EXHIBIT 10.36
ANNEX I
ADDITIONAL SUPPLEMENTAL TERMS TO MASTER REPURCHASE AGREEMENT,
DATED AS OF DECEMBER 18, 2001, BETWEEN
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC ( "Buyer")
AND
ORIGEN SPECIAL PURPOSE, L.L.C. ( "Seller")
1. APPLICABILITY. These are Additional Supplemental Terms (the "Additional
Supplemental Terms") to the Master Repurchase Agreement dated as of
December 18, 2001 between Seller and Buyer (the "Repurchase Agreement").
The provisions of these Additional Supplemental Terms shall supersede the
terms in the Repurchase Agreement to the extent they are in conflict. This
Agreement shall be read, taken, and construed as one and the same
instrument. Capitalized terms used in these Additional Supplemental Terms
and not otherwise defined herein shall have the meanings set forth in the
Repurchase Agreement.
2. Paragraph 1 of the Repurchase Agreement is amended by adding the following
after the word "assets" and before the parenthetical "( "Securities")" in
the second line thereof:
"including, without limitation, whole loans secured by manufactured
housing or any interests in any such whole loans".
3. Paragraph 1 of the Repurchase Agreement is amended by adding the following
sentence after the first sentence thereof:
"In no event shall Seller or Buyer be required to enter into more
than two (2) Transactions in any given calendar week."
4. ADDITIONAL DEFINITIONS.
(a) Paragraph 2(a) of the Repurchase Agreement is hereby amended by
adding the following after the word "any" and before the word
"bankruptcy" in the second line of the definition of "Act of
Insolvency":
"conservatorship or receivership (within the meaning of the
Financial Institutions Reform, Recovery, and Enforcement Act
of 1989),".
(b) Notwithstanding the definition set forth in Paragraph 2(d) of the
Repurchase Agreement, "Buyer's Margin Percentage" shall mean with
respect to any Transaction as of any date, the percentage set forth
in Paragraph 4(g) or, in the absence of any such percentage, the
percentage as determined by Buyer in its sole discretion.
(c) Notwithstanding the definition set forth in Paragraph 2(j) of the
Repurchase Agreement, "Market Value" shall mean (i) with respect to
Purchased Securities that are Eligible Securities, the market price,
as of any date of determination, as determined by Buyer in its sole
discretion without credit for any interest accrued
1
and unpaid thereon but taking into account the coupon rate thereon,
and (ii) with respect to Purchased Securities that are not Eligible
Securities, zero dollars ($0). Buyer shall mark the Purchased
Securities to market on a daily basis, in its sole discretion.
(d) Notwithstanding the definition set forth in Paragraph 2(l) of the
Repurchase Agreement, "Pricing Rate" shall mean the per annum
percentage rate for determination of the Price Differential as set
forth in Section 21 hereof.
(e) Notwithstanding the definition set forth in Paragraph 2(q) of the
Repurchase Agreement, the "Repurchase Date" with respect to each
Transaction shall be the earliest of (i) the 10th day of each
calendar month or, if such day is not a Business Day, the
immediately following Business Day, (ii) the Termination Date, and
(iii) the date determined by application of Paragraph 11 of the
Repurchase Agreement or Section 17 hereof.
(f) "Affiliate" shall mean, with respect to any specified Person, any
other Person controlling or controlled by or under common control
with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities,
by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
(g) "Bingham" shall mean Bingham Financial Services Corporation, or any
successor thereto.
(h) "Business Day" shall mean any day other than (i) a Saturday or a
Sunday or (ii) another day on which banking institutions in the
State of New York are authorized or obligated by law, executive
order, or governmental decree to be closed.
(i) "Code" means the Internal Revenue Code of 1986, as amended.
(j) "Collateral" shall mean the Purchased Securities and any proceeds of
the sale or securitization of the Purchased Securities.
(k) "Collection Account" shall have the meaning assigned under Section
37 herein.
(l) "Commitment Facility Fee" shall have the meaning set forth in the
Side Letter.
(m) "Computer Tape" shall mean a computer tape generated by the Seller
and delivered to Buyer that provides the information relating to the
MH Loans set forth in Section 5(b) hereto.
(n) "Contracts" means the manufactured housing installment sales
contracts and installment loan agreements, including any
Land-and-Home Contracts and
2
includes, without limitation, all related security interests and any
and all rights to receive payments thereunder.
(o) "Contract Rate" means, with respect to any particular Contract, the
rate of interest specified in that Contract.
(p) "Custodian" shall refer to LaSalle Bank National Association, in its
capacity as custodian under the Custodial Agreement or any successor
thereto, or any other mutually acceptable custodian.
(q) "Custody Agreement" shall refer to one or more Custody Agreements,
by and among Seller, Buyer, Servicer and Custodian providing for the
custody of ownership records relating to MH Loans.
(r) "Eligible MH Loan" shall have the meaning set forth in the Side
Letter.
(s) "Eligible Security" shall have the meaning set forth in the Side
Letter.
(t) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(u) "Financed Prepaid Finance Charges" means those finance charges at
origination of a MH Loan which were paid by the Obligor with the
proceeds of the MH Loans, which term includes all financed points
and fees including buydown points, origination points, review fees,
and any other form of a fee that is included in the amount financed.
(v) "GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
(w) "Guaranty" shall mean the Guaranty of the Guarantor in favor of the
Buyer, dated as of December 18, 2001.
(x) "Guarantor" shall mean Bingham, or any successor thereto.
(y) "Land-and-Home Contract" means a Contract that is secured by a
Mortgage on (i) real estate on which the related Manufactured Home
is situated, and which Manufactured Home is considered or classified
as part of the real estate under the laws of the jurisdiction in
which it is located, or (ii) real estate other than real estate on
which the related Manufactured Home is situated pursuant to a
land-in-lieu contract.
(z) "LIBOR" shall have the meaning assigned thereto in Section 21(a)
hereof.
(aa) "Loan Documents" shall mean the Note, Mortgage, manufactured housing
installment sales contracts, installment loan agreements and any
other documents
3
and agreements made for the benefit of the related originator and
executed in connection with an MH Loan.
(bb) "Loan File" shall have the meaning assigned thereto in the Custody
Agreement.
(cc) "Loan Schedule" shall mean the schedule of MH Loans delivered by
Seller to the Buyer and the Custodian pursuant to Section 5(b)
hereto.
(dd) "Manufactured Home" means a unit of manufactured housing, including
all accessions thereto, securing the indebtedness of the Obligor
under the related Contract.
(ee) "Maximum Aggregate Purchase Price" shall equal ONE HUNDRED FIFTY
MILLION DOLLARS ($150,000,000).
(ff) "MH Loan" shall mean fixed-rate Contracts originated or purchased by
Origen. Each MH Loan includes, without limitation, all Servicing
Rights and Records relating to such MH Loan and all related security
interests, the Related Assets, and any and all rights to receive
payments thereunder and all other proceeds thereof (including,
without limitation, any recourse rights against third persons) from
and after the related Purchase Date.
(gg) "Mortgage" shall mean the mortgage or deed of trust that secures the
Note and creates a lien on the fee simple or leasehold interest of
the related Obligor in the related Mortgaged Property or Mortgaged
Properties and on the related Personalty or Personalties.
(hh) "Mortgaged Property" shall mean the real property or properties,
including any and all buildings, improvements and leasehold
improvements thereon, all rents, issues, profits and income derived
from the operation of the real property or properties and any other
Collateral subject to the lien of the related Mortgage.
(ii) "Multiemployer Plan" shall mean a multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) in respect of which Seller
makes contributions or has liability.
(jj) "Net Worth" means as of any date of determination thereof, the net
worth of Origen and its subsidiaries on a consolidated basis as
determined in accordance with GAAP.
(kk) "Note" shall mean the original executed promissory note evidencing
the indebtedness of an Obligor under an MH Loan, together with any
rider, addendum or amendment thereto, or any renewal, substitution
or replacement of such note.
(ll) "Obligation" shall mean (a) all of Seller's and Guarantor's
indebtedness, obligation to pay the Repurchase Price on the
Repurchase Date, and other
4
obligations and liabilities, to Buyer, its Affiliates or Custodian
arising under, or in connection with, the Transaction Documents,
whether now existing or hereafter arising; (b) any and all sums paid
by Buyer or on behalf of Buyer in order to preserve or protect any
Purchased Security or its interest therein; (c) in the event of any
proceeding for the collection or enforcement of any of Seller's and
Guarantor's indebtedness, obligations or liabilities referred to in
clause (a), the reasonable expenses of retaking, holding,
collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Security, or of any exercise by Buyer of
its rights under the related agreements, including without
limitation, attorneys' fees and disbursements and court costs; and
(d) all of Seller's and Guarantor's indemnity obligations to Buyer
or Custodian or both pursuant to the Transaction Documents.
(mm) "Obligor" shall mean the Obligor or Obligors on a Note or Contract,
including, without limitation, any Person that has acquired the
related Collateral and assumed the obligations of the original
obligor under the Note or Contract.
(nn) "Origen" shall mean Origen Financial, L.L.C., or any successor
thereto.
(oo) "Originator" shall mean the initial payee on a Note.
(pp) "PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor
thereto.
(qq) "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability
company, unincorporated organization or government or any agency or
political subdivision thereof.
(rr) "Personalty" shall mean the personal property or properties and
profits, rents, issues and income derived from the operation of the
personal property or properties subject to the lien of the related
Mortgage.
(ss) "Plan" shall mean any pension plan (other than a Multiemployer Plan)
covered by Title IV of ERISA, which is maintained by Seller or in
respect of which Seller has liability.
(tt) "Predatory Lending Practices" shall mean any and all underwriting
and lending policies, procedures and practices defined or enumerated
in any local or municipal ordinance or regulation or any state or
federal regulation or statute prohibiting, limiting or otherwise
relating to the protection of consumers from such policies,
procedures and practices. Such policies, practices and procedures
may include, without limitation, charging excessive loan, broker,
and closing fees, charging excessive rates of loan interest, making
loans without regard to a consumer's ability to re-pay the loan,
refinancing loans with no material benefit to the consumer, charging
fees for services not actually performed, discriminating against
consumers on the basis of race, gender, or age, failing to make
proper
5
disclosures to the consumer of the consumer's rights under federal
and state law, and any other predatory lending policy, practice or
procedure as defined by ordinance, regulation or statute.
(uu) "Prepayment Charge" shall mean a payment required to be made by an
Obligor under any MH Loan in connection with a payment of principal
paid prior to the scheduled payment date of such principal.
(vv) "Pricing Margin" shall have the meaning set forth in the Side
Letter.
(ww) "Prime Rate" shall mean, with respect to any date of determination,
the daily prime loan rate as reported in The Wall Street Journal as
most recently available as of the date of determination or, if more
than one rate is published, the highest of such rates, or if such
rate is not published for any reason, a daily prime loan rate from a
comparable financial publication.
(xx) "Purchase Price Percentage" shall have the meaning set forth in the
Side Letter.
(yy) "Records" shall mean, with respect to any MH Loan, all documents,
books, records and other information (including, without limitation,
computer programs, tapes, discs, punch cards and related property
and rights) relating to such MH Loan. Records shall include the
Notes, any Mortgages, any instruments necessary to document or
service a MH Loan, and those documents normally delivered in
conjunction with a securitization and necessary for Buyer to perfect
its security interest in the Purchased Securities and Additional
Purchased Securities.
(zz) "Related Assets" shall mean, in respect of a MH Loan, (i) Seller's
security interest in the Collateral, (ii) Seller's rights, remedies,
powers and privileges under the MH Loans, including any personal
guaranty thereof, (iii) Seller's rights, remedies, powers and
privileges under the Transaction Documents, (iv) Seller's rights,
remedies, powers and privileges under any insurance policies, and
(v) all proceeds of the foregoing.
