vi) the Early Amortization Event Payment Amount to be paid on such Payment Date, pro rata, on each Series of Outstanding MSR Notes that is in its Early Amortization Period, if applicable;
(vii) to the Noteholders of each Series of Term Notes, pro rata, the Scheduled Principal Payment Amount and Early Termination Event Payment Amount for such Payment Date;
(viii) to the extent necessary to avoid any related Borrowing Base Deficiency, at the direction of the Administrator, either (1) to pay down the respective VFN Principal Balances of each Outstanding Class of MSR VFNs, until the earlier of the removal of any Borrowing Base Deficiency or reduction of all MSR VFN Series’ VFN Principal Balances to zero, paid pro rata among each MSR VFN Class based on their respective Note Balances, or (2) to reserve cash in the Collection and Funding Account;
(ix) pro rata, based on their respective invoiced or reimbursable amounts and without regard to the applicable Expense Limit, (A) to the Indenture Trustee (in all its capacities), the Owner Trustee and the Credit Manager for any amounts payable to the Indenture Trustee, the Owner Trustee and the Credit Manager pursuant to this Base Indenture, the Trust Agreement or the Credit Management Agreement, as applicable, to the extent not paid under clause (i) above, (B) to the MSR Valuation Agent for any amounts payable to the MSR Valuation Agent pursuant to this Base Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9; (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; or (E) any other amounts payable pursuant to this Base Indenture or any other Transaction Document and not paid under clause (ii) above; and
(x) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, to the extent that following any such payment or distribution, there would not be a Borrowing Base Deficiency (as calculated using clause (x) of such definition); provided that amounts due and owing to the Owner Trustee and not previously paid hereunder or under any other Transaction Document shall be paid prior to such payment.
(2) Prior to commencement of the Full Amortization Period, the P&I Advance Reimbursement Available Funds shall be allocated in the following order of priority:
(i) to the Noteholders of each Series of PIA VFNs, pro rata based on their respective interest entitlement amounts, the Interest Payment Amount (for all such Series) due for the current Payment Date, for each such Series; provided that if the amount of P&I Advance Reimbursement Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay all amounts in respect of any Series pursuant to this clause (i), the Indenture Trustee shall withdraw from the Series Reserve Account for such Series an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Series in reduction of such shortfall, with all such amounts paid to a Series under this clause (i) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(ii) to the Series Reserve Account for each Series of PIA VFN, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in such Series Reserve Account on such day equals the related Series Reserve Required Amount, if applicable;
(iii) to pay down the respective VFN Principal Balances of each Outstanding Class of PIA VFNs as set forth in the Indenture Supplement, paid
pro rata among each PIA VFN Class until the reduction of all PIA VFN Series’ VFN Principal Balances to zero; and
(iv) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, to the extent that following any such payment or distribution, there would not be a Borrowing Base Deficiency (calculated using clause (y) of such definition).
(3) Prior to commencement of the Full Amortization Period, the Servicing Advance Reimbursement Available Funds shall be allocated in the following order of priority:
(i) to the Noteholders of each Series of SA Notes, pro rata based on their respective interest entitlement amounts, the Interest Payment Amount (for all such Series) and the Step-Up Fee (for all Series, if any) due for the current Payment Date, for each such Series; provided that if the amount of Servicing Advance Reimbursement Available Funds on deposit in the Collection and Funding Account on such day is insufficient to pay all amounts in respect of any Series pursuant to this clause (i), the Indenture Trustee shall withdraw from the Series Reserve Account for such Series an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Series in reduction of such shortfall, with all such amounts paid to a Series under this clause (i) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(ii) to the Series Reserve Account for each Series of SA Notes, any amount required to be deposited therein so that, after giving effect to such deposit, the amount on deposit in such Series Reserve Account on such day equals the related Series Reserve Required Amount, if applicable;
(iii) to the extent necessary to avoid any related Borrowing Base Deficiency, to pay down the respective VFN Principal Balances of each Outstanding Class of SA VFNs until the earlier of the removal of any Borrowing Base Deficiency or the reduction of all SA VFN Series’ VFN Principal Balances to zero, paid pro rata among each Outstanding Class of SA VFNs based on their respective Note Balances;
(iv) the Early Amortization Event Payment Amount to be paid on such Payment Date, pro rata, on each Series of Outstanding SA Notes that is in its Early Amortization Period, if applicable; and
(v) any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate, to the extent that following any such payment or distribution, there would not be a Borrowing Base Deficiency (calculated using clause (z) of such definition).
(4) On and after the commencement of the Full Amortization Period, all Available Funds for each Series shall be allocated in the following order of priority:
(i) to the Indenture Trustee (in all its capacities), the Indenture Trustee Fee, to the Owner Trustee, the Owner Trustee Fee, to the Credit Manager (to the extent not otherwise paid pursuant to the Credit Management Agreement), the Credit Manager Fee payable on such Payment Date, plus
(without regard, in the case of expenses and indemnification amounts, to the applicable Expense Limit) all reasonable out-of-pocket expenses and indemnification amounts owed to the Indenture Trustee (in all capacities), the Owner Trustee and the Credit Manager on such Payment Date, with respect to expenses and indemnification amounts to the extent such expenses and indemnification amounts have been invoiced or noticed to the Administrator; provided that if the amount of Available Funds is not sufficient to pay the full amounts owed to the Indenture Trustee and the Credit Manager pursuant to this clause (i), (A) the Indenture Trustee shall withdraw from the Expense Reserve Account an amount equal to the lesser of the amount then on deposit in the Expense Reserve Account and the amount of such shortfall for disbursement to the Indenture Trustee in reduction of such shortfall, and (B) the Indenture Trustee shall withdraw from the Credit Manager Expense Reserve Account an amount equal to the lesser of the amount then on deposit in the Credit Manager Expense Reserve Account and the amount of such shortfall for disbursement to the Credit Manager in reduction of such shortfall;
(ii) to each Person (other than the Indenture Trustee, the Owner Trustee or the Credit Manager) entitled to receive Fees on such date, the Fees payable to any such Person with respect to the related Collection Period or Interest Accrual Period, as applicable, plus (subject, in the case of expenses and indemnification amounts, to the applicable Expense Limit and allocated pro rata based on the amounts due to each such Person) all reasonable out-of-pocket expenses and indemnification amounts owed for Administrative Expenses of the Issuer with respect to expenses, indemnification amounts and other amounts to the extent such expenses, indemnification amounts and other amounts have been invoiced or noticed to the Administrator and the Indenture Trustee;
(iii) if an MBS Advance VFN has a positive VFN Principal Balance, all remaining Available Funds shall be allocated in the following order of priority:
(A) to the Noteholders of such MBS Advance VFNs, pro rata, based on their respective interest entitlement amounts, (a) the related Cumulative Interest Shortfall Amounts attributable to unpaid Interest Amounts from prior Payment Dates, until such Cumulative Interest Shortfall Amounts have been reduced to zero, and (b) the Interest Amount for the current Payment Date, for each Class of MBS Advance VFNs, until such Interest Amount has been paid in full; and
(B) to pay down the respective VFN Principal Balances of each Outstanding Class of MBS Advance VFNs, until such VFN Principal Balances have been reduced to zero.
(iv) thereafter, the VFN Series Available Funds or the Term Note Series Available Funds, as applicable, for each Outstanding Series of Notes shall be allocated in the following order of priority (or in such other order of priority as specified in the related Indenture Supplement):
(A) to pay any costs, reasonable out-of-pocket expenses and indemnification amounts owed with respect to any Hedging Instruments for each such outstanding Series of VFNs or Term Notes, as applicable;
(B) to the Noteholders of such Series, pro rata, (a) the related Cumulative Interest Shortfall Amounts attributable to unpaid Interest Amounts (for all Series) from prior Payment Dates, and (b) the Interest Amounts (for all Series) for the current Payment Date, for each such Class; provided that if the amount of related VFN Series Available Funds or Term Note Series Available Funds, as applicable, is insufficient for any Class pursuant to this clause (iv)(B), the Indenture Trustee shall withdraw from the Series Reserve Account for such Class an amount equal to the lesser of the amount then on deposit in such Series Reserve Account and the amount of such shortfall for disbursement to the Noteholders of such Class in reduction of such shortfall, with all such amounts paid to a Series under this clause (iv)(B) allocated among the Classes of such Series as provided in the related Indenture Supplement;
(C) to the Noteholders of such Series, pro rata, remaining VFN Series Available Funds or Term Note Series Available Funds, as applicable, up to the aggregate unpaid Note Balances to reduce Note Balances in the order specified in the related Indenture Supplement, until all such Note Balances have been reduced to zero;
(D) to the Noteholders of such Series, pro rata, remaining VFN Series Available Funds or Term Note Series Available Funds, as applicable, first, the Step-Up Fee and thereafter the Default Supplemental Fee for the current Payment Date, with all such amounts paid to a Series under this clause (iv)(D) allocated among the Classes of such Series as provided in the related Indenture Supplement; and
(E) allocated to any other Series in accordance with the applicable priority of payments for such other Series, to the extent the VFN Series Available Funds or the Term Note Series Available Funds, as applicable, for such other Series were insufficient to make such payments, allocated among such other Series pro rata based on the amounts of their respective shortfalls;
(v) out of all remaining VFN Series Available Funds and Term Note Series Available Funds for all Series, pro rata, based on their respective due and payable and invoiced or reimbursable amounts and without regard to the applicable Expense Limit, (A) to the MSR Valuation Agent for any amounts payable to the MSR Valuation Agent pursuant to this Base Indenture to the extent not paid under clause (ii) above, (B) to the Advance Verification Agent for any amounts payable to the Advance Verification Agent pursuant to this Base Indenture to the extent not paid under clause (ii) above, (C) to the Securities Intermediary for any indemnification amounts owed to the Securities Intermediary as described in Section 4.9, and (D) all Administrative Expenses of the Issuer not paid under clause (ii) above; provided that if the amount of related VFN Series Available Funds or Term Note Series Available Funds, as applicable, is not sufficient to pay the full amounts owed to the MSR Valuation Agent or Advance Verification Agent pursuant to subclause (A) or (B), respectively, of this clause (v), the Indenture Trustee shall withdraw from the Expense Reserve Account an amount equal to the lesser of the amount then on deposit in the Expense Reserve Account and the amount of such shortfall for disbursement to the MSR Valuation Agent and the Advance Verification Agent in reduction of such shortfall;
(vi) out of all remaining VFN Series Available Funds and Term Note Series Available Funds for all Series, to pay any other amounts required to be
paid before Net Excess Cash Amounts pursuant to one or more Indenture Supplements; and
(vii) out of all remaining VFN Series Available Funds and Term Note Series Available Funds for all Series, any Net Excess Cash Amount to or at the written direction of loanDepot as holder of the Owner Trust Certificate.
The amounts payable under clause (i) or (ii) of Section 4.5(a)(4) above shall be paid out of each Series’ VFN Series Available Funds or Term Note Series Available Funds, as applicable, based on such Series’ Series Allocation Percentage of such amounts payable on such Payment Date. If, on any Payment Date, the VFN Series Available Funds or Term Note Series Available Funds, as applicable, for any Series is less than the amount payable under clauses (i) and (ii) above out of such Series’ VFN Series Available Funds or Term Note Series Available Funds, as applicable (any such difference, a “Shortfall Amount”), the amount of such Shortfall Amount shall be paid out of the VFN Series Available Funds or Term Note Series Available Funds, as applicable, for each Series that does not have a Shortfall Amount, in each case, based on such Series’ relative Series Invested Amount.
(b) On each Payment Date, the Indenture Trustee shall instruct the Paying Agent to pay to, or as directed by, each Noteholder of record on the related Record Date the amount to be paid to such Noteholder in respect of the related Note on such Payment Date by wire transfer, appropriate instructions will be provided to the Indenture Trustee in writing no later [***] prior to the related Payment Date.
(c) Notwithstanding anything to the contrary in this Base Indenture, the Indenture Supplement providing for the issuance of any Series of Notes within which there are one or more Classes of Notes may specify the allocation of payments among such Classes payable pursuant to Section 4.5, providing for the subordination of such payments on the subordinated Series or Class, and any such provision in such an Indenture Supplement shall have the same effect as if set forth in this Base Indenture and any related Indenture Supplement, all to the extent an Issuer Tax Opinion is delivered as to such Series at its issuance.
(d) On each Payment Date, the Indenture Trustee shall make available, in the same manner as described in Section 3.5, a report stating all amounts paid to the Indenture Trustee (in all its capacities) pursuant to this Section 4.5 on such Payment Date.
Section 4.6. Series Reserve Account; Expense Reserve Account; Credit Manager Expense Reserve Account.
(a) Series Reserve Account.
(i) Pursuant to Section 4.1, the Indenture Trustee shall establish and maintain a Series Reserve Account or Trust Accounts for each Series, each of which shall be an Eligible Account, for the benefit of the Secured Parties of such Series. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. On or prior to the Issuance Date for each Series, the Issuer shall cause an amount equal to the related Series Reserve Required Amount(s), if applicable, to be deposited into the related Series Reserve Account(s). Thereafter, on each Payment Date and Interim Payment Date, the Indenture Trustee shall withdraw the Servicing Spread Available Funds, P&I Advance Reimbursement Available Funds or Servicing Advance Reimbursement Available Funds, as applicable, from the Note Payment Account and deposit them into each such related
Series Reserve Account pursuant to, and to the extent required by, Section 4.5(a) and the related Indenture Supplement.
(ii) On each Payment Date, an amount equal to the aggregate of amounts described in clauses (i), (ii) and (iii) of Section 4.5(a)(1), clauses (i) of Section 4.5(a)(2), clause (i) of Section 4.5(a)(3) or clauses (i), (ii) and (iii)(A) through (B) of Section 4.5(a)(4) allocable to the related Series, as appropriate, and which is not payable out of the related Available Funds or the related VFN Series Available Funds or Term Note Series Available Funds, as applicable, due to an insufficiency of such Available Funds or VFN Series Available Funds or Term Note Series Available Funds, as applicable, shall be withdrawn from (w) the related Series Reserve Account (other than any Series Reserve Account related to a PIA VFN or SA Note) by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a)(1), (x) the related Series Reserve Account related to a PIA VFN by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a)(2), (y) the related Series Reserve Account related to a SA Note by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a)(3) or (z) the related Indenture Supplement. All Collections received in the Collection and Funding Account shall be deposited into the related Series Reserve Accounts until the amount on deposit in each Series Reserve Account equals the related Series Reserve Required Amount, if applicable, as described in Section 4.5 and the related Indenture Supplement. For purposes of the foregoing, the portion of any such fees and expenses payable under Section 4.5(a)(1)(i) or (ii) shall equal the related Series Allocation Percentage of the amounts payable under such clause, with Series Allocation Percentage calculated as if no PIA VFNs or SA Notes are Outstanding.
(iii) If on any Payment Date the amount on deposit in a Series Reserve Account is equal to or greater than the aggregate Note Balance for the related Series (after payment on such Payment Date of the amounts described in Section 4.5) the Indenture Trustee will withdraw from such Series Reserve Account the aggregate Note Balance for such Series and remit it to the Noteholders of the Notes of such Series in reduction of the aggregate Note Balance for all Classes of Notes of such Series that are Outstanding. On the Stated Maturity Date for the latest maturing Class in a Series, the balance on deposit in the related Series Reserve Account shall be applied as a principal payment on the Notes of that Series to the extent necessary to reduce the aggregate Note Balance for that Series to zero. On any Payment Date after payment of principal on the Notes and when no Event of Default has occurred, the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the balance of the Series Reserve Account exceeds the related Series Reserve Required Amount, if applicable, and pay such amount to loanDepot as holder of the Owner Trust Certificate.
(iv) Amounts held in a Series Reserve Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1.
(v) On any Payment Date, after payment of all amounts pursuant to Section 4.5(a), during the Full Amortization Period, the Indenture Trustee shall withdraw from each Series Reserve Account the amount by which the amount standing to the credit of such Series Reserve Account exceeds the related Series Reserve Required Amount, if applicable, and shall apply such excess to reduce the Note Balances of the Notes of the related Series, pursuant to Section 4.5. Such principal payment shall be made in accordance with the terms and provisions of the related Indenture Supplement. On any Payment Date following the payment in full of all principal payable in respect of the
related Series or Class of Notes, the Indenture Trustee shall withdraw any remaining amounts from the related Series Reserve Account and distribute it to loanDepot as holder of the Owner Trust Certificate. Amounts paid to loanDepot or its designee pursuant to the preceding sentence shall be released from the Security Interest.
(vi) If on any Funding Date, the amount on deposit in one or more Series Reserve Accounts is less than the related Series Reserve Required Amounts, if applicable, then the Administrator may direct the Indenture Trustee to transfer from the Collection and Funding Account to such Series Reserve Accounts an amount equal to the amount by which the respective Series Reserve Required Amounts, if applicable, exceed the respective amounts then on deposit in the related Series Reserve Accounts.
(vii) Any funds on deposit in any Series Reserve Account are to be applied to make any required payments in respect of the related Series or Class of Notes only, and no other Series or Class of Notes shall have any interest or claim against such amounts on deposit. Notwithstanding the foregoing, if any Series or Class of Notes is deemed to have an interest or claim on the funds on deposit in the Series Reserve Account established for another Series, it shall not receive any amounts on deposit in such Series Reserve Account unless and until the Series or Class of Notes related to such Series Reserve Account are paid in full and are no longer Outstanding. The provisions of this Section 4.6(a)(vii) constitute a “subordination agreement” for purposes of Section 510(a) of the Bankruptcy Code.
(b) Expense Reserve Account.
(i) Pursuant to Section 4.1, the Indenture Trustee shall establish and maintain an Expense Reserve Account, which shall be an Eligible Account, for the benefit of the Indenture Trustee and the MSR Valuation Agent. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. On each Payment Date and Interim Payment Date, the Indenture Trustee shall withdraw Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) from the Note Payment Account and deposit them into the Expense Reserve Account pursuant to, and to the extent required by Section 4.5(a).
(ii) On each Payment Date, an amount equal to the aggregate of amounts described in clause (i) of Section 4.5(a)(4) which is not payable out of VFN Series Available Funds or Term Note Series Available Funds, as applicable, due to an insufficiency of VFN Series Available Funds or Term Note Series Available Funds, as applicable, shall be withdrawn from the Expense Reserve Account by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a). All Collections received in the Collection and Funding Account related to Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) shall be deposited into the Expense Reserve Account until the amount on deposit in the Expense Reserve Account equals the Expense Reserve Required Amount, as described in Section 4.5.
(iii) Amounts held in the Expense Reserve Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1.
(iv) On any Payment Date, after payment of all amounts pursuant to Section 4.5(a), during the Full Amortization Period, the Indenture Trustee shall withdraw from the Expense Reserve Account the amount by which the amount standing to the credit of the Expense Reserve Account exceeds the Expense Reserve Required Amount, if
applicable, and shall apply such excess to reduce the Note Balances of the Notes of all Series, pursuant to Section 4.5. Such principal payment shall be made in accordance with the terms and provisions of the related Indenture Supplement. On any Payment Date following the payment in full of all principal payable in respect of all Series or Classes of Notes and the payment in full of all amounts payable to the Indenture Trustee and the MSR Valuation Agent, the Indenture Trustee shall withdraw any remaining amounts from the Expense Reserve Account and distribute it to loanDepot as holder of the Owner Trust Certificate. Amounts paid to loanDepot or its designee pursuant to the preceding sentence shall be released from the Security Interest.
(v) If on any Funding Date, the amount on deposit in the Expense Reserve Accounts is less than the Expense Reserve Required Amount, if applicable, then the Administrator may direct the Indenture Trustee to transfer from the Collection and Funding Account to the Expense Reserve Account from Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) on deposit therein, an amount equal to the amount by which the Expense Reserve Required Amount exceeds the amounts then on deposit in the Expense Reserve Account.
(c) Credit Manager Expense Reserve Account.
(i) Pursuant to Section 4.1, the Indenture Trustee shall establish and maintain a Credit Manager Expense Reserve Account, which shall be an Eligible Account in the name of the Indenture Trustee, for the benefit of the Credit Manager for payment of amounts due the Credit Manager on any Payment Date. It is the intent of the parties that the Credit Manager Expense Reserve Account be an account of the Indenture Trustee, and not an account of the Issuer. Nonetheless, to the extent that the Issuer has any rights in the Credit Manager Expense Reserve Account, the Issuer hereby grants to the Indenture Trustee for the benefit of the Credit Manager, to secure the payment of all amounts owning to the Credit Manager pursuant to this Indenture, a security interest in all of its right, title, and interest, if any, whether now owned or hereafter acquired, in, to, and under, the Credit Manager Expense Reserve Account, all money and other property held therein, and all proceeds thereof. If any such account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. On each Payment Date and Interim Payment Date, the Indenture Trustee shall withdraw Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) from the Note Payment Account and deposit them into the Credit Manager Expense Reserve Account pursuant to, and to the extent required by Section 4.5(a).
(ii) On each Payment Date, an amount equal to the aggregate of amounts described in clause (i) of Section 4.5(a)(4) which is not payable out of VFN Series Available Funds or Term Note Series Available Funds, as applicable, due to an insufficiency of VFN Series Available Funds or Term Note Series Available Funds, as applicable, shall be withdrawn from the Credit Manager Expense Reserve Account by the Indenture Trustee and remitted to the Note Payment Account for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a). All Collections received in the Collection and Funding Account related to Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) shall be deposited into the Credit Manager Expense Reserve Account until the amount on deposit in the Credit Manager Expense Reserve Account equals the Credit Manager Expense Reserve Required Amount, as described in Section 4.5.
(iii) Amounts held in the Credit Manager Expense Reserve Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1.
(iv) Subject to Section 4.6(c)(v), on any Payment Date following the payment in full of all principal payable in respect of all Series or Classes of Notes and the payment in full of all amounts payable to the Credit Manager, the Indenture Trustee shall withdraw any remaining amounts from the Credit Manager Expense Reserve Account and distribute it to loanDepot as holder of the Owner Trust Certificate. Amounts paid to loanDepot or its designee pursuant to the preceding sentence shall be released from the Security Interest.
(v) Notwithstanding anything herein to the contrary, in the event of the occurrence of any action by Ginnie Mae pursuant to Section 8 of the Acknowledgment Agreement to terminate and extinguish any rights of loanDepot as servicer, the Issuer shall direct the Indenture Trustee to deliver the amounts on deposit in the Credit Manager Expense Reserve Account to an escrow agent for the benefit of the Credit Manager for [***] following payment in full of all Outstanding Notes; provided that if amounts have been withdrawn from such escrow account during such [***], or the Credit Manager shall have received written notice of a claim arising in connection with its performance or obligations under this Base Indenture and the other Transaction Documents, then such escrow account shall continue to be maintained for [***]following payment in full of all Outstanding Notes.
(vi) If on any Funding Date, the amount on deposit in the Credit Manager Expense Reserve Accounts is less than the Credit Manager Expense Reserve Required Amount, if applicable, then the Administrator may direct the Indenture Trustee to transfer from the Collection and Funding Account to the Credit Manager Expense Reserve Account from Servicing Spread Available Funds (and during the Full Amortization Period, all Available Funds) on deposit therein, an amount equal to the amount by which the Credit Manager Expense Reserve Required Amount exceeds the amounts then on deposit in the Credit Manager Expense Reserve Account.
Section 4.7. Collection and Funding Account; Eligible Securities Account.
Pursuant to Section 4.1, the Indenture Trustee shall establish and maintain the Collection and Funding Account and the Eligible Securities Account, each of which shall be an Eligible Account, for the benefit of the applicable Secured Parties. If any such account loses its status as an Eligible Account, the funds or securities, as applicable, in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Indenture Trustee shall deposit and withdraw Available Funds from the Collection and Funding Account pursuant to, and to the extent required by Section 4.5. The Indenture Trustee shall hold the portion of Available Funds that constitute P&I Advance Reimbursement Available Funds in a separate non-interest bearing trust account, which for purposes of this Indenture shall be considered a subaccount of the Collection and Funding Account (the “P&I Advance Reimbursement Available Funds Account”). The Indenture Trustee shall hold the portion of Available Funds that constitute Servicing Advance Reimbursement Available Funds in a separate non-interest bearing trust account, which for purposes of this Indenture shall be considered a subaccount of the Collection and Funding Account (the “Servicing Advance Reimbursement Available Funds Account”).The Indenture Trustee shall hold that portion of Available Funds that constitute Servicing Spread Available Funds in a separate non-interest bearing trust account, which for purposes of this Indenture shall be considered a subaccount of the Collection and Funding Account (the “Servicing Spread Available Funds Account”). The Indenture Trustee is hereby authorized and directed to establish each of the P&I Advance Reimbursement Available Funds Account,
Servicing Advance Reimbursement Available Funds Account and Servicing Spread Available Funds Account.
Amounts held in the Collection and Funding Account, the P&I Advance Reimbursement Available Funds Account, the Servicing Advance Reimbursement Available Funds Account and the Servicing Spread Available Funds Account shall be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1; provided, however, if no such direction is provided, all amounts shall remain uninvested.
The P&I Advance Reimbursement Available Funds Account and the Servicing Advance Reimbursement Available Funds Account shall be opened prior to the Payment Date in December 2021. Funds on deposit in the P&I Advance Reimbursement Available Funds Account and the Servicing Advance Reimbursement Available Funds Account shall remain uninvested.
Section 4.8. Note Payment Account.
(a) Pursuant to Section 4.1, the Indenture Trustee shall establish and maintain the Note Payment Account, which shall be an Eligible Account, for the benefit of the applicable Secured Parties. If the Note Payment Account loses its status as an Eligible Account, the funds in such account shall be moved to an account that qualifies as an Eligible Account within thirty (30) days. The Note Payment Account shall be funded to the extent that (i) the Issuer shall remit to the Indenture Trustee the Redemption Amount for a Class of Notes pursuant to Section 13.1, (ii) the Indenture Trustee shall remit thereto any Available Funds from the Collection and Funding Account pursuant to Section 4.2(a), (iii) the Indenture Trustee shall transfer amounts from an applicable Series Reserve Account pursuant to, and to the extent required by, Section 4.6, and (iv) the Indenture Trustee shall transfer amounts from the Expense Reserve Account pursuant to, and to the extent required by, Section 4.6.
(b) On each Payment Date, an amount equal to the aggregate of amounts described in Section 4.5(a) shall be withdrawn from the Note Payment Account by the Indenture Trustee and remitted to the Noteholders and other Persons or accounts described therein for payment as described in that Section, and upon payments of all sums payable hereunder as described in Section 4.5(a), as applicable, any remaining amounts then on deposit in the Note Payment Account shall be released from the Security Interest and paid to loanDepot or its designee unless it would cause a Borrowing Base Deficiency.
(c) Amounts held in the Note Payment Account may be invested in Permitted Investments at the direction of the Administrator as provided in Section 4.1; provided, however, that if no such direction is provided, all amounts shall remain uninvested.
Section 4.9. Securities Accounts.
(a) Securities Intermediary. The Issuer and the Indenture Trustee hereby appoint Citibank, as Securities Intermediary with respect to the Trust Accounts. The Security Entitlements and all Financial Assets credited to the Trust Accounts, including all amounts, securities, investments, Financial Assets, investment property and other property from time to time deposited in or credited to such account and all proceeds thereof, held from time to time in the Trust Accounts will continue to be held by the Securities Intermediary for the Indenture Trustee for the benefit of the Secured Parties. Upon the termination of this Base Indenture, the Indenture Trustee shall inform the Securities Intermediary of such termination. By acceptance of their Notes or interests therein, the Noteholders and all beneficial owners of Notes shall be deemed to have appointed Citibank, as Securities Intermediary. Citibank hereby accepts such appointment as Securities Intermediary.
(i) With respect to any portion of the Trust Estate that is credited to the Trust Accounts, the Securities Intermediary agrees that:
(A) with respect to any portion of the Trust Estate that is held in deposit accounts, each such deposit account shall be subject to the security interest granted pursuant to this Base Indenture, and the Securities Intermediary shall comply with instructions originated by the Indenture Trustee directing dispositions of funds in the deposit accounts without further consent of the Issuer and otherwise shall be subject to the exclusive custody and control of the Securities Intermediary, and the Securities Intermediary shall have sole signature authority with respect thereto;
(B) any and all property credited to the Trust Accounts shall be treated by the Securities Intermediary as Financial Assets;
(C) any portion of the Trust Estate that is, or is treated as, a Financial Asset shall be physically delivered (accompanied by any required endorsements) to, or credited to an account in the name of, the Securities Intermediary or other eligible institution maintaining any Trust Account in accordance with the Securities Intermediary’s customary procedures such that the Securities Intermediary or such other institution establishes a Security Entitlement in favor of the Indenture Trustee, for the benefit of the Noteholders, with respect thereto over which the Securities Intermediary or such other institution has “control” (as defined in the UCC); and
(D) it will use reasonable efforts to promptly notify the Indenture Trustee and the Issuer if any other Person claims that it has a property interest in a Financial Asset in any Trust Account and that it is a violation of that Person’s rights for anyone else to hold, transfer or deal with such Financial Asset.
(ii) The Securities Intermediary hereby confirms that (A) each Trust Account is an account to which Financial Assets are or may be credited, and the Securities Intermediary shall, subject to the terms of this Base Indenture treat the Indenture Trustee as entitled to exercise the rights that comprise any Financial Asset credited to any Trust Account, (B) any portion of the Trust Estate in respect of any Trust Account will be promptly credited by the Securities Intermediary to such account, and (C) all securities or other property underlying any Financial Assets credited to any Trust Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another Securities Account maintained in the name of the Securities Intermediary, and in no case will any Financial Asset credited to any Trust Account be registered in the name of the Issuer or the Administrator, payable to the order of the Issuer or the Administrator or specially endorsed to any of such Persons.
(iii) If at any time the Securities Intermediary shall receive an Entitlement Order from the Indenture Trustee directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Issuer or the Administrator or any other Person. If at any time the Indenture Trustee notifies the Securities Intermediary in writing that this Base Indenture has been discharged in accordance herewith, then thereafter if the Securities Intermediary shall receive any order from the Issuer directing transfer or redemption of any Financial Asset relating to any Trust Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Indenture Trustee or any other Person.
(iv) In the event that the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Trust Account or
any Financial Asset or Security Entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interest of the Indenture Trustee. The Financial Assets and Security Entitlements credited to the Trust Accounts will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than (i) the Indenture Trustee (on behalf of the Noteholders) in the case of the Trust Accounts and (ii) the Owner Trustee Lien.
(v) There are no other agreements entered into between the Securities Intermediary in such capacity, and the Securities Intermediary agrees that it will not enter into any agreement with, the Issuer, the Administrator, or any other Person (other than the Indenture Trustee) with respect to any Trust Account. In the event of any conflict between this Base Indenture (or any provision of this Base Indenture) and any other agreement now existing or hereafter entered into, the terms of this Base Indenture shall prevail.
(vi) The rights and powers granted herein to the Indenture Trustee have been granted in order to perfect its interest in the Trust Accounts and the Security Entitlements to the Financial Assets credited thereto, and are powers coupled with an interest and will not be affected by the bankruptcy of the Issuer, the Administrator or loanDepot nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect until the interest of the Indenture Trustee in the Trust Accounts and in such Security Entitlements, has been terminated pursuant to the terms of this Base Indenture and the Indenture Trustee has notified the Securities Intermediary of such termination in writing.
(b) Definitions; Choice of Law. Capitalized terms used in this Section 4.9 and not defined herein shall have the meanings assigned to such terms in the New York UCC. For purposes of Section 8-110(e) of the New York UCC, the “securities intermediary’s jurisdiction” shall be the State of New York. The Securities Intermediary, the Administrator and the Issuer agree that they will not change the applicable law in force with respect to issues referred to in Article 2(1) of the Hague Securities Convention to a state other than the State of New York.
(c) Limitation on Liability. None of the Securities Intermediary or any director, officer, employee or agent of the Securities Intermediary shall be under any liability to the Indenture Trustee or the Noteholders for any action taken, or not taken, in good faith pursuant to this Base Indenture, or for errors in judgment; provided, however, that this provision shall not protect the Securities Intermediary against any liability to the Indenture Trustee or the Noteholders which would otherwise be imposed by reason of the Securities Intermediary’s willful misconduct, bad faith or negligence in the performance of its obligations or duties hereunder. The Securities Intermediary and any director, officer, employee or agent of the Securities Intermediary may rely in good faith on any document of any kind which, on its face, is properly executed and submitted by any Person respecting any matters arising hereunder. The Securities Intermediary shall be under no duty to inquire into or investigate the validity, accuracy or content of such document.
(d) Representations, Warranties and Covenants of the Securities Intermediary. The Securities Intermediary represents and warrants that, as of the date hereof, the Securities Intermediary has a physical office in the United States and is engaged in a business or other regular activity of maintaining Securities Accounts. The Securities Intermediary agrees that, at all times while this Indenture is in effect, it shall maintain a physical office in the United States that satisfies the criteria set forth in Article 4(1)(a) or (b) of the Hague Securities Convention.
Section 4.10. Notice of Adverse Claims.
Except for the claims and interests of the Secured Parties in the Trust Accounts, the Securities Intermediary has no actual knowledge of any claim to, or interest in, any Trust Account or in any financial asset credited thereto. If any Person asserts any Adverse Claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Trust Account or in any financial asset carried therein of which a Responsible Officer of the Securities Intermediary has actual knowledge, the Securities Intermediary will promptly notify the Noteholders, the Indenture Trustee and the Issuer thereof.
Section 4.11. No Gross Up.
No Person, including the Issuer, shall be obligated to pay any additional amounts to the Noteholders or Note Owners as a result of any withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges.
Section 4.12. Advance Rate Reduction Event Trigger Period, Early Amortization Period, Early Termination Event Period and Full Amortization Period.
Upon the occurrence of an Advance Rate Reduction Event, the Advance Rate Reduction Event Trigger Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes and the Majority Noteholders for each Series of Variable Funding Notes that are Outstanding, plus the Administrative Agent, notify the Indenture Trustee, Ginnie Mae and the Credit Manager that either (i) they have waived the occurrence of such Advance Rate Reduction Event or (ii) they have acknowledged that the Advance Rate Reduction Event has been cured. Upon the commencement of the Advance Rate Reduction Event Trigger Period, the Indenture Trustee shall cause Advance Rate Reduction Event Reserve Amounts to be remitted to the Note Payment Account and included as Servicing Spread Available Funds for payment in respect of the related Class’ allocable share of such items as described in Section 4.5(a).
Upon the occurrence of an Early Amortization Event, the Revolving Period for all Classes and Series of the Notes shall automatically terminate and the Early Amortization Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes and the Majority Noteholders for each Series of Variable Funding Notes that are Outstanding, plus the Administrative Agent, notify the Indenture Trustee, Ginnie Mae and the Credit Manager that either (i) they have waived the occurrence of such Early Amortization Event and consent to the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period or (ii) they acknowledge that the Early Amortization Event has been cured and consent to the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period.
Upon the occurrence of an Early Termination Event, the Revolving Period for all Classes and Series of the Notes shall automatically terminate and the Early Termination Event Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes and the Majority Noteholders for each Series of Variable Funding Notes that are Outstanding, plus the Administrative Agent, notify the Indenture Trustee, Ginnie Mae and the Credit Manager that either (i) they have waived the occurrence of such Early Termination Event and consent to the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period or (ii) they acknowledge that the Early Termination Event has been cured and consent to
the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period.
Upon the occurrence of an Event of Default, the Revolving Period for all Classes and Series of the Notes shall automatically terminate and the Full Amortization Period for all Outstanding Notes shall commence without further action on the part of any Person, unless, together, the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes and the Majority Noteholders for each Series of Variable Funding Notes that are Outstanding, plus the Administrative Agent, notify the Indenture Trustee, Ginnie Mae and the Credit Manager that either (i) they have waived the occurrence of such Event of Default and consent to the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period or (ii) they acknowledge that the Event of Default has been cured and consent to the continuation of the Revolving Period for each Outstanding Series that is still in its Revolving Period.
The obligation of the Issuer to pay or reserve any Default Supplemental Fee, Step-Up Fee, Cumulative Interest Shortfall Amount, Cumulative Default Supplemental Fee Shortfall Amount or Cumulative Step-Up Fee Shortfall Amount shall begin only upon the occurrence of an Early Amortization Event, Early Termination Event or Event of Default, as applicable, and commencement of the Early Amortization Period, the Early Termination Event Period or Full Amortization Period, as applicable, as described in this Section 4.12.
Article V
Note Forms
Section 5.1. Forms Generally.
The Notes will have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Base Indenture or the applicable Indenture Supplement and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with applicable laws or regulations or with the rules of any securities exchange, or as may, consistently herewith, be determined by the Issuer, as evidenced by the Issuer’s execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Definitive Notes and the Global Notes representing the Book-Entry Notes will be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders) or may be produced in any other manner, all as determined by the Issuer, as evidenced by the Issuer’s execution of such Notes.
Section 5.2. Forms of Notes.
(a) Forms Generally. Subject to Section 5.2(b), each Note will be in one of the forms approved from time to time by or pursuant to this Base Indenture. Without limiting the generality of the foregoing, the Indenture Supplement for any Series of Notes shall specify whether the Notes of such Series, or of any Class within such Series, shall be issuable as Definitive Notes or as Book-Entry Notes.
(b) Issuer Certificate. Before the delivery of a Note to the Indenture Trustee for authentication in any form approved by or pursuant to an Issuer Certificate, the Issuer will deliver to the Indenture Trustee the Issuer Certificate by or pursuant to which such form of Note has been approved, which Issuer Certificate will have attached thereto a true and correct copy of
the form of Note which has been approved thereby. Any form of Note approved by or pursuant to an Issuer Certificate must be acceptable as to form to the Indenture Trustee, such acceptance to be evidenced by the Indenture Trustee’s authentication of Notes in that form of a Certificate of Authentication signed by an Indenture Trustee Authorized Officer and delivered to the Issuer.
(c) (i) Rule 144A Notes. Notes sold by the Issuer (other than Regulation S Notes) shall bear a legend generally to the effect that resales of such Notes or interests therein may be made only to qualified institutional buyers in transactions exempt from the registration requirements of the 1933 Act in reliance on Rule 144A (each, a “Rule 144A Note”) and shall be issued initially in the form of (A) one or more permanent Global Notes in fully registered form (each, a “Rule 144A Global Note”), substantially in the form attached hereto as Exhibit A-1 or (B) one or more permanent Definitive Notes in fully registered form (each, a “Rule 144A Definitive Note”), substantially in the form attached hereto as Exhibit A-2. The aggregate principal amounts of the Rule 144A Global Notes or Rule 144A Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee, or the Depository or its nominee, as the case may be, as hereinafter provided.
(ii) Regulation S Notes. Notes sold in offshore transactions in reliance on Regulation S (each, a “Regulation S Note”) shall be issued in the form of (A) one or more permanent Global Notes in fully registered form (each, a “Regulation S Global Note”), substantially in the form attached hereto as Exhibit A-3 or (B) one or more permanent Definitive Notes in fully registered form (each, a “Regulation S Definitive Note”), substantially in the form attached hereto as Exhibit A-4. The aggregate principal amounts of the Regulation S Global Notes or the Regulation S Definitive Notes may from time to time be increased or decreased by adjustments made on the records of the Indenture Trustee or the Depository or its nominee, as the case may be, as hereinafter provided.
Section 5.3. Reserved.
Section 5.4. Book-Entry Notes.
(a) Issuance of Book-Entry Notes. If the Issuer establishes pursuant to Sections 5.2 and 6.1 that the Notes of a particular Series or Class are to be issued as Book-Entry Notes, then the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver, one or more definitive Global Notes, which, unless otherwise provided in the applicable Indenture Supplement (1) will represent, and will be denominated in an amount equal to the aggregate, Initial Note Balance of the Outstanding Notes of such Series or Class to be represented by such Global Note or Notes, or such portion thereof as the Issuer will specify in an Issuer Certificate, (2) will be registered in the name of the Depository for such Global Note or Notes or its nominee; (3) will be delivered by the Indenture Trustee or its agent to the Depository or pursuant to the Depository’s instruction (and which may be held by the Indenture Trustee as custodian for the Depository, if so specified in the related Indenture Supplement or Depository Agreement), (4) if applicable, will bear a legend substantially to the following effect: “Unless this Note is presented by an authorized representative of DTC, to the Issuer or its agent for registration of transfer, exchange or payment, and any Note issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co., has an interest herein” and (5) may bear such other legend as the Issuer, upon advice of counsel, deems to be applicable.
(b) The Note Registrar and the Indenture Trustee may deal with the Depository as the sole Noteholder of the Book-Entry Notes for all purposes of this Indenture and will not be obligated to the Note Owners, except as stated in Section 14.12.
(c) The rights of the Note Owners may be exercised only through the Depository and will be limited to those established by law and agreements between the Note Owners and the Depository and/or its participants under the Depository Agreement.
(d) If this Section 5.4 conflicts with other terms of this Indenture, this Section 5.4 will control.
(e) The Depository will make book-entry transfers among its participants and receive and transmit payments of principal of and interest on the Book-Entry Notes to the participants.
(f) The Indenture Trustee, the Note Registrar, and the Paying Agent shall have no responsibility or liability for any actions taken or not taken by the Depository.
(g) If this Indenture requires or permits actions to be taken based on instructions or directions of the Noteholders of a stated percentage of Note Balance of the Notes, the Depository will be deemed to represent those Noteholders only if it has received instructions to that effect from Note Owners and/or the Depository's participants owning or representing, the required percentage of the beneficial interest of the Notes and has delivered the instructions to the Indenture Trustee.
(h) The Issuer in issuing Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Indenture Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Indenture Trustee in writing of any change in the “CUSIP” numbers.
(i) Transfers of Global Notes only to Depository Nominees. Notwithstanding any other provisions of this Section 5.4 or of Section 6.5, and subject to the provisions of clause (j) below, unless the terms of a Global Note or the applicable Indenture Supplement expressly permit such Global Note to be exchanged in whole or in part for individual Notes, a Global Note may be transferred, in whole but not in part and in the manner provided in Section 6.5, only to a nominee of the Depository for such Global Note, or to the Depository, or a successor Depository for such Global Note selected or approved by the Issuer, or to a nominee of such successor Depository.
(j) Limited Right to Receive Definitive Notes. Except under the limited circumstances described below, Note Owners of beneficial interests in Global Notes will not be entitled to receive Definitive Notes. With respect to Notes issued within the United States, unless otherwise specified in the applicable Indenture Supplement, or with respect to Notes issued outside the United States, if specified in the applicable Indenture Supplement:
(i) If at any time the Depository for a Global Note notifies the Issuer that it is unwilling or unable to continue to act as Depository for such Global Note or if at any time the Depository for the Notes for such Series or Class ceases to be a Clearing Corporation, the Issuer will appoint a successor Depository with respect to such Global Note. If a successor Depository for such Global Note is not appointed by the Issuer within ninety (90) days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 requesting the authentication and delivery of individual Notes of such Series or Class in exchange for such Global Note, will authenticate and deliver, individual Notes of such Series or Class of like tenor and terms in an aggregate Initial Note Balance equal to the Initial Note Balance of the Global Note in exchange for such Global Note.
(ii) The Issuer may at any time and in its sole discretion determine that the Notes of any Series or Class or portion thereof issued or issuable in the form of one or more Global Notes will no longer be represented by such Global Note or Notes. In such event the Issuer will execute, and the Indenture Trustee or its agent in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3 for the authentication and delivery of individual Notes of such Series or Class in exchange in whole or in part for such Global Note, will authenticate and deliver individual Notes of such Series or Class of like tenor and terms in definitive form in an aggregate Initial Note Balance equal to the Initial Note Balance of such Global Note or Notes representing such Series or Class or portion thereof in exchange for such Global Note or Notes.
(iii) If specified by the Issuer pursuant to Sections 5.2 and 6.1 with respect to Notes issued or issuable in the form of a Global Note, the Depository for such Global Note may surrender such Global Note in exchange in whole or in part for individual Notes of such Series or Class of like tenor and terms in definitive form on such terms as are acceptable to the Issuer and such Depository. Thereupon the Issuer will execute, and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver, without service charge, (A) to each Person specified by such Depository a new Note or Notes of the same Series or Class of like tenor and terms and of any authorized denomination as requested by such Person in an aggregate Initial Note Balance equal to the Initial Note Balance of the portion of the Global Note or Notes specified by the Depository and in exchange for such Person’s beneficial interest in the Global Note; and (B) to such Depository a new Global Note of like tenor and terms and in an authorized denomination equal to the difference, if any, between the Initial Note Balance of the surrendered Global Note and the aggregate Initial Note Balance of Notes delivered to the Noteholders thereof.
(iv) If any Event of Default has occurred with respect to such Global Notes, and Owners of Notes evidencing more than [***]% of the Global Notes of that Series or Class (measured by Voting Interests) advise the Indenture Trustee and the Depository that a Global Note is no longer in the best interest of the Note Owners, the Owners of Global Notes of that Series or Class may exchange their beneficial interests in such Notes for Definitive Notes in accordance with the exchange provisions herein.
(v) In any exchange provided for in any of the preceding four paragraphs, the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver Definitive Notes in definitive registered form in authorized denominations. Upon the exchange of the entire Initial Note Balance of a Global Note for Definitive Notes, such Global Note will be canceled by the Indenture Trustee or its agent. Except as provided in the preceding paragraphs, Notes issued in exchange for a Global Note pursuant to this Section will be registered in such names and in such authorized denominations as the Depository for such Global Note, pursuant to instructions from its direct or indirect participants or otherwise, will instruct the Indenture
Trustee or the Note Registrar. The Indenture Trustee or the Note Registrar will deliver such Notes to the Persons in whose names such Notes are so registered.
Section 5.5. Beneficial Ownership of Global Notes.
Until Definitive Notes have been issued to the applicable Noteholders to replace any Global Notes with respect to a Series or Class pursuant to Section 5.4 or as otherwise specified in any applicable Indenture Supplement:
(a) the Issuer and the Indenture Trustee may deal with the applicable clearing agency or Depository and the Depository Participants for all purposes (including the making of payments) as the authorized representatives of the respective Note Owners; and
(b) the rights of the respective Note Owners will be exercised only through the applicable Depository and the Depository Participants and will be limited to those established by law and agreements between such Note Owners and the Depository and/or the Depository Participants. Pursuant to the operating rules of the applicable Depository, unless and until Definitive Notes are issued pursuant to Section 5.4, the Depository will make book-entry transfers among the Depository Participants and receive and transmit payments of principal and interest on the related Notes to such Depository Participants.
For purposes of any provision of this Base Indenture requiring or permitting actions with the consent of, or at the direction of, Noteholders evidencing a specified percentage of the Note Balance of Outstanding Notes, such direction or consent may be given by Note Owners (acting through the Depository and the Depository Participants) owning interests in or security entitlements to Notes evidencing the requisite percentage of principal amount of Notes.
Section 5.6. Notices to Depository.
Whenever any notice or other communication is required to be given to Noteholders with respect to which Book-Entry Notes have been issued, unless and until Definitive Notes will have been issued to the related Note Owners, the Indenture Trustee will give all such notices and communications to the applicable Depository, and shall have no obligation to report directly to such Note Owners.
Article VI
The Notes
Section 6.1. General Provisions; Notes Issuable in Series; Terms of a Series or Class Specified in an Indenture Supplement.
(a) Amount Unlimited. The aggregate Initial Note Balance of Notes which may be authenticated and delivered and Outstanding under this Base Indenture is not limited.
(b) Series and Classes. The Notes may be issued in one or more Series or Classes up to an aggregate Note Balance for such Series or Class as from time to time may be authorized by the Issuer. All Notes of each Series or Class under this Base Indenture will in all respects be equally and ratably entitled to the benefits hereof with respect to such Series or Class without preference, priority or distinction on account of (1) the actual time of the authentication and delivery, or (2) Stated Maturity Date of the Notes of such Series or Class, except as specified in the applicable Indenture Supplement for such Series or Class of Notes.
Each Note issued must be part of a Series of Notes for purposes of allocations pursuant to the related Indenture Supplement. A Series of Notes is created pursuant to an Indenture Supplement. A Class of Notes is created pursuant to an Indenture Supplement for the applicable Series.
Each Series and Class of Notes will be secured by the Trust Estate.
Each Series of Notes may, but need not be, subdivided into multiple Classes. Notes belonging to a Class in any Series may be entitled to specified payment priorities over other Classes of Notes in that Series.
(c) Provisions Required in Indenture Supplement. Before the initial issuance of Notes of each Series, there shall also be established in or pursuant to an Indenture Supplement provision for:
(i) the Series designation;
(ii) the Initial Note Balance of such Series of Notes and of each Class, if any, within such Series, and the Maximum VFN Principal Balance for such Series (if it is a Series or Class of Variable Funding Notes);
(iii) whether such Notes are subdivided into Classes;
(iv) whether such Series of Notes are Term Notes, Variable Funding Notes or a combination thereof;
(v) the Note Interest Rate at which such Series of Notes or each related Class of Notes will bear interest, if any, or the formula or index on which such rate will be determined, including all relevant definitions, and the date from which interest will accrue;
(vi) the Stated Maturity Date for such Series of Notes or each related Class of Notes;
(vii) if applicable, the appointment by the Indenture Trustee of an Authenticating Agent in one or more places other than the location of the office of the Indenture Trustee with power to act on behalf of the Indenture Trustee and subject to its direction in the authentication and delivery of such Notes in connection with such transactions as will be specified in the provisions of this Base Indenture or in or pursuant to the applicable Indenture Supplement creating such Series;
(viii) if such Series of Notes or any related Class will be issued in whole or in part in the form of a Global Note or Global Notes, the terms and conditions, if any, in addition to those set forth in Section 5.4, upon which such Global Note or Global Notes may be exchanged in whole or in part for other Definitive Notes; and the Depository for such Global Note or Global Notes (if other than the Depository specified in Section 1.1);
(ix) the subordination, if any, of such Series of Notes or any related Class(es) to any other Notes of any other Series or of any other Class within the same Series;
(x) the Record Date for any Payment Date of such Series of Notes or any related Class, if different from the last day of the month before the related Payment Date;
(xi) any Default Supplemental Fee Rate, if applicable;
(xii) any Step-Up Fee Rate, if applicable;
(xiii) if applicable, under what conditions any additional amounts will be payable to Noteholders of the Notes of such Series;
(xiv) the Administrative Agent for such Series of Notes;
(xv) any other terms of such Notes as stated in the related Indenture Supplement; and
(xvi) all upon such terms as may be determined in or pursuant to an Indenture Supplement with respect to such Series or Class of Notes.
(d) Forms of Series or Classes of Notes. The form of the Notes of each Series or Class will be established pursuant to the provisions of this Base Indenture and the related Indenture Supplement creating such Series or Class. The Notes of each Series or Class will be distinguished from the Notes of each other Series or Class in such manner, reasonably satisfactory to the Indenture Trustee, as the Issuer may determine.
Section 6.2. Denominations.
Except as provided in Section 6.1(b), the Notes of each Series or Class will be issuable in such denominations and currency as will be provided in the provisions of this Base Indenture or in or pursuant to the applicable Indenture Supplement. In the absence of any such provisions with respect to the Term Notes of any Series or Class, the Term Notes of that Series or Class will be issued in minimum denominations of $[***]and integral multiples of $[***] in excess thereof. In the absence of any such provisions with respect to the Variable Funding Notes of any Series or Class, the Variable Funding Notes of that Series or Class will be issued in accordance with the terms of the related Indenture Supplement.
Section 6.3. Execution, Authentication and Delivery and Dating.
(a) The Notes will be executed on behalf of the Issuer by an Issuer Authorized Officer, by manual or facsimile signature.
(b) Notes bearing the manual or facsimile signatures of individuals who were at any time an Issuer Authorized Officer will bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices before the authentication and delivery of such Notes or did not hold such offices at the date of issuance of such Notes.
(c) At any time and from time to time after the execution and delivery of this Base Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication; and the Indenture Trustee will, upon delivery of an Issuer Certificate, authenticate and deliver such Notes as provided in this Base Indenture and not otherwise.
(d) Before any such authentication and delivery, the Indenture Trustee will be entitled to receive, in addition to any Officer’s Certificate and Opinion of Counsel required to be furnished to the Indenture Trustee pursuant to Section 1.3, the Issuer Certificate and any other opinion or certificate relating to the issuance of the Series or Class of Notes required to be furnished pursuant to Section 5.2 or Section 6.10.
(e) The Indenture Trustee will not be required to authenticate such Notes if the issue thereof will adversely affect the Indenture Trustee’s own rights, duties or immunities under the Notes and this Base Indenture.
(f) Unless otherwise provided in the form of Note for any Series or Class, all Notes will be dated the date of their authentication.
(g) No Note will be entitled to any benefit under this Base Indenture or be valid or obligatory for any purpose unless there appears on such Note a Certificate of Authentication substantially in the form provided for herein executed by the Indenture Trustee by manual or facsimile (other than with respect to any Definitive Notes) signature of an authorized signatory, and such certificate upon any Note will be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
Section 6.4. Temporary Notes.
(a) Pending the preparation of definitive Notes of any Series or Class, the Issuer may execute, and, upon receipt of the documents required by Section 6.3, together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, temporary Notes which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Issuer may determine, as evidenced by the Issuer’s execution of such Notes.
(b) If temporary Notes of any Series or Class are issued, the Issuer will cause permanent Notes of such Series or Class to be prepared without unreasonable delay. After the preparation of permanent Notes, the temporary Notes of such Series or Class will be exchangeable for permanent Notes of such Series or Class upon surrender of the temporary Notes of such Series or Class at the office or agency of the Issuer in a Place of Payment, without charge to the Noteholder; and upon surrender for cancellation of any one or more temporary Notes the Issuer will execute and the Indenture Trustee or its agent will, in accordance with Section 6.3 and with the Issuer Certificate delivered to the Indenture Trustee or its agent under Section 6.3, authenticate and deliver in exchange therefore a like Initial Note Balance of permanent Notes of such Series or Class of authorized denominations and of like tenor and terms. Until so exchanged the temporary Notes of such Series or Class will in all respects be entitled to the same benefits under this Base Indenture as permanent Notes of such Series or Class.
Section 6.5. Registration, Transfer and Exchange.
(a) Note Register. The Indenture Trustee, acting as Note Registrar (in such capacity, the “Note Registrar”), shall keep or cause to be kept a register (herein sometimes referred to as the “Note Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer will provide for the registration of Notes, or of Notes of a particular Series or Class, and for transfers of Notes. Any such register will be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers will be available for inspection by the Issuer or the Indenture Trustee at the Corporate Trust Office. The Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent and any agents of any of them, may treat a Person in whose name a Note is registered as the owner of such Note for the purpose of receiving payments in respect of such Note and for all other purposes, and none of the Issuer, the Indenture Trustee, the Note Registrar, the Paying Agent or any agent of any of them, shall be affected by notice to the contrary. None of the Issuer, the Indenture Trustee, any agent of the Indenture Trustee, any Paying Agent or the Note Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership of a Global Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership.
(b) Exchange of Notes. Subject to Section 5.4, upon surrender for transfer of any Note of any Series or Class at the Place of Payment, the Issuer may execute, and, upon receipt of the documents required by Section 6.3 and such surrendered Note, together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms. Subject to Section 5.4, Notes of any Series or Class may be exchanged for other Notes of such Series or Class of any authorized denominations, of a like aggregate Initial Note Balance and Stated Maturity Date and of like terms, upon surrender of the Notes to be exchanged at the Place of Payment. Whenever any Notes are so surrendered for exchange, the Issuer will execute, and the Indenture Trustee or the related Authenticating Agent will authenticate and deliver the Notes which the Noteholders making the exchange are entitled to receive.
(c) Issuer Obligations. All Notes issued upon any transfer or exchange of Notes shall be the valid and legally binding obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Base Indenture, as the Notes surrendered upon such transfer or exchange.
(d) Endorsement of Notes to be Transferred or Exchanged. Every Note presented or surrendered for transfer or exchange will (if so required by the Issuer, the Note Registrar or the Indenture Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer, the Indenture Trustee, and the Note Registrar duly executed, by the Noteholder thereof or such Noteholder’s attorney duly authorized in writing, with such signature guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Transfer Agent’s Medallion Program (“STAMP”).
(e) No Service Charge. Unless otherwise provided in the Note to be transferred or exchanged, no service charge will be assessed against any Noteholder for any transfer or exchange of Notes, but the Issuer, the Indenture Trustee, and the Note Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Notes before the transfer or exchange will be complete, other than exchanges pursuant to Section 5.4 not involving any transfer.
(f) Deemed Representations by Transferees of Rule 144A Notes. Each transferee (including the initial Noteholder or Owner) of a Rule 144A Note or of a beneficial interest therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Rule 144A Note Transfer Certificate attached to Exhibit B-1 attached hereto.
(g) Deemed Representations by Transferees of Regulation S Notes. Each transferee (including the initial Noteholder or Owner) of a Regulation S Note or of a beneficial therein shall be deemed by accepting such Note or beneficial interest, to have made all the certifications, representations and warranties set forth in the Regulation S Note Transfer Certificate attached to Exhibit B-2 attached hereto.
(h) Conditions to Transfer. No sale, pledge or other transfer (a “Transfer”) of any Notes shall be made unless that Transfer is made pursuant to an effective registration statement under the 1933 Act and effective registration or qualification under applicable state securities laws or is made in a transaction that does not require such registration or qualification. If a Transfer is made without registration under the 1933 Act (other than in connection with the initial issuance thereof by the Issuer), then the Note Registrar, the Indenture Trustee, Administrator, on behalf of the Issuer, shall refuse to register such Transfer unless the Note Registrar receives either:
(i) the Regulation S Note Transfer Certificate or Rule 144A Note Transfer Certificate and such other information as may be required pursuant to this Section 6.5; or
(ii) if the Transfer is to be made to an Issuer Affiliate in a transaction that is exempt from registration under the 1933 Act, an Opinion of Counsel reasonably satisfactory to the Issuer and the Note Registrar to the effect that such Transfer may be made without registration under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Estate or of the Issuer, the Indenture Trustee or the Note Registrar in their respective capacities as such).
None of the Administrator, the Issuer, the Indenture Trustee or the Note Registrar is obligated to register or qualify the Notes under the 1933 Act or any other securities law or to take any action not otherwise required under this Base Indenture to permit the transfer of any Note without registration or qualification. Any Noteholder of a Note desiring to effect such a Transfer shall, and upon acquisition of such a Note shall be deemed to have agreed to, indemnify the Indenture Trustee, the Note Registrar, the Administrator, the Servicer and the Issuer against any liability that may result if the Transfer is not so exempt or is not made in accordance with the 1933 Act and applicable state securities laws.
In connection with any Transfer of Notes in reliance on Rule 144A, the Administrator shall furnish upon request of a Noteholder to such Noteholder and any prospective purchaser designated by such Noteholder the information required to be delivered under paragraph (d)(4) of Rule 144A.
In the event that a Note is transferred to a Person that does not meet the requirements of this Section 6.5 and/or the requirements of the related Indenture Supplement, such transfer will be of no force and effect, will be void ab initio, and will not operate to transfer any right to such Person, notwithstanding any instructions to the contrary to the Issuer, the Indenture Trustee or any intermediary; and the Indenture Trustee shall not make any payment on such Note for as long as such Person is the Noteholder of such Note and the Indenture Trustee shall have the right to compel such Person to transfer such Note to a Person who does meet the requirements of this Section 6.5.
(i) Transfers of Ownership Interests in Global Notes. Transfers of beneficial interests in a Global Note representing Book-Entry Notes may be made only in accordance with the rules and regulations of the Depository (and, in the case of a Regulation S Global Note only to beneficial owners who are not “U.S. persons” (as such term is defined in Regulation S) in accordance with the rules and regulations of Euroclear or Clearstream) and the transfer restrictions contained in the legend on such Global Note and exchanges or transfers of interests in a Global Note may be made only in accordance with the following:
(i) General Rules Regarding Transfers of Global Notes. Subject to clauses (ii) through (vii) of this Section 6.5(i), Transfers of a Global Note representing Book-Entry Notes shall be limited to Transfers of such Global Note in whole, but not in part, to nominees of the Depository or to a successor of the Depository or such successor’s nominee.
(ii) Rule 144A Global Note to Regulation S Global Note. If an owner of a beneficial interest in a Rule 144A Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to exchange its interest in such Rule 144A Global Note for an interest in a Regulation S Global Note for that Series and/or Class, or to transfer its interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Regulation S Global Note for that Series and/or Class, such Note Owner (or transferee), provided such Note Owner (or
transferee) is not a “U.S. person” (as such term is defined in Regulation S), may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest in such Rule 144A Global Note for a beneficial interest in the Regulation S Global Note for that Series and/or Class. Upon the receipt by the Indenture Trustee of (A) instructions from the Depository directing the Indenture Trustee to cause to be credited a beneficial interest in a Regulation S Global Note in an amount equal to the beneficial interest in such Rule 144A Global Note to be exchanged but not less than the minimum denomination applicable to the owner’s Notes held through a Regulation S Global Note, (B) a written order given in accordance with the Depository’s procedures containing information regarding the participant account of the Depository and, in the case of a transfer pursuant to and in accordance with Regulation S, the Euroclear or Clearstream account to be credited with such increase and (C) a certificate (each, a “Regulation S Note Transfer Certificate”) in the form of Exhibit B-2 hereto given by the Note Owner or its transferee stating that the exchange or transfer of such interest has been made in compliance with the transfer restrictions applicable to the Global Notes, including the requirements that the Note Owner or its transferee is not a “U.S. person” (as such term is defined in Regulation S) and the transfer is made pursuant to and in accordance with Regulation S, then the Indenture Trustee and the Note Registrar, shall reduce the principal amount of the Rule 144A Global Note for the related Series and/or Class and increase the principal amount of the Regulation S Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note to be exchanged, and shall instruct Euroclear or Clearstream, as applicable, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Regulation S Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Rule 144A Global Note for the related Series and/or Class.
(iii) Regulation S Global Note to Rule 144A Global Note. If an owner of a beneficial interest in a Regulation S Global Note related to a Series and/or Class deposited with or on behalf of the Depository wishes at any time to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in a Rule 144A Global Note for such Series and/or Class, such owner’s transferee may, subject to the rules and procedures of the Depository, exchange or cause the exchange of such interest for an equivalent beneficial interest in a Rule 144A Global Note for such Series and/or Class. Upon the receipt by the Indenture Trustee and the Note Registrar, of (A) instructions from the Depository directing the Indenture Trustee and the Note Registrar, to cause to be credited a beneficial interest in a Rule 144A Global Note in an amount equal to the beneficial interest in such Regulation S Global Note to be exchanged but not less than the minimum denomination applicable to such owner’s Notes held through a Rule 144A Global Note, to be exchanged, such instructions to contain information regarding the participant account with the Depository to be credited with such increase, and (B) a certificate (each, a “Rule 144A Note Transfer Certificate”) in the form of Exhibit B-1 hereto given by the transferee of such beneficial interest, then the Indenture Trustee will reduce the principal amount of the Regulation S Global Note and increase the principal amount of the Rule 144A Global Note for the related Series and/or Class by the aggregate principal amount of the beneficial interest in the Regulation S Global Note for the related Series and/or Class to be transferred and the Indenture Trustee and the Note Registrar, shall instruct the Depository, concurrently with such reduction, to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note for the related Series and/or Class equal to the reduction in the principal amount of the Regulation S Global Note for the related Series and/or Class.
(iv) Transfers of Interests in Rule 144A Global Note. An owner of a beneficial interest in a Rule 144A Global Note may transfer such interest in the form of a beneficial interest in such Rule 144A Global Note in accordance with the procedures of the Depository without the provision of written certification.
(v) Transfers of Interests in Regulation S Global Note. An owner of a beneficial interest in a Regulation S Global Note may transfer such interest in the form of a beneficial interest in such Regulation S Global Note in accordance with the applicable procedures of Euroclear and Clearstream without the provision of written certification.
(vi) Regulation S Global Note to Regulation S Definitive Note. Subject to Section 5.4(j) hereof, an owner of a beneficial interest in a Regulation S Global Note for the related Series and/or Class deposited with or on behalf of a Depository may at any time transfer such interest for a Regulation S Definitive Note upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Regulation S Note Transfer Certificate.
(vii) Rule 144A Global Note to Rule 144A Definitive Note. Subject to Section 5.4(j) hereof, an owner of a beneficial interest in a Rule 144A Global Note deposited with or on behalf of a Depository may at any time transfer such interest for a Rule 144A Definitive Note, upon provision to the Indenture Trustee, the Issuer and the Note Registrar of a Rule 144A Note Transfer Certificate.
(j) Transfers of Definitive Notes. In the event of any Transfer of a Regulation S Definitive Note, a Regulation S Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer. In the event of any Transfer of a Rule 144A Definitive Note, a Rule 144A Note Transfer Certificate shall be provided prior to the Indenture Trustee’s or Note Registrar’s registration of such Transfer.
(k) ERISA Restrictions. Neither the Note Registrar nor the Indenture Trustee shall register the Transfer of any Definitive Notes unless the prospective transferee has delivered to the Indenture Trustee and the Note Registrar a certification to the effect that either (i) it is not, and is not acquiring, holding or transferring the Notes, or any interest therein, on behalf of, or using assets of, an “employee benefit plan” as defined in Section 3(3) of ERISA, a plan described in Section 4975(e)(1) of the Code, an entity which is deemed to hold the assets of any such employee benefit plan or plan pursuant to 29 C.F.R. Section 2510.3-101 as modified by Section 3(42) of ERISA (the “Plan Asset Regulations”), which employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code, or a governmental, non-U.S., church or other plan which is subject to any U.S. federal, state, local or other law that is substantially similar to Title I of ERISA or Section 4975 of the Code (“Similar Law”), or (ii) (A) as of the date of purchase or transfer, it believes that such Notes are properly treated as indebtedness without substantial equity features for purposes of the Plan Asset Regulations and agrees to so treat such Notes and (B) its acquisition, holding and disposition of the Notes or any interest therein will satisfy the requirements of Prohibited Transaction Class Exemption (“PTCE”) 84-14 (relating to transactions effected by a qualified professional asset manager), PTCE 90-1 (relating to investments by insurance company pooled separate accounts), PTCE 91-38 (relating to investments in bank collective investment funds), PTCE 95-60 (relating to transactions involving insurance company general accounts), PTCE 96-23 (relating to transactions directed by an in-house professional asset manager) or the statutory prohibited transaction exemption for service providers set forth in Section 408(b)(17) of ERISA and Section 4975(d)(20) of the Code or a similar class, statutory or administrative exemption and will not result in a non-exempt prohibited transaction under Section 406 of ERISA or section 4975 of the Code (or, in the case of a governmental, non-U.S., church or other plan subject to such Similar Law, will not violate any such Similar Law). In the case of any Book-Entry Note, each
transferee of such Note or any beneficial interest therein by virtue of its acquisition of such Note will be deemed to represent either (i) or (ii) above. Further, each transferee of a Note or any beneficial interest therein that is an employee benefit plan, plan or entity is subject to Title I of ERISA or section 4975 of the Code shall be deemed to represent and warrant that (i) none of the Issuer, loanDepot, NCFA or any of their respective affiliates has provided any investment advice within the meaning of Section 3(21) of ERISA (and regulations thereunder) to such transferee, or to any fiduciary or other person making the decision to invest the assets of such transferee (“Fiduciary”), in connection with its acquisition of the Note (unless an applicable prohibited transaction exemption is available to cover the purchase or holding of the Note or the transaction is not otherwise prohibited), and (ii) the Fiduciary is exercising its own independent judgment in evaluating the investment in the Note.
(l) No Liability of Indenture Trustee for Transfers. To the extent permitted under applicable law, the Indenture Trustee (in any of its capacities) shall be under no liability to any Person for any registration of transfer of any Note that is in fact not permitted by this Section 6.5 or for making any payments due to the Noteholder thereof or taking any other action with respect to such Noteholder under the provisions of this Base Indenture so long as the transfer was registered by the Indenture Trustee and the Note Registrar in accordance with the requirements of this Base Indenture.
Section 6.6. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (1) any mutilated Note is surrendered to the Indenture Trustee or the Note Registrar, or the Issuer, the Note Registrar or the Indenture Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and (2) there is delivered to the Issuer, the Note Registrar or the Indenture Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer may execute, and, upon receipt of the documents required by Section 6.3, together with an Issuer’s Certificate, the Indenture Trustee will authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor, Series or Class, Stated Maturity Date and Initial Note Balance, bearing a number not contemporaneously Outstanding.
(b) In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note on a Payment Date in accordance with Section 4.5.
(c) Upon the issuance of any new Note under this Section, the Issuer, the Indenture Trustee, or the Note Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
(d) Every new Note issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Note will constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note will be at any time enforceable by anyone, and will be entitled to all the benefits of this Base Indenture equally and proportionately with any and all other Notes of the same Series or Class duly issued hereunder.
(e) The provisions of this Section are exclusive and will preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
Section 6.7. Payment of Interest; Interest Rights Preserved; Withholding Taxes.
(a) Unless otherwise provided with respect to such Note pursuant to Section 6.1, interest payable on any Note will be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the most recent Record Date.
(b) Subject to Section 6.7(a), each Note delivered under this Base Indenture upon transfer of or in exchange for or in lieu of any other Note will carry the rights to interest and fees accrued or principal accreted and unpaid, and to accrue or accrete, which were carried by such other Note.
(c) The right of any Noteholder to receive interest and fees on or principal of any Note shall be subject to any applicable withholding or deduction imposed pursuant to the Code or other applicable tax law, including foreign withholding and deduction. Any amounts properly so withheld or deducted shall be treated as actually paid to the appropriate Noteholder. In addition, in order to receive payments on its Notes free of U.S. federal withholding and backup withholding tax, each Noteholder shall timely furnish the Indenture Trustee on behalf of the Issuer, (1) any applicable IRS Form W-9, W-8BEN, W-8BEN-E, W-8ECI or W-8IMY (with any applicable attachments) and (2) any documentation that is required under FATCA to enable the Issuer, the Indenture Trustee and any other agent of the Issuer to determine their duties and liabilities with respect to any taxes they may be required to withhold in respect of such Note or the Noteholder of such Note or beneficial interest therein, in each case, prior to the first Payment Date after such Noteholder’s acquisition of Notes and at such time or times required by law or that the Indenture Trustee on behalf of the Issuer or their respective agents may reasonably request, and shall update or replace such IRS form or documentation in accordance with its terms or its subsequent amendments. Each Noteholder will provide the applicable replacement IRS form or documentation every three (3) years (or sooner if there is a transfer to a new Noteholder or if required by applicable law). In each case above, the applicable IRS form or documentation shall be properly completed and signed under penalty of perjury.
Section 6.8. Persons Deemed Owners.
The Issuer, the Indenture Trustee, the Note Registrar and any agent of the Issuer, the Indenture Trustee or the Note Registrar may treat the Person in whose name the Note is registered in the Note Registrar as the owner of such Note for the purpose of receiving payment of principal of and (subject to Section 6.7) interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and neither the Issuer, the Indenture Trustee, the Note Registrar, nor any agent of the Issuer, the Indenture Trustee, or the Note Registrar will be affected by notice to the contrary.
Section 6.9. Cancellation.
All Notes surrendered for payment, redemption, transfer, conversion or exchange will, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and, if not already canceled, will be promptly canceled by it. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered will be promptly canceled by the Indenture Trustee. No Note will be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Base Indenture. The Indenture Trustee will dispose of all canceled Notes in accordance with its customary procedures.
Section 6.10. New Issuances of Notes.
(a) Issuance of New Notes. The Issuer may, from time to time, direct the Indenture Trustee, on behalf of the Issuer, to issue new Notes of any Series or Class, so long as the conditions precedent set forth in Section 6.10(b) are satisfied if, at the time of issuance, other Notes have already been issued and remain Outstanding. On or before the Issuance Date of new Notes of any Series or Class of Notes, the Issuer shall execute and deliver the required Indenture Supplement which shall incorporate the principal terms with respect to such additional Series or Class of Notes. The Indenture Trustee shall execute any such Indenture Supplement without the consent of any Noteholders, the Issuer shall execute the Notes of such Series or Class and the Notes of such Series or Class shall be delivered to the Indenture Trustee (along with the other deliverables required hereunder) for authentication and delivery.
(b) Conditions to Issuance of New Notes. The issuance of the Notes of any Series or Class after the Closing Date pursuant to this Section 6.10 shall be subject to the satisfaction of the following conditions:
(i) no later than [***] before the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee, each VFN Noteholder and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, notice of such new issuance;
(ii) on or prior to the date that the new issuance is to occur, the Issuer delivers to the Indenture Trustee and each Note Rating Agency that has rated any Outstanding Note that will remain Outstanding after the new issuance, (A) an Issuer Certificate to the effect that (x) the Issuer reasonably believes that the new issuance will not cause an Adverse Effect on any Outstanding Notes or a Secured Party, and (y) all conditions precedent set forth in this Base Indenture to the issuance of such Notes have been met, (B) an Issuer Tax Opinion with respect to such proposed issuance, and (C) an Opinion of Counsel:
(A) to the effect that all instruments furnished to the Indenture Trustee conform to the requirements of this Base Indenture for the Indenture Trustee to authenticate and deliver such Notes;
(B) to the effect that the form and terms of such Notes have been established in conformity with the provisions of this Base Indenture; and
(C) covering such other matters as the Indenture Trustee may reasonably request;
(iii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee and each Note Rating Agency that is at that time rating Outstanding Notes that will remain Outstanding after the new issuance, an Opinion of Counsel to the effect that the Issuer has the requisite power and authority to issue such Notes and such Notes have been duly authorized and delivered by the Issuer and, assuming due authentication and delivery by the Indenture Trustee, constitute legal, valid and binding obligations of the Issuer enforceable in accordance with their terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws and legal principles affecting creditors’ rights generally from time to time in effect and to general equitable principles, whether applied in an action at law or in equity) and are entitled to the benefits of this Base Indenture, equally and ratably with all other Outstanding Notes, if any, of such Series or Class subject to the terms of this Base Indenture and each Indenture Supplement;
(iv) if any additional conditions to the new issuance are specified in writing to the Issuer by a Note Rating Agency that is at that time rating any Outstanding Note that will remain Outstanding after the new issuance, the Issuer satisfies such conditions, if they are applicable to such Notes;
(v) either (1) the Issuer obtains written confirmation from each Note Rating Agency that is at that time rating any Outstanding Note at the request of the Issuer that will remain Outstanding after the new issuance that the new issuance will not have a Ratings Effect on any Outstanding Notes that are rated by such Note Rating Agency at the request of the Issuer or (2) if the Administrator and the Administrative Agents determine in their reasonable judgment that an applicable Note Rating Agency no longer provides such written confirmation described in the foregoing clause (1), (a) the Administrator shall provide notice of such new issuance to the related Note Rating Agency and (b) each of the parties that would be Administrative Agents after giving effect to the new issuance shall have provided their prior written consent to such new issuance which may be given in reliance in part on the Issuer’s Certificate delivered pursuant to Section 6.10(b)(ii) above;
(vi) no Event of Default shall have occurred and be continuing, as evidenced by an Issuer’s Certificate, unless (a) the proceeds of such new Notes are applied in whole or in part to redeem all other Outstanding Notes and/or (b) the Noteholders of any Notes that will remain Outstanding consent to such issuance of new Notes;
(vii) on or prior to the date that the new issuance is to occur, the Issuer will have delivered to the Indenture Trustee an Indenture Supplement and, if applicable, the Issuer Certificate;
(viii) any Class of MSR VFNs, PIA VFNs or SA VFNs must have the same Stated Maturity Date, Interim Payment Date, and the same method of calculation of its Early Amortization Event Payment Amount(s), if any, Early Termination Event Payment Amount(s), if any, or Scheduled Principal Payment Amount(s), if any, as any and all other Outstanding Classes of MSR VFNs, PIA VFNs or SA VFNs, respectively;
(ix) if any Class of MSR VFNs, PIA VFNs or SA VFNs is beneficially owned by the beneficial owner of the Issuer, all Classes of MSR VFNs, PIA VFNs or SA VFNs, respectively, must be beneficially owned by the beneficial owner of the Issuer for United States federal income tax purposes and the financing of such Class of MSR VFNs, PIA VFNs or SA VFNs, respectively, shall be subject to the requirement for an Issuer Tax Opinion;
(x) for any new Series with respect to which there is a new Administrative Agent not currently set forth under the terms of the definition of “Administrative Agent,” the Administrative Agent shall have consented to the issuance of such Series, unless the Notes in respect of which the existing Administrative Agent’s consent is required, are paid in full and all related commitments terminated in writing by the Issuer and any remaining accrued commitment fees paid in full to such terminated Administrative Agent, in connection with the issuance of the new Series with the different Administrative Agent; and
(xi) any other conditions specified in the applicable Indenture Supplement; provided, however, that any one of the aforementioned conditions may be eliminated (other than clause (v) above and the requirement for an Issuer Tax Opinion) or modified as a condition precedent to any new issuance of a Series or Class of Notes if the Issuer
has obtained approval from each Note Rating Agency that is at that time rating any Outstanding Notes that will remain Outstanding after the new issuance.
(c) No Notice or Consent Required to or from Existing Noteholders and Owners. Except as provided in Section 6.10(b) above, the Issuer and the Indenture Trustee will not be required to provide prior notice to or to obtain the consent of any Noteholder or Note Owner of Notes of any Outstanding Series or Class to issue any additional Notes of any Series or Class.
(d) Other Provisions. There are no restrictions on the timing or amount of any additional issuance of Notes of an Outstanding Series or Class within a Series, of Notes, so long as the conditions described in Section 6.10(b) are met or waived.
(e) Sale Proceeds. The proceeds of sale of any new Series of Notes shall be wired to the Collection and Funding Account, and the Indenture Trustee shall disburse such sale proceeds at the direction of the Administrator on behalf of the Issuer, except to the extent such funds are needed to ensure that no Borrowing Base Deficiency exists. The Administrator on behalf of the Issuer may direct the Issuer to apply such proceeds to reduce pro rata based on Invested Amounts, the VFN Principal Balance of any Classes of Variable Funding Notes, or to redeem any Series of Notes in accordance with Section 13.1. In the absence of any such direction, the proceeds of such sale shall be distributed to loanDepot or at loanDepot’s direction on the Issuance Date for the newly issued Notes. The Administrator shall deliver to the Indenture Trustee a report demonstrating that the release of sale proceeds pursuant to the Issuer’s direction will not cause a Borrowing Base Deficiency, as a precondition to the Indenture Trustee releasing such proceeds.
(f) Increase or Reduction in Maximum VFN Principal Balance. The increase or reduction in the Maximum VFN Principal Balance in respect of any Outstanding Class of Notes, the increase or decrease of any Advance Rates in respect thereof and/or the increase or decrease of interest rates in respect thereof shall not constitute an issuance of “new Notes” for purpose of this Section 6.10.
Article VII
Satisfaction and Discharge; Cancellation of Notes Held by the Issuer or loanDepot
Section 7.1. Satisfaction and Discharge of Indenture.
This Base Indenture will cease to be of further effect with respect to any Series or Class of Notes (except as to any surviving rights of transfer or exchange of Notes of that Series or Class expressly provided for herein or in the form of Note for that Series or Class), and the Indenture Trustee, on demand of and at the expense of the Issuer, will execute proper instruments acknowledging satisfaction and discharge of this Base Indenture, when:
(a) all Notes of that Series or Class theretofore authenticated and delivered (other than (i) Notes of that Series or Class which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 6.6, and (ii) Notes of that Series or Class for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from that trust) have been delivered to the Indenture Trustee canceled or for cancellation or have been redeemed in accordance with Article XIII or the applicable Indenture Supplement (in which case, such redeemed Notes shall be deemed to have been canceled and shall be immediately surrendered to the Indenture Trustee in exchange for the related redemption price);
(b) with respect to the discharge of this Base Indenture for each Series or Class, the Issuer has paid or caused to be paid all sums payable hereunder (including payments to the Indenture Trustee (in all its capacities) pursuant to Section 11.7 with respect to the Notes or in respect of Fees, and any and all other amounts due and payable pursuant to this Base Indenture; and
(c) the Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Base Indenture with respect to the Notes of that Series or Class have been complied with.
Notwithstanding the satisfaction and discharge of this Base Indenture with respect to any Series or Class of Notes, the obligations of the Administrator to the Indenture Trustee with respect to any Series or Class of Notes under Section 11.7 and of the Issuer to the Securities Intermediary under Section 4.9 and the obligations and rights of the Indenture Trustee under Section 7.2 and Section 11.3, respectively, will survive such satisfaction and discharge.
Section 7.2. Application of Trust Money.
All money and obligations deposited with the Indenture Trustee pursuant to Section 7.1 and all money received by the Indenture Trustee in respect of such obligations will be held in trust and applied by it or the Paying Agent, in accordance with the provisions of the Class of Notes in respect of which it was deposited and this Base Indenture and the related Indenture Supplement, to the payment to the Persons entitled thereto, of the principal and interest for whose payment that money and obligations have been deposited with or received by the Indenture Trustee or the Paying Agent.
Section 7.3. Cancellation of Notes Held by the Issuer or loanDepot.
If the Issuer, loanDepot or any of their respective Affiliates holds any Notes, that Noteholder may, subject to any provision of a related Indenture Supplement limiting the repayment of such Notes by notice from that Noteholder to the Indenture Trustee, cause the Notes to be repaid and canceled, whereupon the Notes will no longer be Outstanding; provided, that, such repayment and cancelation shall be subject to the written consent of the Administrative Agent (such consent not to be unreasonably withheld).
Section 7.4. Extinguishment of Issuer’s Rights in Collateral.
(a) The Issuer acknowledges and agrees that upon the issuance of a letter of extinguishment by Ginnie Mae pursuant to the Ginnie Mae Contract or the Acknowledgment Agreement (a “Letter of Extinguishment”) to Servicer, such Letter of Extinguishment shall, except as otherwise provided in the Acknowledgment Agreement, result in the complete extinguishment of all redemption, equitable, legal or other right, title or interest of the Servicer in the Pooled Mortgages and any servicing income (including the related MSRs) derived therefrom, therefore instantly and automatically extinguishing the security interest granted hereunder as it relates in any way to the Pooled Mortgages.
(b) As a result of the extinguishment of Servicer’s rights in all or a portion of the Collateral, Issuer acknowledges that:
(1) the Indenture Trustee, on behalf of the Noteholders, shall have rights pursuant to the Acknowledgment Agreement with respect to the Pooled Mortgages (including, but not limited to, the ability to appoint a “standby issuer” that will assume
the duties rights and obligations of the Servicer with respect to the Pooled Mortgages); and
(2) notwithstanding such rights, none of the Indenture Trustee, the Administrative Agent or the Noteholders shall have any responsibility, express or implied, to protect or consider Servicer’s rights or interests in connection with any of the Indenture Trustee’s actions or inactions pursuant to the Acknowledgment Agreement, including the receipt of any amounts with respect to the Pooled Mortgages following any transfer of Issuer responsibility.
(c) Any amounts received by the Indenture Trustee or any standby issuer appointed or otherwise designated by the Indenture Trustee in connection with the Acknowledgment Agreement shall be applied first, to satisfy any costs and expenses of the Indenture Trustee, such standby issuer or any of their affiliates in connection with any of the transactions contemplated by any of the Transaction Documents and second, to reduce the other obligations.
(d) The Servicer acknowledges that, notwithstanding the extinguishment of its rights in the Pooled Mortgages, it remains obligated in accordance with the terms hereof to the extent that any amounts payable to the Indenture Trustee, the Administrative Agent, the Noteholders or any Indemnified Party hereunder have not been paid in full.
(e) Any provision providing for the exercise of any action or discretion by the Indenture Trustee, (i) with respect to Section 8 of the Acknowledgment Agreement as a result of an event of default under the Ginnie Mae Contract (including, but not limited to, the appointment of a Standby Issuer or to effect the cure required under the Acknowledgment Agreement), shall be exercised by the Indenture Trustee at the written direction of [***]% of the VFN Noteholders, and (ii) with respect to any other provision of the Acknowledgment Agreement (other than Section 8 thereof), including any provisions governing the amendment thereof, shall be exercised by the Indenture Trustee at the written direction of the Majority Noteholders of all Outstanding Notes.
Article VIII
Events of Default and Remedies
Section 8.1. Events of Default.
“Event of Default” means, any one of the following events (whatever the reason for such Event of Default, and whether it is voluntary or involuntary, or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) unless otherwise specified in any Indenture Supplement with respect to any Class, default (which default continues for a period of [***] following written notice (which may be in electronic form) from the Indenture Trustee or the Administrative Agent), in the payment: (1) of (i) any interest or any Fees due and owing on any Payment Date, (ii) any Scheduled Principal Payment Amount due and owing on any date, (iii) any Early Amortization Event Payment Amount due and owing on any date or (iv) any Early Termination Event Payment Amount due and owing on any date; or (2) in full of all accrued and unpaid interest and the outstanding Note Balance of the Notes of any Series or Class as of the applicable Stated Maturity Date;
(b) the occurrence of an Insolvency Event as to the Issuer, the Administrator or the Servicer;
(c) the Issuer or the Trust Estate shall have become subject to registration as an “investment company” within the meaning of the Investment Company Act as determined by a court of competent jurisdiction in a final and non-appealable order;
(d) loanDepot sells, transfers, pledges or otherwise disposes of the Owner Trust Certificate (except to a wholly-owned subsidiary of loanDepot) other than pursuant to the terms and provisions of the Transaction Documents, whether voluntarily or by operation of law, foreclosure or other enforcement by a Person of its remedies against loanDepot, except with the consent of the Administrative Agent;
(e) (i) any material provision of any Transaction Document shall at any time for any reason (other than pursuant to the express terms hereof or thereof) cease to be valid and binding on or enforceable against the Issuer, the Administrator, the Servicer or any of their respective Affiliates intended to be a party thereto, (ii) the validity or enforceability of any Transaction Document shall be contested by the Issuer, the Administrator, the Servicer or any of their respective Affiliates, (iii) a proceeding shall be commenced by the Issuer, the Administrator, the Servicer or any of their respective Affiliates or any governmental body having jurisdiction over the Issuer, the Administrator, the Servicer or any of their respective Affiliates, seeking to establish the invalidity or unenforceability of any Transaction Document, or (iv) the Issuer, the Administrator, the Servicer or any of their respective Affiliates shall deny in writing that it has any liability or obligation purported to be created under any Transaction Document;
(f) the Administrator or any Affiliate thereof has taken any action which, or failed to take any action the omission of which, could reasonably be expected to materially impair the interests of the Issuer in the Participation Certificates or the security interest or rights of the Indenture Trustee in the Trust Estate, subject only to the interests and rights of Ginnie Mae; provided, however, that if the event is capable of being cured in all respects by corrective action and has not resulted in a material adverse effect on the Noteholders’ interests in the Trust Estate, such event shall not become an Event of Default unless it remains uncured for [***] following the date on which a Responsible Officer of the Administrator has obtained actual knowledge of its occurrence;
(g) following a Payment Date on which a draw is made on a Series Reserve Account, the amount on deposit in such Series Reserve Account is not increased back to the related Series Reserve Required Amount (if applicable) within the time frame set forth in the related Indenture Supplement;
(h) (A) any United States federal income tax is imposed on the Issuer as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes, or any U.S. withholding tax is imposed on payments to the Issuer with respect to the Participation Certificate or (B) a tax, ERISA, or other government lien, in any case, other than any Permitted Lien, is imposed on the Participation Certificate or any property of the Issuer;
(i) the occurrence of a Borrowing Base Deficiency which continues for a period of [***] following written notice from the Indenture Trustee or the Administrative Agent;
(j) the occurrence and continuation of an “Event of Default” (as defined in the PC Repurchase Agreement) under the PC Repurchase Agreement;
(k) failure to deposit the amounts designated as “Advance Rate Reduction Event Reserve Amounts” to the Collection and Funding Account prior to a Payment Date on which the Advance Rate Reduction Event Reserve Required Amounts are owed and sufficient to be equal to such Advance Rate Reduction Event Reserve Required Amounts;
(l) any failure by loanDepot to deliver (i) any Determination Date Report pursuant to Section 3.2 or (ii) any MSR and Advance Monthly Report pursuant to Section 3.3(f), which continues unremedied for a period of [***] after a Responsible Officer of loanDepot shall have obtained actual knowledge of such failure, or shall have received written or electronic notice from the Indenture Trustee or any Noteholder of such failure;
(m) (i) (A) loanDepot shall fail to materially comply with the requirements of Sections 10.2(n), 10.3(b), 10.3(c) or 10.3(e), or (B) loanDepot shall fail to provide notice of an Event of Default pursuant to the requirements set forth in this Section 8.1; or (ii) the Issuer, the Servicer or the Administrator shall breach or default in the due observance or performance of any of its other covenants or agreements in this Base Indenture, any Indenture Supplement or any other Transaction Document in any material respect (subject to any cure period provided therein), and any such default shall continue for a period of [***] after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Servicer or the Administrator, as applicable, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Indenture Trustee or any Noteholder to a Responsible Officer of the Issuer, the Servicer or the Administrator;
(n) (i) any representation or warranty of the Issuer, the Servicer or the Administrator made in this Base Indenture, any Indenture Supplement or any other Transaction Document in any material respect (other than under the PC Repurchase Agreement) shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of [***] after the earlier to occur of (a) actual discovery by a Responsible Officer of the Issuer, the Servicer or the Administrator, as applicable, or (b) the date on which written notice of such failure, requiring the same to be remedied, shall have been given to a Responsible Officer of the Issuer, the Servicer or the Administrator, as applicable;
(o) (i) a final judgment or judgments for the payment of money in excess of $[***] in the aggregate shall be rendered against the Issuer by one or more courts, administrative tribunals or other bodies having jurisdiction over it or (ii) an order of any court, administrative agency, arbitrator or governmental body shall be rendered against loanDepot or the Issuer, which remains unpaid or unstayed for a period of [***] or more consecutive days and would reasonably be expected to have a material Adverse Effect on the transactions contemplated hereunder, taken as a whole;
(p) the failure by the Servicer to make a required MBS Advance;
(q) following a Payment Date on which a draw is made on the Expense Reserve Account, the amount on deposit in the Expense Reserve Account is not increased back to the related Expense Reserve Required Amount prior to the next Payment Date;
(r) following a Payment Date on which a draw is made on the Credit Manager Expense Reserve Account, the amount on deposit in the Credit Manager Expense Reserve Account is not increased back to the related Credit Manager Expense Reserve Required Amount prior to the next Payment Date;
(s) the occurrence of any action by Ginnie Mae pursuant to Section 8 of the Acknowledgment Agreement to terminate and extinguish the rights of loanDepot as servicer;
(t) the occurrence of a Subservicer Termination Event;
(u) the occurrence of any other event designated as an Event of Default in the related Indenture Supplement.