(aaa) "REMIC Provisions" means the provisions of the federal income tax
law relating to real estate mortgage investment conduits, which
appear at sections 860A through 860G of Subchapter M of Chapter 1 of
the Code, and related provisions, and regulations promulgated
thereunder, as the foregoing may be in effect from time to time, as
well as provisions of applicable state laws.
(bbb) "Reportable Event" shall mean any of the events set forth in Section
4043(c) of ERISA or the regulations thereunder.
(ccc) "Servicer" shall mean Origen, or such other servicer agreeable to
Buyer.
6
(ddd) "Servicing Rights" shall mean the contractual, possessory or other
rights of Seller or any other Person arising under a servicing
agreement, Custody Agreement, or otherwise, to administer or service
an MH Loan or to possess related Records.
(eee) "Side Letter" shall mean the pricing side letter, dated as of
December 18, 2001, among Seller, Bingham, Origen and Buyer.
(fff) "Staged Funded Loan" shall mean a Land-and-Home Contract that has
not been fully funded and for which the unfunded amount of the
original principal balance is scheduled to be funded at interim
periods during the acquisition of the related real estate and
Manufactured Home and the conversion of the interim fundings to a
permanent loan.
(ggg) "Take-out Agreement" shall mean that certain agreement between Buyer
and the Take-out Purchaser whereby the Take-out Purchaser agrees to
purchase the Purchased Securities from Buyer, pursuant to the terms
set forth therein, upon the occurrence of an Event of Default.
(hhh) "Take-out Purchaser" shall have the meaning set forth in the Side
Letter.
(iii) "Take-out Purchaser Parent" shall have the meaning set forth in the
Side Letter.
(jjj) "Tangible Net Worth" means Net Worth less the sum of the following
(without duplication): (a) any other assets of the Seller, Origen
and their consolidated subsidiaries which would be treated as
intangibles under GAAP including, without limitation, any write-up
of assets, goodwill, research and development costs, trade-marks,
trade names, copyrights, patents and unamortized debt discount and
expenses and (b) loans or other extensions of credit to officers of
Origen or of any of their consolidated subsidiaries other than
mortgage loans made to such Persons in the ordinary course of
business.
(kkk) "Termination Date" shall have the meaning assigned thereto in
Section 15(b) hereof.
(lll) "Total Liabilities to Tangible Net Worth Ratio" shall mean with
respect to any Person, as of the last day of the most recent fiscal
quarter of such Person, the ratio of (i) total liabilities under
GAAP as of such day, to (ii) the Net Worth of such Person as of such
day.
(mmm) "Transaction" shall, in addition to the definition set forth in
Paragraph 1 of the Repurchase Agreement, refer to substitutions
pursuant to Paragraph 9 of the Repurchase Agreement.
(nnn) "Transaction Documents" shall mean this Agreement, the Custody
Agreement, the Guaranty, the Side Letter, the Take-out Agreement and
any related agreements.
7
(ooo) "Transaction Notice" shall have the meaning assigned under Section
5(b) herein.
(ppp) "Underwriting Guidelines" shall mean the underwriting guidelines of
Origen, a copy of which is attached hereto as Exhibit C.
(qqq) "Upfront Facility Fee" shall have the meaning set forth in the Side
Letter.
(rrr) "WAC Sublimit Amount" shall have the meaning set forth in the Side
Letter.
(sss) "WFICO Sublimit Amount" shall have the meaning set forth in the Side
Letter.
(ttt) "WFPFC Sublimit Amount" shall have the meaning set forth in the Side
Letter.
(uuu) "WLTV Sublimit Amount" shall have the meaning set forth in the Side
Letter.
5. CONFIRMATIONS.
(a) An agreement to enter into a Transaction may not be entered into
orally unless otherwise agreed to between Seller and Buyer.
(b) Paragraph 3(b) of the Repurchase Agreement is hereby deleted in its
entirety and replaced with the following:
(b) Unless otherwise agreed, two (2) Business Days prior to any
proposed Purchase Date, Seller shall deliver (1) Loan File to the
Custodian as specified under the Custody Agreement, and (2) a
transaction notice in the form of Exhibit G hereto (the "Transaction
Notice"), Loan Schedule and Computer Tape to Buyer containing the
following information with respect to each MH Loan:
(i) Loan Number,
(ii) Borrower Name,
(iii) Borrower Address,
(iv) Credit Score (FICO);
(v) Portal Score;
(vi) Coupon;
(vii) Loan-to-Value Ratio;
(viii) Lien Position;
(ix) Principal Balance;
(x) Next Payment Due Date;
(xi) Property Type (single-wide, multi-wide);
(xii) Land-and-Home Contract or other Contract;
(xiii) New or used;
(xiv) Repossession or refinanced;
(xv) If original term extended;
(xvi) Prepaid finance charges;
(xvii) Origination Date;
8
(xviii) Section 32 Loan Indicator;
(xix) Primary residence, "Buy for" or investment property; and
(xx) Any other information as requested by Buyer.
(c) When Buyer determines that any MH Loans identified in a Transaction
Notice are Eligible Securities and will be purchased pursuant to a Transaction,
Buyer shall confirm the terms of each Transaction by delivering a written
confirmation in the form of Schedule 1 attached hereto (a "Confirmation") to
Seller within three (3) Business Days of receipt of the Transaction Notice.
Buyer agrees to use reasonable efforts to pay the Purchase Price with respect to
any Transaction no later than 4:00 p.m. New York City time on the related
Purchase Date. Seller's acceptance of the Purchase Price paid by Buyer on the
Purchase Date shall be deemed Seller's acknowledgment of and agreement with such
Confirmation, and upon acceptance of such Purchase Price, Seller shall execute
such Confirmation where provided therein and deliver the original executed copy
of such Confirmation to the Buyer within two (2) Business Days of the settlement
of any Transaction. The terms of any Transaction Notice executed by Buyer and
acknowledged by Seller shall be deemed incorporated by reference into the
Confirmation and if the terms of the Transaction Notice conflict with the
Confirmation, the terms of the Confirmation shall prevail.
(d) Each Confirmation and Transaction Notice, together with these
Additional Supplemental Terms and the Repurchase Agreement, shall constitute
conclusive evidence of the terms agreed between Buyer and Seller with respect to
the Transaction to which the Confirmation relates, and Seller's acceptance of
the related proceeds shall constitute Seller's agreement to the terms of such
Confirmation. It is the intention of the parties that each Confirmation and
Transaction Notice shall not be separate from these Additional Supplemental
Terms and the Repurchase Agreement but shall be made a part of these Additional
Supplemental Terms and the Repurchase Agreement. In the event of any conflict
between this Agreement and a Confirmation, the terms of the Confirmation shall
control with respect to the related Transaction.
6. BUYER MARGIN MAINTENANCE. Paragraph 4(a) of the Repurchase Agreement is
hereby modified to provide that in the event of a Margin Deficit, Buyer by
notice to Seller may require Seller to transfer, in Buyer's sole
discretion, cash or additional Eligible Securities acceptable to Buyer to
eliminate the Margin Deficit. Paragraph 4(a) of the Repurchase Agreement
is hereby further modified to provide that if the notice given by Buyer to
Seller under such Paragraph 4 is given at or prior to 11:00 a.m. New York
City time, Seller shall transfer to Buyer the cash or additional Eligible
Securities acceptable to Buyer, as applicable, prior to 2:00 p.m. New York
City time in New York City on the Business Day following the date of such
notice, and if such notice is given after 11:00 a.m. New York City time,
Seller shall transfer to Buyer the cash or additional Eligible Securities
acceptable to Buyer, as applicable, prior to 2:00 p.m. New York City time
in New York City on the second Business Day following the date of such
notice. Notice required pursuant to Paragraph 4(a) of the Repurchase
Agreement may be given by any means. 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 these Additional Supplemental
Terms and the Repurchase Agreement are subject or limit the right of Buyer
to do so at a later date.
9
7. SELLER MARGIN MAINTENANCE. Paragraph 4(b) of the Repurchase Agreement is
hereby deleted in its entirety.
8. Paragraph 4 of the Repurchase Agreement is amended by adding a new
subparagraph (g) as follows:
"(g) In the case of Transactions involving Securities that are MH
Loans, (i) the provisions of subparagraphs (b), (d) and (e) of this
Paragraph shall not apply, and (ii) the percentage used in
calculating Buyer's Margin Amount for such Transaction shall equal a
fraction (expressed as a percentage) the numerator of which is 1 and
the denominator of which is the applicable Purchase Price Percentage
(expressed as a decimal). By way of example, if the applicable
Purchase Price Percentage was 90%, the percentage used in
calculating Buyer's Margin Amount for such Transaction would equal
the percentage equivalent of 1/.90 (or 111.111%)"
9. INCOME PAYMENTS. Paragraph 5 of the Repurchase Agreement is hereby deleted
and replaced with following: "Where a particular term of a Transaction
extends over an Income payment date of the Purchased Securities subject to
that Transaction, such Income shall be the property of the Buyer.
Notwithstanding the foregoing, and provided no Default has occurred and is
continuing, on each Repurchase Date following the date such Income is
received by Buyer (or a servicer on its behalf) Buyer shall either (i)
transfer (or permit the servicer to transfer) to Seller such Income with
respect to any Purchased Securities subject to such Transaction or (ii) if
a Margin Deficit then exists, apply the Income payment to reduce the
amount, if any, to be transferred to Buyer by Seller upon termination of
such Transaction; provided, however, that any income received by or on
behalf of Seller while the related Transaction is outstanding shall be
deemed held by Seller solely in trust for Buyer pending the repurchase on
the related Repurchase Date. Buyer shall not be obligated to take any
action pursuant to the preceding sentences to the extent that such action
would result in the creation of a Margin Deficit, unless prior thereto or
simultaneously therewith Seller transfers to Buyer cash or Additional
Purchased Securities sufficient to eliminate such Margin Deficit."
10. SECURITY INTEREST.
(a) Paragraph 6 of the Repurchase Agreement is hereby deleted in its
entirety and replaced by the following:
Although the Buyer and Seller intend that all Transactions hereunder
be sales and purchases and not loans, in the event, for any reason,
any Transaction is construed by any court as a secured loan rather
than a purchase and sale, the parties intend that Seller shall have
granted to Buyer a perfected first priority security interest in all
of Seller's right to and title and interest in (including the right
to convey title thereto) the following property, whether now
existing or hereafter acquired: the Collateral, the Additional
Purchased Securities, Records, any security accounts, including the
Collection Account, and all rights to Income and the rights to
10
enforce such payments arising from any of the Purchased Securities
and all proceeds thereof.
(b) Seller will execute all filings necessary to give Buyer a first
priority perfected security interest in the Purchased Securities, including but
not limited to a first mortgage, deed of trust or similar security on the
underlying fee simple or leasehold interests in real estate. Seller shall pay
all fees and expenses associated with perfecting and maintaining such security
interest including, without limitation, the cost of filing financing statements
and continuation statements under the Uniform Commercial Code and the recording
of any assignment of Mortgage or lease in the appropriate jurisdiction as and
when required thereunder. Buyer shall not record any assignment of Mortgage
until there shall have occurred an Event of Default hereunder.
(c) In the event that Buyer elects to engage in repurchase transactions
with the Purchased Securities or otherwise elects to pledge or hypothecate the
Purchased Securities, Seller shall, at the request of Buyer (i) do and perform
such acts and things necessary to enable the Custodian to do and perform such
further acts and things and to execute and deliver to Buyer and its counterparty
such additional documents, acknowledgments, powers and instruments as are
required by Buyer in connection with such transaction and such counterparty, and
(ii) provide Buyer's counterparty in such repurchase transaction with an opinion
of counsel to the effect that such counterparty has a perfected first priority
security interest in such Purchased Securities. Buyer shall promptly reimburse
Seller for Seller's out-of-pocket expenses incurred in connection with
performance under this Section 10(c).