Upon the occurrence of any such event neither the Administrator nor the Servicer shall be relieved from performing its obligations in a timely manner in accordance with the terms of this Base Indenture, and each of the Administrator and the Servicer shall provide the Indenture Trustee, each Note Rating Agency for each Note then Outstanding, the Credit Manager and the Noteholders prompt notice of such failure or delay by it, together with a description of its effort to perform its obligations. Each of the Administrator, the Servicer and the Credit Manager shall promptly notify the Indenture Trustee in writing of any Event of Default or an event which with notice, the passage of time or both would become an Event of Default of which it has actual knowledge. For purposes of this Section 8.1, the Indenture Trustee shall not be deemed to have knowledge of an Event of Default unless a Responsible Officer of the Indenture Trustee assigned to and working in the Corporate Trust Office has actual knowledge thereof or unless written notice of any event which is in fact such an Event of Default is received by the Indenture Trustee from the Administrative Agent and such notice references the Notes, the Trust Estate or this Base Indenture. The Indenture Trustee shall provide notice of defaults in accordance with Section 3.3(b) and Section 11.2.
Section 8.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default of the kind specified in clauses (b), (c) or (s) of Section 8.1 occurs, the unpaid principal amount of all of the Notes shall automatically become immediately due and payable without notice, presentment or demand of any kind. If any other Event of Default occurs and is continuing, then and in each and every such case, the Indenture Trustee, at the written direction of any of (1) the Administrative Agent, (2) the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes (excluding any Retained Notes) or (3) the Majority Noteholders for any Series of Variable Funding Notes Outstanding (excluding any Retained Notes), may declare the Note Balance of all the Outstanding Notes and all interest and principal accrued and unpaid (if any) thereon and all other amounts due and payable under any Transaction Document to be due and payable immediately, and upon any such declaration each Note will become and will be immediately due and payable and the Revolving Period with respect to such Series or Class shall immediately terminate, anything in this Base Indenture, the related Indenture Supplement(s) or in the Notes to the contrary notwithstanding. Such payments are subject to the allocation, deposits and payment sections of this Base Indenture and of the related Indenture Supplement(s).
(b) At any time after such a declaration of acceleration has been made or an automatic acceleration has occurred with respect to the Notes of any Series or Class and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereafter provided in this Article VIII, the Majority Noteholders of all Outstanding Notes, by written notice to the Issuer and the Indenture Trustee, shall rescind and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay (A) all overdue installments of interest on such Notes, (B) the principal of such Notes which has become due otherwise than by such declaration of acceleration, and interest thereon at the rate or rates prescribed therefor by the terms of such Notes, to the extent that payment of such interest is lawful, (C) interest upon overdue installments of interest at the rate or rates prescribed therefore by the terms of such Notes to the extent that payment of such interest is lawful, and (D) all sums paid by the Indenture Trustee hereunder, and the reasonable compensation, expenses and disbursements of the Indenture Trustee or the bank servicing as Indenture Trustee (in any of its capacities), their agents and counsel, all other amounts due under Section 4.5; and
(ii) all Events of Default, other than the nonpayment of the principal of such Notes which has become due solely by such acceleration, have been cured or waived as provided in Section 8.14.
No such rescission will affect any subsequent default or impair any right consequent thereon.
Section 8.3. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.
The Issuer covenants that if:
(a) the Issuer defaults in the payment of interest on any Notes when such interest becomes due and payable, which default continues for a period of [***] following written notice from the Indenture Trustee of such default; or
(b) the Issuer defaults in the payment of the principal of any Series or Class of Notes on the Stated Maturity Date thereof; then
(c) the Issuer will, upon demand of the Indenture Trustee, pay (subject to the allocation provided in Section 4.5(a)(4) hereof and any related Indenture Supplement) to the Indenture Trustee, for the benefit of the Noteholders of any such Notes, the whole amount then due and payable on any such Notes for principal and interest, together with any Cumulative Interest Shortfall Amounts, unless otherwise specified in the applicable Indenture Supplement, and in addition thereto, will pay such further amount as will be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and the bank servicing as Indenture Trustee (in any of its capacities), their agents and counsel and all other amounts due under Section 4.5.
If the Issuer fails to pay such amounts forthwith upon such demand, the Indenture Trustee may, in its own name and as trustee of an express trust, institute a judicial proceeding for the collection of the sums so due and unpaid, and may directly prosecute such proceeding to judgment or final decree, and the Indenture Trustee may enforce the same against the Issuer or any other obligor upon the Notes and collect the money adjudged or decreed to be payable in the manner provided by law and this Base Indenture.
Section 8.4. Indenture Trustee May File Proofs of Claim.
In case of the pendency of any Insolvency Event or other similar proceeding or event relative to the Issuer or any other obligor upon the Notes or the property of the Issuer or of such other obligor, the Indenture Trustee (irrespective of whether the principal of the Notes will then be due and payable as therein expressed or by declaration or otherwise) will be entitled and empowered by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Indenture Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee, its agents and counsel and all other amounts due under Section 4.5) and of the Noteholders allowed in such judicial proceeding; and
(b) to collect and receive any funds or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator or other similar official in any such proceeding is hereby authorized by each Noteholder to make such
payment to the Indenture Trustee and the bank servicing as Indenture Trustee (in all its capacities), and in the event that the Indenture Trustee consents to the making of such payments directly to the Noteholders, to pay to the Indenture Trustee and the bank servicing as Indenture Trustee (in all its capacities) any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and the bank servicing as Indenture Trustee (in all its capacities), their agents and counsel, and any other amounts due the Indenture Trustee and the bank servicing as Indenture Trustee (in all its capacities) under Section 4.5.
Nothing herein contained will be deemed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding.
Section 8.5. Indenture Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Base Indenture or the Notes of any Series or Class are subject to Ginnie Mae Requirements and may be prosecuted and enforced by the Indenture Trustee, without the possession of any of the Notes of such Series or Class or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Indenture Trustee, will be brought in its own name as trustee of an express trust, and any recovery of judgment will, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its respective agents and counsel, be for the ratable benefit of the Noteholders of the Notes of such Series or Class in respect of which such judgment has been recovered.
Section 8.6. Application of Money Collected.
Any money or other property collected by the Indenture Trustee pursuant to this Article VIII will be applied in accordance with Section 4.5(a)(4), at the Final Payment Date fixed by the Indenture Trustee and, in case of the payment of such money on account of principal, interest or fees, upon presentation of the Notes of the related Series or Class and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid.
Section 8.7. Sale of Collateral Requires Consent of Noteholders.
Subject to Ginnie Mae Requirements, the Indenture Trustee shall not sell Collateral or cause the Issuer to sell Collateral following any Event of Default, except with the written consent, or at the direction of, the Majority Noteholders of each Series; provided, that the Indenture Trustee shall, subject to the consent of Ginnie Mae, and pursuant to the terms of the Credit Management Agreement, sell Collateral or cause the Issuer to sell Collateral without prior consent of any of the Noteholders if an Event of Default under clauses (b), (c) or (s) of Section 8.1 occurs. Notwithstanding the foregoing, the consent of [***]% of the Noteholders of the Outstanding Notes of each Series shall be required for any sale that does not generate sufficient proceeds to pay the Note Balance of all such Notes plus all accrued and unpaid interest and other amounts owed in respect of such Notes and the Transaction Documents. If such direction has been given by the Noteholders of the requisite percentage of all Outstanding Notes, the Indenture Trustee shall, subject to Ginnie Mae Requirements and the terms of the Acknowledgment Agreement, cause the Issuer to sell Collateral pursuant to Section 8.15, and shall provide notice of this to each Note Rating Agency of then Outstanding Notes.
Section 8.8. Limitation on Suits.
No Noteholder will have any right to institute any proceeding, judicial or otherwise, with respect to this Base Indenture or any Note, or for the appointment of a receiver or trustee or similar official, or for any other remedy hereunder, unless:
(a) such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default with respect to Notes of such Noteholder’s Notes’ Series or Class;
(b) the Noteholders of more than [***]% of the Note Balance of the Outstanding Notes of each Series, measured by Voting Interests, have made written request to the Indenture Trustee to institute proceedings in respect of such Event of Default in the name of the Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the Indenture Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; and
(d) the Indenture Trustee, for [***] after the Indenture Trustee has received such notice, request and offer of indemnity, has failed to institute any such proceeding; it being understood and intended that no one or more Noteholders of Notes of such Series or Class will have any right in any manner whatsoever by virtue of, or by availing of, any provision of this Base Indenture or any Note to affect, disturb or prejudice the rights of any other Noteholders of Notes, or to obtain or to seek to obtain priority or preference over any other such Noteholders or to enforce any right under this Base Indenture or any Note, except in the manner herein provided and for the equal and proportionate benefit of all the Noteholders of all Notes.
Section 8.9. Limited Recourse.
Notwithstanding any other terms of this Base Indenture, the Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Notes, this Base Indenture and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Base Indenture, none of the Noteholders, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. Subject to the foregoing and to the terms of the applicable Indenture Supplement, each Noteholder will, however, have the absolute and unconditional right to receive payment of all amounts due with respect to the Notes pursuant and respect to the terms of the Indenture, which right shall not be impaired without the consent of each Noteholder and to initiate suit for the enforcement of any such payment, which right shall not be impaired without the consent of such Noteholder. No recourse shall be had for the payment of any amount owing in respect of the Notes or this Base Indenture or for any action or inaction of the Issuer against any officer, director, employee, equity holder or organizer of the Issuer or any of their successors or assigns for any amounts payable under the Notes or this Base Indenture. It is understood that the foregoing provisions of this Section 8.9 shall not (i) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (ii) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Notes or secured by this Base Indenture. It is further understood that the foregoing provisions of this Section 8.9 shall not limit the right of any Person, to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Notes or this Base Indenture, so long as no judgment in the nature of a
deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 8.10. Restoration of Rights and Remedies.
If the Indenture Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Base Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Issuer, the Indenture Trustee and the Noteholders will, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders will continue as though no such proceeding had been instituted.
Section 8.11. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy will, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 8.12. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of Default will impair any such right or remedy or constitute a waiver of any such Event of Default or acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
Section 8.13. Control by Noteholders.
Either [***]% of the VFN Noteholders or the Majority Noteholders of all Outstanding Notes will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred on the Indenture Trustee with respect to such Notes; provided that:
(a) the Indenture Trustee will have the right to decline to follow any such direction if the Indenture Trustee, being advised by counsel, determines that the action so directed may violate applicable law or would conflict with this Base Indenture or if the Indenture Trustee in good faith determines that the proceedings so directed would have a substantial likelihood of involving it in personal liability or be unjustly prejudicial to the Noteholders not taking part in such direction, unless the Indenture Trustee has received indemnity satisfactory to it from the Noteholders;
(b) the Indenture Trustee may take any other action permitted hereunder deemed proper by the Indenture Trustee which is not inconsistent with such direction; and
(c) to the extent there are conflicting directions between [***]% of the VFN Noteholders and the Majority Noteholders, the Indenture Trustee will take its direction from [***]% of the VFN Noteholders (excluding any Retained Notes).
Section 8.14. Waiver of Past Defaults.
Together, the Majority Noteholders of all Outstanding Notes that are not Variable Funding Notes, the Majority Noteholders for any Series of Variable Funding Notes Outstanding and the Administrative Agent may on behalf of the Noteholders of all such Notes waive any past default hereunder and its consequences, except a default not theretofore cured:
(a) in the payment of the principal of or interest on any Note, or
(b) in respect of a covenant or provision hereof which under Article XII cannot be modified or amended without the consent of the Noteholder of each Outstanding Note.
Upon any such waiver, such default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, for every purpose of this Base Indenture; but no such waiver will extend to any subsequent or other default or impair any right consequent thereon.
Section 8.15. Sale of Trust Estate.
(a) The power to effect any Sale of any portion of the Trust Estate shall not be exhausted by any one or more Sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall have been sold or all amounts payable on the Notes and under this Base Indenture with respect thereto shall have been paid. The Indenture Trustee may from time to time postpone any public Sale by public announcement made at the time and place of such Sale.
(b) Unless the Majority Noteholders of all Outstanding Series have otherwise provided its written consent to the Indenture Trustee, at any public Sale of all or any portion of the Trust Estate at which a minimum bid equal to or greater than all amounts due to the Indenture Trustee hereunder and the entire amount which would be payable to the Noteholders in full payment thereof in accordance with Section 8.6, on the Payment Date next succeeding the date of such sale, has not been received, the Indenture Trustee shall prevent such sale by bidding an amount at least $[***]more than the highest other bid in order to preserve the Trust Estate.
(c) In connection with a Sale of all or any portion of the Trust Estate:
(i) any of the Noteholders may bid for and purchase the property offered for Sale, and upon compliance with the terms of sale may hold, retain and possess and dispose of such property, without further accountability;
(ii) the Indenture Trustee may bid for and acquire the property offered for Sale in connection with any Sale thereof;
(iii) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring its interest in any portion of the Trust Estate in connection with a Sale thereof;
(iv) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey its interest in any portion of the Trust Estate in connection with a Sale thereof, and to take all action necessary to effect such Sale; and
(v) no purchaser or transferee at such a Sale shall be bound to ascertain the Indenture Trustee’s authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys.
(d) Notwithstanding anything to the contrary in this Base Indenture, and subject to Ginnie Mae Requirements, if an Event of Default has occurred and is continuing and the Notes have become due and payable or have been declared due and payable and such declaration and its consequences have not been rescinded and annulled, any proceeds received by the Indenture Trustee with respect to a foreclosure, sale or other realization resulting from a transfer of the assets of the Trust Estate shall be allocated in accordance with Section 4.5(a)(4) hereof. The amount, if any, so allocated to the Issuer shall be paid by the Indenture Trustee to or to the order of the Issuer free and clear of the Adverse Claim of this Base Indenture and the Noteholders shall have no claim or rights to the amount so allocated.
Section 8.16. Undertaking for Costs.
All parties to this Base Indenture agree, and each Noteholder by its acceptance thereof will be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Base Indenture, or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section will not apply to any suit instituted by the Indenture Trustee, to any suit instituted by any Noteholder or group of Noteholders holding in the aggregate more than [***]% of the Note Balance of the Outstanding Notes of each Series (measured by Voting Interests) to which the suit relates, or to any suit instituted by any Noteholders for the enforcement of the payment of the principal of or interest on any Note on or after the applicable Stated Maturity Date expressed in such Note.
Section 8.17. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Base Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 8.18. Notice of Waivers.
Promptly (and in no event later than [***] following the occurrence thereof), after any waiver of an Event of Default pursuant to Section 4.12, or any rescission or annulment of a declaration of acceleration pursuant to Section 8.2(b), or any waiver of past default pursuant to Section 8.14, the Issuer will notify all related Note Rating Agencies, Ginnie Mae and the Credit Manager in writing.
Article IX
The Issuer
Section 9.1. Representations and Warranties of Issuer.
The Issuer hereby makes the following representations and warranties for the benefit of each of the Servicer, the Administrator, the Indenture Trustee, the Credit Manager and the Noteholders. The representations and warranties set out herein shall be made as of the Closing Date, as of the Effective Date, as of the execution and delivery of each Indenture Supplement, and as of each Funding Date and as of each date of Grant of a Security Interest and shall survive such Grant of a Security Interest in the Participation Certificates to the Indenture Trustee.
(a) Organization and Good Standing. The Issuer is duly organized and validly existing as a statutory trust and is in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. The Issuer has appointed and authorized the Administrator as the Issuer’s agent pursuant to the Administration Agreement where notices and demands to or upon the Issuer in respect of the Notes of this Base Indenture may be served.
(b) Power and Authority. The Issuer has and will continue to have the power and authority to execute and deliver this Base Indenture and the other Transaction Documents to which it is or will be a party, and to carry out their respective terms; the Issuer had and has had at all relevant times and now has full power, authority and legal right to acquire, own, hold and Grant a Security Interest in the Trust Estate and has duly authorized such Grant to the Indenture Trustee; and the execution, delivery and performance by the Issuer of this Base Indenture and each of the other Transaction Documents to which it is a party has been and, in the case of any relevant Indenture Supplement or Transaction Document which has not yet been executed, will be, duly authorized by all necessary action of the Issuer.
(c) Valid Transfers; Binding Obligations. This Base Indenture creates a valid Grant of a Security Interest in the Participation Certificates which has been validly perfected and is a first priority Security Interest under the UCC, and in such other portion of the Collateral as to which a Security Interest may be granted under the UCC, which security interest is enforceable against creditors of, and purchasers from, the Issuer, subject to applicable law. Each of the Transaction Documents to which the Issuer is a party constitutes a legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting creditors’ rights generally or by general equity principles.
(d) No Violation. The execution and delivery by the Issuer of this Base Indenture and each other Transaction Document to which it is a party and the consummation of the transactions contemplated by this Base Indenture and the other Transaction Documents and the fulfillment of the terms of this Base Indenture and the other Transaction Documents do not conflict with, result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under the Organizational Documents of the Issuer or any indenture, agreement or other material instrument to which the Issuer is a party or by which it is bound, or result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than this Base Indenture), or violate any law, order, judgment, decree, writ, injunction, award, determination, rule or regulation applicable to the Issuer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Issuer
or its properties, which breach, default, conflict, Adverse Claim or violation could reasonably be expected to have a material Adverse Effect.
(e) No Proceedings. There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or to the Issuer’s knowledge, threatened, against or affecting the Issuer: (i) asserting the invalidity of this Base Indenture, the Notes or any of the other Transaction Documents to which the Issuer is a party, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Base Indenture, or any of the other Transaction Documents, (iii) seeking any determination or ruling which could reasonably be expected to have a material Adverse Effect or could reasonably be expected to materially and adversely affect the condition (financial or otherwise), business or operations of the Issuer, or (iv) relating to the Issuer and which could reasonably be expected to adversely affect the United States federal income tax attributes of the Notes.
(f) No Subsidiaries. The Issuer has no subsidiaries.
(g) All Tax Returns True, Correct and Timely Filed. All tax returns required to be filed by the Issuer in any jurisdiction have in fact been filed and all taxes, assessments, fees and other governmental charges upon the Issuer or upon any of its properties, and all income of franchises, shown to be due and payable on such returns have been paid except for any such taxes, assessments, fees and charges the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Issuer had established adequate reserves in accordance with GAAP. All such tax returns were true and correct in all material respects and the Issuer knows of no proposed additional tax assessment against it that could reasonably be expected to have a material adverse effect upon the ability of the Issuer to perform its obligations hereunder nor of any basis therefor. The provisions for taxes on the books of the Issuer are in accordance with GAAP.
(h) No Restriction on Issuer Affecting its Business. The Issuer is not a party to any contract or agreement, or subject to any charter or other restriction, which materially and adversely affects its business, and the Issuer has not agreed or consented to cause any of its assets or properties to become subject to any Adverse Claim other than the Security Interest or any Permitted Liens.
(i) Title to Participation Certificate. As represented by loanDepot in the PC Repurchase Agreement, immediately prior to the Grant thereof to the Indenture Trustee as contemplated by this Base Indenture, subject to Ginnie Mae Requirements with respect thereto, the Issuer had good and marketable title to the Participation Certificates, free and clear of all Adverse Claims other than any Permitted Liens and rights of others.
(j) Perfection of Security Interest. All filings and recordings that are necessary to perfect the interest of the Issuer in the Participation Certificates and such other portion of the Trust Estate as to which a sale or security interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect. All filings and recordings against the Issuer required to perfect the Security Interest of the Indenture Trustee in such Participation Certificate and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, have been accomplished and are in full force and effect, and all such filings and recordings against the Issuer include the legends set forth as clauses (1) through (4) of the fourth full paragraph of the Granting Clause. Subject to the rights of Ginnie Mae with respect thereto, other than the Security Interest granted to the Indenture Trustee pursuant to this Base Indenture, the Issuer has not pledged, assigned, sold, or granted a Security Interest in, or otherwise conveyed the Participation Certificates or any other Collateral. The Issuer has not authorized the filing of and is not aware of any financing statement filed against
the Issuer that includes a description of collateral covering the Participation Certificates other than (1) any financing statement related to the Security Interest granted to the Indenture Trustee hereunder or (2) that has been terminated.
(k) Notes Authorized, Executed, Authenticated, Validly Issued and Outstanding. The Notes have been duly and validly authorized and, when duly and validly executed and authenticated by the Indenture Trustee in accordance with the terms of this Base Indenture and delivered to and paid for by each purchaser as provided herein, will be validly issued and outstanding and entitled to the benefits hereof.
(l) Location of Chief Executive Office and Records. The chief executive office of the Issuer and the office where Issuer maintains copies of its corporate records, is located at the offices of the Administrator at 6561 Irvine Center Drive, Irvine, CA 92618; provided that, at any time after the Closing Date, upon [***] prior written notice to the Indenture Trustee and the Noteholders, the Issuer may relocate its jurisdiction of formation, and/or its principal place of business and chief executive office, and/or the office where it maintains all of its records, to another location or jurisdiction, as the case may be, within the United States to the extent that the Issuer shall have taken all actions necessary or reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Indenture Trustee or the Majority Noteholders of all Outstanding Notes to further perfect or evidence the rights, claims or security interests of the Indenture Trustee and the Noteholders under any of the Transaction Documents.
(m) Solvency. The Issuer: (i) is not “insolvent” (as such term is defined in § 101(32)(A) of the Bankruptcy Code); (ii) is able to pay its debts as they become due; and (iii) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage. The Issuer is not Granting the Trust Estate to the Indenture Trustee with the intent to defraud, delay or hinder any of its creditors.
(n) Separate Identity. The Issuer is operated as an entity separate from the Servicer and the Administrator. The Issuer has complied with all covenants set forth in its Organizational Documents.
(o) Name. The legal name of the Issuer is as set forth in this Base Indenture and the Issuer does not use and has not used any other trade names, fictitious names, assumed names or “doing business as” names.
(p) Governmental Authorization. Other than the filing of the financing statements (or financing statement amendments) required hereunder or under any other Transaction Document, no authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for (i) the due execution and delivery by Issuer of this Base Indenture and each other Transaction Document to which it is a party and (ii) the performance of its obligations hereunder and thereunder.
(q) Accuracy of Information. All information heretofore furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders for purposes of or in connection with this Base Indenture, any of the other Transaction Documents or any transaction contemplated hereby or thereby is, and all such information hereafter furnished by the Issuer or any of its Affiliates to the Indenture Trustee or the Noteholders will be, true and accurate in every material respect on the date such information is stated or certified.
(r) Use of Proceeds. No proceeds of any issuance of Notes or funding under a VFN hereunder will be used for a purpose that violates, or would be inconsistent with, Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.
(s) Investment Company. The Issuer is not required to be registered as an “investment company” within the meaning of the Investment Company Act, or any successor statute.
(t) Compliance with Law. The Issuer has complied in all material respects with all applicable laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject.
(u) Investments. The Issuer does not own or hold, directly or indirectly (i) any capital stock or equity security of, or any equity interest in, any Person or (ii) any debt security or other evidence of indebtedness of any Person.
(v) Transaction Documents. The PC Repurchase Agreement is the only agreement pursuant to which the Issuer directly or indirectly purchases and receives contributions of the Participation Certificate from loanDepot and the PC Repurchase Agreement represents the only agreement between loanDepot and the Issuer relating to the transfer of the Participation Certificates from loanDepot to the Issuer.
(w) Limited Business. Since its formation, the Issuer has conducted no business other than entering into and performing its obligations under the Transaction Documents to which it is a party, and such other activities as are incidental to the foregoing. The Transaction Documents to which it is a party, and any agreements entered into in connection with the transactions that are permitted thereby, are the only agreements to which the Issuer is a party.
Section 9.2. Liability of Issuer; Indemnities.
(a) Obligations. The Issuer shall be liable in accordance with this Base Indenture only to the extent of the obligations in this Base Indenture specifically undertaken by the Issuer in such capacity under this Base Indenture and shall have no other obligations or liabilities hereunder. The Issuer shall indemnify, defend and hold harmless the Indenture Trustee, the Custodian, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar, the Credit Manager, the Servicer, the Administrator, the Noteholders (as applicable, with respect to the related Series of Notes) and the Trust Estate (each an “Issuer Indemnified Party”) from and against any taxes that may at any time be asserted against the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Note Registrar, the Credit Manager, the Servicer, the Administrator, or the Trust Estate with respect to the transactions contemplated in this Base Indenture or any of the other Transaction Documents, including any sales, gross receipts, general corporation, tangible or intangible personal property, privilege or license taxes (but not including any taxes asserted with respect to, and as of the date of, the transfer of the Participation Certificates to the Trust Estate, the issuance and original sale of the Notes of any Class, or asserted with respect to ownership of the Participation Certificates, or federal, state or local income or franchise taxes or any other tax, or other income taxes arising out of payments on the Notes of any Class, or any interest or penalties with respect thereto or arising from a failure to comply therewith) and costs and expenses, including reasonable legal fees and expenses, in defending against the same and in connection with the Issuer Indemnified Parties’ enforcement of any rights hereunder or under any Transaction Document, except that in no event shall the Issuer be required to indemnify any Issuer Indemnified Party if the indemnification obligation under this Section 9.2(a) to such Issuer Indemnified Party is the result of a violation of law, gross negligence or willful misconduct by such Issuer Indemnified Party.
(b) Notification and Defense. Promptly after any Issuer Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against the Issuer under this Section 9.2, the Issuer Indemnified Party shall notify the Issuer and the Administrator in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Issuer shall not relieve the Issuer from any liability which it may have hereunder or otherwise, except to the extent that the Issuer is prejudiced by such failure so to notify the Issuer. The Issuer shall be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Issuer Indemnified Party, and, after notice from the Issuer to such Issuer Indemnified Party that the Issuer wishes to assume the defense of any such action, the Issuer will not be liable to such Issuer Indemnified Party under this Section 9.2 for any legal or other expenses subsequently incurred by such Issuer Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Issuer Indemnified Party and the Issuer, and the Issuer Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the Issuer, or one or more Issuer Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Issuer and such Issuer Indemnified Party, (ii) the Issuer shall not have employed counsel reasonably satisfactory to the Issuer Indemnified Party to represent the Issuer Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Issuer has authorized the employment of counsel for the Issuer Indemnified Party at the expense of the Issuer; then, in any such event, such Issuer Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Issuer; provided, however, that the Issuer shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Issuer Indemnified Parties. Each Issuer Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Issuer in the defense of any such action or claim. The Issuer shall not, without the prior written consent of any Issuer Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Issuer Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Issuer Indemnified Party, unless such settlement includes an unconditional release of such Issuer Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses. Indemnification under this Section 9.2 shall include reasonable and customary out-of-pocket fees and expenses of counsel and expenses of litigation. If the Issuer has made any indemnity payments pursuant to this Section 9.2 and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts collected to the Issuer, without interest.
(d) Survival. The provisions of this Section 9.2 shall survive the termination of this Base Indenture.
Section 9.3. Merger or Consolidation, or Assumption of the Obligations, of the Issuer.
Any Person (a) into which the Issuer may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which the Issuer shall be a party, or (c) which may succeed to all or substantially all of the business or assets of the Issuer, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation
of the Issuer under this Base Indenture, shall be the successor to the Issuer under this Base Indenture without the execution or filing of any document or any further act on the part of any of the parties to this Base Indenture, except that if the Issuer in any of the foregoing cases is not the surviving entity, then the surviving entity shall execute an agreement of assumption to perform every obligation of the Issuer under the Transaction Documents, and the surviving entity shall have taken all actions necessary or reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to amend its existing financing statements and continuation statements, and file additional financing statements and to take any other steps reasonably requested by the Issuer, the Majority Noteholders of all Outstanding Notes or the Indenture Trustee to further perfect or evidence the rights, claims or security interests of the Issuer, the Noteholders or the Indenture Trustee under any of the Transaction Documents. The Issuer (i) shall provide notice of any merger, consolidation or succession pursuant to this Section 9.3 to each Note Rating Agency that has rated any then-Outstanding Notes, the Indenture Trustee and the Noteholders, (ii) for so long as the Notes are Outstanding, (1) shall receive from each Note Rating Agency rating Outstanding Notes a letter to the effect that such merger, consolidation or succession will not result in a qualification, downgrading or withdrawal of the then current ratings assigned by such Note Rating Agency to any Outstanding Notes or (2) if the Administrator and the Administrative Agents determine in their reasonable judgment that an applicable Note Rating Agency no longer provides such letters as described in the foregoing clause (1), (a) the Administrator shall provide notice of such new merger, consolidation or succession to the related Note Rating Agency and (b) each Administrative Agent shall have provided its prior written consent to such merger, consolidation or succession; provided, that the Issuer provides an Issuer Certificate to the effect that any such merger, consolidation or succession will not have a material Adverse Effect on the Outstanding Notes, (iii) shall obtain an Opinion of Counsel addressed to the Indenture Trustee and reasonably satisfactory to the Indenture Trustee, that such merger, consolidation or succession complies with the terms hereof and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Base Indenture with respect to corporate matters, enforceability of Transaction Documents against the Issuer, and the grant by the Issuer of a valid security interest in the Participation Certificates to the Indenture Trustee and the perfection of such security interest and related matters, (iv) shall receive from the Majority Noteholders of all Outstanding Notes their prior written consent to such merger, consolidation or succession, absent which consent, which may not be unreasonably withheld or delayed, the Issuer shall not become a party to such merger, consolidation or succession and (v) shall obtain an Issuer Tax Opinion.
Section 9.4. Issuer May Not Own Notes.
The Issuer may not become the owner or pledgee of one or more of the Notes (other than any Retained Note). Any Person Controlling, Controlled by or under common Control with the Issuer may, in its individual or any other capacity, become the owner or pledgee of one or more Notes with the same rights as it would have if it were not an Affiliate of the Issuer, except as otherwise specifically provided in the definition of the term “Noteholder.” The Notes so owned by or pledged to such Controlling, Controlled or commonly Controlled Person shall have an equal and proportionate benefit under the provisions of this Base Indenture, without preference, priority or distinction as among any of the Notes, except as set forth herein with respect to, among other things, rights to vote, consent or give directions to the Indenture Trustee as a Noteholder.
Section 9.5. Covenants of Issuer.
(a) Organizational Documents; Unanimous Consent. The Issuer hereby covenants that its Organizational Documents provide that they may not be amended or modified without (i) notice to the Indenture Trustee and each Note Rating Agency that is at that time rating any Outstanding Notes, and (ii) the prior written consent of the Administrative Agent, unless and
until this Base Indenture shall have been satisfied, discharged and terminated. The Issuer will at all times comply with the terms of its Organizational Documents. In addition, notwithstanding any other provision of this Section 9.5 and any provision of law, the Issuer shall not take any action described in Section 4.1 of the Issuer’s Organizational Documents or do any of the following unless the Owners (as such term is defined in the Issuer’s Organizational Documents), the Administrative Agent and the applicable Majority Noteholders as set forth in the Transaction Documents consent to such action: (A) dissolve or liquidate, in whole or in part, or institute proceedings to be adjudicated bankrupt or insolvent, (B) consent to the institution of bankruptcy or insolvency proceedings against it, (C) file a petition seeking, or consent to, reorganization or relief under any applicable federal, state or foreign law relating to bankruptcy or similar matters, (D) consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Issuer or a substantial part of its property, (E) make any assignment for the benefit of creditors, (F) admit in writing its inability to pay its debts generally as they become due, or (G) take any action in furtherance of the actions set forth in clauses (A) through (F) above; or (1) merge or consolidate with or into any other person or entity or sell or lease its property or all or substantially all of its assets to any person or entity; or (2) modify any provision of its Organizational Documents.
(b) Preservation of Existence. The Issuer hereby covenants to do or cause to be done all things necessary on its part to preserve and keep in full force and effect its rights and franchises as a statutory trust under the laws of the State of Delaware, and to maintain each of its licenses, approvals, permits, registrations or qualifications in all jurisdictions in which its ownership or lease of property or the conduct of its business requires such licenses, approvals, registrations or qualifications, except for failures to maintain any such licenses, approvals, registrations or qualifications which, individually or in the aggregate, would not have a material Adverse Effect.
(c) Compliance with Laws. The Issuer hereby covenants to comply in all material respects with all applicable laws, rules and regulations and orders of any governmental authority, the noncompliance with which would have a material Adverse Effect or a material adverse effect on the business, financial condition or results of operations of the Issuer.
(d) Payment of Taxes. The Issuer hereby covenants to pay and discharge promptly or cause to be paid and discharged promptly all taxes, assessments and governmental charges or levies imposed upon the Issuer or upon its income and profits, or upon any of its property or any part thereof, before the same shall become in default, provided that the Issuer shall not be required to pay and discharge any such tax, assessment, charge or levy so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Issuer shall have set aside on its books adequate reserves with respect to any such tax, assessment, charge or levy so contested.
(e) Investments. The Issuer hereby covenants that it will not, without the prior written consent of the Majority Noteholders of all Outstanding Notes, acquire or hold any indebtedness for borrowed money of another person, or any capital stock, debentures, partnership interests or other ownership interests or other securities of any Person, other than Permitted Investments as provided hereunder and the Participation Certificates acquired under the PC Repurchase Agreement.
(f) Keeping Records and Books of Account. The Issuer hereby covenants and agrees to maintain and implement administrative and operating procedures (including an ability to recreate records evidencing the Participation Certificates in the event of the destruction or loss of the originals thereof) and keep and maintain, all documents, books, records and other information reasonably necessary or advisable for the collection of the Participation Certificates (including, records adequate to permit the daily identification of all collections with respect to,
and adjustments of amounts payable under each Participation Certificate). The Administrator shall ensure compliance with this Section 9.5(f).
(g) Employee Benefit Plans. The Issuer hereby covenants and agrees to comply in all material respects with the provisions of ERISA, the Code, and all other applicable laws, and the regulations and interpretations thereunder to the extent applicable, with respect to each “employee benefit plan” as defined in Section 3(3) of ERISA.
(h) No Release. The Issuer shall not take any action and shall use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person’s covenants or obligations under any Transaction Document, Ginnie Mae Contract or other document, instrument or agreement included in the Trust Estate, or which would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such document, instrument or agreement.
(i) Separate Identity. The Issuer acknowledges that the Secured Parties are entering into the transactions contemplated by this Base Indenture in reliance upon the Issuer’s identity as a legal entity that is separate from the Administrator or the Servicer (each, a “Facility Entity”). Therefore, from and after the date of execution and delivery of this Base Indenture, the Issuer shall take all reasonable steps to maintain the Issuer’s identity as a separate legal entity and to make it manifest to third parties that the Issuer is an entity with assets and liabilities distinct from those of each Facility Entity and not a division of a Facility Entity.
(j) Compliance with and Enforcement of Transaction Documents. The Issuer hereby covenants and agrees to comply in all respects with the terms of, employ the procedures outlined in and enforce the obligations of the parties to all of the Transaction Documents to which the Issuer is a party, and take all such action to such end as may be from time to time reasonably requested by the Indenture Trustee, and/or the Majority Noteholders of all Outstanding Notes, maintain all such Transaction Documents in full force and effect and make to the parties thereto such reasonable demands and requests for information and reports or for action as the Issuer is entitled to make thereunder and as may be from time to time reasonably requested by the Indenture Trustee.
(k) No Sales, Liens, Etc. Against Participation Certificates and Trust Property. The Issuer hereby covenants and agrees, except for releases specifically permitted hereunder, not to sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist, any Adverse Claim (other than the Security Interest created hereby or any Permitted Liens) upon or with respect to, any Participation Certificate or Trust Property, or any interest in either thereof, or upon or with respect to any Trust Account, or assign any right to receive income in respect thereof. The Issuer shall promptly, but in no event later than [***] after a Responsible Officer has obtained actual knowledge thereof, notify the Indenture Trustee of the existence of any Adverse Claim on any Participation Certificate or Trust Estate, and the Issuer shall defend the right, title and interest of each of the Issuer and the Indenture Trustee in, to and under the Participation Certificates and Trust Estate, against all claims of third parties.
(l) No Change in Business. The Issuer covenants that it shall not make any change in the character of its business.
(m) No Change in Name, Etc.; Preservation of Security Interests. The Issuer covenants that it shall not make any change to its company name, or use any trade names, fictitious names, assumed names or “doing business as” names. The Issuer will from time to time, at its own expense, execute and file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the interest of the Issuer in all of the Participation Certificates and such other portion of the Trust Estate as to which a sale
or Security Interest may be perfected by filing under the UCC, and the Security Interest of the Indenture Trustee in the all of the Participation Certificates and such other portion of the Trust Estate as to which a Security Interest may be perfected by filing under the UCC, are fully protected.
(n) No Institution of Insolvency Proceedings. The Issuer covenants that it shall not institute Insolvency Proceedings with respect to the Issuer or any Affiliate thereof or consent to the institution of Insolvency Proceedings against the Issuer or any Affiliate thereof or take any action in furtherance of any such action, or seek dissolution or liquidation in whole or in part of the Issuer or any Affiliate thereof.
(o) Money for Note Payments To Be Held in Trust. The Issuer shall cause each Paying Agent other than the Indenture Trustee to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(i) hold all sums held by it in respect of payments on Notes in trust for the benefit of the Noteholders entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) in the making of any payment; and
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Base Indenture or for any other purpose, pay, or direct any Paying Agent to pay, to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money.
(p) Protection of Trust Estate. The Issuer shall from time to time execute and deliver to the Indenture Trustee and the Administrative Agent all such supplements and amendments hereto (a copy of which shall be provided to the Noteholders) and all such financing statements, continuation statements, instruments of further assurance and other instruments, and shall take such other action as is necessary or advisable to:
(i) Grant more effectively all or any portion of the Trust Estate;
(ii) maintain or preserve the Security Interest or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of, or protect the validity of any Grant made or to be made by this Base Indenture;
(iv) enforce the Participation Certificates or, where appropriate, any Security Interest in the Trust Estate and the proceeds thereof;
(v) promptly to amend, or to cause to be amended, as necessary, any filings or recordings against the Issuer relating to the Grant necessary to conform to the
requirements of Ginnie Mae, including, but not limited to, any legend required by Ginnie Mae to be included in such filings or recordings; or
(vi) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders therein against the claims of all persons and parties.
(q) Investment Company Act. The Issuer shall conduct its operations in a manner which shall not subject it to registration as an “investment company” under the Investment Company Act.
(r) Payment of Review and Renewal Fees. The Issuer shall pay or cause to be paid to each Note Rating Agency that has rated Outstanding Notes, the annual rating review and renewal fee in respect of such Notes, if any.
(s) No Subsidiaries. The Issuer shall not form or hold interests in any subsidiaries.
(t) No Indebtedness. The Issuer shall not incur any indebtedness other than the Notes (except to the extent that obligations of the Issuer pursuant to the Transaction Documents might be considered “indebtedness”), and shall not guarantee any other Person’s indebtedness or incur any capital expenditures.
(u) Cooperation with Effectuating a Release. If any filing or recordings against the Issuer have been made relating to the Grant, within [***] after the earliest of any of the following dates or events that occur: (i) the effective date of any transfer of Issuer responsibility pursuant to the Acknowledgment Agreement; (ii) the date on which the Secured Party receives notice from Ginnie Mae of any termination, extinguishment or forfeiture of Secured Party’s or Servicer’s rights under the Acknowledgment Agreement, or otherwise; or (iii) the date on which Secured Party receives notice of the extinguishment by Ginnie Mae of Servicer’s redemption, equitable, legal or other right, title or interest in the Pooled Mortgages, then the Issuer shall, or shall cause to be filed for recording, in the appropriate recording office, a fully and complete release of such security interest, and of any other right, title or interest of Secured Party in the Pooled Mortgages, and shall deliver to Ginnie Mae written confirmation of such filing. Notwithstanding the foregoing, if the Issuer believes the Secured Party’s Security Interest is being challenged or is likely to be challenged by anyone other than Ginnie Mae, then the Issuer may request that Ginnie Mae agree to a deferral of the filings required by this subsection, which deferral shall be granted at the sole discretion of Ginnie Mae.
(v) Issuer Tax Opinion. No undertaking that would cause a Retained Note to become issued and outstanding for United States federal income tax purposes will be permitted without the delivery of an Issuer Tax Opinion.
Article X
The Administrator and Servicer
Section 10.1. Representations and Warranties of loanDepot, as Administrator and as Servicer.
loanDepot, as Administrator and as Servicer, hereby makes the following representations and warranties for the benefit of the Indenture Trustee, as of the Closing Date, the Effective
Date, and as of the date of each Grant of Participation Certificates to the Indenture Trustee pursuant to this Base Indenture.
(a) Organization and Good Standing. loanDepot is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Delaware. loanDepot, as Servicer, is duly qualified to do business and is in good standing (or is exempt from such requirements) and has obtained all necessary licenses and approvals in each jurisdiction in which the failure so to qualify, or to obtain such licenses or approvals, would have a material Adverse Effect.
(b) Power and Authority; Binding Obligation. loanDepot has the power and authority to make, execute, deliver and perform its obligations under this Base Indenture and any related Indenture Supplement and each other Transaction Document to which it is a party and all of the transactions contemplated hereunder and thereunder, and has taken (or in the case of any Indenture Supplement or other Transaction Document to which it is a party not yet executed, or any transaction contemplated hereby not yet consummated, will take) all necessary limited liability company action to authorize the execution, delivery and performance of this Base Indenture and each Indenture Supplement and each other Transaction Document to which it is a party; this Base Indenture and each Indenture Supplement and each other Transaction Document to which it is a party constitutes a legal, valid and binding obligation of loanDepot, enforceable against loanDepot in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a proceeding at law or in equity) or by public policy with respect to indemnification under applicable securities laws.
(c) No Violation. The execution and delivery of this Base Indenture and each Indenture Supplement and each other Transaction Document to which it is a party by loanDepot and its performance of its obligations under this Base Indenture and each Indenture Supplement and each other Transaction Document to which it is a party will not (i) violate loanDepot’s certificate of formation, operating agreement or other organizational documents or (ii) constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material contract, agreement or other instrument to which loanDepot is a party, which may be applicable to loanDepot or any of its assets, or any and all instruments, agreements, invoices or other writings which give rise to or otherwise evidence any of the MSRs, or (iii) violate any statute, ordinance or law or any rule, regulation, order, writ, injunction or decree of any court or of any public, governmental or regulatory body, agency or authority applicable to loanDepot or its properties except, with respect to clauses (ii) and (iii), for such defaults, breaches or violations that would not reasonably be expected to have a material Adverse Effect.
(d) No Proceedings. No proceedings, investigations or litigation before any court, tribunal or governmental body is currently pending, nor to the knowledge of loanDepot is threatened against loanDepot, nor is there any such proceeding, investigation or litigation currently pending, nor, to the knowledge of loanDepot, is any such proceeding, investigation or litigation threatened against loanDepot with respect to this Base Indenture, any Indenture Supplement or any other Transaction Document or the transactions contemplated hereby or thereby that could reasonably be expected to have a material Adverse Effect.
(e) No Consents Required; Ginnie Mae Approvals. Except with respect to the Acknowledgment Agreement, no authorization, consent, approval, or other action by, and no notice to or filing with, any court, governmental authority or regulatory body or other Person domestic or foreign, including HUD or Ginnie Mae, is required for the execution, delivery and
performance by loanDepot of or compliance by loanDepot with this Base Indenture, any Indenture Supplement or the consummation of the transactions contemplated by this Base Indenture, any Indenture Supplement except for (i) consents, approvals, authorizations and orders which have been obtained in connection with transactions contemplated by the Transaction Documents (including the Acknowledgment Agreement), (ii) filings to perfect the security interest created by this Base Indenture, and (iii) authorizations, consents, approvals, filings, notices, or other actions with respect to which the failure to obtain such consents, approvals, authorizations and orders would not reasonably be expected to have a material Adverse Effect.
(f) Information. No written statement, report or other document furnished or to be furnished pursuant to this Base Indenture or any other Transaction Document to which it is a party by loanDepot contains or will contain any statement that is or will be inaccurate or misleading in any material respect.
(g) Default. The Administrator is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator or the Servicer to perform its duties under this Base Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
(h) Foreign Corrupt Practices Act. To the extent applicable, neither loanDepot nor any subsidiary thereof (collectively, the “FCPA Entities” and individually an “FCPA Entity”), or any employees, directors, or officers of any FCPA Entity, or to the knowledge of any FCPA Entity, any of its agents or representatives or any subsidiary of any FCPA Entity, is aware of, has taken, or will take any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, and the rules and regulations thereunder (the “FCPA”); and loanDepot and its subsidiaries and Affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintained policies and procedures designed to ensure continued compliance therewith.
(i) Anti-Money Laundering. The operations of loanDepot are conducted and, to its knowledge, have been conducted in all material respects in compliance with the applicable anti-money laundering statutes of all jurisdictions to which loanDepot is subject and the rules and regulations thereunder, including the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) (collectively, the “U.S. Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving loanDepot with respect to the U.S. Anti-Money Laundering Laws is pending or, to the knowledge of loanDepot, threatened.
(j) Sanctions. Neither loanDepot nor its subsidiaries, nor, to its knowledge, any of its or its subsidiaries’ directors, officers, agents, subsidiaries or employees, is a Person that is, or is majority owned or controlled by Persons that are (1) the subject of any sanctions administered or enforced by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), the U.S. Department of State, the U.S. Department of Commerce, the United Nations Security Council, the European Union or Her Majesty’s Treasury (collectively, “Sanctions”) or (2) located, organized or resident in a country or territory that is, or whose government is, the subject of comprehensive Sanctions; including, Crimea, Cuba, Iran, North Korea, Sudan and Syria.
(k) No Adverse Actions. loanDepot has not received a notice from Ginnie Mae indicating any adverse fact or circumstance in respect of loanDepot which adverse fact or circumstance may reasonably be expected to entitle Ginnie Mae to terminate loanDepot with cause or with respect to which such adverse fact or circumstance has caused Ginnie Mae to threaten to terminate, or consider the termination of, loanDepot in such notice.
(l) Ginnie Mae Set Off Rights. loanDepot has no actual notice, including any notice received from Ginnie Mae, or any reason to believe, that, other than in the normal course of loanDepot’s business, any circumstances exist that would result in loanDepot being liable to Ginnie Mae for any amount due by reason of: (i) any breach of its obligations to Ginnie Mae under any Guaranty Agreement, the Ginnie Mae Contract or any other similar contracts relating to any Mortgage Pool or Mortgage Pool issued by loanDepot, (ii) any unperformed obligation with respect to mortgages in any Mortgage Pool, and (iii) any other unmet obligations to Ginnie Mae under any Guaranty Agreement, the Ginnie Mae Contract or any other similar contracts relating to any Mortgage Pool.
(m) Ginnie Mae and HUD Approval. loanDepot is an approved Issuer by Ginnie Mae and HUD. loanDepot is not under review or investigation and does not have knowledge of imminent or future review or investigation, by Ginnie Mae or HUD (other than in ordinary course).
(n) Ginnie Mae Remittance and Reporting. With respect to each Mortgage Loan, loanDepot has remitted to Ginnie Mae and applicable investors in the securities representing interests in the Mortgage Loans and all other applicable Persons (i) all principal and interest payments received to which an investor or such other Person is entitled under the Ginnie Mae Contract, including any guaranty fees, and (ii) all advances of principal and interest required by such Ginnie Mae Contract. In accordance with the Ginnie Mae Contract, loanDepot has prepared and submitted all reports in connection with such payments required by the Ginnie Mae Contract.
Section 10.2. Covenants of loanDepot, as Administrator and as Servicer.
(a) Amendments to PC Documents. The Servicer hereby covenants and agrees not to amend any PC Documents except for such amendments meeting the same criteria set forth in Section 12.1, without the prior written consent of the Majority Noteholders of all Outstanding Notes. The Administrator shall, within [***] following the effectiveness of such amendments, deliver to the Indenture Trustee copies of all such amendments.
(b) Maintenance of Security Interest. The Administrator shall from time to time, at its own expense, file such additional financing statements (including continuation statements) as may be necessary to ensure that at any time, the Security Interest of the Indenture Trustee (on behalf of itself and the Noteholders) in all of the Participation Certificates and the other Collateral is fully protected in accordance with the UCC and that the Security Interest of the Indenture Trustee in the Participation Certificates and the rest of the Trust Estate remains perfected and of first priority. The Administrator shall take all steps necessary to ensure compliance with Section 9.5(m).
(c) Regulatory Reporting Compliance. The Servicer shall, on or before [***], deliver to the Indenture Trustee and the Interested Noteholders, as applicable, a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers or an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB, or similar review conducted on the Servicer (or if the Mortgage Loans are subserviced by an Eligible Subservicer, the
Eligible Subservicer) by its accountants, and such other reports as the Servicer may prepare relating to its servicing functions as the Servicer.
(d) Compliance with PC Documents. The Servicer shall not fail to comply with any obligation as the servicer under each of the PC Documents, if such failure would have a material Adverse Effect. The Servicer shall immediately notify the Indenture Trustee, the Credit Manager and the Administrative Agent of its receipt of a notice of termination under the Ginnie Mae Contract. The Indenture Trustee shall forward any such notification to each Noteholder.
(e) Compliance with Obligations. loanDepot shall comply with all of its other obligations and duties set forth in this Base Indenture and any other Transaction Document. The Administrator shall not permit the Issuer to engage in activities that could violate its covenants in this Base Indenture.
(f) No Transfer of Servicing. Servicer shall not voluntarily transfer servicing under the Ginnie Mae Contract, except with prior written consent of the Administrative Agent, in its sole discretion.
(g) Notice of Servicer Termination Event. The Servicer shall provide written notice to the Indenture Trustee, the Credit Manager and each VFN Noteholder of any Servicer Termination Event, within [***] of receipt by the Servicer of notice of such Servicer Termination Event.
(h) Administrator Instructions and Functions Performed by Issuer. The Administrator shall perform the administrative or ministerial functions specifically required of the Issuer pursuant to this Base Indenture and any other Transaction Document.
(i) Adherence to Servicing Standards. Unless otherwise consented to by the Administrative Agent and the Administrator (the following collectively, the “Servicing Standards”):
(i) the Servicer shall cooperate with the Indenture Trustee acting as Calculation Agent in its duties set forth in the Transaction Documents;
(ii) the Servicer shall cooperate with the MSR Valuation Agent, the Advance Verification Agent and the Credit Manager with respect to its duties set forth in the Transaction Documents; and
(iii) the Servicer shall service all Mortgage Loans related to all Mortgage Pools without regard to ownership by loanDepot or its Affiliates of any securities issued by the related Mortgage Pool.
(j) Performance and Compliance with the Ginnie Mae Contract. loanDepot will comply with all terms, provisions, covenants and other promises required to be observed by it under the Ginnie Mae Contract and the Transaction Documents to which it is a party.
(k) Due Diligence. loanDepot acknowledges that the Indenture Trustee or the Administrative Agent has the right to perform and/or appoint a third party to perform, continuing due diligence reviews with respect to the Collateral, for purposes of verifying compliance with the representations, warranties, and specifications made hereunder and under the other Transaction Documents, or otherwise. loanDepot agrees that, subject to the limitations set forth in Section 3.4 of this Indenture, the Indenture Trustee or the Administrative Agent and their Authorized Representatives will be permitted to examine, inspect, make copies of, and make extracts of, any and all documents, records, agreements (including any subservicing contracts),
instruments or information relating to the Collateral or Ginnie Mae in the possession of loanDepot; provided, however, that the foregoing shall not apply with respect to any information that loanDepot is required by Ginnie Mae to keep confidential.
(l) Changes in the Ginnie Mae Contract. loanDepot shall provide written notice to the Indenture Trustee and the Administrative Agent of any changes in the Ginnie Mae Contract that materially affect the Collateral within [***] after loanDepot receives notice thereof.
(m) Ginnie Mae Approval. loanDepot shall at all times maintain copies of relevant portions of all final written HUD and Ginnie Mae audits, examinations, evaluations, monitoring reviews and reports of its origination and servicing and subservicing operations (including those prepared on a contract basis for any such agency) in which there are material adverse findings, including 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 of HUD and Ginnie Mae. loanDepot shall not take any action, or fail to take any action, that would permit HUD or Ginnie Mae to terminate or threaten to terminate its right to issue MBS or service loans for HUD or Ginnie Mae with cause.
(n) Quality Control. loanDepot shall conduct quality control reviews of its servicing operations in accordance with industry standards and Ginnie Mae Requirements. Upon the reasonable request of the Indenture Trustee or the Administrative Agent, loanDepot shall report its quality control findings as such final reports are produced, excluding internal audit reports or information subject to the attorney-client work product or attorney-client privilege or other applicable privilege.
(o) Special Affirmative Covenants Concerning Collateral.
(i) Subject to Ginnie Mae Requirements, loanDepot warrants and shall defend the right, title and interest of the Indenture Trustee, on behalf of the Noteholders, in and to the Collateral to the Indenture Trustee against the claims and demands of all Persons whomsoever.
(ii) loanDepot shall preserve the security interests granted hereunder and upon request by the Indenture Trustee or the Administrative Agent undertake all actions which are necessary or appropriate, in the reasonable judgment of the Indenture Trustee or the Administrative Agent, as applicable, to (x) maintain the security interest of the Indenture Trustee on behalf of the Noteholders (including the priority thereof) in the Collateral in full force and effect at all times prior to the satisfaction of all obligations under this Base Indenture and the release of the Noteholders’ lien in accordance with the terms and provisions of this Base Indenture, and (y) preserve and protect the Collateral and protect and enforce the rights of the Indenture Trustee to the Collateral, including the making or delivery of all filings and recordings (of financing or continuation statements), or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary or appropriate, and cause to be marked conspicuously its master data processing records with a legend, acceptable to the Indenture Trustee, evidencing that such security interest has been granted in accordance with this Base Indenture.
(iii) loanDepot shall diligently fulfill its duties and obligations under the Ginnie Mae Contract in all material respects and shall not default in any material respect under any of the Ginnie Mae Contract or the Acknowledgment Agreement.
(p) Maintenance of Property; Insurance. loanDepot shall keep all property useful and necessary in its business in good working order and condition except to the extent that the failure
to do so could not reasonably be expected to result in a material Adverse Effect. loanDepot shall maintain a fidelity bond and be covered by insurance of the kinds and in the amounts customarily maintained by such similarly situated entities in the same jurisdiction and industry as loanDepot, in amounts acceptable to Ginnie Mae except to the extent that the failure to do so could not reasonably be expected to result in a material Adverse Effect.
(q) Use of Proceeds. loanDepot shall not use the proceeds of the Notes in contravention of the requirements, if any, of Ginnie Mae or Applicable Law.
(r) Reimbursement of Advance Reimbursement Amounts. With respect to any Pooled Mortgages and collections received with respect thereto, loanDepot shall reimburse itself for any unreimbursed Advances, and shall ensure that any Interim Servicers reimburse themselves for any unreimbursed Advances in accordance with current market practice for Ginnie Mae issuers from (i) with respect to MBS Advances, any amounts collected on Mortgage Loans in the same principal and interest custodial account and (ii) with respect to Servicing Advances, from any amounts collected on the same Mortgage Loan, in each case, following the date of such Advance; provided, further, that in all events, such reimbursements shall only be made to the extent permitted under the Ginnie Mae Contract. All such amounts shall be deposited into the Collection and Funding Account in accordance with Section 4.2 hereof.
(s) Mortgage Pool Information. loanDepot shall deliver to the Administrative Agent within [***], the information relating to the Pooled Mortgages required pursuant to Schedule 4 hereto.
(t) Agency Notices. loanDepot shall promptly furnish to the Administrative Agent copies of all notices it receives from HUD or Ginnie Mae indicating any adverse fact or circumstance in respect of loanDepot which adverse fact or circumstance may entitle HUD or Ginnie Mae, respectively, to terminate or to threaten to terminate loanDepot with cause or that may entitle HUD or Ginnie Mae to conduct any inspection or investigation of loanDepot, loanDepot’s files or loanDepot’s facilities.
(u) Ginnie Mae Notices. loanDepot shall promptly furnish to the Administrative Agent copies of all notices it receives from Ginnie Mae that materially affect the Advance Reimbursement Amounts or Servicing Fees, including any notice received with respect to the events set forth in Section 10.1(l), and any demand by Ginnie Mae for the repurchase of or indemnification with respect to a Mortgage Loan and the reason for such repurchase or indemnification within [***] after loanDepot receives notice thereof.
(v) Ginnie Mae Requirements. The Servicer shall furnish the Administrative Agent notice of any change in Ginnie Mae Eligibility Requirements on the [***], or such later date as the Servicer receives reconciled delinquency ratio information from Ginnie Mae.
(w) Legal Existence, etc. loanDepot shall (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises; and (ii) keep adequate records and books of account.
(x) Subservicer Administration. If loanDepot at any time uses or intends to use, as applicable, an independent third party subservicer to fulfill its obligations as Servicer hereunder, loanDepot shall, prior to the related servicing transfer date, (i) provide the Administrative Agent and the Indenture Trustee with the related Eligible Subservicing Agreement pursuant to which such subservicer shall service such Mortgage Loans, which Eligible Subservicing Agreement shall be acceptable to Administrative Agent in all respects, (ii) obtain Administrative Agent’s prior written consent to the use of such subservicer in the performance of such servicing duties and obligations, which consent may be withheld in Administrative Agent’s sole discretion and
(iii) provide the Administrative Agent with a fully executed Eligible Subservicing Agreement and related subservicer side letter agreement (if any) with respect to such subservicer. In no event shall loanDepot’s use of a subservicer relieve loanDepot of its obligations hereunder, and loanDepot shall remain liable under this Indenture as if loanDepot were servicing such Mortgage Loans directly.
(y) Interim Borrowing Base Determination Date Reporting. The Administrator shall report the occurrence of an Interim Borrowing Base Determination Date promptly after a Responsible Officer of the Administrator shall have obtained actual knowledge of such occurrence, and in any event within [***] of obtaining such knowledge.
(z) Separateness. loanDepot shall make appropriate notation in its consolidated financial statements to indicate the separateness of the Issuer from loanDepot and to indicate that the Issuer’s assets and credit are separate from those of loanDepot and its other consolidated subsidiaries.
(aa) Reporting; Financial Statements. loanDepot shall deliver to the Noteholders upon request, on or before March 31 on an annual basis, beginning on March 31, 2021, a report setting forth the Seller’s most recent balance sheet and profit and loss and retained earnings statements, and similar audited financial statements, along with comparatives for the prior year.
Section 10.3. Negative Covenants of loanDepot.
loanDepot covenants and agrees with the Indenture Trustee, the Administrative Agent and each Noteholder that, so long as any Note is Outstanding and until all obligations have been paid in full, loanDepot shall not:
(a) other than in accordance with Section 10.3(b) or (c), take any action that would directly or indirectly materially impair or materially adversely affect loanDepot’s title to, or the value of, the Collateral;
(b) create, incur or permit to exist any Lien in or on the Collateral except (i) the security interest granted hereunder in favor of the Indenture Trustee on behalf of the Noteholders, (ii) the rights of Ginnie Mae under the Ginnie Mae Contract, (iii) the Owner Trustee Lien, or (iv) any Permitted Lien, or assign any right to receive income in respect thereof;
(c) sell, lease or otherwise dispose of any Collateral (other than sales or dispositions of MSRs (i) resulting from the payoff of the related Mortgage or the purchase of the related Mortgage by loanDepot, (ii) as required by Ginnie Mae or (iii) in the ordinary course of loanDepot’s servicing business) except as expressly permitted by Section 2.1(b) of this Base Indenture;
(d) engage to any substantial extent in any line or lines of business activity other than Current Business Operations as of the Closing Date;
(e) transfer the Owner Trust Certificate to an affiliate unless the Owner Trustee and the Certificate Registrar have received an Opinion of Counsel, which shall be an expense of the Issuer, to the effect that the proposed transfer will not (i) cause the Issuer to be characterized as an association taxable as a corporation, a taxable mortgage pool taxable as a corporation or a publicly traded partnership taxable as a corporation, or (ii) alter the tax characterization of the Notes for U.S. federal income tax purposes;
(f) transfer the Owner Trust Certificate unless each transferee has provided all of the representations and warranties as required in Section 3.9 of the Trust Agreement, in writing, to the Owner Trustee and the Certificate Registrar;
(g) (i) cancel or terminate any Transaction Documents to which it is a party or consent to or accept any cancellation or termination thereof, (ii) other than in accordance with the Transaction Documents, amend, amend and restate, supplement or otherwise modify any Transaction Document, other than an amendment of a Guaranty Agreement that is done unilaterally by Ginnie Mae, (iii) consent to any amendment, modification or waiver of any term or condition of any Transaction Document, without the prior written consent of the Administrative Agent, provided that if the amendment of a Guaranty Agreement is done unilaterally by Ginnie Mae, the prior written consent of the Administrative Agent is not required, (iv) waive any material default under or breach of any Guaranty Agreement or the Ginnie Mae Contract, or (v) take any other action in connection with any such Transaction Documents that would impair in any material respect the value of the interests or rights of loanDepot thereunder or that would impair in any material respect the interests or rights of the Indenture Trustee, the Administrative Agent or any Noteholder;
(h) change the state of its organization unless loanDepot shall have given the Administrative Agent at least [***] prior written notice thereof and unless, prior to any such change, loanDepot shall have filed, or caused to be filed, such financing statements or amendments as the Indenture Trustee determines may be reasonably necessary to continue the perfection of the Indenture Trustee’s interest in the Collateral;
(i) appoint any subservicers with respect to any MSRs pledged to the Indenture Trustee pursuant to this Base Indenture;
(j) amend any Eligible Subservicing Agreement after the Closing Date in any way that could reasonably be expected to have a material adverse effect on the rights of the Noteholders without the prior written consent of the Administrative Agent;
(k) take any action that would directly or indirectly materially impair or materially adversely affect loanDepot’s title to, or the value, of the Advance Reimbursement Amounts or Servicing Fees or materially increase the duties, responsibilities or obligations of loanDepot in respect of the Collateral; and
(l) enter into any transaction, including any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate, except:
(1) employment and severance arrangements between loanDepot and its officers and employees and transactions pursuant to stock option plans and employee benefit plans and similar arrangements;
(2) the payment of customary fees, compensation, and reasonable out-of-pocket costs to, and indemnities provided on behalf of, directors, managers, officers and employees of loanDepot;
(3) pursuant to the reasonable requirements of the business of loanDepot upon fair and reasonable terms no less favorable to loanDepot than would be obtained in a comparable arm’s length transaction with a Person that is not an Affiliate of loanDepot;
(4) transactions with any wholly-owned Subsidiary of loanDepot that is created for the purpose of obtaining financing;
(5) payment of or reimbursement of indemnitees and reimbursement for reasonable, documented out-of-pocket costs and expenses to the Sponsor or its Affiliates in connection with services rendered to loanDepot pursuant to the management agreement; or
(6) as otherwise expressly permitted by this Indenture or any other Transaction Document.
Section 10.4. Liability of loanDepot, as Administrator and as Servicer; Indemnities.
(a) Obligations. Each of the Administrator and the Servicer, severally and not jointly, shall indemnify, defend and hold harmless the Indenture Trustee (in all its capacities), the Securities Intermediary, the Note Registrar, the Calculation Agent, the Custodian, the Paying Agent, the Securities Intermediary, the Credit Manager, the Trust Estate, the Owner Trustee and the Noteholders (as applicable, with respect to the related Series of Notes) (each an “Indemnified Party”) from and against any and all costs, expenses (including reasonable legal fees and expenses, including legal fees and expenses in connection with the enforcement of their indemnification rights hereunder), losses, claims, damages and liabilities to the extent that such cost, expense, loss, claim, damage or liability arose out of, and was imposed upon, the Indenture Trustee, the Securities Intermediary, the Note Registrar, the Credit Manager, the Owner Trustee, the Calculation Agent, the Custodian, the Paying Agent, the Securities Intermediary, the Trust Estate or any Noteholder (i) in the case of indemnification by the Administrator, by reason of a violation of law, gross negligence or willful misconduct of the Administrator (or of the Issuer as a result of a direction, act or omission by the Administrator), in the performance of their respective obligations under this Base Indenture and the other Transaction Documents or (ii) in the case of indemnification by the Servicer, by reason of a violation of law, gross negligence or willful misconduct of the Servicer, in the performance of its respective obligations under this Base Indenture and the other Transaction Documents or as servicer or subservicer under the Ginnie Mae Contracts, or by reason of the breach by the Servicer of any of its representations, warranties or covenants hereunder or under the Ginnie Mae Contracts; provided, that any indemnification amounts payable by the Administrator or the Servicer, as the case may be, to the Owner Trustee hereunder shall not be duplicative of any indemnification amount paid by the Administrator to the Owner Trustee in accordance with the Trust Agreement or under the Administration Agreement.
(b) Notification and Defense. Promptly after any Indemnified Party shall have been served with the summons or other first legal process or shall have received written notice of the threat of a claim in respect of which a claim for indemnity may be made against loanDepot under this Section 10.4, the Indemnified Party shall notify the Indemnifying Party in writing of the service of such summons, other legal process or written notice, giving information therein as to the nature and basis of the claim, but failure so to notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have hereunder or otherwise, except to the extent that the Indemnifying Party is prejudiced by such failure so to notify the Indemnifying Party. The Indemnifying Party will be entitled, at its own expense, to participate in the defense of any such claim or action and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party, and, after notice from the Indemnifying Party to such Indemnified Party that the Indemnifying Party wishes to assume the defense of any such action, the Indemnifying Party will not be liable to such Indemnified Party under this Section 10.4 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense of any such action unless (i) the defendants in any such action include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party (upon the advice of counsel) shall have reasonably concluded that there may be legal defenses available to it that are different from or additional to those available to the
Indemnifying Party, or one or more Indemnified Parties, and which in the reasonable judgment of such counsel are sufficient to create a conflict of interest for the same counsel to represent both the Indemnifying Party and such Indemnified Party, (ii) the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party within a reasonable time after notice of commencement of the action, or (iii) the Indemnifying Party has authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party; then, in any such event, such Indemnified Party shall have the right to employ its own counsel in such action, and the reasonable fees and expenses of such counsel shall be borne by the Indemnifying Party; provided, however, that the Indemnifying Party shall not in connection with any such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for any fees and expenses of more than one firm of attorneys at any time for all Indemnified Parties. Each Indemnified Party, as a condition of the indemnity agreement contained herein, shall use its commercially reasonable efforts to cooperate with the Indemnifying Party in the defense of any such action or claim. The Indemnifying Party shall not, without the prior written consent of any Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding or threatened proceeding.
(c) Expenses. Indemnification under this Section 10.4 shall include reasonable fees and expenses of counsel and expenses of litigation (including such fees and expenses incurred in enforcing the Indemnifying Party’s right to indemnification). If the Indemnifying Party has made any indemnity payments pursuant to this Section and the recipient thereafter collects any of such amounts from others, the Indemnified Party shall promptly repay such amounts collected to the Indemnifying Party, without interest.
(d) Survival. The provisions of this Section 10.4 shall survive the resignation or removal of the Indenture Trustee, the Calculation Agent and the Paying Agent and the termination of this Base Indenture.
Section 10.5. Merger or Consolidation, or Assumption of the Obligations, of loanDepot.
Any Person (a) into which loanDepot may be merged or consolidated, (b) which may result from any merger, conversion or consolidation to which loanDepot shall be a party, or (c) which may succeed to all or substantially all of the business or assets of loanDepot which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of loanDepot under this Base Indenture, shall be the successor to loanDepot under this Base Indenture without the execution or filing of any paper or any further act on the part of any of the parties to this Base Indenture; provided, however, that (i) if any of the Notes are then rated by a Note Rating Agency, then prior to any such merger, consolidation or conversion (1) loanDepot shall have provided to the Indenture Trustee and the Noteholders a letter from each Note Rating Agency that rated Outstanding Notes indicating that such merger, consolidation or conversion will not result in the qualification, reduction or withdrawal of the then current ratings of the Outstanding Notes or (2) if the Administrator and the Administrative Agents determine in their reasonable judgment that an applicable Note Rating Agency no longer provides such letters as described in the foregoing clause (1), (a) the Administrator shall provide notice of such merger, consolidation or conversion to the related Note Rating Agency and (b) each Administrative Agent shall have provided its prior written consent to merger, consolidation or conversion; provided, that the Issuer provides an Issuer Certificate to the effect that any such merger, consolidation or conversion will not have a material Adverse Effect on the Outstanding Notes, and (ii) prior to any such merger, consolidation or conversion the Administrator shall have
delivered to the Indenture Trustee an Opinion of Counsel to the effect that such merger, consolidation or conversion complies with the terms of this Base Indenture and one or more Opinions of Counsel updating or restating all opinions delivered on the date of this Base Indenture with respect to corporate matters and the enforceability of Transaction Documents against loanDepot, non-consolidation of the Servicer with the Issuer, security interests and tax, and any additional opinions required under any related Indenture Supplement; provided, further, that the conditions specified in clauses (i) and (ii) above shall not apply to any transaction (i) in which an Affiliate of loanDepot assumes the obligations of loanDepot and otherwise satisfies the eligibility criteria applicable to the Servicer under the Ginnie Mae Contracts or (ii) in which an Affiliate of loanDepot is merged into or is otherwise combined with loanDepot and loanDepot is the sole survivor of such merger or other combination. loanDepot shall provide notice of any merger, consolidation or succession pursuant to this Section to the Indenture Trustee, the Noteholders and each Note Rating Agency.
Except as described in the preceding paragraph, loanDepot may not assign or delegate any of its rights or obligations under this Base Indenture or any other Transaction Document.
Article XI
The Indenture Trustee
Section 11.1. Certain Duties and Responsibilities.
(a) The Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Base Indenture with respect to the Notes, and no implied covenants, duties (including fiduciary duties) or obligations will be read into this Base Indenture against the Indenture Trustee.
(b) In the absence of bad faith on its part, the Indenture Trustee may, with respect to the Notes, conclusively rely upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Base Indenture, as to the truth of the statements and the correctness of the opinions expressed therein; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee will be under a duty to examine the same to determine whether or not they conform on their face to the requirements of this Base Indenture but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein.
(c) If an Event of Default has occurred and is continuing, with respect to the Notes of which a Responsible Officer of the Indenture Trustee has been given written notice in the manner set forth in this Indenture or of which a Responsible Officer of the Indenture Trustee has actual knowledge, the Indenture Trustee will exercise such of the rights and powers vested in it by this Base Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs; provided that the foregoing shall not be deemed to require the Indenture Trustee to take any action, or have any liability for the failure to take any action, where the terms of this Base Indenture or any Indenture Supplement provide that the Indenture Trustee only takes action at the direction of a certain percentage of the Noteholders or other Person or if the Indenture Trustee is permitted to refrain from taking action unless it has been provided with adequate indemnity.
(d) No provision of this Base Indenture will be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this subsection (d) will not be construed to limit the effect of subsection (a) of this Section 11.1;
(ii) the Indenture Trustee will not be liable for any error of judgment made in good faith by an Indenture Trustee Authorized Officer, unless it will be proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee will not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Majority Noteholders or the Administrative Agent relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee, under this Base Indenture with respect to the Notes of any Class, to the extent consistent with Sections 8.7 and 8.8;
(iv) no provision of this Base Indenture will require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it has reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the Indenture Trustee against such risk or liability is not reasonably assured to it;
(v) whether or not therein expressly so provided, every provision of this Base Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee will be subject to the provisions of this Section 11.1; and
(vi) the Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Issuer or of Noteholders, as applicable, in accordance with the terms of this Indenture, relating to the time, method or place of conducting any proceeding for any remedy available to the Indenture Trustee or with respect to the exercise of any trust or power conferred upon such party under this Indenture or with respect to the Notes.
Section 11.2. Notice of Defaults.
Except as otherwise provided in Section 3.3(b), within [***] after the occurrence of any Event of Default hereunder,
(a) the Indenture Trustee will transmit by mail to all registered Noteholders, as their names and addresses appear in the Note Register, notice of such default hereunder known to the Indenture Trustee, and
(b) the Indenture Trustee will give prompt written notification thereof to each Note Rating Agency, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of or interest on any Note of any Series or Class, the Indenture Trustee will be protected in withholding such notice if and so long as an Indenture Trustee Responsible Officer in good faith determines that the withholding of such notice is in the interests of the Noteholders of such Series or Class. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default.
Section 11.3. Certain Rights of Indenture Trustee.
Except as otherwise provided in Section 11.1:
(a) the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary may conclusively rely and will be protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Certificate;
(c) whenever in the administration of this Base Indenture the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary deems it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officer’s Certificate;
(d) each of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary may consult with counsel of its own selection, at the expense of the Issuer, and the advice of such counsel or any Opinion of Counsel will be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be under obligation to exercise any of the rights or powers vested in it by this Base Indenture at the request or direction of any of the Noteholders pursuant to this Base Indenture, unless such Noteholders shall have offered to the Indenture Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document; but such party in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if any of the Indenture Trustee, the Paying Agent, the Note Registrar or the Securities Intermediary shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney, upon reasonable notice of not less than [***];
(g) each of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be required to provide any surety or bond of any kind in connection with the execution or performance of its duties hereunder;
(i) none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall be deemed to make any representations as to the validity or sufficiency of this Indenture;
(j) none of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall at any time have any responsibility or liability other than as may be expressly set forth in this Indenture for or with respect to the legality, validity or enforceability of any of the Notes and the Indenture Trustee shall have no liability to the Noteholders or any other party for the statements or representations made by any party, including the Secured Party, in the Acknowledgment Agreement;
(k) in order to comply with their respective duties under the USA Patriot Act of 2001, the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall obtain and verify certain information and documentation from the other parties to this Indenture including, but not limited to, such party’s name, address, and other identifying information;
(l) the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary shall not be under any obligation to (i) institute, conduct, defend or otherwise participate in any litigation or other legal Proceeding hereunder or in relation hereto at the request, order or direction of any of the Noteholders pursuant to the provisions of this Indenture, or (ii) undertake an investigation of any party to any transaction agreement, unless, in each case, such Noteholders shall have offered to the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary security or indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred therein or thereby;
(m) the Indenture Trustee shall not have any duty or responsibility in respect to (i) any recording, filing or depositing of this Indenture or any other agreement or instrument, monitoring or filing any financing statement or continuation statement evidencing a security interest, the maintenance of any such recording, filing or depositing or any re-recording, re-filing or re-depositing of any thereof, or otherwise monitoring the perfection, continuation of perfection or the sufficiency or validity of any security interest in or related to the Collateral, (ii) the acquisition or maintenance of any insurance or (iii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral. The Indenture Trustee shall be authorized to, but shall in no event have any duty or responsibility to, file any financing or continuation statements or record any documents or instruments in any public office at any time or times or otherwise perfect or maintain any security interest in the Collateral;
(n) the Indenture Trustee shall not be deemed to have notice of any default, Event of Default, Funding Interruption Event or Servicer Termination Event unless an Indenture Trustee Responsible Officer has actual knowledge thereof or unless written notice of any event which is in fact such a default, Event of Default, Funding Interruption Event or Servicer Termination Event is received by the Indenture Trustee at the Corporate Trust Office of the Indenture Trustee, and such notice references the Notes and this Base Indenture; in the absence of receipt of such notice or actual knowledge, the Indenture Trustee may conclusively assume that there is no default, Event of Default, Funding Interruption Event or Servicer Termination Event;
(o) the rights, privileges, protections, immunities and benefits given to the Indenture Trustee hereunder and under each Transaction Document, including, its right to be indemnified, are extended to, and shall be enforceable (without duplication) by, the Indenture Trustee or the bank serving as Indenture Trustee, as applicable, in each of its capacities hereunder and thereunder (including, Calculation Agent, Custodian, Paying Agent, Securities Intermediary and Note Registrar), and each agent and other person employed to act hereunder and thereunder;
(p) none of the provisions contained in this Base Indenture shall in any event require the Indenture Trustee to perform, or be responsible for the manner of performance of, any of the obligations of the Servicer or any other Person under this Base Indenture;
(q) the Indenture Trustee shall have no duty (A) to see to any recording, filing, or depositing of this Base Indenture or any agreement referred to herein or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refiling or redepositing of any thereof, (B) to see to any insurance, (C) to see to the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Trust Estate other than from funds available in the Trust Accounts or (D) to confirm or verify the contents of any reports or certificates of the Servicer or the Administrator delivered to the Indenture Trustee pursuant to this Base Indenture believed by the Indenture Trustee to be genuine and to have been signed or presented by the proper party or parties;
(r) the Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Base Indenture;
(s) the right of the Indenture Trustee to perform any discretionary act enumerated in this Base Indenture or the other Transaction Documents shall not be construed as a duty, and the Indenture Trustee shall not be answerable for other than its negligence or willful misconduct in the performance of such act;
(t) the Indenture Trustee shall not be required to give any bond or surety in respect of the execution of the Trust Estate created hereby or the powers granted hereunder;
(u) in making or disposing of any investment permitted by this Base Indenture, the Indenture Trustee is authorized to deal with itself (in its individual capacity) or with any one or more of its Affiliates, in each case on an arm's-length basis and on standard market terms, whether it or such Affiliate is acting as a subagent of the Indenture Trustee or for any third Person or dealing as principal for its own account;
(v) the Indenture Trustee shall not be responsible for delays or failures in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, pandemics, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts or God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; and
(w) None of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary (i) shall be responsible for and make any representation as to the validity, legality, enforceability, sufficiency or adequacy of this Indenture, the Notes or any other Transaction Document or as to the correctness of any statement thereof, (ii) shall be accountable for the Issuer’s use of the proceeds from the Notes, or (iii) shall be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes. The recitals contained herein and in the Notes shall be construed as the statements of the Issuer. The Indenture Trustee shall not be responsible for any statement of the Issuer in this Indenture or any statement in any document, including any offering memorandum, issued in connection with the sale of any Notes or in the Notes other than information provided by the Indenture Trustee and the Indenture Trustee’s certificate of authentication or for the use or application of any funds received by any Paying Agent other than the Indenture Trustee.
(x) In no event will the Indenture Trustee have any responsibility to monitor compliance with or enforce compliance with the credit risk retention rules under Regulation RR or other rules or regulations relating to risk retention. The Indenture Trustee will not be charged with knowledge of such rules, nor will it be liable to any Noteholder, Certificateholder, the Servicer or any other Person for violation of such rules now or hereinafter in effect. The Indenture Trustee will not be required to monitor, initiate or conduct any proceedings to enforce the obligations of the Servicer or any other Person with respect to any breach of representation or warranty under any Transaction Document, and the Indenture Trustee will not have any duty to conduct any investigation as to the occurrence of any condition requiring the repurchase or substitution of any security by any Person pursuant to any Transaction Document.
Section 11.4. Reserved
Section 11.5. Indenture Trustee’s Appointment as Attorney-In-Fact.
(a) The Servicer hereby irrevocably constitutes and appoints the Indenture Trustee and any officer or agent thereof, during the continuation of an Event of Default, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Servicer and in the name of the Servicer, for the purpose of carrying out the terms of this Base Indenture and each Indenture Supplement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Base Indenture, each Indenture Supplement, the Ginnie Mae Contract, the Acknowledgment Agreement, and, without limiting the generality of the foregoing, the Issuer hereby gives the Indenture Trustee the power and right:
(1) to take possession of and endorse and collect any wired funds, checks, drafts, notes, acceptances or other instruments for the payment of moneys due under Participation Certificates Granted by the Issuer to the Indenture Trustee from the related Mortgage Pool, the Obligors on underlying Mortgage Loans or the Servicer, as the case may be;
(2) to file any claim or proceeding in any court of law or equity or take any other action otherwise deemed appropriate by the Indenture Trustee for the purpose of collecting any and all such moneys due from the related Mortgage Pool, the Obligors on underlying Mortgage Loans or the Servicer under such Participation Certificate whenever payable and to enforce any other right in respect of any Participation Certificate Granted by the Issuer or related to the Trust Estate;
(3) to direct the related Servicer to make payment of any and all moneys due or to become due under the Participation Certificate Granted by the Issuer directly to the Indenture Trustee or as the Indenture Trustee shall direct;
(4) to ask or demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due from the related Mortgage Pool or the Servicer at any time in respect of or arising out of any Participation Certificate Granted by the Issuer;
(5) to sign and endorse any assignments, notices and other documents in connection with the Participation Certificates Granted by the Issuer or the Trust Estate;
(6) to sell, transfer, pledge and make any agreement with respect to or otherwise deal with the Participation Certificates Granted by the Issuer and the Trust Estate as fully and completely as though the Indenture Trustee were the absolute owner thereof for all purposes, and do, at the Indenture Trustee’s option and at the expense of
the Issuer, at any time, or from time to time, all acts and things which the Indenture Trustee deems reasonably necessary to protect, preserve or realize upon the Participation Certificate Granted by the Issuer or the Trust Estate and the Indenture Trustee’s and the Issuer’s respective security interests and ownership interests therein and to effect the intent of this Base Indenture, all as fully and effectively as the Issuer might do;
(7) to perform or cause to be performed, the Servicer’s obligations under any Guaranty Agreement or the Ginnie Mae Contract to the extent permitted by the Acknowledgment Agreement;
(8) upon and after the occurrence of a default by the Servicer under a Guaranty Agreement or the Ginnie Mae Contract, the Servicer also authorizes the Indenture Trustee, or other party appointed by the Indenture Trustee, to have on site access to the Servicer’s operation sites, sufficient for the Administrative Agent or other party appointed by it, to begin the process of transferring the portfolio to a “Standby Issuer” as required pursuant to the Acknowledgment Agreement;
(9) the Servicer also authorizes the Administrative Agent, at any time and from time to time, to execute, in connection with the sale provided for in Section 8.15 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; provided that the exercise of such powers are in accordance with the Acknowledgment Agreement; and
(10) the powers conferred on the Indenture Trustee are solely to protect the Noteholders’ interest in the Collateral and shall not impose any duty upon the Indenture Trustee to exercise any such powers.
(b) The Indenture Trustee shall be accountable only for amounts that it actually receives as a result of the exercise of such powers, and neither the Indenture Trustee nor any of its officers, directors, or employees shall be responsible to the Issuer for any act or failure to act hereunder; provided, that the Indenture Trustee shall exercise such powers only in accordance with the Acknowledgment Agreement. Nothing contained herein shall in any way be deemed to be a grant of power or authority to the Indenture Trustee or any officer or agent thereof to take any of the actions described in this paragraph with respect to any underlying Obligor under any Mortgage Pool, for which an Advance was made or Servicing Fee was accrued.
Section 11.6. Money Held in Trust.
The Indenture Trustee will be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.
Section 11.7. Compensation and Reimbursement, Limit on Compensation, Reimbursement and Indemnity.
Except as otherwise provided in this Base Indenture:
(a) The Indenture Trustee (including in all of its capacities) will be paid the Indenture Trustee Fee on each Payment Date pursuant to Section 4.5 as compensation for its services (in all capacities hereunder).
(b) The Indenture Trustee (including in all of its capacities) shall be indemnified and held harmless by the Trust Estate as set forth in Section 4.5 and Section 8.6, and shall be secondarily indemnified and held harmless by the Administrator for, from and against, as the case may be, any loss, liability or expense incurred without negligence or willful misconduct on
its part, arising out of, or in connection with, the acceptance and administration of the Trust Estate, including, without limitation, the costs and expenses (including reasonable legal fees and expenses, including legal fees and expenses in connection with the enforcement of its indemnification rights hereunder) of defending itself against any claim in connection with the exercise or performance of any of its powers or duties under this Base Indenture, provided that:
(i) with respect to any such claim, the Indenture Trustee shall have given the Administrator written notice thereof promptly after a Responsible Officer of the Indenture Trustee shall have actual knowledge thereof; provided, however that failure to give such written notice shall not affect the Trust Estate’s or the Administrator’s obligation to indemnify the Indenture Trustee, unless such failure materially prejudices the Trust Estate’s or the Administrator’s rights;
(ii) the Administrator may, at its sole option, assume the defense of any such claim using counsel reasonably satisfactory to the Indenture Trustee; and
(iii) notwithstanding anything in this Base Indenture to the contrary, the Administrator shall not be liable for settlement of any claim by the Indenture Trustee, as the case may be, entered into without the prior consent of the Administrator, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, in no event shall the Trust Estate or the Administrator be required to indemnify the Indenture Trustee if the indemnification obligation under this Section 11.7 is the result of gross negligence or willful misconduct by the Indenture Trustee.
No termination of this Base Indenture, or the resignation or removal of the Indenture Trustee, shall affect the obligations created by this Section 11.7(b) of the Administrator to indemnify the Indenture Trustee under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided in this Section 11.7(b) with respect to the Administrator shall not pertain to any loss, liability or expense of the Indenture Trustee, including the costs and expenses of defending itself against any claim, incurred in connection with any actions taken by the Indenture Trustee at the direction of the Noteholders pursuant to the terms of this Base Indenture.
The Indenture Trustee agrees fully to perform its duties under this Base Indenture notwithstanding its failure to receive any payments of Indenture Trustee Fees pursuant to this Section 11.7(b) subject to its rights to resign in accordance with the terms of this Base Indenture.
Anything in this Base Indenture to the contrary notwithstanding, in no event shall the Indenture Trustee (in any of its capacities) be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such a loss or damage and regardless of the form of action.
The Securities Intermediary, the Paying Agent, the Custodian and the Calculation Agent shall be indemnified by the Trust Estate pursuant to Section 4.5 and Section 8.6, and secondarily by the Administrator, in respect of the matters described in Section 4.9 to the same extent as the Indenture Trustee.
Neither of the Indenture Trustee nor the Securities Intermediary will have any recourse to any asset of the Issuer or the Trust Estate other than funds available pursuant to Section 4.5 and Section 8.6 or to any Person other than the Issuer (or the Administrator pursuant to this
Section 11.7). Except as specified in Section 4.5 and Section 8.6, any such payment to the Indenture Trustee shall be subordinate to payments to be made to Noteholders.
The Indenture Trustee is not responsible for any action or inaction of the Administrative Agent.
Section 11.8. Corporate Indenture Trustee Required; Eligibility.
There will at all times be an Indenture Trustee hereunder with respect to all Classes of Notes, which will be either a bank or a corporation organized and doing business under the laws of the United States of America or of any state, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by a federal or state authority of the United States, and the long-term unsecured debt obligation of which are rated at least BBB from each Note Rating Agency then rating Outstanding Notes if such institution is rated by the Note Rating Agency, as applicable, or if such Note Rating Agency downgrades the Indenture Trustee below such minimum rating, the Indenture Trustee may obtain, at its own expense, a confirmation from such Note Rating Agency that downgraded the Indenture Trustee below such rating category that there is no Ratings Effect by reason of such downgrade to a lower rating. If such bank or corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such bank or corporation will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Issuer may not, nor may any Person directly or indirectly Controlling, Controlled by, or under common Control with the Issuer, serve as Indenture Trustee. If at any time the Indenture Trustee ceases to be eligible in accordance with the provisions of this Section 11.8, it shall resign upon failure to obtain such confirmation within a reasonable time (not to exceed [***]) after such ineligibility in the manner and with the effect hereinafter specified in this Article.
Section 11.9. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee pursuant to this Article will become effective until the acceptance of appointment by the successor Indenture Trustee under Section 11.10.
(b) The Indenture Trustee and the bank serving as Indenture Trustee (in all capacities) may resign with respect to all, but not less than all, such capacities and all, but not less than all of the Outstanding Notes at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Indenture Trustee, Custodian, Calculation Agent, Paying Agent or Securities Intermediary shall not have been delivered to the Indenture Trustee within [***] after the giving of such notice of resignation, the resigning Indenture Trustee, Custodian, Calculation Agent, Paying Agent or Securities Intermediary may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee, Custodian, Calculation Agent, Paying Agent and Securities Intermediary. Written notice of resignation by the Indenture Trustee under this Base Indenture shall also constitute notice of resignation as Custodian, Calculation Agent, Securities Intermediary, Paying Agent, and Note Registrar hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such resignation.
(c) The Indenture Trustee or Calculation Agent may be removed with respect to all Outstanding Notes at any time by Action of the Majority Noteholders of all Outstanding Notes, delivered to the Indenture Trustee and to the Issuer. Removal of the Indenture Trustee shall also constitute removal of the Calculation Agent, Securities Intermediary, Note Registrar and Paying Agent hereunder, to the extent the Indenture Trustee serves in such a capacity at the time of such removal. If an instrument of acceptance by a successor Indenture Trustee or Calculation Agent
shall not have been delivered to the Indenture Trustee within [***] after the giving of such notice of removal, the Indenture Trustee or Calculation Agent being removed may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(d) If at any time:
(i) the Indenture Trustee ceases to be eligible under Section 11.8 and fails to resign after written request therefore by the Issuer or by any Noteholder;
(ii) the Indenture Trustee becomes incapable of acting with respect to any Series or Class of Notes;
(iii) the Indenture Trustee is adjudged bankrupt or insolvent or a receiver of the Indenture Trustee or of its property is appointed or any public officer takes charge or Control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
(iv) the Indenture Trustee (in any of its capacities) shall breach or default in the performance of any of its covenants or agreements in this Base Indenture, any Indenture Supplement or any other Transaction Document in any material respect, and any such default shall continue for a period of [***] after the earlier to occur of (a) actual discovery by a Responsible Officer of the Indenture Trustee, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Administrator, the Administrative Agent, or the Servicer; or
(v) any representation or warranty of the Indenture Trustee (in any of its capacities) made in this Base Indenture, any Indenture Supplement or any other Transaction Document shall prove to have been breached in any material respect as of the time when the same shall have been made or deemed made, and continues uncured and unremedied for a period of [***] after the earlier to occur of (a) actual discovery by a Responsible Officer of the Indenture Trustee, or (b) the date on which written or electronic notice of such failure, requiring the same to be remedied, shall have been given from the Administrator, the Administrative Agent, or the Servicer;
then, in any such case, (A) the Issuer may remove the Indenture Trustee (with the written consent of the Administrative Agent in the case of (iv) and (v)), or (B) subject to Section 8.8, any Noteholder who has been a bona fide Noteholder of a Note for at least [***] may, on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(e) If the Indenture Trustee or Calculation Agent resigns, is removed or becomes incapable of acting with respect to any Notes, or if a vacancy shall occur in the office of the Indenture Trustee or Calculation Agent for any cause, the Issuer, subject to the Administrative Agent’s consent, will promptly appoint a successor Indenture Trustee or Calculation Agent. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Indenture Trustee or Calculation Agent is appointed by Act of the Majority Noteholders of all Outstanding Notes, delivered to the Issuer and the retiring Indenture Trustee or Calculation Agent, the successor Indenture Trustee or Calculation Agent so appointed will, forthwith upon its acceptance of such appointment, become the successor Indenture Trustee or Calculation Agent and supersede the successor Indenture Trustee or Calculation Agent appointed by the Issuer. If no successor Indenture Trustee or Calculation Agent shall have been so appointed by the Issuer or the Noteholders and accepted appointment in the manner hereinafter provided, any Noteholder who has been a bona fide Noteholder of a Note for at least [***] may,
on behalf of itself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee or Calculation Agent.
(f) The Issuer will give written notice of each resignation and each removal of the Indenture Trustee and each appointment of a successor Indenture Trustee to each Noteholder as provided in Section 1.7 and to each Note Rating Agency that is then rating Outstanding Notes. To facilitate delivery of such notice, upon request by the Issuer, the Note Registrar shall provide to the Issuer a list of the relevant registered Noteholders. Each notice will include the name of the successor Indenture Trustee and the address of its principal Corporate Trust Office.
Section 11.10. Acceptance of Appointment by Successor.