11. PAYMENT AND TRANSFER. Paragraph 7 of the Repurchase Agreement is hereby
modified by deleting the second sentence in its entirety and adding: "Any
Repurchase Price received by Buyer after 2:00 p.m. New York City time
shall be applied on the next succeeding Business Day."
12. COMMITMENT. On the terms and subject to the conditions set forth in this
Agreement and the Custodial Agreement, Buyer agrees to purchase from the
Seller Eligible Securities and Seller agrees to repurchase such Purchased
Securities from Buyer. Such obligation to repurchase subsists without
regard to any prior or intervening liquidation or foreclosure with respect
to each Purchased Security. Subject to the provisions of Section 22,
Seller is obligated to obtain the Purchased Securities from Buyer or its
designee (including the Custodian) at Seller's expense on (or after) the
related Repurchase Date. Notwithstanding anything herein to the contrary,
Buyer's commitment to purchase Eligible Securities pursuant to this
Agreement shall terminate on the Termination Date.
13. SUBSTITUTION.
(a) The first sentence of Paragraph 9(a) of the Repurchase Agreement is
hereby modified by deleting the words "substitute other Securities for any
Purchased Securities" and adding the words "substitute other Securities which
are substantially the same for any Purchased Securities".
11
(b) Paragraph 9 of the Repurchase Agreement is hereby modified by adding
the following sub-paragraphs:
(c) In the case of any Transaction for which the Repurchase Date is
other than the Business Day immediately following the Purchase Date and
with respect to which Seller does not have any existing right to
substitute substantially the same Securities for the Purchased Securities,
Seller shall have the right, subject to the proviso to this sentence, upon
notice to Buyer, which notice shall be given at or prior to 10 am (New
York time) on such Business Day, to substitute substantially the same
Securities for any Purchased Securities; provided, however, that Buyer may
elect, by the close of business on the Business Day notice is received, or
by the close of the next Business Day if notice is given after 10 am (New
York time) on such day, not to accept such substitution. In the event such
substitution is accepted by Buyer, such substitution shall be made by
Seller's transfer to Buyer of such other Securities and Buyer's transfer
to Seller of such Purchased Securities, and after substitution, the
substituted Securities shall be deemed to be Purchased Securities. In the
event Buyer elects not to accept such substitution, Buyer shall offer
Seller the right to terminate the Transaction.
(d) In the event Seller exercises its right to substitute or
terminate under sub-paragraph (c), Seller shall be obligated to pay to
Buyer, by the close of the Business Day of such substitution or
termination, as the case may be, an amount equal to (A) Buyer's actual
cost (including all fees, expenses and commissions) of (i) entering into
replacement transactions; (ii) entering into or terminating hedge
transactions; and/or (iii) terminating transactions or substituting
securities in like transactions with third parties in connection with or
as a result of such substitution or termination, and (B) to the extent
Buyer determines not to enter replacement transactions, the loss incurred
by Buyer directly arising or resulting from such substitution or
termination. The foregoing amounts shall be solely determined and
calculated by Buyer in good faith.
14. Paragraph 11 of the Repurchase Agreement is amended by adding a new
Subparagraph (j) as follows:
"(j) Buyer and Seller hereby acknowledges that they consider all
transactions and agreements between them to constitute a single
business and contractual relationship and to have been made in
consideration of each other and this Agreement. Therefore, (a) each
party hereby agrees to fulfill all of its obligations to the other
party with respect to any transaction or agreement between them, and
agrees that a default in the performance of any such obligations
("Covenants") shall constitute an Event of Default hereunder, (b)
each party shall have a right of setoff against the other party for
amounts owing hereunder and any other amounts or obligations owing
in respect of any other agreement or transaction whatsoever, and (c)
payments and deliveries made by either party hereunder shall be
considered to have been made in consideration of payments and
deliveries made by the other party with respect to any other
agreement or transaction between them, and the Covenants to make any
such payments and deliveries may be applied against each other and
netted."
12
15. REPRESENTATIONS; COVENANTS.
(a) Seller and Guarantor, and with respect to Exhibit D, Seller, hereby
make, and on and as of the Purchase Date of any Transaction and on and as of
each date thereafter through the related Repurchase Date shall be deemed to have
made, the representations and warranties to Buyer set forth in Exhibit A and
Exhibit D hereto. The representations and warranties set forth herein shall
survive transfer of the Purchased Securities to the Buyer and shall continue
until the Agreement has terminated and Seller has paid all Obligations owed to
Buyer hereunder.
In the event Buyer engages in a repurchase transaction with any of the
Purchased Securities or otherwise pledges or hypothecates any of the Purchased
Securities, Buyer shall have the right to assign to Buyer's counterparty any or
all of the representations and warranties in Exhibit D as they relate to the
Purchased Securities that are subject to such repurchase transaction; provided,
however, that any such repurchase transaction, pledge or hypothecation shall not
diminish or impair the obligation of the Buyer to reconvey the Securities to the
Seller in accordance herewith. In addition, in connection with a sale or
transfer of the Purchased Securities by Buyer following an Event of Default,
Buyer shall have the right to assign to such assignee or purchaser any or all of
the representations and warranties in Exhibit D as they relate to the Purchased
Securities.
(b) In addition to the indemnification provided to Buyer under this
Agreement, Seller and Guarantor agree to, and shall, indemnify Buyer, such
subsequent purchasers and their respective Affiliates, officers, directors,
partners, employees, representatives and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims, damages, judgments,
penalties, suits, actions, costs, disbursements or expenses (including, but not
limited to, attorneys" fees and expenses) asserted against or incurred by any of
them as a result of, or arising out of, or in any way related to any breach by
Seller of such representations or warranties in Exhibit A and Exhibit D.
16. RELIANCE. With respect to any Transaction, Buyer may conclusively rely
upon, and shall incur no liability to Seller in action upon, any request
or other communication from the president, treasurer or chief financial
officer of Seller or any person listed on Exhibit F. In each case, absent
manifest error on the part of the Buyer, Seller hereby waives the right to
dispute Buyer's record of the terms of the Confirmation, request, or other
communication.
17. EVENTS OF DEFAULT.
(a) Subparagraph (vi) of the first paragraph of Paragraph 11 of the
Repurchase Agreement shall be deleted in its entirety.
(b) The term "Event of Default" shall, in addition to the definition set
forth in the Repurchase Agreement, include the following events:
i) Buyer shall have determined that Seller or Guarantor is or will be
unable to meet its commitments under the Transaction Documents and
shall have notified Seller of such determination and Seller shall
not have responded with appropriate information to the contrary to
the satisfaction of Buyer within one Business Day.
13
ii) The Agreement shall for any reason cease to create a valid, first
priority security interest in any of the Purchased Securities
purported to be covered thereby.
iii) A final judgement by any competent court in the United States of
America for the payment of money in an amount of at least $100,000
is rendered against Seller or $500,000 is rendered against Guarantor
and the same remains undischarged for a period of 30 days during
which execution of such judgement is not effectively stayed.
iv) Seller, Guarantor, or Take-out Purchaser shall fail to observe or
perform any of the covenants or agreements under any Transaction
Document (subject to any applicable cure periods therein), which
failure, in the judgment of Buyer, materially and adversely affects
the rights of the Buyer.
v) Any event of default shall occur and be continuing and shall not
have been waived by the counterparty under any repurchase or other
financing agreement for borrowed funds in excess of $1,000,000 or
indenture for borrowed funds by which Seller or Guarantor is bound
or affected.
vi) In the judgment of Buyer (1) a material adverse change shall have
occurred in the business, corporate structure, operations or
financial condition of Seller, Take-out Purchaser or Guarantor, or
(2) any other condition shall exist which, in Buyer's reasonable
discretion, constitutes a material impairment of Seller's, Origen's,
Bingham's or Take-out Purchaser's ability to perform its obligations
under the Transaction Documents to which it is a party.
vii) Buyer shall not have received (a) a monthly compliance certificate,
substantially in the form set forth in Exhibit E hereto, on or prior
to the fifteenth calendar day of each month with respect to the
prior month's activity, which failure shall not have been cured
within one Business Day, and (b) written assurances as to the
adequate capitalization of Guarantor within one Business Day of a
request by Buyer therefor.
viii) Subject to any applicable grace periods and unless otherwise waived
by the applicable counterparty, Seller or Guarantor shall be in
default with respect to any provision under any debt contract or
agreement, any servicing agreement or any lease to which it is a
party, which exceeds $500,000 in the aggregate (which defaults
include, but are not limited to, an Act of Insolvency of Seller or
Guarantor or the failure of Seller or Guarantor to make required
payments in excess of $500,000 under such contract or agreement as
they become due).
ix) Any representation or warranty made by Seller in Exhibit A hereto or
in the Custodial Agreement shall have been incorrect or untrue when
made or repeated or when deemed to have been made or repeated.
14
x) A breach by Seller or Guarantor of any of their covenants or
agreements hereunder.
xi) Bankruptcy or insolvency proceedings shall have been commenced by or
against Seller, Guarantor or Take-out Purchaser.
xii) Seller's or Guarantor'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 or
Guarantor as a "going concern" or a reference of similar import.
xiii) Either (i) a change in control or ownership of Seller, Guarantor or
Take-out Purchaser shall have occurred other than in connection with
and as a result of (a) the issuance and sale by Seller or Guarantor
of common stock in an initial public offering or (b) the transfer of
ownership interests in Seller or Guarantor to any party that was an
Affiliate of Seller or Guarantor prior to such transfer or (c) a
merger or consolidation occurs and Seller, Take-out Purchaser or
Guarantor is the surviving entity upon consummation of the merger or
consolidation; or (ii) both the chief executive officer and chief
financial officer of Seller or Guarantor cease to be employed by
Seller or Guarantor and functioning in their respective capacities
and successors acceptable to Buyer shall not have been employed by
Seller and commenced functioning in such capacities.
xiv) Buyer determines that the Take-out Agreement is unenforceable.
xv) Either (i) Origen's Tangible Net Worth is less than the sum of (a)
$22,500,000 plus (b) for each fiscal quarter ending after December
31, 2001, 50% of its positive consolidated net income as adjusted to
step-up on a quarterly basis; provided, however, the Tangible Net
Worth requirement hereunder may not be reduced from the amount
required at the previous fiscal quarter end; (ii) on or following
December 31, 2001, the Total Liabilities to Tangible Net Worth Ratio
of Origen exceeds 12:1; or (iii) the ratio of Origen's current
assets to current liabilities (each as determined on a consolidated
basis in accordance with GAAP) is less than 1:1.
xvi) Either (i) as of the end of the most recent fiscal quarter of the
Take-out Purchaser Parent, its consolidated financial statements
prepared in accordance with GAAP and reported in its filings with
the Securities and Exchange Commission indicated its total
shareholder's equity is less than $950,000,000; or (ii) the rating
of Take-out Purchaser Parents's long-term debt falls below
BBB/Stable by Standard and Poor's Ratings Services, A Division of
the McGraw-Hill Companies, Inc.
(c) In addition to the rights of the Buyer pursuant to Paragraph 11 of
the Repurchase Agreement, upon the occurrence of an Event of Default by Seller:
15
i) Buyer's commitment to purchase Eligible Securities under Section 3
hereof shall immediately terminate;
ii) All rights of Seller to receive payments which it would otherwise be
authorized to receive pursuant to the Transaction Agreements shall
cease, and all such rights shall thereupon become vested in Buyer,
which shall thereupon have the sole right to receive such payments
and apply them to the aggregate unpaid Repurchase Prices owed by
Seller;
iii) All payments which are received by Seller contrary to the provisions
of the preceding clause (ii) above shall be deposited in the
Collection Account; provided, however, that Seller shall remain
liable to the Buyer for any amounts that remain owing to Buyer
following such deposit.
iv) Buyer shall be entitled to all remedies set forth in the Agreement
and related transaction documents, including the right to sell all
Purchased Securities on a servicing released basis; provided,
however, that Seller shall remain liable to the Buyer for any
amounts that remain owing to Buyer following such sale.
v) The Pricing Rate for each day from and after the date of such Event
of Default shall be a per annum rate equal to the sum of (i) the
Prime Rate and (ii) three percent (3.0%).