Every successor Indenture Trustee appointed hereunder will execute, acknowledge and deliver to the Issuer, the Administrator, the Servicer and the predecessor Indenture Trustee an instrument accepting such appointment, with a copy to each Note Rating Agency then rating any Outstanding Notes, and thereupon the resignation or removal of the predecessor Indenture Trustee will become effective, and such successor Indenture Trustee, without any further act, deed or conveyance, will become vested with all the rights, powers, trusts and duties of the predecessor Indenture Trustee, Calculation Agent, Securities Intermediary, Note Registrar and Paying Agent; but, on request of the Issuer or the successor Indenture Trustee, such predecessor Indenture Trustee will, upon payment of its reasonable charges, if any, execute and deliver an instrument transferring to such successor Indenture Trustee all the rights, powers and trusts of the predecessor Indenture Trustee, Calculation Agent, Securities Intermediary, Note Registrar and Paying Agent, and will duly assign, transfer and deliver to such successor Indenture Trustee all property and money held by such predecessor Indenture Trustee hereunder, subject nevertheless to its rights to payment pursuant to Section 11.7. Upon request of any such successor Indenture Trustee, the Issuer will execute any and all instruments for more fully and certainly vesting in and confirming to such successor Indenture Trustee all such rights, powers and trusts.
No successor Indenture Trustee will accept its appointment unless at the time of such acceptance such successor Indenture Trustee will be qualified and eligible under this Article XI.
Section 11.11. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Indenture Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Indenture Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Indenture Trustee, will be the successor of the Indenture Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article XI, without the execution or filing of any paper or any further act on the part of any of the parties hereto. The Indenture Trustee will give prompt written notice of such merger, conversion, consolidation or succession to the Issuer and each Note Rating Agency that is then rating Outstanding Notes. If any Notes shall have been authenticated, but not delivered, by the Indenture Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Indenture Trustee may adopt such authentication and deliver the Notes so authenticated with the same effect as if such successor Indenture Trustee had itself authenticated such Notes.
Section 11.12. Appointment of Authenticating Agent.
At any time when any of the Notes remain Outstanding, the Indenture Trustee, with the approval of the Issuer, may appoint an Authenticating Agent with respect to one or more Series or Classes of Notes which will be authorized to act on behalf of the Indenture Trustee to authenticate Notes of such Series or Classes issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 6.5, and Notes so authenticated will be entitled to the benefits of this Base Indenture and will be valid and obligatory for all purposes as if authenticated by the Indenture Trustee hereunder. Wherever reference is made in this Base Indenture to the authentication and delivery of Notes by the Indenture Trustee or an Indenture Trustee Authorized Signatory or to the Indenture Trustee’s Certificate of Authentication, such reference will be deemed to include authentication and delivery on behalf of the Indenture Trustee by an Authenticating Agent and a Certificate of Authentication executed on behalf of the Indenture Trustee by an Authenticating Agent. Each Authenticating Agent will be acceptable to the Issuer and will at all times be a Person organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as an Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if other than the Issuer itself, subject to supervision or examination by a federal or state authority of the United States. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent will be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent will cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent will resign immediately in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent will be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, will continue to be an Authenticating Agent, provided that such Person will be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Indenture Trustee and to the Issuer. The Indenture Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or if at any time such Authenticating Agent ceases to be eligible in accordance with the provisions of this Section, the Indenture Trustee, with the approval of the Issuer, may appoint a successor Authenticating Agent which will be acceptable to the Issuer and will give notice to each Noteholder as provided in Section 1.7. Any successor Authenticating Agent upon acceptance of its appointment hereunder will become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent will be appointed unless eligible under the provisions of this Section.
The Indenture Trustee agrees to pay to each Authenticating Agent (other than an Authenticating Agent appointed at the request of the Issuer, the Noteholders or the Administrator from time to time or appointed due to a change in law or other circumstance beyond the Indenture Trustee’s control) reasonable compensation for its services under this Section, out of the Indenture Trustee’s own funds without reimbursement pursuant to this Base Indenture. The Indenture Trustee shall be the initial Authenticating Agent.
Section 11.13. Authorization.
The Indenture Trustee is authorized and directed to enter into each of the Transaction Documents to which it is a party.
Section 11.14. Representations and Covenants of the Indenture Trustee.
The Indenture Trustee, in its individual capacity and not as Indenture Trustee, represents, warrants and covenants that:
(a) Citibank is a national banking association duly organized and validly existing under the laws of the United States;
(b) Citibank has full power and authority to deliver and perform this Base Indenture and has taken all necessary action to authorize the execution, delivery and performance by it of this Base Indenture and other documents to which it is a party;
(c) each of this Base Indenture and the other Transaction Documents to which Citibank is a party has been duly executed and delivered by Citibank and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms; and
(d) Citibank has a minimum aggregate capital, surplus and undivided profits of at least $500,000.
Section 11.15. Indenture Trustee’s Application for Instructions from the Issuer.
Any application by the Indenture Trustee for written instructions from the Issuer may, at the option of the Indenture Trustee, set forth in writing any action proposed to be taken or omitted by the Indenture Trustee under and in accordance with this Base Indenture and the date on and/or after which such action shall be taken or such omission shall be effective, provided that such application shall make specific reference to this Section 11.15. The Indenture Trustee shall not be liable for any action taken by, or omission of, the Indenture Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than [***] after the date the Issuer actually receives such application, unless the Issuer shall have consented in writing to any earlier date) unless prior to taking any such action (or the Closing Date in the case of an omission), the Indenture Trustee shall have received written instructions in response to such application specifying the action be taken or omitted.
Section 11.16. Authorization and Direction.
The Indenture Trustee is hereby authorized and directed to execute (i) that certain Acknowledgment Agreement, (ii) that certain PC Repurchase Agreement, (iii) that certain Pricing Side Letter (as defined in the PC Repurchase Agreement), (iv) that certain Series 2021-PIAVF1 Indenture Supplement, dated as of the date hereof, (v) that certain Series 2021-SAVF1 Indenture Supplement, dated as of the date hereof, (vi) that certain Series 2017-VF1 Indenture Supplement, dated as of the date hereof, (vii) any other documents related to the issuance of the Series 2021-PIAVF1 Notes or Series 2021-SAVF1 Notes.
Article XII
Amendments and Indenture Supplements
Section 12.1. Supplemental Indentures and Amendments Without Consent of Noteholders.
(a) Unless otherwise provided in the related Indenture Supplement with respect to any amendment to this Base Indenture or such Indenture Supplement, without the consent of the Noteholders of any Notes or any other Person but with the consent of the Issuer (evidenced by its
execution of such amendment), the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent, and with prior notice to each Note Rating Agency that is then rating any Outstanding Notes, at any time and from time to time, upon delivery of an Issuer Tax Opinion, unless such Issuer Tax Opinion is waived by (i) in the case of an amendment to such Indenture Supplement, the Series Required Noteholders of such Series or (ii) in the case of an amendment to this Base Indenture, the Series Required Noteholders of each Outstanding Series and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect and is not reasonably expected to have a material Adverse Effect on the Noteholders of the Notes at any time in the future, may amend this Base Indenture or an Indenture Supplement for any of the following purposes:
(i) to evidence the succession of another Person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Notes;
(ii) to add to the covenants of the Issuer, or to surrender any right or power herein conferred upon the Issuer, for the benefit of the Noteholders of the Notes of any or all Series or Classes (and if such covenants or the surrender of such right or power are to be for the benefit of less than all Series or Classes of Notes, stating that such covenants are expressly being included or such surrenders are expressly being made solely for the benefit of one or more specified Series or Classes);
(iii) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Base Indenture;
(iv) to establish any form of Note as provided in Article V, and to provide for the issuance of any Series or Class of Notes as provided in Article VI and to set forth the terms thereof, and/or to add to the rights of the Noteholders of the Notes of any Series or Class;
(v) to evidence and provide for the acceptance of appointment by another corporation as a successor Indenture Trustee hereunder;
(vi) to provide for additional or alternative forms of credit enhancement for any Series or Class of Notes;
(vii) to comply with any regulatory, accounting or tax laws;
(viii) to prevent the Issuer from being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for United States federal income tax purposes;
(ix) determined by the Administrator to be reasonably necessary to maintain the rating currently assigned by the applicable Note Rating Agency and/or to avoid such Class of Notes being placed on negative watch by such Note Rating Agency; or
(x) as otherwise provided in the related Indenture Supplement.
(b) Additionally, subject to the terms and conditions of Section 12.2, unless otherwise provided in the related Indenture Supplement with respect to any amendment of this Base Indenture or an Indenture Supplement, and in addition to clauses (i) through (x) above, this Base Indenture or an Indenture Supplement may also be amended by the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent (in its sole and absolute discretion)
without the consent of any of the Noteholders or any other Person, upon delivery of an Issuer Tax Opinion, unless such Issuer Tax Opinion is waived by (i) in the case of an amendment to such Indenture Supplement, the Series Required Noteholders of such Series or (ii) in the case of an amendment to this Base Indenture, the Series Required Noteholders of each Outstanding Series, for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Base Indenture or modifying in any manner the rights of the Noteholders of the Notes under this Base Indenture or any other Transaction Document; provided, however, that (i) the Issuer shall deliver to the Indenture Trustee an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future, and (ii) if any Outstanding Notes are then rated by a Note Rating Agency, (1) each such Note Rating Agency confirms in writing to the Indenture Trustee that such amendment will not cause a Ratings Effect on any Outstanding Notes or (2) if the Administrator and the Administrative Agent determine in their reasonable judgment that an applicable Note Rating Agency no longer provides such written confirmation described in the foregoing clause (1), (a) the Administrator shall provide notice of such amendment to the related Note Rating Agency and (b) the Administrative Agent shall have provided their prior written consent to such amendment.
(c) Any amendment of this Base Indenture which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
(d) Any amendment of this Base Indenture which affects the rights, duties, immunities, obligations or liabilities of the Credit Manager hereunder shall require the written consent of the Credit Manager.
Except as permitted expressly by the related Transaction Document or as otherwise set forth herein, as applicable, the Servicer shall not enter into any amendment of such Transaction Document without the consent of the Administrative Agent and, in the case of the PC Repurchase Agreement, except for amendments meeting the same criteria and supported by the same Issuer Tax Opinion, Officer’s Certificate and other applicable deliverables, as applicable, as amendments to the Indenture entered into under this Section 12.1, without the consent of the Majority Noteholders of each Series.
Section 12.2. Supplemental Indentures and Amendments with Consent of Noteholders.
In addition to any amendment permitted pursuant to Section 12.1, and subject to the terms and provisions of each Indenture Supplement with respect to any amendment to this Base Indenture or such Indenture Supplement, with prior notice to each Note Rating Agency and the consent of the Majority Noteholders of each Series materially and adversely affected by such amendment of this Base Indenture, including any Indenture Supplement, by Act of said Noteholders delivered to the Issuer and the Indenture Trustee, the Issuer, the Administrator, the Servicer, the Administrative Agent and the Indenture Trustee upon delivery of an Issuer Tax Opinion (unless the Noteholders unanimously consent to waive such opinion), may enter into an amendment of this Base Indenture for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Base Indenture of modifying in any manner the rights of the Noteholders of the Notes of each such Series or Class under this Base Indenture or any Indenture Supplement; provided, however, that no such amendment will, without the consent of the Noteholder of each Outstanding Note materially and adversely affected thereby:
(a) change the scheduled payment date of any payment of interest on any Note held by such Noteholder, or change a Payment Date or (other than by exercise of an optional extension as set forth in the related Indenture Supplement) the Stated Maturity Date of any Note held by such Noteholder;
(b) reduce the Note Balance of, or the Note Interest Rate, the Step-Up Fee Rate or the Default Supplemental Fee Rate on any Note held by such Noteholder, or change the method of computing the Note Balance or Note Interest Rate in a manner that is adverse to such Noteholder;
(c) impair the right to institute suit for the enforcement of any payment on any Note held by such Noteholder;
(d) reduce the percentage of Noteholders of the Outstanding Notes (or of the Outstanding Notes of any Series or Class), whose consent is required for any such amendment, or whose consent is required for any waiver of compliance with the provisions of this Base Indenture or any Indenture Supplement or of defaults hereunder or thereunder and their consequences, provided for in this Base Indenture or any Indenture Supplement;
(e) modify any of the provisions of this Section or Section 8.14, except to increase any percentage of Noteholders required to consent to any such amendment or to provide that other provisions of this Base Indenture or any Indenture Supplement cannot be modified or waived without the consent of the Noteholder of each Outstanding Note adversely affected thereby;
(f) permit the creation of any lien or other encumbrance on the Collateral that is prior to the lien in favor of the Indenture Trustee for the benefit of the Noteholders of the Notes;
(g) change the method of computing the amount of principal of, or interest on, any Note held by such Noteholder on any date;
(h) increase any Advance Rates in respect of Notes held by such Noteholder except as otherwise set forth in the Indenture; or
(i) change, modify or waive any Scheduled Principal Payment Amount.
In addition, any Indenture Supplement may be amended, supplemented or otherwise modified with the consent of each of the Noteholders of the Notes of the related Series upon delivery of all opinions and certificates and notice to each Note Rating Agency required pursuant to the first paragraph of this Section 12.2 or as otherwise specified in the applicable Indenture Supplement. The consent of a Person that is an Administrative Agent for one or more Series but is not an Administrative Agent for any other Series is not required for any amendment, supplement or modification to any such other Series.
An amendment of this Base Indenture which changes or eliminates any covenant or other provision of this Base Indenture which has expressly been included solely for the benefit of one or more particular Series or Class of Notes, or which modifies the rights of the Noteholders of Notes of such Series or Class with respect to such covenant or other provision, will be deemed not to affect the rights under this Base Indenture of the Noteholders of Notes of any other Series or Class.
It will not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed amendment, but it will be sufficient if such Act will approve the substance thereof.
Section 12.3. Execution of Amendments.
In executing or accepting the additional trusts created by any amendment or Indenture Supplement of this Base Indenture permitted by this Article XII or the modifications thereby of the trusts created by this Base Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized and permitted by this Base Indenture and that all conditions precedent thereto have been satisfied. No such Opinion of Counsel shall be required in connection with any amendment or Indenture Supplement consented to by all Noteholders if all of the Noteholders have directed the Indenture Trustee in writing to execute such amendment or Indenture Supplement. The Indenture Trustee may, but will not be obligated to, enter into any such amendment or Indenture Supplement which affects the Indenture Trustee’s own rights, duties or immunities under this Base Indenture or otherwise.
The Indenture Trustee, in accordance with the Acknowledgment Agreement, shall give Ginnie Mae prompt written notice of, and timely submit to Ginnie Mae for its review and approval, any amendment, restatement, supplement, waiver or other modification to the Indenture and related documents, including any VFN Repurchase Agreement and any Pricing Side Letter related thereto (including, without limitation, any material increase or decrease in the maximum amount permitted under the credit facility(ies) available thereunder) of which it has actual knowledge that would materially affect Ginnie Mae’s interests and rights under the Acknowledgment Agreement. The Issuer shall forward the initial draft to [***] and include in the subject line “For Sending to Ginnie.”
Section 12.4. Effect of Amendments.
Upon the execution of any amendment of this Base Indenture or any Indenture Supplement, or any supplemental indentures under this Article XII, this Base Indenture and the related Indenture Supplement will be modified in accordance therewith with respect to each Series and Class of Notes affected thereby, or all Notes, as the case may be, and such amendment will form a part of this Base Indenture and the related Indenture Supplement for all purposes; and every Noteholder of Notes theretofore or thereafter authenticated and delivered hereunder will be bound thereby to the extent provided therein.
Section 12.5. Reference in Notes to Indenture Supplements.
Notes authenticated and delivered after the execution of any amendment of this Base Indenture or any Indenture Supplement or any supplemental indenture pursuant to this Article may, and will if required by the Indenture Trustee, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such amendment or supplemental indenture. If the Issuer so determines, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such amendment or supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
Article XIII
Early Redemption of Notes
Section 13.1. Optional Redemption.
(a) Unless otherwise provided in the applicable Indenture Supplement for a Series or Class of Notes, the Issuer has the right, but not the obligation, to: (i) redeem a Series or Class of Term Notes in whole or in part (so long as, in the case of any partial redemption, such
redemption is funded using the proceeds of the issuance and sale of one or more new Classes of Notes as further specified in the related Indenture Supplement or from any other cash or funds of loanDepot and not from Collections on MSRs) on a date specified in the applicable Indenture Supplement or on any Payment Date (a “Redemption Payment Date”) on or after the Payment Date on which the aggregate Note Balance (after giving effect to all payments, if any, on that day) of such Series or Class is reduced to less than the Redemption Percentage of the Initial Note Balance and (ii) redeem a Series or Class of Variable Funding Notes in whole or in part on a date specified in the applicable Indenture Supplement.
If the Issuer, at the direction of the Administrator, elects to redeem a Series or Class of Notes pursuant to this Section 13.1, it will cause the Issuer to notify the Indenture Trustee and the Noteholders of such redemption at least [***] prior to the Redemption Payment Date. Unless otherwise specified in the Indenture Supplement applicable to the Notes to be so redeemed, the redemption price of a Series or Class so redeemed will equal the Redemption Amount, the payment of which will be subject to the allocations, deposits and payments sections of the related Indenture Supplement, if any.
If the Issuer is unable to pay the Redemption Amount in full on the Redemption Payment Date, such redemption shall be cancelled, notice of such cancelled redemption shall be sent to all Secured Parties and payments on such Series or Class of Notes will thereafter continue to be made in accordance with this Base Indenture and the related Indenture Supplement, and the Noteholders of such Series or Class of Notes and the related Administrative Agent shall continue to hold all rights, powers and options as set forth under this Base Indenture, until the Outstanding Note Balance of such Series or Class, plus all accrued and unpaid interest and other amounts due in respect of the Notes, is paid in full or the Stated Maturity Date occurs, whichever is earlier, subject to Article VII, Article VIII and the allocations, deposits and payments sections of this Base Indenture and the related Indenture Supplement.
(b) Unless otherwise specified in the related Indenture Supplement, if the VFN Principal Balance of any Class of VFNs has been reduced to zero, then, upon [***] prior written notice to the Noteholder thereof, the Issuer may declare such Class no longer Outstanding, in which case the Noteholder thereof shall submit such Class of Notes to the Indenture Trustee for cancellation.
(c) The Notes of any Series or Class of Notes shall be subject to optional redemption under this Article XIII, in whole but not in part, by the Issuer, through (i) the use of the proceeds of issuance and sale of a new Series of Notes issued hereunder, or (ii) the use of the proceeds received of any amounts funded under any Variable Funding Notes on any Business Day after the date on which the related Revolving Period ends, and on any Business Day within [***]or at other times specified in the related Indenture Supplement upon [***] (or other times specified in the related Indenture Supplement) prior notice to the Indenture Trustee and the Indenture Trustee shall promptly deliver such notice of optional redemption to the Noteholders. Following issuance of the Redemption Notice by the Issuer pursuant to Section 13.2 below, the Issuer shall be required to purchase the entire aggregate Note Balance of such Series or Class of Term Notes for the applicable Redemption Amount on the date set for such redemption (the “Redemption Date”).
(d) If necessary to avoid a Borrowing Base Deficiency, the Notes of any Series or Class of Variable Funding Notes shall be subject to adjustment pursuant to Section 4.3(b)(i) or repayment by the Issuer, in whole or in part, up to the amount necessary to avoid a Borrowing Base Deficiency, any repayment using any other cash or funds of the Issuer other than Collections on the Participation Certificate, upon [***] prior notice from the Issuer to the Indenture Trustee and the related VFN Noteholders. Any such adjustment or repayment pursuant to this Section 13.1(d) shall reduce the principal balance of such Variable Funding
Notes but shall not result in a reduction of any funding commitments related thereto or the Maximum VFN Principal Balance thereof (unless otherwise agreed between the Noteholders of such Variable Funding Notes and the Issuer) and (ii) may be made on a non-pro rata basis with other Series of Variable Funding Notes.
(e) Notwithstanding any other provision of this Base Indenture, the early redemption rights of the Issuer set forth in this Section 13.1 are in addition to the Issuer’s rights set forth in Section 2.01(b)(ii) to remove as Collateral the Participation Certificates and Mortgage Pools.
Section 13.2. Notice.
(a) Promptly after the election to exercise any optional redemption pursuant to Section 13.1, the Issuer will notify the Indenture Trustee and each related Note Rating Agency in writing of the identity and Note Balance of the affected Series or Class of Notes to be redeemed.
(b) Notice of redemption (each a “Redemption Notice”) will promptly be given as provided in Section 1.7. All notices of redemption will state (i) the Series or Class of Notes to be redeemed pursuant to this Article XIII, (ii) the date on which the redemption of the Series or Class of Notes to be redeemed pursuant to this Article will begin, which will be the Redemption Payment Date, and (iii) the redemption price for such Series or Class of Notes.
Article XIV
Miscellaneous
Section 14.1. No Petition.
Each of the Indenture Trustee, the Administrative Agent, the Servicer and the Administrator, by entering into this Base Indenture, each Noteholder, by accepting a Note and each Note Owner by accepting a Note or a beneficial interest in a Note agrees that it will not at any time prior to the date which is one year and one day, or, if longer, the applicable preference period then in effect, after the payment in full of all the Notes, institute against the Issuer, or join in any institution against the Issuer of, any receivership, insolvency, bankruptcy or other similar proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes and this Base Indenture; provided, however, that nothing contained herein shall prohibit or otherwise prevent the Indenture Trustee from filing proofs of claim in any such proceeding.
Section 14.2. No Recourse.
No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or Owner Trustee in their individual capacities, (ii) any owner of a beneficial ownership interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or “control person” within the meaning of the 1933 Act and the 1934 Act of the Indenture Trustee or Owner Trustee in its individual capacity, any holder of a beneficial ownership interest in the Issuer or the Indenture Trustee or Owner Trustee or of any successor or assign of the Indenture Trustee or Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
Section 14.3. Tax Treatment.
Notwithstanding anything to the contrary set forth herein, the Issuer has entered into this Base Indenture with the intention that for United States federal, state and local income and franchise tax purposes the Notes (to the extent issued and outstanding) will qualify as indebtedness secured by the Participation Certificate and the MSRs. The Issuer, by entering into this Base Indenture, each Noteholder, by its acceptance of a Note and each purchaser of a beneficial interest therein, by accepting such beneficial interest, agree to treat such Notes (to the extent issued and outstanding) as debt for United States federal, state and local income and franchise tax purposes, unless otherwise required by applicable law in a proceeding of final determination. The Indenture Trustee shall treat the Trust Estate as a security device only. The provisions of this Base Indenture shall be construed in furtherance of the foregoing intended tax treatment.
Section 14.4. Alternate Payment Provisions.
Notwithstanding any provision of this Base Indenture or any of the Notes to the contrary, the Issuer, with the written consent of the Indenture Trustee and the Paying Agent, may enter into any agreement with any Noteholder of a Note providing for a method of payment or notice that is different from the methods provided for in this Base Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee and the Paying Agent a copy of each such agreement and the Indenture Trustee and the Paying Agent will cause payments or notices, as applicable, to be made in accordance with such agreements.
Section 14.5. Termination of Obligations.
The respective obligations and responsibilities of the Indenture Trustee created hereby (other than the obligation of the Indenture Trustee to make payments to Noteholders as hereinafter set forth) shall terminate upon satisfaction and discharge of this Base Indenture as set forth in Article VII, except with respect to the payment obligations described in Section 14.6(b). Upon this event, the Indenture Trustee shall release, assign and convey to the Issuer or any of its designees, without recourse, representation or warranty, all of its right, title and interest in the Collateral, whether then existing or thereafter created, all monies due or to become due and all amounts received or receivable with respect thereto (including all moneys then held in any Trust Account) and all proceeds thereof, except for amounts held by the Indenture Trustee pursuant to Section 14.6(b). The Indenture Trustee shall execute and deliver such instruments of transfer and assignment as shall be provided to it, in each case without recourse, as shall be reasonably requested by the Issuer to vest in the Issuer or any of its designees all right, title and interest which the Indenture Trustee had in the Collateral.
Section 14.6. Final Payment.
(a) The Issuer shall give the Indenture Trustee at least [***] prior written notice of the Payment Date on which the Noteholders of any Series or Class may surrender their Notes for payment of the final payment on and cancellation of such Notes. Not later than the [***] prior to the Payment Date on which the final payment in respect of such Series or Class is payable to Noteholders, the Indenture Trustee or the Paying Agent shall provide notice to Noteholders of such Series or Class specifying (i) the date upon which final payment of such Series or Class will be made upon presentation and surrender of Notes of such Series or Class at the office or offices therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such payment date is not applicable, payments being made only upon presentation and surrender of such Notes at the office or offices therein specified. The Indenture Trustee shall give such notice to the Note Registrar and the Paying Agent at the time such notice is given to Noteholders.
(b) Notwithstanding a final payment to the Noteholders of any Series or Class (or the termination of the Issuer), except as otherwise provided in this paragraph, all funds then on deposit in any Account allocated to such Noteholders shall continue to be held in trust for the benefit of such Noteholders, and the Paying Agent or the Indenture Trustee shall pay such funds to such Noteholders upon surrender of their Notes, if such Notes are Definitive Notes. In the event that all such Noteholders shall not surrender their Notes for cancellation within [***] after the date specified in the notice from the Indenture Trustee described in clause (a) above, the Indenture Trustee shall give a second (2nd) notice to the remaining such Noteholders to surrender their Notes for cancellation and receive the final payment with respect thereto. If within [***] after the second (2nd) notice all such Notes shall not have been surrendered for cancellation, the Indenture Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining such Noteholders concerning surrender of their Notes, and the cost thereof (including costs related to giving the second (2nd) notice) shall be paid out of the funds in the Collection and Funding Account. The Indenture Trustee and the Paying Agent shall pay to the Issuer any monies held by them for the payment of principal or interest that remains unclaimed for [***]. After payment to the Issuer, Noteholders entitled to the money must look to the Issuer for payment as general creditors unless an applicable abandoned property law designates another Person.
Section 14.7. Base Servicing Fee.
The parties hereto acknowledge that loanDepot has the right to withdraw the Base Servicing Fee with respect to any Mortgage Loan out of collections it receives with respect to such Mortgage Loan.
Section 14.8. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Base Indenture is executed and delivered by WSFS, not individually or personally but solely as trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Base Indenture and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Base Indenture or any other related documents.
Section 14.9. Communications with Rating Agencies.
If the Servicer, the Administrative Agent or the Indenture Trustee shall receive any written or oral communication from any Note Rating Agency (or any of the respective officers, directors or employees of any Note Rating Agency) with respect to the transactions contemplated hereby or under the Transaction Documents or in any way relating to the Notes, the Servicer, the Administrative Agent and the Indenture Trustee agree to refrain from communicating with such Note Rating Agency and to promptly notify the Administrator of such communication; provided, however, that if the Servicer, the Administrative Agent or the Indenture Trustee receives an oral communication from a Note Rating Agency, the Servicer, the Administrative Agent or the Indenture Trustee, as the case may be, is authorized to refer such Note Rating Agency to the
Administrator, who will respond to such oral communication. At the written request of the Administrator, the Servicer, the Administrative Agent and the Indenture Trustee agree to cooperate with the Administrator to provide certain information to the Administrator that may be reasonably required by a Note Rating Agency to rate or to perform ratings surveillance on the Notes, and acknowledge and agree that the Administrator shall be permitted, in turn, to provide such information to the Note Rating Agencies via the internet address identified therefor by the Administrator; provided, that the Servicer, the Administrative Agent and the Indenture Trustee shall only be required to provide such information that is reasonably available to such party at the time of request. Notwithstanding any other provision of this Base Indenture or the other Transaction Documents, under no circumstances shall the Servicer, the Administrative Agent or the Indenture Trustee be required to participate in telephone conversations or other oral communications with a Note Rating Agency, nor shall the Servicer, the Administrative Agent or the Indenture Trustee be prohibited from communicating with any nationally recognized statistical rating organization about matters other than the Notes or the transactions contemplated hereby or by the Transaction Documents. Furthermore, the Indenture Trustee may make statements to Noteholders available on its website (as contemplated by Section 3.5(a), and such action is not prohibited by this Section 14.9.
Section 14.10. Authorized Representatives.
Each individual designated as an authorized representative of the Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary, loanDepot, the Administrative Agents, the Issuer and the Credit Manager (each, an “Authorized Representative”), is authorized to give and receive notices, requests and instructions and to deliver certificates and documents in connection with this Base Indenture on behalf of each of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, loanDepot, the Administrative Agents, Issuer and the Credit Manager, respectively, and the specimen signature for each such Authorized Representative of the Indenture Trustee, Calculation Agent, Paying Agent, Securities Intermediary, loanDepot, the Administrative Agents, the Issuer and the Credit Manager initially authorized hereunder is set forth on Exhibits C-1, C-2, C-3, C-4 and C-5, respectively. From time to time, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, loanDepot, the Administrative Agents, the Issuer and the Credit Manager may, by delivering to the others a revised exhibit, change the information previously given pursuant to this Section 14.10, but each of the parties hereto shall be entitled to rely conclusively on the then current exhibit until receipt of a superseding exhibit.
Section 14.11. Performance of the Issuer’s Duties by the Owner Trustee and the Administrator.
(a) The parties hereto hereby acknowledge and agree (i) that certain duties of the Issuer will be performed on behalf of the Issuer by the Administrator pursuant to the Administration Agreement and hereby acknowledge and accept the terms of such agreement as of the date hereof and (ii) except as expressly set forth herein, the Owner Trustee shall have no duty or obligation to perform the obligations of the Issuer hereunder or to monitor the compliance of the Issuer with the terms hereof.
(b) Any successor to the Owner Trustee appointed pursuant to the terms of the Trust Agreement (or any corporation into which the Owner Trustee may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Owner Trustee shall be a party) shall be the successor Owner Trustee under the Trust Agreement for purposes of this Base Indenture without the execution or filing of any paper, instrument or further act to be done on the part of the parties hereto.
Section 14.12. Noteholder or Note Owner Communications with the Indenture Trustee.
A Noteholder (if the Notes are represented by Definitive Notes) or a Note Owner (if the Notes are represented by Book-Entry Notes) may communicate with the Indenture Trustee and give notices and make requests and demands and give directions to the Indenture Trustee through the procedures of the Depository and by notifying the Indenture Trustee and providing to the Indenture Trustee a copy of the communication such Noteholder or Note Owner, as applicable, proposes to send. Any Note Owner must provide written certification stating that the Note Owner is a beneficial owner of a Note, together with supporting documentation such as a trade confirmation, an account statement, a letter from a broker or dealer verifying ownership or another similar document evidencing ownership of a Note. The Indenture Trustee will not be required to take action in response to requests, demands or directions of a Noteholder or a Note Owner, unless the Noteholder or Note Owner has offered reasonable security or indemnity reasonably satisfactory to the Indenture Trustee to protect it against the fees and expenses that it may incur in complying with the request, demand or direction.
Section 14.13. Joinder of the Acknowledgment Agreement.
Each party hereto acknowledges, and each Noteholder and any party with a participation or other interest in any of the Notes is hereby deemed a joinder party to the Acknowledgment Agreement for the limited purpose of acknowledging and agreeing, that its interests in the Servicing Rights (as defined in the Acknowledgment Agreement) and in all reimbursements for Advances (as defined in the Acknowledgment Agreement) and Servicing Income (as defined in the Acknowledgment Agreement) in respect of the Servicing Rights (as defined in the Acknowledgment Agreement) are subject to the terms of the Acknowledgment Agreement and shall be subordinate in all respects to the rights and powers of Ginnie Mae thereunder and under the Ginnie Mae Contract. Without limiting the generality of the foregoing, each Noteholder and any party with a participation or other interest in any of the Notes is deemed to confirm that it shall have no rights under, and that pursuant to this Indenture it has waived (and hereby waives) any and all rights under or pursuant to, the Acknowledgment Agreement in respect of the Security Agreement (as defined in the Acknowledgment Agreement, the Security Interest (as defined in the Acknowledgment Agreement) and the Participation Certificate; provided, that the foregoing shall not be interpreted as a waiver of such entity’s rights under and pursuant to the Security Agreement, nor as a waiver of its rights in respect of the Security Interest.
Section 14.14. Consent, Authorization and Acknowledgments of Amendments.
As of the date hereof, the terms and conditions of the Original Indenture shall be amended and restated as set forth herein and the Original Indenture shall be superseded by this Base Indenture. The rights and obligations of the parties evidenced by the Original Indenture shall be evidenced by this Base Indenture and shall continue to be in full force and effect as set forth in this Base Indenture. Each of the Issuer, Servicer, the Administrator, the Indenture Trustee, the Administrative Agent and NCFA, as Noteholder of [***]% of the Outstanding VFNs, hereby consents to this Base Indenture and acknowledges and agrees that the amendments effected by this Base Indenture shall become effective on the Effective Date.
Upon receipt of the amended Participation Certificate, the Indenture Trustee is hereby directed to cancel and destroy or cause to cancel and destroy the Original Participation Certificate.
[Signature Pages Follow]
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Base Indenture to be duly executed as of the day and year first above written.
LOANDEPOT GMSR MASTER TRUST, as Issuer
By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee
By:/s/ Mary Emily Pagano
Name: Mary Emily Pagano
Title:Vice President
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity
By:/s/Valerie Delgado
Name: Valerie Delgado
Title:Senior Trust Officer
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
LOANDEPOT.COM, LLC,
as Servicer and as Administrator
By:/s/ David Hayes
Name:David Hayes
Title:CFO
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Administrative Agent
By:/s/ Sanil Patel
Name:Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
PENTALPHA SURVEILLANCE LLC, as Credit Manager
By:/s/ James Callahan
Name:James Callahan
Title:Executive Director and solely as an Authorized Signatory of Pentalpha Surveillance LLC
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
CONSENTED TO BY:
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Noteholder of 100% of the Outstanding VFNs
By:/s/ Sanil Patel
Name:Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust – Third Amended and Restated Base Indenture]
Schedule 1
[***]
Schedule 2
[***]
Schedule 3
[***]
Schedule 4
[***]
Schedule 5
[***]
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
LOANDEPOT GMSR MASTER TRUST,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
LOANDEPOT.COM, LLC,
as Servicer and as Administrator
and
NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent
__________
SECOND AMENDED AND RESTATED SERIES 2017-VF1 INDENTURE SUPPLEMENT
Dated as of January 25, 2024
To
THIRD AMENDED AND RESTATED BASE INDENTURE
Dated as of January 25, 2024
MSR COLLATERALIZED NOTES,
SERIES 2017-VF1
Table of Contents
Page
This SECOND AMENDED AND RESTATED SERIES 2017-VF1 INDENTURE SUPPLEMENT (this “Indenture Supplement”), dated as of January 25, 2024, is made by and among LOANDEPOT GMSR MASTER TRUST, a statutory trust organized under the laws of the State of Delaware, as issuer (the “Issuer”), CITIBANK, N.A., a national banking association, as indenture trustee (the “Indenture Trustee”), as calculation agent (the “Calculation Agent”), as paying agent (the “Paying Agent”) and as securities intermediary (the “Securities Intermediary”), LOANDEPOT.COM, LLC, a limited liability company organized under the laws of the State of Delaware (“loanDepot”), as servicer (the “Servicer”) and as administrator (the “Administrator”), and NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), a Delaware limited liability company, as Administrative Agent (as defined herein). This Indenture Supplement relates to and is executed pursuant to that certain Third Amended and Restated Base Indenture, dated as of January 25, 2024, including the schedules and exhibits thereto (as supplemented hereby, and as amended, restated, supplemented or otherwise modified from time to time, the “Base Indenture”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, PENTALPHA SURVEILLANCE LLC, a Delaware limited liability company, as credit manager (the “Credit Manager”), NCFA, as Administrative Agent, and the “Administrative Agents” from time to time parties thereto, all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement, collectively referred to as the “Indenture”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture, and the rules of interpretation set forth in Section 1.2 of the Base Indenture shall apply equally herein.
PRELIMINARY STATEMENT
WHEREAS, the Issuer entered into an Indenture Supplement, dated as of August 11, 2017 (as amended by Amendment No. 1 thereto, dated as of September 17, 2018, as further amended by Amendment No. 2 thereto, dated as of September 16, 2019, as further amended by Amendment No. 3 thereto, dated as of October 16, 2019, and as further amended by Amendment No. 4 thereto, dated as of October 15, 2020, the “Original Indenture Supplement”), which was amended and restated by that certain Amended and Restated Indenture Supplement, dated as of November 15, 2021 (as amended by Omnibus Amendment No. 1, dated as of February 10, 2022, and as further amended by Omnibus Amendment No. 2, dated as of April 28, 2023, the “Amended Indenture Supplement”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary and the Administrative Agent;
WHEREAS, under the Original Indenture Supplement, the Issuer previously authorized the issuance of a Series of Variable Funding Notes, the Series 2017-VF1 Notes (as defined below);
WHEREAS, pursuant to Section 12.2 of the Base Indenture and Section 11(b) of the Amended Indenture Supplement, the Issuer, Indenture Trustee, loanDepot and the Administrative Agent, with prior notice to each Note Rating Agency and the consent of the Series Required Noteholders, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless the Noteholders unanimously consent to waive such opinion), may amend the Amended Indenture Supplement to amend any provision of the Amended Indenture Supplement;
WHEREAS, pursuant to Section 12.3 of the Base Indenture, in executing or accepting the additional trusts created by any amendment or Indenture Supplement of the Base Indenture permitted by Article XII or the modifications thereby of the trusts created by the Base Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 of the Base Indenture) will be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such amendment or Indenture Supplement is authorized and permitted by the Base Indenture and that all conditions precedent thereto have been satisfied (the “Authorization Opinion”);
WHEREAS, pursuant to Section 1.3 of the Base Indenture, the Issuer shall deliver an Officer’s Certificate stating that all conditions precedent, if any, provided for in the Base Indenture relating to a proposed action have been complied with, and shall also furnish to the Indenture Trustee an opinion of counsel stating that in the opinion of such counsel all conditions precedent to a proposed action, if any, have been complied with;
WHEREAS, pursuant to Section 11.1 of the Trust Agreement, prior to the execution of any amendment to any Transaction Documents to which the Trust is a party, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met;
WHEREAS, pursuant to Section 4.1(a)(iii) of the Trust Agreement, the consent of each of the Owners (as defined in the Trust Agreement) (unless an Event of Default has occurred and is continuing), the Administrative Agent and the Series Required Noteholders of all Variable Funding Notes is required for the amendment or other change to any Transaction Document in circumstances where the consent of any Noteholder or the Administrative Agent is required (other than an amendment or supplement to the Base Indenture pursuant to Section 12.1 thereof);
WHEREAS, currently there are four (4) Outstanding Series of Variable Funding Notes and one (1) Outstanding Series of Term Notes: (i) the Series 2017-VF1 Note (the “Series 2017-VF1 Note”), which was issued to loanDepot pursuant to the terms of the Original Indenture Supplement, and which has been transferred to NCFA and is subject to the terms set forth in the Series 2017-VF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2017-VF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2017-VF1 Note to NCFA; (ii) the Series 2017-MBSADV1 Note (the “Series 2017-MBSADV1 Note”), which was issued pursuant to the Series 2017-MBSADV1 Indenture Supplement and which has been transferred to NCFA and is subject to the terms of the Note Purchase Agreement, dated as of the date hereof, among the Issuer, the Administrative Agent and original purchaser thereunder (the “Series 2017-MBSADV1 Note Purchase Agreement”); (iii) the Series 2021-SAVF1 Note (the “Series 2021-SAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-SAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-SAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-SAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-SAVF1 Note to NCFA; (iv) the Series 2021-PIAVF1 Note (the “Series 2021-PIAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-PIAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-PIAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-PIAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-PIAVF1 Note to NCFA; and (v) the Series 2018-GT1 Notes (the “Series 2018-GT1 Notes”), which were issued pursuant to the Series 2018-GT1 Indenture Supplement and sold to third party purchasers pursuant to the terms of the Term Note Purchase Agreement, dated as of October 26, 2018, among the Issuer, loanDepot, as seller, servicer and administrator, and Credit Suisse Securities (USA) LLC, as initial purchaser (the “Series 2018-GT1 Term Note Purchase Agreement”);
WHEREAS, pursuant to the Trust Agreement, (i) loanDepot is the sole Owner of the Issuer, (ii) pursuant to the Amended Indenture Supplement, with respect to the Series 2017-VF1
Note, any Action provided by the Base Indenture or the Amended Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2017-VF1 Note under the 2017-VF1 Repurchase Agreement, (iii) pursuant to the terms of the Series 2017-MBSADV1 Note Purchase Agreement, NCFA is the purchaser of the Series 2017-MBSADV1 Note, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs, (iv) pursuant to the terms of the Series 2021-SAVF1 Repurchase Agreement, NCFA is the purchaser of the Series 2021-SAVF1 Note, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs, (v) pursuant to the terms of the Series 2021-PIAVF1 Repurchase Agreement, NCFA is the purchaser of the Series 2021-PIAVF1 Note, and (vi) pursuant to the terms of the Series 2018-GT1 Term Note Purchase Agreement, NCFA is the purchaser of the Series 2018-GT1 Notes, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs;
WHEREAS, the Amended Indenture Supplement is a Transaction Document;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, on the Effective Date, the parties are amending and restating the Amended Indenture Supplement, pursuant to this Indenture Supplement to, among other changes, reflect NCFA as the Administrative Agent; and
WHEREAS, all things necessary to make this Indenture Supplement a valid agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent hereby agree, 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, that the Amended Indenture Supplement is hereby amended as follows:
Section 1. Creation of the Series 2017-VF1 Notes.
The Series 2017-VF1 Notes are known as “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2017-VF1 Notes” (the “Series 2017-VF1 Notes”) and were issued pursuant to the Original Indenture Supplement on the Issuance Date. The Series 2017-VF1 Notes are not rated and are subordinate to the Series 2017-MBSADV1 Notes but shall not be subordinated to any other Series of Notes. The Series 2017-VF1 Notes were issued in one (1) Class of Variable Funding Notes (Class A-VF1) with the Maximum VFN Principal Balance, Stated Maturity Date, Note Interest Rate and other terms as specified in the Original Indenture Supplement. The Series 2017-VF1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2017-VF1 Notes and all other Series of Notes issued under the Base Indenture as described therein. In the event that any term or provision contained herein with respect to the Series 2017-VF1 Notes shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2. Defined Terms.
With respect to the Series 2017-VF1 Notes and in addition to or in replacement of the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment. The Calculation Agent shall not be responsible for calculating the Adjusted One-Month Term SOFR.
“Administrative Agent” means, for so long as the Series 2017-VF1 Notes are Outstanding, pursuant to the provisions of this Indenture Supplement, NCFA, or an Affiliate or successor by merger thereto.
“Advance Rate” means, with respect to the Series 2017-VF1 Notes, [***].”
“Advisers Act” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Base Indenture” has the meaning assigned to such term in the Preamble.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, the Benchmark for the [***] Business Days prior to the related Payment Date shall be fixed at the Benchmark for the [***] Business Day prior to the related Payment Date.
“Benchmark Adjustment” means, for any day, the spread adjustment for such Interest Accrual Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%. In connection with the implementation of a Benchmark Replacement Rate, the Administrative
Agent will have the right to make Benchmark Administration Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Administration Changes will become effective without any further action or consent of any other party to this Indenture Supplement or any other Transaction Document.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Noteholder of purchasing or maintaining the Note (including increases in the balance thereof) or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Noteholder or Administrative Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Benefit Plan Investor” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Class A–VF1 Notes” means, the Variable Funding Notes, Class A-VF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Corporate Trust Office” means the corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Issuance Date are located at Citibank, N.A., Agency and Trust, 388 Greenwich Street Trading, New York, NY 10013 Attention: loanDepot GMSR Master Trust, including for Note transfer, exchange or surrender purposes.
“Cumulative Interest Shortfall Amount Rate” means, with respect to the Series 2017-VF1 Notes, [***].
“Default Supplemental Fee” means for the Series 2017-VF1 Notes and each Payment Date [***].
“Default Supplemental Fee Rate” means, with respect to the Series 2017-VF1 Notes, [***].
“Early Amortization Event” means, with respect to the Series 2017-VF1 Notes, none.
“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.
“Fiduciary Rule” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Indenture” has the meaning assigned to such term in the Preamble.
“Indenture Supplement” has the meaning assigned to such term in the Preamble.
“Initial Note Balance” means, in the case of the Series 2017-VF1 Notes, an amount determined by the Administrative Agent, the Issuer and the Administrator on the Issuance Date, which amount is set forth in an Issuer Certificate delivered to the Indenture Trustee. For the avoidance of doubt, the requirement for minimum bond denominations in Section 6.2 of the Base Indenture shall not apply in the case of the Series 2017-VF1 Notes.
“Interest Accrual Period” means, for the Series 2017-VF1 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2017-VF1 Notes on any Payment Date shall be determined based on the Interest Day Count Convention.
“Interest Day Count Convention” means with respect to the Series 2017-VF1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“Issuance Date” means August 11, 2017.
“loanDepot” has the meaning assigned to such term in the Preamble.
“Margin” means, for the Series 2017-VF1 Notes, [***].
“Maximum VFN Principal Balance” means, for the Series 2017-VF1 Notes, $1,000,000,000, or (i) such other amount, calculated pursuant to a written agreement between the Administrator and the Administrative Agent or (ii) such lesser amount designated by the Administrator in accordance with the terms of the Base Indenture.
“Note Interest Rate” means, for the Series 2017-VF1 Notes, with respect to any Interest Accrual Period, [***].
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent in its sole good faith discretion as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any party.
“Plan Fiduciary” has the meaning assigned such term in Section 3 of this Indenture Supplement.
“Purchaser” means loanDepot in its capacity as “Seller” under the PC Repurchase Agreement, and its successors and permitted assigns under the PC Repurchase Agreement.
“Redeemable Notes” has the meaning assigned to such term in Section 6 of this Indenture Supplement.
“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.
“Series 2017-VF1 Notes” has the meaning assigned to such term in Section 1 of this Indenture Supplement.
“Series 2017-VF1 Repurchase Agreement” means the Master Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as seller, NCFA, as buyer, and NCFA, as administrative agent.
“Series Required Noteholders” means, for so long as the Series 2017-VF1 Notes are Outstanding, 100% of the Noteholders of the Series 2017-VF1 Notes. With respect to the Series 2017-VF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2017-VF1 Notes under the Series 2017-VF1 Repurchase Agreement.
“SOFR” means, a rate per annum equal to the secured overnight financing rate published for such day 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.
“Stated Maturity Date” means, for the Series 2017-VF1 Notes, the date on which the Termination Date (as defined in the Series 2017-VF1 Repurchase Agreement) occurs, which is subject to extension in accordance with the Series 2017-VF1 Repurchase Agreement.
“Transaction Parties” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“WSFS” means Wilmington Savings Fund Society, FSB, formerly d/b/a Christiana Trust.
Section 3. Form of the Series 2017-VF1 Notes; Transfer Restrictions; Certain ERISA Considerations.
(a) The Series 2017-VF1 Notes shall only be issued in definitive, fully registered form and the form of the Rule 144A Definitive Note that may be used to evidence the Series 2017-VF1 Notes in the circumstances described in Section 5.2(c) of the Base Indenture is attached to the Base Indenture as Exhibit A-2. None of the Series 2017-VF1 Notes shall be issued as Regulation S Notes nor shall any Series 2017-VF1 Notes be sold in offshore transactions in reliance on Regulation S.
(b) In addition to any transfer restrictions applicable to the Series 2017-VF1 Notes or any interest therein set in the Base Indenture, a purchaser, transferee or holder of the Series 2017-VF1 Notes or any interest therein that is a benefit plan investor as defined in 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA (a “Benefit Plan Investor”) or a fiduciary purchasing the Series 2017-VF1 Notes on behalf of a Benefit Plan Investor (a “Plan Fiduciary”), will be required to represent (or in the case of a Book-Entry Note, will be deemed represent by the acquisition of such Note) that:
(1) the decision to acquire the Series 2017-VF1 Notes has been made on an arm’s length basis by the Plan Fiduciary;
(2) none of the Issuer, loanDepot, NCFA or any of their respective affiliates (the “Transaction Parties”), has provided or will provide advice with respect to the acquisition of the Series 2017-VF1 Notes by the Benefit Plan Investor, other than to the Plan Fiduciary which is “independent” (within the meaning of Department of Labor Regulations promulgated on April 8, 2016 (81 Fed. Reg. 20,997) (the “Fiduciary Rule”)) of the Transaction Parties;
(3) the Plan Fiduciary either:
(a) is a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency; or
(b) is an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of an “employee benefit plan” as defined in Section 3(3) of ERISA or “plan” described in Section 4975 of the Code; or
(c) is an investment adviser registered under the Advisers Act, or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business; or
(d) is a broker-dealer registered under the 1934 Act; or
(e) has, and at all times that the Benefit Plan Investor is invested in the Series 2017-VF1 Notes, will have total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (5) shall not be satisfied if the Plan Fiduciary is either (i) the owner or a relative of the owner of an investing individual retirement account or (ii) a participant or beneficiary of the Benefit Plan Investor investing in or holding the Series 2017-VF1 Notes in such capacity);
(4) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by the Benefit Plan Investor of the Series 2017-VF1 Notes;
(5) the Plan Fiduciary is a “fiduciary” within the meaning of Section 3(21) of ERISA or Section 4975 of the Code, or both, with respect to the Benefit Plan Investor and is responsible for exercising independent judgment in evaluating the Benefit Plan Investor’s acquisition of the Series 2017-VF1 Notes;
(6) none of the Transaction Parties has exercised any authority to cause the Benefit Plan Investor to invest in the Series 2017-VF1 Notes or to negotiate the terms of the Benefit Plan Investor’s investment in the Series 2017-VF1 Notes; and
(7) the Plan Fiduciary acknowledges and agrees that it has been informed by the Transaction Parties:
(a) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Benefit Plan Investor’s acquisition of the Series 2017-VF1 Notes; and
(b) of the existence and nature of the Transaction Parties’ financial interests in the Benefit Plan Investor’s acquisition of the Series 2017-VF1 Notes.
These representations are intended to comply with 29 C.F.R. Sections 2510.3-21(a) and (c)(1) of the Fiduciary Rule. If these sections of the Fiduciary Rule are revoked, repealed or no longer effective, these representations shall be deemed to be no longer in effect.
Section 4. Interest Payment Amount.
Prior to the occurrence and continuation of an Event of Default (as defined under the Series 2017-VF1 Repurchase Agreement) under the Series 2017-VF1 Repurchase Agreement, [***] prior to each Payment Date, the Administrator shall report the calculation of the Interest Payment Amount for the Interest Accrual Period preceding such Payment Date for inclusion in the Payment Date Report.
Section 5. Payments; Note Balance Increases; Early Maturity; No Series Reserve Account.
(a)Except as otherwise expressly set forth herein, the Paying Agent shall make payments on the Series 2017-VF1 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture.
(b)The Paying Agent shall make payments of principal on the Series 2017-VF1 Notes on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5 of the Base Indenture. The Note Balance of the Series 2017-VF1 Notes shall be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the related Maximum VFN Principal Balance.
(c)Any payments of principal allocated to the Series 2017-VF1 Notes during a Full Amortization Period shall be applied to the Class A-VF1 Notes until their VFN Principal Balance has been reduced to zero.
(d)The parties hereto acknowledge that the Series 2017-VF1 Notes are financed by NCFA under the Series 2017-VF1 Repurchase Agreement, pursuant to which loanDepot sold all its rights, title and interest in the Series 2017-VF1 Notes to NCFA. The parties hereto acknowledge that with respect to the Series 2017-VF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2017-VF1 Notes under the Series 2017-VF1 Repurchase Agreement. Subject to the foregoing, on the Effective Date the Series 2017-VF1 Note No. 3 shall be surrendered for cancellation and the Issuer and the Administrative Agent hereby authorize and direct the Indenture Trustee to register and issue the replacement Series 2017-VF1 Note No. 4, in the name of “Nomura Corporate Funding Americas, LLC, solely in its capacity as Administrative Agent on behalf of Nomura Corporate Funding Americas, LLC, as a buyer, and other buyers from time to time, or their registered assigns, under an applicable master repurchase agreement”.
(e)There will be no Series Reserve Account for the Series 2017-VF1 Notes.
(f)Notwithstanding anything to the contrary herein or in the Base Indenture, absent a cash payment to reduce the VFN Principal Balance, the VFN Principal Balance of the Series 2017-VF1 Notes may not be adjusted to reduce the VFN Principal Balance thereof by the Administrator, on behalf of the Issuer, without the written consent of the Administrative Agent (which consent may be provided electronically).
Section 6. Optional Redemption.
The Issuer may, at any time, subject to Section 13.1 of the Base Indenture, upon at least [***] prior written notice to the Administrative Agent, the Indenture Trustee and the Noteholders of the Series 2017-VF1 Notes, redeem in whole or in part (so long as, in the case of any partial redemption, (i) such redemption is funded using the proceeds of the issuance and sale of one or more new Classes of Notes or from any other amount received by the Issuer attributable to the Excess Spread PC pursuant to the PC Repurchase Agreement other than Collections on the MSRs, and (ii) the Series 2017-VF1 Notes are redeemed on a pro rata basis based on their related Note Balances), and/or terminate and cause the retirement of the Series 2017-VF1 Notes. In anticipation of a redemption of the Series 2017-VF1 Notes at the end of their Revolving Period, the Issuer may issue a new Series or one or more Classes of Notes within the [***] period prior to the end of such Revolving Period and reserve all or a portion of the cash proceeds of the issuance for the sole purpose of paying the principal balance and all accrued and unpaid interest on the Series 2017-VF1 Notes, on the last day of their Revolving Period. Any supplement to this Indenture Supplement executed to effect an optional redemption may be
entered into without consent of the Noteholders of the Series 2017-VF1 Notes or of any other Notes issued under the Base Indenture (but with satisfaction of other requirements for amendments entered into without Noteholder consent). Any Notes issued in replacement for the Series 2017-VF1 Notes will have the same rights and privileges as the Class of Series 2017-VF1 Notes that were refinanced with the related proceeds thereof; provided, such replacement Notes may have different Stated Maturity Dates and different Note Interest Rates.
Section 7. Determination of Note Interest Rate and Benchmark.
(a) [***] immediately preceding the related Payment Date, the Administrative Agent will provide to the Calculation Agent the Benchmark for each day of the related Interest Accrual Period for the Series 2017-VF1 Notes on the basis of the procedures specified in the definition of Benchmark.
(b) The Calculation Agent shall calculate the Note Interest Rate for the related Interest Accrual Period and the Interest Payment Amount for the Series 2017-VF1 Notes on each Payment Date, and include such amount in the related Payment Date Report.
(c) The establishment of the Benchmark by the Administrative Agent and the Calculation Agent’s subsequent calculation of the Note Interest Rate and the Interest Payment Amount on the Series 2017-VF1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 8. Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2017-VF1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) of the Base Indenture and Article XII thereof, as applicable, to the issuance of the Series 2017-VF1 Notes have been satisfied or waived in accordance with the terms thereof.
Section 9. Representations and Warranties.
The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
The Administrator hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
loanDepot hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of loanDepot to perform its duties under this Indenture Supplement or any Transaction Document to which it is a party, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice
or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body,
Section 10. Amendments.
(a)Notwithstanding any provisions to the contrary in Article XII of the Base Indenture but subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless delivery of such Issuer Tax Opinion is waived by the Series Required Noteholders) and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have a material Adverse Effect, may amend any Transaction Document for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or in any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default or (ii) any other modification or amendment to any Event of Default except those related to the actions and omissions of the Servicer. This Indenture Supplement may be otherwise amended or otherwise modified from time to time in a written agreement among [***]% of the Noteholders of the Series 2017-VF1 Notes, the Issuer, the Administrator, the Administrative Agent, the Indenture Trustee and subject to the immediately preceding sentence, the Servicer.
(b)Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture except for amendments otherwise permitted as described in Sections 12.1 and 12.2 of the Base Indenture and in the immediately preceding paragraph, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of the Series Required Noteholders in respect of the Series 2017-VF1 Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
(c)For the avoidance of doubt, the Issuer and the Administrator hereby covenant that the Issuer shall not issue any future Series of Notes without designating an entity to act as “Administrative Agent” under the related Indenture Supplement with respect to such Series of Notes.
(d)Any amendment of this Indenture Supplement which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
Section 11. Counterparts.
This Indenture Supplement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Indenture Supplement, any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Indenture Supplement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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, including DocuSign.
Section 12. Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference and the related Transaction Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 13. Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2017-VF1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2017-VF1 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2017-VF1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2017-VF1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2017-VF1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 13 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2017-VF1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 13 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2017-VF1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 14. Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by WSFS, not individually or personally but solely as trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Indenture Supplement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture
Supplement or any other Transaction Documents. loanDepot as sole Owner under the Trust Agreement, in accordance with Section 4.1 of the Trust Agreement, confirms that (x) the consent of the Series Required Noteholders of all Variable Funding Notes has been received, and (y) the consent of the Majority Noteholders of all Notes that are not Variable Funding Notes is not required in connection with the execution and delivery of this Indenture Supplement, and (z) in taking the foregoing actions, the Owner Trustee, as such and in its individual capacity, is entitled to the benefits and protections of the Trust Agreement of the Issuer.
Section 15. Consent, Acknowledgment and Waivers.
By execution of this Indenture Supplement, NCFA, in its capacity as Series Required Noteholder of all Variable Funding Notes hereby consents to this Indenture Supplement. NCFA certifies that it is the buyer of the Series 2017-VF1 Notes under the Series 2017-VF1 Repurchase Agreement and it authorized to take any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder with the right to instruct the Indenture Trustee. In addition, NCFA certifies as to itself that (i) it is authorized to execute and deliver this consent and such power has not been granted or assigned to any other person, (ii) the Person executing this Indenture Supplement on behalf of NCFA is duly authorized to do so, (iii) the Indenture Trustee may conclusively rely upon such consent and certifications, (iv) the execution by NCFA of this Indenture Supplement should be considered an “Act” by Noteholders pursuant to Section 1.5 of the Base Indenture, and (v) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date.
NCFA hereby authorizes and directs the Indenture Trustee to execute and deliver this Indenture Supplement.
Section 16. Conditions to Effectiveness of this Indenture Supplement.
This Indenture Supplement shall become effective upon (i) execution and delivery of this Indenture Supplement by all parties hereto and (ii) upon delivery of the Opinion of Counsel required pursuant to Section 11.1 of the Trust Agreement, an Authorization Opinion, an Officer’s Certificate and an opinion of counsel, respectively, in connection with this Indenture Supplement pursuant to provisions of Section 12.2 of the Base Indenture, Section 10(b) of the Amended Indenture Supplement, Section 12.3 of the Base Indenture and 1.3 of the Base Indenture (the “Effective Date”).
Section 17. Effect of Amendment.
This Indenture Supplement shall be effective as of the Effective Date and shall not be effective for any period prior to the Effective Date. After this Indenture Supplement becomes effective, all references in the Indenture Supplement or the Base Indenture to “this Indenture Supplement,” “this Indenture,” “hereof,” “herein” or words of similar effect referring to such Indenture Supplement and Base Indenture shall be deemed to be references to the Indenture Supplement or the Base Indenture, as applicable, as amended by this Indenture Supplement. This Indenture Supplement shall not be deemed to expressly or impliedly waive, amend or supplement any provision of the Indenture Supplement or the Base Indenture other than as set forth herein.
The parties hereto have entered into this Indenture Supplement solely to amend the terms of the Amended Indenture Supplement and do not intend this Indenture Supplement or the transactions contemplated hereby to be, and this Indenture Supplement and the transactions contemplated hereby shall not be construed to be, a novation of any of the obligations owed by the parties hereto or any other party to the Indenture Supplement or Base Indenture under or in connection with the Indenture Supplement or Base Indenture or any of the other Transaction
Documents. It is the intention and agreement of each of the parties hereto that (i) the perfection and priority of all security interests securing the payment of the Notes, all other sums payable by the Issuer under the Indenture and the compliance by the Issuer with the provisions of the Indenture are preserved, (ii) the liens and security interests granted under the Indenture continue in full force and effect, and (iii) any reference to the Amended Indenture Supplement in any such Transaction Document shall be deemed to reference to this Indenture Supplement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed by their respective signatories thereunto all as of the day and year first above written.
| | | | | |
| LOANDEPOT GMSR MASTER TRUST, as Issuer By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee |
| By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
[loanDepot GMSR Master Trust – Second A&R Series 2017-VF1 Indenture Supplement]
| | | | | |
| CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity |
| By:/s/ Valerie Delgado Name:Valerie Delgado Title:Senior Trust Officer |
[loanDepot GMSR Master Trust – Second A&R Series 2017-VF1 Indenture Supplement]
| | | | | |
| LOANDEPOT.COM, LLC, as Administrator and as Servicer |
| By:/s/ David Hayes Name:David Hayes Title:CFO |
[loanDepot GMSR Master Trust – Second A&R Series 2017-VF1 Indenture Supplement]
| | | | | |
| NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent |
| By:/s/ Sanil Patel Name:Sanil Patel Title:Managing Director |
[loanDepot GMSR Master Trust – Second A&R Series 2017-VF1 Indenture Supplement]
CONSENTED TO BY:
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Noteholder of 100% of the Outstanding VFNs
By:/s/ Sanil Patel
Name: Sanil Patel
Title:Managing Director
[loanDepot GMSR Master Trust – Second A&R Series 2017-VF1 Indenture Supplement]
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
LOANDEPOT GMSR MASTER TRUST,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
LOANDEPOT.COM, LLC,
as Administrator and Servicer
and
NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent
AMENDED AND RESTATED SERIES 2017-MBSADV1 INDENTURE SUPPLEMENT
Dated as of January 25, 2024
To
THIRD AMENDED AND RESTATED BASE INDENTURE
Dated as of January 25, 2024
MSR COLLATERALIZED NOTES,
SERIES 2017-MBSADV1
TABLE OF CONTENTS
Page(s)
| | | | | | | | |
| Section 1. | Creation of the Series 2017-MBSADV1 Notes. | 4 |
| Section 2. | Defined Terms. | 5 |
| Section 3. | Form of the Series 2017-MBSADV1 Notes; Transfer Restrictions; Certain Additional ERISA Considerations. | 9 |
| Section 4. | MBS Advance VFN Draw Conditions; Payments; Note Balance Increases; Early Maturity; No Series Reserve Account. | 11 |
| Section 5. | Optional Prepayment. | 12 |
| Section 6. | Determination of Note Interest Rate and Benchmark. | 12 |
| Section 7. | Conditions Precedent Satisfied. | 12 |
| Section 8. | Representations and Warranties. | 12 |
| Section 9. | Amendments. | 13 |
| Section 10. | Counterparts. | 14 |
| Section 11. | Entire Agreement. | 14 |
| Section 12. | Limited Recourse. | 14 |
| Section 13. | Owner Trustee Limitation of Liability. | 15 |
Section 14. Consent, Acknowledgement and Waivers. 15
Section 15. Conditions to Effectiveness of this Indenture Supplement. 15
Section 16. Effect of Amendment. 16
This AMENDED AND RESTATED SERIES 2017-MBSADV1 INDENTURE SUPPLEMENT (this “Indenture Supplement”), dated as of January 25, 2024, is made by and among LOANDEPOT GMSR MASTER TRUST, a statutory trust organized under the laws of the State of Delaware, as issuer (the “Issuer”), CITIBANK, N.A., a national banking association, as indenture trustee (the “Indenture Trustee”), as calculation agent (the “Calculation Agent”), as paying agent (the “Paying Agent”) and as securities intermediary (the “Securities Intermediary”), LOANDEPOT.COM, LLC, a limited liability company organized under the laws of the State of Delaware (“loanDepot”), as servicer (the “Servicer”) and as administrator (the “Administrator”), and NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), a Delaware limited liability company, as Administrative Agent (as defined herein). This Indenture Supplement relates to and is executed pursuant to that certain Base Indenture, dated as of the date hereof, including the schedules and exhibits thereto (as supplemented hereby and as amended, restated, supplemented or otherwise modified from time to time, the “Base Indenture”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, PENTALPHA SURVEILLANCE LLC, a Delaware limited liability company, as credit manager (the “Credit Manager”), NCFA, as Administrative Agent and the “Administrative Agents” from time to time parties thereto, all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement, collectively referred to as the “Indenture”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture, and the rules of interpretation set forth in Section 1.2 of the Base Indenture shall apply equally herein.
PRELIMINARY STATEMENT
WHEREAS, the Issuer entered into an Indenture Supplement, dated as of August 11, 2017 (the “Original Indenture Supplement”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary and the Administrative Agent;
WHEREAS, under the Original Indenture Supplement, the Issuer has duly authorized the issuance of a Series of Variable Funding Notes, the Series 2017-MBSADV1 Notes (as defined below);
WHEREAS, pursuant to Section 12.2 of the Base Indenture and Section 11(b) of the Original Indenture Supplement, the Issuer, Indenture Trustee, loanDepot and the Administrative Agent, with prior notice to each Note Rating Agency and the consent of the Series Required Noteholders, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless the Noteholders unanimously consent to waive such opinion), may amend the Original Indenture Supplement to amend any provision of the Original Indenture Supplement;
WHEREAS, pursuant to Section 12.3 of the Base Indenture, in executing or accepting the additional trusts created by any amendment or Indenture Supplement of the Base Indenture permitted by Article XII or the modifications thereby of the trusts created by the Base Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 of the Base Indenture) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized and permitted by the Base Indenture and that all conditions precedent thereto have been satisfied (the “Authorization Opinion”);
WHEREAS, pursuant to Section 1.3 of the Base Indenture, the Issuer shall deliver an Officer’s Certificate stating that all conditions precedent, if any, provided for in the Base
Indenture relating to a proposed action have been complied with, and shall also furnish to the Indenture Trustee an opinion of counsel stating that in the opinion of such counsel all conditions precedent to a proposed action, if any, have been complied with;
WHEREAS, pursuant to Section 11.1 of the Trust Agreement, prior to the execution of any amendment to any Transaction Documents to which the Trust is a party, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met;
WHEREAS, pursuant to Section 4.1(a)(iii) of the Trust Agreement, the consent of each of the Owners (as defined in the Trust Agreement) (unless an Event of Default has occurred and is continuing), the Administrative Agent and the Series Required Noteholders of all Variable Funding Notes is required for the amendment or other change to any Transaction Document in circumstances where the consent of any Noteholder or the Administrative Agent is required (other than an amendment or supplement to the Base Indenture pursuant to Section 12.1 thereof);
WHEREAS, currently there are four (4) Outstanding Series of Variable Funding Notes and one (1) Outstanding Series of Term Notes: (i) the Series 2017-VF1 Note (the “Series 2017-VF1 Note”), which was issued to loanDepot pursuant to the terms of the Original Indenture Supplement, and which has been transferred to NCFA and is subject to the terms set forth in the Series 2017-VF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2017-VF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2017-VF1 Note to NCFA; (ii) the Series 2017-MBSADV1 Note (the “Series 2017-MBSADV1 Note”), which was issued pursuant to the Series 2017-MBSADV1 Indenture Supplement and which has been transferred to NCFA and is subject to the terms of the Note Purchase Agreement, dated as of the date hereof, among the Issuer, the Administrative Agent and original purchaser thereunder (the “Series 2017-MBSADV1 Note Purchase Agreement”); (iii) the Series 2021-SAVF1 Note (the “Series 2021-SAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-SAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-SAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-SAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-SAVF1 Note to NCFA; (iv) the Series 2021-PIAVF1 Note (the “Series 2021-PIAVF1 Note”), which was issued to loanDepot pursuant to the terms of the Series 2021-PIAVF1 Indenture Supplement, and which has been transferred to NCFA and is subject to the terms of the Series 2021-PIAVF1 Master Repurchase Agreement, dated as of the date hereof, between loanDepot, the Administrative Agent and NCFA (the “2021-PIAVF1 Repurchase Agreement”), pursuant to which loanDepot sold all of its rights, title and interest in the Series 2021-PIAVF1 Note to NCFA; and (v) the Series 2018-GT1 Notes (the “Series 2018-GT1 Notes”), which were issued pursuant to the Series 2018-GT1 Indenture Supplement and sold to third party purchasers pursuant to the terms of the Term Note Purchase Agreement, dated as of October 26, 2018, among the Issuer, loanDepot, as seller, servicer and administrator, and Credit Suisse Securities (USA) LLC, as initial purchaser (the “Series 2018-GT1 Term Note Purchase Agreement”);
WHEREAS, pursuant to the Trust Agreement, (i) loanDepot is the sole Owner of the Issuer, (ii) pursuant to the terms of the Series 2017-VF1 Repurchase Agreement, NCFA is the purchaser of the Series 2017-VF1 Note, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs, (iii) pursuant to the terms of the Series 2017-MBSADV1 Note Purchase Agreement, NCFA is the purchaser of the Series 2017-MBSADV1 Note, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs, (iv) pursuant to the terms of the Series 2021-SAVF1 Repurchase Agreement, NCFA is the purchaser of the Series 2021-SAVF1 Note, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs, (v) pursuant to the terms of
the Series 2021-PIAVF1 Repurchase Agreement, NCFA is the purchaser of the Series 2021-PIAVF1 Note, and (vi) pursuant to the terms of the Series 2018-GT1 Term Note Purchase Agreement, NCFA is the purchaser of the Series 2018-GT1 Notes, and therefore NCFA is Noteholder of 100% of the Outstanding VFNs;
WHEREAS, the Original Indenture Supplement is a Transaction Document;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, on the Effective Date, the parties are amending and restating the Original Indenture Supplement, pursuant to this Indenture Supplement to, among other changes, reflect NCFA as the Administrative Agent; WHEREAS, all things necessary to make this Indenture Supplement a valid agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer, Indenture Trustee, the Administrator, the Servicer and the Administrative Agent hereby agree, 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, that the Original Indenture Supplement is hereby amended as follows:
Section 1.Creation of the Series 2017-MBSADV1 Notes.
The Series 2017-MBSADV1 Notes are known as “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2017-MBSADV1 Notes” (the “Series 2017-MBSADV1 Notes”) and were issued pursuant to the Original Indenture Supplement on the Issuance Date. The Series 2017-MBSADV1 Notes are not rated and are senior to and shall not be subordinated to any other Series of Notes. The Series 2017- MBSADV1 Notes were issued in one (1) Class of Variable Funding Notes (Class A-MBSADV1) with the Maximum MBSADV1 VFN Principal Balance, Stated Maturity Date, Note Interest Rate and other terms as specified in the Original Indenture Supplement. The Series 2017-MBSADV1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2017-MBSADV1 Notes and all other Series of Notes issued under the Base Indenture as described therein. In the event that any term or provision contained herein with respect to the Series 2017-MBSADV1 Notes shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2.Defined Terms.
With respect to the Series 2017-MBSADV1 Notes and in addition to or in replacement of the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“Additional Note Balance” has the meaning assigned to such term in the Note Purchase Agreement.
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment. The Calculation Agent shall not be responsible for calculating the Adjusted One-Month Term SOFR.
“Administrative Agent” means, for so long as the Series 2017-MBSADV1 Notes are Outstanding, pursuant to the provisions of this Indenture Supplement, NCFA, or an Affiliate or successor by merger thereto.
“Advance Rate” means, with respect to the Series 2017-MBSADV1 Notes[***].
“Advisers Act” has the meaning assigned to such term in Section 14 of this Indenture Supplement.
“Base Indenture” has the meaning assigned to such term in the Preamble.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, the Benchmark for the [***] Business Days prior to the related Payment Date shall be fixed at the Benchmark for the [***] Business Day prior to the related Payment Date.
“Benchmark Adjustment” means, for any day, the spread adjustment for such Interest Accrual Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%. In connection with the implementation of a Benchmark Replacement Rate, the Administrative Agent will have the right to make Benchmark Administration Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Administration Changes will become effective without any further action or consent of any other party to this Indenture Supplement or any other Transaction Document.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Noteholder of purchasing or maintaining the Note (including increases in the balance thereof) or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Noteholder or Administrative Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Benefit Plan Investor” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Class A-MBSADV1 Notes” means, the Variable Funding Notes, Class A-MBSADV1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum MBSADV1 VFN Principal Balance.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Corporate Trust Office” means the corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Issuance Date are located at Citibank, N.A., Agency and Trust, 388 Greenwich Street Trading, New York, NY 10013, Attention: loanDepot GMSR Master Trust MSR Collateralized Notes, including for Note transfer, exchange or surrender purposes.
“Cumulative Interest Shortfall Amount Rate” means, with respect to the Series 2017- MBSADV1 Notes[***].
“Default Supplemental Fee” means for the Series 2017-MBSADV1 Notes [***].
“Default Supplemental Fee Rate” means, with respect to the Series 2017-MBSADV1 Notes, [***]
“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.
“Fiduciary Rule” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Indenture” has the meaning assigned to such term in the Preamble.
“Indenture Supplement” has the meaning assigned to such term in the Preamble.
“Initial Note Balance” means, in the case of the Series 2017-MBSADV1 Notes, $0. For the avoidance of doubt, the requirement for minimum bond denominations in Section 6.2 of the Base Indenture shall not apply in the case of the Series 2017-MBSADV1 Notes.
“Interest Accrual Period” means, for the Series 2017-MBSADV1 Notes and any Payment Date following the MBS Advance VFN Draw Event, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date following a MBS Advance
VFN Draw Event, the date on which such Series 2017-MBSADV1 Notes are drawn) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2017-MBSADV1 Notes on any Payment Date following the MBS Advance VFN Draw Event shall be determined based on the Interest Day Count Convention.
“Interest Day Count Convention” means with respect to the Series 2017-MBSADV1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“Issuance Date” means August 11, 2017.
“loanDepot” has the meaning assigned to such term in the Preamble.
“Margin” means, for the Series 2017-MBSADV1 Notes, 5[***].
“Maximum MBSADV1 VFN Principal Balance” means, for the Series 2017-MBSADV1 Notes, an amount communicated by the Administrative Agent in writing to the Indenture Trustee that the Noteholders of the Series 2017-MBSADV1 Notes are funding in accordance with the terms of the Base Indenture.
“MBS Advance VFN Draw Conditions” means the following conditions:
(i)Ginnie Mae has not issued a letter of extinguishment to loanDepot pursuant to the Ginnie Mae Contract, extinguishing all redemption, equitable, legal or other right, title or interest of loanDepot in and to the Pooled Mortgages;
(ii)the amount required for Citibank, N.A., as Indenture Trustee, in its capacity as secured party under the Acknowledgment Agreement, to cure a Servicer Payment Default pursuant to Section 8 of the Acknowledgment Agreement, is less than or equal to the Maximum MBSADV1 VFN Principal Balance;
(iii)the amount drawn under the Series 2017-MBSADV1 Notes will cure the Servicer Payment Default in full (and will not cause the Note Balance of the Series 2017-MBSADV1 Notes to exceed the Maximum MBSADV1 VFN Principal Balance);
(iv)a “Standby Issuer,” required pursuant to Section 7 of the Acknowledgment Agreement, has been identified and confirmed by Ginnie Mae; and
(v)the Series Required Noteholders have consented to fund the Series 2017- MBSADV1 Notes.
“MBS Advance VFN Draw Event” has the meaning assigned to such term in Section 4 of this Indenture Supplement.
“Note Interest Rate” means, for the Series 2017-MBSADV1 Notes, [***].
“Note Purchase Agreement” means that Note Purchase Agreement, dated as of January 25, 2024, by and among the Issuer, NCFA, as the Administrative Agent on behalf of the Purchasers specified therein and Purchaser, and acknowledged and agreed to by loanDepot, as Servicer and Administrator, that relates to the purchase of the Series 2017-MBSADV1 Notes.
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent in its sole good faith discretion as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to
such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any party.
“Plan Fiduciary” has the meaning assigned such term in Section 3 of this Indenture Supplement.
“Purchaser” means Nomura Corporate Funding Americas, LLC and the other parties specified as “purchasers” of Notes under the Note Purchase Agreement, and the successors and permitted assigns of each such Person under the Note Purchase Agreement.
“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.
“Series Required Noteholders” means, for so long as the Series 2017-MBSADV1 Notes are Outstanding, [***].
“Series 2017-MBSADV1 Notes” has the meaning assigned to such term in Section 1 of this Indenture Supplement.
“Series 2017-VF1 Indenture Supplement” means the Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of the date hereof, among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, and NCFA, as Administrative Agent, as may be amended, restated, supplemented or otherwise modified from time to time.
“Series 2017-VF1 Notes” means the Notes issued pursuant to the Series 2017-VF1 Indenture Supplement.
“Servicer Payment Default” has the meaning assigned to such term in Section 4 of this Indenture Supplement.
“SOFR” means, a rate per annum equal to the secured overnight financing rate published for such day 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.
“Stated Maturity Date” means, for Series 2017-MBSADV1 Notes, on the Stated Maturity Date for the latest maturing Series of Notes.
“Transaction Parties” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“WSFS” means Wilmington Savings Fund Society, FSB, formerly d/b/a Christiana Trust.
Section 1.Form of the Series 2017-MBSADV1 Notes; Transfer Restrictions; Certain Additional ERISA Considerations.
(a)The Series 2017-MBSADV1 Notes shall only be issued in definitive, fully registered form and the form of the Rule 144A Definitive Note that may be used to evidence the Series 2017-MBSADV1 Notes in the circumstances described in Section 5.2(c) of the Base Indenture is attached to the Base Indenture as Exhibit A-2. None of the Series 2017-MBSADV1 Notes shall be issued as Regulation S Notes nor shall any Series 2017-MBSADV1 Notes be sold in offshore transactions in reliance on Regulation S.
(b)In addition to any provisions set forth in Section 6.5 of the Base Indenture, with respect to the Series 2017-MBSADV1 Notes, the Noteholder of such Notes shall only transfer its Note to another potential investor in accordance with the Note Purchase Agreement; provided, that the Series 2017-MBSADV1 Notes may only be transferred to a party that has a direct or beneficial interest in the Series 2017-VF1 Notes.
(c)In addition to any provisions set forth herein or in Section 6.5 of the Base Indenture, any purchaser, transferee or holder of the Series 2017-MBSADV1 Notes or any interest therein that is a benefit plan investor as defined in 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA (a “Benefit Plan Investor”) or a fiduciary purchasing the Series 2017- MBSADV1 Notes on behalf of a Benefit Plan Investor (a “Plan Fiduciary”), will be required to represent (or in the case of a Book-Entry Note will be deemed to represent by the acquisition of such Note) that:
(1)the decision to acquire the Series 2017-VF1 Notes has been made on an arm’s length basis by the Plan Fiduciary;
(2)none of the Issuer, loanDepot or the Purchaser or any of their respective affiliates (the “Transaction Parties”), has provided or will provide advice with respect to the acquisition of the Series 2017-MBSADV1 Notes by the Benefit Plan Investor, other than to the Plan Fiduciary which is “independent” (within the meaning of Department of Labor Regulations promulgated on April 8, 2016 (81 Fed. Reg. 20,997) (the “Fiduciary Rule”)) of the Transaction Parties;
(3)the Plan Fiduciary either:
(a)is a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency; or
(b)is an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of an “employee benefit plan” as defined in Section 3(3) of ERISA or “plan” described in Section 4975 of the Code; or
(c)is an investment adviser registered under the Advisers Act, or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business; or
(d)is a broker-dealer registered under the 1934 Act; or
(e)has, and at all times that the Benefit Plan Investor is invested in the Series 2017- MBSADV1 Notes, will have, total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (e) shall not be satisfied if the Plan Fiduciary is either (i) the owner or a relative of the owner of an investing individual retirement account or (ii) a participant or beneficiary of the Benefit Plan Investor investing in or holding the Series 2017-MBSADV1 Notes in such capacity);
(4)the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by the Benefit Plan Investor of the Series 2017-MBSADV1 Notes;
(5)the Plan Fiduciary is a “fiduciary” within the meaning of Section 3(21) of ERISA or Section 4975 of the Code, or both, with respect to the Benefit Plan Investor and is responsible for exercising independent judgment in evaluating the Benefit Plan Investor’s acquisition of the Series 2017-MBSADV1 Notes;
(6)none of the Transaction Parties has exercised any authority to cause the Benefit Plan Investor to invest in the Series 2017-MBSADV1 Notes or to negotiate the terms of the Benefit Plan Investor’s investment in the Series 2017-MBSADV1 Notes and
(7)the Plan Fiduciary acknowledges and agrees that it has been informed by the Transaction Parties:
(a)that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Benefit Plan Investor’s acquisition of the Series 2017-MBSADV1 Notes; and
(b)of the existence and nature of the Transaction Parties’ financial interests in the Benefit Plan Investor’s acquisition of the Series 2017-MBSADV1 Notes.
These representations are intended to comply with 29 C.F.R. Sections 2510.3-21(a) and (c)(1) of the Fiduciary Rule. If these sections of the Fiduciary Rule are revoked, repealed or no longer effective, these representations shall be deemed to be no longer in effect.
Section 4.MBS Advance VFN Draw Conditions; Payments; Note Balance Increases; Early Maturity; No Series Reserve Account.
(a)The Series 2017-MBSADV1 Notes will be drawn upon in an amount equal to the Additional Note Balance (but not in excess of the Maximum MBSADV1 VFN Principal Balance) only if (i) the Servicer fails to pay a required MBS Advance, or following any other payment default by the Servicer under the Ginnie Mae Contract, to make the full required payment on the related MBS and to preserve the Indenture Trustee’s rights under the Acknowledgment Agreement (each, a “Servicer Payment Default”) and (ii) the MBS Advance VFN Draw Conditions are satisfied (together with a Servicer Payment Default, the “MBS Advance VFN Draw Event”).
(b)Except as otherwise expressly set forth herein, the Paying Agent shall make payments on the Series 2017-MBSADV1 Notes on each Payment Date in accordance with Section 4.5 of the Base Indenture.
(c)The Note Balance of the Series 2017-MBSADV1 Notes may be increased from time to time in accordance with the terms of this Indenture Supplement and the provisions of Section 4.2(c) of the Base Indenture, but not in excess of the related Maximum MBSADV1 VFN Principal Balance.
(d)Subject to clauses (b) and (c) above, any payments of principal allocated to the Series 2017-MBSADV1 Notes shall be applied to the Class A-MBSADV1 Notes until their Note Balance thereof has been reduced to zero.
(e)The parties hereto acknowledge that with respect to the Series 2017-MBSADV1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the Purchaser of the Series 2017-MBSADV1 Notes under the Note Purchase Agreement. Subject to the foregoing, on the Effective Date the Series 2017-MBSADV1 Note No. 2 shall be surrendered for cancellation and the Issuer and the Administrative Agent hereby authorize and direct the Indenture Trustee to register and issue the
replacement Series 2017-MBSADV1 Note No. 3 in the name of “Nomura Corporate Funding Americas, LLC, solely in its capacity as Administrative Agent on behalf of Nomura Corporate Funding Americas, LLC, as a buyer, and other buyers from time to time, or their registered assigns, under an applicable master repurchase agreement.
(f)There will be no Series Reserve Account for the Series 2017-MBSADV1 Notes.
Section 5.Optional Prepayment.
Notwithstanding anything to the contrary contained herein or in the Base Indenture, the Issuer may, upon [***] prior written notice to the Administrative Agent, prepay in whole or in part the Series 2017-MBSADV1 Notes.
Section 6.Determination of Note Interest Rate and Benchmark.
(a)[***] immediately preceding the related Payment Date, the Administrative Agent will provide to the Calculation Agent the Benchmark for each day of the related Interest Accrual Period for the Series 2017-MBSADV1 Notes on the basis of the procedures specified in the definition of Benchmark.
(b)The Calculation Agent shall calculate the Note Interest Rate for the related Interest Accrual Period and the Interest Payment Amount for the Series 2017-MBSADV1 Notes on each Payment Date, and include such amount in the related Payment Date Report.
(c)The establishment of the Benchmark by the Administrative Agent and the Calculation Agent’s subsequent calculation of the Note Interest Rate and the Interest Payment Amount on the Series 2017-MBSADV1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 7.Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2017- MBSADV1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, to the issuance of the Series 2017- MBSADV1 Notes have been satisfied or waived in accordance with the terms thereof.
Section 8.Representations and Warranties.
The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
The Administrator hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
loanDepot hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse
effect on the ability of loanDepot to perform its duties under this Indenture, any Indenture Supplement or any Transaction Document to which it is a party, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
Section 9.Amendments.
(a)Notwithstanding any provisions to the contrary in Article XII of the Base Indenture but subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of the Series 2017-MBSADV1 Notes but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless delivery of such Issuer Tax Opinion is waived by the Series Required Noteholders) and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have a material Adverse Effect, may amend any Transaction Document for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or in any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default or (ii) any other modification or amendment to any Event of Default except those related to the actions and omissions of the Servicer. This Indenture Supplement may be otherwise amended or otherwise modified from time to time in a written agreement among [***]% of the Noteholders of the Series 2017-MBSADV1 Notes, the Issuer, the Administrator, the Administrative Agent, the Indenture Trustee and subject to the immediately preceding sentence, the Servicer.
(b)Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture, except for amendments otherwise permitted as described in Sections 12.1 and 12.2 of the Base Indenture and in the immediately preceding paragraph, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of the Series Required Noteholders in respect of the Series 2017-MBSADV1 Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
(c)For the avoidance of doubt, the Issuer and the Administrator hereby covenant that the Issuer shall not issue any future Series of Notes without designating an entity to act as “Administrative Agent” under the related Indenture Supplement with respect to such Series of Notes.
(d)Any amendment of this Indenture Supplement which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
Section 10.Counterparts.
This Indenture Supplement may be executed in any number of counterparts, by manual or facsimile signature, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The parties agree that this Indenture Supplement , any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Indenture Supplement may be
accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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, including DocuSign.
Section 11.Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference and the related Transaction Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 12.Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2017- MBSADV1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2017-MBSADV1 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2017-MBSADV1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2017-MBSADV1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2017-MBSADV1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 12 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2017-MBSADV1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 12 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2017-MBSADV1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 13.Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by WSFS, not individually or personally but solely as trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by,
through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Indenture Supplement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or any other Transaction Documents. loanDepot as sole Owner under the Trust Agreement, in accordance with Section 4.1 of the Trust Agreement, confirms that (x) the consent of the Series Required Noteholders of all Variable Funding Notes has been received, and (y) the consent of the Majority Noteholders of all Notes that are not Variable Funding Notes is not required in connection with the execution and delivery of this Indenture Supplement, and (z) in taking the foregoing actions, the Owner Trustee, as such and in its individual capacity, is entitled to the benefits and protections of the Trust Agreement of the Issuer.
Section 14.Consent, Acknowledgment and Waivers.
By execution of this Indenture Supplement, NCFA, in its capacity as Series Required Noteholder of all Variable Funding Notes hereby consents to this Indenture Supplement. NCFA certifies that it is the buyer of the Series 2017-MBSADV1 Notes and it authorized to take any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder with the right to instruct the Indenture Trustee. In addition, NCFA certifies as to itself that (i) it is authorized to execute and deliver this consent and such power has not been granted or assigned to any other person, (ii) the Person executing this Indenture Supplement on behalf of NCFA is duly authorized to do so, (iii) the Indenture Trustee may conclusively rely upon such consent and certifications, (iv) the execution by NCFA of this Indenture Supplement should be considered an “Act” by Noteholders pursuant to Section 1.5 of the Base Indenture, and (v) it acknowledges and agrees that the amendments effected by this Indenture Supplement shall become effective on the Effective Date.
NCFA hereby authorizes and directs the Indenture Trustee to execute and deliver this Indenture Supplement.
Section 15.Conditions to Effectiveness of this Indenture Supplement.
This Indenture Supplement shall become effective upon (i) execution and delivery of this Indenture Supplement by all parties hereto and (ii) upon delivery of the Opinion of Counsel required pursuant to Section 11.1 of the Trust Agreement, an Authorization Opinion, an Officer’s Certificate and an opinion of counsel, respectively, in connection with this Indenture Supplement pursuant to provisions of Section 12.2 of the Base Indenture, Section 10(b) of the Amended Indenture Supplement, Section 12.3 of the Base Indenture and 1.3 of the Base Indenture (the “Effective Date”).
Section 16.Effect of Amendment.
This Indenture Supplement shall be effective as of the Effective Date and shall not be effective for any period prior to the Effective Date. After this Indenture Supplement becomes effective, all references in the Indenture Supplement or the Base Indenture to “this Indenture Supplement,” “this Indenture,” “hereof,” “herein” or words of similar effect referring to such Indenture Supplement and Base Indenture shall be deemed to be references to the Indenture Supplement or the Base Indenture, as applicable, as amended by this Indenture Supplement. This Indenture Supplement shall not be deemed to expressly or impliedly waive, amend or
supplement any provision of the Indenture Supplement or the Base Indenture other than as set forth herein.
The parties hereto have entered into this Indenture Supplement solely to amend the terms of the Original Indenture Supplement and do not intend this Indenture Supplement or the transactions contemplated hereby to be, and this Indenture Supplement and the transactions contemplated hereby shall not be construed to be, a novation of any of the obligations owed by the parties in connection with under the Original Indenture Supplement, the parties hereto or any other party to the Indenture Supplement or Base Indenture under or in connection with the Indenture Supplement or Base Indenture or any of the other Transaction Documents. It is the intention and agreement of each of the parties hereto that (i) the perfection and priority of all security interests securing the payment of the Notes, all other sums payable by the Issuer under the Indenture and the compliance by the Issuer with the provisions of the Indenture are preserved, (ii) the liens and security interests granted under the Indenture continue in full force and effect, and (iii) any reference to the Amended Indenture Supplement in any such Transaction Document shall be deemed to reference to this Indenture Supplement.
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed by their respective signatories thereunto all as of the day and year first above written.