(d) Each event specified in Section 17(b) of these Supplemental Terms may,
at the option of Buyer, cause an acceleration of the Repurchase Date for a
Transaction and shall be in addition to any other rights of Buyer to cause such
an acceleration under the Agreement.
(e) The parties recognize that it may not be possible to purchase or sell
all of the Purchased Securities on a particular Business Day, or in a
transaction with the same purchaser, or in the same manner because the market
for such Purchased Securities may not be liquid. In view of the nature of the
Purchased Securities, the parties agree that liquidation of a Transaction or the
underlying Purchased Securities does not require a public purchase or sale and
that a good faith private purchase or sale shall be deemed to have been made in
a commercially reasonable manner. Accordingly, Buyer may elect the time and
manner of liquidating any Purchased Security and nothing contained herein shall
obligate Buyer to liquidate any Purchased Security upon the occurrence of an
Event of Default or to liquidate all Purchased Securities in the same manner or
on the same Business Day or constitute a waiver of any right or remedy of Buyer.
(f) Buyer may direct all Persons servicing the Purchased Securities to
take such action with respect to the Purchased Securities as Buyer determines
appropriate.
(g) Seller shall cause all sums received by it with respect to the
Purchased Securities to be deposited in the Collection Account after receipt
thereof.
(h) Buyer shall without regard to the adequacy of the security for the
Obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take
16
possession of and protect, collect, manage, liquidate, and sell the Purchased
Securities and any other Collateral or any portion thereof, collect the payments
due with respect to the Purchased Securities and any other Collateral or any
portion thereof, and do anything that Buyer is authorized hereunder to do.
Seller shall pay all costs and expenses incurred by Buyer in connection with the
appointment and activities of such receiver.
(i) Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and Seller hereby expressly waives, to the extent
permitted by law, any right Seller might otherwise have to require Buyer to
enforce its rights by judicial process. Seller also waives, to the extent
permitted by law, any defense Seller might otherwise have to the Obligations,
arising from use of nonjudicial process, enforcement and sale of all or any
portion of the Purchased Securities and any other Collateral or from any other
election of remedies except defenses related to any breach by Buyer of any
express provision of this Agreement and defenses related to payment and
performance by Seller hereunder. Seller recognizes that nonjudicial remedies are
consistent with the usages of the trade, are responsive to commercial necessity
and are the result of a bargain at arm's length.
(j) Buyer shall have all the rights and remedies provided herein, provided
by applicable federal, state, foreign, and local laws in equity, and under any
other agreement between Seller and Buyer.
(k) Upon the occurrence of an Event of Default, Buyer shall have, except
as otherwise expressly provided in this Agreement, the right to exercise any of
its rights and/or remedies without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Seller.
(l) Upon the occurrence of an Event of Default, the Seller hereby
authorizes the Buyer, at the Seller's expense, to file such financing statement
or statements relating to the Purchased Securities and the Collateral without
the Seller's signature thereon as the Buyer at its option may deem appropriate,
and appoints the Buyer as the Seller's attorney-in-fact to execute any such
financing statement or statements in the Seller's name and to perform all other
acts which the Buyer deems appropriate to perfect and continue the lien and
security interest granted hereby and to protect, preserve and realize upon the
Purchased Securities and the Collateral, including, but not limited to, the
right to endorse notes, complete blanks in documents and execute assignments on
behalf of the Seller as its attorney-in-fact. Without limiting the generality of
the foregoing, Buyer shall have the right and power during the occurrence and
continuation of any Event of Default to receive, endorse and collect all checks
made payable to the order of Seller representing any payment on account of the
principal of or interest of any of the Collateral and to give full discharge for
the same. Buyer may take all necessary and appropriate actions to direct the
receipt of payment on the MH Loans from the servicer and master servicer thereof
to the Buyer or its designee and handle any claim relating to the MH Loans. This
power of attorney is coupled with an interest and is irrevocable without the
Buyer's consent.
(m) Buyer may set-off cash, the proceeds of the liquidation of the
Purchased Securities and Additional Purchased Securities, any collateral or its
proceeds, and all other sums or obligations owed by Buyer to Seller against all
of Seller's obligations to Buyer under this Agreement, whether or not such
obligations are then due, without prejudice to Buyer's right to recover any
deficiency.
17
Any cash proceeds, or property in excess of any amounts due, or which Buyer
reasonably believes may become due, to it from Seller shall be returned to
Seller after satisfaction of all obligations of Seller to Buyer.
18. NO WAIVERS, ETC. Paragraph 17 of the Repurchase Agreement is hereby
modified by adding the following to the end thereof:
"All rights and remedies of Buyer provided for herein are cumulative
and in addition to any and all other rights and remedies provided by
law, the Transaction Documents, and the other instruments and
agreements contemplated hereby and thereby, and are not conditional
or contingent on any attempt by Buyer to exercise any of its rights
under any other related document. Buyer may exercise at any time
after the occurrence of an Event of Default one or more remedies, as
it so desires, and may thereafter at any time and from time to time
exercise any other remedy or remedies."
19. TERM OF AGREEMENT; NON-ASSIGNABILITY.
(a) The first sentence of Paragraph 15(a) of the Repurchase Agreement is
hereby deleted and replaced with the following:
The Transaction Documents are not assignable by Seller. Buyer may
from time to time assign or transfer all or a portion of its rights
and obligations under this Agreement and the Transaction Documents;
provided, however that Buyer shall maintain, for review by Seller
upon written request, a register of assignees and a copy of an
executed assignment and acceptance by Buyer and assignee
("Assignment and Acceptance"), specifying the percentage or portion
of such rights and obligations assigned. Upon such assignment, (a)
such assignee shall be a party hereto and to each Transaction
Document to the extent of the percentage or portion set forth in the
Assignment and Acceptance and shall succeed to the applicable rights
and obligations of Buyer hereunder, and (b) Buyer shall, to the
extent that such rights and obligations have been so assigned by it
to either (i) an Affiliate of Buyer which assumes the obligations of
Buyer or (ii) to another Person approved by Seller (such approval
not to be unreasonably withheld) which assumes the obligations of
Buyer, be released from its obligations hereunder and under the
Transaction Documents. With respect to any assignment pursuant to
clause (b) above, unless otherwise stated in the Assignment and
Acceptance, Seller shall continue to take directions solely from
Buyer unless otherwise notified by Buyer in writing.
(b) The last sentence of Paragraph 15(a) of the Repurchase Agreement is
hereby deleted. Subject to earlier termination, the Agreement shall terminate
(the "Termination Date") on the date which is which is the earlier of (i) May
28, 2002, or (ii) at Buyer's option, the occurrence of an Event of Default. Not
sooner than 90 days prior to the Termination Date and not later than 45 days
prior to the Termination Date, Seller may request an extension of the
Termination Date, subject to approval by Buyer in its sole discretion, for an
additional 364 days following such Termination
18
Date. All Transactions outstanding hereunder shall terminate automatically
without any requirement for notice on the Termination Date and the Seller shall
repurchase all Securities subject to any Transaction outstanding pursuant to the
terms of the Agreement. Notwithstanding the foregoing, it is further understood
and agreed that if any Transaction shall remain outstanding subsequent to the
termination of this Agreement, this Agreement shall nevertheless survive to
govern the termination of such outstanding Transaction.
(c) No such termination shall affect Seller's or Buyer's outstanding
obligations to the other party at the time of such termination. Seller's
obligations to indemnify Buyer pursuant to the Repurchase Agreement shall
survive the termination hereof.
20. FINANCIAL STATEMENTS.
As of the date hereof, the Guarantor has provided the Buyer with the
Guarantor's audited year-end financial statements and the Guarantor's most
recent publicly available interim financial statement. Each delivery of
Purchased Securities to Buyer hereunder will constitute a representation by
Seller that there has been no material adverse change in Seller, Guarantor, or
Seller's or Guarantor's financial condition not disclosed to Buyer since the
date of Guarantor's most recent financial statement.
21. PRICING RATE; PURCHASE PRICE.
(a) The Pricing Rate with respect to each Transaction hereunder shall be a
per annum rate equal to LIBOR, as defined in this Section, plus the Pricing
Margin (rounded up to the nearest 0.0625%), adjusted monthly.
(i) "LIBOR" shall be the offered rate for United States dollars with
a maturity of one month which appears on Telerate as of 11:00 a.m., City
of London, England time, on each Business Day that such Transaction is
outstanding; provided, however, that if such rate does not appear on the
Dow Jones Telerate Service page 3750 (or such other page as may replace
that page on that service) or if such service is no longer offered, the
rate for United States dollars with a maturity of one month quoted by such
other service as may be selected by the Buyer. "LIBOR Business Day" means
any day other than a Saturday, Sunday or any other day on which banking
institutions in the City of London, England are required or authorized by
law to be closed.
(ii) The Pricing Rate will change daily upon each change in LIBOR.
(b) The Purchase Price with respect to each Purchased Security shall equal
the lesser of (i) the applicable Purchase Price Percentage times the Market
Value of such Purchased Security, or (ii) the applicable Purchase Price
Percentage times the unpaid principal balance of such Purchased Security, or
(iii) the unpaid principal balance of such Purchased Security times a percentage
equal to the equivalent haircut percentage required by rating agencies in
connection with securitizations by Origen of loans similar to the MH Loans.
19
22. REPURCHASE DATE AND REPURCHASE PRICE.
(a) Provided that all applicable conditions in this Agreement have been
satisfied (including the payment of all fees owed to the Buyer), each Purchased
Security repurchased by Seller on a Repurchase Date shall automatically become
subject to a new Transaction. For each new Transaction, accrued Price
Differential shall be settled in cash on such Repurchase Date.
(b) Seller agrees to indemnify Buyer and to hold Buyer harmless from any
loss or reasonable expense which Buyer may sustain or incur as a consequence of
the repurchase of Securities by Seller on a day that is not a Repurchase Date.
Such indemnification shall be in an amount including, but not limited to, the
excess, if any, of (i) the amount of Price Differential that would have been
payable with respect to the related Transaction on the next succeeding
Repurchase Date but for such repurchase over (ii) the sum of (x) the amount of
Price Differential paid by Seller to Buyer in connection with such repurchase,
if any, and (y) the amount of interest (as determined by Buyer in good faith)
that would have accrued on the amount paid by Seller to Buyer in connection with
such repurchase had such amount been deposited by Buyer with leading banks in
the interbank eurodollar market until the next succeeding Repurchase Date. This
covenant shall survive the termination of this Agreement and the payment of all
other amounts payable hereunder. Notwithstanding the foregoing, Seller shall not
be liable for indemnifying Buyer pursuant to this Section 22(b) if such
repurchase is effected to facilitate a securitization of such Securities and
Seller has engaged Buyer (or its affiliate) to act as placement agent or
underwriter in connection with such securitization. Nothing contained in this
Section 22(b) shall be construed to relieve Seller of its obligation to pay to
Buyer the Repurchase Price in connection with any repurchase of Securities
hereunder.
(c) Upon timely payment in full of the Repurchase Price and all other
Obligations owing with respect to a Purchased Security, if no Default or Event
of Default has occurred and is continuing, Buyer shall, and shall promptly
direct Custodian to, release such Purchased Securities (and not substitutes
thereof) unless such release would give rise to or perpetuate a Margin Deficit.
Except as set forth in Paragraphs 4(a) and 9 of the Repurchase Agreement, Seller
shall give at least two (2) Business Days prior written notice to Buyer if such
repurchase shall occur on other than a Repurchase Date. If such a Margin Deficit
is applicable, Buyer shall notify Seller of the amount thereof and Seller may
thereupon eliminate the Margin Deficit in the manner specified in Paragraph 4 of
the Repurchase Agreement.
(d) If Buyer determines that the introduction of, any change in, or the
interpretation or administration of any requirement of law has made it unlawful
or commercially impracticable to engage in any Transactions with a Pricing Rate
based on LIBOR, then Seller (i) shall, upon its receipt of notice of such fact
and demand from Buyer, repurchase the Purchased Securities subject to the
Transaction within thirty (30) days and concurrently enter into a new
Transaction with Buyer with a Pricing Rate based on the Prime Rate plus a margin
and (ii) may elect, by giving notice to Buyer and Custodian, that all new
Transactions shall have Pricing Rates based on the Prime Rate plus a margin. The
foregoing margins shall be solely determined and calculated by Buyer in good
faith. If any such event shall occur, the Seller may terminate all Transactions
upon payment of all amounts owed to Buyer hereunder.
20
(e) If after the date hereof, there shall have occurred (i) the adoption
of any applicable law, rule or regulation regarding capital adequacy, (ii)
introduction of, any change in, or the compliance by Buyer with the Eurocurrency
Reserve Requirement or any change therein, or (iii) any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency (whether or not having the force of law), that the
Buyer has reasonably determined has or would have the effect of reducing the
rate of return on the Buyer's capital as a consequence of its obligations
hereunder to a level below that which the Buyer would have achieved but for such
adoption, change or compliance (taking into consideration the Buyer's policies
with respect to capital adequacy) by an amount which the Buyer, in its
reasonable judgment, shall deem material, then from time to time, the Seller
shall pay to the Buyer such additional amount or amounts as will compensate the
Buyer for such reduction. A certificate as to the change and calculation of such
amounts submitted to the Seller by the Buyer shall be conclusive and binding for
such purposes, absent manifest error.
23. ADDITIONAL INFORMATION.
(a) At any reasonable time, Seller, Bingham and Origen shall permit Buyer,
its agents or attorneys, to inspect and copy any and all documents and data in
their possession pertaining to each Security that is the subject of a
Transaction. Such inspection shall occur upon the request of Buyer at the
offices of Seller, Bingham and Origen, as applicable, during regular business
hours.
(b) Seller agrees to provide to Buyer and to cause the Guarantor to
provide to Buyer such information concerning Seller and each Guarantor's
financial or operational condition, as applicable, as Buyer may request from
time to time unless Seller is not legally permitted to provide such information.
(c) Buyer agrees to keep confidential (and to use its best efforts to
cause its respective agents and representatives to keep confidential) the
Information (as defined below) and all copies thereof, extracts therefrom and
analyses or other materials based thereon, except that the Buyer shall be
permitted to disclose the Information (a) to such of its respective officers,
directors, employees, agents, affiliates, representatives and auditors, on a
need to know basis, (b) to the extent requested by any regulatory authority, (c)
to the extent required by applicable laws and regulations or by any subpoena or
similar legal process, upon prior notice thereof (unless prohibited by the terms
of such subpoena or process) to the Seller, (d) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section 23(c) or (ii) becomes lawfully available to the Buyer on a
nonconfidential basis from a source or third party other than the Seller or
(iii) is material to a counterparty of Buyer in the normal course and Buyer
gives notice to such counterparty that such Information is subject to
confidentiality and such counterparty (which shall be disclosed to Seller)
agrees to the maintenance of confidentiality substantially on the terms in this
Section 23(c), or (e) upon an Event of Default, to the extent disclosure of such
Information is necessary as determined by Buyer in order for Buyer to enforce or
defend Buyer's right under the Agreement. For the purposes of this Section
23(c), "Information" shall mean all financial statements, certificates, reports,
or material non public information that was received from the Seller and all
other written or computer-readable information provided by one party to the
other pursuant to the Loan Documents or the Transaction Documents and the
Transactions contemplated thereby. The provisions of this
21
Section 23(c), shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
24. RIGHT OF SET-OFF. In addition to its rights hereunder, Buyer shall have
the right to proceed against any of Seller's or Guarantor's assets which
may be in the possession of Buyer, any of Buyer's affiliates or its
designee (including the Custodian), including the right to liquidate such
assets and to set-off the proceeds against monies owed by Seller to Buyer,
whether under this Agreement, under a Transaction, or under any other
agreement between the parties, or otherwise, whether or not such
obligations are then due, without prejudice to Buyer's right to recover
any deficiency.
25. CONFIDENTIALITY. This Agreement and its terms, provisions, supplements and
amendments, and notices hereunder, are proprietary to Buyer and shall be
held by Seller (and Seller shall cause Guarantor and the Take-out
Purchaser to hold it) in strict confidence and shall not be disclosed to
any third party without the consent of Buyer except for (i) disclosure to
Seller's direct and indirect affiliates and Subsidiaries, attorneys or
accountants, provided that such entities and Persons likewise agree to be
bound by this covenant of confidentiality or (ii) upon at least 5 Business
Days' prior written notice to Buyer, disclosure required by law, rule,
regulation or order of a court or other regulatory body, which shall not
include the Side Letter unless otherwise agreed by Buyer in writing.
26. CONDITIONS PRECEDENT.
(a) Prior to entering into the initial Transaction under this Agreement,
Seller shall cause each of the following conditions to occur:
(i) A Custodial Agreement to cover the MH Loans, in a form
satisfactory to Buyer, shall have been executed and delivered
by the parties thereto.
(ii) The Transaction Documents shall be duly executed and delivered
to the parties thereto and be in full force and effect, free
of modification, breach or waiver.
(iii) The Transaction Documents shall contain provision that makes
the existence of the terms and conditions of the Agreement
confidential and proprietary of Buyer.
(iv) Seller shall have paid, or caused to be paid, to Buyer the
Upfront Facility Fee.
(v) Buyer shall be satisfied with the results of due diligence
performed on a representative sample of MH Loans under Section
36 herein.
(vi) Seller shall have disclosed information satisfactory to Buyer
with respect to the scheduled maturities and termination
provisions of all outstanding credit facilities and debt of
Seller.
22
(vii) Evidence that all other actions necessary or, in the opinion
of Buyer, desirable to perfect and protect Buyer's interest
in the Purchased Securities and other Collateral have been
taken, including, without limitation, duly executed and filed
Uniform Commercial Code financing statements on Form UCC-1.
(viii) A certified copy of Seller's resolutions approving the
Transaction Documents and Transactions hereunder (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
Transaction Documents have been received by Buyer.
(ix) An incumbency certificate of Seller's secretary certifying
the names, true signatures and titles of Seller's
representatives duly authorized to request Transactions
hereunder and to execute the Transaction Documents and the
other documents to be delivered thereunder has been delivered
to Buyer.
(x) An opinion of Seller's counsel has been received by Buyer
with respect to the matters set forth in Exhibit B, in form
and substance acceptable to Buyer.
(xi) A true and correct copy of the Underwriting Guidelines
certified by an officer of Seller has been received by Buyer.
(b) Prior to entering into each Transaction pursuant to this Agreement,
Seller shall cause each of the following to occur:
(i) Buyer or its designee shall have received on or before the
day of such Transaction (unless otherwise specified in this
Agreement) the following, in form and substance satisfactory
to Buyer and (if applicable) duly executed (A) a Transaction
Notice delivered pursuant to Section 5(b) hereof and (B) such
certificates, opinions of counsel or other documents as Buyer
may reasonably request.
(ii) No Default or Event of Default shall have occurred and be
continuing.
(iii) 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 LIBOR.
(iv) All representations and warranties in the Transaction
Documents hereof shall be true and correct on the date of
such Transaction.
23
(v) Prior to the date of any Transaction, Seller shall deliver to
Buyer or its designee in escrow, for examination with respect
to each proposed MH Loan to be purchased, all Records in
Seller's possession pertaining to each MH Loan. If Buyer
makes such examination prior to the Purchase Date and
identifies any MH Loans which do not satisfy Buyer's
underwriting standards, such MH Loans may, at Buyer's option,
in Buyer's absolute discretion, be rejected for purchase by
Buyer.
(vi) The then aggregate outstanding Purchase Price for all
Purchased Securities, when added to the Purchase Price for
the requested Transaction, shall not exceed the Maximum
Aggregate Purchase Price.
(vii) The Purchase Price for the Purchased Securities in such
Transaction shall equal not less than ONE MILLION DOLLARS
($1,000,000).
(viii) A faxed copy of a duly executed and acknowledged Confirmation
shall be delivered to Buyer in New York, with the executed
and acknowledged original document to be received by Buyer in
New York within two (2) Business Days of the Purchase Date.
(ix) With respect to any state for which evidence satisfactory to
Buyer has not previously been provided, evidence which, in
the reasonable discretion of Buyer, may take the form of an
opinion of counsel for Originator to the effect that, with
respect to each state in which a Mortgaged Property is
located, Originator (i) is qualified to transact business in,
and is in good standing under, the laws of such state or is
otherwise exempt from such qualification requirement under
such laws and (ii) has obtained all licenses required under
the laws of such state to originate, sell and service
mortgage loans of the same type as the related MH Loans, or
is otherwise exempt from such licensing requirements under
such laws.
(x) The Custodian shall have delivered an original Trust Receipt
(as defined in the Custody Agreement) to the Buyer.
(xi) Seller shall have paid, or caused to be paid, to Buyer the
Upfront Facility Fee and any portion of the Commitment
Facility Fee then due and payable.
27. REPURCHASE TRANSACTIONS. Buyer may in its sole election engage in
repurchase transactions with the Purchased Securities or otherwise pledge,
hypothecate, assign, transfer or otherwise convey the Purchased Securities
with a counterparty of Buyer's choice; provided, however, that no such
transaction by Buyer shall relieve Buyer of its obligations to Seller in
connection with the repurchase by Seller of any Purchased Securities in
accordance with the terms of this Agreement.
28. NEW YORK JURISDICTION; WAIVER OF JURY TRIAL. SELLER AGREES TO SUBMIT TO
THE EXCLUSIVE GENERAL JURISDICTION IN THE FEDERAL
24
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW
YORK, AND APPELLATE COURTS, IN ANY ACTION OR PROCEEDING ARISING OUT OF
THIS AGREEMENT. BUYER AND SELLER EACH HEREBY WAIVE THE RIGHT OF TRIAL BY
JURY IN ANY LITIGATION ARISING HEREUNDER.
29. FURTHER ASSURANCES. Seller agrees to do such further acts and things and
to execute and deliver to Buyer such additional assignments,
acknowledgments, agreements, powers and instruments as are reasonably
required by Buyer to carry into effect the purposes of the Agreement, to
perfect the interests of the Custodian in the MH Loans and the Related
Assets or to better assure and confirm unto Buyer its rights, powers and
remedies hereunder.
30. BINDING TERMS. All of the representations, warranties, covenants,
stipulations, promises and agreements in the Agreement shall bind and
inure to the benefit of the successors of the parties hereto, whether
expressed or not.
31. NOTICES AND OTHER COMMUNICATIONS. Any provision of Paragraph 13 of the
Repurchase Agreement to the contrary notwithstanding, any notice required
or permitted by the Agreement shall be in writing (including telegraphic,
facsimile or telex communications) and shall be effective and deemed
delivered only when received by the party to which it is sent; provided,
however, that a facsimile transmission shall be deemed to be received when
transmitted so long as the transmitting machine has provided an electronic
confirmation of such transmission. Any such notice shall be sent to a
party at the address or facsimile transmission number set forth in Annex
II attached hereto.