LOANDEPOT GMSR MASTER TRUST, as Issuer
By: Wilmington Savings Fund Society, FSB, d/b/a Christiana Trust, not in its individual capacity but solely as Owner Trustee
| | | | | |
| By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
[Signature Page to loanDepot GMSR Master Trust
Amended and Restated Series 2017-MBSADV1 Indenture Supplement]
[Signature Page to loanDepot GMSR Master Trust
Amended and Restated Series 2017-MBSADV1 Indenture Supplement]
CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity
By:/s/ Valerie Delgado
Name:Valerie Delgado
Title:Senior Trust Officer
[Signature Page to loanDepot GMSR Master Trust
Amended and Restated Series 2017-MBSADV1 Indenture Supplement]
LOANDEPOT.COM, LLC, as Administrator and as Servicer
By:/s/ David Hayes
Name:David Hayes
Title:CFO
[Signature Page to loanDepot GMSR Master Trust
Amended and Restated Series 2017-MBSADV1 Indenture Supplement]
NOMURA CORPORATE FUNDING AMERCIAS, LLC, as Administrative Agent
By:/s/ Sanil Patel
Name:Sanil Patel
Title:Managing Director
[Signature Page to loanDepot GMSR Master Trust
Amended and Restated Series 2017-MBSADV1 Indenture Supplement]
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
LOANDEPOT GMSR MASTER TRUST,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
LOANDEPOT.COM, LLC,
as Servicer and as Administrator
and
NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent
__________
AMENDED AND RESTATED SERIES 2021-SAVF1 INDENTURE SUPPLEMENT
Dated as of January 25, 2024
To
THIRD AMENDED AND RESTATED BASE INDENTURE
Dated as of January 25, 2024
MSR COLLATERALIZED NOTES,
SERIES 2021-SAVF1
Table of Contents
Page
| | | | | |
Section 1. Creation of the Series 2021-SAVF1 Notes. | |
Section 2. Defined Terms. | |
Section 3. Form of the Series 2021-SAVF1 Notes; Transfer Restrictions; Certain ERISA Considerations. | |
Section 4. Interest Payment Amount. | |
Section 5. Payments; Note Balance Increases; Early Maturity; No Series Reserve Account. | |
Section 6. Optional Redemption. | |
Section 7. Determination of Note Interest Rate and Benchmark. | |
Section 8. Conditions Precedent Satisfied. | |
Section 9. Representations and Warranties. | |
Section 10. Amendments. | |
Section 11. Counterparts. | |
Section 12. Entire Agreement. | |
Section 13. Limited Recourse. | |
Section 14. Owner Trustee Limitation of Liability. | |
This AMENDED AND RESTATED SERIES 2021-SAVF1 INDENTURE SUPPLEMENT (this “Indenture Supplement”), dated as of January 25, 2024, is made by and among LOANDEPOT GMSR MASTER TRUST, a statutory trust organized under the laws of the State of Delaware, as issuer (the “Issuer”), CITIBANK, N.A., a national banking association, as indenture trustee (the “Indenture Trustee”), as calculation agent (the “Calculation Agent”), as paying agent (the “Paying Agent”) and as securities intermediary (the “Securities Intermediary”), LOANDEPOT.COM, LLC, a limited liability company organized under the laws of the State of Delaware (“loanDepot”), as servicer (the “Servicer”) and as administrator (the “Administrator”), and NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), a Delaware limited liability company, as Administrative Agent (as defined herein). This Indenture Supplement relates to and is executed pursuant to that certain Third Amended and Restated Base Indenture, dated as of the date hereof, including the schedules and exhibits thereto (as supplemented hereby, and as amended, restated, supplemented or otherwise modified from time to time, the “Base Indenture”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, PENTALPHA SURVEILLANCE LLC, a Delaware limited liability company, as credit manager (the “Credit Manager”), NCFA, as Administrative Agent, and the “Administrative Agents” from time to time parties thereto, all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement, collectively referred to as the “Indenture”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture, and the rules of interpretation set forth in Section 1.2 of the Base Indenture shall apply equally herein.
PRELIMINARY STATEMENT
WHEREAS, to document the terms of the issuance of the Series 2021-SAVF1 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time, the parties entered into that certain Series 2021-SAVF1 Indenture Supplement, dated as of November 15, 2021 (as amended by Omnibus Amendment No. 1, dated as of February 10, 2022, and as further amended by Omnibus Amendment No. 2, dated as of April 28, 2023, the “Original Indenture Supplement”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary and the Administrative Agent;
WHEREAS, under the Original Indenture Supplement, the Issuer previously authorized the issuance of a Series of Variable Funding Notes, the Series 2021-SAVF1 Notes (as defined below);
WHEREAS, the Original Indenture Supplement is a Transaction Document;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, on the Effective Date, the parties are amending and restating the Original Indenture Supplement, pursuant to this Indenture Supplement to, among other changes, reflect NCFA as the Administrative Agent; and
WHEREAS, all things necessary to make this Indenture Supplement a valid agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent hereby agree, 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, that the Original Indenture Supplement is hereby amended as follows:
Section 1.Creation of the Series 2021-SAVF1 Notes.
The Series 2021-SAVF1 Notes are known as “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-SAVF1 Notes” (the “Series 2021-SAVF1 Notes”) and were issued pursuant to the Original Indenture Supplement on the Issuance Date. The Series 2021-SAVF1 Notes are not rated and are subordinate to the Series 2017-MBSADV1 Notes, but shall not be subordinated to any other Series of Notes. The Series 2021-SAVF1 Notes were issued in one (1) Class of Variable Funding Notes (Class A-SAVF1) with the Maximum VFN Principal Balance, Stated Maturity Date, Note Interest Rate and other terms as specified in this Indenture Supplement. The Series 2021-SAVF1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2021-SAVF1 Notes and all other Series of Notes issued under the Base Indenture as described therein. In the event that any term or provision contained herein with respect to the Series 2021-SAVF1 Notes shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2.Defined Terms.
With respect to the Series 2021-SAVF1 Notes and in addition to or in replacement of the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment. The Calculation Agent shall not be responsible for calculating the Adjusted One-Month Term SOFR.
“Administrative Agent” means, for so long as the Series 2021-SAVF1 Notes are Outstanding, pursuant to the provisions of this Indenture Supplement, NCFA, or an Affiliate or successor by merger thereto.
“Advance Rate” means, with respect to the Series 2021-SAVF1 Notes, [***].
“Advance Rate Percentage” means, with respect to any type of Servicing Advance, the applicable “Advance Rate Percentage” set forth in Schedule 1 hereto, which may be updated from time to time with the consent of the Administrative Agent and the Administrator and a copy of such updated Schedule shall be sent to Ginnie Mae by either the Administrative Agent or the Indenture Trustee. The Administrator shall send the updated Schedule to [***] and include in the subject line “For Sending to Ginnie.”
“Advisers Act” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Base Indenture” has the meaning assigned to such term in the Preamble.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, the Benchmark for the three (3) Business Days prior to the related Payment Date shall be fixed at the Benchmark for the third (3rd) Business Day prior to the related Payment Date.
“Benchmark Adjustment” means, for any day, the spread adjustment for such Interest Accrual Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%. In connection with the implementation of a Benchmark Replacement Rate, the Administrative Agent will have the right to make Benchmark Administration Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Administration Changes will become effective without any further action or consent of any other party to this Indenture Supplement or any other Transaction Document.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Noteholder of purchasing or maintaining the Note (including increases in the balance thereof) or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Noteholder or Administrative Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Benefit Plan Investor” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Class A-SAVF1 Notes” means, the Variable Funding Notes, Class A-SAVF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Corporate Trust Office” means the corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Issuance Date are located at Citibank, N.A., Agency and Trust, 388 Greenwich Street Trading, New York, NY 10013 Attention: loanDepot GMSR Master Trust, including for Note transfer, exchange or surrender purposes.
“Cumulative Interest Shortfall Amount Rate” means, with respect to the Series 2021-SAVF1 Notes[***].
“Default Supplemental Fee” means for the Series 2021-SAVF1 Notes [***].
“Default Supplemental Fee Rate” means, with respect to the Series 2021-SAVF1 Notes, ([***],
“Early Amortization Events” means, with respect to the Series 2021-SAVF1 Notes, none.
“Eligible Advance Reimbursement Amounts” means any Servicing Advance Reimbursement Amount related to a Servicing Advance that meets each of the criteria specified for such type of Servicing Advance set forth in Schedule 3 hereto, which may be updated from time to time, with the consent of the Administrative Agent and the Administrator.
“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.
“Fiduciary Rule” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Indenture” has the meaning assigned to such term in the Preamble.
“Indenture Supplement” has the meaning assigned to such term in the Preamble.
“Ineligible Advance” means any Servicing Advance that (i) is related to a Portfolio Mortgage Loan with any of the designations set forth in Schedule 4 hereto, which may be updated from time to time with the consent of the Administrative Agent and the Administrator or (ii) is identified on the books and records of the Servicer as recoverable from an entity or source other than the related mortgagor or Liquidation Proceeds, FHA Claim Proceeds, USDA Claim Proceeds, PIH Claim Proceeds or VA Claim Proceeds, as applicable.
“Initial Note Balance” means, in the case of the Series 2021-SAVF1 Notes, an amount determined by the Administrative Agent, the Issuer and the Administrator on the Issuance Date, which amount is set forth in an Issuer Certificate delivered to the Indenture Trustee. For the avoidance of doubt, the requirement for minimum bond denominations in Section 6.2 of the Base Indenture shall not apply in the case of the Series 2021-SAVF1 Notes.
“Interest Accrual Period” means, for the Series 2021-SAVF1 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the
first Payment Date, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2021-SAVF1 Notes on any Payment Date shall be determined based on the Interest Day Count Convention.
“Interest Day Count Convention” means with respect to the Series 2021-SAVF1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“Issuance Date” means November 15, 2021.
“loanDepot” has the meaning assigned to such term in the Preamble.
“Margin” means, for the Series 2021-SAVF1 Notes, 3.50% per annum.
“Maximum VFN Principal Balance” means, for the Series 2021-SAVF1 Notes, $1,000,000,000, or (i) such other amount, calculated pursuant to a written agreement between the Administrator and the Administrative Agent or (ii) such lesser amount designated by the Administrator in accordance with the terms of the Base Indenture.
“Nonrecoverable Advance” means any Servicing Advance that is determined to be “non-recoverable” from late collections of the Mortgage Loan in respect of which such Servicing Advance was made or from Liquidation Proceeds, FHA Claim Proceeds, USDA Claim Proceeds, PIH Claim Proceeds or VA Claim Proceeds.
“Note Interest Rate” means, for the Series 2021-SAVF1 Notes[***].
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent in its sole good faith discretion as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, two (2) U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any party.
“Plan Fiduciary” has the meaning assigned such term in Section 3 of this Indenture Supplement.
“Purchaser” means loanDepot in its capacity as “Seller” under the PC Repurchase Agreement, and its successors and permitted assigns under the PC Repurchase Agreement.
“Redeemable Notes” has the meaning assigned to such term in Section 6 of this Indenture Supplement.
“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.
“SA VFN Advance Rate Reduction Event” means the occurrence of any of the events set forth in Schedule 2 hereto, which may be updated from time to time with the consent of the Administrative Agent and the Administrator.
“Series 2021-SAVF1 Notes” has the meaning assigned to such term in Section 1 of this Indenture Supplement.
“Series 2021-SAVF1 Repurchase Agreement” means the Master Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as seller, NCFA, as buyer, and NCFA, as administrative agent.
“Series Required Noteholders” means, for so long as the Series 2021-SAVF1 Notes are Outstanding, 100% of the Noteholders of the Series 2021-SAVF1 Notes. With respect to the Series 2021-SAVF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-SAVF1 Notes under the Series 2021-SAVF1 Repurchase Agreement.
“SOFR” means, a rate per annum equal to the secured overnight financing rate published for such day 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.
“Stated Maturity Date” means, for the Series 2021-SAVF1 Notes, the date on which the Termination Date (as defined in the Series 2021-SAVF1 Repurchase Agreement) occurs, which is subject to extension in accordance with the Series 2021-SAVF1 Repurchase Agreement.
“Transaction Parties” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“WSFS” means Wilmington Savings Fund Society, FSB (formerly referred to as Christiana Trust).
Section 3.Form of the Series 2021-SAVF1 Notes; Transfer Restrictions; Certain ERISA Considerations.
(a) The Series 2021-SAVF1 Notes shall only be issued in definitive, fully registered form and the form of the Rule 144A Definitive Note that may be used to evidence the Series 2021-SAVF1 Notes in the circumstances described in Section 5.2(c) of the Base Indenture is attached to the Base Indenture as Exhibit A-2. None of the Series 2021-SAVF1 Notes shall be issued as Regulation S Notes nor shall any Series 2021-SAVF1 Notes be sold in offshore transactions in reliance on Regulation S.
(b) In addition to any transfer restrictions applicable to the Series 2021-SAVF1 Notes or any interest therein set in the Base Indenture, a purchaser, transferee or holder of the Series 2021-SAVF1 Notes or any interest therein that is a benefit plan investor as defined in 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA (a “Benefit Plan Investor”) or a fiduciary purchasing the Series 2021-SAVF1 Notes on behalf of a Benefit Plan Investor (a “Plan Fiduciary”), will be required to represent (or in the case of a Book-Entry Note, will be deemed represent by the acquisition of such Note) that:
(1) the decision to acquire the Series 2021-SAVF1 Notes has been made on an arm’s length basis by the Plan Fiduciary;
(2) none of the Issuer, loanDepot, NCFA or any of their respective affiliates (the “Transaction Parties”), has provided or will provide advice with respect to the acquisition of the Series 2021-SAVF1 Notes by the Benefit Plan Investor, other than to the Plan Fiduciary which is “independent” (within the meaning of Department of Labor Regulations promulgated on April 8, 2016 (81 Fed. Reg. 20,997) (the “Fiduciary Rule”)) of the Transaction Parties;
(3) the Plan Fiduciary either:
(a) is a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency; or
(b) is an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of an “employee benefit plan” as defined in Section 3(3) of ERISA or “plan” described in Section 4975 of the Code; or
(c) is an investment adviser registered under the Advisers Act, or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business; or
(d) is a broker-dealer registered under the 1934 Act; or
(e) has, and at all times that the Benefit Plan Investor is invested in the Series 2021-SAVF1 Notes, will have total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (5) shall not be satisfied if the Plan Fiduciary is either (i) the owner or a relative of the owner of an investing individual retirement account or (ii) a participant or beneficiary of the Benefit Plan Investor investing in or holding the Series 2021-SAVF1 Notes in such capacity);
(4) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by the Benefit Plan Investor of the Series 2021-SAVF1 Notes;
(5) the Plan Fiduciary is a “fiduciary” within the meaning of Section 3(21) of ERISA or Section 4975 of the Code, or both, with respect to the Benefit Plan Investor and is responsible for exercising independent judgment in evaluating the Benefit Plan Investor’s acquisition of the Series 2021-SAVF1 Notes;
(6) none of the Transaction Parties has exercised any authority to cause the Benefit Plan Investor to invest in the Series 2021-SAVF1 Notes or to negotiate the terms of the Benefit Plan Investor’s investment in the Series 2021-SAVF1 Notes; and
(7) the Plan Fiduciary acknowledges and agrees that it has been informed by the Transaction Parties:
(a) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Benefit Plan Investor’s acquisition of the Series 2021-SAVF1 Notes; and
(b) of the existence and nature of the Transaction Parties’ financial interests in the Benefit Plan Investor’s acquisition of the Series 2021-SAVF1 Notes.
These representations are intended to comply with 29 C.F.R. Sections 2510.3-21(a) and (c)(1) of the Fiduciary Rule. If these sections of the Fiduciary Rule are revoked, repealed or no longer effective, these representations shall be deemed to be no longer in effect.
Section 4.Interest Payment Amount.
Prior to the occurrence and continuation of an Event of Default (as defined under the Series 2021-SAVF1 Repurchase Agreement) under the Series 2021-SAVF1 Repurchase Agreement, two (2) Business Days prior to each Payment Date, the Administrator shall report the calculation of the Interest Payment Amount for the Interest Accrual Period preceding such Payment Date to the Calculation Agent for inclusion in the Payment Date Report.
Section 5.Payments; Note Balance Increases; Early Maturity; No Series Reserve Account.
(a)Except as otherwise expressly set forth herein, the Paying Agent shall make payments on the Series 2021-SAVF1 Notes on each Interim Payment Date and each Payment Date in accordance with Sections 4.4 and 4.5 of the Base Indenture.
(b)The Note Balance of the Series 2021-SAVF1 Notes shall be increased from time to time on certain Funding Dates in accordance with the terms and provisions of Section 4.3 of the Base Indenture, but not in excess of the related Maximum VFN Principal Balance.
(c)Any payments of principal allocated to the Series 2021-SAVF1 Notes during a Full Amortization Period shall be applied to the Class A-SAVF1 Notes until their VFN Principal Balance has been reduced to zero.
(d)The parties hereto acknowledge that the Series 2021-SAVF1 Notes are financed by NCFA under the Series 2021-SAVF1 Repurchase Agreement, pursuant to which loanDepot sold all its rights, title and interest in the Series 2021-SAVF1 Notes to NCFA. The parties hereto acknowledge that with respect to the Series 2021-SAVF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-SAVF1 Notes under the Series 2021-SAVF1 Repurchase Agreement. Subject to the foregoing, on the Effective Date the Series 2021-SAVF1 Note No. 2 shall be surrendered for cancellation and the Issuer and the Administrative Agent hereby authorize and direct the Indenture Trustee to register and issue the replacement Series 2021-SAVF1 Note No. 3 in the name of “Nomura Corporate Funding Americas, LLC, solely in its capacity as Administrative Agent on behalf of Nomura Corporate Funding Americas, LLC, as a buyer, and other buyers from time to time, or their registered assigns, under an applicable master repurchase agreement”.
(e)There will be no Series Reserve Account for the Series 2021-SAVF1 Notes.
(f)[Reserved]
(g) Notwithstanding anything to the contrary herein or in the Base Indenture, absent a cash payment to reduce the VFN Principal Balance, the VFN Principal Balance of the Series 2021-SAVF1 Notes may not be adjusted to reduce the VFN Principal Balance thereof by the Administrator, on behalf of the Issuer, without the written consent of the Administrative Agent (which consent may be provided electronically).
Section 6.Optional Redemption.
The Issuer may, at any time, subject to Section 13.1 of the Base Indenture, upon at least five (5) Business Days’ prior written notice to the Administrative Agent, the Indenture Trustee and the Noteholders of the Series 2021-SAVF1 Notes, redeem in whole or in part (so long as, in the case of any partial redemption, (i) such redemption is funded using the proceeds of the issuance and sale of one or more new Classes of Notes or from any other amount received by the
Issuer attributable to the Servicing Advance PC pursuant to the PC Repurchase Agreement other than Collections on the MSRs, and (ii) the Series 2021-SAVF1 Notes are redeemed on a pro rata basis based on their related Note Balances), and/or terminate and cause the retirement of the Series 2021-SAVF1 Notes. In anticipation of a redemption of the Series 2021-SAVF1 Notes at the end of their Revolving Period, the Issuer may issue a new Series or one or more Classes of Notes within the ninety (90) day period prior to the end of such Revolving Period and reserve all or a portion of the cash proceeds of the issuance for the sole purpose of paying the principal balance and all accrued and unpaid interest on the Series 2021-SAVF1 Notes, on the last day of their Revolving Period. Any supplement to this Indenture Supplement executed to effect an optional redemption may be entered into without consent of the Noteholders of the Series 2021-SAVF1 Notes or of any other Notes issued under the Base Indenture (but with satisfaction of other requirements for amendments entered into without Noteholder consent). Any Notes issued in replacement for the Series 2021-SAVF1 Notes will have the same rights and privileges as the Class of Series 2021-SAVF1 Notes that were refinanced with the related proceeds thereof; provided, such replacement Notes may have different Stated Maturity Dates and different Note Interest Rates.
Section 7.Determination of Note Interest Rate and Benchmark.
(a) [***] immediately preceding the related Payment Date, the Administrative Agent will provide to the Calculation Agent the Benchmark for each day of the related Interest Accrual Period for the Series 2021-SAVF1 Notes on the basis of the procedures specified in the definition of Benchmark.
(b) The Calculation Agent shall calculate the Note Interest Rate for the related Interest Accrual Period and the Interest Payment Amount for the Series 2021-SAVF1 Notes on each Payment Date, and include such amount in the related Payment Date Report.
(c) The establishment of the Benchmark by the Administrative Agent and the Calculation Agent’s subsequent calculation of the Note Interest Rate and the Interest Payment Amount on the Series 2021-SAVF1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 8.Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2021-SAVF1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) of the Base Indenture and Article XII thereof, as applicable, to the issuance of the Series 2021-SAVF1 Notes have been satisfied or waived in accordance with the terms thereof.
Section 9.Representations and Warranties.
The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
The Administrator hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions
contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
loanDepot hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of loanDepot to perform its duties under this Indenture Supplement or any Transaction Document to which it is a party, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
Section 10.Amendments.
(a)Notwithstanding any provisions to the contrary in Article XII of the Base Indenture but subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless delivery of such Issuer Tax Opinion is waived by the Series Required Noteholders) and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have a material Adverse Effect, may amend any Transaction Document for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or in any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default or (ii) any other modification or amendment to any Event of Default except those related to the actions and omissions of the Servicer. This Indenture Supplement may be otherwise amended or otherwise modified from time to time in a written agreement among [***]% of the Noteholders of the Series 2021-PIAVF1 Notes, the Issuer, the Administrator, the Administrative Agent, the Indenture Trustee and subject to the immediately preceding sentence, the Servicer.
(b)Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture except for amendments otherwise permitted as described in Sections 12.1 and 12.2 of the Base Indenture and in the immediately preceding paragraph, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of the Series Required Noteholders in respect of the Series 2021 SAVF1 Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
(c)For the avoidance of doubt, the Issuer and the Administrator hereby covenant that the Issuer shall not issue any future Series of Notes without designating an entity to act as “Administrative Agent” under the related Indenture Supplement with respect to such Series of Notes.
(d)Any amendment of this Indenture Supplement which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
Section 11.Counterparts.
This Indenture Supplement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Indenture Supplement, any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Indenture Supplement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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, including DocuSign.
Section 12.Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference and the related Transaction Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 13.Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2021-SAVF1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2021-SAVF1 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2021-SAVF1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2021-SAVF1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2021-SAVF1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 13 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2021-SAVF1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 14 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2021-SAVF1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 14.Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by WSFS, not individually or personally but solely as trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b)
each of the representations, warranties, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Indenture Supplement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or any other Transaction Documents.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed by their respective signatories thereunto all as of the day and year first above written.
| | | | | |
| LOANDEPOT GMSR MASTER TRUST, as Issuer By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee |
| By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
[loanDepot GMSR Master Trust – A&R Series 2021-SAVF1 Indenture Supplement]
LEGAL02/43438697v14
| | | | | |
| CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity |
| By:/s/ Valerie Delgado Name:Valerie Delgado Title:Senior Trust Officer |
[loanDepot GMSR Master Trust – A&R Series 2021-SAVF1 Indenture Supplement]
LEGAL02/43438697v14
| | | | | |
| LOANDEPOT.COM, LLC, as Administrator and as Servicer |
| By:/s/ David Hayes Name:David Hayes Title:CFO |
[loanDepot GMSR Master Trust – A&R Series 2021-SAVF1 Indenture Supplement]
LEGAL02/43438697v14
| | | | | |
| NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent |
| By:/s/ Sanil Patel Name:Sanil Patel Title:Managing Director |
[loanDepot GMSR Master Trust – A&R Series 2021-SAVF1 Indenture Supplement]
LEGAL02/43438697v14
SCHEDULE 1
[***]
Sch. 1
LEGAL02/43438695v13
SCHEDULE 2
[***]
Sch. 2
LEGAL02/43438695v13
Sch. 2
LEGAL02/43438697v14
SCHEDULE 3
[***]
Sch. 3
LEGAL02/43438697v14
SCHEDULE 4
[***]
Sch. 3
LEGAL02/43438697v14
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
LOANDEPOT GMSR MASTER TRUST,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
LOANDEPOT.COM, LLC,
as Servicer and as Administrator
and
NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent
__________
AMENDED AND RESTATED SERIES 2021-PIAVF1 INDENTURE SUPPLEMENT
Dated as of January 25, 2024
To
THIRD AMENDED AND RESTATED BASE INDENTURE
Dated as of January 25, 2024
MSR COLLATERALIZED NOTES,
SERIES 2021-PIAVF1
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This AMENDED AND RESTATED SERIES 2021-PIAVF1 INDENTURE SUPPLEMENT (this “Indenture Supplement”), dated as of January 25, 2024, is made by and among LOANDEPOT GMSR MASTER TRUST, a statutory trust organized under the laws of the State of Delaware, as issuer (the “Issuer”), CITIBANK, N.A., a national banking association, as indenture trustee (the “Indenture Trustee”), as calculation agent (the “Calculation Agent”), as paying agent (the “Paying Agent”) and as securities intermediary (the “Securities Intermediary”), LOANDEPOT.COM, LLC, a limited liability company organized under the laws of the State of Delaware (“loanDepot”), as servicer (the “Servicer”) and as administrator (the “Administrator”), and NOMURA CORPORATE FUNDING AMERICAS LLC (“NCFA”), a Delaware limited liability company, as Administrative Agent (as defined herein). This Indenture Supplement relates to and is executed pursuant to that certain Third Amended and Restated Base Indenture, dated as of the date hereof, including the schedules and exhibits thereto (as supplemented hereby, and as amended, restated, supplemented or otherwise modified from time to time, the “Base Indenture”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, PENTALPHA SURVEILLANCE LLC, a Delaware limited liability company, as credit manager (the “Credit Manager”), NCFA, as Administrative Agent, and the “Administrative Agents” from time to time parties thereto, all the provisions of which are incorporated herein as modified hereby and shall be a part of this Indenture Supplement as if set forth herein in full (the Base Indenture as so supplemented by this Indenture Supplement, collectively referred to as the “Indenture”).
Capitalized terms used and not otherwise defined herein shall have the respective meanings given them in the Base Indenture, and the rules of interpretation set forth in Section 1.2 of the Base Indenture shall apply equally herein.
PRELIMINARY STATEMENT
WHEREAS, to document the terms of the issuance of the Series 2021-PIAVF1 Notes pursuant to the Base Indenture, which provides for the issuance of Notes in multiple series from time to time, the parties entered into that certain Series 2021-PIAVF1 Indenture Supplement, dated as of November 15, 2021 (as amended by Omnibus Amendment No. 1, dated as of February 10, 2022, and as further amended by Omnibus Amendment No. 2, dated as of April 28, 2023, the “Original Indenture Supplement”), among the Issuer, loanDepot, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary and the Administrative Agent;
WHEREAS, under the Original Indenture Supplement, the Issuer previously authorized the issuance of a Series of Variable Funding Notes, the Series 2021-PIAVF1 Notes (as defined below);
WHEREAS, the Original Indenture Supplement is a Transaction Document;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Transaction Documents;
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Transaction Documents;
WHEREAS, on the Effective Date, the parties are amending and restating the Original Indenture Supplement, pursuant to this Indenture Supplement to, among other changes, reflect NCFA as the Administrative Agent; and
WHEREAS, all things necessary to make this Indenture Supplement a valid agreement of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent hereby agree, 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, that the Original Indenture Supplement is hereby amended as follows:
Section 1.Creation of the Series 2021-PIAVF1 Notes.
The Series 2021-PIAVF1 Notes are known as “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-PIAVF1 Notes” (the “Series 2021-PIAVF1 Notes”) and were issued pursuant to the Original Indenture Supplement on the Issuance Date. The Series 2021-PIAVF1 Notes are not rated and are subordinate to the Series 2017-MBSADV1 Notes, but shall not be subordinated to any other Series of Notes. The Series 2021-PIAVF1 Notes were issued in one (1) Class of Variable Funding Notes (Class A-PIAVF1) with the Maximum VFN Principal Balance, Stated Maturity Date, Note Interest Rate and other terms as specified in this Indenture Supplement. The Series 2021-PIAVF1 Notes are secured by the Trust Estate Granted to the Indenture Trustee pursuant to the Base Indenture. The Indenture Trustee shall hold the Trust Estate as collateral security for the benefit of the Noteholders of the Series 2021-PIAVF1 Notes and all other Series of Notes issued under the Base Indenture as described therein. In the event that any term or provision contained herein with respect to the Series 2021-PIAVF1 Notes shall conflict with or be inconsistent with any term or provision contained in the Base Indenture, the terms and provisions of this Indenture Supplement shall govern to the extent of such conflict.
Section 2.Defined Terms.
With respect to the Series 2021-PIAVF1 Notes and in addition to or in replacement of the definitions set forth in Section 1.1 of the Base Indenture, the following definitions shall be assigned to the defined terms set forth below:
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment. The Calculation Agent shall not be responsible for calculating the Adjusted One-Month Term SOFR.
“Administrative Agent” means, for so long as the Series 2021-PIAVF1 Notes are Outstanding, pursuant to the provisions of this Indenture Supplement, NCFA, or an Affiliate or successor by merger thereto.
“Advance Rate” means, with respect to the Series 2021-PIAVF1 Notes [***].
“Advance Rate Percentage” means, with respect to any type of MBS Advance, the applicable “Advance Rate Percentage” set forth in Schedule 1 hereto, which may be updated from time to time with the consent of the Administrative Agent and the Administrator (a copy of such updated Schedule shall be sent to Ginnie Mae by either the Administrative Agent or the Indenture Trustee). The Administrator shall send the updated Schedule to [***] and include in the subject line “For Sending to Ginnie.”
“Advisers Act” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Base Indenture” has the meaning assigned to such term in the Preamble.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, the Benchmark for the [***] Business Days prior to the related Payment Date shall be fixed at the Benchmark for the [***] Business Day prior to the related Payment Date.
“Benchmark Adjustment” means, for any day, the spread adjustment for such Interest Accrual Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%. In connection with the implementation of a Benchmark Replacement Rate, the Administrative Agent will have the right to make Benchmark Administration Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Administration Changes will become effective without any further action or consent of any other party to this Indenture Supplement or any other Transaction Document.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Noteholder of purchasing or maintaining the Note (including increases in the balance thereof) or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Noteholder or Administrative Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Benefit Plan Investor” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Class A-PIAVF1 Notes” means, the Variable Funding Notes, Class A-PIAVF1 Variable Funding Notes, issued hereunder by the Issuer, having an aggregate VFN Principal Balance of no greater than the applicable Maximum VFN Principal Balance.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Corporate Trust Office” means the corporate trust offices of the Indenture Trustee at which at any particular time its corporate trust business with respect to the Issuer shall be administered, which offices at the Issuance Date are located at Citibank, N.A., Agency and Trust, 388 Greenwich Street Trading, New York, NY 10013 Attention: loanDepot GMSR Master Trust, including for Note transfer, exchange or surrender purposes.
“Cumulative Interest Shortfall Amount Rate” means, with respect to the Series 2021-PIAVF1 Notes, [***]
“Default Supplemental Fee” means for the Series 2021-PIAVF1 Notes [***]
.
“Default Supplemental Fee Rate” means, with respect to the Series 2021-PIAVF1 Notes[***].
“Early Amortization Event” means, with respect to the Series 2021-PIAVF1 Notes, none.
“Eligible Advance Reimbursement Amounts” means any MBS Advance Reimbursement Amount related to a MBS Advance that meets each of the criteria specified for such type of MBS Advance set forth in Schedule 3 hereto, which may be updated from time to time, with the consent of the Administrative Agent and the Administrator.
“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.
“Fiduciary Rule” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“Indenture” has the meaning assigned to such term in the Preamble.
“Indenture Supplement” has the meaning assigned to such term in the Preamble.
“Initial Note Balance” means, in the case of the Series 2021-PIAVF1 Notes, an amount determined by the Administrative Agent, the Issuer and the Administrator on the Issuance Date, which amount is set forth in an Issuer Certificate delivered to the Indenture Trustee. For the avoidance of doubt, the requirement for minimum bond denominations in Section 6.2 of the Base Indenture shall not apply in the case of the Series 2021-PIAVF1 Notes.
“Interest Accrual Period” means, for the Series 2021-PIAVF1 Notes and any Payment Date, the period beginning on the immediately preceding Payment Date (or, in the case of the first Payment Date, the Issuance Date) and ending on the day immediately preceding the current Payment Date. The Interest Payment Amount for the Series 2021-PIAVF1 Notes on any Payment Date shall be determined based on the Interest Day Count Convention.
“Interest Day Count Convention” means with respect to the Series 2021-PIAVF1 Notes, the actual number of days in the related Interest Accrual Period divided by 360.
“Issuance Date” means November 15, 2021.
“loanDepot” has the meaning assigned to such term in the Preamble.
“Margin” means, for the Series 2021-PIAVF1 Notes, [***].
“Maximum VFN Principal Balance” means, for the Series 2021-PIAVF1 Notes, $1,000,000,000, or (i) such other amount, calculated pursuant to a written agreement between the Administrator and the Administrative Agent or (ii) such lesser amount designated by the Administrator in accordance with the terms of the Base Indenture.
“Note Interest Rate” means, for the Series 2021-PIAVF1 Notes, with respect to any Interest Accrual Period, [***].
“One-Month Term SOFR” means with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent in its sole good faith discretion as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any party.
“PIA VFN Advance Rate Reduction Event” means the occurrence of any of the events set forth in Schedule 2 hereto, which may be updated from time to time with the consent of the Administrative Agent and the Administrator.
“Plan Fiduciary” has the meaning assigned such term in Section 3 of this Indenture Supplement.
“Purchaser” means loanDepot in its capacity as “Seller” under the PC Repurchase Agreement, and its successors and permitted assigns under the PC Repurchase Agreement.
“Redeemable Notes” has the meaning assigned to such term in Section 6 of this Indenture Supplement.
“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.
“Series 2021-PIAVF1 Notes” has the meaning assigned to such term in Section 1 of this Indenture Supplement.
“Series 2021-PIAVF1 Repurchase Agreement” means the Series 2021-PIAVF1 Master Repurchase Agreement, dated as of January 25, 2024 among loanDepot, as seller, NCFA, as buyer, and NCFA, as administrative agent.
“Series Required Noteholders” means, for so long as the Series 2021-PIAVF1 Notes are Outstanding, 100% of the Noteholders of the Series 2021-PIAVF1 Notes. With respect to the Series 2021-PIAVF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-PIAVF1 Notes under the Series 2021-PIAVF1 Repurchase Agreement.
“SOFR” means, a rate per annum equal to the secured overnight financing rate published for such day 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.
“Stated Maturity Date” means, for the Series 2021-PIAVF1 Notes, the date on which the Termination Date (as defined in the Series 2021-PIAVF1 Repurchase Agreement) occurs, which is subject to extension in accordance with the Series 2021-SAVF1 Repurchase Agreement.
“Transaction Parties” has the meaning assigned to such term in Section 3 of this Indenture Supplement.
“WSFS” means Wilmington Savings Fund Society, FSB (formerly referred to as Christiana Trust).
Section 3.Form of the Series 2021-PIAVF1 Notes; Transfer Restrictions; Certain ERISA Considerations.
(a) The Series 2021-PIAVF1 Notes shall only be issued in definitive, fully registered form and the form of the Rule 144A Definitive Note that may be used to evidence the Series 2021-PIAVF1 Notes in the circumstances described in Section 5.2(c) of the Base Indenture is attached to the Base Indenture as Exhibit A-2. None of the Series 2021-PIAVF1 Notes shall be issued as Regulation S Notes nor shall any Series 2021-PIAVF1 Notes be sold in offshore transactions in reliance on Regulation S.
(b) In addition to any transfer restrictions applicable to the Series 2021-PIAVF1 Notes or any interest therein set in the Base Indenture, a purchaser, transferee or holder of the Series 2021-PIAVF1 Notes or any interest therein that is a benefit plan investor as defined in 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA (a “Benefit Plan Investor”) or a fiduciary purchasing the Series 2021-PIAVF1 Notes on behalf of a Benefit Plan Investor (a “Plan Fiduciary”), will be required to represent (or in the case of a Book-Entry Note, will be deemed represent by the acquisition of such Note) that:
(1) the decision to acquire the Series 2021-PIAVF1 Notes has been made on an arm’s length basis by the Plan Fiduciary;
(2) none of the Issuer, loanDepot, NCFA or any of their respective affiliates (the “Transaction Parties”), has provided or will provide advice with respect to the acquisition of the Series 2021-PIAVF1 Notes by the Benefit Plan Investor, other than to the Plan Fiduciary which is “independent” (within the meaning of Department of Labor Regulations promulgated on April 8, 2016 (81 Fed. Reg. 20,997) (the “Fiduciary Rule”)) of the Transaction Parties;
(3) the Plan Fiduciary either:
(a) is a bank as defined in Section 202 of the Investment Advisers Act of 1940 (the “Advisers Act”), or similar institution that is regulated and supervised and subject to periodic examination by a State or Federal agency; or
(b) is an insurance carrier which is qualified under the laws of more than one state to perform the services of managing, acquiring or disposing of assets of an “employee benefit plan” as defined in Section 3(3) of ERISA or “plan” described in Section 4975 of the Code; or
(c) is an investment adviser registered under the Advisers Act, or, if not registered as an investment adviser under the Advisers Act by reason of paragraph (1) of Section 203A of the Advisers Act, is registered as an investment adviser under the laws of the state in which it maintains its principal office and place of business; or
(d) is a broker-dealer registered under the 1934 Act; or
(e) has, and at all times that the Benefit Plan Investor is invested in the Series 2021-PIAVF1 Notes, will have total assets of at least U.S. $50,000,000 under its management or control (provided that this clause (5) shall not be satisfied if the Plan Fiduciary is either (i) the owner or a relative of the owner of an investing individual retirement account or (ii) a participant or beneficiary of the Benefit Plan Investor investing in or holding the Series 2021-PIAVF1 Notes in such capacity);
(4) the Plan Fiduciary is capable of evaluating investment risks independently, both in general and with respect to particular transactions and investment strategies, including the acquisition by the Benefit Plan Investor of the Series 2021-PIAVF1 Notes;
(5) the Plan Fiduciary is a “fiduciary” within the meaning of Section 3(21) of ERISA or Section 4975 of the Code, or both, with respect to the Benefit Plan Investor and is responsible for exercising independent judgment in evaluating the Benefit Plan Investor’s acquisition of the Series 2021-PIAVF1 Notes;
(6) none of the Transaction Parties has exercised any authority to cause the Benefit Plan Investor to invest in the Series 2021-PIAVF1 Notes or to negotiate the terms of the Benefit Plan Investor’s investment in the Series 2021-PIAVF1 Notes; and
(7) the Plan Fiduciary acknowledges and agrees that it has been informed by the Transaction Parties:
(a) that none of the Transaction Parties is undertaking to provide impartial investment advice or to give advice in a fiduciary capacity in connection with the Benefit Plan Investor’s acquisition of the Series 2021-PIAVF1 Notes; and
(b) of the existence and nature of the Transaction Parties’ financial interests in the Benefit Plan Investor’s acquisition of the Series 2021-PIAVF1 Notes.
These representations are intended to comply with 29 C.F.R. Sections 2510.3-21(a) and (c)(1) of the Fiduciary Rule. If these sections of the Fiduciary Rule are revoked, repealed or no longer effective, these representations shall be deemed to be no longer in effect.
Section 4.Interest Payment Amount.
Prior to the occurrence and continuation of an Event of Default (as defined under the Series 2021-PIAVF1 Repurchase Agreement) under the Series 2021-PIAVF1 Repurchase Agreement, two (2) Business Days prior to each Payment Date, the Administrator shall report the calculation of the Interest Payment Amount for the Interest Accrual Period preceding such Payment Date to the Calculation Agent for inclusion in the Payment Date Report.
Section 5.Payments; Note Balance Increases; Early Maturity; No Series Reserve Account.
(a)Except as otherwise expressly set forth herein, the Paying Agent shall make payments on the Series 2021-PIAVF1 Notes on each Interim Payment Date and each Payment Date in accordance with Section 4.5 of the Base Indenture.
(b)In addition, on each Business Day, other than a Payment Date or an Interim Payment Date, prior to the commencement of the Full Amortization Period, to the extent any MBS
Advance Reimbursement Amounts are on deposit in the P&I Advance Reimbursement Available Funds Account as so directed (to an account as set forth in a standing direction from loanDepot or as otherwise notified in writing by the Administrative [***] the Paying Agent shall pay such MBS Advance Reimbursement Amounts (which amount shall be set forth in a written direction delivered by loanDepot [***] in excess of [***] (the “P&I Retained Amount”), to loanDepot until such time loanDepot or the Administrative Agent instructs the Paying Agent to make such payments to the Administrative Agent on behalf of Noteholder, unless the Administrative Agent provides notice that payments shall be made in accordance with Section 5(a) hereof. To the extent so directed by loanDepot and not otherwise notified by the Administrative Agent, as set forth above, any remaining amounts in excess of the P&I Retained Amount shall be remitted to loanDepot. With respect to any notice requirement set forth in this clause (a), any notice received [***]. For purposes of reporting such distributed amounts with respect to the next succeeding Payment Date or Interim Payment Date, the Indenture Trustee shall treat any amounts distributed since the Determination Date immediately preceding the prior Payment Date or the immediately preceding Interim Payment Date through the immediately preceding Determination Date or Interim Payment Date, as applicable, as first, being applied to reduce the VFN Principal Balance of the Series 2021-PIAVF1 Notes until the balance thereof has been reduced to zero, and then as distributions to loanDepot as the holder of the Owner Trustee Certificate.
(c)Any payments of principal allocated to the Series 2021-PIAVF1 Notes during a Full Amortization Period shall be applied to the Class A-PIAVF1 Notes until their VFN Principal Balance has been reduced to zero.
(d)The parties hereto acknowledge that the Series 2021-PIAVF1 Notes are financed by NCFA under the Series 2021-PIAVF1 Repurchase Agreement, pursuant to which loanDepot sold all its rights, title and interest in the Series 2021-PIAVF1 Notes to NCFA. The parties hereto acknowledge that with respect to the Series 2021-PIAVF1 Notes, any Action provided by the Base Indenture or this Indenture Supplement to be given or taken by a Noteholder shall be taken by NCFA, as the buyer of the Series 2021-PIAVF1 Notes under the Series 2021-PIAVF1 Repurchase Agreement. Subject to the foregoing, on the Effective Date the Series 2021-PIAVF1 Note No. 3 shall be surrendered for cancellation and the Issuer and the Administrative Agent hereby authorize and direct the Indenture Trustee to register and issue the replacement Series 2021-PIAVF1 Note No. 4 in the name of “Nomura Corporate Funding Americas, LLC, solely in its capacity as Administrative Agent on behalf of Nomura Corporate Funding Americas, LLC, as a buyer, and other buyers from time to time, or their registered assigns, under an applicable master repurchase agreement”.
(e)There will be no Series Reserve Account for the Series 2021-PIAVF1 Notes.
(f)[Reserved]
(g)Notwithstanding anything to the contrary herein or in the Base Indenture, absent a cash payment to reduce the VFN Principal Balance, the VFN Principal Balance of the Series 2021-PIAVF1 Notes may not be adjusted to reduce the VFN Principal Balance thereof by the Administrator, on behalf of the Issuer, without the written consent of the Administrative Agent (which consent may be provided electronically).
Section 6.Optional Redemption.
The Issuer may, at any time, subject to Section 13.1 of the Base Indenture, upon at least [***] prior written notice to the Administrative Agent, the Indenture Trustee and the Noteholders of the Series 2021-PIAVF1 Notes, redeem in whole or in part (so long as, in the case of any partial redemption, (i) such redemption is funded using the proceeds of the issuance and sale of
one or more new Classes of Notes or from any other amount received by the Issuer attributable to the P&I Advance PC pursuant to the PC Repurchase Agreement other than Collections on the MSRs, and (ii) the Series 2021-PIAVF1 Notes are redeemed on a pro rata basis based on their related Note Balances), and/or terminate and cause the retirement of the Series 2021-PIAVF1 Notes. In anticipation of a redemption of the Series 2021-PIAVF1 Notes at the end of their Revolving Period, the Issuer may issue a new Series or one or more Classes of Notes within the ninety (90) day period prior to the end of such Revolving Period and reserve all or a portion of the cash proceeds of the issuance for the sole purpose of paying the principal balance and all accrued and unpaid interest on the Series 2021-PIAVF1 Notes, on the last day of their Revolving Period. Any supplement to this Indenture Supplement executed to effect an optional redemption may be entered into without consent of the Noteholders of the Series 2021-PIAVF1 Notes or of any other Notes issued under the Base Indenture (but with satisfaction of other requirements for amendments entered into without Noteholder consent). Any Notes issued in replacement for the Series 2021-PIAVF1 Notes will have the same rights and privileges as the Class of Series 2021-PIAVF1 Notes that were refinanced with the related proceeds thereof; provided, such replacement Notes may have different Stated Maturity Dates and different Note Interest Rates.
Section 7.Determination of Note Interest Rate and Benchmark.
(a) [***] immediately preceding the related Payment Date, the Administrative Agent will provide to the Calculation Agent the Benchmark for each day of the related Interest Accrual Period for the Series 2021-PIAVF1 Notes on the basis of the procedures specified in the definition of Benchmark.
(b) The Calculation Agent shall calculate the Note Interest Rate for the related Interest Accrual Period and the Interest Payment Amount for the Series 2021-PIAVF1 Notes on each Payment Date, and include such amount in the related Payment Date Report.
(c) The establishment of the Benchmark by the Administrative Agent and the Calculation Agent’s subsequent calculation of the Note Interest Rate and the Interest Payment Amount on the Series 2021-PIAVF1 Notes for the relevant Interest Accrual Period, in the absence of manifest error, will be final and binding.
Section 8.Conditions Precedent Satisfied.
The Issuer hereby represents and warrants to the Noteholders of the Series 2021-PIAVF1 Notes and the Indenture Trustee that, as of the related Issuance Date, each of the conditions precedent set forth in the Base Indenture, including but not limited to those conditions precedent set forth in Section 6.10(b) of the Base Indenture and Article XII thereof, as applicable, to the issuance of the Series 2021-PIAVF1 Notes have been satisfied or waived in accordance with the terms thereof.
Section 9.Representations and Warranties.
The Issuer, the Administrator, the Servicer and the Indenture Trustee hereby restate as of the related Issuance Date, or as of such other date as is specifically referenced in the body of such representation and warranty, all of the representations and warranties set forth in Sections 9.1, 10.1 and 11.14, respectively, of the Base Indenture.
The Administrator hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of the Administrator to perform its duties under this Indenture or any Indenture Supplement, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions
contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
loanDepot hereby represents and warrants that it is not in default with respect to any material contract under which a default should reasonably be expected to have a material adverse effect on the ability of loanDepot to perform its duties under this Indenture Supplement or any Transaction Document to which it is a party, or with respect to any order of any court, administrative agency, arbitrator or governmental body which would have a material adverse effect on the transactions contemplated hereunder, and no event has occurred which with notice or lapse of time or both would constitute such a default with respect to any such contract or order of any court, administrative agency, arbitrator or governmental body.
Section 10.Amendments.
(a)Notwithstanding any provisions to the contrary in Article XII of the Base Indenture but subject to the provisions set forth in Sections 12.1 and 12.3 of the Base Indenture, without the consent of the Noteholders of any Notes but with the consent of the Issuer (evidenced by its execution of such amendment), the Indenture Trustee, the Administrator, the Servicer (solely in the case of any amendment that adversely affects the rights or obligations of the Servicer or adds new obligations or increases existing obligations of the Servicer), and the Administrative Agent, at any time and from time to time, upon delivery of an Issuer Tax Opinion (unless delivery of such Issuer Tax Opinion is waived by the Series Required Noteholders) and upon delivery by the Issuer to the Indenture Trustee of an Officer’s Certificate to the effect that the Issuer reasonably believes that such amendment will not have a material Adverse Effect, may amend any Transaction Document for any of the following purposes: (i) to correct any mistake or typographical error or cure any ambiguity, or to cure, correct or supplement any defective or inconsistent provision herein or in any other Transaction Document; or (ii) to amend any other provision of this Indenture Supplement. For the avoidance of doubt, the consent of the Servicer is not required for (i) the waiver of any Event of Default or (ii) any other modification or amendment to any Event of Default except those related to the actions and omissions of the Servicer. This Indenture Supplement may be otherwise amended or otherwise modified from time to time in a written agreement among [***]% of the Noteholders of the Series 2021-PIAVF1 Notes, the Issuer, the Administrator, the Administrative Agent, the Indenture Trustee and subject to the immediately preceding sentence, the Servicer.
(b)Notwithstanding any provisions to the contrary in Section 6.10 or Article XII of the Base Indenture except for amendments otherwise permitted as described in Sections 12.1 and 12.2 of the Base Indenture and in the immediately preceding paragraph, no supplement, amendment or indenture supplement entered into with respect to the issuance of a new Series of Notes or pursuant to the terms and provisions of Section 12.2 of the Base Indenture may, without the consent of the Series Required Noteholders in respect of the Series 2021-PIAVF1 Notes, supplement, amend or revise any term or provision of this Indenture Supplement.
(c)For the avoidance of doubt, the Issuer and the Administrator hereby covenant that the Issuer shall not issue any future Series of Notes without designating an entity to act as “Administrative Agent” under the related Indenture Supplement with respect to such Series of Notes.
(d)Any amendment of this Indenture Supplement which affects the rights, duties, immunities, obligations or liabilities of the Owner Trustee in its capacity as owner trustee under the Trust Agreement shall require the written consent of the Owner Trustee.
Section 11.Counterparts.
This Indenture Supplement may be executed in any number of counterparts and all of such counterparts shall together constitute one and the same instrument. The parties agree that this Indenture Supplement, any addendum or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Indenture Supplement may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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, including DocuSign.
Section 12.Entire Agreement.
This Indenture Supplement, together with the Base Indenture incorporated herein by reference and the related Transaction Documents, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
Section 13.Limited Recourse.
Notwithstanding any other terms of this Indenture Supplement, the Series 2021-PIAVF1 Notes, any other Transaction Documents or otherwise, the obligations of the Issuer under the Series 2021-PIAVF1 Notes, this Indenture Supplement and each other Transaction Document to which it is a party are limited recourse obligations of the Issuer, payable solely from the Trust Estate, and following realization of the Trust Estate and application of the proceeds thereof in accordance with the terms of this Indenture Supplement, none of the Noteholders of Series 2021-PIAVF1 Notes, the Indenture Trustee or any of the other parties to the Transaction Documents shall be entitled to take any further steps to recover any sums due but still unpaid hereunder or thereunder, all claims in respect of which shall be extinguished and shall not thereafter revive. No recourse shall be had for the payment of any amount owing in respect of the Series 2021-PIAVF1 Notes or this Indenture Supplement or for any action or inaction of the Issuer against any officer, director, employee, shareholder, stockholder or incorporator of the Issuer or any of their successors or assigns for any amounts payable under the Series 2021-PIAVF1 Notes or this Indenture Supplement. It is understood that the foregoing provisions of this Section 13 shall not (a) prevent recourse to the Trust Estate for the sums due or to become due under any security, instrument or agreement which is part of the Trust Estate or (b) save as specifically provided therein, constitute a waiver, release or discharge of any indebtedness or obligation evidenced by the Series 2021-PIAVF1 Notes or secured by this Indenture Supplement. It is further understood that the foregoing provisions of this Section 13 shall not limit the right of any Person to name the Issuer as a party defendant in any proceeding or in the exercise of any other remedy under the Series 2021-PIAVF1 Notes or this Indenture Supplement, so long as no judgment in the nature of a deficiency judgment or seeking personal liability shall be asked for or (if obtained) enforced against any such Person or entity.
Section 14.Owner Trustee Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this Indenture Supplement is executed and delivered by WSFS, not individually or personally but solely as trustee of the Issuer, in the exercise of the powers and authority conferred and vested in it, (b)
each of the representations, warranties, undertakings and agreements herein made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings and agreements by WSFS but is made and intended for the purpose of binding only the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has made no investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Indenture Supplement and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness or expenses of the Issuer or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer under this Indenture Supplement or any other Transaction Documents.
[Signature Pages Follow]
IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed by their respective signatories thereunto all as of the day and year first above written.
| | | | | |
| LOANDEPOT GMSR MASTER TRUST, as Issuer By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee |
| By:/s/ Mary Emily Pagano Name: Mary Emily Pagano Title: Vice President |
[loanDepot GMSR Master Trust – A&R Series 2021-PIAVF1 Indenture Supplement]
LEGAL02/43438695v13
| | | | | |
| CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity |
| By:/s/ Valerie Delgado Name:Valerie Delgado Title:Senior Trust Officer |
[loanDepot GMSR Master Trust – A&R Series 2021-PIAVF1 Indenture Supplement]
LEGAL02/43438695v13
| | | | | |
| LOANDEPOT.COM, LLC, as Administrator and as Servicer |
| By:/s/ David Hayes Name:David Hayes Title:CFO |
[loanDepot GMSR Master Trust – A&R Series 2021-PIAVF1 Indenture Supplement]
LEGAL02/43438695v13
| | | | | |
| NOMURA CORPORATE FUNDING AMERICAS, LLC,
as Administrative Agent |
| By:/s/ Sanil Patel Name:Sanil Patel Title:Managing Director |
[loanDepot GMSR Master Trust – A&R Series 2021-PIAVF1 Indenture Supplement]
LEGAL02/43438695v13
SCHEDULE 1
[***]
Sch. 1
LEGAL02/43438695v13
SCHEDULE 2
[***]
Sch. 2
LEGAL02/43438695v13
SCHEDULE 3
[***]
Sch. 3
LEGAL02/43438695v13
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
MASTER REPURCHASE AGREEMENT
among
NOMURA CORPORATE FUNDING AMERICAS, LLC, as administrative agent (“Administrative Agent”)
and
NOMURA CORPORATE FUNDING AMERICAS, LLC, as buyer (“Buyer”)
and
LOANDEPOT.COM, LLC, as seller (“Seller”)
Dated as of January 25, 2024
LOANDEPOT GMSR MASTER TRUST
MSR COLLATERALIZED NOTES,
SERIES 2017-VF1
TABLE OF CONTENTS
Page
| | | | | |
ARTICLE I DEFINITIONS | |
Section 1.01 Certain Defined Terms | |
Section 1.02 Other Defined Terms | |
ARTICLE II GENERAL TERMS | |
Section 2.01 Transactions | |
Section 2.02 Procedure for Entering into Transactions | |
Section 2.03 Repurchase; Payment of Repurchase Price | |
Section 2.04 Price Differential | |
Section 2.05 Margin Maintenance | |
Section 2.06 Payment Procedure | |
Section 2.07 Application of Payments | |
Section 2.08 Use of Purchase Price and Transaction Requests | |
Section 2.09 Recourse | |
Section 2.10 Requirements of Law | |
Section 2.11 Taxes | |
Section 2.12 Indemnity | |
Section 2.13 Changes in VFN Principal Balance | |
Section 2.14 Commitment Fee | |
Section 2.15 Termination | |
ARTICLE III REPRESENTATIONS AND WARRANTIES | |
Section 3.01 Seller Existence | |
Section 3.02 Licenses | |
Section 3.03 Power | |
Section 3.04 Due Authorization | |
Section 3.05 Financial Statements | |
Section 3.06 No Event of Default | |
Section 3.07 Solvency | |
Section 3.08 No Conflicts | |
Section 3.09 True and Complete Disclosure | |
Section 3.10 Approvals | |
Section 3.11 Litigation | |
Section 3.12 Material Adverse Change | |
Section 3.13 Ownership | |
Section 3.14 The Note | |
Section 3.15 Taxes | |
Section 3.16 Investment Company | |
Section 3.17 Chief Executive Office; Jurisdiction of Organization | |
Section 3.18 Location of Books and Records | |
Section 3.19 ERISA | |
| | | | | |
Section 3.20 Financing of Note | |
Section 3.21 Agreements | |
Section 3.22 Other Indebtedness | |
Section 3.23 No Reliance | |
Section 3.24 Plan Assets | |
Section 3.25 No Prohibited Persons | |
Section 3.26 Anti Money Laundering Laws. | |
Section 3.27 Anti-Corruption Laws. | |
Section 3.28 Compliance with 1933 Act | |
Section 3.29 [Reserved]. | |
Section 3.30 [Reserved]. | |
Section 3.31 Margin Regulations. | |
Section 3.32 Sanctions Compliance. | |
ARTICLE IV CONVEYANCE; REPURCHASE ASSETS; SECURITY INTEREST | |
Section 4.01 Ownership | |
Section 4.02 Security Interest | |
Section 4.03 Further Documentation | |
Section 4.04 Changes in Locations, Name, etc. | |
Section 4.05 Performance by Buyer of Seller’s Obligations | |
Section 4.06 Proceeds | |
Section 4.07 Remedies | |
Section 4.08 Limitation on Duties Regarding Preservation of Repurchase Assets | |
Section 4.09 Powers Coupled with an Interest | |
Section 4.10 Release of Security Interest | |
Section 4.11 Reinstatement | |
Section 4.12 Subordination. | |
ARTICLE V CONDITIONS PRECEDENT | |
Section 5.01 Initial Transaction | |
Section 5.02 All Transactions | |
Section 5.03 Closing Subject to Conditions Precedent | |
ARTICLE VI COVENANTS | |
Section 6.01 Litigation | |
Section 6.02 Prohibition of Fundamental Changes | |
Section 6.03 Sale of Assets | |
Section 6.04 Asset Schedule | |
Section 6.05 No Adverse Claims | |
Section 6.06 Assignment | |
Section 6.07 Security Interest | |
Section 6.08 Records | |
Section 6.09 Books | |
Section 6.10 Approvals | |
| | | | | |
Section 6.11 Insurance | |
Section 6.12 Material Change in Business | |
Section 6.13 Distributions | |
Section 6.14 Existence; Ginnie Mae Approvals. | |
Section 6.15 Change in Organizational Documents. | |
Section 6.16 Chief Executive Office; Jurisdiction of Organization | |
Section 6.17 Taxes | |
Section 6.18 Transactions with Affiliates | |
Section 6.19 Guarantees | |
Section 6.20 Indebtedness | |
Section 6.21 True and Correct Information | |
Section 6.22 No Pledge | |
Section 6.23 Plan Assets | |
Section 6.24 Sharing of Information | |
Section 6.25 Modification of the Base Indenture and Series 2017-VF1 Indenture Supplement | |
Section 6.26 Reporting Requirements | |
Section 6.27 Litigation Summary | |
Section 6.28 Material Change in Business. | |
Section 6.29 Hedging | |
Section 6.30 MSR Valuation | |
Section 6.31 Ginnie Mae Contract. | |
Section 6.32 Trigger Event MSR Asset Sale | |
Section 6.33 Amendments. . | |
ARTICLE VII DEFAULTS/RIGHTS AND REMEDIES OF BUYER UPON DEFAULT | |
Section 7.01 Events of Default | |
Section 7.02 No Waiver | |
Section 7.03 Due and Payable | |
Section 7.04 Fees | |
Section 7.05 Default Rate | |
ARTICLE VIII ENTIRE AGREEMENT; AMENDMENTS AND WAIVERS; SEPARATE ACTIONS BY BUYER | |
Section 8.01 Entire Agreement; Amendments | |
Section 8.02 Waivers, Separate Actions by Buyer | |
ARTICLE IX SUCCESSORS AND ASSIGNS | |
Section 9.01 Successors and Assigns | |
Section 9.02 Participations and Transfers | |
Section 9.03 Buyer and Participant Register | |
ARTICLE X AGENT PROVISIONS | |
Section 10.01 Appointment of Administrative Agent. | |
Section 10.02 Powers and Duties. | |
| | | | | |
Section 10.03 Rights, Exculpation, Etc. | |
Section 10.04 Administrative Agent to Act as Buyer. | |
Section 10.05 Buyer’s Representations, Warranties and Acknowledgment. | |
Section 10.06 Right to Indemnity. | |
Section 10.07 Successor Administrative Agent. | |
Section 10.08 Delegation of Duties. | |
Section 10.09 Right to Realize on Collateral | |
Section 10.10 Erroneous Payments. | |
ARTICLE XI MISCELLANEOUS | |
Section 11.01 Survival | |
Section 11.02 Indemnification | |
Section 11.03 Nonliability of Buyer | |
Section 11.04 Governing Law; Submission to Jurisdiction; Waivers | |
Section 11.05 Notices | |
Section 11.06 Severability | |
Section 11.07 Section Headings | |
Section 11.08 Counterparts | |
Section 11.09 Periodic Due Diligence Review | |
Section 11.10 Hypothecation or Pledge of Repurchase Assets | |
Section 11.11 Confidentiality | |
Section 11.12 Set-off; Netting | |
Section 11.13 Intent | |
Schedule 1 – Responsible Officers of Seller
Schedule 2 – Asset Schedule
Schedule 3 – Buyer Account
Schedule 4 – List of Competitors
Exhibit A – Form of Transaction Notice
Exhibit B – Existing Indebtedness
MASTER REPURCHASE AGREEMENT
This Master Repurchase Agreement (“Agreement”) is made as of January 25, 2024 (the “Effective Date”), among NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as administrative agent (the “Administrative Agent”), NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as buyer (“Buyer”) other Buyers from time to time (“Buyers”), and LOANDEPOT.COM, LLC (“loanDepot”), as seller (“Seller”). Capitalized terms have the meanings specified in Sections 1.01 and 1.02.
W I T N E S S E T H :
WHEREAS, pursuant to the Base Indenture and the Series 2017-VF1 Indenture Supplement, loanDepot GMSR Master Trust (the “Issuer”) has duly authorized the issuance of a Series of Notes, as a single Class of Variable Funding Notes, known as the “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2017-VF1” (the “Note”), which has been transferred to NCFA;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Program Agreements; and
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Program Agreements.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01Certain Defined Terms. Capitalized terms used herein shall have the indicated meanings:
“1933 Act” means the Securities Act of 1933, as amended from time to time.
“1934 Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Act of Insolvency” means, with respect to any Person, (a) the filing of a petition by such Person commencing, or authorizing the commencement of any case or proceeding, or the voluntary joining by such Person of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or suffering by such Person of any such petition or proceeding to be commenced by another which is consented to, not timely contested or results in entry of an order for relief; (b) the seeking of the appointment of a receiver, trustee, custodian or similar official for such Person or any substantial part of the property of such Person; (c) the appointment of a receiver, conservator, or manager for such Person by any governmental agency or authority having the jurisdiction to do so; (d) the making or offering by such Person of a composition with its creditors or a general assignment for the benefit of creditors; (e) the admission by such Person of its inability to pay its
debts or discharge its obligations as they become due or mature; or (f) that any governmental authority or agency or any person, agency or entity acting or purporting to act under governmental authority 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 such Person, or shall have taken any action to displace the management of such Person or to curtail its authority in the conduct of the business of such Person.
“Additional Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment.
“Administrative Agent” has the meaning given to such term in the preamble to this Agreement.
“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; provided, however, (i) any Permitted Holder or (ii) any joint venture for which Seller or LD Holdings Group LLC owns less than fifty percent (50%) of the equity interests therein, in either case, shall not be considered an Affiliate of Seller or any of its Subsidiaries for purposes of this Agreement or any other Program Agreement.
“Agreement” has the meaning given to such term in the preamble to this Agreement.
“Anti-Corruption Laws” means any applicable U.S. law, regulation, or rule related to combating corruption or bribery, including, but not limited to, the United States Foreign Corruption Practices Act of 1977, as amended.
“Anti-Money Laundering Laws” means any applicable U.S. law, regulation, or rule related to combating money laundering, suspicious transactions or terrorist financing, including, but not limited to, the U.S. Bank Secrecy Act of 1986 (31 U.S.C. Section 5301 et seq.) and all regulations issued pursuant to it, and the USA Patriot Act (in each case to the extent applicable to the parties and to this Agreement).
“Applicable Law” means all applicable U.S. federal, state and local provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts of Governmental Authorities and all orders and decrees of all courts and arbitrators including, without limitation, the Anti-Corruption Laws and the Anti-Money Laundering Laws.
“Asset Schedule” means Schedule 2 attached hereto, which lists the Note, as such schedule shall be updated from time to time to reflect any increases or decreases in the VFN Principal Balance thereof in accordance with Section 2.13.
“Asset Value” means with respect to any Purchased Asset, the sum of the Asset Value Base and the Asset Value Incremental 1.
“Asset Value Base” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Base, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Asset Value Incremental 1” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Incremental 1, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Bankruptcy Code” means the United States Bankruptcy Code of 1978, as amended from time to time.
“Base Indenture” means the Third Amended and Restated Base Indenture, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, Seller, as administrator and as servicer, NCFA, as administrative agent, and the Credit Manager, including the schedules and exhibits thereto.
“Base Rate” has the meaning assigned to such term in the Pricing Side Letter.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, [***].
“Benchmark Adjustment” means, for any day, the spread adjustment for such Price Differential Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable
Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Buyer of purchasing or maintaining Purchased Assets or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Buyer or Administrative Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Business Day” means any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, the State of California, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
“Buyer” means NCFA, together with its successors, and any assignee of and/or Participant or Transferee in the Transaction.
“Buyer Account” means the account identified on Schedule 3 hereto.
“Capital” means any and all shares, units, interests, membership interests, limited liability company interests, participations, partnership interests, rights or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, any Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any of the foregoing.
“Change in Control” means any of the following shall occur without the prior written consent of the Administrative Agent:
(1)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 Securities Exchange Act of 1934, as amended), 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 Securities Exchange Act of 1934, as amended) 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;
(2)the sale, transfer, or other disposition of all or substantially all of Seller’s or Guarantor’s assets (excluding any such action taken in connection with any securitization transaction);
(3)Seller or Guarantor enters into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated; or
(4)any transaction or event as a result of which the Guarantor ceases to indirectly own and control, [***] of the Capital Stock of the Seller.
“Closing Date” means August 11, 2017.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means the obligation of Buyer to enter into Transactions with Seller with an aggregate outstanding Purchase Price at any one time not to exceed the Committed Amount.
“Commitment Fee” has the meaning assigned to such term in the Pricing Side Letter.
“Commitment Period” means the period from and including the Effective Date to but not including the Termination Date or such earlier date on which the Commitment shall have terminated pursuant to this Agreement.
“Committed Amount” has the meaning assigned to such term in the Pricing Side Letter.
“Competitor” means (a) any Person that is a direct competitor of the Seller listed on Schedule 4 hereto, which may be updated from time to time following the written request of the Seller to the extent consented to in writing by the Buyer (which consent shall not be unreasonably withheld) or (b) wholly-owned Subsidiary of such Person.
“Confidential Information” has the meaning set forth in Section 11.11(b).
“Control”, “Controlling” or “Controlled” means the possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Credit Manager” means Pentalpha Surveillance LLC and any successor thereto in such capacity.
“Default” means an event, condition or default that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Diligence Services Expense Cap” shall have the meaning set forth in the Pricing Side Letter.
“Division” mean, with respect to any Person that is a limited liability company organized under the laws of the State of Delaware, that any such Person (a) divides into two or more Persons (whether or not the original Person or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware, including Section 18-217 of the Delaware Limited Liability Company Act .
“Dollars” and “$” means dollars in lawful currency of the United States of America.
“Effective Date” shall have the meaning set forth in the preamble.
“EO13224” has the meaning set forth in Section 3.25.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any corporation or trade or business that, together with Seller is treated as a single employer under section 414(b) or (c) of the Code or solely for purposes of section 302 of ERISA and section 412 of the Code is treated as single employer described in section 414 of the Code.
“ERISA Event of Termination” means with respect to Seller (i) with respect to any Plan, a reportable event, as defined in section 4043 of ERISA, as to which the PBGC has not by regulation waived the requirement of section 4043(a) of ERISA that it be notified with thirty (30) days of the occurrence of such event, or (ii) the withdrawal of Seller or any ERISA Affiliate thereof from a Plan during a plan year in which it is a substantial employer, as defined in section 4001(a)(2) of ERISA, or (iii) the failure by Seller or any ERISA Affiliate thereof to meet the minimum funding standard of section 412 of the Code or section 302 of ERISA with respect to any Plan, including the failure to make on or before its due date a required installment under section 412(m) of the Code (or Section 430(j) of the Code as amended by the Pension Protection Act) or section 302(e) of ERISA (or section 303(j) of ERISA, as amended by the Pension Protection Act), or (iv) the distribution under section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate thereof to terminate any plan, or (v) the failure to meet requirements of Section 436 of the Code resulting in the loss of qualified status under section 401(a)(29) of the Code, or (vi) the institution by the PBGC of proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vii) the receipt by Seller or any ERISA Affiliate thereof of a notice from a Multiemployer Plan that action of the type described in the previous clause (vi) has been taken by the PBGC with respect to such Multiemployer Plan, or (viii) any event or circumstance exists which may reasonably be expected to constitute grounds for Seller or any ERISA Affiliate thereof to incur liability under Title IV of ERISA or under sections 412(b) or 430(k) of the Code with respect to any Plan.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Buyer or other recipient of any payment hereunder or required to be withheld or deducted from a payment to such Buyer or such other recipient: (a) Taxes based on (or measured by) net income or net profits, franchise Taxes and branch profits Taxes that are imposed on a Buyer or other recipient of any payment hereunder as a result of (i) 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) a present or former connection between such Buyer or other recipient and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof (other than connections arising from such Buyer or other recipient 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 under this Agreement or any Program Agreement, or sold or assigned an interest in any Purchased Mortgage Loan); (b) any Tax imposed on a Buyer or other recipient of a payment hereunder that is attributable to such Buyer’s or other recipient’s failure to comply with relevant requirements set forth in Section 2.11(e); (c) any withholding Tax that is imposed on amounts payable to or for the account of such Buyer or other recipient of a payment hereunder pursuant to a law in effect on the date such person becomes a party to or under this Agreement, or such person changes its lending office, except in each case to the extent that amounts with respect to Taxes were payable either to such person’s
assignor immediately before such person became a party hereto or to such person immediately before it changed its lending office; and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Indebtedness” has the meaning specified in Section 3.22.
“Expenses” means all present and future expenses reasonably incurred by or on behalf of Buyer in connection with the negotiation, execution or enforcement of this Agreement or any of the other Program Agreements and any amendment, supplement or other modification or waiver related hereto or thereto, whether incurred heretofore or hereafter, which expenses shall include the reasonable and documented cost of title, lien, judgment and other record searches; reasonable and documented attorneys’ fees; any ongoing audits or due diligence costs in connection with valuation, entering into Transactions or determining whether a Margin Deficit may exist; and costs of preparing and recording any UCC financing statements or other filings necessary to perfect the security interest created hereby.
“FATCA” Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code, or any U.S. or non-U.S. fiscal or regulatory legislation, guidance, notes, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
“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.
“GAAP” means U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of Seller and its subsidiaries; provided, that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
“GLB Act” has the meaning set forth in Section 11.11(b).
“Governmental Actions” means any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions over Seller or Buyer, as applicable.
“Governmental Rules” means any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.
“Guarantor” means LD Holdings Group LLC, a Delaware limited liability company, its successors in interest and assigns.
“Guaranty” means that certain Guaranty of the Guarantor made in favor of Buyer, dated as of January 25, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Hsieh Investors” means each of [***], JLSSAA Family Trust, 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.
“Indebtedness” has the meaning set forth in the Pricing Side Letter.
“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 Seller under any Program Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
“Indenture” means the Base Indenture, together with the Series 2017-VF1 Indenture Supplement thereto.
“Indenture Trustee” means Citibank, N.A., its permitted successors and assigns.
“Issuer” has the meaning given to such term in the recitals to this Agreement.
“Laws” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority.
“Legal Expense Cap” has the meaning assigned to the term in the Pricing Side Letter.
“Lien” means, with respect to any property or asset of any Person (a) any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property or asset or (b) the interest of a vendor or lessor arising out of the acquisition of or agreement to acquire such property or asset under any conditional sale agreement, lease purchase agreement or other title retention agreement.
“loanDepot” has the meaning given to such term in the recitals to this Agreement.
“Margin” has the meaning assigned to the term in the Pricing Side Letter.
“Margin Call” has the meaning set forth in Section 2.05(a).
“Margin Deadlines” has the meaning set forth in Section 2.05(b).
“Margin Deficit” has the meaning set forth in Section 2.05(a).
“Market Value” means, with respect to the Purchased Assets as of any date of determination, and without duplication, the value of such Purchased Assets equal to the lower of (i) the value of the Purchased Assets calculated by the Administrative Agent by applying the applicable Advance Rates set forth in the related Indenture Supplement to the Fair Market Value of the Collateral pledged under the Indenture to secure the Purchased Assets and (ii) the related
outstanding VFN Principal Balance as of such date. For purposes of this definition, “Fair Market Value” means, [***].
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets or condition (financial or otherwise) of Seller or any Affiliate that is a party to any Program Agreement taken as a whole; (b) a material impairment of the ability of Seller or any Affiliate that is a party to any Program Agreement to perform under any Program Agreement and to avoid any Event of Default; (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Agreement against Seller or any Affiliate that is a party to any Program Agreement or (d) a material adverse effect upon the existence, perfection, priority or enforceability of Buyer’s security interest in a material portion of the Repurchase Assets.
“Maximum Purchase Price” has the meaning assigned to the term in the Pricing Side Letter.
“Moody’s” means Moody’s Investors Service, Inc. or any successors thereto.
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been or are required to be made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
“NCFA” has the meaning given to such term in the preamble to this Agreement.
“Nomura Indebtedness” means [***].
“Non-Recourse Debt” means liabilities for which the assets securing such obligations are the only source of repayment, subject to customary, non-recourse carve-outs. For the avoidance of doubt, Non-Recourse Debt shall include securitizations that meet the foregoing criteria.
“Note” has the meaning given to such term in the recitals to this Agreement.
“Notice” or “Notices” means all requests, demands and other communications, in writing (including facsimile transmissions and e-mails), sent by overnight delivery service, facsimile transmission, electronic transmission or hand-delivery to the intended recipient at the address specified in Section 11.05 or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.
“Obligations” means (a) all of Seller’s indebtedness, obligations to pay the outstanding principal balance of the Purchase Price, together with interest thereon on the Termination Date, outstanding interest due on each Price Differential Payment Date, and other obligations and liabilities, to Administrative Agent, to Buyer or their respective Affiliates arising under, or in connection with, the Program Agreements, whether now existing or hereafter arising; (b) any and all sums reasonably incurred and paid by Buyer or on behalf of Buyer in order to preserve any Repurchase 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 this definition, the reasonable expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Repurchase Asset, or of any exercise by Buyer of its rights under the Program Agreements, including reasonable attorneys’ fees and disbursements and court costs; and (d) all of Seller’s indemnity obligations to Buyer pursuant to the Program Agreements.
“OFAC” has the meaning set forth in Section 3.25.
“Officer’s Compliance Certificate” has the meaning assigned to such term in the Pricing Side Letter.
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any Seller Party.
“Organizational Documents” means the corporate charter and bylaws, the articles of organization and operating agreement and the partnership certificate and partnership agreement, as applicable of a Person.
“Other Repurchase Agreements” means the Series 2021-PIAVF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement.
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Program Agreement.
“Participant” has the meaning set forth in Section 9.02(a).
“Participation Agreement” means the Third Amended and Restated GMSR Participation Agreement, dated as of January 25, 2024, between loanDepot, as company, and loanDepot, as initial participant, as amended, restated, supplemented or otherwise modified from time to time.
“Parthenon Investors” means each of [***] and each of their respective affiliates.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“PC Repurchase Agreement” means the Third Amended and Restated Master Repurchase Agreement, dated as of January 25, 2024, between the Issuer and Seller, as amended, restated, supplemented or otherwise modified from time to time.
“Pension Protection Act” means the Pension Protection Act of 2006, as amended from time to time.
“Permitted Holders” means any of the Hsieh Investors and the Parthenon Investors.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” means an employee benefit or other plan established or maintained by any Seller or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
“Price Differential” has the meaning set forth in the Pricing Side Letter.
“Price Differential Base” has the meaning set forth in the Pricing Side Letter.
“Price Differential Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Price Differential Payment Date” means, for as long as any Obligations shall remain owing by Seller to Buyer, each Payment Date.
“Price Differential Period” means, the period from and including a Price Differential Payment Date, up to but excluding the next Price Differential Payment Date.
“Price Differential Statement Date” has the meaning set forth in Section 2.04.
“Pricing Rate” means, with respect to each Purchased Asset, the sum of (a) with respect to the Purchase Price Base, the Pricing Rate Base; and (b) with respect to the Purchase Price Incremental 1, the Pricing Rate Incremental 1.
“Pricing Rate Base” has the meaning set forth in the Pricing Side Letter.
“Pricing Rate Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Pricing Side Letter” means the pricing side letter, dated as of January 25, 2024, among Administrative Agent, Buyer and Seller as amended, restated, supplemented or otherwise modified from time to time.
“Primary Repurchase Assets” has the meaning set forth in Section 4.02(a).
“Proceeds” means “proceeds” as defined in Section 9-102(a)(64) of the UCC.
“Program Agreements” means this Agreement, the Pricing Side Letter, the Guaranty, the Base Indenture, the PC Repurchase Agreement, the Participation Agreement and the Series 2017-VF1 Indenture Supplement.
“Prohibited Person” has the meaning set forth in Section 3.25.
“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, subject to the satisfaction of the conditions precedent set forth in Article V, each Funding Date (as defined in the Indenture) on which a Transaction is entered into by Buyer pursuant to Section 2.02 or such other mutually agreed upon date as more particularly set forth in the related Transaction Notice.
“Purchase Price” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Total” has the meaning set forth in the Pricing Side Letter.
“Purchased Assets” means, collectively, the Note and all outstanding Additional Balances together with the Repurchase Assets related to such Note and Additional Balances transferred by Seller to Buyer in a Transaction hereunder, as listed on the related Asset Schedule attached to the related Transaction Notice.
“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 the Purchased Assets.
“Register” has the meaning set forth in Section 9.02(b).
“Regulations T, U and X” shall mean Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Repurchase Date” means the earlier of (i) the Termination Date or (ii) the date requested by Seller on which the Repurchase Price is paid pursuant to Section 2.03.
“Repurchase Documents” means any or all of the “Program Agreements” as defined in each Other Repurchase Agreement.
“Repurchase Price” means, with respect to any Purchased Asset, the price at which Purchased Assets are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price plus the accrued but unpaid Price Differential, plus any related fees or any indemnification amounts allocable to the repurchase of such Purchased Assets or release of such Purchased Asset, plus any other amounts due and payable hereunder with respect to such Purchased Asset, as of the date of such determination.
“Repurchase Rights” has the meaning set forth in Section 4.02(c).
“Request for Certification” means a notice sent to Buyer reflecting the sale of the Note to Buyer.
“Requirement of Law” means, with respect to any Person, any law, treaty, rule or regulation or determination of an arbitrator, a court or other Governmental Authority, 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 as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer or treasurer of such Person. The Responsible Officers of Seller as of the Closing Date are listed on Schedule 1 hereto.
“Sanctions” shall have the meaning set forth in Section 3.34.
“Sanctioned Jurisdiction” shall have the meaning set forth in Section 3.34.
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Seller” has the meaning assigned to such term in the preamble to this Agreement and includes loanDepot’s permitted successors and assigns.
“Seller Termination Option” means (a) Buyer has incurred or shall incur costs in connection with those matters provided for in Section 2.10 or 2.11 and (b) Buyer requests that Seller reimburse Buyer for those costs in connection therewith.
“Series 2017-VF1 Indenture Supplement” means the Second Amended and Restated Series 2017-VF1 Indenture Supplement, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, loanDepot, as administrator and as servicer, and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2021-PIAVF1 Repurchase Agreement” means the Series 2021-PIAVF1 Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2021-SAVF1 Repurchase Agreement” means the Series 2021-SAVF1 Repurchase Agreement, dated January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“SOFR” means a rate per annum equal to the secured overnight financing rate published for such day 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.
“Subordinated Pledge Assets” has the meaning set forth in Section 4.02(e).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, 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.
“Tax Distributions” means distributions by the Seller for the purpose of enabling LD Holdings Group LLC to make Tax Distributions, as defined and set forth in the limited liability company agreement of LD Holdings Group LLC.
“Taxes” means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings (including backup withholding), assessments, fees or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned to such term in the Pricing Side Letter.
“Transaction” means a transaction pursuant to which Seller transfers a Note or increases in the value thereof, as applicable, to Buyer against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer such Note, or any interest therein, as applicable, back to Seller at a date certain or on demand, against the transfer of funds by Seller.
“Transaction Notice” has the meaning assigned to such term in Section 2.02(a).
“Transaction Register” has the meaning assigned to such term in Section 9.03(b).
“Transferee” has the meaning set forth in Section 9.02(b).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect on the Closing Date in the State of New York or the Uniform Commercial Code as in effect in the applicable jurisdiction.
Section 1.02Other Defined Terms.
(a)Any capitalized terms used and not defined herein shall have the meaning set forth in the Base Indenture or the Series 2017-VF1 Indenture Supplement, as applicable.
(b)The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or” and the term “including” is not limiting. All references to Sections, subsections, Articles and Exhibits shall be to Sections, subsections, and Articles of, and Exhibits to, this Agreement unless otherwise specifically provided.
(c) Reference to and the definition of any document (including this Agreement) shall be deemed a reference to such document as it may be amended, restated, supplemented or otherwise modified from time to time;
(d)In the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein the words “commencing on” mean “commencing on and including,” the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”
ARTICLE II
GENERAL TERMS
Section 1.01Transactions. Subject to the terms and conditions hereof, prior to the Termination Date, Buyer agrees to enter into Transactions with Seller for a Purchase Price outstanding at any one time not to exceed the lesser of (i) the Maximum Purchase Price and (ii) the Asset Value. During the term of this Agreement, Seller may request Transactions (and during the Commitment Period, Seller may utilize the Commitment by requesting Transactions), Seller may pay the Repurchase Price in whole or in part at any time during such period without penalty, and additional Transactions may be entered into in accordance with the terms and conditions hereof. Buyer’s obligation to enter into Transactions pursuant to the terms of this Agreement shall terminate on the Termination Date. Notwithstanding the foregoing, Buyer shall have no commitment or obligation to enter into Transactions in connection with the Note to the extent the Purchase Price of such Transaction exceeds the Committed Amount. With respect to each Transaction, the Administrative Agent shall allocate such Transaction such that such that the Buyer in connection with the Purchase Price Base pays such amount and the Buyer in connection with the Purchase Price Incremental 1 pays such amount, as applicable, and, in which case, the Administrative Agent shall own the Purchased Asset subject to such Transaction, for the benefit of the purchasing Buyers (as the case may be) subject to the terms set forth herein. The sum of the aggregate outstanding Purchase Price Base and Purchase Price Incremental 1 shall not exceed the Maximum Purchase Price.
Section 1.02Procedure for Entering into Transactions.
(a)Seller may enter into Transactions with Buyer under this Agreement on any Purchase Date; provided, that Seller shall not request to enter into a Transaction with Buyer more than [***] ; provided, further, that Seller shall have given Buyer irrevocable notice (each, a “Transaction Notice”), which notice (i) shall be substantially in the form of Exhibit A, (ii) [***] prior to the related Purchase Date, and (iii) shall specify the requested information as detailed in the Transaction Notice; provided, however, that Seller is prohibited from submitting a Transaction Notice [***] prior to the expected receipt of the MSR Valuation Agent’s monthly Market Value Report. Each Transaction Notice on any Purchase Date shall be in an amount equal to at least $[***].
(b)If Seller shall deliver to Buyer a Transaction Notice that satisfies the requirements of Section 2.02(a), Buyer will notify Seller of its intent to remit the requested Purchase [***]prior to the requested Purchase Date. If all applicable conditions precedent set forth in Article V have been satisfied on or prior to the Purchase Date, then subject to the foregoing, on the Purchase Date, Buyer shall remit the amount of the requested Purchase Price in U.S. Dollars and in immediately available funds to the account of Seller specified in Schedule 5 to the Base Indenture.
(c)Reserved.
(d)Upon entering into each Transaction hereunder, the Asset Schedule shall be automatically updated and replaced with the Asset Schedule attached to the related Transaction Notice.
Section 1.03Repurchase; Payment of Repurchase Price.
(a)Seller hereby promises to repurchase the Purchased Assets and pay all outstanding Obligations on the Termination Date.
(b)By notifying Buyer in writing [***], Seller shall be permitted, at its option, to prepay, subject to Section 2.12, the Purchase Price in whole or in part at any time, together with accrued and unpaid interest on the amount so prepaid.
(c)With respect to any Purchased Asset, Administrative Agent shall allocate any Repurchase Price in respect thereof (x) prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1; and (y) on and after an Event of Default, first to the Buyers of the Purchase Price Base until all Obligations in respect of the Purchase Price Base are reduced to zero, and second to the Purchase Price Incremental 1 until all Obligations in respect of the Purchase Price Incremental 1 are reduced to zero. With respect to any Purchased Asset, Administrative Agent shall allocate any Purchase Price Percentage Reduction Event prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1.
Section 1.04Price Differential. On each Price Differential Payment Date, Seller hereby promises to pay to Buyer all accrued and unpaid Price Differential on the Transactions, as invoiced by Buyer to Seller [***] (the “Price Differential Statement Date”); provided, that on each Price Differential Payment Date prior to the occurrence and continuation of an Event of Default, the estimated Price Differential owed hereunder shall be subject to a true-up of the amount determined by Buyer and delivered to the Seller [***]. Prior to the occurrence and continuance of an Event of Default, the Administrative Agent shall apply all payments of Price Differential in respect of any Purchased Asset pro rata among the Price Differential Base and the Price Differential Incremental 1. On and after an Event of Default, any application of Price Differential will first be attributed to the Price Differential Base then due and owning until reduced to zero, and second to the Price Differential Incremental 1 then due and owning until reduced to zero.
If Buyer fails to deliver such statement on the Price Differential Statement Date, on such Price Differential Payment Date Seller shall pay the amount which Seller calculates as the Price Differential due and upon delivery of the statement, Seller shall remit to Buyer any shortfall, or Buyer shall refund to Seller any excess, in the Price Differential paid. Price Differential shall accrue each day on the Purchase Price at a rate per annum equal to the applicable Pricing Rate. The Price Differential shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.05Margin Maintenance.
(a)If at any time the aggregate outstanding amount of the Purchase Price of the Note is greater than the related Asset Value (such excess, a “Margin Deficit”), then Buyer may by notice to Seller require Seller to transfer to Buyer cash in an amount at least equal to the Margin Deficit (such requirement, a “Margin Call”).
(b)Notice delivered pursuant to Section 2.05(a) may be given by any written or electronic means. With respect to a Margin Call, any notice given [***]. With respect to a Margin Call, any notice given [***]. The foregoing time requirements for satisfaction of a Margin Call are referred to as the “Margin Deadlines”. The failure of Buyer, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
(c)In the event that a Margin Deficit exists, Buyer may retain any funds received by it to which Seller would otherwise be entitled hereunder, which funds (i) may be held by Buyer
against the related Margin Deficit or (ii) may be applied by Buyer against the Purchase Price. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 2.05.
Section 1.06Payment Procedure. Seller absolutely, unconditionally, and irrevocably, shall make, or cause to be made, all payments required to be made by Seller hereunder. Seller shall deposit or cause to be deposited all amounts constituting collection, payments and proceeds of the Note (including all fees and proceeds of sale to a third party) to the Buyer Account.
Section 1.07Application of Payments.
(a)On each Price Differential Payment Date prior to the occurrence of an Event of Default, all amounts deposited into the Buyer Account from and after the immediately preceding Price Differential Payment Date (or the Closing Date in connection with the initial Price Differential Payment Date), or received by Buyer from the Issuer in the Buyer’s capacity as VFN Noteholder, shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price outstanding to satisfy any Margin Deficit due and owing in accordance with the terms and priorities of this Agreement;
(iii)third, ratably to the payment of all other costs and fees payable to Buyer pursuant to this Agreement; and
(iv)fourth, any remainder to Seller.
(b)Notwithstanding the preceding provisions, if an Event of Default shall have occurred hereunder, all funds related to the Note shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price until reduced to zero in accordance with the terms and priorities of this Agreement;
(iii)third, to payment of all other costs and fees payable to Buyer pursuant to this Agreement;
(iv)fourth, to the payment of any other Obligations in accordance with the terms and priorities of this Agreement; and
(v)fifth, any remainder to Seller.
Section 1.08Use of Purchase Price and Transaction Requests. The Purchase Price shall be used by Seller to satisfy its obligations under the Indenture and for general limited liability company purposes.
Section 1.09Recourse. Notwithstanding anything else to the contrary contained or implied herein or in any other Program Agreement, Buyer shall have full, unlimited recourse against Seller and its assets in order to satisfy the Obligations.
Section 1.10Requirements of Law.
(a)If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of trust and trust agreement or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Closing Date:
(i)shall subject Buyer to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii)shall impose, modify or hold any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of Buyer which is not otherwise included in the determination of the Price Differential hereunder; or
(iii)shall impose on Buyer any other condition (other than Taxes);
and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of entering, continuing or maintaining this Agreement or any other Program Agreement, the Transactions or to reduce any amount due or owing hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as calculated by Buyer in good faith as will compensate Buyer for such increased cost or reduced amount receivable.
(b)If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation Controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the Closing Date shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall promptly pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction.
(c)If Buyer becomes entitled to claim any additional amounts pursuant to this Section 2.10, it shall promptly notify Seller of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this Section 2.10 submitted by Buyer to Seller shall be conclusive in the absence of manifest error.
Section 1.11Taxes.
(a)Any and all payments by or on behalf of Seller under or in respect of this Agreement or any other Program Agreements to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, unless required by law. If Seller shall be required under any applicable Requirement of Law (as determined in the good faith discretion of the applicable withholding agent) to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other
Program Agreements to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) to the extent the withheld or deducted Tax is an Indemnified Tax or Other Tax, the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 2.11) such Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)In addition, Seller hereby agrees to pay any Other Taxes.
(c)Seller hereby agrees to indemnify Buyer for any Indemnified Taxes or Other Taxes imposed on Administrative Agent or Buyer (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.11 and any liability including penalties, additions to tax, interest and expenses arising therefrom or with respect thereto). The indemnity by Seller provided for in this Section 2.11 shall apply and be made whether or not the Indemnified Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by Seller under the indemnity set forth in this Section 2.11(c) shall be paid within [***] from the date on which Buyer makes written demand therefor.
(d)Without prejudice to the survival of any other agreement of the Seller hereunder, each party’s obligations contained in this Section 2.11 shall survive the termination of this Agreement and the other Program Agreements. Nothing contained in Section 2.10 or this Section 2.11 shall require any Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.
(e)Administrative Agent shall and shall cause each Buyer to deliver to the Seller, at the time or times reasonably requested by the Seller, such properly completed and executed documentation reasonably requested by the Seller as will permit payments made hereunder to be made without withholding or at a reduced rate of withholding. In addition, Administrative Agent shall and shall cause each Buyer, if reasonably requested by Seller, to deliver such other documentation prescribed by applicable law or reasonably requested by the Seller as will enable the Seller to determine whether or not Administrative Agent or such Buyer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 2.11, the completion, execution and submission of such documentation (other than such documentation in Section 2.11(e)(A), (B) and (C) below) shall not be required if in a Buyer’s judgment such completion, execution or submission would subject such Buyer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Buyer. Without limiting the generality of the foregoing, Administrative Agent shall and shall cause a Buyer to deliver to the Seller, to the extent legally entitled to do so.
(A) in the case of a Buyer or Buyer assignee or participant which is a “U.S. Person” as defined in section 7701(a)(30) of the Code, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 certifying that it is not subject to U.S. federal backup withholding tax;
(B) in the case of a Buyer or Buyer assignee or participant which is not a “U.S. Person” as defined in Code section 7701(a)(30): (I) a properly completed and executed IRS Form W-8BEN, W-8BEN-E or W-8ECI, as appropriate, evidencing entitlement to a zero percent or reduced rate of U.S. federal income tax withholding on any payments made hereunder, (II) in the case of such non-U.S. Person claiming exemption from the withholding of U.S. federal
income tax under Code sections 871(h) or 881(c) with respect to payments of “portfolio interest,” a duly executed certificate (a “U.S. Tax Compliance Certificate”) to the effect that such non-U.S. Person is not (x) a “bank” within the meaning of Code section 881(c)(3)(A), (y) a “10 percent shareholder” of Seller or affiliate thereof, within the meaning of Code section 881(c)(3)(B), or (z) a “controlled foreign corporation” described in Code section 881(c)(3)(C), (III) to the extent such non-U.S. person is not the beneficial owner, executed originals 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 such non-U.S. person is a partnership and one or more direct or indirect partners of such non-U.S. person are claiming the portfolio interest exemption, such non-U.S. person may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner, and (IV) executed originals of any other form or supplementary documentation prescribed by law as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by law to permit Seller to determine the withholding or deduction required to be made.