32. FEES AND DISBURSEMENTS; INDEMNIFICATION.
(a) The Seller agrees to pay on demand (i) all reasonable out-of-pocket
costs and expenses of the Buyer in connection with the preparation, execution,
delivery, administration, modification and amendment of this Agreement
(including, without limitation, (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Buyer with respect thereto, with
respect to advising the Buyer as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under this
Agreement, with respect to negotiations with the Seller or with other creditors
of the Seller or any of its Subsidiaries arising out of any Default or any
events or circumstances that may give rise to a Default and with respect to
presenting claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally and
any proceeding ancillary thereto, in each case involving the Seller or
Guarantor), (ii) the commitment fee (including the legal fees and expense) paid
by the Buyer to the Take-out Purchaser pursuant to the Take-out Agreement, and
(iii) all costs and expenses of the Buyer in connection with the enforcement of
this Agreement and the Take-out Agreement, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including, without limitation, the reasonable fees
and expenses of counsel for the Buyer) whether or not the transactions
contemplated hereby are consummated.
25
(b) The Seller agrees to indemnify and hold harmless the Buyer and each of
its respective Affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against (and will reimburse
each Indemnified Party as the same is incurred) any and all claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable fees
and expenses of counsel) that may be incurred by or asserted or awarded against
any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation,
litigation or other proceeding (whether or not such Indemnified Party is a party
thereto) relating to, resulting from or arising out of any of the Transaction
Documents and all other documents related thereto, any breach of a
representation or warranty of Seller or Guarantor or Seller's or Guarantor's
officer in this Agreement or any other Transaction Document, and all actions
taken pursuant thereto) (i) the Transactions, the actual or proposed use of the
proceeds of the Transactions, this Agreement or any of the transactions
contemplated thereby, including, without limitation, any acquisition or proposed
acquisition or (ii) the actual or alleged presence of hazardous materials on any
Property or any environmental action relating in any way to any Property, except
to the extent such claim, damage, loss, liability or expense is found in a
final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the
indemnity in this Section applies, such indemnity shall be effective whether or
not such investigation, litigation or proceeding is brought by the Seller, its
members, or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Seller also agrees not to assert any claim against
the Buyer or any of its Affiliates, or any of their respective officers,
directors, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Transaction Documents, the actual or proposed use of the
proceeds of the Transactions, this Agreement or any of the transactions
contemplated thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO ASSERT CLAIMS
EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
33. FACILITY FEES.
(a) Seller agrees to pay to Buyer on the date of execution of this
Agreement, the Upfront Facility Fee, such payment to be made in United States
dollars, in immediately available funds, without deduction, set-off or
counterclaim. The Buyer may, in its sole discretion, net such Upfront Facility
Fee from the proceeds of any Purchase Price payable to the Seller.
(b) On each Repurchase Date, Seller agrees to pay to the Buyer, 1/12th of
the Commitment Facility Fee, such payment to be made in United States dollars,
in immediately available funds, without deduction, set-off or counterclaim. The
Buyer may, in its sole discretion, net such Commitment Facility Fee from the
proceeds of any Purchase Price payable to the Seller.
34. NO GUARANTY. Seller acknowledges that the obligations of Buyer hereunder
or otherwise are not subject of any guaranty by, or recourse to, any
direct or indirect parent or other affiliate of Buyer.
26
35. COUNTERPARTS. This Annex I may be executed in any number of counterparts,
each of which shall be an original but such counterparts shall together
constitute but one and the same instrument.
36. DUE DILIGENCE. Buyer shall, from time to time, at Buyer's sole discretion,
perform credit and Loan File and appraisal due diligence. Guarantor will
be responsible for the expense of such due diligence, pursuant to Section
32 herein. Such due diligence may be conducted in connection with a
securitization.
37. SERVICER; BACKUP SERVICER; DELIVERY OF SERVICING RIGHTS.
(a) Origen shall contract service, or cause to be contract serviced, all
MH Loans that are part of the Purchased Securities in accordance with prudent
servicing practices, pending the delivery of such servicing to Buyer, employing
at least the same procedures and exercising the same care that Origen
customarily employs in servicing MH Loans for its own account. Origen shall
notify all servicers of MH Loans of Buyer's interest hereunder and Origen shall
notify Buyer of the name and address of all servicers of MH Loans. Buyer shall
have the right to approve each servicer and the form of all servicing
agreements, which approval shall not be unreasonably withheld. Origen shall hold
or cause to be held all escrow funds collected with respect to such MH Loans in
trust accounts and shall apply the same for the purposes for which such funds
were collected. Upon Buyer's request, Origen shall provide reasonably promptly
to Buyer (i) a letter addressed to and agreed to by each servicer of MH Loans,
in form and substance reasonably satisfactory to Buyer, advising such servicer
of such matters as Buyer may reasonably request, and/or (ii) a recognition
agreement executed by each servicer of MH Loans, in form and substance
reasonably satisfactory to Buyer, in which the servicer recognizes the interest
of Buyer and agrees to follow the instructions of Buyer with respect to the MH
Loans and any related Income with respect thereto. If Origen should discover
that, for any reason whatsoever, Origen or any entity responsible to Origen by
contract for managing or servicing any such MH Loan has failed to perform fully
Origen's obligations under the Transaction Documents or any of the obligations
of such entities with respect to the Purchased Securities, Origen shall promptly
notify Buyer.
Origen shall establish and maintain a collection account (the "Collection
Account") with the Custodian (or any other depositor institution acceptable to
the Buyer) in the name and in trust for the Buyer, which account shall be
subject to the sole dominion and control of the Buyer.
Origen shall collect all principal and interest payments, including
partial prepayments and prepayments in full, less servicing fees, and shall hold
such amounts in trust in an account specified by Buyer and in Buyer's name for
the benefit of Buyer unless otherwise directed by Buyer. Origen shall deposit
all such collections into the Collection Account as soon as practicable, but in
no event later than within one (1) Business Day of receipt of such amounts.
Origen shall remit such amounts to Buyer upon Buyer's request. All withdrawals
from the Collection Account shall be at the direction of the Buyer. In the event
of an Event of Default, Buyer may appoint another servicer.
(b) In the event that Origen or its Affiliate is the primary servicer on
any of the MH Loans, Buyer shall have the right to require that a backup
servicer be appointed if Buyer determines in good faith that a back up servicer
is necessary. If any Affiliate of Seller, including Origen, acts as
27
servicer, such servicer shall be subject to review and approval every 30 days by
Buyer. The backup servicer shall receive a Loan Schedule and Computer Tape of
the MH Loans on a monthly basis and shall balance the aggregate information
contained therein. Any fees and expenses of the backup servicer shall be the
responsibility of Origen.
(c) Notwithstanding any provision to the contrary herein, Seller
acknowledges and agrees that the Servicing Rights of the MH Loans subject to
Transactions are the property of the Buyer. With respect to the Servicing Rights
of each MH Loan, Seller shall deliver such Servicing Rights to the designee of
Buyer, within 75 days of a Purchase Date, unless otherwise stated in writing by
Buyer; provided that on each Repurchase Date that is subject to a new
Transaction, such delivery requirement is deemed restated for such new
Transaction (and the immediately preceding delivery requirement is deemed to be
rescinded) in the absence of directions to the contrary from Buyer, and a new
75-day period is deemed to commence as of such Repurchase Date. The Seller's
transfer of the Servicing Rights under this Section shall be in accordance with
customary standards in the industry.
28
IN WITNESS WHEREOF, Buyer and Seller have caused their names to be signed
hereto by their respective officers thereunto duly authorized, all as of the day
and year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC
as Buyer
By /s/ Bruce T. Miller
-------------------------------------
Name: Bruce T. Miller
Title: Director
ORIGEN SPECIAL PURPOSE, L.L.C.
as Seller
By /s/ Ronald A. Klein
-------------------------------------
Name: Ronald A. Klein
Title: President
Acknowledged:
BINGHAM FINANCIAL SERVICES CORPORATION
By /s/ Ronald A. Klein
-------------------------------------
Name: Ronald A. Klein
Title: Chief Executive Officer
ORIGEN FINANCIAL, L.L.C.
By /s/ Ronald A. Klein
-------------------------------------
Name: Ronald A. Klein
Title: Chief Executive Officer
29
EXHIBIT A
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
SELLER, ORIGEN AND BINGHAM
I. Seller, Origen and Bingham each represent, warrant and covenant, as of the
date hereof and as of each day during the term of the Agreement, as follows:
(a) Due Organization and Qualification. Seller, Origen and Bingham each is duly
organized and validly existing. Seller, Origen and Bingham each is duly
qualified to do business, is in good standing and has obtained all necessary
licenses, permits, charters, registrations and approvals (together, "Approvals")
necessary for the conduct of its business as currently conducted and the
performance of its obligations under the Transaction Documents, in each
jurisdiction in which the failure to be so qualified or to obtain such Approvals
would render any MH Loan unenforceable in any respect or would otherwise have a
material adverse effect upon the Market Value of the Purchased Securities or the
ability of the Seller, Origen or Bingham to perform their respective obligations
under the Transaction Documents.
(b) Power and Authority. Seller, Origen and Bingham each has all necessary power
and authority to conduct its business as currently conducted, to execute,
deliver and perform its obligations under the Transaction Documents and to
consummate the Transactions.
(c) Due Authorization. The execution, delivery and performance of the
Transaction Documents by Seller, Origen or Bingham has been duly authorized by
all necessary action and do not require any additional approvals or consents or
other action by or any notice to or filing with any Person except for filing and
recordings with respect to the liens created pursuant to the Transaction
Documents.
(d) Noncontravention. None of the execution and delivery of the Transaction
Documents by Seller, Origen or Bingham, the consummation of the transactions
contemplated thereby or the satisfaction of the terms and conditions of the
Transaction Documents:
(i) conflicts with or results in any breach or violation of any provision
of the charter or bylaws or similar organizational documents of Seller, Origen
or Bingham or any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award currently in effect having applicability to
Seller, Origen, Bingham or any of Seller's, Origen's or Bingham's properties,
including regulations issued by an administrative agency or other governmental
authority having supervisory powers over Seller, Origen or Bingham;
(ii) constitutes a default by Seller under or a breach of any provision of
any loan agreement, mortgage, indenture or other agreement or instrument to
which Seller, Origen, Bingham or any of Seller's, Origen's or Bingham's
affiliates is a party or by which Seller, Origen or Bingham or any of Seller's,
Origen's or Bingham properties is or may be bound or affected; or
Exhibit A-1
(iii) results in or requires the creation of any lien upon or in respect
of any of the assets of Seller, Origen or Bingham or Seller's, Origen's or
Bingham's affiliates except as otherwise expressly contemplated by the
Transaction Documents.
(e) Legal Proceedings. There is no action, proceeding or investigation by or
before any court, governmental or administrative agency or arbitrator against or
affecting all or any of the Purchased Securities, Seller, Origen, Bingham or any
of their affiliates, or any properties or rights of Seller, Origen or Bingham or
any of their affiliates, pending or threatened, which, in any case, if decided
adversely, would have a material adverse effect with respect to the Market Value
of the Purchased Securities or the ability of the Seller, Origen or Bingham to
perform their respective obligations under the Transaction Documents.
(f) Valid and Binding Obligations. Each of the Transaction Documents to which
Seller, Origen or Bingham is a party when executed and delivered by Seller,
Origen or Bingham will constitute the legal, valid and binding obligations of
Seller, Origen or Bingham, enforceable in accordance with their respective
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally or creditors of national banks and subject, as to the enforcement of
remedies, including the remedy of specific performance and injunctive and other
forms of equitable relief which may be subject to certain equitable defenses and
to the discretion of the court before which any proceeding may be brought, to
general principles of equity whether the enforceability is considered in a
proceeding at law or in equity.