(C) if a payment made to a Buyer or Buyer assignee or participant under this Agreement would be subject to U.S. federal withholding tax imposed by FATCA if such Buyer or assignee or participant 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), Administrative Agent on behalf of such Buyer or assignee or participant shall deliver to the Seller at the time or times prescribed by law and at such time or times reasonably requested by the Seller 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 Seller as may be necessary for the Seller to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 11(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
The applicable IRS forms referred to above shall be delivered by Administrative Agent on behalf of each applicable Buyer or Buyer assignee or participant on or prior to the date on which such person becomes a Buyer or Buyer assignee or participant under this Agreement, as the case may be, and upon the obsolescence or invalidity of any IRS form previously delivered by it hereunder.
Section 1.12Indemnity. Without limiting, and in addition to, the provisions of Section 11.02, Seller agrees to indemnify the Buyer and to hold Buyer harmless from any loss or expense that Buyer may sustain or incur as a consequence of (i) a default by Seller in payment when due of the Repurchase Price or Price Differential or (ii) a default by Seller in making any prepayment of Repurchase Price after Seller has given a notice thereof in accordance with Section 2.03.
Section 1.13Changes in VFN Principal Balance. Seller shall deliver to Buyer a copy of the VFN Note Balance Adjustment Request that is delivered under the Indenture reflecting any increase or decrease in the Collateral Value. If the Collateral Value has increased, and all the Funding Conditions required pursuant to Section 5.02 hereof and the Indenture have been satisfied, then upon approval in writing by Buyer of such increase in the VFN Principal Balance, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated as set forth in the related Transaction Notice in accordance with Section 2.02. Buyer may fund such increases pursuant to Section 2.01. To the extent the Collateral Value has decreased, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated to reflect any adjustment or pay down of the VFN Principal Balance pursuant to the Indenture.
Section 1.14Commitment Fee. Seller shall pay the Commitment Fee as specified in the Pricing Side Letter. Such payments shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at such account designated in writing by Buyer.
Section 1.15Termination.
(a)Notwithstanding anything to the contrary set forth herein, if a Seller Termination Option occurs, Seller may, upon [***]prior written notice of such event, upon payment of the applicable Repurchase Price and satisfaction of the other termination conditions set forth in the Indenture, terminate this Agreement and the Termination Date shall be deemed to have occurred (upon the expiration of such [***]).
(b)In the event that a Seller Termination Option as described in clause (a) of the definition thereof has occurred and Seller has notified Buyer in writing of its option to terminate this Agreement, Buyer shall have the right to withdraw such request for payment within [***] of Seller’s notice of its exercise of the Seller Termination Option and Seller shall no longer have the right to terminate this Agreement.
(c)For the avoidance of doubt, Seller shall remain responsible for all costs actually incurred by Buyer pursuant to Sections 2.10 and 2.11.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer as of the Closing Date, the Effective Date and each Purchase Date for any Transaction that:
Section 1.01Seller Existence. Seller has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware; and in each other jurisdiction in which the transaction of its business makes such qualification necessary.
Section 1.02Licenses. Seller is duly licensed or is otherwise qualified in each jurisdiction in which it transacts business for the business which it conducts and is not in default of any applicable federal, state or local laws, rules and regulations unless, in either instance, the failure to take such action is not reasonably likely (either individually or in the aggregate) to cause a Material Adverse Effect and is not in default of such state’s applicable laws, rules and regulations. Seller has the requisite power and authority and legal right to own, sell and grant a lien on all of its right, title and interest in and to the Note. Seller has the requisite power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement, each other Program Agreement and any Transaction Notice.
Section 1.03Power. Seller has all requisite corporate or other power and authority, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a Material Adverse Effect.
Section 1.04Due Authorization. Seller has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations under each of the Program Agreements, as applicable. This Agreement, any Transaction Notice and the Program Agreements have been (or, in the case of Program Agreements and any Transaction Notice not
yet executed, will be, at the time of such execution) duly authorized, executed and delivered by Seller, all requisite or other corporate action having been taken, and each is valid, binding and enforceable against Seller in accordance with its terms except as such enforcement may be affected by bankruptcy, by other insolvency laws, or other similar laws affecting the enforcement of creditor’s rights or by general principles of equity.
Section 1.05Financial Statements. Seller has heretofore furnished to Buyer a copy of (a) its balance sheet for the fiscal year ended December 31, 2022, and the related statements of income for such fiscal year, with the opinion thereon of Ernst & Young LLP, and (b) its balance sheet for the quarterly fiscal period ended September 30, 2023, and its related statements of income for such quarterly fiscal period. All such financial statements are accurate, complete and correct and fairly present, in all material respects, the financial condition of Seller (subject to normal year-end adjustments), and the results of its operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis, and to the best of the Seller’s knowledge, do not omit any material fact as of the date(s) thereof. Since September 30, 2023, there has been no material adverse change in the consolidated business, operations or financial condition of Seller from that set forth in said financial statements nor is Seller aware of any state of facts which (with notice or the lapse of time) would or could result in any such material adverse change. Seller has no liabilities, direct or indirect, fixed or contingent, matured or unmatured, known or unknown, or liabilities for taxes, long-term leases or unusual forward or long-term commitments not disclosed by, or reserved against in, said balance sheet and related statements, and at the present time there are no material unrealized or anticipated losses from any loans, advances or other commitments of Seller, except as heretofore disclosed to Buyer in writing.
Section 1.06No Event of Default. There exists no event of default (or other similar term as defined in the applicable instrument) or Event of Default under Section 7.01, which default gives rise to a right to accelerate indebtedness as referenced in Section 7.03 or give rise to similar rights under this Agreement or under any mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money or to the repurchase of mortgage loans or securities or securities or other instrument or contractual or legal obligation to which it is a party or by which it is bound in any respect.
Section 1.07Solvency. As of the date hereof and immediately after giving effect to each Transaction, the fair value of its assets is greater than the fair value of its liabilities (including, without limitation, contingent liabilities if and to the extent required to be recorded as a liability on the financial statements of it in accordance with GAAP) and Seller is solvent and will not be rendered insolvent by any Transaction and 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 and 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 such entity or any of its assets. Seller is not selling and/or pledging any Repurchase Assets with any intent to hinder, delay or defraud any of its creditors.
Section 1.08No Conflicts. The execution, delivery and performance by of Seller of this Agreement, any Transaction Notice hereunder and the Program Agreements do not: (i) constitute or will not result in (a) any breach of or conflict with any term or provision of the Organizational Documents of Seller; (b) a breach of any indenture, loan agreement, warehouse line of credit, repurchase agreement, mortgage, deed of trust, Ginnie Mae Contract or any other material contractual obligation of it; (c) a material default or an acceleration under any of the foregoing; or (d) the violation of any law, rule, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court, regulatory body, administrative agency or governmental body
having jurisdiction over Seller, which conflict would have a Material Adverse Effect; (ii) require the creation or imposition of any Lien upon any of the properties or assets of Seller (other than any Liens created under any of this Agreement, any Transaction Notice and the Program Agreements in favor of Buyer and/or pursuant to the terms and provisions of the Ginnie Mae Contract), or (iii) require any approval of stockholders, members or partners or any approved or consent of any Person under any material contractual obligation of it, except for such approvals or consents which have been obtained on or before the Closing Date.
Section 1.09True and Complete Disclosure. All information, reports, exhibits, schedules, financial statements or certificates of Seller or any Affiliate thereof or any of their officers furnished or to be furnished to Buyer in connection with the initial or any ongoing due diligence of Seller or any Affiliate or officer thereof, negotiation, preparation, or delivery of this Agreement or the other Program Agreements, included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, are true and complete in all material respects and do not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All financial statements have been prepared in accordance with GAAP.
Section 1.10Approvals. No consent, approval, authorization or order of, registration or filing with, or notice to any governmental authority, court or other Person is required under applicable law in connection with the execution, delivery and performance by Seller of this Agreement, any Transaction Notice and the Program Agreements.
Section 1.11Litigation. There is no action, proceeding or investigation pending with respect to which Seller has received service of process or, to the best of Seller’s knowledge threatened or affecting it against it before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, any Transaction, Transaction Notice or any Program Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any Transaction Notice or any Program Agreement, (C) makes a claim individually or in the aggregate in an amount greater than $[***], (D) which has resulted in the voluntary or involuntary suspension of a license, a cease and desist order, or such other action as could adversely impact Seller’s business, or (E) which might materially and adversely affect the validity of the Purchased Assets or the performance by it of its obligations under, or the validity or enforceability of, this Agreement, any Transaction Notice or any Program Agreement or which could be reasonably likely to have a Material Adverse Effect.
Section 1.12Material Adverse Change. There has been no material adverse change in the business, operations, financial condition, properties or prospects of Seller or its Affiliates since the date set forth in the most recent financial statements supplied to Buyer that is reasonably likely to have a Material Adverse Effect on Seller.
Section 1.13Ownership.
(a)Seller has good title to all of the Repurchase Assets, free and clear of all mortgages, security interests, restrictions, Liens and encumbrances of any kind other than the Liens created hereby or contemplated herein, and any Transaction shall convey all of Seller’s right, title and interest in and to the related Purchased Assets to Buyer.
(b)Each item of the Repurchase Assets was acquired by Seller in the ordinary course of its business, in good faith, for value and without notice of any defense against or claim to it on the part of any Person.
(c)There are no agreements or understandings between Seller and any other party which would modify, release, terminate or delay the attachment of the security interests granted to Buyer under this Agreement.
(d)The provisions of this Agreement are effective to create in favor of Buyer a valid security interest in all right, title and interest of Seller in, to and under the Repurchase Assets.
(e)Upon the filing of financing statements on Form UCC-1 naming Buyer as “Secured Party” and Seller as “Debtor”, and describing the Repurchase Assets, in the recording offices of the Secretary of State of Delaware the security interests granted hereunder in the Repurchase Assets will constitute fully perfected first priority security interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Repurchase Assets to the extent that such security interests can be perfected by filing under the Uniform Commercial Code.
Section 1.14The Note. Seller has (i) delivered the Note to Buyer, (ii) duly endorsed the Note to Buyer or Buyer’s designee, (iii) notified the Indenture Trustee of such transfer and (iv) completed all documents required to effect such transfer in the Note Register, including receipt by the Note Registrar of the Rule 144A Note Transfer Certificate and such other information and documents that may be required pursuant to the terms of the Indenture. In addition, Buyer has received all other Program Agreements (including all exhibits and schedules referred to therein or delivered pursuant thereto), all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof and all agreements and other material documents relating thereto, and Seller hereby certifies that the copies delivered to Buyer by Seller are true and complete. None of such documents has been amended, supplemented or otherwise modified (including waivers) since the respective dates thereof, except by amendments, copies of which have been delivered to Buyer. Each such document to which Seller is a party has been duly executed and delivered by Seller and is in full force and effect, and no default or material breach has occurred and is continuing thereunder.
Section 1.15Taxes. Seller and its Subsidiaries have timely filed all income tax returns and other material tax returns that are required to be filed by them and have paid all taxes, material assessments, fees and other governmental charges levied, except for any such taxes, material assessments, fees and other governmental charges as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of Seller and its Subsidiaries in respect of taxes and other governmental charges are, in the opinion of Seller, adequate.
Section 1.16Investment Company. Neither Seller nor any of its Subsidiaries is an “investment company”, or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
Section 1.17Chief Executive Office; Jurisdiction of Organization. On the Closing Date and on the Effective Date, Seller’s chief executive office, is, and has been, located at the address specified in Section 11.05 for notices. On the Effective Date, Seller’s jurisdiction of organization is the State of Delaware. Seller shall provide Buyer [***] notice of any change in Seller’s principal office or place of business or jurisdiction. Seller has no trade name. During the preceding five (5) years, Seller has not been known by or done business under any other name, corporate or fictitious, and has not filed or had filed against it any bankruptcy receivership or similar petitions nor has it made any assignments for the benefit of creditors.
Section 1.18Location of Books and Records. The location where Seller keeps its books and records, including all computer tapes and records relating to the Repurchase Assets is its chief executive office.
Section 1.19ERISA. Each Plan to which Seller or its Subsidiaries make direct contributions, and, to the knowledge of Seller, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law.
Section 1.20Financing of Note. Each Transaction will be used to purchase the Note as provided herein, which Note will be conveyed and/or sold by Seller to Buyer.
Section 1.21Agreements. Neither Seller nor any Subsidiary of Seller is a party to any agreement, instrument, or indenture or subject to any restriction materially and adversely affecting its business, operations, assets or financial condition, except as disclosed in the financial statements described in Section 3.05 hereof. Neither Seller nor any Subsidiary of Seller is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement, instrument, or indenture which default could have a material adverse effect on the business, operations, properties, or financial condition of Seller as a whole. No holder of any indebtedness of Seller or of any of its Subsidiaries has given notice of any asserted default thereunder.
Section 1.22Other Indebtedness. All material Indebtedness (other than Indebtedness incurred under the Program Agreements) of Seller existing on the Closing Date is listed on Exhibit B hereto (the “Existing Indebtedness”).
Section 1.23No Reliance. Seller has made its own independent decisions to enter into the Program Agreements and each Transaction and as to whether such Transaction is appropriate and proper for it based upon its own judgment and upon advice from such advisors (including legal counsel and accountants) as it has deemed necessary. Seller is not relying upon any advice from Buyer as to any aspect of the Transactions, including the legal, accounting or tax treatment of such Transactions.
Section 1.24Plan Assets. Seller is not an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code, and the Purchased Assets are not “plan assets” within the meaning of 29 CFR § 2510.3 101 as amended by section 3(42) of ERISA, in Seller’s hands, and transactions by or with Seller are not subject to any state or local statute regulating investments or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.25No Prohibited Persons. Neither Seller nor any of its Affiliates, officers, directors, partners or members, is an entity or person (or to the Seller’s knowledge, owned or controlled by an entity or person): (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “Prohibited Person”).
Section 1.26Anti Money Laundering Laws. The Seller has complied in all material respects with all other Anti Money Laundering Laws and has established an anti-money laundering compliance program and such other procedures and controls to remain in material compliance with all applicable Anti Money Laundering Laws.
Section 1.27Anti-Corruption Laws.
(a)Seller is and will remain in compliance with all applicable Anti-Corruption Laws, and agrees that no part of the proceeds of the Purchase Price will be used, directly or to its knowledge indirectly, by any Person for any payments to any governmental 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, as amended.
(b)Seller acknowledges by executing this Agreement and the other Program Agreements to which Seller is a party that Buyer has notified it that, pursuant to the requirements of the Patriot Act, Buyer is required to obtain, verify and record such information as may be necessary to identify Seller and confirm that the administrator of Seller (or the administrator of the applicable direct or indirect owner of equity interests of it), has obtained, verified and recorded such information as may be necessary to identify any Person owning twenty-five percent (25%) or more of the direct equity interests of it (including, without limitation, the name and address of such Person), in each case, in accordance with the Patriot Act.
(c)None of Seller or any director, officer, agent or employee of Seller, has used or to its knowledge directly or indirectly used any of the proceeds of any Transaction (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any direct or indirect unlawful payment to any government official or employee from corporate funds, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar law of a jurisdiction in which Seller conducts its business and to which it is lawfully subject or (iv) to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
Section 1.28Compliance with 1933 Act. Neither Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Note, any interest in the Note or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Note, any interest in the Note or any other similar security from, or otherwise approached or negotiated with respect to the Note, any interest in the Note or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Note under the 1933 Act or which would render the disposition of the Note a violation of Section 5 of the 1933 Act or require registration pursuant thereto.
Section 1.29[Reserved].
Section 1.30[Reserved].
Section 1.31Margin Regulations. The use of all funds acquired by Seller under this Agreement will not conflict with or contravene any of Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System as the same may from time to time be amended, supplemented or otherwise modified.
Section 1.32Sanctions Compliance. Seller confirms as a condition of this Agreement and warrants to Buyer that it will, and it will cause each of its controlled Subsidiaries to, abide by all
applicable economic sanctions laws and trade restrictions, administered or enforced from time to time by the United States, including those administered by OFAC or the U.S. Department of State (collectively “Sanctions”), In particular, Seller represents and warrants that neither it, nor any of the Seller or its respective Affiliates, officers, directors, partners, or members (i) is an entity or other person that: (a) appears on the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC; (b) is operating in, organized in, a national of or ordinarily resident in a country or territory subject to comprehensive sanctions, programs administered and enforced by OFAC, currently including, Cuba, Iran, Syria, North Korea, and the Crimean, Donetsk and Luhansk regions of Ukraine (“Sanctioned Jurisdiction”); (c) is otherwise the target of any Sanctions, including but not limited to U.S. Executive Order 14024 issued on April 15, 2021, U.S. Executive Order 13662 issued on March 20, 2014, and any directives or designations issued pursuant thereto; or (d) is directly or indirectly owned 50% or more in the aggregate, or controlled by or acting for or on behalf of entities or other persons described in clauses (a) through (c), above (any and all entities or other persons described in clauses (a) through (d) above are “Prohibited Persons”); (ii) engaged or engages in any dealings or transactions with or involving any Prohibited Persons or Sanctioned Jurisdiction; and (iii) otherwise engaged or engages in any dealings or transactions in violation of Sanctions. Neither Seller nor any of its Affiliates, officers, directors, partners, or members shall be included on the SDN List, the U.K. Sanctions List, or the E.U. Consolidated Financial Screening List.
ARTICLE IV
CONVEYANCE; REPURCHASE ASSETS; SECURITY INTEREST
Section 1.01Ownership. Upon payment of the Purchase Price and delivery of the Note to Buyer and the Buyer’s receipt of the related Request for Certification, Buyer shall become the sole owner of the Purchased Assets, free and clear of all liens and encumbrances.
Section 1.02Security Interest.
(a)Although the parties intend (other than for U.S. federal tax purposes) that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, and in any event, Seller hereby pledges to Buyer as security for the performance by Seller of its Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in all of Seller’s right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located, is hereinafter referred to as the “Primary Repurchase Assets”:
(i)the Note identified on the Asset Schedule;
(ii)all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule;
(iii)all records, instruments or other documentation evidencing any of the foregoing;
(iv)all “general intangibles”, “accounts”, “chattel paper”, “securities accounts”, “investment property”, “deposit accounts” and “money” as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including all of Seller’s rights, title and interest in and under the Base Indenture and the Series 2017-VF1 Indenture Supplement); and
(v)any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing.
(b)[Reserved]
(c)Subject to the priority interest of the Indenture Trustee, Buyer and Seller hereby agree that in order to further secure Seller’s Obligations hereunder, Seller hereby assigns, pledges, conveys and grants to Buyer a security interest in (i) as of the Closing Date, Seller’s rights (but not its obligations) under the Program Agreements including any rights to receive payments thereunder or any rights to collateral thereunder whether now owned or hereafter acquired, now existing or hereafter created (collectively, the “Repurchase Rights”) and (ii) all collateral however defined or described under the Program Agreements to the extent not otherwise included under the definitions of Primary Repurchase Assets or Repurchase Rights (such collateral, “Additional Repurchase Assets,” and collectively with the Primary Repurchase Assets and the Repurchase Rights, the “Repurchase Assets”).
(d)Seller hereby delivers an irrevocable instruction to the buyer under any Repurchase Document that upon receipt of notice of an Event of Default under this Agreement, the buyer thereunder is authorized and instructed to (i) remit to Buyer hereunder directly any amounts otherwise payable to Seller and (ii) to deliver to Buyer all collateral otherwise deliverable to Seller, to the extent all obligations then due and owing under such Other Repurchase Agreements have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding purchase price under any Other Repurchase Agreement and termination of all obligations of the Seller thereunder or other termination of the related Repurchase Documents following repayment of all obligations thereunder, the related buyer under any Repurchase Document is hereby instructed to deliver to Buyer hereunder any collateral (as such term may be defined under the related Repurchase Documents) then in its possession or control.
(e)Seller makes a subordinate pledge to the buyers under the Other Repurchase Agreements as security for the performance by Seller of its obligations thereunder and hereby grants, assigns and pledges to the buyers thereunder a subordinate security interest in all of Seller’s right, title and interest in, to and under (i) the Note identified on the Asset Schedule; (ii) all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule; (iii) all records, instruments or other documentation evidencing any of the foregoing and (iv) any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing (collectively, the “Subordinated Pledge Assets”). Seller hereby delivers an irrevocable instruction to Buyer that upon its receipt of notice of an “Event of Default” from the buyer under any Other Repurchase Agreement, Buyer is authorized and instructed to (i) remit to such buyer directly any amounts otherwise payable to Seller under this Agreement and (ii) deliver to such buyer all Subordinated Pledge Assets otherwise deliverable to Seller, to the extent all obligations then due and owing under this Agreement have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding Purchase Price and termination of all Obligations or other termination of the Program Agreements following repayment of all obligations thereunder, Buyer shall deliver to the buyer under any Other Repurchase Agreement with respect to which the related purchase price remains outstanding any Subordinated Pledge Assets then in Buyer’s possession or under its control. The subordinate pledge set forth in this clause (e) shall automatically terminate with respect to an Other Repurchase Agreement if the Buyer or the other buyer thereunder is no longer NCFA, or any Affiliates thereof.
(f)The foregoing provisions of this Section 4.02 are intended to constitute a security agreement or other arrangement or other credit enhancement related to this Agreement and the
Transactions hereunder as defined under Sections 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code.
Section 1.03Further Documentation. At any time and from time to time, upon the written request of Buyer, and at the sole expense of Seller, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer may reasonably request (x) to obtain, preserve, perfect, protect or more fully evidence Buyer’s security interest in the Purchased Assets, (y) for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted or (z) to enable Buyer to exercise or enforce any of its rights hereunder or under any other Program Agreement, including the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any applicable jurisdiction with respect to the Liens created hereby or amendments thereto or assignments thereof and such other instruments or notices, as Buyer may reasonably require. Seller also hereby authorizes Buyer to file (with a copy to Seller) any such financing or continuation statement, and amendments thereto and assignments thereof to the extent permitted by applicable law.
Section 1.04Changes in Locations, Name, etc. Seller shall not (a) change the location of its chief executive office/chief place of business from that specified in Section 3.17 or (b) change its name or identity or organizational structure or jurisdiction of organization from the jurisdiction referred to in Section 3.17, unless it shall have given Buyer at least [***] prior written notice thereof and shall have delivered to Buyer all Uniform Commercial Code financing statements and amendments thereto as Buyer shall request and taken all other actions deemed necessary by Buyer to continue its perfected status in the Repurchase Assets with the same or better priority.
Section 1.05Performance by Buyer of Seller’s Obligations. If Seller fails to perform or comply with any of its agreements contained in the Program Agreements and Buyer may itself perform or comply, or otherwise cause performance or compliance, with such agreement, the reasonable (under the circumstances) out-of-pocket expenses of Buyer actually incurred in connection with such performance or compliance, together with interest thereon at a rate per annum equal to the Pricing Rate shall be payable by Seller to Buyer on demand and shall constitute Obligations. Such interest shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.06Proceeds. If an Event of Default shall occur and be continuing, (a) all proceeds of Repurchase Assets received by Seller consisting of cash, checks and other liquid assets readily convertible to cash items shall be held by Seller in trust for Buyer, segregated from other funds of Seller, and shall forthwith upon receipt by Seller be turned over to Buyer in the exact form received by Seller (duly endorsed by Seller to Buyer, if required) and (b) any and all such proceeds received by Buyer (whether from Seller or otherwise) may, in the sole discretion of Buyer, be held by Buyer as collateral security for, and/or then or at any time thereafter may be applied by Buyer against, the Obligations (whether matured or unmatured), such application to be in such order as Buyer shall elect. Any balance of such proceeds remaining after the Obligations shall have been paid in full and this Agreement shall have been terminated shall be paid over to Seller or to whomsoever may be lawfully entitled to receive the same.
Section 1.07Remedies. If an Event of Default shall occur and be continuing, Buyer may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Uniform Commercial Code (including Buyer’s rights to a strict foreclosure under Section 9-620 of the Uniform Commercial Code). Without limiting the generality of the foregoing, Buyer may seek the appointment of a receiver, liquidator, conservator, trustee, or similar official in respect of Seller or any of Seller’s property. Buyer
without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required under this Agreement or by law referred to below) to or upon Seller or any other Person (each and all of which demands, presentments, protests, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Repurchase Assets, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Repurchase Assets or any part thereof (or contract to do any of the foregoing), in one or more parcels or as an entirety at public or private sale or sales, at any exchange, broker’s board or office of Buyer or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Buyer shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Repurchase Assets so sold, free of any right or equity of redemption in Seller, which right or equity is hereby waived or released. Seller further agrees, at Buyer’s request, to assemble the Repurchase Assets and make them available to Buyer at places which Buyer shall reasonably select, whether at Seller’s premises or elsewhere. Buyer shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable (under the circumstances) out-of-pocket costs and expenses of every kind actually incurred therein or incidental to the care or safekeeping of any of the Repurchase Assets or in any way relating to the Repurchase Assets or the rights of Buyer hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as Buyer may elect, and only after such application and after the payment by Buyer of any other amount required or permitted by any provision of law, including Section 9-615 of the Uniform Commercial Code, need Buyer account for the surplus, if any, to Seller. To the extent permitted by applicable law, Seller waives all claims, damages and demands it may acquire against Buyer arising out of the exercise by Buyer of any of its rights hereunder, other than those claims, damages and demands arising from the gross negligence or willful misconduct of Buyer. If any notice of a proposed sale or other disposition of Repurchase Assets shall be required by law, such notice shall be deemed reasonable and proper if given [***]before such sale or other disposition. Seller shall remain liable for any deficiency (plus accrued interest thereon as contemplated herein) if the proceeds of any sale or other disposition of the Repurchase Assets are insufficient to pay the Obligations and the fees and disbursements in amounts reasonable under the circumstances, of any attorneys employed by Buyer to collect such deficiency. Notwithstanding anything to the contrary herein or in any of the other Program Agreements, the remedies set forth in this Section 4.07 concerning any actions with respect to the MSRs arising under or related to any Servicing Contract shall be subject to the Acknowledgment Agreement entered into with Ginnie Mae.
Section 1.08Limitation on Duties Regarding Preservation of Repurchase Assets. Buyer’s duty with respect to the custody, safekeeping and physical preservation of the Repurchase Assets in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as Buyer deals with similar property for its own account. Neither Buyer nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Repurchase Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Repurchase Assets upon the request of Seller or otherwise.
Section 1.09Powers Coupled with an Interest. All authorizations and agencies herein contained with respect to the Repurchase Assets are irrevocable and powers coupled with an interest.
Section 1.10Release of Security Interest. Upon the latest to occur of (a) the repayment to Buyer of all Obligations hereunder, and (b) the occurrence of the Termination Date, Buyer shall
release its security interest in any remaining Repurchase Assets hereunder and shall promptly execute and deliver to Seller such documents or instruments as Seller shall reasonably request to evidence such release.
Section 1.11Reinstatement. All security interests created by this Article IV shall continue to be effective, or be reinstated, as the case may be, if at any time any payment, or any part thereof, of any Obligation of Seller is rescinded or must otherwise be restored or returned by the Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Seller or any substantial part of its property, or otherwise, all as if such release had not been made.
Section 1.12Subordination.
Seller shall not seek in any Insolvency Event of the Issuer to be treated as part of the same class of creditors as Administrative Agent, on behalf of the Buyer, and shall not oppose any pleading or motion by Administrative Agent, on behalf of the Buyer, advocating that Administrative Agent, on behalf of the Buyer, should be treated as a separate class of creditors. Seller acknowledges and agrees that its rights with respect to the Repurchase Assets are and shall continue to be at all times while the obligations are outstanding junior and subordinate to the rights of Administrative Agent, on behalf of the Buyer, under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
Section 1.01Initial Transaction. The obligation of Buyer to enter into Transactions with the Seller hereunder is subject to the satisfaction, immediately prior to or concurrently with the entering into such Transaction, of the condition precedent that Buyer shall have received all of the following items, each of which shall be satisfactory to Buyer and its counsel in form and substance:
(a)Program Agreements and Note. The Program Agreements and Note, in all instances duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver.
(b)Security Interest. Evidence that all other actions necessary or, in the opinion of Buyer, desirable to perfect and protect Buyer’s interest in the Repurchase Assets have been taken, including duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1.
(c)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s certificate of formation, operating agreement and corporate resolutions approving the Program Agreements 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 Agreements.
(d)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Closing Date.
(e)Incumbency Certificate. An incumbency certificate of the corporate secretary of each of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(f)Fees. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before such date.
(g)Acknowledgment Agreement. The Acknowledgment Agreement shall have been duly authorized, executed and delivered by each party thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel, and all conditions precedent to the effectiveness of the Acknowledgment Agreement shall have been satisfied or waived.
Section 1.02All Transactions. The obligation of Buyer to enter into each Transaction pursuant to this Agreement is subject to the following conditions precedent:
(a)Transaction Notice and Asset Schedule. In accordance with Section 2.02, Buyer shall have received from Seller a Transaction Notice with an Asset Schedule that has been updated to include the Note related to a proposed Transaction hereunder on such Business Day.
(b)No Margin Deficit. After giving effect to each new Transaction, the aggregate outstanding amount of the Purchase Price shall not exceed the Asset Value of the Note then in effect.
(c)No Default. No Default or Event of Default exists or shall have occurred and be continuing immediately after giving effect to such new Transaction.
(d)Requirements of Law. Buyer 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 Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions with a Pricing Rate based on Base Rate.
(e)Representations and Warranties. Both immediately prior to the related Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in each Program Agreement shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects, as written).
(f)Note. Buyer shall have received the Note relating to any Purchased Assets, which is in form and substance satisfactory to Buyer in its sole discretion.
(g)Material Adverse Change. None of the following shall have occurred and/or be continuing:
(A)Buyer’s corporate bond rating as calculated by S&P or Moody’s has been lowered or downgraded to a rating below investment grade by S&P or Moody’s;
(B)an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “lending market” for financing debt obligations
secured by mortgage loans or servicing receivables or securities backed by mortgage loans or servicing receivables or an event or events shall have occurred resulting in Buyer not being able to finance the Note through the “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(C)there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement.
(h)Fees. Buyer shall have received payment in full of all fees and Expenses (including any applicable Commitment Fee) which are payable hereunder to Buyer on or before such date.
Section 1.03Closing Subject to Conditions Precedent. The obligation of Buyer to purchase the Note is subject to the satisfaction on or prior to the Closing Date of the following conditions (any or all of which may be waived by Buyer):
(a)Performance by the Issuer and loanDepot. All the terms, covenants, agreements and conditions of the Transaction Documents to be complied with, satisfied, observed and performed by the Issuer, and loanDepot on or before the Closing Date shall have been complied with, satisfied, observed and performed in all material respects.
(b)Representations and Warranties. Each of the representations and warranties of the Issuer and loanDepot made in the Transaction Documents shall be true and correct in all material respects as of the Closing Date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation of warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects).
(c)Officer’s Certificate. The Administrative Agent, Buyer and the Indenture Trustee shall have received in form and substance reasonably satisfactory to the Administrative Agent an officer’s certificate from loanDepot and a certificate of an Authorized Officer of the Issuer, dated the Closing Date, each certifying to the satisfaction of the conditions set forth in the preceding paragraphs (a) and (b), in each case together with incumbency, by-laws, resolutions and good standing.
(d)Opinions of Counsel to the Issuer and loanDepot. Counsel to the Issuer and Seller shall have delivered to the Administrative Agent, Buyer and the Indenture Trustee favorable opinions, dated the Closing Date and satisfactory in form and substance to the Administrative Agent and its counsel, relating to corporate matters, enforceability, securities contract, non-consolidation, Investment Company Act and perfection and an opinion as to which state’s law applies to security interest and perfection matters. In addition to the foregoing, loanDepot, as servicer, shall have caused its counsel to deliver to the Issuer, Buyer, as purchaser of the Note hereunder, the Administrative Agent and the Indenture Trustee an opinion as to certain tax matters dated as of the Closing Date, satisfactory in form and substance to the Administrative Agent, Buyer and their respective counsel.
(e)Officer’s Certificate of Indenture Trustee. The Administrative Agent and Buyer shall have received in form and substance reasonably satisfactory to the Administrative Agent an Officer’s Certificate from the Indenture Trustee, dated the Closing Date, with respect to the Base Indenture, together with incumbency and good standing.
(f)Opinions of Counsel to the Indenture Trustee. Counsel to the Indenture Trustee shall have delivered to the Administrative Agent and Buyer a favorable opinion dated the Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and its counsel related to the enforceability of the Base Indenture.
(g)Opinions of Counsel to the Owner Trustee. Delaware counsel to the Owner Trustee of the Issuer shall have delivered to the Administrative Agent and Buyer favorable opinions regarding the formation, existence and standing of the Issuer and of the Issuer’s execution, authorization and delivery of each of the Transaction Documents to which it is a party and such other matters as the Administrative Agent and Buyer may reasonably request, dated the Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and Buyer and their respective counsel.
(h)Filings and Recordations. The Administrative Agent, Buyer and the Indenture Trustee shall have received evidence reasonably satisfactory to the Administrative Agent of (i) the completion of all recordings, registrations and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence: (A) the assignment by loanDepot, as Seller, to the Issuer of the ownership interest in the “Collateral” (as defined in the PC Repurchase Agreement) conveyed pursuant to the PC Repurchase Agreement and the proceeds thereof and (ii) the completion of all recordings, registrations, and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence the grant of a first priority perfected security interest in the Issuer’s ownership interest in the Collateral in favor of the Indenture Trustee, subject to no Liens prior to the Lien created by the Base Indenture.
(i)Documents. The Administrative Agent, Buyer and the Indenture Trustee shall have received a duly executed counterpart of each of the Transaction Documents, in form acceptable to Buyer, the Note and each and every document or certification delivered by any party in connection with any such Transaction Documents, or the Note, and each such document shall be in full force and effect.
(j)Actions or Proceedings. No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation of, or to invalidate, any of the transactions contemplated by the Transaction Documents the Note and the documents related thereto in any material respect.
(k)Approvals and Consents. All Governmental Actions of all Governmental Authorities required with respect to the transactions contemplated by the Transaction Documents, the Note and the documents related thereto shall have been obtained or made.
(l)Fees, Costs and Expenses. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before the Closing Date, and the fees, costs and expenses payable by the Issuer and loanDepot on or prior to the Closing Date pursuant to this Agreement or any other Transaction Document (including but not limited to any MSR Valuation Agent Fees) shall have been paid in full. External legal costs incurred by Buyer in connection with entering into this Agreement shall not exceed the Legal Expense Cap and all expenses incurred with respect to Buyer’s due diligence review shall not exceed the Diligence Services Expense Cap.
(m)Other Documents. loanDepot shall have furnished to the Administrative Agent, Buyer and the Indenture Trustee such other opinions, information, certificates and documents as the Administrative Agent may reasonably request.
(n)MSR Valuation Agent. loanDepot shall have engaged the MSR Valuation Agent pursuant to an agreement reasonably satisfactory to the Administrative Agent.
(o)Proceedings in Contemplation of Sale of the Note. All actions and proceedings undertaken by the Issuer and loanDepot in connection with the issuance and sale of the Note as herein contemplated shall be satisfactory in all respects to the Administrative Agent, Buyer and their respective counsel.
(p)Advance Rate Reduction Event, Servicer Termination Events, Events of Default and Funding Interruption Events. No Advance Rate Reduction Event, Servicer Termination Event, Event of Default or Funding Interruption Event shall then be occurring.
(q)Satisfaction of Conditions. Each of the Funding Conditions shall have been satisfied.
If any condition specified in this Section 5.03 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by Buyer by notice to loanDepot at any time at or prior to the Closing Date and Buyer shall incur no liability as a result of such termination.
ARTICLE VI
COVENANTS
Seller covenants and agrees that until the payment and satisfaction in full of all Obligations, whether now existing or arising hereafter, shall have occurred:
Section 1.01Litigation. Seller will promptly, and in any event [***] after service of process on any of the following, give to Buyer notice of all litigation, actions, suits, arbitrations, investigations (including any of the foregoing which are threatened or pending) or other legal or arbitrable proceedings affecting Seller or any of its Subsidiaries or affecting any of the Property of any of them before any Governmental Authority that (i) questions or challenges the validity or enforceability of any of the Program Agreements or any action to be taken in connection with the transactions contemplated hereby, (ii) makes a claim individually or in the aggregate in an amount greater than $[***], or (iii) which, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect. Seller will promptly provide notice of any judgment, which with the passage of time, could cause an Event of Default hereunder.
Section 1.02Prohibition of Fundamental Changes. Seller shall not (a) enter into any transaction of merger or consolidation or amalgamation with any Person; (b) liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution); (c) sell, lease or otherwise dispose of, all or substantially all of its assets; or (d) enter into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated.
Section 1.03Sale of Assets. Subject to Section 6.02(c), Seller shall not sell, lease (as lessor) or transfer (as transferor) or otherwise dispose of any property or assets, whether now owned or hereafter acquired, if such sale, lease or transfer would reasonably be expected to have a Material Adverse Effect.
Section 1.04Asset Schedule. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and increases and decreases in the outstanding VFN Principal Balance thereof.
Section 1.05No Adverse Claims. Seller warrants and will defend the right, title and interest of Buyer in and to all Purchased Assets against all adverse claims and demands.
Section 1.06Assignment. 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 Agreements), any of the Purchased Assets or any interest therein, provided that this Section 6.06 shall not prevent any transfer of Purchased Assets in accordance with the Program Agreements.
Section 1.07Security Interest. Seller shall do all things necessary to preserve the Purchased Assets so that they remain subject to a first priority perfected security interest hereunder. Without limiting the foregoing, Seller will comply with all rules, regulations and other laws of any Governmental Authority and cause the Purchased Assets to comply with all applicable rules, regulations and other laws. Seller will not allow any default for which Seller is responsible to occur under any Purchased Assets or any Program Agreement and Seller shall fully perform or cause to be performed when due all of its obligations under any Purchased Assets and any Program Agreement.
Section 1.08Records.
(a)Seller shall collect and maintain or cause to be collected and maintained all Records relating to the Purchased Assets in accordance with industry custom and practice for assets similar to the Purchased Assets, including those maintained pursuant to Section 6.09, and all such Records shall be in Seller’s or Buyer’s possession unless Buyer otherwise approves. Seller will maintain all such Records in good and complete condition in accordance with industry practices for assets similar to the Purchased Assets and preserve them against loss.
(b)For so long as Buyer has an interest in or lien on any Purchased Assets, Seller will hold or cause to be held all related Records in trust for Buyer. Seller shall notify, or cause to be notified, every other party holding any such Records of the interests and liens in favor of Buyer granted hereby.
(c)Upon reasonable advance notice from Buyer, Seller shall (x) make any and all such Records available to Buyer to examine any such Records, either by its own officers or employees, or by agents or contractors, or both, and make copies of all or any portion thereof, and (y) permit Buyer 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.
Section 1.09Books. Seller shall keep or cause to be kept in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Purchased Assets to Buyer.
Section 1.10Approvals. Seller shall maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Agreements, and Seller shall conduct its business strictly in accordance with applicable law.
Section 1.11Insurance. Seller shall maintain or cause to be maintained, at its own expense, insurance coverage as is customary, reasonable and prudent in light of the size and nature of Seller’s business as of any date after the Closing Date. Seller shall be deemed to have complied with this provision if one of its Affiliates has such policy coverage and, by the terms of any such policies, the coverage afforded thereunder extends to Seller. Upon the request of Buyer at any time subsequent to the Closing Date and in no event more than once per calendar year unless an
Event of Default shall have occurred and be continuing, Seller shall cause to be delivered to Buyer, a certification evidencing Seller’s coverage under any such policies.
Section 1.12Material Change in Business. Seller shall not engage to any substantial extent in any line or lines of business activity other than Current Business Operations as of the Closing Date.
Section 1.13Distributions. Following the occurrence and during the continuation of an Event of Default, Seller shall not make any payment 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 equity interest of Seller, whether now or hereafter outstanding, or make any other distribution or dividend in respect of any of the foregoing or to any shareholder or equity owner of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller or any of Seller’s consolidated Subsidiaries, except that, notwithstanding the foregoing, Seller shall be permitted at all times (regardless of whether or not an Event of Default exists) to make Tax Distributions; provided that Seller agrees to cause LD Holdings Group LLC to promptly disburse any such funds for the payment of taxes when due.
Section 1.14Existence; Ginnie Mae Approvals.
(a)Seller shall preserve and maintain its legal existence and all of its material governmental licenses, authorizations, consents and approvals necessary for Seller to conduct its business and to perform its obligations under the Transaction Documents.
(b)Seller shall maintain adequate financial standing, procedures, and experienced personnel necessary for the sound servicing (of mortgage loans of the same types as may from time to time constitute Mortgage Loans and in accordance, in all material respects, with Accepted Servicing Practices and the terms of the Ginnie Mae Contract.
(c)Seller shall comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of Governmental Authorities (including truth in lending, real estate settlement procedures and all environmental laws) if the failure to comply with such requirements would be reasonably likely (either individually or in the aggregate) to have a Material Adverse Effect.
(d)Seller shall maintain its status with Ginnie Mae as an approved issuer, and shall be in good standing with Ginnie Mae in accordance with applicable law and all rules, policies, procedures and standards of Ginnie Mae (collectively, “Ginnie Mae Approvals”).Should Seller, (x) receive written notice of any material default or notice of termination of servicing for cause under the Ginnie Mae Contract, or (y) for any reason, cease to possess all applicable Ginnie Mae Approvals, or should notification from Ginnie Mae or HUD, FHA or VA as described in Section 3.31 be received, Seller shall so notify Buyer in writing within [***].
Section 1.15Change in Organizational Documents. Seller shall not amend, modify or otherwise change any of its Organizational Documents in any material respect, or except any such amendments, modifications or changes or any such new agreements or arrangements that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; provided that Seller shall deliver written notice to Buyer within [***]of any material amendment to its Organizational Documents.
Section 1.16Chief Executive Office; Jurisdiction of Organization. Seller shall not move its chief executive office from the address referred to in Section 3.17 or change its jurisdiction of
organization from the jurisdiction referred to in Section 3.17 unless it shall have provided Buyer at least [***] prior written notice of such change.
Section 1.17Taxes. Seller shall timely file all tax returns that are required to be filed by them and shall timely pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP.
Section 1.18Transactions with Affiliates. Other than the purchase of the Note, Seller will not, directly or indirectly, enter into any transaction, including any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction (a) does not result in a Default hereunder, (b) is in the ordinary course of Seller’s business and (c) is upon fair and reasonable terms no less favorable to Seller than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate, or make a payment that is not otherwise permitted by this Section 6.18 to any Affiliate.
Section 1.19Guarantees. Seller shall not create, incur, assume or suffer to exist any Guarantees, except (i) to the extent reflected in Seller’s financial statements or notes thereto, (ii) to the extent the aggregate Guarantees of Seller do not exceed $[***], or (iii) to the extent such Guarantee is otherwise disclosed to Buyer in writing.
Section 1.20Indebtedness. Seller shall not incur any additional material Indebtedness other than (i) the Existing Indebtedness specified on Exhibit B hereto; (ii) Indebtedness incurred with Buyer or its Affiliates; (iii) Indebtedness incurred in connection with new or existing secured lending facilities and (iv) usual and customary accounts payable for a mortgage company), without the prior written consent of Buyer.
Section 1.21True and Correct Information. All information, reports, exhibits, schedules, financial statements or certificates of Seller, any Affiliate thereof or any of their officers furnished to Buyer hereunder and during Buyer’s diligence of Seller are and will be true and complete in all material respects and do not and shall not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements, information and reports delivered by Seller to Buyer pursuant to this Agreement shall be prepared in accordance with U.S. GAAP, or, if applicable, to SEC filings, the appropriate SEC accounting regulations.
Section 1.22No Pledge. Except as contemplated herein, Seller shall not pledge, grant a security interest or assign any existing or future rights to service any of the Repurchase Assets or pledge or grant to any other Person any security interest in the Note.
Section 1.23Plan Assets. Seller shall not be an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code and Seller shall not use “plan assets” within the meaning of 29 CFR § 2510.3 101, as amended by section 3(42) of ERISA to engage in this Agreement or any Transaction hereunder. Transactions to or with Seller shall not be subject to any state or local statute regulating investments of or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.24Sharing of Information. Seller shall allow Buyer to exchange information related to Seller and the Transactions hereunder with third party lenders, permitted assignees, Participants and credit insurance providers and Seller shall permit each third party lender to share such information with Buyer, but only to the extent such parties agree or are bound by a
professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
Section 1.25Modification of the Base Indenture and Series 2017-VF1 Indenture Supplement. Seller shall not consent with respect to any of the Base Indenture and the Series 2017-VF1 Indenture Supplement related to the Purchased Assets, to (i) the modification, amendment or termination of such the Base Indenture and the Series 2017-VF1 Indenture Supplement, (ii) the waiver of any provision of the Base Indenture and the Series 2017-VF1 Indenture Supplement, or (iii) the resignation of loanDepot as servicer under the Base Indenture and the Series 2017-VF1 Indenture Supplement, or the assignment, transfer, or material delegation of any of its rights or obligations, under such the Base Indenture and the Series 2017-VF1 Indenture Supplement, without the prior written consent of Buyer exercised in Buyer’s sole discretion.
Section 1.26Reporting Requirements.
(a)Seller shall furnish to Buyer (i) promptly (but in no event later than [***]after a Responsible Officer of Seller has actual knowledge thereof), copies of any material and adverse notices (including, without limitation, notices of defaults, breaches, potential defaults or potential breaches) and any material financial information that is not otherwise required to be provided by Seller hereunder which is given to one of Seller’s other lenders, (ii) promptly (but in no event later than [***] after a Responsible Officer of Seller has actual knowledge thereof), notice of the occurrence of (1) any Event of Default hereunder; (2) any Default or other material breach by Seller of any obligation under any Program Agreement or any other contract or contracts, in the aggregate in excess of $[***]to which Seller is a party, or (3) the occurrence of any event or circumstance that such party reasonably expects has resulted in, or will, with the passage of time, result in, a Material Adverse Effect or an Event of Default, and (iii) the following:
(1)as soon as available and in any event within forty (40) calendar days after the end of each calendar month, the unaudited balance sheet of Seller, as at the end of such period and the related unaudited consolidated statements of income for Seller, including changes in shareholders’ equity (or its equivalent) for such period and the portion of the fiscal year through the end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(2)as soon as available and in any event within forty (40) calendar days after the end of each calendar quarter, the unaudited cash flow statements of Seller, as at the end of such period and the portion of the fiscal year through the end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(3)as soon as available and in any event within ninety (90) days after the end of each fiscal year of Seller, the balance sheet of Seller, as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for Seller and changes in shareholders’ equity (or its equivalent) for such year, setting forth in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion and the scope of
audit shall be acceptable to Buyer in its sole discretion, shall have no “going concern” qualification and shall state that said consolidated financial statements or financial statements, as applicable, fairly present the consolidated financial condition or financial condition, as applicable, and results of operations of Seller as at the end of, and for, such fiscal year in accordance with GAAP;
(4)such other prepared statements that Buyer may reasonably request;
(5)from time to time (x) such other information regarding the financial condition, operations, or business of Seller as Buyer may reasonably request and (y) information and documentation reasonably requested by Buyer for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(6)as soon as reasonably possible, and in any event within [***]after a Responsible Officer of Seller has knowledge of the occurrence of any ERISA Event of Termination, stating the particulars of such ERISA Event of Termination in reasonable detail;
(7)as soon as reasonably possible, notice of any of the following events:
a.any material dispute, litigation, investigation, proceeding or suspension between Seller on the one hand, and any Governmental Authority or any Person;
b.any material change in accounting policies or financial reporting practices of Seller;
c.any material issues raised upon examination of Seller or Seller’s facilities by any Governmental Authority;
d.any material change in the Indebtedness of Seller, including any default, renewal, non-renewal, termination, increase in available amount or decrease in available amount related thereto, which notice thereof shall be provided in the Officer’s Compliance Certificate;
e.promptly upon receipt of notice or knowledge of any lien or security interest (other than security interests created hereby or by the other Program Agreements) on, or claim asserted against, any of the Purchased Assets;
f.the filing, recording or assessment of any federal, state or local tax lien against Seller, or any of Seller’s assets, unless such filing, recording or assessment could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect with respect to Seller;
g.[reserved];
h.[reserved];
i.(i) any material penalties, sanctions or charges levied, or threatened to be levied, against Seller or any adverse change or threatened change made in writing in Seller’s Ginnie Mae Approval status, (ii) the commencement of any material non-routine investigation or the institution
of any proceeding or the threat in writing of institution of any proceeding against Seller by any Governmental Authority or any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller or (iii) the commencement of any material investigation, or the institution of any material proceeding or the threat in writing of institution of any material proceeding against Seller by any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller; and
j.(x) any material settlement with, or issuance of a consent order by, any Governmental Authority or (y) any issuance of a consent order by, any Governmental Authority, in the case of clauses (x) or (y), any amounts owed by Seller thereunder exceed an aggregate amount greater than $[***].
(b)Officer’s Certificates. Seller will furnish to Buyer, at the time Seller furnishes each set of financial statements pursuant to Section 6.26(a)(iii)(1), (2) or (3) above, an Officer’s Compliance Certificate of Seller in the form of Exhibit A to the Pricing Side Letter.
(c)Monthly Reporting. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and Additional Balances. Seller shall deliver to Buyer no later than the 25th day of each month (the “Monthly Report Date”) a cumulative Asset Schedule, each of which, when so delivered, shall replace the current Asset Schedule and which may be delivered in electronic form acceptable to Buyer. Each such updated Asset Schedule shall indicate the outstanding VFN Principal Balance of the Note as of the close of the preceding week. As of each Monthly Report Date, Seller hereby certifies, represents and warrants to Buyer that each such updated Asset Schedule is true, complete and correct in all material respects.
(d)Hedging Reports. Seller shall deliver to Buyer a monthly summary hedge report (data elements to be agreed upon by Seller and Buyer).
(e)Other. Seller shall deliver to Buyer any other reports or information reasonably requested by Buyer or as otherwise required pursuant to this Agreement and the Indenture (including, without limitation, all reports and information delivered by the Issuer, the Administrator or the Indenture Trustee relating to the Note). Seller understands and agrees that all reports and information provided to Buyer by or relating to Seller may be disclosed to Buyer’s Affiliates by third party lenders, permitted assignees, Participants, credit insurance providers, any liquidity provider to Buyer and their respective agents and representatives, but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
(f)Regulatory Reporting Compliance. Seller shall, on or before the last Business Day of the [***], beginning with the fiscal year ending in 2023, deliver to Buyer a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers or an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB, or similar review conducted on Seller by its accountants, and such other reports as Seller may prepare relating to its servicing functions as Seller.
Section 1.27Litigation Summary. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide to Buyer a true and correct summary of all material actions,
notices, proceedings and investigations pending with respect to which Seller has received service of process or other form of notice or, to the best of Seller’s knowledge, threatened against it, before any court, administrative or governmental agency or other regulatory body or tribunal.
Section 1.28Material Change in Business. Seller shall not make any material change in the nature of its business as carried on at the Closing Date other than lines of business typical for companies engaged in mortgage or consumer finance.
Section 1.29Hedging. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide a true and correct summary of all interest rate protection agreements entered into or maintained by Seller and a summary of the realized gains or losses of such interest rate protection agreements compared against any change in value of the MSRs.
Section 1.30MSR Valuation. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide to Administrative Agent and Buyer a detailed summary of the Market Value Percentage of MSRs from the most recently delivered Market Value Report.
Section 1.31Ginnie Mae Contract.
(a)Should Seller for any reason cease to possess the Ginnie Mae Approvals, or should notification to Ginnie Mae be required, Seller shall promptly notify Buyer in writing.
(b)Seller shall promptly, and in no event later than [***]after Seller has knowledge thereof, notify Buyer of any Servicer Termination Event or event of default under any Ginnie Mae Contract or its receipt of a notice of actual termination of Seller’s right to service under any Ginnie Mae Contract which evidences an intent to transfer such servicing to a third party.
Section 1.32Trigger Event MSR Asset Sale. Seller shall, within [***], notify Buyer in the event that it has voluntarily relinquished or delivered notice of its intent to sell or transfer Ginnie Mae Contract rights constituting more than [***]% of the aggregate Ginnie Mae Contract rights of Seller with respect to Ginnie Mae.
Section 1.33Amendments. Seller shall not execute any amendments with respect to the Program Agreements without the prior consent of the Buyer.
ARTICLE VII
DEFAULTS/RIGHTS AND REMEDIES OF BUYER UPON DEFAULT
Section 1.01Events of Default. Each of the following events or circumstances shall constitute an “Event of Default”:
(a)Payment Failure. Failure of Seller to (i) make any payment of the Purchase Price beyond the applicable dates on which such payment is due, (ii) make any payment of Price Differential, on a Price Differential Payment Day or on a scheduled Repurchase Date, subject to a [***] cure period (provided that with respect to any payment made on a Repurchase Date that is not a scheduled Repurchase Date, such failure continues for a period of [***] following the earlier of (x) written notice or (y) the date upon which Seller obtained knowledge of such failure), (iii) make any payment (which failure continues for a period of [***], provided that [***]and (y) the date upon which Seller obtained knowledge of such failure) of any other sum which has become due, otherwise, whether by acceleration or otherwise, under the terms of any Program Agreement, or (iv) cure any Margin Deficit when due pursuant to Section 2.05 hereof.
(b)Cross Default. (i) An Event of Default (as defined in the Indenture) has occurred and is continuing under the Indenture or an Event of Default (as defined in the related Other Repurchase Agreement) has occurred and is continuing under any Repurchase Document or (ii) Seller or Affiliates thereof shall be in default under (A) any Nomura Indebtedness, (B) any Transaction Document; (C) any Indebtedness, in the aggregate, in excess of $[***]of Seller or any Affiliate thereof which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness, or (D) any other contract or contracts, in the aggregate in excess of $[***]to which Seller or any Affiliate thereof is a party which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such contract.
(c)Assignment. Assignment or attempted assignment by Seller of this Agreement or any rights hereunder without first obtaining the specific written consent of Buyer, or the granting by Seller of any security interest, lien or other encumbrances on any Purchased Assets to any person other than Buyer.
(d)Insolvency. An Act of Insolvency shall have occurred with respect to Seller.
(e)Material Adverse Change. Any material adverse change in the Property, business, financial condition or operations of Seller or any of its Affiliates shall occur, in each case as determined by Buyer in its sole good faith discretion, or any other condition shall exist which, in Buyer’s sole good faith discretion, constitutes a material impairment of Seller’s ability to perform its obligations under this Agreement or any other Program Agreement.
(f)Immediate Breach of Representation or Covenant or Obligation. A breach by Seller of any of the representations, warranties or covenants or obligations set forth in [***]of this Agreement.
(g)Additional Breach of Representation or Covenant. A breach by Seller of any other representation, warranty or covenant set forth in this Agreement (and not otherwise specified in Section 7.01(f) above), if such breach is not cured within [***].
(h)Representations. Except as set forth in clause (i) below, any representation or warranty made or deemed made by Seller herein or in any other Program Agreement (after giving effect to any qualification as to materiality set forth therein, if any) shall prove to have been false and misleading when made or any Monthly Report or Officer’s Compliance Certificate delivered hereunder shall prove to have been false and misleading in any material respect when made.
(i)1940 Act. The representation and warranty in Section 3.16 shall be false or misleading at any time.
(j)Change in Control. The occurrence of a Change in Control.
(k)Failure to Transfer. Seller fails to transfer a material portion of the Purchased Assets to Buyer on the applicable Purchase Date (provided Buyer has tendered the related Purchase Price).
(l)Judgment. A final judgment or judgments for the payment of money in excess of $[***]shall be rendered against Seller or any of its Affiliates by one or more courts, administrative tribunals or other bodies having jurisdiction and the same shall not be satisfied,
discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within [***] from the date of entry thereof.
(m)Government Action. Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority 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 Affiliate thereof, or shall have taken any action to displace the management of Seller or any Affiliate thereof or to curtail its authority in the conduct of the business of Seller or any Affiliate thereof, or takes any action in the nature of enforcement to remove, limit or restrict the approval of Seller or Affiliate as an issuer, buyer or a seller/servicer of mortgage loans or securities backed thereby, and such action provided for in this subparagraph (l) shall not have been discontinued or stayed within [***].
(n)Inability to Perform. A Responsible Officer of Seller or Guarantor shall admit its inability to, or its intention not to, perform any of Seller’s Obligations or Guarantor’s Obligations hereunder or the Guaranty.
(o)Security Interest. This Agreement shall for any reason cease to create a valid, first priority security interest in any material portion of the Repurchase Assets purported to be covered hereby.
(p)Financial Statements. Seller’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of Seller as a “going concern” or a reference of similar import.
(q)Validity of Agreement. For any reason, this Agreement at any time shall not be in full force and effect in all material respects or shall not be enforceable in all material respects in accordance with its terms, or any Lien granted pursuant thereto shall fail to be perfected and of first priority, or Seller or any Affiliate of Seller shall seek to disaffirm, terminate, limit, reduce or repudiate its obligations hereunder or Guarantor’s obligations under the Guaranty.
(r)Guarantor Breach. A breach by Guarantor of any representation, warranty or covenant set forth in the Guaranty or any other Program Agreement, any “event of default” by Guarantor under the Guaranty, any repudiation of the Guaranty by the Guarantor or if the Guaranty is not enforceable against the Guarantor.
(s)Servicing. Greater than [***]% of Seller’s servicing portfolio consisting of Ginnie Mae loans is seized or terminated in any single event or series of events arising from the same or substantially similar circumstances or occurrences.
Section 1.02No Waiver. An Event of Default shall be deemed to be continuing unless expressly waived by Buyer in writing.
Section 1.03Due and Payable. Upon the occurrence of any Event of Default which has not been waived in writing by Buyer, Administrative Agent may (and at the direction of Buyer shall), by notice to Seller, declare all Obligations to be immediately due and payable, and any obligation of Buyer to enter into Transactions with Seller shall thereupon immediately terminate. Upon such declaration, the Obligations shall become immediately due and payable, both as to Purchase Price outstanding and Price Differential, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein or other evidence of such Obligations to the contrary notwithstanding, except with respect to any Event of Default set forth in Section 7.01(d), in which case all Obligations shall automatically become immediately due and payable without the necessity of any notice or other demand, and any
obligation of Buyer to enter into Transactions with Seller shall immediately terminate. Administrative Agent, on behalf of the Buyer, may enforce payment of the same and exercise any or all of the rights, powers and remedies possessed by Administrative Agent, on behalf of the Buyer, whether under this Agreement or any other Program Agreement or afforded by applicable law.
Section 1.04Fees. The remedies provided for herein are cumulative and are not exclusive of any other remedies provided by law. In addition to the Seller’s obligation contained in Section 3 of the Pricing Side Letter, Seller agrees to pay to Administrative Agent and Buyer reasonable attorneys’ fees and reasonable legal expenses incurred in enforcing Administrative Agent’s and Buyer’s rights, powers and remedies under this Agreement and each other Program Agreement.
Section 1.05Default Rate. Without regard to whether Buyer has exercised any other rights or remedies hereunder, if an Event of Default shall have occurred and be continuing, the applicable Margin in respect of the Pricing Rate shall be increased, to the extent permitted by law, as set forth in clause (ii) of the definition of “Margin”.
ARTICLE VIII
ENTIRE AGREEMENT; AMENDMENTS
AND WAIVERS; SEPARATE ACTIONS BY BUYER
Section 1.01Entire Agreement; Amendments. This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties hereto and supersedes any and all prior or contemporaneous agreements, written or oral, as to the matters contained herein, and no modification or waiver of any provision hereof or any of the Program Agreements, nor consent to the departure by Seller therefrom, shall be effective unless the same is in writing, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which it is given. This Agreement may not be amended, modified or supplemented except by writing executed by Seller, Administrative Agent and Buyer. The Administrative Agent shall comply with its obligations under Section 6(d) of the Acknowledgement Agreement; and in addition, the Seller shall deliver to Ginnie Mae a copy of any executed amendment to this Agreement promptly after execution thereof.
Section 1.02Waivers, Separate Actions by Buyer. Any amendment or waiver effected in accordance with this Article VIII shall be binding upon Buyer and Seller; and Buyer’s failure to insist upon the strict performance of any term, condition or other provision of this Agreement or any of the Program Agreements, or of Buyer (or Administrative Agent on behalf of the Buyer) to exercise any right or remedy hereunder or thereunder, shall not constitute a waiver by Buyer (or Administrative Agent on behalf of the Buyer) of any such term, condition or other provision or Default or Event of Default in connection therewith, nor shall a single or partial exercise of any such right or remedy preclude any other or future exercise, or the exercise of any other right or remedy; and any waiver of any such term, condition or other provision or of any such Default or Event of Default shall not affect or alter this Agreement or any of the Program Agreements, and each and every term, condition and other provision of this Agreement and the Program Agreements shall, in such event, continue in full force and effect and shall be operative with respect to any other then existing or subsequent Default or Event of Default in connection therewith. The occurrence of an Event of Default hereunder or under any of the Program Agreements, the occurrence of a Purchase Price Percentage Reduction Event under this Agreement or the occurrence of an Advance Rate Reduction Event under the Indenture shall be deemed to be continuing unless and until waived in writing by Buyer.
ARTICLE IX
SUCCESSORS AND ASSIGNS
Section 1.01Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, any portion thereof, or any interest therein. Seller shall not have the right to assign all or any part of this Agreement or any interest herein without the prior written consent of Buyer.
Section 1.02Participations and Transfers.
(a)Buyer may in accordance with applicable law at any time sell to one or more banks or other entities (“Participants”) participating interests in all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements; provided that (i) if such sale is to a Competitor Buyer shall obtain Seller’s written consent on or prior to such sale; provided, further, Seller’s consent with respect to a sale to a Competitor shall not be required in the event that (A) such Competitor is an Affiliate of Buyer or (B) an Event of Default has occurred and is continuing, (ii) each such sale shall represent an interest in a Transaction in a Purchase Price of $[***] or more and (iii) other than with respect to a participating interest consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such sale will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. In the event of any such sale by Buyer of participating interests to a Participant, Buyer shall remain a party to the Transaction for all purposes under this Agreement and the Program Agreements and Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement and the Program Agreements. Buyer shall provide notice to Ginnie Mae within [***]of any participation made in accordance with this Section 9.02(a). For the avoidance of doubt, the terms and provisions of Section 9.02(b) shall not restrict or otherwise qualify the terms and provisions set forth in this Section 9.02(a).
(b)Buyer may in accordance with applicable law at any time assign, pledge, hypothecate, or otherwise transfer to one or more banks, financial institutions, investment companies, investment funds or any other Person (each, a “Transferee”) all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements so long as a Noteholder of an MBS Advance VFN continues to own interests in the outstanding Series of VFNs in an aggregate amount that equals or exceeds the amount required to avoid an Early Amortization Event under any outstanding Series of Term Notes; provided, that (i) Seller has consented to such assignment, pledge, hypothecation, or other transfer (such consent not to be unreasonably withheld, conditioned or delayed); provided, however, Seller’s consent shall not be required in the event that (A) such Transferee is an Affiliate of Buyer or (B) an Event of Default has occurred; (ii) absent an Event of Default, Buyer shall give at least [***] prior notice thereof to Seller; and (iii) that each such sale shall represent an interest in the Transactions in an aggregate Purchase Price of $[***]or more; (iv) such Transferee shall have also acquired the same percentage interest in each other Series of Variable Funding Notes, unless such Transferee is an Affiliate of Buyer or unless Ginnie Mae has consented in writing to waive this requirement and (v) other than with respect to an assignment, pledge, hypothecation or transfer consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer received an opinion of a nationally recognized tax
counsel experienced in such matters that such assignment, pledge, hypothecation or transfer will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. Buyer shall provide notice to Ginnie Mae within [***] of any assignment, pledge, hypothecation or transfer made in accordance with this Section 9.02(b). In the event of any such assignment, pledge, hypothecation or transfer by Buyer of Buyer’s rights under this Agreement and the other Program Agreements, Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement. Buyer (acting as agent for Seller) shall maintain at its address referred to in Section 11.05 a register (the “Register”) for the recordation of the names and addresses of Transferees, and the Purchase Price outstanding and Price Differential in the Transactions held by each thereof. The entries in the Register shall be prima facie conclusive and binding, and Seller may treat each Person whose name is recorded in the Register as the owner of the Transactions recorded therein for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register.
(c)All actions taken by Buyer pursuant to this Section 9.02 shall be at the expense of Buyer. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller.
(d)Notwithstanding any other provision of this Agreement to the contrary, Buyer may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of Seller; provided that no such pledge or grant shall release Buyer from its obligations under this Agreement; provided, further, that no such pledge or grant shall be to a Competitor of Seller.
Section 1.03Buyer and Participant Register.
(a)Subject to acceptance and recording thereof pursuant to paragraph (b) of this Section 9.03, from and after the effective date specified in each assignment and acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and acceptance, have the rights and obligations of Buyer under this Agreement. Any assignment or transfer by Buyer of rights or obligations under this Agreement that does not comply with this Section 9.03 shall be treated for purposes of this Agreement as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 9.02.
(b)Seller or an agent of Seller shall maintain a register (the “Transaction Register”) on which it will record the Transactions entered into hereunder, and each assignment and acceptance and participation. The Transaction Register shall include the name and address of Buyer (including all assignees, successors and Participants), and the Purchase Price of the Transactions entered into by Buyer. Failure to make any such recordation, or any error in such recordation shall not affect Seller’s obligations in respect of such Transactions. If Buyer sells a participation in any Transaction, it shall provide Seller, or maintain as agent of Seller, the information described in this paragraph and permit Seller to review such information as reasonably needed for Seller to comply with its obligations under this Agreement or under any applicable law or governmental regulation or procedure.
ARTICLE X
AGENT PROVISIONS
Section 1.01Appointment of Administrative Agent.
(a)Buyer hereby irrevocably appoints Nomura Corporate Funding Americas, LLC, as Administrative Agent hereunder and under the other Program Agreements, and Buyer hereby authorizes Nomura Corporate Funding Americas, LLC, in such capacity, to act as its agent in accordance with the terms hereof. The provisions of this Article X are solely for the benefit of Administrative Agent and Buyer, and Seller shall not have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, Administrative Agent shall act solely as an agent of Buyer and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Seller.
(b)The Buyer may, to the extent permitted by applicable law and the Program Agreements, and with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld), by notice in writing to such Person remove for cause such Person as Administrative Agent and, with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld) and in accordance with the terms of the other Program Agreements, appoint a successor Administrative Agent. If no such successor Administrative Agent shall have been so appointed by the Buyer and shall have accepted such appointment within [***] (or such earlier day as shall be agreed by the Buyer and Seller), then such removal shall nonetheless become effective in accordance with such notice on the date [***] (or such earlier day as shall be agreed by the Buyer and Seller) after the Administrative Agent’s receipt of such notice of removal.
Section 1.02Powers and Duties. Buyer irrevocably authorizes Administrative Agent to take such action on Buyer’s behalf and to exercise such powers, rights and remedies hereunder and under the other Program Agreements as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Program Agreements. Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Administrative Agent shall not have, by reason hereof or any of the other Program Agreements, a fiduciary relationship in respect of Buyer; and nothing herein or any of the other Program Agreements, expressed or implied, is intended to or shall be so construed as to impose upon Administrative Agent any obligations in respect hereof or any of the other Program Agreements except as expressly set forth herein or therein.
Section 1.03Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or in connection with this Agreement or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including, without limitation, counsel to the Administrative Agent), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Buyer and shall not be responsible to any Buyer for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Transaction Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (iv) shall not be responsible to any Buyer for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have
made any representation or warranty regarding the existence, value or collectability of the Collateral, nor shall the Administrative Agent be responsible or liable to the Buyers for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Buyer shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement, the Notes or any of the other Transaction Documents in its own interests as a Buyer or otherwise.
Section 1.04Administrative Agent to Act as Buyer. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Administrative Agent in its individual capacity as Buyer. Administrative Agent shall have the same rights and powers as any other Buyer and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Buyer” shall, unless the context clearly otherwise indicates, include Administrative Agent in its individual capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Seller or any of their Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Seller for services in connection herewith and otherwise without having to account for the same to Buyer.
Section 1.05Buyer’s Representations, Warranties and Acknowledgment.
(a)Buyer represents and warrants that it has made its own independent investigation of the financial condition and affairs of Seller in connection with the Transactions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Seller. Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Buyer or to provide Buyer with any credit or other information with respect thereto, whether coming into its possession before the making of the Transactions or at any time or times thereafter, and Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Buyer.
(b)Unless otherwise agreed to by Buyer and Seller, Buyer, by delivering its signature page to this Agreement and entering into Transactions with Seller hereunder shall be deemed to have acknowledged receipt of, and consented to and approved, each Program Agreement and each other document required to be approved by Administrative Agent or Buyer, as applicable on the Closing Date or such other funding date. Buyer acknowledges that by agreeing to remit its Commitment Share of the Purchase Price on any Purchase Date, Buyer agrees that all conditions precedent to entering into such Transaction have been met on such Purchase Date.
Section 1.06Right to Indemnity.
(a)Buyer hereby agrees to indemnify Administrative Agent, any Affiliate of the Administrative Agent, and their respective directors, officers, agents and employees (each, an “Indemnitee Agent Party”), and hold such Indemnitee Agent Party harmless to the extent that such Indemnitee Agent Party shall not have been reimbursed by Seller (to the extent required in accordance with the terms of this Agreement), from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (except to the extent that it has resulted from the gross negligence or willful misconduct of such Indemnitee Agent Party) which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Program Agreements or otherwise in its capacity as an Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Program Agreements, including
amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished.
(b)Promptly after receipt by the Indemnitee Agent Party of notice of the commencement of any action regarding which a claim in respect thereof is to be made against Buyer, the Indemnitee Agent Party shall notify Buyer in writing of the commencement thereof, but the omission to so notify will not relieve Buyer from any liability which they may have under this Agreement or from any other liability which they may have, except to the extent that they have been prejudiced in any material respect by the failure by the Indemnitee Agent Party to provide prompt notice. Upon receipt of notice by Buyer, Buyer will be entitled to participate in the related action, and they may elect by written notice delivered to the Indemnitee Agent Party to assume the defense thereof. Upon receipt of notice by the Indemnitee Agent Party of the Buyer’s election to assume the defense of such action, Buyer shall not be liable to the Indemnitee Agent Party for legal expenses incurred by such party in connection with the defense thereof unless (i) Buyer shall not have employed counsel to represent the Indemnitee Agent Party within a reasonable time after receipt of notice of commencement of the action, (ii) Buyer have authorized in writing the employment of separate counsel for the Indemnitee Agent Party, or (iii) the Indemnitee Agent Party has previously engaged counsel and reasonable legal expenses are necessary (a) to transfer the file to the Buyer’s designated counsel, or (b) to pursue immediate legal action necessary to preserve the legal rights or defenses of the Indemnitee Agent Party as against a third party claimant, and such legal action must occur prior to said transfer. Buyer shall not settle any suit or claim without the Indemnitee Agent Party’s written consent unless such settlement solely involves the payment of money by parties other than the Indemnitee Agent Party and includes unconditional release of the Indemnitee Agent Party from all liability on all matters that are the subject of such proceeding or claim.
Section 1.07Successor Administrative Agent.
(a)Administrative Agent may resign at any time by giving [***] prior written notice thereof to Buyer. Upon any such notice of resignation, Buyer shall have the right to appoint a successor administrative agent; provided, that the retiring Administrative Agent shall continue to hold the Collateral and all liens and security interest therein for the benefit of Buyer until a successor administrative agent is appointed.
(b)Upon the acceptance of any appointment as Administrative Agent hereunder by a successor administrative agent, that successor administrative agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to such successor administrative agent all sums and items of Collateral held under the Program Agreements, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor administrative agent under the Program Agreements, and (ii) execute and deliver to such successor administrative agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor administrative agent of the security interests created under the Program Agreements, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X and Section 11.02 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.
(c)Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to an Affiliate without written notice to, the Buyer in accordance with the terms of the Program Agreements; provided, that Seller and Buyer may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Seller and Buyer of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Program Agreements.
Section 1.08Delegation of Duties. Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Program Agreement by or through (i) any one or more of its Affiliates or (ii) any one or more sub agents appointed by Administrative Agent with the prior consent of the Buyer. Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates and their respective officers, partners, directors, trustees, employees and agents. The exculpatory provisions of this Article X shall apply to any such Affiliate or sub agent and to such other parties as are listed above provided that notwithstanding this Section 10.08, no such delegation relieves the Administrative Agent of its duties or obligations under this Agreement.
Section 1.09Right to Realize on Collateral. Anything contained in any of the Program Agreements to the contrary notwithstanding, Seller, Administrative Agent and each Buyer hereby agree that (i) no Buyer shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Buyer in accordance with the terms hereof and all powers, rights and remedies under the Program Agreements may be exercised solely by Administrative Agent, and (ii) in the event of a foreclosure by Administrative Agent on any of the Collateral pursuant to a public or private sale, Administrative Agent or any Buyer may be the purchaser of any or all of such Collateral at any such sale and Administrative Agent, as agent for and representative of Buyer (but not any Buyer in its or their respective individual capacities unless Buyer shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Administrative Agent at such sale.
Section 1.10Erroneous Payments.
(a) If the Administrative Agent notifies Buyer or any Person who has received funds on behalf of Buyer (any Buyer or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to Buyer or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and Buyer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than [***] thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative
Agent in same day funds at the greater of the overnight federal funds rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Administrative Agent to the contrary.
(b)Buyer hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to Buyer under any Transaction Document, or otherwise payable or distributable by the Administrative Agent to Buyer from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(c)For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor in accordance with immediately preceding clause (a), (i) the Administrative Agent may elect, in its sole discretion on written notice to Buyer, that all rights and claims of Buyer with respect to the Repurchase Price or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Repurchase Price”) shall immediately vest in the Administrative Agent upon such election; after such election, the Administrative Agent (x) may reflect its ownership interest in the related Repurchase Price in a principal amount equal to the Corresponding Repurchase Price on the Asset Schedule, and (y) upon [***]written notice to Buyer, may sell such Repurchase Price (or portion thereof) in respect of the Corresponding Repurchase Price, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by Buyer shall be reduced by the net proceeds of the sale of such Repurchase Price (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against Buyer (and/or against any Payment Recipient that receives funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold such Repurchase Price, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of Buyer with respect to the Erroneous Payment Return Deficiency. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (i) will reduce the Committed Amount of any Buyer and such Committed Amount shall remain available in accordance with the terms of this Agreement.
(d)The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Seller, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from Seller for the purpose of making such Erroneous Payment.
(e)No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(f)Each party’s obligations, agreements and waivers under this Section 10.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or
obligations by, or the replacement of, Buyer, the termination of the obligations set forth in Section 2.01 with respect to the Committed Amount and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Transaction Document.
ARTICLE XI
MISCELLANEOUS
Section 1.01Survival. This Agreement and the other Program Agreements and all covenants, agreements, representations and warranties herein and therein and in the certificates delivered pursuant hereto and thereto, shall survive the entering into of the Transaction and shall continue in full force and effect so long as any Obligations are outstanding and unpaid.
Section 1.02Indemnification. Seller shall, and hereby agrees to, indemnify, defend and hold harmless Administrative Agent, Buyer, any Affiliate of Administrative Agent and Buyer and their respective directors, officers, agents, employees and counsel from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (including any wire fraud, or data or systems intrusion) (except to the extent that it is finally judicially determined to have resulted from their own gross negligence or willful misconduct) as a consequence of, or arising out of or by reason of any litigation, investigations, claims or proceedings which arise out of or are in any way related to, (i) this Agreement or any other Program Agreement, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any other Program Agreement or any transaction contemplated hereby or thereby, (ii) Seller’s servicing practices or procedures; (iii) any actual or proposed use by Seller of the proceeds of the Purchase Price, and (iv) any Default, Event of Default or any other breach by Seller of any of the provisions of this Agreement or any other Program Agreement, including , amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If and to the extent that any Obligations are unenforceable for any reason, Seller hereby agrees to make the maximum contribution to the payment and satisfaction of such Obligations which is permissible under applicable law. Seller’s obligations set forth in this Section 11.02 shall survive any termination of this Agreement and each other Program Agreement and the payment in full of the Obligations, and are in addition to, and not in substitution of, any other of its obligations set forth in this Agreement or otherwise. In addition, Seller shall, upon demand, pay to Buyer or Administrative Agent, as applicable, all costs and Expenses (including the reasonable fees and disbursements of counsel) paid or incurred by Buyer or Administrative Agent in (i) enforcing or defending its rights under or in respect of this Agreement or any other Program Agreement, (ii) collecting the Purchase Price outstanding, (iii) foreclosing or otherwise collecting upon any Repurchase Assets and (iv) obtaining any legal, accounting or other advice in connection with any of the foregoing. This Section shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Section 1.03Nonliability of Buyer. The parties hereto agree that, notwithstanding any affiliation that may exist between Seller and Buyer, the relationship between Seller and Buyer shall be solely that of arms-length participants. Buyer shall not have any fiduciary responsibilities to Seller. Seller (i) agrees that Buyer shall not have any liability to Seller (whether sounding in tort, contract or otherwise) for losses suffered by Seller in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by this agreement, the other loan documents or any other agreement entered into in connection herewith or any act, omission or event occurring in connection therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such losses were the result of acts or omissions on the part
of Buyer constituting gross negligence or willful misconduct and (ii) waives, releases and agrees not to sue upon any claim against Buyer (whether sounding in tort, contract or otherwise), except a claim based upon gross negligence or willful misconduct. Whether or not such damages are related to a claim that is subject to such waiver and whether or not such waiver is effective, neither Buyer nor Administrative Agent shall have any liability with respect to, and Seller hereby waives, releases and agrees not to sue upon any claim for, any special, indirect, consequential or punitive damages suffered by Seller in connection with, arising out of, or in any way related to the transactions contemplated or the relationship established by this Agreement, the other loan documents or any other agreement entered into in connection herewith or therewith or any act, omission or event occurring in connection herewith or therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such damages were the result of acts or omissions on the part of Buyer, as applicable, constituting willful misconduct or gross negligence.
Section 1.04Governing Law; Submission to Jurisdiction; Waivers.
(a) This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller acknowledges that the obligations of Buyer hereunder or otherwise are not the subject of any recourse to, any direct or indirect parent or other Affiliate of Buyer. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b)EACH OF THE PARTIES HERETO AND THE BUYER, BY THEIR ACCEPTANCE OF THE NOTE, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i)SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii)CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii)AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(iv)WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY.
Section 1.05Notices. Any and all notices (with the exception of Transaction Notices, which shall be delivered via facsimile only), statements, demands or other communications hereunder may be given by a party to the other by mail, email, facsimile, messenger or otherwise to the address specified below, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and requests hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence.
If to Seller:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: General Counsel
Email: [***]
If to Buyer:
For Transaction Notice:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: Operations
Email: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
Email: [***]
If to Administrative Agent:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: Operations
Email: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
Email: [***]
Section 1.06Severability. 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. In case any provision in or obligation under this Agreement or any other Program Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 1.07Section Headings. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement.
Section 1.08Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterparty of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterparty of this Agreement. The parties agree that this Agreement, any addendum 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 the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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 providers with appropriate document access tracking, electronic signature tracking and document retention as may be approved by the Administrative Agent in its sole discretion.
Section 1.09Periodic Due Diligence Review. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller and the MSR and Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agree that upon reasonable (but no less than [***]) prior written notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours, and in a manner that does not unreasonably interfere with the ordinary conduct of Seller’s business, to examine, inspect, and make copies and extracts of, any and all documents, records, agreements, instruments or information relating to such MSR and Purchased Assets in the possession or under the control of Seller. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the MSR and Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into a Transaction related to any Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets related to a Transaction. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including, but not limited to, providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such MSR and Purchased Assets in the possession, or under the control, of Seller.
Section 1.10Hypothecation or Pledge of Repurchase Assets. Buyer shall have free and unrestricted use of all Repurchase Assets and nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with all or a portion of the Repurchase Assets or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating all or a portion of the Repurchase Assets; provided that prior to an Event of Default, such pledge, repledge, transfer, hypothecation or rehypothecation is treated as a financing or hedging transaction for U.S. federal income tax purposes or a pro rata interest in all payments due to Buyer under this Agreement; provided, further that other than with respect to a pro rata interest in all payments due to Buyer under this Agreement and prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such repurchase transaction, pledge, repledge, transfer, hypothecation or rehypothecation will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes.
Section 1.11Confidentiality .
(a)This Agreement and its terms, provisions, supplements and amendments, and notices hereunder, are proprietary to Buyer or Seller, as applicable and shall be held by each party hereto, as applicable in strict confidence and shall not be disclosed to any third party without the written consent of Buyer or Seller, except for (i) disclosure to Buyer’s or Seller’s
direct and indirect Affiliates and Subsidiaries, attorneys, accountants insurance consultants, insurers, agents or financing sources (“Representatives”), but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence, (ii) disclosure to any assignee, prospective assignee, participant or prospective participant, including their respective Representatives, which is not prohibited from being an assignee or participant and which agrees to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein or are otherwise bound by a professional obligation of confidentiality, or (iii) disclosure required by law, rule, regulation or order of a court or other regulatory body. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Program Agreements, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Seller may not disclose the name of or identifying information with respect to Buyer or any pricing terms (including the Pricing Rate, the Purchase Price Percentage, the Purchase Price and the Commitment Fee) or other nonpublic business or financial information (including any sublimits) that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of Buyer.
(b)Notwithstanding anything in this Agreement to the contrary, Seller shall comply with all applicable local, state and federal laws, including all privacy and data protection law, rules and regulations that are applicable to the Repurchase Assets and/or any applicable terms of this Agreement (the “Confidential Information”). Seller understands 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 Seller 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 shall 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 Buyer or any Affiliate of Buyer which Seller holds, (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 represents and warrants that it has implemented appropriate measures to meet the objectives of Section 501(b) of the GLB Act and of the applicable standards adopted pursuant thereto, as now or hereafter in effect. Upon request, Seller will provide evidence reasonably satisfactory to allow Buyer to confirm that the providing party has satisfied its obligations as required under this Section 11.11. Without limitation, this may include Buyer’s review of audits, summaries of test results, and other equivalent evaluations of Seller. Seller shall notify Buyer immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of nonpublic personal information of the customers and consumers of Buyer or any Affiliate of Buyer provided directly to Seller by Buyer or such Affiliate. Seller shall provide such notice to Buyer by personal delivery, by facsimile with confirmation of receipt, or by overnight courier with confirmation of receipt to the applicable requesting individual.
Section 1.12Set-off; Netting. In addition to any rights and remedies of Buyer hereunder and by law, upon Buyer’s exercise against Seller of its contractual right as set forth in section 555 and 559 of the Bankruptcy Code to liquidate, terminate, or accelerate such contractual right, Buyer and any of 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, to aggregate, offset or net out any termination value, payment amount, or other transfer obligation arising under or in
connection with set-off, foreclose, net and appropriate and apply against any Obligation hereunder or other contractual obligation, transaction, confirmation, or agreement set forth in section 555 and 559 of the Bankruptcy Code under any other financing facility between the Seller and the Buyer, whenever arising, from Seller to Buyer or any of its Affiliates including (i) any and all deposit, securities or other trust or custodial accounts maintained for the Seller by the Buyer or its Affiliates and any related deposits (general or special, time or demand, provisional or final), in any currency, or other property (including security entitlements) now or hereafter credited to or held in any such account or otherwise held, or carried by or through, or subject to the control of the Buyer or its applicable Affiliates or agent thereof in connection with any Obligation hereunder or other obligation, transaction, confirmation, or agreement under any other financing facility, whenever arising, whether fully paid or otherwise, (ii) all accounts, chattel paper, commodity accounts, commodity contracts, documents, general intangibles, instruments, investment property, letter-of-credit rights, and securities held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document, (iii) any other obligation (including to return funds to Seller), credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by or due from Buyer or any Affiliate thereof to or for the credit or the account of Seller, and (iv) all proceeds of or distributions on any of the foregoing, in each case solely to the extent held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document. The rights of the Buyer and its Affiliates contained herein are in addition to any and all recoupment rights that each such party may have at law or in equity against the Seller under any Transaction Document or any other financing agreement. For the avoidance of doubt, the Affiliates of the Buyer shall be third party beneficiaries with respect to the terms and provisions of this Section 11.12. Buyer agrees promptly to notify Seller after any such set off or netting and application made by Buyer; provided, that, the failure to give such notice shall not affect the validity of such set off, netting and its application.
Section 1.13Intent.
(a)The parties recognize that each Transaction is a “master netting agreement” as that term is defined in Section 101 of Title 11 of the United States Code, as amended and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code, as amended and that all payments hereunder are deemed “margin payments” or “settlement payments” as defined in Title 11 of the United States Code.
(b)It is understood that either party’s right to liquidate Purchased Assets delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 7.03 is a contractual right to liquidate such Transaction as described in Sections 555 and Section 561 of Title 11 of the United States Code, as amended.
(c)The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in 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 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)This Agreement is intended to be a “securities contract,” within the meaning of Section 555 under the Bankruptcy Code, and a “master netting agreement,” (including but not limited to the agreements set forth in Section 11.12 hereof) within the meaning of Section 561 under the Bankruptcy Code.
(f)It is the intention of the parties that, for U.S. federal income tax purposes and for accounting purposes, each Transaction constitute a financing with Seller incurring an indebtedness, and that Seller be (except to the extent that Buyer shall have exercised its remedies following an Event of Default) the owner of the Purchased Assets for such purposes. Unless prohibited by applicable law that becomes effective after the date of this Agreement, Seller and Buyer shall treat the Transactions as described in the preceding sentence (including on any and all filings with any U.S. federal, state, or local taxing authority and agree not to take any action inconsistent with such treatment).
IN WITNESS WHEREOF, Seller and Buyer have caused this Master Repurchase Agreement to be executed and delivered by their duly authorized officers or trustees as of the date first above written.
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Buyer
By: /s/Sanil Patel
Name: Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust –Series 2017-VF1 Repurchase Agreement]
LEGAL02/43457575v11
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Administrative Agent
By: /s/ Sanil Patel
Name: Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust –Series 2017-VF1 Repurchase Agreement]
LEGAL02/43457575v11
LOANDEPOT.COM, LLC,
as Seller
By: /s/ David Hayes
Name: David Hayes
Title: CFO
[loanDepot GMSR Master Trust –Series 2017-VF1 Repurchase Agreement]
LEGAL02/43457575v11
SCHEDULE 1
[***]
Schedule 1-1
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SCHEDULE 2
[***]
Schedule 1-1
LEGAL02/43457575v11
SCHEDULE 3
[***]
Schedule 1-2
LEGAL02/43457575v11
SCHEDULE 4
[***]
Exhibit A-3
LEGAL02/43457575v11
EXHIBIT A
[***]
Exhibit A-4
LEGAL02/43457575v11
Exhibit A-5
LEGAL02/43457575v11
EXHIBIT B
[***]
Exhibit B-1
LEGAL02/43457575v11
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
MASTER REPURCHASE AGREEMENT
among
NOMURA CORPORATE FUNDING AMERICAS, LLC, as administrative agent (“Administrative Agent”)
and
NOMURA CORPORATE FUNDING AMERICAS, LLC, as buyer (“Buyer”)
and
LOANDEPOT.COM, LLC, as seller (“Seller”)
Dated as of January 25, 2024
LOANDEPOT GMSR MASTER TRUST
MSR COLLATERALIZED NOTES,
SERIES 2021-SAVF1
| | |
060958.0000168 EMF_US 80292184v11 |
TABLE OF CONTENTS
Page
Schedule 1 – Responsible Officers of Seller
Schedule 2 – Asset Schedule
Schedule 3 – Buyer Account
Schedule 4 – List of Competitors
Exhibit A – Form of Transaction Notice
Exhibit B – Existing Indebtedness
MASTER REPURCHASE AGREEMENT
This Master Repurchase Agreement (“Agreement”) is made as of January 25, 2024, among NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as administrative agent (the “Administrative Agent”), NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as buyer (“Buyer”), and LOANDEPOT.COM, LLC (“loanDepot”), as seller (“Seller”). Capitalized terms have the meanings specified in Sections 1.01 and 1.02.
W I T N E S S E T H :
WHEREAS, pursuant to the Base Indenture and the Series 2021-SAVF1 Indenture Supplement, loanDepot GMSR Master Trust (the “Issuer”) has duly authorized the issuance of a Series of Notes, as a single Class of Variable Funding Notes, known as the “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-SAVF1” (the “Note”), which has been transferred to NCFA;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Program Agreements; and
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Program Agreements.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01Certain Defined Terms. Capitalized terms used herein shall have the indicated meanings:
“1933 Act” means the Securities Act of 1933, as amended from time to time.
“1934 Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Act of Insolvency” means, with respect to any Person, (a) the filing of a petition by such Person commencing, or authorizing the commencement of any case or proceeding, or the voluntary joining by such Person of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or suffering by such Person of any such petition or proceeding to be commenced by another which is consented to, not timely contested or results in entry of an order for relief; (b) the seeking of the appointment of a receiver, trustee, custodian or similar official for such Person or any substantial part of the property of such Person; (c) the appointment of a receiver, conservator, or manager for such Person by any governmental agency or authority having the jurisdiction to do so; (d) the making or offering by such Person of a composition with its creditors or a general assignment for the benefit of creditors; (e) the admission by such Person of its inability to pay its debts or discharge its obligations as they become due or mature; or (f) that any governmental
authority or agency or any person, agency or entity acting or purporting to act under governmental authority 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 such Person, or shall have taken any action to displace the management of such Person or to curtail its authority in the conduct of the business of such Person.
“Additional Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment.
“Administrative Agent” has the meaning given to such term in the preamble to this Agreement.
“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; provided, however, any Permitted Holder or any joint venture for which Seller or LD Holdings Group LLC owns less than fifty percent (50%) of the equity interests therein shall not be considered an Affiliate of Seller or any of its Subsidiaries for purposes of this Agreement or any other Program Agreement.
“Agreement” has the meaning given to such term in the preamble to this Agreement.
“Anti-Corruption Laws” means any applicable U.S. law, regulation, or rule related to combating corruption or bribery, including, but not limited to, the United States Foreign Corruption Practices Act of 1977, as amended.
“Anti-Money Laundering Laws” means any applicable U.S. law, regulation, or rule related to combating money laundering, suspicious transactions or terrorist financing, including, but not limited to, the U.S. Bank Secrecy Act of 1986 (31 U.S.C. Section 5301 et seq.) and all regulations issued pursuant to it, and the USA Patriot Act (in each case to the extent applicable to the parties and to this Agreement).
“Applicable Law” means all applicable U.S. federal, state and local provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts of Governmental Authorities and all orders and decrees of all courts and arbitrators including, without limitation, the Anti-Corruption Laws and the Anti-Money Laundering Laws.
“Asset Schedule” means Schedule 2 attached hereto, which lists the Note, as such schedule shall be updated from time to time to reflect any increases or decreases in the VFN Principal Balance thereof in accordance with Section 2.13.
“Asset Value” means with respect to any Purchased Asset, the sum of the Asset Value Base and the Asset Value Incremental 1.
“Asset Value Base” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Base, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Asset Value Incremental 1” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Incremental 1, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Bankruptcy Code” means the United States Bankruptcy Code of 1978, as amended from time to time.
“Base Indenture” means the Third Amended and Restated Base Indenture, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, Seller, as administrator and as servicer, NCFA, as administrative agent, and the Credit Manager, including the schedules and exhibits thereto.
“Base Rate” has the meaning given to such term in the Pricing Side Letter.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that[***].
“Benchmark Adjustment” means, for any day, the spread adjustment for such Price Differential Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Buyer of purchasing or maintaining Purchased Assets or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Buyer or Administrative
Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Business Day” means any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, the State of California, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
“Buyer” means NCFA, together with its successors, and any assignee of and Participant or Transferee in the Transaction.
“Buyer Account” means the account identified on Schedule 3 hereto.
“Capital” means any and all shares, units, interests, membership interests, limited liability company interests, participations, partnership interests, rights or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, any Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any of the foregoing.
“Change in Control” means any of the following hall occur without the prior written consent of the Administrative Agent:
(1)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 Securities Exchange Act of 1934, as amended), 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 Securities Exchange Act of 1934, as amended) 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;
(2)the sale, transfer, or other disposition of all or substantially all of Seller’s or Guarantor’s assets (excluding any such action taken in connection with any securitization transaction);
(3)Seller or Guarantor enters into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated;
(4)any transaction or event as a result of which the Guarantor ceases to indirectly own and control, [***]of the Capital Stock of the Seller.
“Closing Date” means January 25, 2024.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means the obligation of Buyer to enter into Transactions with Seller with an aggregate outstanding Purchase Price at any one time not to exceed the Committed Amount.
“Commitment Fee” has the meaning assigned to such term in the Pricing Side Letter to the Series 2017-VF1 Repurchase Agreement.
“Commitment Period” means the period from and including the Effective Date to but not including the Termination Date or such earlier date on which the Commitment shall have terminated pursuant to this Agreement.
“Committed Amount” has the meaning assigned to such term in the Pricing Side Letter to the Series 2017-VF1 Repurchase Agreement.
“Competitor” means (a) any Person that is a direct competitor of the Seller listed on Schedule 4 hereto, which may be updated from time to time following the written request of the Seller to the extent consented to in writing by the Buyer (which consent shall not be unreasonably withheld) or (b) wholly-owned Subsidiary of such Person.
“Confidential Information” has the meaning set forth in Section 10.11(b).
“Control”, “Controlling” or “Controlled” means the possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Credit Manager” means Pentalpha Surveillance LLC and any successor thereto in such capacity.
“Default” means an event, condition or default that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Diligence Services Expense Cap” shall have the meaning set forth in the Pricing Side Letter.
“Division” means, with respect to any Person that is a limited liability company organized under the laws of the State of Delaware that any such Person (a) divides into two or more Persons (whether or not the original Person or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware, including Section 18-217 of the Delaware Limited Liability Company Act.
“Dollars” and “$” means dollars in lawful currency of the United States of America.
“Effective Date” shall have the meaning set forth in the preamble.
“EO13224” has the meaning set forth in Section 3.25.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any corporation or trade or business that, together with Seller is treated as a single employer under section 414(b) or (c) of the Code or solely for
purposes of section 302 of ERISA and section 412 of the Code is treated as single employer described in section 414 of the Code.
“ERISA Event of Termination” means with respect to Seller (i) with respect to any Plan, a reportable event, as defined in section 4043 of ERISA, as to which the PBGC has not by regulation waived the requirement of section 4043(a) of ERISA that it be notified with [***]of the occurrence of such event, or (ii) the withdrawal of Seller or any ERISA Affiliate thereof from a Plan during a plan year in which it is a substantial employer, as defined in section 4001(a)(2) of ERISA, or (iii) the failure by Seller or any ERISA Affiliate thereof to meet the minimum funding standard of section 412 of the Code or section 302 of ERISA with respect to any Plan, including the failure to make on or before its due date a required installment under section 412(m) of the Code (or Section 430(j) of the Code as amended by the Pension Protection Act) or section 302(e) of ERISA (or section 303(j) of ERISA, as amended by the Pension Protection Act), or (iv) the distribution under section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate thereof to terminate any plan, or (v) the failure to meet requirements of Section 436 of the Code resulting in the loss of qualified status under section 401(a)(29) of the Code, or (vi) the institution by the PBGC of proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vii) the receipt by Seller or any ERISA Affiliate thereof of a notice from a Multiemployer Plan that action of the type described in the previous clause (vi) has been taken by the PBGC with respect to such Multiemployer Plan, or (viii) any event or circumstance exists which may reasonably be expected to constitute grounds for Seller or any ERISA Affiliate thereof to incur liability under Title IV of ERISA or under sections 412(b) or 430(k) of the Code with respect to any Plan.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Buyer or other recipient of any payment hereunder or required to be withheld or deducted from a payment to such Buyer or such other recipient: (a) Taxes based on (or measured by) net income or net profits, franchise Taxes and branch profits Taxes that are imposed on a Buyer or other recipient of any payment hereunder as a result of (i) 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) a present or former connection between such Buyer or other recipient and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof (other than connections arising from such Buyer or other recipient 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 under this Agreement or any Program Agreement, or sold or assigned an interest in any Purchased Mortgage Loan); (b) any Tax imposed on a Buyer or other recipient of a payment hereunder that is attributable to such Buyer’s or other recipient’s failure to comply with relevant requirements set forth in Section 2.11(e); (c) any withholding Tax that is imposed on amounts payable to or for the account of such Buyer or other recipient of a payment hereunder pursuant to a law in effect on the date such person becomes a party to or under this Agreement, or such person changes its lending office, except in each case to the extent that amounts with respect to Taxes were payable either to such person’s assignor immediately before such person became a party hereto or to such person immediately before it changed its lending office; and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Indebtedness” has the meaning specified in Section 3.22.
“Expenses” means all present and future expenses reasonably incurred by or on behalf of Buyer in connection with the negotiation, execution or enforcement of this Agreement
or any of the other Program Agreements and any amendment, supplement or other modification or waiver related hereto or thereto, whether incurred heretofore or hereafter, which expenses shall include the reasonable and documented cost of title, lien, judgment and other record searches; reasonable and documented attorneys’ fees; any ongoing audits or due diligence costs in connection with valuation, entering into Transactions or determining whether a Margin Deficit may exist; and costs of preparing and recording any UCC financing statements or other filings necessary to perfect the security interest created hereby.
“FATCA” Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code, or any U.S. or non-U.S. fiscal or regulatory legislation, guidance, notes, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
“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.
“GAAP” means U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of Seller and its subsidiaries; provided, that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
“GLB Act” has the meaning set forth in Section 10.11(b).
“Governmental Actions” means any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions over Seller or Buyer, as applicable.
“Governmental Rules” means any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.
“Guarantor” means LD Holdings Group LLC, a Delaware limited liability company, its successors in interest and assigns.
“Guaranty” means that certain Guaranty of the Guarantor made in favor of Buyer, dated as of January 25, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Hsieh Investors” means each of [***], JLSSAA Family Trust, 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.
“Indebtedness” has the meaning set forth in the Pricing Side Letter.
“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 Seller under any Program Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
“Indenture” means the Base Indenture, together with the Series 2021-SAVF1 Indenture Supplement thereto.
“Indenture Trustee” means Citibank, N.A., its permitted successors and assigns.
“Issuer” has the meaning given to such term in the recitals to this Agreement.
“Laws” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority.
“Legal Expense Cap” has the meaning assigned to the term in the Pricing Side Letter.
“Lien” means, with respect to any property or asset of any Person (a) any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property or asset or (b) the interest of a vendor or lessor arising out of the acquisition of or agreement to acquire such property or asset under any conditional sale agreement, lease purchase agreement or other title retention agreement.
“loanDepot” has the meaning given to such term in the recitals to this Agreement.
“Margin” has the meaning assigned to the term in the Pricing Side Letter.
“Margin Call” has the meaning set forth in Section 2.05(a).
“Margin Deadlines” has the meaning set forth in Section 2.05(b).
“Margin Deficit” has the meaning set forth in Section 2.05(a).
“Market Value” means, with respect to the Note as of any date of determination, and without duplication, the fair market value of the Note on such date as reasonably determined by Buyer (or an Affiliate thereof).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets or condition (financial or otherwise) of Seller or any Affiliate that is a party to any Program Agreement taken as a whole; (b) a material impairment of the ability of Seller or any Affiliate that is a party to any Program Agreement to perform under any Program Agreement and to avoid any Event of Default; (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Agreement against Seller or any Affiliate that is a party to any Program Agreement or (d) a material adverse effect upon the existence, perfection, priority or enforceability of Buyer’s security interest in a material portion of the Repurchase Assets.
“Maximum Purchase Price” has the meaning assigned to the term in the Pricing Side Letter.
“Moody’s” means Moody’s Investors Service, Inc. or any successors thereto.
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been or are required to be made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
“NCFA” has the meaning given to such term in the preamble to this Agreement.
“Nomura Indebtedness” means [***].
“Non-Recourse Debt” means liabilities for which the assets securing such obligations are the only source of repayment, subject to customary, non-recourse carve-outs. For the avoidance of doubt, Non-Recourse Debt shall include securitizations that meet the foregoing criteria.
“Note” has the meaning given to such term in the recitals to this Agreement.
“Notice” or “Notices” means all requests, demands and other communications, in writing (including facsimile transmissions and e-mails), sent by overnight delivery service, facsimile transmission, electronic transmission or hand-delivery to the intended recipient at the address specified in Section 10.05 or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.
“Obligations” means (a) all of Seller’s indebtedness, obligations to pay the outstanding principal balance of the Purchase Price, together with interest thereon on the Termination Date, outstanding interest due on each Price Differential Payment Date, and other obligations and liabilities, to Administrative Agent, to Buyer or their respective Affiliates arising under, or in connection with, the Program Agreements, whether now existing or hereafter arising; (b) any and all sums reasonably incurred and paid by Buyer or on behalf of Buyer in order to preserve any Repurchase 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 this definition, the reasonable expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Repurchase Asset, or of any exercise by Buyer of its rights under the Program Agreements, including reasonable attorneys’ fees and disbursements and court costs; and (d) all of Seller’s indemnity obligations to Buyer pursuant to the Program Agreements.
“OFAC” has the meaning set forth in Section 3.25.
“Officer’s Compliance Certificate” has the meaning assigned to such term in the Pricing Side Letter.
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent as the forward-looking one-month term rate based on SOFR, as published by the CME Team SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any Seller Party.
“Organizational Documents” means the corporate charter and bylaws, the articles of organization and operating agreement and the partnership certificate and partnership agreement, as applicable of a Person.
“Other Repurchase Agreements” means the Series 2021-PIAVF1 Repurchase Agreement and the Series 2017-VF1 Repurchase Agreement.
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Program Agreement.
“Participant” has the meaning set forth in Section 9.02(a).
“Participation Agreement” means the Third Amended and Restated GMSR Participation Agreement, dated as of January 25, 2024, between loanDepot, as company, and loanDepot, as initial participant.
“Parthenon Investors” means each of [***] and each of their respective affiliates.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“PC Repurchase Agreement” means the Third Amended and Restated Master Repurchase Agreement, dated as of January 25, 2024, between the Issuer and Seller, as amended, restated, supplemented or otherwise modified from time to time.
“Pension Protection Act” means the Pension Protection Act of 2006, as amended from time to time.
“Permitted Holders” means any of the Hsieh Investors and the Parthenon Investors.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“Plan” means an employee benefit or other plan established or maintained by any Seller or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
“Price Differential” has the meaning set forth in the Pricing Side Letter.
“Price Differential Base” has the meaning set forth in the Pricing Side Letter.
“Price Differential Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Price Differential Payment Date” means, for as long as any Obligations shall remain owing by Seller to Buyer, each Payment Date.
“Price Differential Period” means, the period from and including a Price Differential Payment Date, up to but excluding the next Price Differential Payment Date.
“Price Differential Statement Date” has the meaning set forth in Section 2.04.
“Pricing Rate” means with respect to each Purchased Asset, the sum of (a) with respect to the Purchase Price Base, the Pricing Rate Base; and (b) with respect to the Purchase Price Incremental 1, the Pricing Rate Incremental 1.
“Pricing Rate Base” has the meaning set forth in the Pricing Side Letter.
“Pricing Rate Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Pricing Side Letter” means the pricing side letter, dated as of January 25, 2024, between Buyer and Seller as amended, restated, supplemented or otherwise modified from time to time.
“Primary Repurchase Assets” has the meaning set forth in Section 4.02(a).
“Proceeds” means “proceeds” as defined in Section 9-102(a)(64) of the UCC.
“Program Agreements” means this Agreement, the Pricing Side Letter, the Guaranty, the Base Indenture, the PC Repurchase Agreement, the Participation Agreement and the Series 2021-SAVF1 Indenture Supplement.
“Prohibited Person” has the meaning set forth in Section 3.25.
“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, subject to the satisfaction of the conditions precedent set forth in Article V, each Funding Date (as defined in the Indenture) on which a Transaction is entered into by Buyer pursuant to Section 2.02 or such other mutually agreed upon date as more particularly set forth in the related Transaction Notice.
“Purchase Price” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Total” has the meaning set forth in the Pricing Side Letter.
“Purchased Assets” means, collectively, the Note and all outstanding Additional Balances together with the Repurchase Assets related to such Note and Additional Balances transferred by Seller to Buyer in a Transaction hereunder, as listed on the related Asset Schedule attached to the related Transaction Notice.
“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 the Purchased Assets.
“Register” has the meaning set forth in Section 9.02(b).
“Regulations T, U and X” shall mean Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented an in effect from time to time.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Repurchase Date” means the earlier of (i) the Termination Date or (ii) the date requested by Seller on which the Repurchase Price is paid pursuant to Section 2.03.
“Repurchase Documents” means any or all of the “Program Agreements” as defined in each Other Repurchase Agreement.
“Repurchase Price” means, with respect to any Purchased Asset, the price at which Purchased Assets are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price plus the accrued but unpaid Price Differential, plus any related fees or any indemnification amounts allocable to the repurchase of such Purchased Assets or release of such Purchased Asset, plus any other amounts due and payable hereunder with respect to such Purchased Asset, as of the date of such determination.
“Repurchase Rights” has the meaning set forth in Section 4.02(c).
“Request for Certification” means a notice sent to Buyer reflecting the sale of the Note to Buyer.
“Requirement of Law” means, with respect to any Person, any law, treaty, rule or regulation or determination of an arbitrator, a court or other Governmental Authority, 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 as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer or treasurer of such Person. The Responsible Officers of Seller as of the Closing Date are listed on Schedule 1 hereto.
“Sanctions” shall have the meaning set forth in Section 3.34.
“Sanctioned Jurisdiction” shall have the meaning set forth in Section 3.34.
“SAVF1 Funding Conditions” with respect to the Series 2021-SAVF1 Notes and any Funding Date, the following conditions: [***].
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Seller” has the meaning assigned to such term in the preamble to this Agreement and includes loanDepot’s permitted successors and assigns.
“Seller Termination Option” means (a) Buyer has or incurred or shall incur costs in connection with those matters provided for in Section 2.10 or 2.11 and (b) Buyer requests that Seller reimburse Buyer for those costs in connection therewith.
“Series 2017-VF1 Pricing Side Letter” means the Series 2017-VF1 Pricing Side Letter, dated as of January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2017-VF1 Repurchase Agreement” means the Series 2017-VF1 Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2021-PIAVF1 Repurchase Agreement” means the Series 2021-PIAVF1 Repurchase Agreement, to be dated on or after January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time, that may be entered into after the date hereof with respect to Series 2021-PIAVF1 Notes.
“Series 2021-SAVF1 Indenture Supplement” means the Amended and Restated Series 2021-SAVF1 Indenture Supplement, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, loanDepot, as administrator and as servicer, and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“SOFR” means a rate per annum equal to the secured overnight financing rate published for such day 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.
“Subordinated Pledge Assets” has the meaning set forth in Section 4.02(e).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, 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.
“Tax Distributions” means distributions by the Seller for the purpose of enabling LD Holdings Group LLC to make Tax Distributions, as defined and set forth in the limited liability company agreement of LD Holdings Group LLC.
“Taxes” means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings (including backup withholding), assessments, fees or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned to such term in the Pricing Side Letter.
“Transaction” means a transaction pursuant to which Seller transfers a Note or increases in the value thereof, as applicable, to Buyer against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer such Note or any interest therein, as applicable, back to Seller at a date certain or on demand, against the transfer of funds by Seller.
“Transaction Notice” has the meaning assigned to such term in Section 2.02(a).
“Transaction Register” has the meaning assigned to such term in Section 9.03(b).
“Transferee” has the meaning set forth in Section 9.02(b).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect on the Closing Date in the State of New York or the Uniform Commercial Code as in effect in the applicable jurisdiction.
Section 1.02Other Defined Terms.
(a)Any capitalized terms used and not defined herein shall have the meaning set forth in the Base Indenture or the Series 2021-SAVF1 Indenture Supplement, as applicable.
(b)The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or” and the term “including” is not limiting. All references to Sections, subsections, Articles and Exhibits shall be to Sections, subsections, and Articles of, and Exhibits to, this Agreement unless otherwise specifically provided.
(c) Reference to and the definition of any document (including this Agreement) shall be deemed a reference to such document as it may be amended, restated, supplemented or otherwise modified from time to time;
(d)In the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein the words “commencing on” mean “commencing on and including,” the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”
ARTICLE II
GENERAL TERMS
Section 1.01Transactions. Subject to the terms and conditions hereof, prior to the Termination Date, Buyer agrees to enter into Transactions with Seller for a Purchase Price outstanding at any one time not to exceed the lesser of (i) the Maximum Purchase Price and (ii) the Asset Value. During the term of this Agreement, Seller may request Transactions (and during the Commitment Period, Seller may utilize the Commitment by requesting Transactions), Seller may pay the Repurchase Price in whole or in part at any time during such period without penalty, and additional Transactions may be entered into in accordance with the terms and conditions hereof. Buyer’s obligation to enter into Transactions pursuant to the terms of this Agreement shall terminate on the Termination Date. Notwithstanding the foregoing, Buyer shall have no commitment or obligation to enter into Transactions in connection with the Note to the extent the Purchase Price of such Transaction exceeds the Committed Amount. With respect to each
Transaction, the Administrative Agent shall allocate such Transaction such that the Buyer in connection with the Purchase Price Base pays such amount and the Buyer in connection with the Purpose Price Incremental 1 pays such amount, as applicable, and, in which case, the Administrative Agent shall own the Purchased Asset subject to such Transaction, for the benefit of the purchasing Buyers (as the case may be) subject to the terms set forth herein. The sum of the aggregate outstanding Purchase Price Base and Purchase Price Incremental 2 shall not exceed the Maximum Purchase Price.
Section 1.02Procedure for Entering into Transactions.
(a)Seller may enter into Transactions with Buyer under this Agreement on any Purchase Date; provided, that Seller shall not request to enter into a Transaction with Buyer more than [***]; provided, further, that Seller shall have given Buyer irrevocable notice (each, a “Transaction Notice”), which notice (i) shall be substantially in the form of Exhibit A, (ii) [***] prior to the related Purchase Date, and (iii) shall specify the requested information as detailed in the Transaction Notice; provided, however, that Seller is prohibited from submitting a Transaction Notice [***]prior to the expected receipt of the MSR Valuation Agent’s monthly Market Value Report. Each Transaction Notice on any Purchase Date shall be in an amount equal to at least $[***].
(b)If Seller shall deliver to Buyer a Transaction Notice that satisfies the requirements of Section 2.02(a), Buyer will notify Seller of its intent to remit the requested Purchase Price [***]prior to the requested Purchase Date. If all applicable conditions precedent set forth in Article V have been satisfied on or prior to the Purchase Date, then subject to the foregoing, on the Purchase Date, Buyer shall remit the amount of the requested Purchase Price in U.S. Dollars and in immediately available funds to the account of Seller specified in Schedule 5 to the Base Indenture.
(c)Reserved.
(d)Upon entering into each Transaction hereunder, the Asset Schedule shall be automatically updated and replaced with the Asset Schedule attached to the related Transaction Notice.
Section 1.03Repurchase; Payment of Repurchase Price.
(a)Seller hereby promises to repurchase the Purchased Assets and pay all outstanding Obligations on the Termination Date.
(b)By notifying Buyer in writing [***], Seller shall be permitted, at its option, to prepay, subject to Section 2.12, the Purchase Price in whole or in part at any time, together with accrued and unpaid interest on the amount so prepaid.
(c)With respect to any Purchased Asset, Administrative Agent shall allocate any Repurchase Price in respect thereof (x) prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1; and (y) on and after an Event of Default, first to the Buyers of the Purchase Price Base until all Obligations in respect of the Purchase Price Base are reduced to zero, and second to the Purchase Price Incremental 1 until all Obligations in respect of the Purchase Price Incremental 1 are reduced to zero. With respect to any Purchased Asset, Administrative Agent shall allocate any Purchase Price Percentage Reduction event prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1.
Section 1.04Price Differential. On each Price Differential Payment Date, Seller hereby promises to pay to Buyer all accrued and unpaid Price Differential on the Transactions, as invoiced by Buyer to Seller [***] (the “Price Differential Statement Date”); provided, that on each Price Differential Payment Date prior to the occurrence and continuation of an Event of Default, the estimated Price Differential owed hereunder shall be subject to a true-up of the amount determined by Buyer and delivered to the Seller [***]. Prior to the occurrence and continuance of an Event of Default, the Administrative Agent shall apply all payments of Price Differential in respect of any Purchased Asset pro rata among the Price Differential Base and the Price Differential Incremental 1. On and after an Event of Default, any application of Price Differential will first be attributed to the Price Differential Base then due and owning until reduced to zero, and second to the Price Differential Incremental 1 then due and owning until reduced to zero.
If Buyer fails to deliver such statement on the Price Differential Statement Date, on such Price Differential Payment Date Seller shall pay the amount which Seller calculates as the Price Differential due and upon delivery of the statement, Seller shall remit to Buyer any shortfall, or Buyer shall refund to Seller any excess, in the Price Differential paid. Price Differential shall accrue each day on the Purchase Price at a rate per annum equal to the applicable pricing rate. The Price Differential shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.05Margin Maintenance.
(a)If at any time the aggregate outstanding amount of the Purchase Price of the Note is greater than the related Asset Value (such excess, a “Margin Deficit”), then Buyer may by notice to Seller require Seller to transfer to Buyer cash in an amount at least equal to the Margin Deficit (such requirement, a “Margin Call”).
(b)Notice delivered pursuant to Section 2.05(a) may be given by any written or electronic means. With respect to a Margin Call, any notice given [***]. With respect to a Margin Call, any notice given [***]. The foregoing time requirements for satisfaction of a Margin Call are referred to as the “Margin Deadlines”. The failure of Buyer, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
(c)In the event that a Margin Deficit exists, Buyer may retain any funds received by it to which Seller would otherwise be entitled hereunder, which funds (i) may be held by Buyer against the related Margin Deficit or (ii) may be applied by Buyer against the Purchase Price. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 2.05.
Section 1.06Payment Procedure. Seller absolutely, unconditionally, and irrevocably, shall make, or cause to be made, all payments required to be made by Seller hereunder. Seller shall deposit or cause to be deposited all amounts constituting collection, payments and proceeds of the Note (including all fees and proceeds of sale to a third party) to the Buyer Account.
Section 1.07Application of Payments.
(a)On each Price Differential Payment Date prior to the occurrence of an Event of Default, all amounts deposited into the Buyer Account from and after the immediately preceding Price Differential Payment Date (or the Closing Date in connection with the initial Price
Differential Payment Date), or received by Buyer from the Issuer in the Buyer’s capacity as VFN Noteholder, shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price outstanding to satisfy any Margin Deficit due and owing in accordance with the terms and priorities of this Agreement;
(iii)third, ratably to the payment of all other costs and fees payable to Buyer pursuant to this Agreement; and
(iv)fourth, any remainder to Seller.
(b)Notwithstanding the preceding provisions, if an Event of Default shall have occurred hereunder, all funds related to the Note shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price until reduced to zero in accordance with the terms and priorities of this Agreement;
(iii)third, to payment of all other costs and fees payable to Buyer pursuant to this Agreement;
(iv)fourth, to the payment of any other Obligations in accordance with the terms and priorities of this Agreement; and
(v)fifth, any remainder to Seller.
Section 1.08Use of Purchase Price and Transaction Requests. The Purchase Price shall be used by Seller to satisfy its obligations under the Indenture and for general limited liability company purposes.
Section 1.09Recourse. Notwithstanding anything else to the contrary contained or implied herein or in any other Program Agreement, Buyer shall have full, unlimited recourse against Seller and its assets in order to satisfy the Obligations.
Section 1.10Requirements of Law.
(a)If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of trust and trust agreement or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Closing Date:
(i)shall subject Buyer to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii)shall impose, modify or hold any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of
Buyer which is not otherwise included in the determination of the Price Differential hereunder; or
(iii)shall impose on Buyer any other condition (other than Taxes); and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of entering, continuing or maintaining this Agreement or any other Program Agreement, the Transactions or to reduce any amount due or owing hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as calculated by Buyer in good faith as will compensate Buyer for such increased cost or reduced amount receivable.
(b)If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation Controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the Closing Date shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall promptly pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction.
(c)If Buyer becomes entitled to claim any additional amounts pursuant to this Section 2.10, it shall promptly notify Seller of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this Section 2.10 submitted by Buyer to Seller shall be conclusive in the absence of manifest error.
Section 1.11Taxes.
(a)Any and all payments by or on behalf of Seller under or in respect of this Agreement or any other Program Agreements to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, unless required by law. If Seller shall be required under any applicable Requirement of Law (as determined in the good faith discretion of the applicable withholding agent) to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Program Agreements to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) to the extent the withheld or deducted Tax is an Indemnified Tax or Other Tax, the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 2.11) such Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)In addition, Seller hereby agrees to pay any Other Taxes.
(c)Seller hereby agrees to indemnify Buyer for any Indemnified Taxes or Other Taxes imposed on Administrative Agent or Buyer (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.11 and any liability including penalties, additions to tax, interest and expenses arising therefrom or with respect thereto). The indemnity by Seller provided for in this Section 2.11 shall apply and be
made whether or not the Indemnified Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by Seller under the indemnity set forth in this Section 2.11(c) shall be paid [***] from the date on which Buyer makes written demand therefor.
(d)Without prejudice to the survival of any other agreement of the Seller hereunder, each party’s obligations contained in this Section 2.11 shall survive the termination of this Agreement and the other Program Agreements. Nothing contained in Section 2.10 or this Section 2.11 shall require any Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.
(e)Administrative Agent shall and shall cause each Buyer to deliver to the Seller, at the time or times reasonably requested by the Seller, such properly completed and executed documentation reasonably requested by the Seller as will permit payments made hereunder to be made without withholding or at a reduced rate of withholding. In addition, Administrative Agent shall and shall cause each Buyer, if reasonably requested by Seller, to deliver such other documentation prescribed by applicable law or reasonably requested by the Seller as will enable the Seller to determine whether or not Administrative Agent or such Buyer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 2.11, the completion, execution and submission of such documentation (other than such documentation in Section 2.11(e)(A), (B) and (C) below) shall not be required if in a Buyer’s judgment such completion, execution or submission would subject such Buyer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Buyer. Without limiting the generality of the foregoing, Administrative Agent shall and shall cause a Buyer to deliver to the Seller, to the extent legally entitled to do so.
(A)in the case of a Buyer or Buyer assignee or participant which is a “U.S. Person” as defined in section 7701(a)(30) of the Code, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 certifying that it is not subject to U.S. federal backup withholding tax;
(B)in the case of a Buyer or Buyer assignee or participant which is not a “U.S. Person” as defined in Code section 7701(a)(30): (I) a properly completed and executed IRS Form W-8BEN, W-8BEN-E or W-8ECI, as appropriate, evidencing entitlement to a zero percent or reduced rate of U.S. federal income tax withholding on any payments made hereunder, (II) in the case of such non-U.S. Person claiming exemption from the withholding of U.S. federal income tax under Code sections 871(h) or 881(c) with respect to payments of “portfolio interest,” a duly executed certificate (a “U.S. Tax Compliance Certificate”) to the effect that such non-U.S. Person is not (x) a “bank” within the meaning of Code section 881(c)(3)(A), (y) a “10 percent shareholder” of Seller or affiliate thereof, within the meaning of Code section 881(c)(3)(B), or (z) a “controlled foreign corporation” described in Code section 881(c)(3)(C), (III) to the extent such non-U.S. person is not the beneficial owner, executed originals 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 such non-U.S. person is a partnership and one or more direct or indirect partners of such non-U.S. person are claiming the portfolio interest exemption, such non-U.S. person may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner, and (IV) executed originals of any other form or supplementary documentation prescribed by law as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by law to permit Seller to determine the withholding or deduction required to be made.
(C)if a payment made to a Buyer or Buyer assignee or participant under this Agreement would be subject to U.S. federal withholding tax imposed by FATCA if such Buyer or assignee or participant 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), Administrative Agent on behalf of such Buyer or assignee or participant shall deliver to the Seller at the time or times prescribed by law and at such time or times reasonably requested by the Seller 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 Seller as may be necessary for the Seller to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 11(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
The applicable IRS forms referred to above shall be delivered by Administrative Agent on behalf of each applicable Buyer or Buyer assignee or participant on or prior to the date on which such person becomes a Buyer or Buyer assignee or participant under this Agreement, as the case may be, and upon the obsolescence or invalidity of any IRS form previously delivered by it hereunder.
Section 1.12Indemnity. Without limiting, and in addition to, the provisions of Section 10.02, Seller agrees to indemnify the Buyer and to hold Buyer harmless from any loss or expense that Buyer may sustain or incur as a consequence of (i) a default by Seller in payment when due of the Repurchase Price or Price Differential or (ii) a default by Seller in making any prepayment of Repurchase Price after Seller has given a notice thereof in accordance with Section 2.03.
Section 1.13Changes in VFN Principal Balance. Seller shall deliver to Buyer a copy of the VFN Note Balance Adjustment Request that is delivered under the Indenture reflecting any increase or decrease in the Collateral Value. If the Collateral Value has increased, and all the Funding Conditions required pursuant to Section 5.02 hereof and the Indenture have been satisfied, then upon approval in writing by Buyer of such increase in the VFN Principal Balance, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated as set forth in the related Transaction Notice in accordance with Section 2.02. Buyer may fund such increases pursuant to Section 2.01. To the extent the Collateral Value has decreased, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated to reflect any adjustment or pay down of the VFN Principal Balance pursuant to the Indenture.
Section 1.14Commitment Fee. Seller shall pay the Commitment Fee as specified in the Series 2017-VF1 Pricing Side Letter. Such payments shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at such account designated in writing by Buyer.
Section 1.15Termination.
(a)Notwithstanding anything to the contrary set forth herein, if a Seller Termination Option occurs, Seller may, upon [***] prior written notice of such event, upon payment of the applicable Repurchase Price and satisfaction of the other termination conditions set forth in the Indenture, terminate this Agreement and the Termination Date shall be deemed to have occurred (upon the expiration of such [***]).
(b)In the event that a Seller Termination Option as described in clause (a) of the definition thereof has occurred and Seller has notified Buyer in writing of its option to terminate this Agreement, Buyer shall have the right to withdraw such request for payment within [***] of
Seller’s notice of its exercise of the Seller Termination Option and Seller shall no longer have the right to terminate this Agreement.
(c)For the avoidance of doubt, Seller shall remain responsible for all costs actually incurred by Buyer pursuant to Sections 2.10 and 2.11.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer as of the Closing Date, the Effective Date and each Purchase Date for any Transaction that:
Section 1.01Seller Existence. Seller has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware; and in each other jurisdiction in which the transaction of its business makes such qualification necessary.
Section 1.02Licenses. Seller is duly licensed or is otherwise qualified in each jurisdiction in which it transacts business for the business which it conducts and is not in default of any applicable federal, state or local laws, rules and regulations unless, in either instance, the failure to take such action is not reasonably likely (either individually or in the aggregate) to cause a Material Adverse Effect and is not in default of such state’s applicable laws, rules and regulations. Seller has the requisite power and authority and legal right to own, sell and grant a lien on all of its right, title and interest in and to the Note. Seller has the requisite power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement, each other Program Agreement and any Transaction Notice.
Section 1.03Power. Seller has all requisite corporate or other power and authority, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a Material Adverse Effect.
Section 1.04Due Authorization. Seller has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations under each of the Program Agreements, as applicable. This Agreement, any Transaction Notice and the Program Agreements have been (or, in the case of Program Agreements and any Transaction Notice not yet executed, will be, at the time of such execution) duly authorized, executed and delivered by Seller, all requisite or other corporate action having been taken, and each is valid, binding and enforceable against Seller in accordance with its terms except as such enforcement may be affected by bankruptcy, by other insolvency laws, or other similar laws affecting the enforcement of creditor’s rights or by general principles of equity.
Section 1.05Financial Statements. Seller has heretofore furnished to Buyer a copy of (a) its balance sheet for the fiscal year ended December 31, 2022 and the related statements of income for such fiscal year, with the opinion thereon of Ernst & Young LLP and (b) its balance sheet for the quarterly fiscal period ended September 30, 2023, and its related statements of income for such quarterly fiscal period. All such financial statements are accurate, complete and correct and fairly present, in all material respects, the financial condition of Seller (subject to normal year-end adjustments) and the results of its operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis, and to the best of the Seller’s knowledge, do not omit any material fact as of the date(s) thereof. Since September 30, 2023, there has been no material adverse change in the consolidated business, operations or financial
condition of Seller from that set forth in said financial statements nor is Seller aware of any state of facts which (with notice or the lapse of time) would or could result in any such material adverse change. Seller has no liabilities, direct or indirect, fixed or contingent, matured or unmatured, known or unknown, or liabilities for taxes, long-term leases or unusual forward or long-term commitments not disclosed by, or reserved against in, said balance sheet and related statements, and at the present time there are no material unrealized or anticipated losses from any loans, advances or other commitments of Seller except as heretofore disclosed to Buyer in writing.
Section 1.06No Event of Default. There exists no event of default (or other similar terms as defined in the applicable instrument) or Event of Default under Section 7.01, which default gives rise to a right to accelerate indebtedness as referenced in Section 7.03 or give rise to similar rights under this Agreement or under any mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money or to the repurchase of mortgage loans or securities or securities or other instrument or contractual or legal obligation to which it is a party or by which it is bound in any respect.
Section 1.07Solvency. As of the date hereof and immediately after giving effect to each Transaction, the fair value of its assets is greater than the fair value of its liabilities (including, without limitation, contingent liabilities if and to the extent required to be recorded as a liability on the financial statements of it in accordance with GAAP) and Seller is solvent and will not be rendered insolvent by any Transaction and 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 and 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 such entity or any of its assets. Seller is not selling and/or pledging any Repurchase Assets with any intent to hinder, delay or defraud any of its creditors.
Section 1.08No Conflicts. The execution, delivery and performance by of Seller of this Agreement, any Transaction Notice hereunder and the Program Agreements do not: (i) constitute or will not result in (a) any breach of or conflict with any term or provision of the Organizational Documents of Seller; (b) a breach of any indenture, loan agreement, warehouse line of credit, repurchase agreement, mortgage, deed of trust, Ginnie Mae Contract or any other material contractual obligation of it; (c) a material default or an acceleration under any of the foregoing; or (d) the violation of any law, rule, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller, which conflict would have a Material Adverse Effect; (ii) require the creation or imposition of any Lien upon any of the properties or assets of Seller (other then any Liens created under any of this Agreement, any Transaction Notice and the Program Agreements in favor of Buyer and/or pursuant to the terms and provisions of the Ginnie Mae Contract), or (iii) require any approval of stockholders, members or partners or any approved or consent of any Person under any material contractual obligation of it, except for such approvals or consents which have been obtained on or before the Closing Date.
Section 1.09True and Complete Disclosure. All information, reports, exhibits, schedules, financial statements or certificates of Seller or any Affiliate thereof or any of their officers furnished or to be furnished to Buyer in connection with the initial or any ongoing due diligence of Seller or any Affiliate or officer thereof, negotiation, preparation, or delivery of this Agreement or the other Program Agreements, included herein or therein or delivered pursuant hereto or therefor, when taken as a whole, are true and complete in all material respects and do not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All financial statements have been prepared in accordance with GAAP.
Section 1.10Approvals. No consent, approval, authorization or order of, registration or filing with, or notice to any governmental authority, court or other Person is required under applicable law in connection with the execution, delivery and performance by Seller of this Agreement, any Transaction Notice and the Program Agreements.
Section 1.11Litigation. There is no action, proceeding or investigation pending with respect to which Seller has received service of process or, to the best of Seller’s knowledge threatened or affecting it against it before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, any Transaction, Transaction Notice or any Program Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any Transaction Notice or any Program Agreement, (C) makes a claim individually or in the aggregate in an amount greater than $[***], (D) which has resulted in the voluntary or involuntary suspension of a license, a cease and desist order, or such other action as could adversely impact Seller’s business, or (E) which might materially and adversely affect the validity of the Purchased Assets or the performance by it of its obligations under, or the validity or enforceability of, this Agreement, any Transaction Notice or any Program Agreement or which could reasonably be likely to have a Material Adverse Effect.
Section 1.12Material Adverse Change. There has been no material adverse change in the business, operations, financial condition, properties or prospects of Seller or its Affiliates since the date set forth in the most recent financial statements supplied to Buyer that is reasonably likely to have a Material Adverse Effect on Seller.
Section 1.13Ownership.
(a)Seller has good title to all of the Repurchase Assets, free and clear of all mortgages, security interests, restrictions, Liens and encumbrances of any kind other than the Liens created hereby or contemplated herein, and any Transaction shall convey all of Seller’s right, title and interest in and to the related Purchased Assets to Buyer.
(b)Each item of the Repurchase Assets was acquired by Seller in the ordinary course of its business, in good faith, for value and without notice of any defense against or claim to it on the part of any Person.
(c)There are no agreements or understandings between Seller and any other party which would modify, release, terminate or delay the attachment of the security interests granted to Buyer under this Agreement.
(d)The provisions of this Agreement are effective to create in favor of Buyer a valid security interest in all right, title and interest of Seller in, to and under the Repurchase Assets.
(e)Upon the filing of financing statements on Form UCC-1 naming Buyer as “Secured Party” and Seller as “Debtor”, and describing the Repurchase Assets, in the recording offices of the Secretary of State of Delaware the security interests granted hereunder in the Repurchase Assets will constitute fully perfected first priority security interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Repurchase Assets to the extent that such security interests can be perfected by filing under the Uniform Commercial Code.
Section 1.14The Note. Seller has (i) delivered the Note to Buyer, (ii) duly endorsed the Note to Buyer or Buyer’s designee, (iii) notified the Indenture Trustee of such transfer and (iv) completed all documents required to effect such transfer in the Note Register, including receipt by the Note Registrar of the Rule 144A Note Transfer Certificate and such other information and documents that may be required pursuant to the terms of the Indenture. In
addition, Buyer has received all other Program Agreements (including all exhibits and schedules referred to therein or delivered pursuant thereto), all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof and all agreements and other material documents relating thereto, and Seller hereby certifies that the copies delivered to Buyer by Seller are true and complete. None of such documents has been amended, supplemented or otherwise modified (including waivers) since the respective dates thereof, except by amendments, copies of which have been delivered to Buyer. Each such document to which Seller is a party has been duly executed and delivered by Seller and is in full force and effect, and no default or material breach has occurred and is continuing thereunder.
Section 1.15Taxes. Seller and its Subsidiaries have timely filed all income tax returns and other material tax returns that are required to be filed by them and have paid all taxes, material assessments, fees and other governmental charges levied, except for any such taxes, material assessments, fees and other government charges as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of Seller and its Subsidiaries in respect of taxes and other governmental charges are, in the opinion of Seller, adequate.
Section 1.16Investment Company. Neither Seller nor any of its Subsidiaries is an “investment company”, or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
Section 1.17Chief Executive Office; Jurisdiction of Organization. On the Closing Date and on the Effective Date, Seller’s chief executive office, is, and has been, located at the address specified in Section 10.05 for notices. On the Effective Date, Seller’s jurisdiction of organization is the State of Delaware. Seller shall provide Buyer with [***] notice of any change in Seller’s principal office or place of business or jurisdiction. Seller has no trade name. During the preceding five (5) years, Seller has not been known by or done business under any other name, corporate or fictitious, and has not filed or had filed against it any bankruptcy receivership or similar petitions nor has it made any assignments for the benefit of creditors.
Section 1.18Location of Books and Records. The location where Seller keeps its books and records, including all computer tapes and records relating to the Repurchase Assets is its chief executive office.
Section 1.19ERISA. Each Plan to which Seller or its Subsidiaries make direct contributions, and, to the knowledge of Seller, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law.
Section 1.20Financing of Note. Each Transaction will be used to purchase the Note as provided herein, which Note will be conveyed and/or sold by Seller to Buyer.
Section 1.21Agreements. Neither Seller nor any Subsidiary of Seller is a party to any agreement, instrument, or indenture or subject to any restriction materially and adversely affecting its business, operations, assets or financial condition, except as disclosed in the financial statements described in Section 3.05 hereof. Neither Seller nor any Subsidiary of Seller is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement, instrument, or indenture which default could have a material adverse effect on the business, operations, properties, or financial condition of Seller as a whole. No holder of any indebtedness of Seller or of any of its Subsidiaries has given notice of any asserted default thereunder.
Section 1.22Other Indebtedness. All material Indebtedness (other than Indebtedness incurred under the Program Agreements) of Seller existing on the Closing Date is listed on Exhibit B hereto (the “Existing Indebtedness”).
Section 1.23No Reliance. Seller has made its own independent decisions to enter into the Program Agreements and each Transaction and as to whether such Transaction is appropriate and proper for it based upon its own judgment and upon advice from such advisors (including legal counsel and accountants) as it has deemed necessary. Seller is not relying upon any advice from Buyer as to any aspect of the Transactions, including the legal, accounting or tax treatment of such Transactions.
Section 1.24Plan Assets. Seller is not an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code, and the Purchased Assets are not “plan assets” within the meaning of 29 CFR § 2510.3 101 as amended by section 3(42) of ERISA, in Seller’s hands, and transactions by or with Seller are not subject to any state or local statute regulating investments or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.25No Prohibited Persons. Neither Seller nor any of its Affiliates, officers, directors, partners or members, is an entity or person (or to the Seller’s knowledge, owned or controlled by an entity or person): (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “Prohibited Person”).
Section 1.26Anti Money Laundering Laws. The Seller has complied in all material respects with all other Anti Money Laundering Laws and has established an anti-money laundering compliance program and other such procedures and controls to remain in material compliance with all applicable Anti Money Laundering Laws.
Section 1.27Anti-Corruption Laws
(a)Seller is and will remain in compliance with all applicable Anti-Corruption Laws, and agrees that no part of the proceeds of the Purchase Price will be used, director or to its knowledge indirectly, by any Person 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, as amended.
(b)Seller acknowledges by executing this Agreement and the other Program Agreements to which Seller is a party that Buyer has notified it that, pursuant to the requirements of the Patriot Act, Buyer is required to obtain, verify and record such information as may be necessary to identify Seller and confirm that the administrator of Seller (or the administrator of the applicable direct or indirect owner of equity interests of it), has obtained, verified and recorded such information as may be necessary to identify any Person owning twenty-five percent (25%) or more of the direct equity interests of it (including, without limitation, the name and address of such Person), in each case, in accordance with the Patriot Act.
(c)None of Seller or any director, officer, agent or employee of Seller, has used or to its knowledge directly or indirectly used any of the proceeds of any Transaction (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any direct or indirect unlawful payment to any government official or employee from corporate funds, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar law of a jurisdiction in which Seller conducts its business and to which it is lawfully subject or (iv) to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
Section 1.28Compliance with 1933 Act. Neither Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Note, any interest in the Note or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Note, any interest in the Note or any other similar security from, or otherwise approached or negotiated with respect to the Note, any interest in the Note or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Note under the 1933 Act or which would render the disposition of the Note a violation of Section 5 of the 1933 Act or require registration pursuant thereto.
Section 1.29[Reserved].
Section 1.30[Reserved].
Section 1.31Margin Regulations. The use of all funds acquired by Seller under this Agreement will not conflict with or contravene any of Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System as the same may from time to time be amended, supplemented or otherwise modified.
Section 1.32Sanctions Compliance. Seller confirms as a condition of this Agreement and warrants to Buyer that it will, and it will cause each of its controlled Subsidiaries to, abide by all applicable economic sanctions laws and trade restrictions, administered or enforced from time to time by the United States, including those administered by OFAC or the U.S. Department of State (collectively “Sanctions”), In particular, Seller represents and warrants that neither it, nor any of the Seller or its respective Affiliates, officers, directors, partners, or members (i) is an entity or other person that: (a) appears on the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC; (b) is operating in, organized in, a national of or ordinarily resident in a country or territory subject to comprehensive sanctions, programs administered and enforced by OFAC, currently including, Cuba, Iran, Syria, North Korea, and the Crimean, Donetsk and Luhansk regions of Ukraine (“Sanctioned Jurisdiction”); (c) is otherwise the target of any Sanctions, including but not limited to U.S. Executive Order 14024 issued on April 15, 2021, U.S. Executive Order 13662 issued on March 20, 2014, and any directives or designations issued pursuant thereto; or (d) is directly or indirectly owned 50% or more in the aggregate, or controlled by or acting for or on behalf of entities or other persons described in clauses (a) through (c), above (any and all entities or other persons described in clauses (a) through (d) above are “Prohibited Persons”); (ii) engaged or engages in any dealings or transactions with or involving any Prohibited Persons or Sanctioned Jurisdiction; and (iii) otherwise engaged or engages in any dealings or transactions in violation of Sanctions. Neither Seller nor any of its Affiliates, officers, directors, partners, or members shall be included on the SDN List, the U.K. Sanctions List, or the E.U. Consolidated Financial Screening List.
ARTICLE IV
CONVEYANCE; REPURCHASE ASSETS; SECURITY INTEREST
Section 1.01Ownership. Upon payment of the Purchase Price and delivery of the Note to Buyer and the Buyer’s receipt of the related Request for Certification, Buyer shall become the sole owner of the Purchased Assets, free and clear of all liens and encumbrances.
Section 1.02Security Interest.
(a)Although the parties intend (other than for U.S. federal tax purposes) that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, and in any event, Seller hereby pledges to Buyer as security for the performance by Seller of its Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in all of Seller’s right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located, is hereinafter referred to as the “Primary Repurchase Assets”:
(i)the Note identified on the Asset Schedule;
(ii)all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule;
(iii) all records, instruments or other documentation evidencing any of the foregoing;
(iv) all “general intangibles”, “accounts”, “chattel paper”, “securities accounts”, “investment property”, “deposit accounts” and “money” as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including all of Seller’s rights, title and interest in and under the Base Indenture and the Series 2021-SAVF1 Indenture Supplement); and
(v)any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing.
(b)[Reserved]
(c)Subject to the priority interest of the Indenture Trustee, Buyer and Seller hereby agree that in order to further secure Seller’s Obligations hereunder, Seller hereby assigns, pledges, conveys and grants to Buyer a security interest in (i) as of the Closing Date, Seller’s rights (but not its obligations) under the Program Agreements including without limitation any rights to receive payments thereunder or any rights to collateral thereunder whether now owned or hereafter acquired, now existing or hereafter created (collectively, the “Repurchase Rights”) and (ii) all collateral however defined or described under the Program Agreements to the extent not otherwise included under the definitions of Primary Repurchase Assets or Repurchase Rights (such collateral, “Additional Repurchase Assets,” and collectively with the Primary Repurchase Assets and the Repurchase Rights, the “Repurchase Assets”).
(d)Seller hereby delivers an irrevocable instruction to the buyer under any Repurchase Document that upon receipt of notice of an Event of Default under this Agreement, the buyer thereunder is authorized and instructed to (i) remit to Buyer hereunder directly any amounts otherwise payable to Seller and (ii) deliver to Buyer all collateral otherwise deliverable to Seller, to the extent all obligations then due and owing under such Other Repurchase
Agreement have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding purchase price under any Other Repurchase Agreement and termination of all obligations of the Seller thereunder or other termination of the related Repurchase Documents following repayment of all obligations thereunder, the related buyer under any Repurchase Document is hereby instructed to deliver to Buyer hereunder any collateral (as such term may be defined under the related Repurchase Documents) then in its possession or control.
(e)Seller makes a subordinate pledge to the buyers under the Other Repurchase Agreements as security for the performance by Seller of its obligations thereunder and hereby grants, assigns and pledges to the buyers thereunder a subordinate security interest in all of Seller’s right, title and interest in, to and under (i) the Note identified on the Asset Schedule; (ii) all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule; (iii) all records, instruments or other documentation evidencing any of the foregoing and (iv) any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing (collectively, the “Subordinated Pledge Assets”). Seller hereby delivers an irrevocable instruction to Buyer that upon its receipt of notice of an “Event of Default” from the buyer under any Other Repurchase Agreement, Buyer is authorized and instructed to (i) remit to such buyer directly any amounts otherwise payable to Seller under this Agreement and (ii) deliver to such buyer all Subordinated Pledge Assets otherwise deliverable to Seller, to the extent all obligations then due and owing under this Agreement have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding Purchase Price and termination of all Obligations or other termination of the Program Agreements following repayment of all obligations thereunder, Buyer shall deliver to the buyer under any Other Repurchase Agreement with respect to which the related purchase price remains outstanding any Subordinated Pledge Assets then in Buyer’s possession or under its control. The subordinate pledge set forth in this clause (e) shall automatically terminate with respect to an Other Repurchase Agreement if the Buyer or the other buyer thereunder is no longer NCFA, or any Affiliates thereof.
(f)The foregoing provisions of this Section 4.02 are intended to constitute a security agreement or other arrangement or other credit enhancement related to this Agreement and the Transactions hereunder as defined under Sections 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code.
Section 1.03Further Documentation. At any time and from time to time, upon the written request of Buyer, and at the sole expense of Seller, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer may reasonably request (x) to obtain, preserve, perfect, protect or more fully evidence Buyer’s security interest in the Purchased Assets, (y) for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted or (z) to enable Buyer to exercise or enforce any of its rights hereunder or under any other Program Agreement, including the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any applicable jurisdiction with respect to the Liens created hereby or amendments thereto or assignments thereof and such other instruments or notices, as Buyer may reasonably require. Seller also hereby authorizes Buyer to file any such financing or continuation statement, and amendments thereto and assignments thereof to the extent permitted by applicable law.
Section 1.04Changes in Locations, Name, etc. Seller shall not (a) change the location of its chief executive office/chief place of business from that specified in Section 3.17 or (b) change its name or identity or organizational structure or jurisdiction of organization from the jurisdiction referred to in Section 3.17, unless it shall have given Buyer at least [***] prior written notice thereof and shall have delivered to Buyer all Uniform Commercial Code financing statements
and amendments thereto as Buyer shall request and taken all other actions deemed necessary by Buyer to continue its perfected status in the Repurchase Assets with the same or better priority.
Section 1.05Performance by Buyer of Seller’s Obligations. If Seller fails to perform or comply with any of its agreements contained in the Program Agreements and Buyer may itself perform or comply, or otherwise cause performance or compliance, with such agreement, the reasonable (under the circumstances) out-of-pocket expenses of Buyer actually incurred in connection with such performance or compliance, together with interest thereon at a rate per annum equal to the Pricing Rate shall be payable by Seller to Buyer on demand and shall constitute Obligations. Such interest shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.06Proceeds. If an Event of Default shall occur and be continuing, (a) all proceeds of Repurchase Assets received by Seller consisting of cash, checks and other liquid assets readily convertible to cash items shall be held by Seller in trust for Buyer, segregated from other funds of Seller, and shall forthwith upon receipt by Seller be turned over to Buyer in the exact form received by Seller (duly endorsed by Seller to Buyer, if required) and (b) any and all such proceeds received by Buyer (whether from Seller or otherwise) may, in the sole discretion of Buyer, be held by Buyer as collateral security for, and/or then or at any time thereafter may be applied by Buyer against, the Obligations (whether matured or unmatured), such application to be in such order as Buyer shall elect. Any balance of such proceeds remaining after the Obligations shall have been paid in full and this Agreement shall have been terminated shall be paid over to Seller or to whomsoever may be lawfully entitled to receive the same.
Section 1.07Remedies. If an Event of Default shall occur and be continuing, Buyer may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Uniform Commercial Code (including Buyer’s rights to a strict foreclosure under Section 9-620 of the Uniform Commercial Code). Without limiting the generality of the foregoing, Buyer may seek the appointment of a receiver, liquidator, conservator, trustee, or similar official in respect of Seller or any of Seller’s property. Buyer without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required under this Agreement or by law referred to below) to or upon Seller or any other Person (each and all of which demands, presentments, protests, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Repurchase Assets, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Repurchase Assets or any part thereof (or contract to do any of the foregoing), in one or more parcels or as an entirety at public or private sale or sales, at any exchange, broker’s board or office of Buyer or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Buyer shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Repurchase Assets so sold, free of any right or equity of redemption in Seller, which right or equity is hereby waived or released. Seller further agrees, at Buyer’s request, to assemble the Repurchase Assets and make them available to Buyer at places which Buyer shall reasonably select, whether at Seller’s premises or elsewhere. Buyer shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable (under the circumstances) out-of-pocket costs and expenses of every kind actually incurred therein or incidental to the care or safekeeping of any of the Repurchase Assets or in any way relating to the Repurchase Assets or the rights of Buyer hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as Buyer may elect, and only after such application and after the payment by Buyer of any other amount required or permitted by any provision of law, including Section 9-615 of the
Uniform Commercial Code, need Buyer account for the surplus, if any, to Seller. To the extent permitted by applicable law, Seller waives all claims, damages and demands it may acquire against Buyer arising out of the exercise by Buyer of any of its rights hereunder, other than those claims, damages and demands arising from the gross negligence or willful misconduct of Buyer. If any notice of a proposed sale or other disposition of Repurchase Assets shall be required by law, such notice shall be deemed reasonable and proper if given [***] before such sale or other disposition. Seller shall remain liable for any deficiency (plus accrued interest thereon as contemplated herein) if the proceeds of any sale or other disposition of the Repurchase Assets are insufficient to pay the Obligations and the fees and disbursements in amounts reasonable under the circumstances, of any attorneys employed by Buyer to collect such deficiency. Notwithstanding anything to the contrary herein or in any of the other Program Agreements, the remedies set forth in this Section 4.07 concerning any actions with respect to the MSRs arising under or related to any Servicing Contract shall be subject to the Acknowledgment Agreement entered into with Ginnie Mae.
Section 1.08Limitation on Duties Regarding Preservation of Repurchase Assets. Buyer’s duty with respect to the custody, safekeeping and physical preservation of the Repurchase Assets in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as Buyer deals with similar property for its own account. Neither Buyer nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Repurchase Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Repurchase Assets upon the request of Seller or otherwise.
Section 1.09Powers Coupled with an Interest. All authorizations and agencies herein contained with respect to the Repurchase Assets are irrevocable and powers coupled with an interest.
Section 1.10Release of Security Interest. Upon the latest to occur of (a) the repayment to Buyer of all Obligations hereunder, and (b) the occurrence of the Termination Date, Buyer shall release its security interest in any remaining Repurchase Assets hereunder and shall promptly execute and deliver to Seller such documents or instruments as Seller shall reasonably request to evidence such release.
Section 1.11Reinstatement. All security interests created by this Article IV shall continue to be effective, or be reinstated, as the case may be, if at any time any payment, or any part thereof, of any Obligation of Seller is rescinded or must otherwise be restored or returned by the Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Seller or any substantial part of its property, or otherwise, all as if such release had not been made.
Section 1.12Subordination. Seller shall not seek in any Insolvency Event of the Issuer to be treated as part of the same class of creditors as Administrative Agent, on behalf of the Buyer, and shall not oppose any pleading or motion by Administrative Agent, on behalf of the Buyer, advocating that Administrative Agent, on behalf of the Buyer, should be treated as a separate class of creditors. Seller acknowledges and agrees that its rights with respect to the Repurchase Assets are and shall continue to be at all times while the obligations are outstanding junior and subordinate to the rights of Administrative Agent, on behalf of the Buyer, under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
Section 1.01Initial Transaction. The obligation of Buyer to enter into Transactions with the Seller hereunder is subject to the satisfaction, immediately prior to or concurrently with the entering into such Transaction, of the condition precedent that Buyer shall have received all of the following items, each of which shall be satisfactory to Buyer and its counsel in form and substance:
(a)Program Agreements and Note. The Program Agreements and Note, in all instances duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver.
(b)Security Interest. Evidence that all other actions necessary or, in the opinion of Buyer, desirable to perfect and protect Buyer’s interest in the Repurchase Assets have been taken, including duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1.
(c)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s certificate of formation, operating agreement and corporate resolutions approving the Program Agreements 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 Agreements.
(d)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Closing Date.
(e)Incumbency Certificate. An incumbency certificate of the corporate secretary of each of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(f)Fees. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before such date.
(g)Acknowledgment Agreement. The Acknowledgment Agreement shall have been duly authorized, executed and delivered by each party thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel, and all conditions precedent to the effectiveness of the Acknowledgment Agreement shall have been satisfied or waived.
(h)Advance Verification Agent. loanDepot shall have engaged the Advance Verification Agent pursuant to an agreement reasonably satisfactory to the Administrative Agent.
(i)[Reserved].
(j)Advance Verification Agent Report. The preliminary Advance Verification Agent Report shall have delivered to the Administrative Agent.
(k)Determination Date Report. The Administrative Agent has consented to the information set forth in the immediately preceding Determination Date Report.
(l)Issuer Tax Opinion. The Seller shall cause the Issuer to deliver an Issuer Tax Opinion to the Administrative Agent and the Buyer.
Section 1.02All Transactions. The obligation of Buyer to enter into each Transaction pursuant to this Agreement is subject to the following conditions precedent:
(a)Transaction Notice and Asset Schedule. In accordance with Section 2.02, Buyer shall have received from Seller a Transaction Notice with an Asset Schedule that has been updated to include the Note related to a proposed Transaction hereunder on such Business Day.
(b)No Margin Deficit. After giving effect to each new Transaction, the aggregate outstanding amount of the Purchase Price shall not exceed the Asset Value of the Note then in effect.
(c)No Default. No Default or Event of Default exists or shall have occurred and be continuing immediately after giving effect to such new Transaction.
(d)Requirements of Law. Buyer 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 Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions with a Pricing Rate based on Base Rate.
(e)Representations and Warranties. Both immediately prior to the related Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in each Program Agreement shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects, as written).
(f)Note. Buyer shall have received the Note relating to any Purchased Assets, which is in form and substance satisfactory to Buyer in its sole discretion.
(g)Material Adverse Change. None of the following shall have occurred and/or be continuing:
(A)Buyer’s corporate bond rating as calculated by S&P or Moody’s has been lowered or downgraded to a rating below investment grade by S&P or Moody’s;
(B)an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “lending market” for financing debt obligations secured by mortgage loans or servicing receivables or securities backed by mortgage loans or servicing receivables or an event or events shall have occurred resulting in Buyer not being able to finance the Note through the “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(C)there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement.
(h)Fees. Buyer shall have received payment in full of all fees and Expenses (including any applicable Commitment Fee) which are payable hereunder to Buyer on or before such date.
Section 1.03Closing Subject to Conditions Precedent. The obligation of Buyer to purchase the Note is subject to the satisfaction on or prior to the Closing Date of the following conditions (any or all of which may be waived by Buyer):
(a)Performance by the Issuer and loanDepot. All the terms, covenants, agreements and conditions of the Transaction Documents to be complied with, satisfied, observed and performed by the Issuer, and loanDepot on or before the Closing Date shall have been complied with, satisfied, observed and performed in all material respects.
(b)Representations and Warranties. Each of the representations and warranties of the Issuer and loanDepot made in the Transaction Documents shall be true and correct in all material respects as of the Closing Date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation of warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects).
(c)Officer’s Certificate. The Administrative Agent, Buyer and the Indenture Trustee shall have received in form and substance reasonably satisfactory to the Administrative Agent an officer’s certificate from loanDepot and a certificate of an Authorized Officer of the Issuer, dated the Closing Date, each certifying to the satisfaction of the conditions set forth in the preceding paragraphs (a) and (b), in each case together with incumbency, by-laws, resolutions and good standing.
(d)Opinions of Counsel to the Issuer and loanDepot. Counsel to the Issuer and Seller shall have delivered to the Administrative Agent, Buyer and the Indenture Trustee favorable opinions, dated the Closing Date and satisfactory in form and substance to the Administrative Agent and its counsel, relating to corporate matters, enforceability, securities contract, non-consolidation, Investment Company Act and perfection and an opinion as to which state’s law applies to security interest and perfection matters. In addition to the foregoing, loanDepot, as servicer, shall have caused its counsel to deliver to the Issuer, Buyer, as purchaser of the Note hereunder, the Administrative Agent and the Indenture Trustee an opinion as to certain tax matters dated as of the Closing Date, satisfactory in form and substance to the Administrative Agent, Buyer and their respective counsel.
(e)Officer’s Certificate of Indenture Trustee. The Administrative Agent and Buyer shall have received in form and substance reasonably satisfactory to the Administrative Agent an Officer’s Certificate from the Indenture Trustee, dated the Closing Date, with respect to the Base Indenture, together with incumbency and good standing.
(f)Opinions of Counsel to the Indenture Trustee. Counsel to the Indenture Trustee shall have delivered to the Administrative Agent and Buyer a favorable opinion dated the Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and its counsel related to the enforceability of the Base Indenture.
(g)Opinions of Counsel to the Owner Trustee. Delaware counsel to the Owner Trustee of the Issuer shall have delivered to the Administrative Agent and Buyer favorable opinions regarding the formation, existence and standing of the Issuer and of the Issuer’s execution, authorization and delivery of each of the Transaction Documents to which it is a party and such other matters as the Administrative Agent and Buyer may reasonably request, dated the
Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and Buyer and their respective counsel.
(h)Filings and Recordations. The Administrative Agent, Buyer and the Indenture Trustee shall have received evidence reasonably satisfactory to the Administrative Agent of (i) the completion of all recordings, registrations and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence: (A) the assignment by loanDepot, as Seller, to the Issuer of the ownership interest in the Collateral (as defined in the PC Repurchase Agreement) conveyed pursuant to the PC Repurchase Agreement and the proceeds thereof and (ii) the completion of all recordings, registrations, and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence the grant of a first priority perfected security interest in the Issuer’s ownership interest in the Collateral in favor of the Indenture Trustee, subject to no Liens prior to the Lien created by the Base Indenture.
(i)Documents. The Administrative Agent, Buyer and the Indenture Trustee shall have received a duly executed counterpart of each of the Transaction Documents, in form acceptable to Buyer, the Note and each and every document or certification delivered by any party in connection with any such Transaction Documents or the Note, and each such document shall be in full force and effect.
(j)Actions or Proceedings. No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation of, or to invalidate, any of the transactions contemplated by the Transaction Documents, the Note and the documents related thereto in any material respect.
(k)Approvals and Consents. All Governmental Actions of all Governmental Authorities required with respect to the transactions contemplated by the Transaction Documents, the Note and the documents related thereto shall have been obtained or made.
(l)Fees, Costs and Expenses. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before the Closing Date, and the fees, costs and expenses payable by the Issuer and loanDepot on or prior to the Closing Date pursuant to this Agreement or any other Transaction Document shall have been paid in full. External legal costs incurred by Buyer in connection with entering into this Agreement shall not exceed the Legal Expense Cap and all expenses incurred with respect to Buyer’s due diligence review shall not exceed the Diligence Services Expense Cap.
(m)Other Documents. loanDepot shall have furnished to the Administrative Agent, Buyer and the Indenture Trustee such other opinions, information, certificates and documents as the Administrative Agent may reasonably request.
(n)Advance Verification Agent. loanDepot shall have engaged the Advance Verification Agent pursuant to an agreement reasonably satisfactory to the Administrative Agent.
(o)Proceedings in Contemplation of Sale of the Note. All actions and proceedings undertaken by the Issuer and loanDepot in connection with the issuance and sale of the Note as herein contemplated shall be satisfactory in all respects to the Administrative Agent, Buyer and their respective counsel.
(p)Advance Rate Reduction Event, Servicer Termination Events, Events of Default and Funding Interruption Events. No Advance Rate Reduction Event, Servicer Termination Event, Event of Default or Funding Interruption Event shall then be occurring.
(q)Satisfaction of Conditions. Each of the Funding Conditions and the SAVF1 Funding Conditions shall have been satisfied. The Administrator shall include the SAVF1 Funding Conditions in each Funding Certification in addition to the Funding Conditions and present a “yes” or “no” answer beside such SAVF1 Funding Conditions indicating whether such SAVF1 Funding Conditions have been satisfied, as set forth in Section 4.3 of the Base Indenture.
(r)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s certificate of formation, operating agreement and corporate resolutions approving the Program Agreements 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 Agreements.
(s)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Closing Date.
(t)Incumbency Certificate. An incumbency certificate of the corporate secretary of each of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(u)Acknowledgment Agreement. The Acknowledgment Agreement shall have been duly authorized, executed and delivered by each party thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel, and all conditions precedent to the effectiveness of the Acknowledgment Agreement shall have been satisfied or waived.
If any condition specified in this Section 5.03 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by Buyer by notice to loanDepot at any time at or prior to the Closing Date and Buyer shall incur no liability as a result of such termination.
ARTICLE VI
COVENANTS
Seller covenants and agrees that until the payment and satisfaction in full of all Obligations, whether now existing or arising hereafter, shall have occurred:
Section 1.01Litigation. Seller will promptly, and in any event [***] after service of process on any of the following, give to Buyer notice of all litigation, actions, suits, arbitrations, investigations (including any of the foregoing which are threatened or pending) or other legal or arbitrable proceedings affecting Seller or any of its Subsidiaries or affecting any of the Property of any of them before any Governmental Authority that (i) questions or challenges the validity or enforceability of any of the Program Agreements or any action to be taken in connection with the transactions contemplated hereby, (ii) makes a claim individually or in the aggregate in an amount greater than $[***], or (iii) which, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect. Seller will promptly provide notice of any judgment, which with the passage of time, could cause an Event of Default hereunder.
Section 1.02Prohibition of Fundamental Changes. Seller shall not (a) enter into any transaction of merger or consolidation or amalgamation with any Person; (b) liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution); (c) sell, lease or otherwise
dispose of, all or substantially all of its assets; or (d) enter into any transaction or series of transaction to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated.
Section 1.03Sale of Assets. Subject to Section 6.02(c), Seller shall not sell, lease (as lessor) or transfer (as transferor) or otherwise dispose of any property or assets, whether now owned or hereafter acquired, if such sale, lease or transfer would reasonably be expected to have a Material Adverse Effect.
Section 1.04Asset Schedule. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and increases and decreases in the outstanding VFN Principal Balance thereof.
Section 1.05No Adverse Claims. Seller warrants and will defend the right, title and interest of Buyer in and to all Purchased Assets against all adverse claims and demands.
Section 1.06Assignment. 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 Agreements), any of the Purchased Assets or any interest therein, provided that this Section 6.06 shall not prevent any transfer of Purchased Assets in accordance with the Program Agreements.
Section 1.07Security Interest. Seller shall do all things necessary to preserve the Purchased Assets so that they remain subject to a first priority perfected security interest hereunder. Without limiting the foregoing, Seller will comply with all rules, regulations and other laws of any Governmental Authority and cause the Purchased Assets to comply with all applicable rules, regulations and other laws. Seller will not allow any default for which Seller is responsible to occur under any Purchased Assets or any Program Agreement and Seller shall fully perform or cause to be performed when due all of its obligations under any Purchased Assets and any Program Agreement.
Section 1.08Records.
(a)Seller shall collect and maintain or cause to be collected and maintained all Records relating to the Purchased Assets in accordance with industry custom and practice for assets similar to the Purchased Assets, including those maintained pursuant to Section 6.09, and all such Records shall be in Seller’s or Buyer’s possession unless Buyer otherwise approves. Seller will maintain all such Records in good and complete condition in accordance with industry practices for assets similar to the Purchased Assets and preserve them against loss.
(b)For so long as Buyer has an interest in or lien on any Purchased Assets, Seller will hold or cause to be held all related Records in trust for Buyer. Seller shall notify, or cause to be notified, every other party holding any such Records of the interests and liens in favor of Buyer granted hereby.
(c)Upon reasonable advance notice from Buyer, Seller shall (x) make any and all such Records available to Buyer to examine any such Records, either by its own officers or employees, or by agents or contractors, or both, and make copies of all or any portion thereof, and (y) permit Buyer 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.
Section 1.09Books. Seller shall keep or cause to be kept in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Purchased Assets to Buyer.
Section 1.10Approvals. Seller shall maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Agreements, and Seller shall conduct its business strictly in accordance with applicable law.
Section 1.11Insurance. Seller shall maintain or cause to be maintained, at its own expense, insurance coverage as is customary, reasonable and prudent in light of the size and nature of Seller’s business as of any date after the Closing Date. Seller shall be deemed to have complied with this provision if one of its Affiliates has such policy coverage and, by the terms of any such policies, the coverage afforded thereunder extends to Seller. Upon the request of Buyer at any time subsequent to the Closing Date and in no event more than once per calendar year unless an Event of Default shall have occurred and be continuing, Seller shall cause to be delivered to Buyer, a certification evidencing Seller’s coverage under any such policies.
Section 1.12Material Change in Business. Seller shall not engage to any substantial extent in any line or lines of business activity other than Current Business Operations as of the Closing Date.
Section 1.13Distributions. Following the occurrence and during the continuation of an Event of Default, Seller shall not make any payment 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 equity interest of Seller, whether now or hereafter outstanding, or make any other distribution or dividend in respect of any of the foregoing or to any shareholder or equity owner of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller or any of Seller’s consolidated Subsidiaries, except that, notwithstanding the foregoing, Seller shall be permitted at all times (regardless of whether or not an Event of Default exists) to make Tax Distributions; provided that Seller agrees to cause LD Holdings Group LLC to promptly disburse any such funds for the payment of taxes when due.
Section 1.14Existence; Ginnie Mae Approvals.
(a)Seller shall preserve and maintain its legal existence and all of its material government licenses, authorizations, consents and approvals necessary for Seller to conduct its business and to perform its obligations under the Transaction Documents.
(b)Seller shall maintain adequate financial standing, procedures, and experienced personnel necessary for the sound servicing (of mortgage loans of the same types as may from time to time constitute Mortgage Loans and in accordance, in all material respects, with Accepted Servicing Practices and the terms of the Ginnie Mae Contract.
(c)Seller shall comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of Governmental Authorities (including truth in lending, real estate settlement procedures and all environmental laws) if the failure to comply with such requirements would be reasonably likely (either individually or in the aggregate) to have a Material Adverse Effect.
(d)Seller shall maintain its status with Ginnie Mae as an approved issuer, and shall be in good standing with Ginnie Mae in accordance with applicable law and all rules, policies, procedures and standards of Ginnie Mae (collectively, “Ginnie Mae Approvals”).Should Seller, (x) receive written notice of any material default or notice of termination of servicing for cause under the Ginnie Mae Contract, or (y) for any reason, cease to possess all applicable Ginnie Mae
Approvals, or should notification from Ginnie Mae or HUD, FHA or VA as described in Section 3.31 be received, Seller shall so notify Buyer in writing within [***].
Section 1.15Change in Organizational Documents. Seller shall not amend, modify or otherwise change any of its Organizational Documents in any material respect, or except any such amendments, modifications or changes or any such new agreements or arrangements that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; provided that Seller shall deliver written notice to Buyer within [***] of any material amendment to its Organizational Documents.
Section 1.16Chief Executive Office; Jurisdiction of Organization. Seller shall not move its chief executive office from the address referred to in Section 3.17 or change its jurisdiction of organization from the jurisdiction referred to in Section 3.17 unless it shall have provided Buyer at least [***] prior written notice of such change.
Section 1.17Taxes. Seller shall timely file all tax returns that are required to be filed by them and shall timely pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP.
Section 1.18Transactions with Affiliates. Other than the purchase of the Note, Seller will not, directly or indirectly, enter into any transaction, including any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction (a) does not result in a Default hereunder, (b) is in the ordinary course of Seller’s business and (c) is upon fair and reasonable terms no less favorable to Seller than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate, or make a payment that is not otherwise permitted by this Section 6.17 to any Affiliate.
Section 1.19Guarantees. Seller shall not create, incur, assume or suffer to exist any Guarantees, except (i) to the extent reflected in Seller’s financial statements or notes thereto (ii) to the extent the aggregate Guarantees of Seller do not exceed $[***], or (iii) to the extent such Guarantee is otherwise disclosed to Buyer in writing.
Section 1.20Indebtedness. Seller shall not incur any additional material Indebtedness other than (i) the Existing Indebtedness specified on Exhibit B hereto; (ii) Indebtedness incurred with Buyer or its Affiliates; (iii) Indebtedness incurred in connection with new or existing secured lending facilities and (iv) usual and customary accounts payable for a mortgage company), without the prior written consent of Buyer.
Section 1.21True and Correct Information. All information, reports, exhibits, schedules, financial statements or certificates of Seller, any Affiliate thereof or any of their officers furnished to Buyer hereunder and during Buyer’s diligence of Seller are and will be true and complete in all material respects and do not and shall not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements, information and reports delivered by Seller to Buyer pursuant to this Agreement shall be prepared in accordance with U.S. GAAP, or, if applicable, to SEC filings, the appropriate SEC accounting regulations.
Section 1.22No Pledge. Except as contemplated herein, Seller shall not pledge, grant a security interest or assign any existing or future rights to service any of the Repurchase Assets or pledge or grant to any other Person any security interest in the Note.
Section 1.23Plan Assets. Seller shall not be an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code and Seller shall not use “plan assets” within the meaning of 29 CFR § 2510.3 101, as amended by section 3(42) of ERISA to engage in this Agreement or any Transaction hereunder. Transactions to or with Seller shall not be subject to any state or local statute regulating investments of or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.24Sharing of Information. Seller shall allow Buyer to exchange information related to Seller and the Transactions hereunder with third party lenders, permitted assignees, Participants and credit insurance providers and Seller shall permit each third party lender to share such information with Buyer, but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
Section 1.25Modification of the Base Indenture and Series 2021-SAVF1 Indenture Supplement. Seller shall not consent with respect to any of the Base Indenture and the Series 2021-SAVF1 Indenture Supplement related to the Purchased Assets, to (i) the modification, amendment or termination of such the Base Indenture and the Series 2021-SAVF1 Indenture Supplement, (ii) the waiver of any provision of the Base Indenture and the Series 2021-SAVF1 Indenture Supplement, or (iii) the resignation of loanDepot as servicer under the Base Indenture and the Series 2021-SAVF1 Indenture Supplement, or the assignment, transfer, or material delegation of any of its rights or obligations, under such the Base Indenture and the Series 2021-SAVF1 Indenture Supplement, without the prior written consent of Buyer exercised in Buyer’s sole discretion.
Section 1.26Reporting Requirements.
(a)Seller shall furnish to Buyer (i) promptly (but in no event later than [***] after an Authorized Officer of Seller has actual knowledge thereof), copies of any material and adverse notices (including, without limitation, notices of defaults, breaches, potential defaults or potential breaches) and any material financial information that is not otherwise required to be provided by Seller hereunder which is given to Seller’s lenders, (ii) promptly (but in no event later than [***] after an Authorized Officer of Seller has actual knowledge thereof), notice of the occurrence of (1) any Event of Default hereunder; (2) any default or material breach by Seller of any obligation under any Program Agreement or any other contract or contracts, in the aggregate in excess of $[***]to which Seller is a party, or (3) the occurrence of any event or circumstance that such party reasonably expects has resulted in, or will, with the passage of time, result in, a Material Adverse Effect or an Event of Default and (iii) the following:
(1)as soon as available and in any event within forty (40) calendar days after the end of each calendar month, the unaudited balance sheet of Seller, as at the end of such period and the related unaudited consolidated statements of income for Seller, including changes in shareholders’ equity (or its equivalent) for such period and the portion of the fiscal year through the end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(2)as soon as available and in any event within forty (40) calendar days after the end of each calendar quarter, the unaudited cash flow statements of Seller, as at the end of such period and the portion of the fiscal year through the
end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(3)as soon as available and in any event within ninety (90) days after the end of each fiscal year of Seller, the balance sheet of Seller, as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows for Seller and changes in shareholders’ equity (or its equivalent) for such year, setting forth in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion and the scope of audit shall be acceptable to Buyer in its sole discretion, shall have no “going concern” qualification and shall state that said consolidated financial statements or financial statements, as applicable, fairly present the consolidated financial condition or financial condition, as applicable, and results of operations of Seller as at the end of, and for, such fiscal year in accordance with GAAP;
(4)such other prepared statements that Buyer may reasonably request;
(5)from time to time (x) such other information regarding the financial condition, operations, or business of Seller as Buyer may reasonably request and (y) information and documentation reasonably requested by Buyer for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(6)as soon as reasonably possible, and in any event within [***]after a Responsible Officer of Seller has knowledge of the occurrence of any ERISA Event of Termination, stating the particulars of such ERISA Event of Termination in reasonable detail;
(7)as soon as reasonably possible, notice of any of the following events:
a.any material dispute, litigation, investigation, proceeding or suspension between Seller on the one hand, and any Governmental Authority or any Person;
b.any material change in accounting policies or financial reporting practices of Seller;
c.any material issues raised upon examination of Seller or Seller’s facilities by any Governmental Authority;
d.any material change in the Indebtedness of Seller, including any default, renewal, non-renewal, termination, increase in available amount or decrease in available amount related thereto, which notice thereof shall be provided in the Officer’s Compliance Certificate;
e.promptly upon receipt of notice or knowledge of any lien or security interest (other than security interests created hereby or by the
other Program Agreements) on, or claim asserted against, any of the Purchased Assets;
f.the the filing, recording or assessment of any federal, state or local tax lien against Seller, or any of Seller’s assets, unless such filing, recording or assessment could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect with respect to Seller;
g.[reserved];
h.[reserved];
i.(i) any material penalties, sanctions or charges levied, or threatened to be levied, against Seller or any adverse change or threatened change made in writing in Seller’s Ginnie Mae Approval status, (ii) the commencement of any material non-routine investigation or the institution of any proceeding or the threat in writing of institution of any proceeding against Seller by any Governmental Authority or any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller or (iii) the commencement of any material investigation, or the institution of any material proceeding or the threat in writing of institution of any material proceeding against Seller by any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller; and
j.(x) any material settlement with, or issuance of a consent order by, any Governmental Authority and (y) any settlement with, or issuance of a consent order by, any Governmental Authority.
(b)Officer’s Certificates. Seller will furnish to Buyer, at the time Seller furnishes each set of financial statements pursuant to Section 6.25(a)(iii)(1), (2) or (3) above, an Officer’s Compliance Certificate of Seller in the form of Exhibit A to the Series 2017-VF1 Pricing Side Letter.
(c)Monthly Reporting. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and Additional Balances. Seller shall deliver to Buyer no later than the 25th day of each month (the “Monthly Report Date”) a cumulative Asset Schedule, each of which, when so delivered, shall replace the current Asset Schedule and which may be delivered in electronic form acceptable to Buyer. Each such updated Asset Schedule shall indicate the outstanding VFN Principal Balance of the Note as of the close of the preceding week. As of each Monthly Report Date, Seller hereby certifies, represents and warrants to Buyer that each such updated Asset Schedule is true, complete and correct in all material respects.
(d)Hedging Reports. Seller shall deliver to Buyer a monthly summary hedge report (data elements to be agreed upon by Seller and Buyer).
(e)Other. Seller shall deliver to Buyer any other reports or information reasonably requested by Buyer or as otherwise required pursuant to this Agreement and the Indenture (including, without limitation, all reports and information delivered by the Issuer, the Administrator or the Indenture Trustee relating to the Note). Seller understands and agrees that all reports and information provided to Buyer by or relating to Seller may be disclosed to Buyer’s Affiliates by third party lenders, permitted assignees, Participants, credit insurance providers, any liquidity provider to Buyer and their respective agents and representatives, but
only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
(f)Regulatory Reporting Compliance. Seller shall, on or before the last Business Day of [***] following the end of each of Seller’s fiscal years (December 31), beginning with the fiscal year ending in 2023, deliver to Buyer a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers or an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB, or similar review conducted on Seller by its accountants, and such other reports as Seller may prepare relating to its servicing functions as Seller.
Section 1.27[Reserved].
Section 1.28Litigation Summary. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide to Buyer a true and correct summary of all material actions, notices, proceedings and investigations pending with respect to which Seller has received service of process or other form of notice or, to the best of Seller’s knowledge, threatened against it, before any court, administrative or governmental agency or other regulatory body or tribunal.
Section 1.29Material Change in Business. Seller shall not make any material change in the nature of its business as carried on at the Closing Date.
Section 1.30Hedging. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide a true and correct summary of all interest rate protection agreements entered into or maintained by Seller and a summary of the realized gains or losses of such interest rate protection agreements compared against any change in value of the MSRs.
Section 1.31Ginnie Mae Contract.
(a)Should Seller for any reason cease to possess the Ginnie Mae Approvals, or should notification to Ginnie Mae be required, Seller shall promptly notify Buyer in writing.
(b)Seller shall promptly, and in no event later than [***] after Seller has knowledge thereof, notify Buyer of any Servicer Termination Event or event of default under any Ginnie Mae Contract or its receipt of a notice of actual termination of Seller’s right to service under any Ginnie Mae Contract which evidences an intent to transfer such servicing to a third party.
Section 1.32Trigger Event MSR Asset Sale. Seller shall, within [***], notify Buyer in the event that it has voluntarily relinquished or delivered notice of its intent to sell or transfer Ginnie Mae Contract rights constituting more than [***]% of the aggregate Ginnie Mae Contract rights of Seller with respect to Ginnie Mae.
Section 1.33Amendments. Seller shall not execute any amendments with respect to the Program Agreements without the prior consent of Buyer.
ARTICLE VII
DEFAULTS/RIGHTS AND REMEDIES OF BUYER UPON DEFAULT
Section 1.01Events of Default. Each of the following events or circumstances shall constitute an “Event of Default”:
(a)Payment Failure. Failure of Seller to (i) make any payment of the Purchase Price beyond the applicable dates on which such payment is due, (ii) make any payment of Price Differential, on a Price Differential Payment Day or on a scheduled Repurchase Date, subject to a [***] cure period (provided that with respect to any payment made on a Repurchase Date that is not a scheduled Repurchase Date, such failure continues for a period of [***] following the earlier of (x) written notice or (y) the date upon which Seller obtained knowledge of such failure), (iii) make any payment (which failure continues for a period of [***], provided that such grace period shall be permitted no more than [***]) from Buyer and (y) the date upon which Seller obtained knowledge of such failure) of any other sum which has become due, otherwise, whether by acceleration or otherwise, under the terms of any Program Agreement, or (iv) cure any Margin Deficit when due pursuant to Section 2.05 hereof.
(b)Cross Default. (i) An Event of Default (as defined in the Indenture) has occurred and is continuing under the Indenture or an Event of Default (as defined in the related Other Repurchase Agreement) has occurred and is continuing under any Repurchase Document or (ii) Seller or Affiliates thereof shall be in default under (A) any Nomura Indebtedness, (B) any Transaction Document; (C) any Indebtedness, in the aggregate, in excess of $[***]of Seller or any Affiliate thereof which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness, or (D) any other contract or contracts, in the aggregate in excess of $[***]to which Seller or any Affiliate thereof is a party which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such contract.
(c)Assignment. Assignment or attempted assignment by Seller of this Agreement or any rights hereunder without first obtaining the specific written consent of Buyer, or the granting by Seller of any security interest, lien or other encumbrances on any Purchased Assets to any person other than Buyer.
(d)Insolvency. An Act of Insolvency shall have occurred with respect to Seller.
(e)Material Adverse Change. Any material adverse change in the Property, business, financial condition or operations of Seller or any of its Affiliates shall occur, in each case as determined by Buyer in its sole good faith discretion, or any other condition shall exist which, in Buyer’s sole good faith discretion, constitutes a material impairment of Seller’s ability to perform its obligations under this Agreement or any other Program Agreement.
(f)Immediate Breach of Representation or Covenant or Obligation. A breach by Seller of any of the representations, warranties or covenants or obligations set forth in [***]of this Agreement.
(g)Additional Breach of Representation or Covenant. A breach by Seller of any other representation, warranty or covenant set forth in this Agreement (and not otherwise specified in Section 7.01(f) above), if such breach is not cured within [***].
(h)Representations. Except as set forth in clause (i) below, any representation or warranty made or deemed made by Seller herein or in any other Program Agreement (after
giving effect to any qualification as to materiality set forth therein, if any) shall prove to have been false and misleading when made or any Monthly Report or Officer’s Compliance Certificate delivered hereunder shall prove to have been false and misleading in any material respect when made.
(i)1940 Act. The representation and warranty in Section 3.16 shall be false or misleading at any time.
(j)Change in Control. The occurrence of a Change in Control.
(k)Failure to Transfer. Seller fails to transfer a material portion of the Purchased Assets to Buyer on the applicable Purchase Date (provided Buyer has tendered the related Purchase Price).
(l)Judgment. A final judgment or judgments for the payment of money in excess of $[***]shall be rendered against Seller or any of its Affiliates by one or more courts, administrative tribunals or other bodies having jurisdiction and the same shall not be satisfied, discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within [***] from the date of entry thereof.
(m)Government Action. Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority 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 Affiliate thereof, or shall have taken any action to displace the management of Seller or any Affiliate thereof or to curtail its authority in the conduct of the business of Seller or any Affiliate thereof, or takes any action in the nature of enforcement to remove, limit or restrict the approval of Seller or Affiliate as an issuer, buyer or a seller/servicer of mortgage loans or securities backed thereby, and such action provided for in this subparagraph (l) shall not have been discontinued or stayed within [***].
(n)Inability to Perform. A Responsible Officer of Seller or Guarantor shall admit its inability to, or its intention not to, perform any of Seller’s Obligations or Guarantor’s Obligations hereunder or the Guaranty.
(o)Security Interest. This Agreement shall for any reason cease to create a valid, first priority security interest in any material portion of the Repurchase Assets purported to be covered hereby.
(p)Financial Statements. Seller’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of Seller as a “going concern” or a reference of similar import.
(q)Validity of Agreement. For any reason, this Agreement at any time shall not be in full force and effect in all material respects or shall not be enforceable in all material respects in accordance with its terms, or any Lien granted pursuant thereto shall fail to be perfected and of first priority, or Seller or any Affiliate of Seller shall seek to disaffirm, terminate, limit, reduce or repudiate its obligations hereunder or Guarantor’s obligations under the Guaranty
(r)Guarantor Breach. A breach by Guarantor of any representation, warranty or covenant set forth in the Guaranty or any other Program Agreement, any “event of default” by Guarantor under the Guaranty, any repudiation of the Guaranty by the Guarantor or if the Guaranty is not enforceable against the Guarantor.
(s)Servicing. Greater than [***]% of Seller’s servicing portfolio consisting of Ginnie Mae loans is seized or terminated in any single event or series of events arising from the same or substantially similar circumstances or occurrences.
Section 1.02No Waiver. An Event of Default shall be deemed to be continuing unless expressly waived by Buyer in writing.
Section 1.03Due and Payable. Upon the occurrence of any Event of Default which has not been waived in writing by Buyer, Administrative Agent may (and at the direction of Buyer shall), by notice to Seller, declare all Obligations to be immediately due and payable, and any obligation of Buyer to enter into Transactions with Seller shall thereupon immediately terminate. Upon such declaration, the Obligations shall become immediately due and payable, both as to Purchase Price outstanding and Price Differential, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein or other evidence of such Obligations to the contrary notwithstanding, except with respect to any Event of Default set forth in Section 7.01(d), in which case all Obligations shall automatically become immediately due and payable without the necessity of any notice or other demand, and any obligation of Buyer to enter into Transactions with Seller shall immediately terminate. Administrative Agent, on behalf of the Buyer, may enforce payment of the same and exercise any or all of the rights, powers and remedies possessed by Administrative Agent, on behalf of the Buyer, whether under this Agreement or any other Program Agreement or afforded by applicable law.
Section 1.04Fees. The remedies provided for herein are cumulative and are not exclusive of any other remedies provided by law. In addition to the Seller’s obligation contained in Section 3 of the Pricing Side Letter, Seller agrees to pay to Administrative Agent and Buyer reasonable attorneys’ fees and reasonable legal expenses incurred in enforcing Administrative Agent’s and Buyer’s rights, powers and remedies under this Agreement and each other Program Agreement.
Section 1.05Default Rate. Without regard to whether Buyer has exercised any other rights or remedies hereunder, if an Event of Default shall have occurred and be continuing, the applicable Margin in respect of the Pricing Rate shall be increased, to the extent permitted by law, as set forth in clause (ii) of the definition of “Margin”.
ARTICLE VIII
ENTIRE AGREEMENT; AMENDMENTS
AND WAIVERS; SEPARATE ACTIONS BY BUYER
Section 1.01Entire Agreement; Amendments. This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties hereto and supersedes any and all prior or contemporaneous agreements, written or oral, as to the matters contained herein, and no modification or waiver of any provision hereof or any of the Program Agreements, nor consent to the departure by Seller therefrom, shall be effective unless the same is in writing, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which it is given. This Agreement may not be amended, modified or supplemented except by writing executed by Seller, Administrative Agent and Buyer. The Administrative Agent shall comply with its obligations under Section 6(d) of the Acknowledgement Agreement; and in addition, the Seller shall deliver to Ginnie Mae a copy of any executed amendment to this Agreement promptly after execution thereof.
Section 1.02Waivers, Separate Actions by Buyer. Any amendment or waiver effected in accordance with this Article VIII shall be binding upon Buyer and Seller; and Buyer’s failure to insist upon the strict performance of any term, condition or other provision of this Agreement or
any of the Program Agreements, or of Buyer( or Administrative Agent on behalf of the Buyer) to exercise any right or remedy hereunder or thereunder, shall not constitute a waiver by Buyer (or Administrative Agent on behalf of the Buyer) of any such term, condition or other provision or Default or Event of Default in connection therewith, nor shall a single or partial exercise of any such right or remedy preclude any other or future exercise, or the exercise of any other right or remedy; and any waiver of any such term, condition or other provision or of any such Default or Event of Default shall not affect or alter this Agreement or any of the Program Agreements, and each and every term, condition and other provision of this Agreement and the Program Agreements shall, in such event, continue in full force and effect and shall be operative with respect to any other then existing or subsequent Default or Event of Default in connection therewith. The occurrence of an Event of Default hereunder or under any of the Program Agreements, the occurrence of a Purchase Price Reduction Event under this Agreement or the occurrence of an Advance Rate Reduction Event under the Indenture shall be deemed to be continuing unless and until waived in writing by Buyer.
ARTICLE IX
SUCCESSORS AND ASSIGNS
Section 1.01Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, any portion thereof, or any interest therein. Seller shall not have the right to assign all or any part of this Agreement or any interest herein without the prior written consent of Buyer.
Section 1.02Participations and Transfers.