(g) Financial Statements. The Financial Statements of Guarantor, copies of which
have been furnished to Buyer, (i) present fairly the financial condition and
results of operations of Guarantor as of the dates and for the periods indicated
and (ii) have been prepared in accordance with generally accepted accounting
principles consistently applied, except as noted therein (subject as to interim
statements to normal year-end adjustments). Since the date of the most recent
Financial Statements, there has been no material adverse change in such
financial condition or results of operations. Except as disclosed in the
Financial Statements, Guarantor nor Seller is subject to any contingent
liabilities or commitments that, individually or in the aggregate, would have a
material adverse change in the business or operations of Guarantor or the Seller
if such contingency were to occur.
(h) ERISA. Seller, Origen and Bingham each is in compliance with ERISA and has
not incurred and does not reasonably expect to incur any liabilities to the PBGC
under ERISA in connection with any Plan or Multiemployer Plan or to contribute
now or in the future in respect of any Plan or Multiemployer Plan.
(i) Accuracy of Information. None of the documents or information provided by
Seller, Origen or Bingham to Buyer in connection with the Agreement or the
Transactions thereunder contain any statement of material fact with respect to
Seller, Origen, Bingham or the Transactions that was untrue or misleading in any
material respect when made. Since the furnishing of such documents or
information, there has been no change, nor any development or event involving a
prospective change known to Seller, Origen or Bingham that would render any of
such documents or information untrue or misleading in any material respect.
Exhibit A-2
(j) Compliance With Law, Etc. No practice, procedure or policy employed or
proposed to be employed by Seller in the conduct of its businesses violates any
law, regulation, judgment, agreement, order or decree applicable to it which, if
enforced, would result in a material adverse effect upon the Market Value of the
Purchased Securities or the ability of the Seller, Origen or Bingham to perform
their respective obligations under the Transaction Documents.
(k) Solvency; Fraudulent Conveyance. Each of Seller, Origen and Bingham is
solvent and will not be rendered insolvent by the Transaction and, after giving
effect to such Transaction, neither Bingham, Origen nor Seller will be left with
an unreasonably small amount of capital with which to engage in its business.
Seller does not intend to incur, or believe that it, Origen or Bingham has
incurred, debts beyond its ability to pay such debts as they mature. Neither
Bingham, Origen nor Seller is contemplating the commencement of insolvency,
bankruptcy, liquidation or consolidation proceedings or the appointment of a
receiver, liquidator, conservator, trustee or similar official in respect of
Seller, Origen or Bingham or any of their assets. The amount of consideration
being received by the Seller upon the sale of the Purchased Securities to Buyer
and thereafter upon the sale of any Purchased Securities by the Seller to the
Buyer constitutes reasonably equivalent value and fair consideration for such
Purchased Securities. Seller is not transferring any Purchased Securities with
any intent to hinder, delay or defraud any of its creditors.
(l) Investment Company Act Compliance. Seller is neither required to be
registered as an "investment company" as defined under the Investment Company
Act nor under the control of an "investment company" as defined under the
Investment Company Act.
(m) Taxes. Seller, Origen and Bingham have filed all federal and state tax
returns that are required to be filed and paid all taxes, including any
assessments received by Seller, Origen and Bingham, to the extent that such
taxes have become due (other than those being contested in good faith and for
which adequate reserves have been established). Any taxes, fees and other
governmental charges payable by Seller in connection with the Transaction and
the execution and delivery of the Transaction Documents have been paid.
(n) Chief Executive Office: The chief executive office of the Seller is located
at 260 East Brown, Suite 200, Birmingham, Michigan 48009.
(o) Perfection of Liens and Security Interest. The lien and security interest in
favor of the Buyer with respect to the Purchased Securities will be perfected by
(i) the delivery of the Purchased Securities to the Custodian, which Purchased
Securities the Custodian will hold on behalf of the Buyer, (ii) the filing of
financing statements on Form UCC-1 and recording of any assignment of mortgage
in the appropriate jurisdiction or jurisdiction where such recording or filing
is necessary for the perfection of the security interest in favor of the Buyer,
and no other filings in any jurisdiction or any other actions (except as
expressly provided herein) are necessary to perfect the Buyer's first priority
lien on and security interest in the Purchased Securities as against any third
parties.
(p) No Broker. Neither the Seller, Origen nor the Bingham has dealt with any
broker, investment banker, agent, or other person, except for the Buyer, who may
be entitled to any commission or compensation in connection with the sale of
Purchased Securities pursuant to this Agreement; provided, that if Seller,
Origen or Bingham has dealt with any broker, investment banker, agent, or
Exhibit A-3
other person, except for the Buyer, who may be entitled to any commission or
compensation in connection with the sale of the Purchased Securities pursuant to
this Agreement, such commission or compensation shall have been paid in full by
Seller, Origen or Bingham, as applicable.
II. Seller, Origen and Bingham hereby agree that during the term of the
Agreement, unless Buyer shall otherwise expressly consent in writing:
(a) Compliance With Agreements and Applicable Laws. Each of Seller, Origen or
Bingham shall perform each of its obligations under the Transaction Documents
and shall comply in all material respects with all requirements of any law, rule
or regulation applicable to it or thereto (including any minimum regulatory
capital requirements), or that are required in connection with its performance
under any of the Transaction Documents and cause the Collateral to comply in all
material respects with all applicable rules, regulations and other laws.
(b) Financial Statements: Accountants' Reports: Other Information. Guarantor
shall keep or cause to be kept, in reasonable detail, to the Buyer, and such
others as reasonably determined by the Buyer, books and records of account of
its and Seller's assets and business and shall clearly reflect therein the
transfer of Purchased Securities to the Buyer. During the term of this
Repurchase Agreement, Guarantor shall furnish or cause to be furnished to Buyer:
(ii) Annual Financial Statements. As soon as available, and in any event
within 90 days after the close of each fiscal year of Seller and
Guarantor, the consolidated audited financial statements of Seller
and Guarantor as of the end of such fiscal year, in reasonable
detail and stating in comparative form the respective figures for
the corresponding date and period in the preceding fiscal year,
prepared in accordance with generally accepted accounting
principles, consistently applied, and accompanied by the certificate
of Seller's independent accountants (who shall be, in each case, a
nationally recognized firm or otherwise acceptable to Buyer).
(iii) Quarterly Financial Statements. As soon as available, and in any
event within 45 days after the close of each of the first three
quarters of each fiscal year of Guarantor, the unaudited quarterly
financial statements of Seller and Guarantor as of the end of such
quarter, in reasonable detail and stating in comparative form the
respective figures for the corresponding date and period in the
preceding fiscal year, prepared in accordance with generally
accepted accounting principles, consistently applied (subject to
normal year-end adjustments).
(iv) Loan Performance Data. Monthly reports in form and scope
satisfactory to Buyer, setting forth data regarding the performance
of the Purchased Securities, including, without limitation,
information with respect to delinquencies, repossessions,
charge-offs, Obligor bankruptcies, extensions and modifications and
such other information as Buyer may request. Daily reports via
e-mail to Buyer setting forth data regarding the performance of the
Purchased Securities in form and substance similar to those prepared
by the Servicer in the ordinary course of its servicing of loans
similar to the Purchased Securities that are subject to
securitizations.
Exhibit A-4
(v) Monthly Servicing Diskettes. A computer tape and a diskette (or any
other electronic transmission acceptable to Buyer) in a format
acceptable to the Buyer containing such information with respect to
the Purchased Securities and the servicing of the Purchased
Securities as Buyer may request.
(vi) Monthly Certification. Seller shall cause Origen to execute a
monthly certification substantially in the form of Exhibit E to the
Additional Supplemental Terms.
(vii) Material Events and Licensing Issues. Notice of material events or
potential or existing Events of Default and any licensing renewal
problems and revocations.
(viii) Litigation Summary. Reports summarizing pending or future
threatened litigation involving Seller or Guarantor, in excess of
$100,000 or $500,000, respectively, or which has the potential for
judgment in excess of $100,000 or $500,000, respectively, if no
specified damages are set forth therein.
(ix) Other Information. On a quarterly or more frequent basis, unless
otherwise required pursuant to the terms of the Transaction
Documents or reasonably requested otherwise by Buyer, copies of all
reports, statements, certifications, or other similar items
required to be delivered to or by Seller pursuant to the terms of
the Transaction Documents, and promptly upon request, such other
data as Buyer may reasonably request. Upon the request of Buyer,
Seller and Guarantor shall permit the Take-out Purchaser to inspect
the books and records of Seller and Guarantor as they may relate to
the Purchased Securities and provide access to any documents
related thereto. Upon the request of Buyer, Seller and Guarantor
shall permit Buyer or its authorized agents (A) to inspect the
books and records of Seller and Guarantor as they may relate to the
Purchased Securities, the obligations of Seller and Guarantor under
the Transaction Documents, the Transactions and Seller's or
Guarantor's business; (B) to discuss the affairs, finances and
accounts of Seller with its respective chief operating officer and
chief financial officer, in each case on an annually or more
frequent basis, unless an Event of Default has occurred; and (C) to
discuss the affairs, finances and accounts of Seller or Guarantor
with its independent accountants, provided that an officer of
Seller or Guarantor shall have the right to be present during such
discussions. Such inspections and discussions shall be conducted
during normal business hours upon reasonable prior notice and shall
not unreasonably disrupt the business of Seller or the Guarantor.
In addition, Seller or Guarantor shall on a quarterly or more
frequent basis, unless reasonably requested otherwise by Buyer,
provide to Buyer a copy of all correspondence between Seller or the
Guarantor and the PBGC, Internal Revenue Service, Department of
Labor or the administrators of a Multiemployer Plan relating to any
Reportable Event or the underfunded status, termination or possible
termination of a Plan or a Multiemployer Plan. The books and
records of Seller and Guarantor will be maintained at the
respective addresses designated herein for receipt of notices,
unless Seller or Guarantor shall otherwise advise Buyer in writing.
Exhibit A-5
(x) Government Information. On a quarterly or more frequent basis,
unless reasonably requested otherwise by Buyer, Seller shall
deliver to Buyer copies of all proxy statements, financial
statements, reports and registration statements which Seller files,
or delivers to the Securities and Exchange Commission, or any other
federal, state or foreign government agency, authority or body
which supervises the issuance of securities by Seller or any
national securities exchange.
(c) Compliance Certificate. (1) Seller shall deliver to Buyer concurrently with
the delivery of the annual and quarterly financial statements required by
paragraphs II.(b)(i) and II.(b)(ii) of this Exhibit A a certificate signed by
the chief financial officer, president or treasurer of Seller stating that:
(i) a review of Seller's performance under the Transaction Documents
during such period has been made under such officer's supervision; and
(ii) the attached financial reports are complete and correct in all
material respects and present fairly the financial condition and results of
operations of Seller as of the dates and for the periods indicated, in
accordance with generally accepted accounting principles consistently applied
(subject as to interim statements to normal year-end adjustments).
(2) Seller shall deliver to Buyer monthly a certificate signed by the
chief financial officer of Seller stating that no Default or Event of Default
has occurred, or if a Default or Event of Default has occurred, specifying the
nature thereof and, if Seller has a right to cure any such Default or Event of
Default, stating in reasonable detail the steps, if any, being taken by Seller
to cure such Default or Event of Default or to otherwise comply with the terms
of the agreement to which such Default or Event of Default relates.