(a)Buyer may in accordance with applicable law at any time sell to one or more banks or other entities (“Participants”) participating interests in all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements; provided that (i) if such sale is to a Competitor Buyer shall obtain Seller’s written consent on or prior to such sale; provided, further, Seller’s consent with respect to a sale to a Competitor shall not be required in the event that (A) such Competitor is an Affiliate of Buyer or (B) an Event of Default has occurred and is continuing, (ii) each such sale shall represent an interest in a Transaction in a Purchase Price of $[***]or more and (iii) other than with respect to a participating interest consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such sale will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. In the event of any such sale by Buyer of participating interests to a Participant, Buyer shall remain a party to the Transaction for all purposes under this Agreement and the Program Agreements and Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement and the Program Agreements. Buyer shall provide notice to Ginnie Mae within [***]of any participation made in accordance with this Section 9.02(a). For the avoidance of doubt, the terms and provisions of Section 9.02(b) shall not restrict or otherwise qualify the terms and provisions set forth in this Section 9.02(a).
(b)Buyer may in accordance with applicable law at any time assign, pledge, hypothecate, or otherwise transfer to one or more banks, financial institutions, investment companies, investment funds or any other Person (each, a “Transferee”) all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements so long as a Noteholder of an MBS Advance VFN continues to own interests in the outstanding Series of
VFNs in an aggregate amount that equals or exceeds the amount required to avoid an Early Amortization Event under any outstanding Series of Term Notes; provided, that (i) Seller has consented to such assignment, pledge, hypothecation, or other transfer (such consent not to be unreasonably withheld, conditioned or delayed); provided, however, Seller’s consent shall not be required in the event that (A) such Transferee is an Affiliate of Buyer or (B) an Event of Default has occurred; (ii) absent an Event of Default, Buyer shall give at least [***]prior notice thereof to Seller; and (iii) that each such sale shall represent an interest in the Transactions in an aggregate Purchase Price of $[***]; (iv) such Transferee shall have also acquired the same percentage interest in each other Series of Variable Funding Notes, unless such Transferee is an Affiliate of Buyer or unless Ginnie Mae has consented in writing to waive this requirement and (v) other than with respect to an assignment, pledge, hypothecation or transfer consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer received an opinion of a nationally recognized tax counsel experienced in such matters that such assignment, pledge, hypothecation or transfer will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. Buyer shall provide notice to Ginnie Mae within [***]of any assignment, pledge, hypothecation or transfer made in accordance with this Section 9.02(b). In the event of any such assignment, pledge, hypothecation or transfer by Buyer of Buyer’s rights under this Agreement and the other Program Agreements, Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement. Buyer (acting as agent for Seller) shall maintain at its address referred to in Section 10.05 a register (the “Register”) for the recordation of the names and addresses of Transferees, and the Purchase Price outstanding and Price Differential in the Transactions held by each thereof. The entries in the Register shall be prima facie conclusive and binding, and Seller may treat each Person whose name is recorded in the Register as the owner of the Transactions recorded therein for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register.
(c)All actions taken by Buyer pursuant to this Section 9.02 shall be at the expense of Buyer. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller.
(d)Notwithstanding any other provision of this Agreement to the contrary, Buyer may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of Seller; provided that no such pledge or grant shall release Buyer from its obligations under this Agreement; provided, further, that no such pledge or grant shall be to a Competitor of Seller.
Section 1.03Buyer and Participant Register.
(a)Subject to acceptance and recording thereof pursuant to paragraph (b) of this Section 9.03, from and after the effective date specified in each assignment and acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and acceptance, have the rights and obligations of Buyer under this Agreement. Any assignment or transfer by Buyer of rights or obligations under this Agreement that does not comply with this Section 9.03 shall be treated for purposes of this Agreement as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 9.02.
(b)Seller or an agent of Seller shall maintain a register (the “Transaction Register”) on which it will record the Transactions entered into hereunder, and each assignment and acceptance and participation. The Transaction Register shall include the name and address of
Buyer (including all assignees, successors and Participants), and the Purchase Price of the Transactions entered into by Buyer. Failure to make any such recordation, or any error in such recordation shall not affect Seller’s obligations in respect of such Transactions. If Buyer sells a participation in any Transaction, it shall provide Seller, or maintain as agent of Seller, the information described in this paragraph and permit Seller to review such information as reasonably needed for Seller to comply with its obligations under this Agreement or under any applicable law or governmental regulation or procedure.
ARTICLE X
________________________
Section 1.01Appointment of Administrative Agent.
(a)Buyer hereby irrevocably appoints Nomura Corporate Funding Americas, LLC, as Administrative Agent hereunder and under the other Program Agreements, and Buyer hereby authorizes Nomura Corporate Funding Americas, LLC, in such capacity, to act as its agent in accordance with the terms hereof. The provisions of this Article X are solely for the benefit of Administrative Agent and Buyer, and Seller shall not have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, Administrative Agent shall act solely as an agent of Buyer and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Seller.
(b)The Buyer may, to the extent permitted by applicable law and the Program Agreements, and with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld), by notice in writing to such Person remove for cause such Person as Administrative Agent and, with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld) and in accordance with the terms of the other Program Agreements, appoint a successor Administrative Agent. If no such successor Administrative Agent shall have been so appointed by the Buyer and shall have accepted such appointment within [***] (or such earlier day as shall be agreed by the Buyer and Seller), then such removal shall nonetheless become effective in accordance with such notice on the date [***] (or such earlier day as shall be agreed by the Buyer and Seller) after the Administrative Agent’s receipt of such notice of removal.
Section 1.02Powers and Duties. Buyer irrevocably authorizes Administrative Agent to take such action on Buyer’s behalf and to exercise such powers, rights and remedies hereunder and under the other Program Agreements as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Program Agreements. Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Administrative Agent shall not have, by reason hereof or any of the other Program Agreements, a fiduciary relationship in respect of Buyer; and nothing herein or any of the other Program Agreements, expressed or implied, is intended to or shall be so construed as to impose upon Administrative Agent any obligations in respect hereof or any of the other Program Agreements except as expressly set forth herein or therein.
Section 1.03Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or in connection with this Agreement or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel
(including, without limitation, counsel to the Administrative Agent), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Buyer and shall not be responsible to any Buyer for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Transaction Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (iv) shall not be responsible to any Buyer for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, nor shall the Administrative Agent be responsible or liable to the Buyers for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Buyer shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement, the Notes or any of the other Transaction Documents in its own interests as a Buyer or otherwise.
Section 1.04Administrative Agent to Act as Buyer. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Administrative Agent in its individual capacity as Buyer. Administrative Agent shall have the same rights and powers as any other Buyer and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Buyer” shall, unless the context clearly otherwise indicates, include Administrative Agent in its individual capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Seller or any of their Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Seller for services in connection herewith and otherwise without having to account for the same to Buyer.
Section 1.05Buyer’s Representations, Warranties and Acknowledgment.
(a)Buyer represents and warrants that it has made its own independent investigation of the financial condition and affairs of Seller in connection with the Transactions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Seller. Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Buyer or to provide Buyer with any credit or other information with respect thereto, whether coming into its possession before the making of the Transactions or at any time or times thereafter, and Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Buyer.
(b)Unless otherwise agreed to by Buyer and Seller, Buyer, by delivering its signature page to this Agreement and entering into Transactions with Seller hereunder shall be deemed to have acknowledged receipt of, and consented to and approved, each Program Agreement and each other document required to be approved by Administrative Agent or Buyer, as applicable on the Closing Date or such other funding date. Buyer acknowledges that by agreeing to remit its Commitment Share of the Purchase Price on any Purchase Date, Buyer agrees that all conditions precedent to entering into such Transaction have been met on such Purchase Date.
Section 1.06Right to Indemnity.
(a)Buyer hereby agrees to indemnify Administrative Agent, any Affiliate of the Administrative Agent, and their respective directors, officers, agents and employees (each, an “Indemnitee Agent Party”), and hold such Indemnitee Agent Party harmless to the extent that such Indemnitee Agent Party shall not have been reimbursed by Seller (to the extent required in accordance with the terms of this Agreement), from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (except to the extent that it has resulted from the gross negligence or willful misconduct of such Indemnitee Agent Party) which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Program Agreements or otherwise in its capacity as an Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Program Agreements, including amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished.
(b)Promptly after receipt by the Indemnitee Agent Party of notice of the commencement of any action regarding which a claim in respect thereof is to be made against Buyer, the Indemnitee Agent Party shall notify Buyer in writing of the commencement thereof, but the omission to so notify will not relieve Buyer from any liability which they may have under this Agreement or from any other liability which they may have, except to the extent that they have been prejudiced in any material respect by the failure by the Indemnitee Agent Party to provide prompt notice. Upon receipt of notice by Buyer, Buyer will be entitled to participate in the related action, and they may elect by written notice delivered to the Indemnitee Agent Party to assume the defense thereof. Upon receipt of notice by the Indemnitee Agent Party of the Buyer’s election to assume the defense of such action, Buyer shall not be liable to the Indemnitee Agent Party for legal expenses incurred by such party in connection with the defense thereof unless (i) Buyer shall not have employed counsel to represent the Indemnitee Agent Party within a reasonable time after receipt of notice of commencement of the action, (ii) Buyer have authorized in writing the employment of separate counsel for the Indemnitee Agent Party, or (iii) the Indemnitee Agent Party has previously engaged counsel and reasonable legal expenses are necessary (a) to transfer the file to the Buyer’s designated counsel, or (b) to pursue immediate legal action necessary to preserve the legal rights or defenses of the Indemnitee Agent Party as against a third party claimant, and such legal action must occur prior to said transfer. Buyer shall not settle any suit or claim without the Indemnitee Agent Party’s written consent unless such settlement solely involves the payment of money by parties other than the Indemnitee Agent Party and includes unconditional release of the Indemnitee Agent Party from all liability on all matters that are the subject of such proceeding or claim.
Section 1.07Successor Administrative Agent.
(a)Administrative Agent may resign at any time by giving [***]prior written notice thereof to Buyer. Upon any such notice of resignation, Buyer shall have the right to appoint a successor administrative agent; provided, that the retiring Administrative Agent shall continue to hold the Collateral and all liens and security interest therein for the benefit of Buyer until a successor administrative agent is appointed.
(b)Upon the acceptance of any appointment as Administrative Agent hereunder by a successor administrative agent, that successor administrative agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to such successor administrative agent all sums and items of Collateral held under the Program Agreements, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor administrative agent under the Program Agreements, and (ii) execute and deliver to such successor administrative agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor administrative agent of the security interests created under the Program Agreements, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X and Section 11.02 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.
(c)Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to an Affiliate without written notice to, the Buyer in accordance with the terms of the Program Agreements; provided, that Seller and Buyer may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Seller and Buyer of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Program Agreements.
Section 1.08Delegation of Duties. Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Program Agreement by or through (i) any one or more of its Affiliates or (ii) any one or more sub agents appointed by Administrative Agent with the prior consent of the Buyer. Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates and their respective officers, partners, directors, trustees, employees and agents. The exculpatory provisions of this Article X shall apply to any such Affiliate or sub agent and to such other parties as are listed above provided that notwithstanding this Section 10.08, no such delegation relieves the Administrative Agent of its duties or obligations under this Agreement.
Section 1.09Right to Realize on Collateral. Anything contained in any of the Program Agreements to the contrary notwithstanding, Seller, Administrative Agent and each Buyer hereby agree that (i) no Buyer shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Buyer in accordance with the terms hereof and all powers, rights and remedies under the Program Agreements may be exercised solely by Administrative Agent, and (ii) in the event of a foreclosure by Administrative Agent on any of the Collateral pursuant to a public or private sale, Administrative Agent or any Buyer may be the purchaser of any or all of such Collateral at any such sale and Administrative Agent, as agent for and representative of Buyer (but not any Buyer in its or their respective individual capacities unless Buyer shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Administrative Agent at such sale.
Section 1.10Erroneous Payments.
(a) If the Administrative Agent notifies Buyer or any Person who has received funds on behalf of Buyer (any Buyer or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known
to Buyer or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and Buyer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than [***]thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the overnight federal funds rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Administrative Agent to the contrary.
(b)Buyer hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to Buyer under any Transaction Document, or otherwise payable or distributable by the Administrative Agent to Buyer from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(c)For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor in accordance with immediately preceding clause (a), (i) the Administrative Agent may elect, in its sole discretion on written notice to Buyer, that all rights and claims of Buyer with respect to the Repurchase Price or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Repurchase Price”) shall immediately vest in the Administrative Agent upon such election; after such election, the Administrative Agent (x) may reflect its ownership interest in the related Repurchase Price in a principal amount equal to the Corresponding Repurchase Price on the Asset Schedule, and (y) [***], may sell such Repurchase Price (or portion thereof) in respect of the Corresponding Repurchase Price, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by Buyer shall be reduced by the net proceeds of the sale of such Repurchase Price (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against Buyer (and/or against any Payment Recipient that receives funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold such Repurchase Price, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of Buyer with respect to the Erroneous Payment Return Deficiency. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (i) will reduce the Committed Amount of any Buyer and such Committed Amount shall remain available in accordance with the terms of this Agreement.
(d)The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Seller, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment
that is, comprised of funds received by the Administrative Agent from Seller for the purpose of making such Erroneous Payment.
(e)No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(f)Each party’s obligations, agreements and waivers under this Section 10.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, Buyer, the termination of the obligations set forth in Section 2.01 with respect to the Committed Amount and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Transaction Document.
ARTICLE XI
MISCELLANEOUS
Section 1.01Survival. This Agreement and the other Program Agreements and all covenants, agreements, representations and warranties herein and therein and in the certificates delivered pursuant hereto and thereto, shall survive the entering into of the Transaction and shall continue in full force and effect so long as any Obligations are outstanding and unpaid.
Section 1.02Indemnification. Seller shall, and hereby agrees to, indemnify, defend and hold harmless Administrative Agent, Buyer, any Affiliate of Administrative Agent and Buyer and their respective directors, officers, agents, employees and counsel from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (including any wire fraud, or data or systems intrusion) (except to the extent that it is finally judicially determined to have resulted from their own gross negligence or willful misconduct) as a consequence of, or arising out of or by reason of any litigation, investigations, claims or proceedings which arise out of or are in any way related to, (i) this Agreement or any other Program Agreement, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any other Program Agreement or any transaction contemplated hereby or thereby, (ii) Seller’s servicing practices or procedures; (iii) any actual or proposed use by Seller of the proceeds of the Purchase Price, and (iv) any Default, Event of Default or any other breach by Seller of any of the provisions of this Agreement or any other Program Agreement, including , amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If and to the extent that any Obligations are unenforceable for any reason, Seller hereby agrees to make the maximum contribution to the payment and satisfaction of such Obligations which is permissible under applicable law. Seller’s obligations set forth in this Section 11.02 shall survive any termination of this Agreement and each other Program Agreement and the payment in full of the Obligations, and are in addition to, and not in substitution of, any other of its obligations set forth in this Agreement or otherwise. In addition, Seller shall, upon demand, pay to Buyer or Administrative Agent, as applicable, all costs and Expenses (including the reasonable fees and disbursements of counsel) paid or incurred by Buyer or Administrative Agent in (i) enforcing or defending its rights under or in respect of this Agreement or any other Program Agreement, (ii) collecting the Purchase Price outstanding, (iii) foreclosing or otherwise collecting upon any Repurchase Assets and (iv) obtaining any legal, accounting or other advice in connection with any of the foregoing. This Section shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Section 1.03Nonliability of Buyer. The parties hereto agree that, notwithstanding any affiliation that may exist between Seller and Buyer, the relationship between Seller and Buyer shall be solely that of arms-length participants. Buyer shall not have any fiduciary responsibilities to Seller. Seller (i) agrees that Buyer shall not have any liability to Seller (whether sounding in tort, contract or otherwise) for losses suffered by Seller in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by this agreement, the other loan documents or any other agreement entered into in connection herewith or any act, omission or event occurring in connection therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such losses were the result of acts or omissions on the part of Buyer constituting gross negligence or willful misconduct and (ii) waives, releases and agrees not to sue upon any claim against Buyer (whether sounding in tort, contract or otherwise), except a claim based upon gross negligence or willful misconduct. Whether or not such damages are related to a claim that is subject to such waiver and whether or not such waiver is effective, neither Buyer not Administrative Agent shall have any liability with respect to, and Seller hereby waives, releases and agrees not to sue upon any claim for, any special, indirect, consequential or punitive damages suffered by Seller in connection with, arising out of, or in any way related to the transactions contemplated or the relationship established by this Agreement, the other loan documents or any other agreement entered into in connection herewith or therewith or any act, omission or event occurring in connection herewith or therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such damages were the result of acts or omissions on the part of Buyer, as applicable, constituting willful misconduct or gross negligence.
Section 1.04Governing Law; Submission to Jurisdiction; Waivers.
(a)This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller acknowledges that the obligations of Buyer hereunder or otherwise are not the subject of any recourse to, any direct or indirect parent or other Affiliate of Buyer. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b)EACH OF THE PARTIES HERETO AND THE BUYER, BY THEIR ACCEPTANCE OF THE NOTE, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i)SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii)CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii)AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(c)WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY
Section 1.05Notices. Any and all notices (with the exception of Transaction Notices, which shall be delivered via facsimile only), statements, demands or other communications hereunder may be given by a party to the other by mail, email, facsimile, messenger or otherwise to the address specified below, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and requests hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence.
If to Seller:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: General Counsel
Email: [***]
If to Buyer:
For Transaction Notice:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Attention: Operations
E-mail: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
E-mail: [***]
If to Buyer:
For Transaction Notice:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Attention: Operations
E-mail: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
E-mail: [***]
Section 1.06Severability. 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. In case any provision in or obligation under this Agreement or any other Program Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 1.07Section Headings. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement.
Section 1.08Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterparty of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterparty of this Agreement. The parties agree that this Agreement, any addendum 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 the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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 providers with appropriate document access tracking, electronic signature tracking and document retention as may be approved by the Administrative Agent in its sole discretion.
Section 1.09Periodic Due Diligence Review. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller and the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agree that upon reasonable (but no less than [***]) prior written notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours, and in a manner that does not unreasonably interfere with the ordinary conduct of Seller’s business, to examine, inspect, and make copies and extracts of, any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession or under the control of Seller. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into a Transaction related to any Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets related to a Transaction. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller.
Section 1.10Hypothecation or Pledge of Repurchase Assets. Buyer shall have free and unrestricted use of all Repurchase Assets and nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with all or a portion of the Repurchase Assets or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating all or a portion of the Repurchase Assets; provided that prior to an Event of Default, such pledge, repledge, transfer, hypothecation or rehypothecation is treated as a financing or hedging transaction for U.S. federal income tax purposes or a pro rata interest in all payments due to Buyer under this Agreement; provided, further that other than with respect to a pro rata interest in all payments due to Buyer under this Agreement and prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such repurchase transaction, pledge, repledge, transfer, hypothecation or rehypothecation will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes.
Section 1.11Confidentiality.
(a)This Agreement and its terms, provisions, supplements and amendments, and notices hereunder, are proprietary to Buyer or Seller, as applicable and shall be held by each party hereto, as applicable in strict confidence and shall not be disclosed to any third party without the written consent of Buyer or Seller, except for (i) disclosure to Buyer’s or Seller’s direct and indirect Affiliates and Subsidiaries, attorneys, accountants insurance consultants, insurers, agents or financing sources (“Representatives”), but only to the extent such parties
agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence, (ii) disclosure to any assignee, prospective assignee, participant or prospective participant, including their respective Representatives, which is not prohibited from being an assignee or participant and which agrees to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein or are otherwise bound by a professional obligation of confidentiality, or (iii) disclosure required by law, rule, regulation or order of a court or other regulatory body. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Program Agreements, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Seller may not disclose the name of or identifying information with respect to Buyer or any pricing terms (including the Pricing Rate, the Purchase Price Percentage, the Purchase Price and the Commitment Fee) or other nonpublic business or financial information (including any sublimits) that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of Buyer.
(b)Notwithstanding anything in this Agreement to the contrary, Seller shall comply with all applicable local, state and federal laws, including all privacy and data protection law, rules and regulations that are applicable to the Repurchase Assets and/or any applicable terms of this Agreement (the “Confidential Information”). Seller understands 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 Seller 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 shall 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 Buyer or any Affiliate of Buyer which Seller holds, (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 represents and warrants that it has implemented appropriate measures to meet the objectives of Section 501(b) of the GLB Act and of the applicable standards adopted pursuant thereto, as now or hereafter in effect. Upon request, Seller will provide evidence reasonably satisfactory to allow Buyer to confirm that the providing party has satisfied its obligations as required under this Section 11.11. Without limitation, this may include Buyer’s review of audits, summaries of test results, and other equivalent evaluations of Seller. Seller shall notify Buyer immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of nonpublic personal information of the customers and consumers of Buyer or any Affiliate of Buyer provided directly to Seller by Buyer or such Affiliate. Seller shall provide such notice to Buyer by personal delivery, by facsimile with confirmation of receipt, or by overnight courier with confirmation of receipt to the applicable requesting individual.
Section 1.12Set-off; Netting. In addition to any rights and remedies of Buyer hereunder and by law, upon Buyer’s exercise against Seller of its contractual right as set forth in section 555 and 559 of the Bankruptcy Code to liquidate, terminate, or accelerate such contractual right, Buyer and any of 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, to aggregate, offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with set-off, foreclose, net and appropriate and apply against any Obligation hereunder or other contractual obligation, transaction, confirmation, or agreement set forth in section 555 and 559 of the Bankruptcy Code under any other financing facility between the
Seller and the Buyer, whenever arising, from Seller to Buyer or any of its Affiliates including (i) any and all deposit, securities or other trust or custodial accounts maintained for the Seller by the Buyer or its Affiliates and any related deposits (general or special, time or demand, provisional or final), in any currency, or other property (including security entitlements) now or hereafter credited to or held in any such account or otherwise held, or carried by or through, or subject to the control of the Buyer or its applicable Affiliates or agent thereof in connection with any Obligation hereunder or other obligation, transaction, confirmation, or agreement under any other financing facility, whenever arising, whether fully paid or otherwise, (ii) all accounts, chattel paper, commodity accounts, commodity contracts, documents, general intangibles, instruments, investment property, letter-of-credit rights, and securities held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document, (iii) any other obligation (including to return funds to Seller), credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by or due from Buyer or any Affiliate thereof to or for the credit or the account of Seller, and (iv) all proceeds of or distributions on any of the foregoing, in each case solely to the extent held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document. The rights of the Buyer and its Affiliates contained herein are in addition to any and all recoupment rights that each such party may have at law or in equity against the Seller under any Transaction Document or any other financing agreement. For the avoidance of doubt, the Affiliates of the Buyer shall be third party beneficiaries with respect to the terms and provisions of this Section 11.12. Buyer agrees promptly to notify Seller after any such set off or netting and application made by Buyer; provided, that, the failure to give such notice shall not affect the validity of such set off, netting and its application.
Section 1.13Intent.
(a)The parties recognize that each Transaction is a “master netting agreement” as that term is defined in Section 101 of Title 11 of the United States Code, as amended and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code, as amended and that all payments hereunder are deemed “margin payments” or “settlement payments” as defined in Title 11 of the United States Code.
(b)It is understood that either party’s right to liquidate Purchased Assets delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 7.03 is a contractual right to liquidate such Transaction as described in Sections 555 and Section 561 of Title 11 of the United States Code, as amended.
(c)The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in 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 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)This Agreement is intended to be a “securities contract,” within the meaning of Section 555 under the Bankruptcy Code, and a “master netting agreement,” (including but not
limited to the agreements set forth in Section 11.12 hereof) within the meaning of Section 561 under the Bankruptcy Code.
It is the intention of the parties that, for U.S. federal income tax purposes and for accounting purposes, each Transaction constitute a financing with Seller incurring an indebtedness, and that Seller be (except to the extent that Buyer shall have exercised its remedies following an Event of Default) the owner of the Purchased Assets for such purposes. Unless prohibited by applicable law that becomes effective after the date of this Agreement, Seller and Buyer shall treat the Transactions as described in the preceding sentence (including on any and all filings with any U.S. federal, state, or local taxing authority and agree not to take any action inconsistent with such treatment).
IN WITNESS WHEREOF, Seller and Buyer have caused this Master Repurchase Agreement to be executed and delivered by their duly authorized officers or trustees as of the date first above written.
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Buyer
By: /s/Sanil Patel
Name: Sanil Patel
Title: Managing Director
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Administrative Agent
By: /s/Sanil Patel
Name: Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust – Series 2021-SAVF1 Repurchase Agreement]
LOANDEPOT.COM, LLC,
as Seller
By: /s/ David Hayes
Name: David Hayes
Title: CFO
[loanDepot GMSR Master Trust – Series 2021-SAVF1 Repurchase Agreement]
SCHEDULE 1
[***]
SCHEDULE 2
[***]
SCHEDULE 3
[***]
SCHEDULE 4
[***]
EXHIBIT A
[***]
EXHIBIT B
[***]
Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
MASTER REPURCHASE AGREEMENT
among
NOMURA CORPORATE FUNDING AMERICAS, LLC, as administrative agent (“Administrative Agent”)
and
NOMURA CORPORATE FUNDING AMERICAS, LLC, as buyer (“Buyer”)
and
LOANDEPOT.COM, LLC, as seller (“Seller”)
Dated as of January 25, 2024
LOANDEPOT GMSR MASTER TRUST
MSR COLLATERALIZED NOTES,
SERIES 2021-PIAVF1
TABLE OF CONTENTS
Page
Schedule 1 – Responsible Officers of Seller
Schedule 2 – Asset Schedule
Schedule 3 – Buyer Account
Schedule 4 – List of Competitors
Exhibit A – Form of Transaction Notice
Exhibit B – Existing Indebtedness
MASTER REPURCHASE AGREEMENT
This Master Repurchase Agreement (“Agreement”) is made as of January 25, 2024, among NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as administrative agent (the “Administrative Agent”), NOMURA CORPORATE FUNDING AMERICAS, LLC (“NCFA”), as buyer (“Buyer”), and LOANDEPOT.COM, LLC (“loanDepot”), as seller (“Seller”). Capitalized terms have the meanings specified in Sections 1.01 and 1.02.
W I T N E S S E T H :
WHEREAS, pursuant to the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement, loanDepot GMSR Master Trust (the “Issuer”) has duly authorized the issuance of a Series of Notes, as a single Class of Variable Funding Notes, known as the “loanDepot GMSR Master Trust MSR Collateralized Notes, Series 2021-PIAVF1” (the “Note”), which has been transferred to NCFA;
WHEREAS, pursuant to the Notice of Resignation of Administrative Agent, dated as of the date hereof, Atlas Securitized Products, L.P., has resigned as Administrative Agent under the Program Agreements; and
WHEREAS, pursuant to the Notice of Designation of Administrative Agent, dated as of the date hereof, NCFA has been appointed as Administrative Agent under the Program Agreements.
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows.
ARTICLE I
DEFINITIONS
Section 1.01Certain Defined Terms. Capitalized terms used herein shall have the indicated meanings:
“1933 Act” means the Securities Act of 1933, as amended from time to time.
“1934 Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Act of Insolvency” means, with respect to any Person, (a) the filing of a petition by such Person commencing, or authorizing the commencement of any case or proceeding, or the voluntary joining by such Person of any case or proceeding under any bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law relating to the protection of creditors, or suffering by such Person of any such petition or proceeding to be commenced by another which is consented to, not timely contested or results in entry of an order for relief; (b) the seeking of the appointment of a receiver, trustee, custodian or similar official for such Person or any substantial part of the property of such Person; (c) the appointment of a receiver, conservator, or manager for such Person by any governmental agency or authority having the jurisdiction to do so; (d) the making or offering by such Person of a composition with its creditors or a general assignment for the benefit of creditors; (e) the admission by such Person of its inability to pay its debts or discharge its obligations as they become due or mature; or (f) that any governmental
authority or agency or any person, agency or entity acting or purporting to act under governmental authority 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 such Person, or shall have taken any action to displace the management of such Person or to curtail its authority in the conduct of the business of such Person.
“Additional Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Adjusted One-Month Term SOFR” means an interest rate per annum equal to (i) the One-Month Term SOFR, plus (ii) the applicable Benchmark Adjustment.
“Administrative Agent” has the meaning given to such term in the preamble to this Agreement.
“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; provided, however, (i) any Permitted Holder or (ii) any joint venture for which Seller or LD Holdings Group LLC owns less than fifty percent (50%) of the equity interests therein, in either case, shall not be considered an Affiliate of Seller or any of its Subsidiaries for purposes of this Agreement or any other Program Agreement.
“Agreement” has the meaning given to such term in the preamble to this Agreement.
“Anti-Corruption Laws” means any applicable U.S. law, regulation, or rule related to combating corruption or bribery, including, but not limited to, the United States Foreign Corruption Practices Act of 1977, as amended.
“Anti-Money Laundering Laws” means any applicable U.S. law, regulation, or rule related to combating money laundering, suspicious transactions or terrorist financing, including, but not limited to, the U.S. Bank Secrecy Act of 1986 (31 U.S.C. Section 5301 et seq.) and all regulations issued pursuant to it, and the USA Patriot Act (in each case to the extent applicable to the parties and to this Agreement).
“Applicable Law” means all applicable U.S. federal, state and local provisions of constitutions, laws, statutes, ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders of courts of Governmental Authorities and all orders and decrees of all courts and arbitrators including, without limitation, the Anti-Corruption Laws and the Anti-Money Laundering Laws.
“Asset Schedule” means Schedule 2 attached hereto, which lists the Note, as such schedule shall be updated from time to time to reflect any increases or decreases in the VFN Principal Balance thereof in accordance with Section 2.13.
“Asset Value” means with respect to any Purchased Asset, the sum of the Asset Value Base and the Asset Value Incremental 1.
“Asset Value Base” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Base, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Asset Value Incremental 1” means, with respect to any Purchased Asset as of any date of determination, an amount equal to the product of (a) the applicable Purchase Price Percentage Incremental 1, (b) the Purchase Price Percentage Total and (c) the Market Value.
“Bankruptcy Code” means the United States Bankruptcy Code of 1978, as amended from time to time.
“Base Indenture” means the Third Amended and Restated Base Indenture, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, Seller, as administrator and as servicer, NCFA, as administrative agent, and the Credit Manager, including the schedules and exhibits thereto.
“Base Rate” has the meaning assigned to such term in the Pricing Side Letter.
“Benchmark” means, with respect to any date of determination, the Adjusted One-Month Term SOFR or, if applicable, a Benchmark Replacement Rate. It is understood that the Benchmark shall be adjusted on a daily basis; provided, that, [***].
“Benchmark Adjustment” means, for any day, the spread adjustment for such Price Differential Period that has been selected or recommended by the Relevant Governmental Body for the tenor of 1 month. For the avoidance of doubt, the “Benchmark Adjustment” means, for any day, the value as reported on the display designated as “YUS0001M” on Bloomberg, or such other display as may replace “YUS0001M.”
“Benchmark Administration Changes” means, with respect to the Benchmark (including any Benchmark Replacement Rate), any technical, administrative or operational changes (including without limitation changes to the timing and frequency of determining rates and making payments of interest, length of lookback periods, and other administrative matters as may be appropriate, in the sole and good faith discretion of Administrative Agent, to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such Benchmark exists, in such other manner of administration as Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).
“Benchmark Replacement Rate” means with respect to any Benchmark Transition Event, the sum of: (i) the alternate benchmark rate that has been selected in the sole and good faith discretion of Administrative Agent, giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar denominated repurchase facilities and (ii) the related Benchmark Administration Changes; provided that, no such Benchmark Replacement Rate as so determined would be less than 0%.
“Benchmark Transition Event” means a determination by Administrative Agent in its sole good faith discretion that, by reason of circumstances affecting the relevant market, (i) adequate and reasonable means do not exist for ascertaining the Benchmark, (ii) the applicable Benchmark is no longer in existence, (iii) continued implementation of the Benchmark is no longer administratively feasible or no significant market practice for the administration of the Benchmark exists, (iv) the Benchmark will not adequately and fairly reflect the cost to Buyer of purchasing or maintaining Purchased Assets or (v) the administrator of the applicable Benchmark or a Relevant Governmental Body having jurisdiction over Buyer or Administrative
Agent has made a public statement identifying a specific date after which the Benchmark shall no longer be made available or used for determining the interest rate of loans or other extensions of credit.
“Business Day” means any day other than (i) a Saturday or Sunday or (ii) any other day on which national banking associations or state banking institutions in New York, New York, the State of California, the city and state where the Corporate Trust Office is located or the Federal Reserve Bank of New York, are authorized or obligated by law, executive order or governmental decree to be closed.
“Buyer” means NCFA, together with its successors, and any assignee of and Participant or Transferee in the Transaction.
“Buyer Account” means the account identified on Schedule 3 hereto.
“Capital” means any and all shares, units, interests, membership interests, limited liability company interests, participations, partnership interests, rights or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, any Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any of the foregoing.
“Change in Control” means any of the following shall occur without the prior written consent of the Administrative Agent:
(1)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 Securities Exchange Act of 1934, as amended), 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 Securities Exchange Act of 1934, as amended) 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;
(2)he sale, transfer, or other disposition of all or substantially all of Seller’s or Guarantor’s assets (excluding any such action taken in connection with any securitization transaction);
(3)Seller or Guarantor enters into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated; or
(4)any transaction or event as a result of which the Guarantor ceases to indirectly own and control, [***] of the Capital Stock of the Seller.
“Closing Date” means February 10, 2022.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” means the obligation of Buyer to enter into Transactions with Seller with an aggregate outstanding Purchase Price at any one time not to exceed the Committed Amount.
“Commitment Fee” has the meaning assigned to such term in the Pricing Side Letter to the Series 2017-VF1 Repurchase Agreement.
“Commitment Period” means the period from and including the Effective Date to but not including the Termination Date or such earlier date on which the Commitment shall have terminated pursuant to this Agreement.
“Committed Amount” has the meaning assigned to such term in the Pricing Side Letter to the Series 2017-VF1 Repurchase Agreement.
“Competitor” means (a) any Person that is a direct competitor of the Seller listed on Schedule 4 hereto, which may be updated from time to time following the written request of the Seller to the extent consented to in writing by the Buyer (which consent shall not be unreasonably withheld) or (b) wholly-owned Subsidiary of such Person.
“Confidential Information” has the meaning set forth in Section 10.11(b).
“Control”, “Controlling” or “Controlled” means the possession of the power to direct or cause the direction of the management or policies of a Person through the right to exercise voting power or by contract, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
“Credit Manager” means Pentalpha Surveillance LLC and any successor thereto in such capacity.
“Default” means an event, condition or default that, with the giving of notice, the passage of time, or both, would constitute an Event of Default.
“Diligence Services Expense Cap” shall have the meaning set forth in the Pricing Side Letter.
“Division” means, with respect to any Person that is a limited liability company organized under the laws of the State of Delaware, any such Person that (a) divides into two or more Persons (whether or not the original Person or Subsidiary thereof survives such division) or (b) creates, or reorganizes into, one or more series, in each case, as contemplated under the laws of the State of Delaware, including Section 18-217 of the Delaware Limited Liability Company Act.
“Dollars” and “$” means dollars in lawful currency of the United States of America.
“Effective Date” shall have the meaning set forth in the preamble.
“EO13224” has the meaning set forth in Section 3.25.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.
“ERISA Affiliate” means any corporation or trade or business that, together with Seller is treated as a single employer under section 414(b) or (c) of the Code or solely for
purposes of section 302 of ERISA and section 412 of the Code is treated as single employer described in section 414 of the Code.
“ERISA Event of Termination” means with respect to Seller (i) with respect to any Plan, a reportable event, as defined in section 4043 of ERISA, as to which the PBGC has not by regulation waived the requirement of section 4043(a) of ERISA that it be notified with [***]of the occurrence of such event, or (ii) the withdrawal of Seller or any ERISA Affiliate thereof from a Plan during a plan year in which it is a substantial employer, as defined in section 4001(a)(2) of ERISA, or (iii) the failure by Seller or any ERISA Affiliate thereof to meet the minimum funding standard of section 412 of the Code or section 302 of ERISA with respect to any Plan, including the failure to make on or before its due date a required installment under section 412(m) of the Code (or Section 430(j) of the Code as amended by the Pension Protection Act) or section 302(e) of ERISA (or section 303(j) of ERISA, as amended by the Pension Protection Act), or (iv) the distribution under section 4041 of ERISA of a notice of intent to terminate any Plan or any action taken by Seller or any ERISA Affiliate thereof to terminate any plan, or (v) the failure to meet requirements of Section 436 of the Code resulting in the loss of qualified status under section 401(a)(29) of the Code, or (vi) the institution by the PBGC of proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or (vii) the receipt by Seller or any ERISA Affiliate thereof of a notice from a Multiemployer Plan that action of the type described in the previous clause (vi) has been taken by the PBGC with respect to such Multiemployer Plan, or (viii) any event or circumstance exists which may reasonably be expected to constitute grounds for Seller or any ERISA Affiliate thereof to incur liability under Title IV of ERISA or under sections 412(b) or 430(k) of the Code with respect to any Plan.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Buyer or other recipient of any payment hereunder or required to be withheld or deducted from a payment to such Buyer or such other recipient: (a) Taxes based on (or measured by) net income or net profits, franchise Taxes and branch profits Taxes that are imposed on a Buyer or other recipient of any payment hereunder as a result of (i) 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) a present or former connection between such Buyer or other recipient and the jurisdiction of the Governmental Authority imposing such Tax or any political subdivision or taxing authority thereof (other than connections arising from such Buyer or other recipient 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 under this Agreement or any Program Agreement, or sold or assigned an interest in any Purchased Mortgage Loan); (b) any Tax imposed on a Buyer or other recipient of a payment hereunder that is attributable to such Buyer’s or other recipient’s failure to comply with relevant requirements set forth in Section 2.11(e); (c) any withholding Tax that is imposed on amounts payable to or for the account of such Buyer or other recipient of a payment hereunder pursuant to a law in effect on the date such person becomes a party to or under this Agreement, or such person changes its lending office, except in each case to the extent that amounts with respect to Taxes were payable either to such person’s assignor immediately before such person became a party hereto or to such person immediately before it changed its lending office; and (d) any U.S. federal withholding Taxes imposed under FATCA.
“Existing Indebtedness” has the meaning specified in Section 3.22.
“Expenses” means all present and future expenses reasonably incurred by or on behalf of Buyer in connection with the negotiation, execution or enforcement of this Agreement
or any of the other Program Agreements and any amendment, supplement or other modification or waiver related hereto or thereto, whether incurred heretofore or hereafter, which expenses shall include the reasonable and documented cost of title, lien, judgment and other record searches; reasonable and documented attorneys’ fees; any ongoing audits or due diligence costs in connection with valuation, entering into Transactions or determining whether a Margin Deficit may exist; and costs of preparing and recording any UCC financing statements or other filings necessary to perfect the security interest created hereby.
“FATCA” Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to section 1471(b) of the Code, or any U.S. or non-U.S. fiscal or regulatory legislation, guidance, notes, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such sections of the Code.
“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.
“GAAP” means U.S. generally accepted accounting principles that are (i) consistent with the principles promulgated or adopted by the Financial Accounting Standards Board and its successors, as in effect from time to time, and (ii) applied consistently with principles applied to past financial statements of Seller and its subsidiaries; provided, that a certified public accountant would, insofar as the use of such accounting principles is pertinent, be in a position to deliver an unqualified opinion (other than a qualification regarding changes in generally accepted accounting principles) that such principles have been properly applied in preparing such financial statements.
“GLB Act” has the meaning set forth in Section 10.11(b).
“Governmental Actions” means any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions over Seller or Buyer, as applicable.
“Governmental Rules” means any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.
“Guarantor” means LD Holdings Group LLC, a Delaware limited liability company, its successors in interest and assigns.
“Guaranty” means that certain Guaranty of the Guarantor made in favor of Buyer, dated as of January 25, 2024, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Hsieh Investors” means each of [***], JLSSAA Family Trust, 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.
“Indebtedness” has the meaning set forth in the Pricing Side Letter.
“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 Seller under any Program Agreement and (b) to the extent not otherwise described in (a), Other Taxes.
“Indenture” means the Base Indenture, together with the Series 2021-PIAVF1 Indenture Supplement thereto.
“Indenture Trustee” means Citibank, N.A., its permitted successors and assigns.
“Issuer” has the meaning given to such term in the recitals to this Agreement.
“Laws” means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental Authority.
“Legal Expense Cap” has the meaning assigned to the term in the Pricing Side Letter.
“Lien” means, with respect to any property or asset of any Person (a) any mortgage, lien, pledge, charge or other security interest or encumbrance of any kind in respect of such property or asset or (b) the interest of a vendor or lessor arising out of the acquisition of or agreement to acquire such property or asset under any conditional sale agreement, lease purchase agreement or other title retention agreement.
“loanDepot” has the meaning given to such term in the recitals to this Agreement.
“Margin” has the meaning assigned to the term in the Pricing Side Letter.
“Margin Call” has the meaning set forth in Section 2.05(a).
“Margin Deadlines” has the meaning set forth in Section 2.05(b).
“Margin Deficit” has the meaning set forth in Section 2.05(a).
“Market Value” means, with respect to the Note as of any date of determination, and without duplication, the fair market value of the Note on such date as reasonably determined by Buyer (or an Affiliate thereof).
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets or condition (financial or otherwise) of Seller or any Affiliate that is a party to any Program Agreement taken as a whole; (b) a material impairment of the ability of Seller or any Affiliate that is a party to any Program Agreement to perform under any Program Agreement and to avoid any Event of Default; (c) a material adverse effect upon the legality, validity, binding effect or enforceability of any Program Agreement against Seller or any Affiliate that is a party to any Program Agreement or (d) a material adverse effect upon the existence, perfection, priority or enforceability of Buyer’s security interest in a material portion of the Repurchase Assets.
“Maximum Purchase Price” has the meaning assigned to the term in the Pricing Side Letter.
“Moody’s” means Moody’s Investors Service, Inc. or any successors thereto.
“Multiemployer Plan” means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been or are required to be made by Seller or any ERISA Affiliate and that is covered by Title IV of ERISA.
“NCFA” has the meaning given to such term in the preamble to this Agreement.
“Nomura Indebtedness” means [***].
“Non-Recourse Debt” means liabilities for which the assets securing such obligations are the only source of repayment, subject to customary, non-recourse carve-outs. For the avoidance of doubt, Non-Recourse Debt shall include securitizations that meet the foregoing criteria.
“Note” has the meaning given to such term in the recitals to this Agreement.
“Notice” or “Notices” means all requests, demands and other communications, in writing (including facsimile transmissions and e-mails), sent by overnight delivery service, facsimile transmission, electronic transmission or hand-delivery to the intended recipient at the address specified in Section 10.05 or, as to any party, at such other address as shall be designated by such party in a written notice to the other party.
“Obligations” means (a) all of Seller’s indebtedness, obligations to pay the outstanding principal balance of the Purchase Price, together with interest thereon on the Termination Date, outstanding interest due on each Price Differential Payment Date, and other obligations and liabilities, to Administrative Agent, to Buyer or their respective Affiliates arising under, or in connection with, the Program Agreements, whether now existing or hereafter arising; (b) any and all sums reasonably incurred and paid by Buyer or on behalf of Buyer in order to preserve any Repurchase 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 this definition, the reasonable expenses of retaking, holding, collecting, preparing for sale, selling or otherwise disposing of or realizing on any Repurchase Asset, or of any exercise by Buyer of its rights under the Program Agreements, including reasonable attorneys’ fees and disbursements and court costs; and (d) all of Seller’s indemnity obligations to Buyer pursuant to the Program Agreements.
“OFAC” has the meaning set forth in Section 3.25.
“Officer’s Compliance Certificate” has the meaning assigned to such term in the Pricing Side Letter.
“One-Month Term SOFR” means, with respect to each day or any portion thereof (an “Accrual Day”), the rate per annum determined by the Administrative Agent as the forward-looking one-month term rate based on SOFR, as published by the CME Term SOFR Administrator, [***] U.S. Governmental Securities Business Days prior to such Accrual Day. Any change in One-Month Term SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to any Seller Party.
“Organizational Documents” means the corporate charter and bylaws, the articles of organization and operating agreement and the partnership certificate and partnership agreement, as applicable of a Person.
“Other Repurchase Agreements” means, the Series 2021-SAVF1 Repurchase Agreement and the Series 2017-VF1 Repurchase Agreement.
“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes or any excise, sales, goods and services or transfer taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Program Agreement.
“Participant” has the meaning set forth in Section 9.02(a).
“Participation Agreement” means the Third Amended and Restated GMSR Participation Agreement, dated as of January 25, 2024, between loanDepot, as company, and loanDepot, as initial participant.
“Parthenon Investors” means each of [***] and each of their respective affiliates.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“PC Repurchase Agreement” means the Third Amended and Restated Master Repurchase Agreement, dated as of January 25, 2024, between the Issuer and Seller, as amended, restated, supplemented or otherwise modified from time to time.
“Pension Protection Act” means the Pension Protection Act of 2006, as amended from time to time.
“Permitted Holders” means any of the Hsieh Investors and the Parthenon Investors.
“Person” means an individual, partnership, corporation (including a business trust), limited liability company, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.
“PIAVF1 Funding Conditions” with respect to the Series 2021-PIAVF1 Notes and any Funding Date, the following conditions: [***].
“Plan” means an employee benefit or other plan established or maintained by any Seller or any ERISA Affiliate and covered by Title IV of ERISA, other than a Multiemployer Plan.
“Price Differential” has the meaning set forth in the Pricing Side Letter.
“Price Differential Base” has the meaning set forth in the Pricing Side Letter.
“Price Differential Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Price Differential Payment Date” means, for as long as any Obligations shall remain owing by Seller to Buyer, each Payment Date.
“Price Differential Period” means, the period from and including a Price Differential Payment Date, up to but excluding the next Price Differential Payment Date.
“Price Differential Statement Date” has the meaning set forth in Section 2.04.
“Pricing Rate” means, with respect to each Purchased Asset, the sum of (a) with respect to the Purchase Price Base, the Pricing Rate Base; and (b) with respect to the Purchase Price Incremental 1, the Pricing Rate Incremental 1.
“Pricing Rate Base” has the meaning set forth in the Pricing Side Letter.
“Pricing Rate Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Pricing Side Letter” means the pricing side letter dated as of the Closing Date, between Buyer and Seller as amended, restated, supplemented or otherwise modified from time to time.
“Primary Repurchase Assets” has the meaning set forth in Section 4.02(a).
“Proceeds” means “proceeds” as defined in Section 9-102(a)(64) of the UCC.
“Program Agreements” means this Agreement, the Pricing Side Letter, the Guaranty, the Base Indenture, the PC Repurchase Agreement, the Participation Agreement and the Series 2021-PIAVF1 Indenture Supplement.
“Prohibited Person” has the meaning set forth in Section 3.25.
“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, subject to the satisfaction of the conditions precedent set forth in Article V, each Funding Date (as defined in the Indenture) on which a Transaction is entered into by Buyer pursuant to Section 2.02 or such other mutually agreed upon date as more particularly set forth in the related Transaction Notice.
“Purchase Price” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Base” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Incremental 1” has the meaning set forth in the Pricing Side Letter.
“Purchase Price Percentage Total” has the meaning set forth in the Pricing Side Letter.
“Purchased Assets” means, collectively, the Note and all outstanding Additional Balances together with the Repurchase Assets related to such Note and Additional Balances transferred by Seller to Buyer in a Transaction hereunder, as listed on the related Asset Schedule attached to the related Transaction Notice.
“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 the Purchased Assets.
“Register” has the meaning set forth in Section 9.02(b).
“Regulations T, U and X” shall mean Regulations T, U and X of the Board of Governors of the Federal Reserve System (or any successor), as the same may be modified and supplemented and in effect from time to time.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Repurchase Assets” has the meaning set forth in Section 4.02(c).
“Repurchase Date” means the earlier of (i) the Termination Date or (ii) the date requested by Seller on which the Repurchase Price is paid pursuant to Section 2.03.
“Repurchase Documents” means any or all of the “Program Agreements” as defined in each Other Repurchase Agreement.
“Repurchase Price” means, with respect to any Purchased Asset, the price at which Purchased Assets are to be transferred from Buyer to Seller upon termination of a Transaction, which will be determined in each case (including Transactions terminable upon demand) as the sum of the Purchase Price plus the accrued but unpaid Price Differential, plus any related fees or any indemnification amounts allocable to the repurchase of such Purchased Assets or release of such Purchased Asset, plus any other amounts due and payable hereunder with respect to such Purchased Asset, as of the date of such determination.
“Repurchase Rights” has the meaning set forth in Section 4.02(c).
“Request for Certification” means a notice sent to Buyer reflecting the sale of the Note to Buyer.
“Requirement of Law” means, with respect to any Person, any law, treaty, rule or regulation or determination of an arbitrator, a court or other Governmental Authority, 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 as to any Person, the chief executive officer or, with respect to financial matters, the chief financial officer or treasurer of such Person. The Responsible Officers of Seller as of the Closing Date are listed on Schedule 1 hereto.
“Sanctions” shall have the meaning set forth in Section 3.30.
“Sanctioned Jurisdiction” shall have the meaning set forth in Section 3.30.
“SEC” means the Securities and Exchange Commission, or any successor thereto.
“Seller” has the meaning assigned to such term in the preamble to this Agreement and includes loanDepot’s permitted successors and assigns.
“Seller Termination Option” means (a) Buyer has incurred or shall incur costs in connection with those matters provided for in Section 2.10 or 2.11 and (b) Buyer requests that Seller reimburse Buyer for those costs in connection therewith.
“Series 2017-VF1 Pricing Side Letter” means the Series 2017-VF1 Pricing Side Letter, dated as of January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer, and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2017-VF1 Repurchase Agreement” means the Series 2017-VF1 Repurchase Agreement, dated as of January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer, and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2021-PIAVF1 Indenture Supplement” means the Amended and Restated Series 2021-PIAVF1 Indenture Supplement, dated as of January 25, 2024, among the Issuer, Citibank, N.A., as indenture trustee, as calculation agent, as paying agent and as securities intermediary, loanDepot, as administrator and as servicer, and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“Series 2021-SAVF1 Repurchase Agreement” means the Series 2021-SAVF1 Repurchase Agreement, dated January 25, 2024, among loanDepot, as repo seller, NCFA, as repo buyer and NCFA, as administrative agent, as amended, restated, supplemented or otherwise modified from time to time.
“SOFR” means a rate per annum equal to the secured overnight financing rate published for such day 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.
“Subordinated Pledge Assets” has the meaning set forth in Section 4.02(e).
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, 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.
“Tax Distributions” means distributions by the Seller for the purpose of enabling LD Holdings Group LLC to make Tax Distributions, as defined and set forth in the limited liability company agreement of LD Holdings Group LLC.
“Taxes” means any and all present or future taxes (including social security contributions and value added taxes), levies, imposts, duties (including stamp duties), deductions, charges (including ad valorem charges), withholdings (including backup withholding), assessments, fees or other charges of any nature whatsoever imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned to such term in the Pricing Side Letter.
“Transaction” means a transaction pursuant to which Seller transfers a Note or increases in the value thereof, as applicable, to Buyer against the transfer of funds by Buyer, with a simultaneous agreement by Buyer to transfer such Note or any interest therein, as applicable, back to Seller at a date certain or on demand, against the transfer of funds by Seller.
“Transaction Notice” has the meaning assigned to such term in Section 2.02(a).
“Transaction Register” has the meaning assigned to such term in Section 9.03(b).
“Transferee” has the meaning set forth in Section 9.02(b).
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect on the Closing Date in the State of New York or the Uniform Commercial Code as in effect in the applicable jurisdiction.
Section 1.02Other Defined Terms.
(a)Any capitalized terms used and not defined herein shall have the meaning set forth in the Pricing Side Letter, Base Indenture or the Series 2021-PIAVF1 Indenture Supplement, as applicable.
(b)The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified herein, the term “or” has the inclusive meaning represented by the term “and/or” and the term “including” is not limiting. All references to Sections, subsections, Articles and Exhibits shall be to Sections, subsections, and Articles of, and Exhibits to, this Agreement unless otherwise specifically provided.
(c) Reference to and the definition of any document (including this Agreement) shall be deemed a reference to such document as it may be amended, restated, supplemented or otherwise modified from time to time;
(d)In the computation of periods of time from a specified date to a later specified date, unless otherwise specified herein the words “commencing on” mean “commencing on and including,” the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”
ARTICLE II
GENERAL TERMS
Section 1.01Transactions. Subject to the terms and conditions hereof, prior to the Termination Date, Buyer agrees to enter into Transactions with Seller for a Purchase Price outstanding at any one time not to exceed the lesser of (i) the Maximum Purchase Price and (ii) the Asset Value. During the term of this Agreement, Seller may request Transactions (and during the Commitment Period, Seller may utilize the Commitment by requesting Transactions), Seller may pay the Repurchase Price in whole or in part at any time during such period without penalty, and additional Transactions may be entered into in accordance with the terms and conditions hereof. Buyer’s obligation to enter into Transactions pursuant to the terms of this Agreement shall terminate on the Termination Date. Notwithstanding the foregoing, Buyer shall have no commitment or obligation to enter into Transactions in connection with the Note to the extent the
Purchase Price of such Transaction exceeds the Committed Amount. With respect to each Transaction, the Administrative Agent shall allocate such Transaction such that the Buyer in connection with the Purchase Price Base pays such amount and the Buyer in connection with the Purchase Price Incremental 1 pays such amount, as applicable, and, in which case, the Administrative Agent shall own the Purchased Asset subject to such Transaction, for the benefit of the purchasing Buyers (as the case may be) subject to the terms set forth herein. The sum of the aggregate outstanding Purchase Price Base and Purchase Price Incremental 2 shall not exceed the Maximum Purchase Price.
Section 1.02Procedure for Entering into Transactions.
(a)Seller may enter into Transactions with Buyer under this Agreement on any Purchase Date; provided, that Seller shall not request to enter into a Transaction with Buyer more than [***]; provided, further, that Seller shall have given Buyer irrevocable notice (each, a “Transaction Notice”), which notice (i) shall be substantially in the form of Exhibit A, (ii) [***] prior to the related Purchase Date, and (iii) shall specify the requested information as detailed in the Transaction Notice; provided, however, that Seller is prohibited from submitting a Transaction Notice [***] prior to the expected receipt of the MSR Valuation Agent’s monthly Market Value Report. Each Transaction Notice on any Purchase Date shall be in an amount equal to at least $[***].
(b)If Seller shall deliver to Buyer a Transaction Notice that satisfies the requirements of Section 2.02(a), Buyer will notify Seller of its intent to remit the requested Purchase Price [***]prior to the requested Purchase Date. If all applicable conditions precedent set forth in Article V have been satisfied on or prior to the Purchase Date, then subject to the foregoing, on the Purchase Date, Buyer shall remit the amount of the requested Purchase Price in U.S. Dollars and in immediately available funds to the account of Seller specified in Schedule 5 to the Base Indenture.
(c)Reserved.
(d)Upon entering into each Transaction hereunder, the Asset Schedule shall be automatically updated and replaced with the Asset Schedule attached to the related Transaction Notice.
Section 1.03Repurchase; Payment of Repurchase Price.
(a)Seller hereby promises to repurchase the Purchased Assets and pay all outstanding Obligations on the Termination Date.
(b)By notifying Buyer in writing [***], Seller shall be permitted, at its option, to prepay, subject to Section 2.12, the Purchase Price in whole or in part at any time, together with accrued and unpaid interest on the amount so prepaid.
(c)With respect to any Purchased Asset, Administrative Agent shall allocate any Repurchase Price in respect thereof (x) prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1; and (y) on and after an Event of Default, first to the Buyers of the Purchase Price Base until all Obligations in respect of the Purchase Price Base are reduced to zero, and second to the Purchase Price Incremental 1 until all Obligations in respect of the Purchase Price Incremental 1 are reduced to zero. With respect to any Purchased Asset, Administrative Agent shall allocate any Purchase Price Percentage Reduction Event prior to an Event of Default, pro rata among the Purchase Price Base and Purchase Price Incremental 1.
Section 1.04Price Differential. On each Price Differential Payment Date, Seller hereby promises to pay to Buyer all accrued and unpaid Price Differential on the Transactions, as invoiced by Buyer to Seller [***] (the “Price Differential Statement Date”); provided, that on each Price Differential Payment Date prior to the occurrence and continuation of an Event of Default, the estimated Price Differential owed hereunder shall be subject to a true-up of the amount determined by Buyer and delivered to the Seller [***]. Prior to the occurrence and continuance of an Event of Default, the Administrative Agent shall apply all payments of Price Differential in respect of any Purchased Asset pro rata among the Price Differential Base and the Price Differential Incremental 1. On and after an Event of Default, any application of Price Differential will first be attributed to the Price Differential Base then due and owning until reduced to zero, and second to the Price Differential Incremental 1 then due and owning until reduced to zero.
If Buyer fails to deliver such statement on the Price Differential Statement Date, on such Price Differential Payment Date Seller shall pay the amount which Seller calculates as the Price Differential due and upon delivery of the statement, Seller shall remit to Buyer any shortfall, or Buyer shall refund to Seller any excess, in the Price Differential paid. Price Differential shall accrue each day on the Purchase Price at a rate per annum equal to the applicable Pricing Rate. The Price Differential shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.05Margin Maintenance.
(a)If at any time the aggregate outstanding amount of the Purchase Price of the Note is greater than the related Asset Value (such excess, a “Margin Deficit”), then Buyer may by notice to Seller require Seller to transfer to Buyer cash in an amount at least equal to the Margin Deficit (such requirement, a “Margin Call”).
(b)Notice delivered pursuant to Section 2.05(a) may be given by any written or electronic means. With respect to a Margin Call, any notice given [***]. With respect to a Margin Call, any notice given [***]. The foregoing time requirements for satisfaction of a Margin Call are referred to as the “Margin Deadlines”. The failure of Buyer, on any one or more occasions, to exercise its rights hereunder, shall not change or alter the terms and conditions to which this Agreement is subject or limit the right of Buyer to do so at a later date. Seller and Buyer each agree that a failure or delay by Buyer to exercise its rights hereunder shall not limit or waive Buyer’s rights under this Agreement or otherwise existing by law or in any way create additional rights for Seller.
(c)In the event that a Margin Deficit exists, Buyer may retain any funds received by it to which Seller would otherwise be entitled hereunder, which funds (i) may be held by Buyer against the related Margin Deficit or (ii) may be applied by Buyer against the Purchase Price. Notwithstanding the foregoing, Buyer retains the right, in its sole discretion, to make a Margin Call in accordance with the provisions of this Section 2.05.
Section 1.06Payment Procedure. Seller absolutely, unconditionally, and irrevocably, shall make, or cause to be made, all payments required to be made by Seller hereunder. Seller shall deposit or cause to be deposited all amounts constituting collection, payments and proceeds of the Note (including all fees and proceeds of sale to a third party) to the Buyer Account.
Section 1.07Application of Payments.
(a)On each Price Differential Payment Date prior to the occurrence of an Event of Default, all amounts deposited into the Buyer Account from and after the immediately preceding Price Differential Payment Date (or the Closing Date in connection with the initial Price
Differential Payment Date), or received by Buyer from the Issuer in the Buyer’s capacity as VFN Noteholder, shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price outstanding to satisfy any Margin Deficit due and owing in accordance with the terms and priorities of this Agreement;
(iii)third, ratably to the payment of all other costs and fees payable to Buyer pursuant to this Agreement; and
(iv)fourth, any remainder to Seller.
(b)Notwithstanding the preceding provisions, if an Event of Default shall have occurred hereunder, all funds related to the Note shall be applied as follows:
(i)first, to the payment of any accrued and unpaid Price Differential due and owing in accordance with the terms and priorities of this Agreement;
(ii)second, to the payment of Purchase Price until reduced to zero in accordance with the terms and priorities of this Agreement;
(iii)third, to payment of all other costs and fees payable to Buyer pursuant to this Agreement;
(iv)fourth, to the payment of any other Obligations in accordance with the terms and priorities of this Agreement; and
(v)fifth, any remainder to Seller.
Section 1.08Use of Purchase Price and Transaction Requests. The Purchase Price shall be used by Seller to satisfy its obligations under the Indenture and for general limited liability company purposes.
Section 1.09Recourse. Notwithstanding anything else to the contrary contained or implied herein or in any other Program Agreement, Buyer shall have full, unlimited recourse against Seller and its assets in order to satisfy the Obligations.
Section 1.10Requirements of Law.
(a)If any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of trust and trust agreement or other organizational or governing documents) or any change in the interpretation or application thereof or compliance by Buyer with any request or directive (whether or not having the force of law) from any central bank or other Governmental Authority made subsequent to the Closing Date:
(i)shall subject Buyer to any Taxes (other than (A) Indemnified Taxes and (B) Excluded Taxes) on its loans, loan principal, letters of credit, commitments or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
(ii)shall impose, modify or hold any reserve, special deposit, compulsory loan or similar requirement against assets held by, deposits or other liabilities in or for the account of, advances, or other extensions of credit by, or any other acquisition of funds by, any office of
Buyer which is not otherwise included in the determination of the Price Differential hereunder; or
(iii)shall impose on Buyer any other condition (other than Taxes);
and the result of any of the foregoing is to increase the cost to Buyer, by an amount which Buyer deems to be material, of entering, continuing or maintaining this Agreement or any other Program Agreement, the Transactions or to reduce any amount due or owing hereunder in respect thereof, then, in any such case, Seller shall promptly pay Buyer such additional amount or amounts as calculated by Buyer in good faith as will compensate Buyer for such increased cost or reduced amount receivable.
(b)If Buyer shall have determined that the adoption of or any change in any Requirement of Law (other than with respect to any amendment made to Buyer’s certificate of incorporation and by-laws or other organizational or governing documents) regarding capital adequacy or in the interpretation or application thereof or compliance by Buyer or any corporation Controlling Buyer with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the Closing Date shall have the effect of reducing the rate of return on Buyer’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which Buyer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration Buyer’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by Buyer to be material, then from time to time, Seller shall promptly pay to Buyer such additional amount or amounts as will compensate Buyer for such reduction.
(c)If Buyer becomes entitled to claim any additional amounts pursuant to this Section 2.10, it shall promptly notify Seller of the event by reason of which it has become so entitled. A certificate as to any additional amounts payable pursuant to this Section 2.10 submitted by Buyer to Seller shall be conclusive in the absence of manifest error.
Section 1.11Taxes.
(a)Any and all payments by or on behalf of Seller under or in respect of this Agreement or any other Program Agreements to which Seller is a party shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes, unless required by law. If Seller shall be required under any applicable Requirement of Law (as determined in the good faith discretion of the applicable withholding agent) to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this Agreement or any of the other Program Agreements to Buyer, (i) Seller shall make all such deductions and withholdings in respect of Taxes, (ii) Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant taxation authority or other Governmental Authority in accordance with any applicable Requirement of Law, and (iii) to the extent the withheld or deducted Tax is an Indemnified Tax or Other Tax, the sum payable by Seller shall be increased as may be necessary so that after Seller has made all required deductions and withholdings (including deductions and withholdings applicable to additional amounts payable under this Section 2.11) such Buyer receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(b)In addition, Seller hereby agrees to pay any Other Taxes.
(c)Seller hereby agrees to indemnify Buyer for any Indemnified Taxes or Other Taxes imposed on Administrative Agent or Buyer (including Indemnified Taxes and Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.11 and any liability including penalties, additions to tax, interest and expenses arising therefrom or with
respect thereto). The indemnity by Seller provided for in this Section 2.11 shall apply and be made whether or not the Indemnified Taxes or Other Taxes for which indemnification hereunder is sought have been correctly or legally asserted. Amounts payable by Seller under the indemnity set forth in this Section 2.11(c) shall be paid within [***] from the date on which Buyer makes written demand therefor.
(d)Without prejudice to the survival of any other agreement of the Seller hereunder, each party’s obligations contained in this Section 2.11 shall survive the termination of this Agreement and the other Program Agreements. Nothing contained in Section 2.10 or this Section 2.11 shall require any Buyer to make available any of its tax returns or any other information that it deems to be confidential or proprietary.
(e)Administrative Agent shall and shall cause each Buyer to deliver to the Seller, at the time or times reasonably requested by the Seller, such properly completed and executed documentation reasonably requested by the Seller as will permit payments made hereunder to be made without withholding or at a reduced rate of withholding. In addition, Administrative Agent shall and shall cause each Buyer, if reasonably requested by Seller, to deliver such other documentation prescribed by applicable law or reasonably requested by the Seller as will enable the Seller to determine whether or not Administrative Agent or such Buyer is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in this Section 2.11, the completion, execution and submission of such documentation (other than such documentation in Section 2.11(e)(A), (B) and (C) below) shall not be required if in a Buyer’s judgment such completion, execution or submission would subject such Buyer to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Buyer. Without limiting the generality of the foregoing, Administrative Agent shall and shall cause a Buyer to deliver to the Seller, to the extent legally entitled to do so.
(A)in the case of a Buyer or Buyer assignee or participant which is a “U.S. Person” as defined in section 7701(a)(30) of the Code, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 certifying that it is not subject to U.S. federal backup withholding tax;
(B)in the case of a Buyer or Buyer assignee or participant which is not a “U.S. Person” as defined in Code section 7701(a)(30): (I) a properly completed and executed IRS Form W-8BEN, W-8BEN-E or W-8ECI, as appropriate, evidencing entitlement to a zero percent or reduced rate of U.S. federal income tax withholding on any payments made hereunder, (II) in the case of such non-U.S. Person claiming exemption from the withholding of U.S. federal income tax under Code sections 871(h) or 881(c) with respect to payments of “portfolio interest,” a duly executed certificate (a “U.S. Tax Compliance Certificate”) to the effect that such non-U.S. Person is not (x) a “bank” within the meaning of Code section 881(c)(3)(A), (y) a “10 percent shareholder” of Seller or affiliate thereof, within the meaning of Code section 881(c)(3)(B), or (z) a “controlled foreign corporation” described in Code section 881(c)(3)(C), (III) to the extent such non-U.S. person is not the beneficial owner, executed originals 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 such non-U.S. person is a partnership and one or more direct or indirect partners of such non-U.S. person are claiming the portfolio interest exemption, such non-U.S. person may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner, and (IV) executed originals of any other form or supplementary documentation prescribed by law as a basis for claiming exemption from or a reduction in United States federal withholding tax together with such supplementary documentation as may be prescribed by law to permit Seller to determine the withholding or deduction required to be made.
(C)if a payment made to a Buyer or Buyer assignee or participant under this Agreement would be subject to U.S. federal withholding tax imposed by FATCA if such Buyer or assignee or participant 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), Administrative Agent on behalf of such Buyer or assignee or participant shall deliver to the Seller at the time or times prescribed by law and at such time or times reasonably requested by the Seller 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 Seller as may be necessary for the Seller to comply with their obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 11(e), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
The applicable IRS forms referred to above shall be delivered by Administrative Agent on behalf of each applicable Buyer or Buyer assignee or participant on or prior to the date on which such person becomes a Buyer or Buyer assignee or participant under this Agreement, as the case may be, and upon the obsolescence or invalidity of any IRS form previously delivered by it hereunder.
Section 1.12Indemnity. Without limiting, and in addition to, the provisions of Section 10.02, Seller agrees to indemnify the Buyer and to hold Buyer harmless from any loss or expense that Buyer may sustain or incur as a consequence of (i) a default by Seller in payment when due of the Repurchase Price or Price Differential or (ii) a default by Seller in making any prepayment of Repurchase Price after Seller has given a notice thereof in accordance with Section 2.03.
Section 1.13Changes in VFN Principal Balance. Seller shall deliver to Buyer a copy of the VFN Note Balance Adjustment Request that is delivered under the Indenture reflecting any increase or decrease in the Collateral Value. If the Collateral Value has increased, and all the Funding Conditions required pursuant to Section 5.02 hereof and the Indenture have been satisfied, then upon approval in writing by Buyer of such increase in the VFN Principal Balance, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated as set forth in the related Transaction Notice in accordance with Section 2.02. Buyer may fund such increases pursuant to Section 2.01. To the extent the Collateral Value has decreased, the VFN Principal Balance set forth in the Asset Schedule hereof shall be automatically updated to reflect any adjustment or pay down of the VFN Principal Balance pursuant to the Indenture.
Section 1.14Commitment Fee. Seller shall pay the Commitment Fee as specified in the Series 2017-VF1 Pricing Side Letter. Such payments shall be made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to Buyer at such account designated in writing by Buyer.
Section 1.15Termination.
(a)Notwithstanding anything to the contrary set forth herein, if a Seller Termination Option occurs, Seller may, upon [***]prior written notice of such event, upon payment of the applicable Repurchase Price and satisfaction of the other termination conditions set forth in the Indenture, terminate this Agreement and the Termination Date shall be deemed to have occurred (upon the expiration of such [***]).
(b)In the event that a Seller Termination Option as described in clause (a) of the definition thereof has occurred and Seller has notified Buyer in writing of its option to terminate this Agreement, Buyer shall have the right to withdraw such request for payment within [***] of
Seller’s notice of its exercise of the Seller Termination Option and Seller shall no longer have the right to terminate this Agreement.
(c)For the avoidance of doubt, Seller shall remain responsible for all costs actually incurred by Buyer pursuant to Sections 2.10 and 2.11.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Buyer as of the Closing Date, the Effective Date and each Purchase Date for any Transaction that:
Section 1.01Seller Existence. Seller has been duly organized and is validly existing as a limited liability company in good standing under the laws of the State of Delaware; and in each other jurisdiction in which the transaction of its business makes such qualification necessary.
Section 1.02Licenses. Seller is duly licensed or is otherwise qualified in each jurisdiction in which it transacts business for the business which it conducts and is not in default of any applicable federal, state or local laws, rules and regulations unless, in either instance, the failure to take such action is not reasonably likely (either individually or in the aggregate) to cause a Material Adverse Effect and is not in default of such state’s applicable laws, rules and regulations. Seller has the requisite power and authority and legal right to own, sell and grant a lien on all of its right, title and interest in and to the Note. Seller has the requisite power and authority and legal right to execute and deliver, engage in the transactions contemplated by, and perform and observe the terms and conditions of, this Agreement, each other Program Agreement and any Transaction Notice.
Section 1.03Power. Seller has all requisite corporate or other power and authority, and has all governmental licenses, authorizations, consents and approvals necessary to own its assets and carry on its business as now being or as proposed to be conducted, except where the lack of such licenses, authorizations, consents and approvals would not be reasonably likely to have a Material Adverse Effect.
Section 1.04Due Authorization. Seller has all necessary corporate or other power, authority and legal right to execute, deliver and perform its obligations under each of the Program Agreements, as applicable. This Agreement, any Transaction Notice and the Program Agreements have been (or, in the case of Program Agreements and any Transaction Notice not yet executed, will be, at the time of such execution) duly authorized, executed and delivered by Seller, all requisite or other corporate action having been taken, and each is valid, binding and enforceable against Seller in accordance with its terms except as such enforcement may be affected by bankruptcy, by other insolvency laws, or other similar laws affecting the enforcement of creditor’s rights or by general principles of equity.
Section 1.05Financial Statements. Seller has heretofore furnished to Buyer a copy of (a) its balance sheet for the fiscal year ended December 31, 2022, and the related statements of income for such fiscal year, with the opinion thereon of Ernst & Young LLP, and (b) its balance sheet for the quarterly fiscal period ended September 30, 2023, and its related statements of income for such quarterly fiscal period. All such financial statements are accurate, complete and correct and fairly present, in all material respects, the financial condition of Seller (subject to normal year-end adjustments), and the results of its operations as at such dates and for such fiscal periods, all in accordance with GAAP applied on a consistent basis, and to the best of the Seller’s knowledge, do not omit any material fact as of the date(s) thereof. Since September 30, 2023, there has been no material adverse change in the consolidated business, operations or financial
condition of Seller from that set forth in said financial statements nor is Seller aware of any state of facts which (with notice or the lapse of time) would or could result in any such material adverse change. Seller has no liabilities, direct or indirect, fixed or contingent, matured or unmatured, known or unknown, or liabilities for taxes, long-term leases or unusual forward or long-term commitments not disclosed by, or reserved against in, said balance sheet and related statements, and at the present time there are no material unrealized or anticipated losses from any loans, advances or other commitments of Seller, except as heretofore disclosed to Buyer in writing.
Section 1.06No Event of Default. There exists no event of default (or other similar term as defined in the applicable instrument) or Event of Default under Section 7.01, which default gives rise to a right to accelerate indebtedness as referenced in Section 7.03 or give rise to similar rights under this Agreement or under any mortgage, borrowing agreement or other instrument or agreement pertaining to indebtedness for borrowed money or to the repurchase of mortgage loans or securities or securities or other instrument or contractual or legal obligation to which it is a party or by which it is bound in any respect.
Section 1.07Solvency. As of the date hereof and immediately after giving effect to each Transaction, the fair value of its assets is greater than the fair value of its liabilities (including, without limitation, contingent liabilities if and to the extent required to be recorded as a liability on the financial statements of it in accordance with GAAP) and Seller is solvent and will not be rendered insolvent by any Transaction and 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 and 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 such entity or any of its assets. Seller is not selling and/or pledging any Repurchase Assets with any intent to hinder, delay or defraud any of its creditors.
Section 1.08No Conflicts. The execution, delivery and performance by of Seller of this Agreement, any Transaction Notice hereunder and the Program Agreements do not: (i) constitute or will not result in (a) any breach of or conflict with any term or provision of the Organizational Documents of Seller; (b) a breach of any indenture, loan agreement, warehouse line of credit, repurchase agreement, mortgage, deed of trust, Ginnie Mae Contract or any other material contractual obligation of it; (c) a material default or an acceleration under any of the foregoing; or (d) the violation of any law, rule, regulation, order, judgment, writ, injunction or decree applicable to Seller of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller, which conflict would have a Material Adverse Effect; (ii) require the creation or imposition of any Lien upon any of the properties or assets of Seller (other than any Liens created under any of this Agreement, any Transaction Notice and the Program Agreements in favor of Buyer and/or pursuant to the terms and provisions of the Ginnie Mae Contract), or (iii) require any approval of stockholders, members or partners or any approved or consent of any Person under any material contractual obligation of it, except for such approvals or consents which have been obtained on or before the Closing Date.
Section 1.09True and Complete Disclosure. All information, reports, exhibits, schedules, financial statements or certificates of Seller or any Affiliate thereof or any of their officers furnished or to be furnished to Buyer in connection with the initial or any ongoing due diligence of Seller or any Affiliate or officer thereof, negotiation, preparation, or delivery of this Agreement or the other Program Agreements, included herein or therein or delivered pursuant hereto or thereto, when taken as a whole, are true and complete in all material respects and do not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All financial statements have been prepared in accordance with GAAP.
Section 1.10Approvals. No consent, approval, authorization or order of, registration or filing with, or notice to any governmental authority, court or other Person is required under applicable law in connection with the execution, delivery and performance by Seller of this Agreement, any Transaction Notice and the Program Agreements.
Section 1.11Litigation. There is no action, proceeding or investigation pending with respect to which Seller has received service of process or, to the best of Seller’s knowledge threatened or affecting it against it before any court, administrative agency or other tribunal (A) asserting the invalidity of this Agreement, any Transaction, Transaction Notice or any Program Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement, any Transaction Notice or any Program Agreement, (C) makes a claim individually or in the aggregate in an amount greater than $[***], (D) which has resulted in the voluntary or involuntary suspension of a license, a cease and desist order, or such other action as could adversely impact Seller’s business, or (E) which might materially and adversely affect the validity of the Purchased Assets or the performance by it of its obligations under, or the validity or enforceability of, this Agreement, any Transaction Notice or any Program Agreement or which could be reasonably likely to have a Material Adverse Effect.
Section 1.12Material Adverse Change. There has been no material adverse change in the business, operations, financial condition, properties or prospects of Seller or its Affiliates since the date set forth in the most recent financial statements supplied to Buyer that is reasonably likely to have a Material Adverse Effect on Seller.
Section 1.13Ownership.
(a)Seller has good title to all of the Repurchase Assets, free and clear of all mortgages, security interests, restrictions, Liens and encumbrances of any kind other than the Liens created hereby or contemplated herein, and any Transaction shall convey all of Seller’s right, title and interest in and to the related Purchased Assets to Buyer.
(b)Each item of the Repurchase Assets was acquired by Seller in the ordinary course of its business, in good faith, for value and without notice of any defense against or claim to it on the part of any Person.
(c)There are no agreements or understandings between Seller and any other party which would modify, release, terminate or delay the attachment of the security interests granted to Buyer under this Agreement.
(d)The provisions of this Agreement are effective to create in favor of Buyer a valid security interest in all right, title and interest of Seller in, to and under the Repurchase Assets.
(e)Upon the filing of financing statements on Form UCC-1 naming Buyer as “Secured Party” and Seller as “Debtor”, and describing the Repurchase Assets, in the recording offices of the Secretary of State of Delaware the security interests granted hereunder in the Repurchase Assets will constitute fully perfected first priority security interests under the Uniform Commercial Code in all right, title and interest of Seller in, to and under such Repurchase Assets to the extent that such security interests can be perfected by filing under the Uniform Commercial Code.
Section 1.14The Note. Seller has (i) delivered the Note to Buyer, (ii) duly endorsed the Note to Buyer or Buyer’s designee, (iii) notified the Indenture Trustee of such transfer and (iv) completed all documents required to effect such transfer in the Note Register, including receipt by the Note Registrar of the Rule 144A Note Transfer Certificate and such other information and documents that may be required pursuant to the terms of the Indenture. In
addition, Buyer has received all other Program Agreements (including all exhibits and schedules referred to therein or delivered pursuant thereto), all amendments thereto, waivers relating thereto and other side letters or agreements affecting the terms thereof and all agreements and other material documents relating thereto, and Seller hereby certifies that the copies delivered to Buyer by Seller are true and complete. None of such documents has been amended, supplemented or otherwise modified (including waivers) since the respective dates thereof, except by amendments, copies of which have been delivered to Buyer. Each such document to which Seller is a party has been duly executed and delivered by Seller and is in full force and effect, and no default or material breach has occurred and is continuing thereunder.
Section 1.15Taxes. Seller and its Subsidiaries have timely filed all income tax returns and other material tax returns that are required to be filed by them and have paid all taxes, material assessments, fees and other governmental charges levied, except for any such taxes, material assessments, fees and other governmental charges as are being appropriately contested in good faith by appropriate proceedings diligently conducted and with respect to which adequate reserves have been provided. The charges, accruals and reserves on the books of Seller and its Subsidiaries in respect of taxes and other governmental charges are, in the opinion of Seller, adequate.
Section 1.16Investment Company. Neither Seller nor any of its Subsidiaries is an “investment company”, or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
Section 1.17Chief Executive Office; Jurisdiction of Organization. On the Closing Date and on the Effective Date, Seller’s chief executive office, is, and has been, located at the address specified in Section 10.05 for notices. On the Effective Date, Seller’s jurisdiction of organization is the State of Delaware. Seller shall provide Buyer [***] notice of any change in Seller’s principal office or place of business or jurisdiction. Seller has no trade name. During the preceding five (5) years, Seller has not been known by or done business under any other name, corporate or fictitious, and has not filed or had filed against it any bankruptcy receivership or similar petitions nor has it made any assignments for the benefit of creditors.
Section 1.18Location of Books and Records. The location where Seller keeps its books and records, including all computer tapes and records relating to the Repurchase Assets is its chief executive office.
Section 1.19ERISA. Each Plan to which Seller or its Subsidiaries make direct contributions, and, to the knowledge of Seller, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other Federal or State law.
Section 1.20Financing of Note. Each Transaction will be used to purchase the Note as provided herein, which Note will be conveyed and/or sold by Seller to Buyer.
Section 1.21Agreements. Neither Seller nor any Subsidiary of Seller is a party to any agreement, instrument, or indenture or subject to any restriction materially and adversely affecting its business, operations, assets or financial condition, except as disclosed in the financial statements described in Section 3.05 hereof. Neither Seller nor any Subsidiary of Seller is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement, instrument, or indenture which default could have a material adverse effect on the business, operations, properties, or financial condition of Seller as a whole. No holder of any indebtedness of Seller or of any of its Subsidiaries has given notice of any asserted default thereunder.
Section 1.22Other Indebtedness. All material Indebtedness (other than Indebtedness incurred under the Program Agreements) of Seller existing on the Closing Date is listed on Exhibit B hereto (the “Existing Indebtedness”).
Section 1.23No Reliance. Seller has made its own independent decisions to enter into the Program Agreements and each Transaction and as to whether such Transaction is appropriate and proper for it based upon its own judgment and upon advice from such advisors (including legal counsel and accountants) as it has deemed necessary. Seller is not relying upon any advice from Buyer as to any aspect of the Transactions, including the legal, accounting or tax treatment of such Transactions.
Section 1.24Plan Assets. Seller is not an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code, and the Purchased Assets are not “plan assets” within the meaning of 29 CFR § 2510.3 101 as amended by section 3(42) of ERISA, in Seller’s hands, and transactions by or with Seller are not subject to any state or local statute regulating investments or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.25No Prohibited Persons. Neither Seller nor any of its Affiliates, officers, directors, partners or members, is an entity or person (or to the Seller’s knowledge, owned or controlled by an entity or person): (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 (“EO13224”); (ii) whose name appears on the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons” (which list may be published from time to time in various mediums including the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in EO13224; or (iv) who is otherwise affiliated with any entity or person listed above (any and all parties or persons described in clauses (i) through (iv) above are herein referred to as a “Prohibited Person”).
Section 1.26Anti Money Laundering Laws. The Seller has complied in all material respects with all other Anti Money Laundering Laws and has established an anti-money laundering compliance program and such other procedures and controls to remain in material compliance with all applicable Anti Money Laundering Laws.
Section 1.27Anti-Corruption Laws.
(a)Seller is and will remain in compliance with all applicable Anti-Corruption Laws, and agrees that no part of the proceeds of the Purchase Price will be used, directly or to its knowledge indirectly, by any Person for any payments to any governmental 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, as amended.
(b)Seller acknowledges by executing this Agreement and the other Program Agreements to which Seller is a party that Buyer has notified it that, pursuant to the requirements of the Patriot Act, Buyer is required to obtain, verify and record such information as may be necessary to identify Seller and confirm that the administrator of Seller (or the administrator of the applicable direct or indirect owner of equity interests of it), has obtained, verified and recorded such information as may be necessary to identify any Person owning twenty-five percent (25%) or more of the direct equity interests of it (including, without limitation, the name and address of such Person), in each case, in accordance with the Patriot Act.
(c)None of Seller or any director, officer, agent or employee of Seller, has used or to its knowledge directly or indirectly used any of the proceeds of any Transaction (i) for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (ii) to make any direct or indirect unlawful payment to any government official or employee from corporate funds, (iii) to violate any provision of the U.S. Foreign Corrupt Practices Act of 1977 or similar law of a jurisdiction in which Seller conducts its business and to which it is lawfully subject or (iv) to make any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
Section 1.28Compliance with 1933 Act. Neither Seller nor anyone acting on its behalf has offered, transferred, pledged, sold or otherwise disposed of the Note, any interest in the Note or any other similar security to, or solicited any offer to buy or accept a transfer, pledge or other disposition of the Note, any interest in the Note or any other similar security from, or otherwise approached or negotiated with respect to the Note, any interest in the Note or any other similar security with, any person in any manner, or made any general solicitation by means of general advertising or in any other manner, or taken any other action which would constitute a distribution of the Note under the 1933 Act or which would render the disposition of the Note a violation of Section 5 of the 1933 Act or require registration pursuant thereto.
Section 1.29Margin Regulations. The use of all funds acquired by Seller under this Agreement will not conflict with or contravene any of Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System as the same may from time to time be amended, supplemented or otherwise modified.
Section 1.30Sanctions Compliance. Seller confirms as a condition of this Agreement and warrants to Buyer that it will, and it will cause each of its controlled Subsidiaries to, abide by all applicable economic sanctions laws and trade restrictions, administered or enforced from time to time by the United States, including those administered by OFAC or the U.S. Department of State (collectively “Sanctions”), In particular, Seller represents and warrants that neither it, nor any of the Seller or its respective Affiliates, officers, directors, partners, or members (i) is an entity or other person that: (a) appears on the “List of Specially Designated Nationals and Blocked Persons” (the “SDN List”) maintained by OFAC; (b) is operating in, organized in, a national of or ordinarily resident in a country or territory subject to comprehensive sanctions, programs administered and enforced by OFAC, currently including, Cuba, Iran, Syria, North Korea, and the Crimean, Donetsk and Luhansk regions of Ukraine (“Sanctioned Jurisdiction”); (c) is otherwise the target of any Sanctions, including but not limited to U.S. Executive Order 14024 issued on April 15, 2021, U.S. Executive Order 13662 issued on March 20, 2014, and any directives or designations issued pursuant thereto; or (d) is directly or indirectly owned 50% or more in the aggregate, or controlled by or acting for or on behalf of entities or other persons described in clauses (a) through (c), above (any and all entities or other persons described in clauses (a) through (d) above are “Prohibited Persons”); (ii) engaged or engages in any dealings or transactions with or involving any Prohibited Persons or Sanctioned Jurisdiction; and (iii) otherwise engaged or engages in any dealings or transactions in violation of Sanctions. Neither Seller nor any of its Affiliates, officers, directors, partners, or members shall be included on the SDN List, the U.K. Sanctions List, or the E.U. Consolidated Financial Screening List.
ARTICLE IV
CONVEYANCE; REPURCHASE ASSETS; SECURITY INTEREST
Section 1.01Ownership. Upon payment of the Purchase Price and delivery of the Note to Buyer and the Buyer’s receipt of the related Request for Certification, Buyer shall become the sole owner of the Purchased Assets, free and clear of all liens and encumbrances.
Section 1.02Security Interest.
(a)Although the parties intend (other than for U.S. federal tax purposes) that all Transactions hereunder be sales and purchases and not loans, in the event any such Transactions are deemed to be loans, and in any event, Seller hereby pledges to Buyer as security for the performance by Seller of its Obligations and hereby grants, assigns and pledges to Buyer a fully perfected first priority security interest in all of Seller’s right, title and interest in, to and under each of the following items of property, whether now owned or hereafter acquired, now existing or hereafter created and wherever located, is hereinafter referred to as the “Primary Repurchase Assets”:
(i)the Note identified on the Asset Schedule;
(ii)all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule;
(iii)all records, instruments or other documentation evidencing any of the foregoing;
(iv)all “general intangibles”, “accounts”, “chattel paper”, “securities accounts”, “investment property”, “deposit accounts” and “money” as defined in the Uniform Commercial Code relating to or constituting any and all of the foregoing (including all of Seller’s rights, title and interest in and under the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement); and
(v)any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing.
(b)[Reserved]
(c)Subject to the priority interest of the Indenture Trustee, Buyer and Seller hereby agree that in order to further secure Seller’s Obligations hereunder, Seller hereby assigns, pledges, conveys and grants to Buyer a security interest in (i) as of the Closing Date, Seller’s rights (but not its obligations) under the Program Agreements including without limitation any rights to receive payments thereunder or any rights to collateral thereunder whether now owned or hereafter acquired, now existing or hereafter created (collectively, the “Repurchase Rights”) and (ii) all collateral however defined or described under the Program Agreements to the extent not otherwise included under the definitions of Primary Repurchase Assets or Repurchase Rights (such collateral, “Additional Repurchase Assets,” and collectively with the Primary Repurchase Assets and the Repurchase Rights, the “Repurchase Assets”).
(d)Seller hereby delivers an irrevocable instruction to the buyer under any Repurchase Document that upon receipt of notice of an Event of Default under this Agreement, the buyer thereunder is authorized and instructed to (i) remit to Buyer hereunder directly any amounts otherwise payable to Seller and (ii) deliver to Buyer all collateral otherwise deliverable to Seller, to the extent all obligations then due and owing under such Other Repurchase Agreement have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding purchase price under any Other Repurchase Agreement and termination of all obligations of the Seller thereunder or other termination of the related Repurchase Documents following repayment of all obligations thereunder, the related buyer under any Repurchase Document is hereby instructed to deliver to Buyer hereunder any collateral (as such term may be defined under the related Repurchase Documents) then in its possession or control.
(e)Seller makes a subordinate pledge to the buyers under the Other Repurchase Agreements as security for the performance by Seller of its obligations thereunder and hereby grants, assigns and pledges to the buyers thereunder a subordinate security interest in all of Seller’s right, title and interest in, to and under (i) the Note identified on the Asset Schedule; (ii) all rights to reimbursement or payment of the Note and/or amounts due in respect thereof under the Note identified on the Asset Schedule; (iii) all records, instruments or other documentation evidencing any of the foregoing and (iv) any and all replacements, substitutions, distributions on or proceeds of any and all of the foregoing (collectively, the “Subordinated Pledge Assets”). Seller hereby delivers an irrevocable instruction to Buyer that upon its receipt of notice of an “Event of Default” from the buyer under any Other Repurchase Agreement, Buyer is authorized and instructed to (i) remit to such buyer directly any amounts otherwise payable to Seller under this Agreement and (ii) deliver to such buyer all Subordinated Pledge Assets otherwise deliverable to Seller, to the extent all obligations then due and owing under this Agreement have been paid in full. In furtherance of the foregoing, upon repayment of the outstanding Purchase Price and termination of all Obligations or other termination of the Program Agreements following repayment of all obligations thereunder, Buyer shall deliver to the buyer under any Other Repurchase Agreement with respect to which the related purchase price remains outstanding any Subordinated Pledge Assets then in Buyer’s possession or under its control. The subordinate pledge set forth in this clause (e) shall automatically terminate with respect to an Other Repurchase Agreement if the Buyer or the other buyer thereunder is no longer NCFA, or any Affiliates thereof.
(f)The foregoing provisions of this Section 4.02 are intended to constitute a security agreement or other arrangement or other credit enhancement related to this Agreement and the Transactions hereunder as defined under Sections 101(47)(A)(v) and 741(7)(A)(xi) of the Bankruptcy Code.
Section 1.03Further Documentation. At any time and from time to time, upon the written request of Buyer, and at the sole expense of Seller, Seller will promptly and duly execute and deliver, or will promptly cause to be executed and delivered, such further instruments and documents and take such further action as Buyer may reasonably request (x) to obtain, preserve, perfect, protect or more fully evidence Buyer’s security interest in the Purchased Assets, (y) for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted or (z) to enable Buyer to exercise or enforce any of its rights hereunder or under any other Program Agreement, including the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any applicable jurisdiction with respect to the Liens created hereby or amendments thereto or assignments thereof and such other instruments or notices, as Buyer may reasonably require. Seller also hereby authorizes Buyer to file (with a copy to Seller) any such financing or continuation statement, and amendments thereto and assignments thereof to the extent permitted by applicable law.
Section 1.04Changes in Locations, Name, etc. Seller shall not (a) change the location of its chief executive office/chief place of business from that specified in Section 3.17 or (b) change its name or identity or organizational structure or jurisdiction of organization from the jurisdiction referred to in Section 3.17, unless it shall have given Buyer at least [***] prior written notice thereof and shall have delivered to Buyer all Uniform Commercial Code financing statements and amendments thereto as Buyer shall request and taken all other actions deemed necessary by Buyer to continue its perfected status in the Repurchase Assets with the same or better priority.
Section 1.05Performance by Buyer of Seller’s Obligations. If Seller fails to perform or comply with any of its agreements contained in the Program Agreements and Buyer may itself perform or comply, or otherwise cause performance or compliance, with such agreement, the reasonable (under the circumstances) out-of-pocket expenses of Buyer actually incurred in connection with such performance or compliance, together with interest thereon at a rate per
annum equal to the Pricing Rate shall be payable by Seller to Buyer on demand and shall constitute Obligations. Such interest shall be computed on the basis of the actual number of days in each Price Differential Period and a 360-day year.
Section 1.06Proceeds. If an Event of Default shall occur and be continuing, (a) all proceeds of Repurchase Assets received by Seller consisting of cash, checks and other liquid assets readily convertible to cash items shall be held by Seller in trust for Buyer, segregated from other funds of Seller, and shall forthwith upon receipt by Seller be turned over to Buyer in the exact form received by Seller (duly endorsed by Seller to Buyer, if required) and (b) any and all such proceeds received by Buyer (whether from Seller or otherwise) may, in the sole discretion of Buyer, be held by Buyer as collateral security for, and/or then or at any time thereafter may be applied by Buyer against, the Obligations (whether matured or unmatured), such application to be in such order as Buyer shall elect. Any balance of such proceeds remaining after the Obligations shall have been paid in full and this Agreement shall have been terminated shall be paid over to Seller or to whomsoever may be lawfully entitled to receive the same.
Section 1.07Remedies. If an Event of Default shall occur and be continuing, Buyer may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Obligations, all rights and remedies of a secured party under the Uniform Commercial Code (including Buyer’s rights to a strict foreclosure under Section 9-620 of the Uniform Commercial Code). Without limiting the generality of the foregoing, Buyer may seek the appointment of a receiver, liquidator, conservator, trustee, or similar official in respect of Seller or any of Seller’s property. Buyer without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required under this Agreement or by law referred to below) to or upon Seller or any other Person (each and all of which demands, presentments, protests, advertisements and notices are hereby waived), may in such circumstances forthwith collect, receive, appropriate and realize upon the Repurchase Assets, or any part thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver the Repurchase Assets or any part thereof (or contract to do any of the foregoing), in one or more parcels or as an entirety at public or private sale or sales, at any exchange, broker’s board or office of Buyer or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Buyer shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Repurchase Assets so sold, free of any right or equity of redemption in Seller, which right or equity is hereby waived or released. Seller further agrees, at Buyer’s request, to assemble the Repurchase Assets and make them available to Buyer at places which Buyer shall reasonably select, whether at Seller’s premises or elsewhere. Buyer shall apply the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale, after deducting all reasonable (under the circumstances) out-of-pocket costs and expenses of every kind actually incurred therein or incidental to the care or safekeeping of any of the Repurchase Assets or in any way relating to the Repurchase Assets or the rights of Buyer hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such order as Buyer may elect, and only after such application and after the payment by Buyer of any other amount required or permitted by any provision of law, including Section 9-615 of the Uniform Commercial Code, need Buyer account for the surplus, if any, to Seller. To the extent permitted by applicable law, Seller waives all claims, damages and demands it may acquire against Buyer arising out of the exercise by Buyer of any of its rights hereunder, other than those claims, damages and demands arising from the gross negligence or willful misconduct of Buyer. If any notice of a proposed sale or other disposition of Repurchase Assets shall be required by law, such notice shall be deemed reasonable and proper if given at least [***] before such sale or other disposition. Seller shall remain liable for any deficiency (plus accrued interest thereon as contemplated herein) if the proceeds of any sale or other disposition of the Repurchase Assets are
insufficient to pay the Obligations and the fees and disbursements in amounts reasonable under the circumstances, of any attorneys employed by Buyer to collect such deficiency. Notwithstanding anything to the contrary herein or in any of the other Program Agreements, the remedies set forth in this Section 4.07 concerning any actions with respect to the MSRs arising under or related to any Servicing Contract shall be subject to the Acknowledgment Agreement entered into with Ginnie Mae.
Section 1.08Limitation on Duties Regarding Preservation of Repurchase Assets. Buyer’s duty with respect to the custody, safekeeping and physical preservation of the Repurchase Assets in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to deal with it in the same manner as Buyer deals with similar property for its own account. Neither Buyer nor any of its directors, officers or employees shall be liable for failure to demand, collect or realize upon all or any part of the Repurchase Assets or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Repurchase Assets upon the request of Seller or otherwise.
Section 1.09Powers Coupled with an Interest. All authorizations and agencies herein contained with respect to the Repurchase Assets are irrevocable and powers coupled with an interest.
Section 1.10Release of Security Interest. Upon the latest to occur of (a) the repayment to Buyer of all Obligations hereunder, and (b) the occurrence of the Termination Date, Buyer shall release its security interest in any remaining Repurchase Assets hereunder and shall promptly execute and deliver to Seller such documents or instruments as Seller shall reasonably request to evidence such release.
Section 1.11Reinstatement. All security interests created by this Article IV shall continue to be effective, or be reinstated, as the case may be, if at any time any payment, or any part thereof, of any Obligation of Seller is rescinded or must otherwise be restored or returned by the Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Seller or any substantial part of its property, or otherwise, all as if such release had not been made.
Section 1.12Subordination. Seller shall not seek in any Insolvency Event of the Issuer to be treated as part of the same class of creditors as Administrative Agent, on behalf of the Buyer, and shall not oppose any pleading or motion by Administrative Agent, on behalf of the Buyer, advocating that Administrative Agent, on behalf of the Buyer, should be treated as a separate class of creditors. Seller acknowledges and agrees that its rights with respect to the Repurchase Assets are and shall continue to be at all times while the obligations are outstanding junior and subordinate to the rights of Administrative Agent, on behalf of the Buyer, under this Agreement.
ARTICLE V
CONDITIONS PRECEDENT
Section 1.01Initial Transaction. The obligation of Buyer to enter into Transactions with the Seller hereunder is subject to the satisfaction, immediately prior to or concurrently with the entering into such Transaction, of the condition precedent that Buyer shall have received all of the following items, each of which shall be satisfactory to Buyer and its counsel in form and substance:
(a)Program Agreements and Note. The Program Agreements and Note, in all instances duly executed and delivered by the parties thereto and being in full force and effect, free of any modification, breach or waiver.
(b)Security Interest. Evidence that all other actions necessary or, in the opinion of Buyer, desirable to perfect and protect Buyer’s interest in the Repurchase Assets have been taken, including duly authorized and filed Uniform Commercial Code financing statements on Form UCC-1.
(c)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s certificate of formation, operating agreement and corporate resolutions approving the Program Agreements 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 Agreements.
(d)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Closing Date.
(e)Incumbency Certificate. An incumbency certificate of the corporate secretary of each of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(f)Fees. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before such date.
(g)Advance Verification Agent Report. The preliminary Advance Verification Agent Report shall have delivered to the Administrative Agent.
(h)Determination Date Report. The Administrative Agent has consented to the information set forth in the immediately preceding Determination Date Report.
(i)Issuer Tax Opinion. The Seller shall cause the Issuer to deliver an Issuer Tax Opinion to the Administrative Agent and the Buyer.
(j)Acknowledgment Agreement. The Acknowledgment Agreement shall have been duly authorized, executed and delivered by each party thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel, and all conditions precedent to the effectiveness of the Acknowledgment Agreement shall have been satisfied or waived.
Section 1.02All Transactions. The obligation of Buyer to enter into each Transaction pursuant to this Agreement is subject to the following conditions precedent:
(a)Transaction Notice and Asset Schedule. In accordance with Section 2.02, Buyer shall have received from Seller a Transaction Notice with an Asset Schedule that has been updated to include the Note related to a proposed Transaction hereunder on such Business Day.
(b)No Margin Deficit. After giving effect to each new Transaction, the aggregate outstanding amount of the Purchase Price shall not exceed the Asset Value of the Note then in effect.
(c)No Default. No Default or Event of Default exists or shall have occurred and be continuing immediately after giving effect to such new Transaction.
(d)Requirements of Law. Buyer 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 Buyer has made it unlawful, and no Governmental Authority shall have asserted that it is unlawful, for Buyer to enter into Transactions with a Pricing Rate based on Base Rate.
(e)Representations and Warranties. Both immediately prior to the related Transaction and also after giving effect thereto and to the intended use thereof, the representations and warranties made by Seller in each Program Agreement shall be true, correct and complete on and as of such Purchase Date in all material respects with the same force and effect as if made on and as of such date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation or warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects, as written).
(f)Note. Buyer shall have received the Note relating to any Purchased Assets, which is in form and substance satisfactory to Buyer in its sole discretion.
(g)Material Adverse Change. None of the following shall have occurred and/or be continuing:
(A)Buyer’s corporate bond rating as calculated by S&P or Moody’s has been lowered or downgraded to a rating below investment grade by S&P or Moody’s;
(B)an event or events shall have occurred in the good faith determination of Buyer resulting in the effective absence of a “lending market” for financing debt obligations secured by mortgage loans or servicing receivables or securities backed by mortgage loans or servicing receivables or an event or events shall have occurred resulting in Buyer not being able to finance the Note through the “lending market” with traditional counterparties at rates which would have been reasonable prior to the occurrence of such event or events; or
(C)there shall have occurred a material adverse change in the financial condition of Buyer which affects (or can reasonably be expected to affect) materially and adversely the ability of Buyer to fund its obligations under this Agreement.
(h)Fees. Buyer shall have received payment in full of all fees and Expenses (including any applicable Commitment Fee) which are payable hereunder to Buyer on or before such date.
Section 1.03Closing Subject to Conditions Precedent. The obligation of Buyer to purchase the Note is subject to the satisfaction on or prior to the Closing Date of the following conditions (any or all of which may be waived by Buyer):
(a)Performance by the Issuer and loanDepot. All the terms, covenants, agreements and conditions of the Transaction Documents to be complied with, satisfied, observed and performed by the Issuer, and loanDepot on or before the Closing Date shall have been complied with, satisfied, observed and performed in all material respects.
(b)Representations and Warranties. Each of the representations and warranties of the Issuer and loanDepot made in the Transaction Documents shall be true and correct in all material
respects as of the Closing Date (or, (i) if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date and (ii) if any such representation of warranty is already qualified by materiality or material adverse effect, such representation or warranty shall be true and correct in all respects).
(c)Officer’s Certificate. The Administrative Agent, Buyer and the Indenture Trustee shall have received in form and substance reasonably satisfactory to the Administrative Agent an officer’s certificate from loanDepot and a certificate of an Authorized Officer of the Issuer, dated the Closing Date, each certifying to the satisfaction of the conditions set forth in the preceding paragraphs (a) and (b), in each case together with incumbency, by-laws, resolutions and good standing.
(d)Opinions of Counsel to the Issuer and loanDepot. Counsel to the Issuer and Seller shall have delivered to the Administrative Agent, Buyer and the Indenture Trustee favorable opinions, dated the Closing Date and satisfactory in form and substance to the Administrative Agent and its counsel, relating to corporate matters, enforceability, securities contract, non-consolidation, Investment Company Act and perfection and an opinion as to which state’s law applies to security interest and perfection matters. In addition to the foregoing, loanDepot, as servicer, shall have caused its counsel to deliver to the Issuer, Buyer, as purchaser of the Note hereunder, the Administrative Agent and the Indenture Trustee an opinion as to certain tax matters dated as of the Closing Date, satisfactory in form and substance to the Administrative Agent, Buyer and their respective counsel.
(e)Officer’s Certificate of Indenture Trustee. The Administrative Agent and Buyer shall have received in form and substance reasonably satisfactory to the Administrative Agent an Officer’s Certificate from the Indenture Trustee, dated the Closing Date, with respect to the Base Indenture, together with incumbency and good standing.
(f)Opinions of Counsel to the Indenture Trustee. Counsel to the Indenture Trustee shall have delivered to the Administrative Agent and Buyer a favorable opinion dated the Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and its counsel related to the enforceability of the Base Indenture.
(g)Opinions of Counsel to the Owner Trustee. Delaware counsel to the Owner Trustee of the Issuer shall have delivered to the Administrative Agent and Buyer favorable opinions regarding the formation, existence and standing of the Issuer and of the Issuer’s execution, authorization and delivery of each of the Transaction Documents to which it is a party and such other matters as the Administrative Agent and Buyer may reasonably request, dated the Closing Date and reasonably satisfactory in form and substance to the Administrative Agent and Buyer and their respective counsel.
(h)Filings and Recordations. The Administrative Agent, Buyer and the Indenture Trustee shall have received evidence reasonably satisfactory to the Administrative Agent of (i) the completion of all recordings, registrations and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence: (A) the assignment by loanDepot, as Seller, to the Issuer of the ownership interest in the “Collateral” (as defined in the PC Repurchase Agreement) conveyed pursuant to the PC Repurchase Agreement and the proceeds thereof and (ii) the completion of all recordings, registrations, and filings as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable to perfect or evidence the grant of a first priority perfected security interest in the Issuer’s ownership interest in the Collateral in favor of the Indenture Trustee, subject to no Liens prior to the Lien created by the Base Indenture.
(i)Documents. The Administrative Agent, Buyer and the Indenture Trustee shall have received a duly executed counterpart of each of the Transaction Documents, in form acceptable to Buyer, the Note and each and every document or certification delivered by any party in connection with any such Transaction Documents, or the Note, and each such document shall be in full force and effect.
(j)Actions or Proceedings. No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation of, or to invalidate, any of the transactions contemplated by the Transaction Documents, the Note and the documents related thereto in any material respect.
(k)Approvals and Consents. All Governmental Actions of all Governmental Authorities required with respect to the transactions contemplated by the Transaction Documents, the Note and the documents related thereto shall have been obtained or made.
(l)Fees, Costs and Expenses. Buyer shall have received payment in full of all fees and Expenses (including the Commitment Fee) which are payable hereunder to Buyer on or before the Closing Date, and the fees, costs and expenses payable by the Issuer and loanDepot on or prior to the Closing Date pursuant to this Agreement or any other Transaction Document (including but not limited to any MSR Valuation Agent Fees) shall have been paid in full. External legal costs incurred by Buyer in connection with entering into this Agreement shall not exceed the Legal Expense Cap and all expenses incurred with respect to Buyer’s due diligence review shall not exceed the Diligence Services Expense Cap.
(m)Other Documents. loanDepot shall have furnished to the Administrative Agent, Buyer and the Indenture Trustee such other opinions, information, certificates and documents as the Administrative Agent may reasonably request.
(n)Advance Verification Agent. loanDepot shall have engaged the Advance Verification Agent pursuant to an agreement reasonably satisfactory to the Administrative Agent.
(o)Proceedings in Contemplation of Sale of the Note. All actions and proceedings undertaken by the Issuer and loanDepot in connection with the issuance and sale of the Note as herein contemplated shall be satisfactory in all respects to the Administrative Agent, Buyer and their respective counsel.
(p)Advance Rate Reduction Event, Servicer Termination Events, Events of Default and Funding Interruption Events. No Advance Rate Reduction Event, Servicer Termination Event, Event of Default or Funding Interruption Event shall then be occurring.
(q)Satisfaction of Conditions. Each of the Funding Conditions and the PIAVF1 Funding Conditions shall have been satisfied. The Administrator shall include the PIAVF1 Funding Conditions in each Funding Certification in addition to the Funding Conditions and present a “yes” or “no” answer beside such PIAVF1 Funding Conditions indicating whether such PIAVF1 Funding Conditions have been satisfied, as set forth in Section 4.3 of the Base Indenture.
(r)Organizational Documents. A certificate of the corporate secretary of Seller in form and substance acceptable to Buyer, attaching certified copies of Seller’s certificate of formation, operating agreement and corporate resolutions approving the Program Agreements 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 Agreements.
(s)Good Standing Certificate. A certified copy of a good standing certificate from the jurisdiction of organization of Seller, dated as of no earlier than the date ten (10) Business Days prior to the Closing Date.
(t)Incumbency Certificate. An incumbency certificate of the corporate secretary of each of Seller, certifying the names, true signatures and titles of the representatives duly authorized to request transactions hereunder and to execute the Program Agreements.
(u)Acknowledgment Agreement. The Acknowledgment Agreement shall have been duly authorized, executed and delivered by each party thereto and shall be in form and substance reasonably satisfactory to the Administrative Agent and its legal counsel, and all conditions precedent to the effectiveness of the Acknowledgment Agreement shall have been satisfied or waived.
(v)[Reserved].
If any condition specified in this Section 5.03 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by Buyer by notice to loanDepot at any time at or prior to the Closing Date and Buyer shall incur no liability as a result of such termination.
ARTICLE VI
COVENANTS
Seller covenants and agrees that until the payment and satisfaction in full of all Obligations, whether now existing or arising hereafter, shall have occurred:
Section 1.01Litigation. Seller will promptly, and in any event [***] after service of process on any of the following, give to Buyer notice of all litigation, actions, suits, arbitrations, investigations (including any of the foregoing which are threatened or pending) or other legal or arbitrable proceedings affecting Seller or any of its Subsidiaries or affecting any of the Property of any of them before any Governmental Authority that (i) questions or challenges the validity or enforceability of any of the Program Agreements or any action to be taken in connection with the transactions contemplated hereby, (ii) makes a claim individually or in the aggregate in an amount greater than $[***], or (iii) which, individually or in the aggregate, if adversely determined, could be reasonably likely to have a Material Adverse Effect. Seller will promptly provide notice of any judgment, which with the passage of time, could cause an Event of Default hereunder.
Section 1.02Prohibition of Fundamental Changes. Seller shall not (a) enter into any transaction of merger or consolidation or amalgamation with any Person; (b) liquidate, wind up or dissolve itself (or suffer any liquidation, winding up or dissolution); (c) sell, lease or otherwise dispose of, all or substantially all of its assets; or (d) enter into any transaction or series of transactions to adopt, file, effect or consummate a Division, or otherwise permits any such Division to be adopted, filed, effected or consummated.
Section 1.03Sale of Assets. Subject to Section 6.02(c), Seller shall not sell, lease (as lessor) or transfer (as transferor) or otherwise dispose of any property or assets, whether now owned or hereafter acquired, if such sale, lease or transfer would reasonably be expected to have a Material Adverse Effect.
Section 1.04Asset Schedule. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and increases and decreases in the outstanding VFN Principal Balance thereof.
Section 1.05No Adverse Claims. Seller warrants and will defend the right, title and interest of Buyer in and to all Purchased Assets against all adverse claims and demands.
Section 1.06Assignment. 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 Agreements), any of the Purchased Assets or any interest therein, provided that this Section 6.06 shall not prevent any transfer of Purchased Assets in accordance with the Program Agreements.
Section 1.07Security Interest. Seller shall do all things necessary to preserve the Purchased Assets so that they remain subject to a first priority perfected security interest hereunder. Without limiting the foregoing, Seller will comply with all rules, regulations and other laws of any Governmental Authority and cause the Purchased Assets to comply with all applicable rules, regulations and other laws. Seller will not allow any default for which Seller is responsible to occur under any Purchased Assets or any Program Agreement and Seller shall fully perform or cause to be performed when due all of its obligations under any Purchased Assets and any Program Agreement.
Section 1.08Records.
(a)Seller shall collect and maintain or cause to be collected and maintained all Records relating to the Purchased Assets in accordance with industry custom and practice for assets similar to the Purchased Assets, including those maintained pursuant to Section 6.09, and all such Records shall be in Seller’s or Buyer’s possession unless Buyer otherwise approves. Seller will maintain all such Records in good and complete condition in accordance with industry practices for assets similar to the Purchased Assets and preserve them against loss.
(b)For so long as Buyer has an interest in or lien on any Purchased Assets, Seller will hold or cause to be held all related Records in trust for Buyer. Seller shall notify, or cause to be notified, every other party holding any such Records of the interests and liens in favor of Buyer granted hereby.
(c)Upon reasonable advance notice from Buyer, Seller shall (x) make any and all such Records available to Buyer to examine any such Records, either by its own officers or employees, or by agents or contractors, or both, and make copies of all or any portion thereof, and (y) permit Buyer 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.
Section 1.09Books. Seller shall keep or cause to be kept in reasonable detail books and records of account of its assets and business and shall clearly reflect therein the transfer of Purchased Assets to Buyer.
Section 1.10Approvals. Seller shall maintain all licenses, permits or other approvals necessary for Seller to conduct its business and to perform its obligations under the Program Agreements, and Seller shall conduct its business strictly in accordance with applicable law.
Section 1.11Insurance. Seller shall maintain or cause to be maintained, at its own expense, insurance coverage as is customary, reasonable and prudent in light of the size and nature of Seller’s business as of any date after the Closing Date. Seller shall be deemed to have complied
with this provision if one of its Affiliates has such policy coverage and, by the terms of any such policies, the coverage afforded thereunder extends to Seller. Upon the request of Buyer at any time subsequent to the Closing Date and in no event more than once per calendar year unless an Event of Default shall have occurred and be continuing, Seller shall cause to be delivered to Buyer, a certification evidencing Seller’s coverage under any such policies.
Section 1.12Material Change in Business. Seller shall not engage to any substantial extent in any line or lines of business activity other than Current Business Operations as of the Closing Date.
Section 1.13Distributions. Following the occurrence and during the continuation of an Event of Default, Seller shall not make any payment 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 equity interest of Seller, whether now or hereafter outstanding, or make any other distribution or dividend in respect of any of the foregoing or to any shareholder or equity owner of Seller, either directly or indirectly, whether in cash or property or in obligations of Seller or any of Seller’s consolidated Subsidiaries, except that, notwithstanding the foregoing, Seller shall be permitted at all times (regardless of whether or not an Event of Default exists) to make Tax Distributions; provided that Seller agrees to cause LD Holdings Group LLC to promptly disburse any such funds for the payment of taxes when due.
Section 1.14Existence; Ginnie Mae Approvals.
(a)Seller shall preserve and maintain its legal existence and all of its material governmental licenses, authorizations, consents and approvals necessary for Seller to conduct its business and to perform its obligations under the Transaction Documents.
(b)Seller shall maintain adequate financial standing, procedures, and experienced personnel necessary for the sound servicing (of mortgage loans of the same types as may from time to time constitute Mortgage Loans and in accordance, in all material respects, with Accepted Servicing Practices and the terms of the Ginnie Mae Contract.
(c)Seller shall comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of Governmental Authorities (including truth in lending, real estate settlement procedures and all environmental laws) if the failure to comply with such requirements would be reasonably likely (either individually or in the aggregate) to have a Material Adverse Effect.
(d)Seller shall maintain its status with Ginnie Mae as an approved issuer, and shall be in good standing with Ginnie Mae in accordance with applicable law and all rules, policies, procedures and standards of Ginnie Mae (collectively, “Ginnie Mae Approvals”). Should Seller, (x) receive written notice of any material default or notice of termination of servicing for cause under the Ginnie Mae Contract, or (y) for any reason, cease to possess all applicable Ginnie Mae Approvals, or should notification from Ginnie Mae or HUD, FHA or VA as described in Section 3.16 of the PC Repurchase Agreement be received, Seller shall so notify Buyer in writing within [***].
Section 1.15Change in Organizational Documents. Seller shall not amend, modify or otherwise change any of its Organizational Documents in any material respect, or except any such amendments, modifications or changes or any such new agreements or arrangements that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; provided that Seller shall deliver written notice to Buyer within [***] of any material amendment to its Organizational Documents.
Section 1.16Chief Executive Office; Jurisdiction of Organization. Seller shall not move its chief executive office from the address referred to in Section 3.17 or change its jurisdiction of organization from the jurisdiction referred to in Section 3.17 unless it shall have provided Buyer at least [***] prior written notice of such change.
Section 1.17Taxes. Seller shall timely file all tax returns that are required to be filed by them and shall timely pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained in accordance with GAAP.
Section 1.18Transactions with Affiliates. Other than the purchase of the Note, Seller will not, directly or indirectly, enter into any transaction, including any purchase, sale, lease or exchange of property or the rendering of any service, with any Affiliate unless such transaction (a) does not result in a Default hereunder, (b) is in the ordinary course of Seller’s business and (c) is upon fair and reasonable terms no less favorable to Seller than it would obtain in a comparable arm’s length transaction with a Person which is not an Affiliate, or make a payment that is not otherwise permitted by this Section 6.17 to any Affiliate.
Section 1.19Guarantees. Seller shall not create, incur, assume or suffer to exist any Guarantees, except (i) to the extent reflected in Seller’s financial statements or notes thereto, (ii) to the extent the aggregate Guarantees of Seller do not exceed $[***], or (iii) to the extent such Guarantee is otherwise disclosed to Buyer in writing.
Section 1.20Indebtedness. Seller shall not incur any additional material Indebtedness other than (i) the Existing Indebtedness specified on Exhibit B hereto; (ii) Indebtedness incurred with Buyer or its Affiliates; (iii) Indebtedness incurred in connection with new or existing secured lending facilities and (iv) usual and customary accounts payable for a mortgage company), without the prior written consent of Buyer.
Section 1.21True and Correct Information. All information, reports, exhibits, schedules, financial statements or certificates of Seller, any Affiliate thereof or any of their officers furnished to Buyer hereunder and during Buyer’s diligence of Seller are and will be true and complete in all material respects and do not and shall not omit to disclose any material facts necessary to make the statements herein or therein, in light of the circumstances in which they are made, not misleading. All required financial statements, information and reports delivered by Seller to Buyer pursuant to this Agreement shall be prepared in accordance with U.S. GAAP, or, if applicable, to SEC filings, the appropriate SEC accounting regulations.
Section 1.22No Pledge. Except as contemplated herein, Seller shall not pledge, grant a security interest or assign any existing or future rights to service any of the Repurchase Assets or pledge or grant to any other Person any security interest in the Note.
Section 1.23Plan Assets. Seller shall not be an employee benefit plan as defined in Section 3 of Title I of ERISA, or a plan described in section 4975(e)(1) of the Code and Seller shall not use “plan assets” within the meaning of 29 CFR § 2510.3 101, as amended by section 3(42) of ERISA to engage in this Agreement or any Transaction hereunder. Transactions to or with Seller shall not be subject to any state or local statute regulating investments of or fiduciary obligations with respect to governmental plans within the meaning of section 3(32) of ERISA.
Section 1.24Sharing of Information. Seller shall allow Buyer to exchange information related to Seller and the Transactions hereunder with third party lenders, permitted assignees, Participants and credit insurance providers and Seller shall permit each third party lender to share
such information with Buyer, but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
Section 1.25Modification of the Base Indenture and Series 2021-PIAVF1 Indenture Supplement. Seller shall not consent with respect to any of the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement related to the Purchased Assets, to (i) the modification, amendment or termination of such the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement, (ii) the waiver of any provision of the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement, or (iii) the resignation of loanDepot as servicer under the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement, or the assignment, transfer, or material delegation of any of its rights or obligations, under such the Base Indenture and the Series 2021-PIAVF1 Indenture Supplement, without the prior written consent of Buyer exercised in Buyer’s sole discretion.
Section 1.26Reporting Requirements.
(a)Seller shall furnish to Buyer (i) promptly (but in no event later than [***]after a Responsible Officer of Seller has actual knowledge thereof), copies of any material and adverse notices (including, without limitation, notices of defaults, breaches, potential defaults or potential breaches) and any material financial information that is not otherwise required to be provided by Seller hereunder which is given to one of Seller’s other lenders, (ii) promptly (but in no event later than [***] after a Responsible Officer of Seller has actual knowledge thereof), notice of the occurrence of (1) any Event of Default hereunder; (2) any Default or other material breach by Seller of any obligation under any Program Agreement or any other contract or contracts, in the aggregate in excess of $[***]to which Seller is a party, or (3) the occurrence of any event or circumstance that such party reasonably expects has resulted in, or will, with the passage of time, result in, a Material Adverse Effect or an Event of Default, and (iii) the following:
(1)as soon as available and in any event within forty (40) calendar days after the end of each calendar month, the unaudited balance sheet of Seller, as at the end of such period and the related unaudited consolidated statements of income for Seller, including changes in shareholders’ equity (or its equivalent) for such period and the portion of the fiscal year through the end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(2)as soon as available and in any event within forty (40) calendar days after the end of each calendar quarter, the unaudited cash flow statements of Seller, as at the end of such period and the portion of the fiscal year through the end of such period, accompanied by a certificate of a Responsible Officer of Seller, which certificate shall state that said consolidated financial statements or financial statements, as applicable, fairly present in all material respects the consolidated financial condition or financial condition, as applicable, and results of operations of Seller in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end adjustments);
(3)as soon as available and in any event within ninety (90) days after the end of each fiscal year of Seller, the balance sheet of Seller, as at the end of such fiscal year and the related consolidated statements of income and retained earnings and of cash flows
for Seller and changes in shareholders’ equity (or its equivalent) for such year, setting forth in comparative form the figures for the previous year, accompanied by an opinion thereon of independent certified public accountants of recognized national standing, which opinion and the scope of audit shall be acceptable to Buyer in its sole discretion, shall have no “going concern” qualification and shall state that said consolidated financial statements or financial statements, as applicable, fairly present the consolidated financial condition or financial condition, as applicable, and results of operations of Seller as at the end of, and for, such fiscal year in accordance with GAAP;
(4)such other prepared statements that Buyer may reasonably request;
(5)from time to time (x) such other information regarding the financial condition, operations, or business of Seller as Buyer may reasonably request and (y) information and documentation reasonably requested by Buyer for purposes of compliance with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act;
(6)as soon as reasonably possible, and in any event within [***]after a Responsible Officer of Seller has knowledge of the occurrence of any ERISA Event of Termination, stating the particulars of such ERISA Event of Termination in reasonable detail;
(7)as soon as reasonably possible, notice of any of the following events:
a.any material dispute, litigation, investigation, proceeding or suspension between Seller on the one hand, and any Governmental Authority or any Person;
b.any material change in accounting policies or financial reporting practices of Seller;
c.any material issues raised upon examination of Seller or Seller’s facilities by any Governmental Authority;
d.any material change in the Indebtedness of Seller, including any default, renewal, non-renewal, termination, increase in available amount or decrease in available amount related thereto, which notice thereof shall be provided in the Officer’s Compliance Certificate;
e.promptly upon receipt of notice or knowledge of any lien or security interest (other than security interests created hereby or by the other Program Agreements) on, or claim asserted against, any of the Purchased Assets;
f.the filing, recording or assessment of any federal, state or local tax lien against Seller, or any of Seller’s assets, unless such filing, recording or assessment could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect with respect to Seller;
g.[reserved];
h.[reserved];
i.(i) any material penalties, sanctions or charges levied, or threatened to be levied, against Seller or any adverse change or threatened change made in
writing in Seller’s Ginnie Mae Approval status, (ii) the commencement of any material non-routine investigation or the institution of any proceeding or the threat in writing of institution of any proceeding against Seller by any Governmental Authority or any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller or (iii) the commencement of any material investigation, or the institution of any material proceeding or the threat in writing of institution of any material proceeding against Seller by any supervisory or regulatory Governmental Authority supervising or regulating the origination or servicing of mortgage loans by, or the issuer or seller status of Seller; and
j.(x) any material settlement with, or issuance of a consent order by, any Governmental Authority or (y) any issuance of a consent order by, any Governmental Authority, in the case of clauses (x) or (y), any amounts owed by Seller thereunder exceed an aggregate amount greater than $[***].
(b)Officer’s Certificates. Seller will furnish to Buyer, at the time Seller furnishes each set of financial statements pursuant to Section 6.25(a)(iii)(1), (2) or (3) above, an Officer’s Compliance Certificate of Seller in the form of Exhibit A to the Series 2017-VF1 Pricing Side Letter.
(c)Monthly Reporting. Seller shall at all times maintain a current list (which may be stored in electronic form) of the Note and Additional Balances. Seller shall deliver to Buyer no later than the 25th day of each month (the “Monthly Report Date”) a cumulative Asset Schedule, each of which, when so delivered, shall replace the current Asset Schedule and which may be delivered in electronic form acceptable to Buyer. Each such updated Asset Schedule shall indicate the outstanding VFN Principal Balance of the Note as of the close of the preceding week. As of each Monthly Report Date, Seller hereby certifies, represents and warrants to Buyer that each such updated Asset Schedule is true, complete and correct in all material respects.
(d)Hedging Reports. Seller shall deliver to Buyer a monthly summary hedge report (data elements to be agreed upon by Seller and Buyer).
(e)Other. Seller shall deliver to Buyer any other reports or information reasonably requested by Buyer or as otherwise required pursuant to this Agreement and the Indenture (including, without limitation, all reports and information delivered by the Issuer, the Administrator or the Indenture Trustee relating to the Note). Seller understands and agrees that all reports and information provided to Buyer by or relating to Seller may be disclosed to Buyer’s Affiliates by third party lenders, permitted assignees, Participants, credit insurance providers, any liquidity provider to Buyer and their respective agents and representatives, but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein.
(f)Regulatory Reporting Compliance. Seller shall, on or before the last Business Day of the [***], beginning with the fiscal year ending in 2023, deliver to Buyer a copy of the results of any Uniform Single Attestation Program for Mortgage Bankers or an Officer’s Certificate that satisfies the requirements of Item 1122(a) of Regulation AB, an independent public accountant’s report that satisfies the requirements of Item 1123 of Regulation AB, or similar review conducted on Seller by its accountants, and such other reports as Seller may prepare relating to its servicing functions as Seller.
Section 1.27[Reserved].
Section 1.28Litigation Summary. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide to Buyer a true and correct summary of all material actions, notices, proceedings and investigations pending with respect to which Seller has received service of process or other form of notice or, to the best of Seller’s knowledge, threatened against it, before any court, administrative or governmental agency or other regulatory body or tribunal.
Section 1.29Material Change in Business. Seller shall not make any material change in the nature of its business as carried on at the Closing Date other than lines of business typical for companies engaged in mortgage or consumer finance.
Section 1.30Hedging. On each date on which the Officer’s Compliance Certificate is delivered, Seller shall provide a true and correct summary of all interest rate protection agreements entered into or maintained by Seller and a summary of the realized gains or losses of such interest rate protection agreements compared against any change in value of the MSRs.
Section 1.31Ginnie Mae Contract.
(a)Should Seller for any reason cease to possess the Ginnie Mae Approvals, or should notification to Ginnie Mae be required, Seller shall promptly notify Buyer in writing.
(b)Seller shall promptly, and in no event later than [***]after Seller has knowledge thereof, notify Buyer of any Servicer Termination Event or event of default under any Ginnie Mae Contract or its receipt of a notice of actual termination of Seller’s right to service under any Ginnie Mae Contract which evidences an intent to transfer such servicing to a third party.
Section 1.32Trigger Event MSR Asset Sale. Seller shall, within [***], notify Buyer in the event that it has voluntarily relinquished or delivered notice of its intent to sell or transfer Ginnie Mae Contract rights constituting more than [***]% of the aggregate Ginnie Mae Contract rights of Seller with respect to Ginnie Mae.
Section 1.33Amendments. Seller shall not execute any amendments with respect to the Program Agreements without the prior consent of the Buyer.
ARTICLE VII
DEFAULTS/RIGHTS AND REMEDIES OF BUYER UPON DEFAULT
Section 1.01Events of Default. Each of the following events or circumstances shall constitute an “Event of Default”:
(a)Payment Failure. Failure of Seller to (i) make any payment of the Purchase Price beyond the applicable dates on which such payment is due, (ii) make any payment of Price Differential, on a Price Differential Payment Day or on a scheduled Repurchase Date, subject to a [***] cure period (provided that with respect to any payment made on a Repurchase Date that is not a scheduled Repurchase Date, such failure continues for a period of [***] following the earlier of (x) written notice or (y) the date upon which Seller obtained knowledge of such failure), (iii) make any payment (which failure continues for a period of [***], provided that [***]and (y) the date upon which Seller obtained knowledge of such failure) of any other sum which has become due, otherwise, whether by acceleration or otherwise, under the terms of any Program Agreement, or (iv) cure any Margin Deficit when due pursuant to Section 2.05 hereof.
(b)Cross Default. (i) An Event of Default (as defined in the Indenture) has occurred and is continuing under the Indenture or an Event of Default (as defined in the related Other Repurchase Agreement) has occurred and is continuing under any Repurchase Document or (ii)
Seller or Affiliates thereof shall be in default under (A) any Nomura Indebtedness, (B) any Transaction Document; (C) any Indebtedness, in the aggregate, in excess of $[***]of Seller or any Affiliate thereof which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary with respect to such Indebtedness, or (D) any other contract or contracts, in the aggregate in excess of $[***]to which Seller or any Affiliate thereof is a party which default (1) involves the failure to pay a matured obligation, or (2) permits the acceleration of the maturity of obligations by any other party to or beneficiary of such contract.
(c)Assignment. Assignment or attempted assignment by Seller of this Agreement or any rights hereunder without first obtaining the specific written consent of Buyer, or the granting by Seller of any security interest, lien or other encumbrances on any Purchased Assets to any person other than Buyer.
(d)Insolvency. An Act of Insolvency shall have occurred with respect to Seller.
(e)Material Adverse Change. Any material adverse change in the Property, business, financial condition or operations of Seller or any of its Affiliates shall occur, in each case as determined by Buyer in its sole good faith discretion, or any other condition shall exist which, in Buyer’s sole good faith discretion, constitutes a material impairment of Seller’s ability to perform its obligations under this Agreement or any other Program Agreement.
(f)Immediate Breach of Representation or Covenant or Obligation. A breach by Seller of any of the representations, warranties or covenants or obligations set forth in [***]of this Agreement.
(g)Additional Breach of Representation or Covenant. A breach by Seller of any other representation, warranty or covenant set forth in this Agreement (and not otherwise specified in Section 7.01(f) above), if such breach is not cured within [***].
(h)Representations. Except as set forth in clause (i) below, any representation or warranty made or deemed made by Seller herein or in any other Program Agreement (after giving effect to any qualification as to materiality set forth therein, if any) shall prove to have been false and misleading when made or any Monthly Report or Officer’s Compliance Certificate delivered hereunder shall prove to have been false and misleading in any material respect when made.
(i)1940 Act. The representation and warranty in Section 3.16 shall be false or misleading at any time.
(j)Change in Control. The occurrence of a Change in Control.
(k)Failure to Transfer. Seller fails to transfer a material portion of the Purchased Assets to Buyer on the applicable Purchase Date (provided Buyer has tendered the related Purchase Price).
(l)Judgment. A final judgment or judgments for the payment of money in excess of $[***]shall be rendered against Seller or any of its Affiliates by one or more courts, administrative tribunals or other bodies having jurisdiction and the same shall not be satisfied, discharged (or provision shall not be made for such discharge) or bonded, or a stay of execution thereof shall not be procured, within [***] from the date of entry thereof.
(m)Government Action. Any Governmental Authority or any person, agency or entity acting or purporting to act under governmental authority 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 Affiliate thereof, or shall have taken any action to displace the management of Seller or any Affiliate thereof or to curtail its authority in the conduct of the business of Seller or any Affiliate thereof, or takes any action in the nature of enforcement to remove, limit or restrict the approval of Seller or Affiliate as an issuer, buyer or a seller/servicer of mortgage loans or securities backed thereby, and such action provided for in this subparagraph (l) shall not have been discontinued or stayed within [***].
(n)Inability to Perform. A Responsible Officer of Seller or Guarantor shall admit its inability to, or its intention not to, perform any of Seller’s Obligations or Guarantor’s Obligations hereunder or the Guaranty.
(o)Security Interest. This Agreement shall for any reason cease to create a valid, first priority security interest in any material portion of the Repurchase Assets purported to be covered hereby.
(p)Financial Statements. Seller’s audited annual financial statements or the notes thereto or other opinions or conclusions stated therein shall be qualified or limited by reference to the status of Seller as a “going concern” or a reference of similar import.
(q)Validity of Agreement. For any reason, this Agreement at any time shall not be in full force and effect in all material respects or shall not be enforceable in all material respects in accordance with its terms, or any Lien granted pursuant thereto shall fail to be perfected and of first priority, or Seller or any Affiliate of Seller shall seek to disaffirm, terminate, limit, reduce or repudiate its obligations hereunder or Guarantor’s obligations under the Guaranty.
(r)Guarantor Breach. A breach by Guarantor of any representation, warranty or covenant set forth in the Guaranty or any other Program Agreement, any “event of default” by Guarantor under the Guaranty, any repudiation of the Guaranty by the Guarantor or if the Guaranty is not enforceable against the Guarantor.
(s)Servicing. Greater than [***]% of Seller’s servicing portfolio consisting of Ginnie Mae loans is seized or terminated in any single event or series of events arising from the same or substantially similar circumstances or occurrences.
Section 1.02No Waiver. An Event of Default shall be deemed to be continuing unless expressly waived by Buyer in writing.
Section 1.03Due and Payable. Upon the occurrence of any Event of Default which has not been waived in writing by Buyer, Administrative Agent may (and at the direction of Buyer shall), by notice to Seller, declare all Obligations to be immediately due and payable, and any obligation of Buyer to enter into Transactions with Seller shall thereupon immediately terminate. Upon such declaration, the Obligations shall become immediately due and payable, both as to Purchase Price outstanding and Price Differential, without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, anything contained herein or other evidence of such Obligations to the contrary notwithstanding, except with respect to any Event of Default set forth in Section 7.01(d), in which case all Obligations shall automatically become immediately due and payable without the necessity of any notice or other demand, and any obligation of Buyer to enter into Transactions with Seller shall immediately terminate. Administrative Agent, on behalf of the Buyer, may enforce payment of the same and exercise any or all of the rights, powers and remedies possessed by Administrative Agent, on behalf of the Buyer, whether under this Agreement or any other Program Agreement or afforded by applicable law.
Section 1.04Fees. The remedies provided for herein are cumulative and are not exclusive of any other remedies provided by law. In addition to the Seller’s obligation contained in Section 3 of the Pricing Side Letter, Seller agrees to pay to Administrative Agent and Buyer reasonable attorneys’ fees and reasonable legal expenses incurred in enforcing Administrative Agent’s and Buyer’s rights, powers and remedies under this Agreement and each other Program Agreement.
Section 1.05Default Rate. Without regard to whether Buyer has exercised any other rights or remedies hereunder, if an Event of Default shall have occurred and be continuing, the applicable Margin in respect of the Pricing Rate shall be increased, to the extent permitted by law, as set forth in clause (ii) of the definition of “Margin”.
ARTICLE VIII
ENTIRE AGREEMENT; AMENDMENTS
AND WAIVERS; SEPARATE ACTIONS BY BUYER
Section 1.01Entire Agreement; Amendments. This Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the parties hereto and supersedes any and all prior or contemporaneous agreements, written or oral, as to the matters contained herein, and no modification or waiver of any provision hereof or any of the Program Agreements, nor consent to the departure by Seller therefrom, shall be effective unless the same is in writing, and then such waiver or consent shall be effective only in the specific instance, and for the purpose, for which it is given. This Agreement may not be amended, modified or supplemented except by writing executed by Seller, Administrative Agent and Buyer. The Administrative Agent shall comply with its obligations under Section 6(d) of the Acknowledgement Agreement; and in addition, the Seller shall deliver to Ginnie Mae a copy of any executed amendment to this Agreement promptly after execution thereof.
Section 1.02Waivers, Separate Actions by Buyer. Any amendment or waiver effected in accordance with this Article VIII shall be binding upon Buyer and Seller; and Buyer’s failure to insist upon the strict performance of any term, condition or other provision of this Agreement or any of the Program Agreements, or of Buyer (or Administrative Agent on behalf of the Buyer) to exercise any right or remedy hereunder or thereunder, shall not constitute a waiver by Buyer (or Administrative Agent on behalf of the Buyer) of any such term, condition or other provision or Default or Event of Default in connection therewith, nor shall a single or partial exercise of any such right or remedy preclude any other or future exercise, or the exercise of any other right or remedy; and any waiver of any such term, condition or other provision or of any such Default or Event of Default shall not affect or alter this Agreement or any of the Program Agreements, and each and every term, condition and other provision of this Agreement and the Program Agreements shall, in such event, continue in full force and effect and shall be operative with respect to any other then existing or subsequent Default or Event of Default in connection therewith. The occurrence of an Event of Default hereunder or under any of the Program Agreements, the occurrence of a Purchase Price Percentage Reduction Event under this Agreement or the occurrence of an Advance Rate Reduction Event under the Indenture shall be deemed to be continuing unless and until waived in writing by Buyer.
ARTICLE IX
SUCCESSORS AND ASSIGNS
Section 1.01Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, any portion thereof, or any interest therein. Seller shall not have the right to assign all or any part of this Agreement or any interest herein without the prior written consent of Buyer.
Section 1.02Participations and Transfers.
(a)Buyer may in accordance with applicable law at any time sell to one or more banks or other entities (“Participants”) participating interests in all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements; provided that (i) if such sale is to a Competitor, Buyer shall obtain Seller’s written consent on or prior to such sale to a Competitor; provided, further, Seller’s consent with respect to a sale shall not be required in the event that (A) such Competitor is an Affiliate of Buyer or (B) an Event of Default has occurred and is continuing, (ii) each such sale shall represent an interest in a Transaction in a Purchase Price of $[***] or more and (iii) other than with respect to a participating interest consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such sale will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. In the event of any such sale by Buyer of participating interests to a Participant, Buyer shall remain a party to the Transaction for all purposes under this Agreement and the Program Agreements and Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement and the Program Agreements. Buyer shall provide notice to Ginnie Mae within [***]of any participation made in accordance with this Section 9.02(a). For the avoidance of doubt, the terms and provisions of Section 9.02(b) shall not restrict or otherwise qualify the terms and provisions set forth in this Section 9.02(a).
(b)Buyer may in accordance with applicable law at any time assign, pledge, hypothecate, or otherwise transfer to one or more banks, financial institutions, investment companies, investment funds or any other Person (each, a “Transferee”) all or a portion of Buyer’s rights and obligations under this Agreement and the other Program Agreements so long as a Noteholder of an MBS Advance VFN continues to own interests in the outstanding Series of VFNs in an aggregate amount that equals or exceeds the amount required to avoid an Early Amortization Event under any outstanding Series of Term Notes; provided, that (i) Seller has consented to such assignment, pledge, hypothecation, or other transfer (such consent not to be unreasonably withheld, conditioned or delayed); provided, however, Seller’s consent shall not be required in the event that (A) such Transferee is an Affiliate of Buyer or (B) an Event of Default has occurred; (ii) absent an Event of Default, Buyer shall give at least [***] prior notice thereof to Seller; and (iii) that each such sale shall represent an interest in the Transactions in an aggregate Purchase Price of $[***]or more; (iv) such Transferee shall have also acquired the same percentage interest in each other Series of Variable Funding Notes, unless such Transferee is an Affiliate of Buyer or unless Ginnie Mae has consented in writing to waive this requirement and (v) other than with respect to an assignment, pledge, hypothecation or transfer consisting of a pro rata interest in all payments related to Purchase Price or Price Differential due to a Buyer in connection with Purchase Price Base and/or Purchase Price Incremental 1 under this Agreement and/or prior to an Event of Default Buyer received an opinion of a nationally recognized tax counsel experienced in such matters that such assignment, pledge, hypothecation or transfer will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes. Buyer shall provide notice to Ginnie Mae within [***] of any assignment, pledge, hypothecation or transfer made in accordance with this Section 9.02(b). In the event of any such assignment, pledge, hypothecation or transfer by Buyer of Buyer’s rights under this Agreement and the other Program Agreements, Seller shall continue to deal solely and directly with Buyer in connection with Buyer’s rights and obligations under this Agreement. Buyer (acting as agent for Seller) shall maintain at its address referred to in Section 10.05 a register (the “Register”) for the recordation of the names and addresses of Transferees, and the
Purchase Price outstanding and Price Differential in the Transactions held by each thereof. The entries in the Register shall be prima facie conclusive and binding, and Seller may treat each Person whose name is recorded in the Register as the owner of the Transactions recorded therein for all purposes of this Agreement. No assignment shall be effective until it is recorded in the Register.
(c)All actions taken by Buyer pursuant to this Section 9.02 shall be at the expense of Buyer. Buyer may distribute to any prospective assignee any document or other information delivered to Buyer by Seller.
(d)Notwithstanding any other provision of this Agreement to the contrary, Buyer may pledge as collateral, or grant a security interest in, all or any portion of its rights in, to and under this Agreement to a Federal Reserve Bank to secure obligations to such Federal Reserve Bank, in each case without the consent of Seller; provided that no such pledge or grant shall release Buyer from its obligations under this Agreement; provided, further, that no such pledge or grant shall be to a Competitor of Seller.
Section 1.03Buyer and Participant Register.
(a)Subject to acceptance and recording thereof pursuant to paragraph (b) of this Section 9.03, from and after the effective date specified in each assignment and acceptance the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such assignment and acceptance, have the rights and obligations of Buyer under this Agreement. Any assignment or transfer by Buyer of rights or obligations under this Agreement that does not comply with this Section 9.03 shall be treated for purposes of this Agreement as a sale by such Buyer of a participation in such rights and obligations in accordance with Section 9.02.
(b)Seller or an agent of Seller shall maintain a register (the “Transaction Register”) on which it will record the Transactions entered into hereunder, and each assignment and acceptance and participation. The Transaction Register shall include the name and address of Buyer (including all assignees, successors and Participants), and the Purchase Price of the Transactions entered into by Buyer. Failure to make any such recordation, or any error in such recordation shall not affect Seller’s obligations in respect of such Transactions. If Buyer sells a participation in any Transaction, it shall provide Seller, or maintain as agent of Seller, the information described in this paragraph and permit Seller to review such information as reasonably needed for Seller to comply with its obligations under this Agreement or under any applicable law or governmental regulation or procedure.
ARTICLE X
AGENT PROVISIONS
Section 1.01Appointment of Administrative Agent.
(a)Buyer hereby irrevocably appoints Nomura Corporate Funding Americas, LLC, as Administrative Agent hereunder and under the other Program Agreements, and Buyer hereby authorizes Nomura Corporate Funding Americas, LLC, in such capacity, to act as its agent in accordance with the terms hereof. The provisions of this Article X are solely for the benefit of Administrative Agent and Buyer, and Seller shall not have any rights as a third party beneficiary of any of the provisions thereof. In performing its functions and duties hereunder, Administrative Agent shall act solely as an agent of Buyer and does not assume and shall not be deemed to have assumed any obligation towards or relationship of agency or trust with or for Seller.
(b)The Buyer may, to the extent permitted by applicable law and the Program Agreements, and with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld), by notice in writing to such Person remove for cause such Person as Administrative Agent and, with the consent of Seller (such consent not to be required if an Event of Default has occurred and is continuing and not to be unreasonably withheld) and in accordance with the terms of the other Program Agreements, appoint a successor Administrative Agent. If no such successor Administrative Agent shall have been so appointed by the Buyer and shall have accepted such appointment within [***] (or such earlier day as shall be agreed by the Buyer and Seller), then such removal shall nonetheless become effective in accordance with such notice on the date [***] (or such earlier day as shall be agreed by the Buyer and Seller) after the Administrative Agent’s receipt of such notice of removal.
Section 1.02Powers and Duties.
Buyer irrevocably authorizes Administrative Agent to take such action on Buyer’s behalf and to exercise such powers, rights and remedies hereunder and under the other Program Agreements as are specifically delegated or granted to Administrative Agent by the terms hereof and thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Administrative Agent shall have only those duties and responsibilities that are expressly specified herein and the other Program Agreements. Administrative Agent may exercise such powers, rights and remedies and perform such duties by or through its agents or employees. Administrative Agent shall not have, by reason hereof or any of the other Program Agreements, a fiduciary relationship in respect of Buyer; and nothing herein or any of the other Program Agreements, expressed or implied, is intended to or shall be so construed as to impose upon Administrative Agent any obligations in respect hereof or any of the other Program Agreements except as expressly set forth herein or therein.
Section 1.03Rights, Exculpation, Etc. The Administrative Agent and its directors, officers, agents or employees shall not be liable for any action taken or omitted to be taken by it under or in connection with this Agreement or the other Transaction Documents. Without limiting the generality of the foregoing, the Administrative Agent: (i) may consult with legal counsel (including, without limitation, counsel to the Administrative Agent), independent public accountants, and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel or experts; (ii) makes no warranty or representation to any Buyer and shall not be responsible to any Buyer for any statements, certificates, warranties or representations made in or in connection with this Agreement or the other Transaction Documents; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or the other Transaction Documents on the part of any Person, the existence or possible existence of any Default or Event of Default, or to inspect the Collateral or other property (including, without limitation, the books and records) of any Person; (iv) shall not be responsible to any Buyer for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or the other Transaction Documents or any other instrument or document furnished pursuant hereto or thereto; and (v) shall not be deemed to have made any representation or warranty regarding the existence, value or collectability of the Collateral, nor shall the Administrative Agent be responsible or liable to the Buyers for any failure to monitor or maintain any portion of the Collateral. Without limiting the foregoing and notwithstanding any understanding to the contrary, no Buyer shall have any right of action whatsoever against the Administrative Agent as a result of the Administrative Agent acting or refraining from acting under this Agreement, the Notes or any of the other Transaction Documents in its own interests as a Buyer or otherwise.
Section 1.04Administrative Agent to Act as Buyer. The agency hereby created shall in no way impair or affect any of the rights and powers of, or impose any duties or obligations upon, Administrative Agent in its individual capacity as Buyer. Administrative Agent shall have the same rights and powers as any other Buyer and may exercise the same as if it were not performing the duties and functions delegated to it hereunder, and the term “Buyer” shall, unless the context clearly otherwise indicates, include Administrative Agent in its individual capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, own securities of, and generally engage in any kind of banking, trust, financial advisory or other business with Seller or any of their Affiliates as if it were not performing the duties specified herein, and may accept fees and other consideration from Seller for services in connection herewith and otherwise without having to account for the same to Buyer.
Section 1.05Buyer’s Representations, Warranties and Acknowledgment.
(a)Buyer represents and warrants that it has made its own independent investigation of the financial condition and affairs of Seller in connection with the Transactions hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness of Seller. Administrative Agent shall not have any duty or responsibility, either initially or on a continuing basis, to make any such investigation or any such appraisal on behalf of Buyer or to provide Buyer with any credit or other information with respect thereto, whether coming into its possession before the making of the Transactions or at any time or times thereafter, and Administrative Agent shall not have any responsibility with respect to the accuracy of or the completeness of any information provided to Buyer.
(b)Unless otherwise agreed to by Buyer and Seller, Buyer, by delivering its signature page to this Agreement and entering into Transactions with Seller hereunder shall be deemed to have acknowledged receipt of, and consented to and approved, each Program Agreement and each other document required to be approved by Administrative Agent or Buyer, as applicable on the Closing Date or such other funding date. Buyer acknowledges that by agreeing to remit its Commitment Share of the Purchase Price on any Purchase Date, Buyer agrees that all conditions precedent to entering into such Transaction have been met on such Purchase Date.
Section 1.06Right to Indemnity.
(a)Buyer hereby agrees to indemnify Administrative Agent, any Affiliate of the Administrative Agent, and their respective directors, officers, agents and employees (each, an “Indemnitee Agent Party”), and hold such Indemnitee Agent Party harmless to the extent that such Indemnitee Agent Party shall not have been reimbursed by Seller (to the extent required in accordance with the terms of this Agreement), from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (except to the extent that it has resulted from the gross negligence or willful misconduct of such Indemnitee Agent Party) which may be imposed on, incurred by or asserted against such Indemnitee Agent Party in exercising its powers, rights and remedies or performing its duties hereunder or under the other Program Agreements or otherwise in its capacity as an Indemnitee Agent Party in any way relating to or arising out of this Agreement or the other Program Agreements, including amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If any indemnity furnished to any Indemnitee Agent Party for any purpose shall, in the opinion of such Indemnitee Agent Party, be insufficient or become impaired, such Indemnitee Agent Party may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished.
(b)Promptly after receipt by the Indemnitee Agent Party of notice of the commencement of any action regarding which a claim in respect thereof is to be made against
Buyer, the Indemnitee Agent Party shall notify Buyer in writing of the commencement thereof, but the omission to so notify will not relieve Buyer from any liability which they may have under this Agreement or from any other liability which they may have, except to the extent that they have been prejudiced in any material respect by the failure by the Indemnitee Agent Party to provide prompt notice. Upon receipt of notice by Buyer, Buyer will be entitled to participate in the related action, and they may elect by written notice delivered to the Indemnitee Agent Party to assume the defense thereof. Upon receipt of notice by the Indemnitee Agent Party of the Buyer’s election to assume the defense of such action, Buyer shall not be liable to the Indemnitee Agent Party for legal expenses incurred by such party in connection with the defense thereof unless (i) Buyer shall not have employed counsel to represent the Indemnitee Agent Party within a reasonable time after receipt of notice of commencement of the action, (ii) Buyer have authorized in writing the employment of separate counsel for the Indemnitee Agent Party, or (iii) the Indemnitee Agent Party has previously engaged counsel and reasonable legal expenses are necessary (a) to transfer the file to the Buyer’s designated counsel, or (b) to pursue immediate legal action necessary to preserve the legal rights or defenses of the Indemnitee Agent Party as against a third party claimant, and such legal action must occur prior to said transfer. Buyer shall not settle any suit or claim without the Indemnitee Agent Party’s written consent unless such settlement solely involves the payment of money by parties other than the Indemnitee Agent Party and includes unconditional release of the Indemnitee Agent Party from all liability on all matters that are the subject of such proceeding or claim.
Section 1.07Successor Administrative Agent.
(a)Administrative Agent may resign at any time by giving [***] prior written notice thereof to Buyer. Upon any such notice of resignation, Buyer shall have the right to appoint a successor administrative agent; provided, that the retiring Administrative Agent shall continue to hold the Collateral and all liens and security interest therein for the benefit of Buyer until a successor administrative agent is appointed.
(b)Upon the acceptance of any appointment as Administrative Agent hereunder by a successor administrative agent, that successor administrative agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent and the retiring Administrative Agent shall promptly (i) transfer to such successor administrative agent all sums and items of Collateral held under the Program Agreements, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor administrative agent under the Program Agreements, and (ii) execute and deliver to such successor administrative agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor administrative agent of the security interests created under the Program Agreements, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this Article X and Section 11.02 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent hereunder.
(c)Notwithstanding anything herein to the contrary, Administrative Agent may assign its rights and duties as Administrative Agent hereunder to an Affiliate without written notice to, the Buyer in accordance with the terms of the Program Agreements; provided, that Seller and Buyer may deem and treat such assigning Administrative Agent as Administrative Agent for all purposes hereof, unless and until such assigning Administrative Agent provides written notice to Seller and Buyer of such assignment. Upon such assignment such Affiliate shall succeed to and become vested with all rights, powers, privileges and duties as Administrative Agent hereunder and under the other Program Agreements.
Section 1.08Delegation of Duties. Administrative Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Program Agreement by or through (i) any one or more of its Affiliates or (ii) any one or more sub agents appointed by Administrative Agent with the prior consent of the Buyer. Administrative Agent and any such sub agent may perform any and all of its duties and exercise its rights and powers by or through their respective Affiliates and their respective officers, partners, directors, trustees, employees and agents. The exculpatory provisions of this Article X shall apply to any such Affiliate or sub agent and to such other parties as are listed above provided that notwithstanding this Section 10.08, no such delegation relieves the Administrative Agent of its duties or obligations under this Agreement.
Section 1.09Right to Realize on Collateral. Anything contained in any of the Program Agreements to the contrary notwithstanding, Seller, Administrative Agent and each Buyer hereby agree that (i) no Buyer shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of Buyer in accordance with the terms hereof and all powers, rights and remedies under the Program Agreements may be exercised solely by Administrative Agent, and (ii) in the event of a foreclosure by Administrative Agent on any of the Collateral pursuant to a public or private sale, Administrative Agent or any Buyer may be the purchaser of any or all of such Collateral at any such sale and Administrative Agent, as agent for and representative of Buyer (but not any Buyer in its or their respective individual capacities unless Buyer shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by Administrative Agent at such sale.
Section 1.10Erroneous Payments.
(a) If the Administrative Agent notifies Buyer or any Person who has received funds on behalf of Buyer (any Buyer or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to Buyer or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and Buyer shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than [***] thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the overnight federal funds rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error. If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Administrative Agent to the contrary.
(b)Buyer hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to Buyer under any Transaction Document, or otherwise payable or distributable by the Administrative Agent to Buyer from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Agreement.
(c)For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor in accordance with immediately preceding clause (a), (i) the Administrative Agent may elect, in its sole discretion on written notice to Buyer, that all rights and claims of Buyer with respect to the Repurchase Price or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Repurchase Price”) shall immediately vest in the Administrative Agent upon such election; after such election, the Administrative Agent (x) may reflect its ownership interest in the related Repurchase Price in a principal amount equal to the Corresponding Repurchase Price on the Asset Schedule, and (y) upon [***], may sell such Repurchase Price (or portion thereof) in respect of the Corresponding Repurchase Price, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by Buyer shall be reduced by the net proceeds of the sale of such Repurchase Price (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against Buyer (and/or against any Payment Recipient that receives funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold such Repurchase Price, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of Buyer with respect to the Erroneous Payment Return Deficiency. For the avoidance of doubt, no vesting or sale pursuant to the foregoing clause (i) will reduce the Committed Amount of any Buyer and such Committed Amount shall remain available in accordance with the terms of this Agreement.
(d)The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Seller, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from Seller for the purpose of making such Erroneous Payment.
(e)No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
(f)Each party’s obligations, agreements and waivers under this Section 10.10 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, Buyer, the termination of the obligations set forth in Section 2.01 with respect to the Committed Amount and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Transaction Document.
ARTICLE XI
MISCELLANEOUS
Section 1.01Survival. This Agreement and the other Program Agreements and all covenants, agreements, representations and warranties herein and therein and in the certificates delivered
pursuant hereto and thereto, shall survive the entering into of the Transaction and shall continue in full force and effect so long as any Obligations are outstanding and unpaid.
Section 1.02Indemnification. Seller shall, and hereby agrees to, indemnify, defend and hold harmless Administrative Agent, Buyer, any Affiliate of Administrative Agent and Buyer and their respective directors, officers, agents, employees and counsel from and against any and all losses, claims, damages, liabilities, deficiencies, judgments or expenses incurred by any of them (including any wire fraud, or data or systems intrusion) (except to the extent that it is finally judicially determined to have resulted from their own gross negligence or willful misconduct) as a consequence of, or arising out of or by reason of any litigation, investigations, claims or proceedings which arise out of or are in any way related to, (i) this Agreement or any other Program Agreement, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, any other Program Agreement or any transaction contemplated hereby or thereby, (ii) Seller’s servicing practices or procedures; (iii) any actual or proposed use by Seller of the proceeds of the Purchase Price, and (iv) any Default, Event of Default or any other breach by Seller of any of the provisions of this Agreement or any other Program Agreement, including , amounts paid in settlement, court costs and reasonable fees and disbursements of counsel incurred in connection with any such litigation, investigation, claim or proceeding or any advice rendered in connection with any of the foregoing. If and to the extent that any Obligations are unenforceable for any reason, Seller hereby agrees to make the maximum contribution to the payment and satisfaction of such Obligations which is permissible under applicable law. Seller’s obligations set forth in this Section 11.02 shall survive any termination of this Agreement and each other Program Agreement and the payment in full of the Obligations, and are in addition to, and not in substitution of, any other of its obligations set forth in this Agreement or otherwise. In addition, Seller shall, upon demand, pay to Buyer or Administrative Agent, as applicable, all costs and Expenses (including the reasonable fees and disbursements of counsel) paid or incurred by Buyer or Administrative Agent in (i) enforcing or defending its rights under or in respect of this Agreement or any other Program Agreement, (ii) collecting the Purchase Price outstanding, (iii) foreclosing or otherwise collecting upon any Repurchase Assets and (iv) obtaining any legal, accounting or other advice in connection with any of the foregoing. This Section shall not apply with respect to Taxes other than Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.
Section 1.03Nonliability of Buyer. The parties hereto agree that, notwithstanding any affiliation that may exist between Seller and Buyer, the relationship between Seller and Buyer shall be solely that of arms-length participants. Buyer shall not have any fiduciary responsibilities to Seller. Seller (i) agrees that Buyer shall not have any liability to Seller (whether sounding in tort, contract or otherwise) for losses suffered by Seller in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by this agreement, the other loan documents or any other agreement entered into in connection herewith or any act, omission or event occurring in connection therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to review on appeal), that such losses were the result of acts or omissions on the part of Buyer constituting gross negligence or willful misconduct and (ii) waives, releases and agrees not to sue upon any claim against Buyer (whether sounding in tort, contract or otherwise), except a claim based upon gross negligence or willful misconduct. Whether or not such damages are related to a claim that is subject to such waiver and whether or not such waiver is effective, neither Buyer nor Administrative Agent shall have any liability with respect to, and Seller hereby waives, releases and agrees not to sue upon any claim for, any special, indirect, consequential or punitive damages suffered by Seller in connection with, arising out of, or in any way related to the transactions contemplated or the relationship established by this Agreement, the other loan documents or any other agreement entered into in connection herewith or therewith or any act, omission or event occurring in connection herewith or therewith, unless it is determined by a judgment of a court that is binding on Buyer (which judgment shall be final and not subject to
review on appeal), that such damages were the result of acts or omissions on the part of Buyer, as applicable, constituting willful misconduct or gross negligence.
Section 1.04Governing Law; Submission to Jurisdiction; Waivers.
(a) This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller acknowledges that the obligations of Buyer hereunder or otherwise are not the subject of any recourse to, any direct or indirect parent or other Affiliate of Buyer. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
(b)EACH OF THE PARTIES HERETO AND THE BUYER, BY THEIR ACCEPTANCE OF THE NOTE, HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(i)SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii)CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(iii)AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION; AND
(iv)WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE TRANSACTIONS CONTEMPLATED THEREBY AND HEREBY.
Section 1.05Notices. Any and all notices (with the exception of Transaction Notices, which shall be delivered via facsimile only), statements, demands or other communications hereunder may be given by a party to the other by mail, email, facsimile, messenger or otherwise to the address specified below, or so sent to such party at any other place specified in a notice of change of address hereafter received by the other. All notices, demands and requests hereunder may be made orally, to be confirmed promptly in writing, or by other communication as specified in the preceding sentence.
If to Seller:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: General Counsel
Email: [***]
If to Buyer:
For Transaction Notice:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: Operations
Email: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
Email: [***]
If to Administrative Agent:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: Operations
Email: [***]
with a copy to:
Nomura Corporate Funding Americas, LLC
Worldwide Plaza
309 West 49th Street
New York, New York 10019-7316
Tel: [***]
Fax: [***]
Attention: [***]
Email: [***]
Section 1.06Severability. 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. In case any provision in or obligation under this Agreement or any other Program Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
Section 1.07Section Headings. The Article and Section headings in this Agreement are inserted for convenience of reference only and shall not in any way affect the meaning or construction of any provision of this Agreement.
Section 1.08Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterparty of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of a manually executed counterparty of this Agreement. The parties agree that this Agreement, any addendum 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 the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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 providers with appropriate document access tracking, electronic signature tracking and document retention as may be approved by the Administrative Agent in its sole discretion.
Section 1.09Periodic Due Diligence Review. Seller acknowledges that Buyer has the right to perform continuing due diligence reviews with respect to Seller and the Purchased Assets, for purposes of verifying compliance with the representations, warranties and specifications made hereunder, or otherwise, and Seller agree that upon reasonable (but no less than [***]) prior written notice unless an Event of Default shall have occurred, in which case no notice is required, to Seller, Buyer or its authorized representatives will be permitted during normal business hours, and in a manner that does not unreasonably interfere with the ordinary conduct of Seller’s business, to examine, inspect, and make copies and extracts of, any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the
possession or under the control of Seller. Seller also shall make available to Buyer a knowledgeable financial or accounting officer for the purpose of answering questions respecting the Purchased Assets. Without limiting the generality of the foregoing, Seller acknowledges that Buyer may enter into a Transaction related to any Purchased Assets from Seller based solely upon the information provided by Seller to Buyer in the Asset Schedule and the representations, warranties and covenants contained herein, and that Buyer, at its option, has the right at any time to conduct a partial or complete due diligence review on some or all of the Purchased Assets related to a Transaction. Seller agrees to cooperate with Buyer and any third party underwriter in connection with such underwriting, including providing Buyer and any third party underwriter with access to any and all documents, records, agreements, instruments or information relating to such Purchased Assets in the possession, or under the control, of Seller.
Section 1.10Hypothecation or Pledge of Repurchase Assets. Buyer shall have free and unrestricted use of all Repurchase Assets and nothing in this Agreement shall preclude Buyer from engaging in repurchase transactions with all or a portion of the Repurchase Assets or otherwise pledging, repledging, transferring, hypothecating, or rehypothecating all or a portion of the Repurchase Assets; provided that prior to an Event of Default, such pledge, repledge, transfer, hypothecation or rehypothecation is treated as a financing or hedging transaction for U.S. federal income tax purposes or a pro rata interest in all payments due to Buyer under this Agreement; provided, further that other than with respect to a pro rata interest in all payments due to Buyer under this Agreement and prior to an Event of Default Buyer receives an opinion of a nationally recognized tax counsel experienced in such matters that such repurchase transaction, pledge, repledge, transfer, hypothecation or rehypothecation will not result in the Issuer being subject to tax on its net income as an association (or publicly traded partnership) taxable as a corporation or a taxable mortgage pool taxable as a corporation, each for U.S. federal income tax purposes.
Section 1.11Confidentiality.
(a)This Agreement and its terms, provisions, supplements and amendments, and notices hereunder, are proprietary to Buyer or Seller, as applicable and shall be held by each party hereto, as applicable in strict confidence and shall not be disclosed to any third party without the written consent of Buyer or Seller, except for (i) disclosure to Buyer’s or Seller’s direct and indirect Affiliates and Subsidiaries, attorneys, accountants insurance consultants, insurers, agents or financing sources (“Representatives”), but only to the extent such parties agree or are bound by a professional obligation of confidentiality to hold such information in strict confidence, (ii) disclosure to any assignee, prospective assignee, participant or prospective participant, including their respective Representatives, which is not prohibited from being an assignee or participant and which agrees to hold such information in strict confidence and abide by confidentiality provisions substantially similar to those provided herein or are otherwise bound by a professional obligation of confidentiality, or (iii) disclosure required by law, rule, regulation or order of a court or other regulatory body. Notwithstanding the foregoing or anything to the contrary contained herein or in any other Program Agreements, the parties hereto may disclose to any and all Persons, without limitation of any kind, the federal, state and local tax treatment of the Transactions, any fact relevant to understanding the federal, state and local tax treatment of the Transactions, and all materials of any kind (including opinions or other tax analyses) relating to such federal, state and local tax treatment and that may be relevant to understanding such tax treatment; provided that Seller may not disclose the name of or identifying information with respect to Buyer or any pricing terms (including the Pricing Rate, the Purchase Price Percentage, the Purchase Price and the Commitment Fee) or other nonpublic business or financial information (including any sublimits) that is unrelated to the federal, state and local tax treatment of the Transactions and is not relevant to understanding the federal, state and local tax treatment of the Transactions, without the prior written consent of Buyer.
(b)Notwithstanding anything in this Agreement to the contrary, Seller shall comply with all applicable local, state and federal laws, including all privacy and data protection law, rules and regulations that are applicable to the Repurchase Assets and/or any applicable terms of this Agreement (the “Confidential Information”). Seller understands 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 Seller 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 shall 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 Buyer or any Affiliate of Buyer which Seller holds, (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 represents and warrants that it has implemented appropriate measures to meet the objectives of Section 501(b) of the GLB Act and of the applicable standards adopted pursuant thereto, as now or hereafter in effect. Upon request, Seller will provide evidence reasonably satisfactory to allow Buyer to confirm that the providing party has satisfied its obligations as required under this Section 11.11. Without limitation, this may include Buyer’s review of audits, summaries of test results, and other equivalent evaluations of Seller. Seller shall notify Buyer immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of nonpublic personal information of the customers and consumers of Buyer or any Affiliate of Buyer provided directly to Seller by Buyer or such Affiliate. Seller shall provide such notice to Buyer by personal delivery, by facsimile with confirmation of receipt, or by overnight courier with confirmation of receipt to the applicable requesting individual.
Section 1.12Set-off; Netting. In addition to any rights and remedies of Buyer hereunder and by law, upon Buyer’s exercise against Seller of its contractual right as set forth in section 555 and 559 of the Bankruptcy Code to liquidate, terminate, or accelerate such contractual right, Buyer and any of 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, to aggregate, offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with set-off, foreclose, net and appropriate and apply against any Obligation hereunder or other contractual obligation, transaction, confirmation, or agreement set forth in section 555 and 559 of the Bankruptcy Code under any other financing facility between the Seller and the Buyer, whenever arising, from Seller to Buyer or any of its Affiliates including (i) any and all deposit, securities or other trust or custodial accounts maintained for the Seller by the Buyer or its Affiliates and any related deposits (general or special, time or demand, provisional or final), in any currency, or other property (including security entitlements) now or hereafter credited to or held in any such account or otherwise held, or carried by or through, or subject to the control of the Buyer or its applicable Affiliates or agent thereof in connection with any Obligation hereunder or other obligation, transaction, confirmation, or agreement under any other financing facility, whenever arising, whether fully paid or otherwise, (ii) all accounts, chattel paper, commodity accounts, commodity contracts, documents, general intangibles, instruments, investment property, letter-of-credit rights, and securities held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document, (iii) any other obligation (including to return funds to Seller), credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing by or due from Buyer or any Affiliate thereof to or for the credit or the account of Seller, and (iv) all proceeds of or distributions on any of the foregoing, in each case solely to the extent held under or constituting collateral or security under or pursuant to this Agreement or any other financing facility or any related document. The rights of the Buyer and its Affiliates contained herein are in addition to any and all recoupment rights that each such party may have at law or in equity against the Seller
under any Transaction Document or any other financing agreement. For the avoidance of doubt, the Affiliates of the Buyer shall be third party beneficiaries with respect to the terms and provisions of this Section 11.12. Buyer agrees promptly to notify Seller after any such set off or netting and application made by Buyer; provided, that, the failure to give such notice shall not affect the validity of such set off, netting and its application.
Section 1.13Intent.
(a)The parties recognize that each Transaction is a “master netting agreement” as that term is defined in Section 101 of Title 11 of the United States Code, as amended and a “securities contract” as that term is defined in Section 741 of Title 11 of the United States Code, as amended and that all payments hereunder are deemed “margin payments” or “settlement payments” as defined in Title 11 of the United States Code.
(b)It is understood that either party’s right to liquidate Purchased Assets delivered to it in connection with Transactions hereunder or to exercise any other remedies pursuant to Section 7.03 is a contractual right to liquidate such Transaction as described in Sections 555 and Section 561 of Title 11 of the United States Code, as amended.
(c)The parties agree and acknowledge that if a party hereto is an “insured depository institution,” as such term is defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction hereunder is a “qualified financial contract,” as that term is defined in 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 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)This Agreement is intended to be a “securities contract,” within the meaning of Section 555 under the Bankruptcy Code, and a “master netting agreement,” (including but not limited to the agreements set forth in Section 11.12 hereof) within the meaning of Section 561 under the Bankruptcy Code.
(f)It is the intention of the parties that, for U.S. federal income tax purposes and for accounting purposes, each Transaction constitute a financing with Seller incurring an indebtedness, and that Seller be (except to the extent that Buyer shall have exercised its remedies following an Event of Default) the owner of the Purchased Assets for such purposes. Unless prohibited by applicable law that becomes effective after the date of this Agreement, Seller and Buyer shall treat the Transactions as described in the preceding sentence (including on any and all filings with any U.S. federal, state, or local taxing authority and agree not to take any action inconsistent with such treatment).
IN WITNESS WHEREOF, Seller and Buyer have caused this Master Repurchase Agreement to be executed and delivered by their duly authorized officers or trustees as of the date first above written.
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Buyer
By: /s/Sanil Patel
Name: Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust – Series 2021-PIAVF1 Repurchase Agreement]
NOMURA CORPORATE FUNDING AMERICAS, LLC, as Administrative Agent
By: /s/ Sanil Patel
Name: Sanil Patel
Title: Managing Director
[loanDepot GMSR Master Trust – Series 2021-PIAVF1 Repurchase Agreement]
LOANDEPOT.COM, LLC,
as Seller
By: /s/ David Hayes
Name: David Hayes
Title: CFO
[loanDepot GMSR Master Trust – Series 2021-PIAVF1 Repurchase Agreement]
SCHEDULE 1
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SCHEDULE 2
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SCHEDULE 3
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SCHEDULE 4
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EXHIBIT A
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EXHIBIT B
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Certain confidential information contained in this document, marked by “[***]”, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed
EXECUTION VERSION
GUARANTY
This GUARANTY, dated as of January 25, 2024 (as may be amended, restated, supplemented or otherwise modified from time to time, this “Guaranty”) is made by LD HOLDINGS GROUP LLC (the “Guarantor”), in favor of NOMURA CORPORATE FUNDING AMERICAS, LLC (the “Buyer”). Unless otherwise defined herein, terms defined in the Repurchase Agreements (as defined below) and used herein shall have the meanings given to them in the Repurchase Agreements, as the case may be.
RECITALS
WHEREAS, pursuant to (i) the Master Repurchase Agreement, dated as of January 25, 2024 (as amended, restated, supplemented or otherwise modified from time to time, the “Series 2017-VF1 Repurchase Agreement”), between LOANDEPOT.COM, LLC, as seller (the “Seller”) and Buyer, (ii) the Master Repurchase Agreement, dated as of January 25, 2024 (as amended, restated, supplemented or otherwise modified from time to time, the “Series 2021-SAVF1 Repurchase Agreement”), between Seller and Buyer, and (iii) the Master Repurchase Agreement, dated as of January 25, 2024 (as amended, restated, supplemented or otherwise modified from time to time, the “Series 2021-PIAVF1 Repurchase Agreement,” and collectively with the Series 2017-VF1 Repurchase Agreement and the Series 2021-SAVF1 Repurchase Agreement, the “Repurchase Agreements” and each individually, a “Repurchase Agreement”), between Seller and Buyer, Buyer may agree, from time to time to enter into Transactions with Seller, upon the terms and subject to the conditions set forth in each Repurchase Agreement;
WHEREAS, it is a condition precedent to Buyer entering into Transactions with Seller under each Repurchase Agreement that Guarantor shall have executed and delivered this Guaranty to Buyer.
NOW, THEREFORE, in consideration of the premises and to induce Buyer to enter into the Repurchase Agreements and engage in Transactions with Seller, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor, intending to be legally bound, agrees as follows.
1.Guaranty.
(a)The Guarantor hereby (i) fully, irrevocably and unconditionally guarantees the due and punctual payment of any and all Obligations (as defined in the relevant Repurchase Agreement) of the Seller owed to the Buyer under each Repurchase Agreement and (ii) acknowledges that any and all amounts payable by the Guarantor hereunder shall be pari passu with all other senior unsecured debt of the Guarantor.
(b)The Guarantor further agrees to pay any and all expenses (including, without limitation, all reasonable and documented fees and disbursements of counsel, which with respect to entering into this Guaranty and each other Program Agreement shall not exceed the Legal Expense Cap), which may be paid or incurred by the Buyer in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Guaranty.
(c)This is a continuing Guaranty and a guaranty of payment (not merely of collection), and it shall remain in full force and effect until all amounts payable by the Seller to the Buyer under each Repurchase Agreement have been validly, finally and irrevocably paid in full and shall not be affected in any way by the absence of any action to obtain those amounts from the Seller or any other guarantor or surety or to proceed against any other security provided by the Seller or any other person or entity.
(d)The Guarantor hereby agrees that it shall not be necessary, as a condition precedent to enforcement of this Guaranty, that a suit first be instituted against the Seller or that any rights or remedies first be exhausted against the Seller and the Guarantor hereby waives diligence, presentment, demand on the Seller for payment or otherwise, filing of claims, requirement of a prior proceeding against the Seller and protest or notice, except as may be provided for in each Repurchase Agreement with respect to amounts payable by the Seller.
(e)The Guarantor agrees that, except by the complete and irrevocable payment of all amounts payable by the Seller under each Repurchase Agreement, its obligations under this Guaranty shall be unconditional and this Guaranty shall not be subject to any defense of set-off, counterclaim, recoupment or termination or discharge whatsoever by reason of the invalidity, illegality or unenforceability of any obligations under this Guaranty or any other defense that constitutes a legal or equitable discharge or defense of a guarantor or surety in its capacity as such irrespective of the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Seller or by any other circumstance, including, without limitation (i) assertions of amendment, waivers or forbearance affecting any Repurchase Agreement or the related collateral; (ii) the Seller’s lack of authorization to enter into any Repurchase Agreement or its disability or bankruptcy; (iii) incomplete performance of any Repurchase Agreement; (iv) delay by the Buyer in making a claim; (v) lack of complete disclosure of matters relevant to the Guarantor; and (vi) failure to notify the Guarantor.
(f)If at any time payment under any Repurchase Agreement is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Seller or the Guarantor or otherwise, the Guarantor’s obligations hereunder with respect to such payment shall be reinstated upon such restoration or return being made.
(g)So long as any amount payable by the Seller in connection with any Repurchase Agreement is overdue and unpaid, the Guarantor shall not exercise any right of subrogation. If at any time when any amount is overdue and unpaid the Guarantor receives any amount as a result of any action against the Seller or any of its property or assets or otherwise for or on account of any payment made by the Guarantor under this Guaranty, the Guarantor shall forthwith pay that amount received by it, to the extent necessary to satisfy any such amount overdue and unpaid, to the Buyer, to be credited and applied against the amount so payable by the Seller and until payment is made to the Buyer the Guarantor shall hold such amounts in trust for the Buyer.
(h)If the Seller merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist, the Guarantor shall nonetheless continue to be liable for the payment of all amounts payable by the Seller under each Repurchase Agreement to the extent such amounts are not paid when due by the Seller.
(i)The Guarantor agrees that upon Guarantor making any payment to the Buyer on account of the Guarantor’s liability hereunder, the Guarantor will promptly notify the Buyer in writing (which may be by email) that such payment was made under this Guaranty for such purpose. Any such notice shall be sent to Buyer at the address(es) specified in Section 11.05 of the relevant Repurchase Agreement.
2.Payments Free and Clear. Amounts due under this Guaranty shall be paid free and clear of all taxes, assessments or governmental charges payable by deduction or withholding from payment of amounts due under this Guaranty, except for (i) any tax, assessment or governmental charge that the Seller would have been permitted to withhold or deduct, and would not have been required to gross-up or otherwise reimburse the Buyer, in accordance with the terms of the guaranteed obligations, or (ii) any tax, assessment or other governmental charge that would not have been imposed but for the failure by the Buyer to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States if compliance is required as a precondition to exemption from such tax, assessment or other governmental charge. If the Buyer should receive or be granted a credit against or remission for such taxes, assessments or governmental charges it will, to the extent that it can do so without prejudice to the retention of the amount of such credit or remission, reimburse to the Guarantor such amount as it has concluded to be allocable to the relevant tax, assessment or governmental charge and any such reimbursement shall be conclusive evidence of the amount due to the Guarantor.
3.Remedies. The rights and remedies provided for in this Guaranty are in addition to and not exclusive of any rights and remedies available to the Buyer by law in respect of this Guaranty. A failure or delay in exercising any right, power or privilege in respect of this Guaranty will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege. If any amount payable by the Guarantor under this Guaranty is not paid when due, the Buyer may, without notice or demand of any kind, appropriate and apply toward the payment of any such amount any property, balance, credit, deposit account or money of the Guarantor (in any currency) that for any purpose is in the possession or control of the Buyer or any of its Affiliates (or any of its or their respective branches or offices). The Buyer shall be entitled to apply any amount received by it from any source, including the Guarantor, in respect of the Seller’s obligations under each Repurchase Agreement to the discharge of those obligations in such order as the Buyer may from time to time elect in its sole discretion.
4.Representations, Warranties and Covenants. The Guarantor hereby makes to the Buyer the following representations and warranties:
(a)The Guarantor is duly organized and validly existing under the laws of the jurisdiction of its organization and, if relevant under such laws, in good standing;
(b)The Guarantor has the power to execute this Guaranty and any other documentation relating to this Guaranty to which it is a party, to deliver this Guaranty and any other documentation relating to this Guaranty that it is required by this Guaranty to deliver and to perform its obligations under this Guaranty and has taken all necessary action to authorize such execution, delivery and performance;
(c)Such execution delivery and performance do not violate or conflict with any law applicable to the Guarantor, any provision of its constitutional documents, any applicable rule or regulation, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets, any indenture, loan agreement, warehouse line of credit, repurchase agreement, mortgage, deed of trust, Ginnie Mae Contract or any other material contractual obligation of Guarantor, Seller or Issuer;
(d)The Guarantor’s obligations under this Guaranty constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms;
(e)This Guaranty is not entered into in contemplation of insolvency or with intent to hinder, delay or defraud any of Guarantor’s creditors. Guarantor is solvent and will not be rendered insolvent by any Transaction and will not be left with an unreasonably small amount of capital with which to engage in its business. Guarantor has received reasonably equivalent value in exchange for entering into this Guaranty;
(f)No authorizations, approvals or consents of, and no filings or registrations with, any Governmental Authority or any securities exchange are necessary for the execution, delivery or performance by Guarantor of this Guaranty or for the legality, validity or enforceability hereof or thereof; and
(g)Neither Guarantor nor Seller, nor any of the Seller's Subsidiaries, is an “investment company”, or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
In addition, on and as of the date of this Guaranty and on each day until this Guaranty and the Repurchase Agreements are no longer in force, Guarantor covenants as follows:
(a)Guarantor shall preserve and maintain its legal existence.
(b)(g) Neither Guarantor nor Seller, nor any of the Seller's Subsidiaries, shall be an “investment company”, or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.
(c)Neither Guarantor nor any of its Affiliates, officers, directors, partners or members shall be a Prohibited Person.
5.Amendments, Waivers, Notices. Any amendments, waivers and modifications of or to any provision of this Guaranty and any consent to departure by the Guarantor from the terms of this Guaranty shall be in writing and signed and delivered by the Buyer and the Guarantor. Any such waiver or consent shall be effective only in the
specific instance and for the purpose for which it is given. No failure or delay by the Buyer in exercising any right, power or privilege in respect of this Guaranty will be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise of that right, power or privilege or the exercise of any other right, power or privilege. Any notice or communication to the Guarantor shall be sent to its address for notices set forth below, or such other address as may be specified by written notice from time to time, and any notice or communication to the Buyer shall be sent to its address for notices set forth in each Repurchase Agreement, or such other address as may be specified by written notice from time to time.
6.Subrogation. Notwithstanding any payment or payments made by Guarantor hereunder or any set off or application of funds of Guarantor by Buyer, Guarantor shall not be entitled to be subrogated to any of the rights of Buyer against Seller or any collateral security or guarantee or right of offset held by Buyer for the payment of the Obligations, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Seller in respect of payments made by Guarantor hereunder, until all amounts owing to Buyer on account of the Obligations are paid in full and the Repurchase Agreements are terminated. Guarantor hereby subordinates all of its subrogation rights against Seller to the full payment of the Obligations due Buyer under the Repurchase Agreement for a period of ninety-one (91) days following the final payment of the last of all of the Obligations under the Repurchase Agreements. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held by Guarantor in trust for Buyer, segregated from other funds of Guarantor, and shall, forthwith upon receipt by Guarantor, be turned over to Buyer in the exact form received by Guarantor (duly indorsed by Guarantor to Buyer, if required), to be applied against the Obligations, whether matured or unmatured, in such order as Buyer may determine.
7.Event of Default. If an Event of Default under any Repurchase Agreement shall have occurred and be continuing, the Guarantor agrees that, as between the Guarantor and the Buyer, the Obligations may be declared by Buyer to be due in accordance with the terms of the applicable Repurchase Agreement for purposes of this Guaranty notwithstanding any stay, injunction or other prohibition which may prevent, delay or vitiate any such declaration as against the Seller and that, in the event of any such declaration, upon receipt of such declaration in writing from Buyer, such Obligations shall forthwith become due by the Guarantor for purposes of this Guaranty.
8.Reinstatement. The obligations of Guarantor under this Guaranty, and this Guaranty, shall continue to be effective, or be reinstated, as the case may be, and be continued in full force and effect, if at any time any payment, or any part thereof, of any of the Obligations is rescinded, invalidated, declared fraudulent or preferentially set aside or must otherwise be restored, returned or repaid by Buyer upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Seller or Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Seller or Guarantor or any substantial part of its or their property, or for any other reason, all as though such payments had not been made.
9.Intent. The Guarantor intends that this Guaranty constitute a “securities contract” as that term is defined in Section 741(7) of the Bankruptcy Code, a “master netting agreement” as that term is defined in Section 101(38A) of the Bankruptcy Code, and the Buyer’s right to exercise any other remedies hereunder is a contractual right to cause the liquidation, termination or acceleration of such Transactions as described in Sections 741(7)(A), 101(47), 555, 559, 362(b)(6) and 362(b)(7) of the Bankruptcy Code when relating to a “repurchase agreement” and “securities contract” and Sections 101(38A)(A), 561 and 362(b)(27) of the Bankruptcy Code when relating to “a master netting agreement.”. The parties further agree not to challenge, and hereby waives to the fullest extent available under applicable law their rights to challenge, the characterization of this Guaranty, the Repurchase Agreements or any Transaction under the Repurchase Agreements as a “master netting agreement” and/or “securities contract” within the meaning of the Bankruptcy Code.
10.Binding Effect; Assignment. This Guaranty shall be binding upon the successors and assigns of the Guarantor and shall inure to the benefit of and be binding upon the Guarantor and the Buyer and their respective successors and permitted assigns. The Guarantor shall not assign its obligations under this Guaranty without the prior written consent of Buyer.
11.Governing Law; Jurisdiction; Etc. THIS GUARANTY AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS GUARANTY, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. The parties irrevocably submit to the exclusive jurisdiction of any United States Federal or New York State court sitting in Manhattan, and any appellate court from any such court, for purposes of any action or proceeding relating to this Guaranty. Each of the parties irrevocably waives, to the fullest extent permitted by law, any defense or objection it may have that any such action or proceeding in any such court has been brought in an inconvenient forum.
12.Term. This Guaranty shall remain in full force and effect until the obligations under each Repurchase Agreement are paid in full and each Repurchase Agreement is terminated or upon mutual agreement of the Guarantor and the Buyer.
13.Electronic Signatures. This Guaranty may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterparty of a signature page to this Guaranty by facsimile or other electronic means shall be effective as delivery of a manually executed counterparty of this Guaranty. The parties agree that this Guaranty or amendment hereto or any other document necessary for the consummation of the transactions contemplated by this Guaranty may be accepted,
executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, 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 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 providers with appropriate document access tracking, electronic signature tracking and document retention as may be approved by the Administrative Agent in its sole discretion.
14.Headings. The section headings in this Guaranty are for convenience of reference only and shall not affect the meaning or construction of any provision of this Guaranty.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty with effect from the date first written above.
LD HOLDINGS GROUP LLC
By:/s/ David Hayes
Name: David Hayes
Title: CFO
Address for Notices:
LD Holdings Group LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Phone Number: [***]
Email: [***]
With copies to:
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: [***]
Email: [***]
loanDepot.com, LLC
6561 Irvine Center Drive
Irvine, California 92618
Attention: General Counsel
Email: [***]
[Signature Page to Guaranty]