(d) Notice of Material Events. Seller shall, and shall cause Bingham or Origen
to, promptly inform (unless, in the case of clause (i) only, prohibited by
applicable law) Buyer in writing of the occurrence of any of the following:
(i) the submission of any claim or the initiation of any legal process,
litigation or administrative or judicial investigation (A) against Seller,
Origen or Bingham pertaining to the Purchased Securities in general, (B) with
respect to a portion of the Purchased Securities or (C) in which a request has
been made for certification as a class action (or equivalent relief) that would
involve a portion of the Purchased Securities;
(ii) any change in the location of Seller's principal office or any change
in the location of Seller's books and records;
(iii) the occurrence of any Default, Event of Default or breach by the
Seller, Origen or Bingham of any obligation under any Transaction Document, or
the occurrence or existence of any event or circumstance that Seller reasonably
expects will with the passage of time become a Default, Event of Default or such
a default or breach by Seller, Origen or Bingham;
Exhibit A-6
(iv) any other event, circumstance or condition that has resulted, or is
reasonably likely of resulting, in a material adverse effect upon the financial
or operational condition of Seller, Origen or Bingham;
(v) any material change in the insurance coverage required of the Seller,
Origen or Bingham pursuant to any Transaction Document, with copy of evidence of
same attached;
(vi) any material change in accounting policies or financial reporting
practices of the Seller, Origen or Bingham;
(vii) any material amendment to the Underwriting Guidelines or buying
practices pursuant to which any of the Purchased Securities are originated or
acquired; or
(viii) any material dispute, litigation, investigation, proceeding or
suspension between Seller, Origen or Bingham on the one hand, and any other
Person on the other.
(e) Further Assurances. Seller will file or cause to be filed all necessary
financing statements, assignments or other instruments, and any amendments or
continuation statements relating thereto, necessary to be kept and filed in such
manner and in such places as may be required by law to preserve and protect
fully the lien on and first priority security interest in the MH Loans.
(f) Independent Entity. Each of Seller, Origen and Bingham is a separate and
independent entity from the Custodian named in the Custodial Agreement, does not
own a controlling interest in such Custodian either directly or through
affiliates, and no director or officer of Seller, Origen or Bingham is also a
director or officer of Custodian.
(g) Existence. Each of Seller, Origen and Bingham shall preserve and maintain
its existence, rights, franchises and privileges and shall at all times continue
to be duly organized under the laws of the jurisdiction of its organization, and
qualify and remain qualified in good standing in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises, privileges
and qualifications would have a reasonable likelihood of having a material
adverse effect on the business or properties of Seller, Origen or Bingham.
(h) Maintenance of Licenses. Seller, Origen and Bingham shall maintain all
licenses, permits, charters and registrations as are material to the performance
by Seller, Origen or Bingham of Seller, Origen or Bingham's business or its
obligations under the Transaction Documents.
(i) Regulation T. None of the Purchase Price for any Purchased Securities will
be used either directly or indirectly to acquire any security, as that term is
defined in Regulation T of the Regulations of the Board of Governors of the
Federal Reserve System, and the Seller has not taken any action that might cause
any Transaction to violate any regulation of the Federal Reserve Board.
(j) Keeping of Records and Books of Account. Seller shall maintain and implement
administrative and operating procedures (including, an ability to recreate
records evidencing the Purchased Securities in the event of the destruction of
the originals thereof), and shall keep and maintain, or cause to be kept or
maintained, all documents, books, records and other information
Exhibit A-7
which are necessary or advisable in accordance with prudent industry practice
and custom for transactions of this type for the collection of all Purchased
Securities. Seller shall maintain or cause to be maintained at all times
accurate and complete books, records and accounts relating to the Purchased
Securities, which books and records shall be marked to indicate the transfer of
the Purchased Securities under the Agreement. Each Confirmation, the Repurchase
Agreement, the Custodial Agreement, and the Servicing Agreement have been and
shall be, continuously, from the time of their execution, an official record of
Seller.
(k) Defense of Title. Seller warrants and will defend, and shall cause Bingham,
Origen and any servicer to defend, the right, title and interest of Buyer in and
to all Collateral against all adverse claims and demands, except any adverse
claims and demands arising from actions of the Buyer.
(l) Preservation of Collateral; Collateral Value. Seller shall, and shall cause
the Bingham and Origen to, do all things necessary to preserve the Collateral so
that it remains subject to a first priority perfected security interest
hereunder. Seller will not allow (and will cause the Bingham and Origen to not
allow) any default for which Seller, Origen or Bingham are responsible to occur
under any Collateral or any Transaction Documents and Seller shall, and shall
cause the Bingham and Origen to, fully, perform or cause to be performed when
due all of its obligations under any Collateral or the Transaction Documents.
(m) Maintenance of Tangible Net Worth. Origen shall not permit its Tangible Net
Worth at any time to be less than the sum of (a) $22,500,000 plus (b) for each
fiscal quarter ending after December 31, 2001, 50% of its positive consolidated
net income as adjusted to step-up on a quarterly basis; provided, however, the
Tangible Net Worth requirement hereunder may not be reduced from the amount
required at the previous fiscal quarter end;
(n) Total Liabilities to Tangible Net Worth. On or following December 31, 2001,
Origen shall not permit the Total Liabilities to Tangible Net Worth Ratio of
Origen to exceed 12:1.
(o) Current Ratio. Origen shall not permit the ratio of Origen's current assets
to current liabilities (each as determined on a consolidated basis in accordance
with GAAP) to be less than 1:1.
(p) Underwriting Guidelines. Origen shall not modify, amend, supplement or
replace the Underwriting Guidelines in a manner that could reasonably be
expected to have a material adverse effect on the Market Value of the related
Purchased Securities without the prior written consent of Buyer.
(q) Retention of Equity or Debt Proceeds. Unless the proceeds are used by
Guarantor to fund its operational expenses or pay down its debt, Guarantor or
any of its subsidiaries shall retain 100% of the aggregate net proceeds received
from the issuance of any equity or debt offerings by the Guarantor or any of its
subsidiaries.
(r) No Debt by Seller. Seller shall not incur any debt (including entering into
any other repurchase arrangement) or permit any Person other than the Buyer to
have a lien on any of the Seller's assets.
Exhibit A-8
EXHIBIT B
OPINION OF COUNSEL TO SELLER
Exhibit B-1
EXHIBIT C
UNDERWRITING GUIDELINES
Exhibit C-1
EXHIBIT D
REPRESENTATIONS AND WARRANTIES OF SELLER REGARDING MH LOANS
Seller makes the following representations and warranties with respect to each
MH Loan as of each Purchase Date with respect to such MH Loan, which
representations and warranties shall survive the transfer of each such MH Loan
to Buyer pursuant to the Repurchase Agreement:
(a) Transaction Notices as Described. The information set forth in the
applicable Transaction Notice is complete, true and correct.
(b) Payments. As of the initial Purchase Date with respect to any MH Loan, such
MH Loan is not delinquent in excess of 30 days.
(c) No Waivers. The terms of the MH Loan have not been waived, altered or
modified in any respect, except by instruments or documents identified in the
Transaction Notice.
(d) Binding Obligation. The MH Loan is the legal, valid and binding obligation
of the Obligor thereunder and is enforceable in accordance with its terms,
except as such enforceability may be limited by laws affecting the enforcement
of creditors' rights generally. All parties to each MH Loan had legal capacity
to enter into such MH Loan and to execute and deliver such MH Loan, and the MH
Loans have been duly and properly executed by such parties.
(e) No Outstanding Charges. There are no material defaults in complying with the
terms of the Mortgage, and all taxes, governmental assessments, insurance
premiums, water, sewer and municipal charges, leasehold payments or ground rents
which previously became due and owing have been paid, or an escrow of funds has
been established in an amount sufficient to pay for every such item which
remains unpaid and which has been assessed but is not yet due and payable.
Seller has not advanced funds, or induced, solicited or knowingly received any
advance of funds by a party other than the mortgagor, directly or indirectly,
for the payment of any amount required under the MH Loan, except for interest
accruing from the date of the Note or date of disbursement of the MH Loan
proceeds, whichever is greater, to the day which precedes by one month the due
date of the first installment of principal and interest.
(f) Original Terms Unmodified. The terms of the MH Loans have not been impaired,
waived, altered or modified in any respect, except by a written instrument which
has been recorded, if necessary to protect the interests of Buyer and which has
been delivered to Buyer or its designee (including the Custodian) and such terms
have not been impaired or waived except as otherwise disclosed to the Buyer. The
substance of any such waiver, alteration or modification has been approved by
the issuer of any related PMI policy and the title insurer, to the extent
required by the policy, and its terms are reflected on the Loan Schedule
attached to the Repurchase Agreement. No mortgagor has been released, in whole
or in part, except in connection with an assumption agreement approved by the
issuer of any related PMI policy and the title insurer, to the extent required
by the policy, and which assumption agreement is included in the Loan Documents
delivered to Buyer or its designee (including the Custodian) and the terms of
which are reflected in the Loan Schedule attached to the related Transaction
Notice.
Exhibit D-1
(g) No Defenses. The MH Loan is not subject to any right of rescission, set-off,
counterclaim or defense, including without limitation the defense of usury, nor
will the operation of any of the terms of the MH Loan, or the exercise of any
right thereunder, render the MH Loan unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
without limitation the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect thereto.
(h) Insurance Policies in Effect. The fire and casualty insurance policy
covering the Manufactured Home and, with respect to Land-and Home Contract, the
Mortgaged Property (1) affords (and will afford) sufficient insurance against
fire and such other risks as are usually insured against in the broad form of
extended coverage insurance from time to time available, as well as insurance
against flood hazards if the Mortgaged Property is located in an area identified
by the Federal Emergency Management Agency as having special flood hazards; (2)
is a standard policy of insurance for the locale where the Mortgaged Property is
located, is in full force and effect, and the amount of the insurance is in the
amount of the full insurable value of the Mortgaged Property on a replacement
cost basis or the unpaid balance of the MH Loans, whichever is less; (3) names
(and will name) the present owner of the Mortgaged Property as the insured; and
(4) contains a standard mortgagee loss payable clause in favor of Seller or the
servicer. The Mortgage obligates the mortgagor thereunder to maintain the hazard
insurance policy at the mortgagor's cost and expense, and to seek reimbursement
therefor from the mortgagor. Seller has not engaged in, and has no knowledge of
the mortgagor's or any other party's having engaged in, any act or omission
which would impair the coverage of any such policy, the benefits of the
endorsement provided for herein, or the validity and binding effect of either.
(i) Origination. The MH Loan was originated by a manufactured housing dealer,
broker or correspondent and purchased by Origen or originated or acquired by
Origen directly, in the regular course of its business.
(j) Lawful Assignment. The MH Loan was not originated in and is not subject to
the laws of any jurisdiction whose laws would make the transfer of the MH Loan
pursuant to this Agreement unlawful or render the Contract unenforceable.
(k) Compliance with Applicable Laws. Any and all requirements of any federal,
state or local law including, without limitation, usury, truth-in-lending, real
estate settlement procedures, consumer credit protection, equal credit
opportunity or disclosure laws applicable to the MH Loan have been complied with
including, without limitation, the Home Ownership and Equity Protection Act of
1994, and Seller shall maintain in its possession, available for Buyer's
inspection, and shall deliver to Buyer upon demand, evidence of compliance with
all such requirements.
(l) Contract in Force. The MH Loan has not been satisfied or subordinated in
whole or in part or rescinded, and the Manufactured Home securing the MH Loan
has not been released from the lien of the MH Loan in whole or in part.
(m) No Satisfaction of Mortgage. The Mortgage has not been satisfied, canceled,
subordinated or rescinded, in whole or in part, and the Mortgaged Property has
not been released from the lien of
Exhibit D-2
the Mortgage, in whole or in part, nor has any instrument been executed that
would effect any such release, cancellation, subordination or rescission.
(n) Reserved.
(o) Valid First Lien. Each Land-and-Home Contract is a valid, subsisting and
enforceable first lien on the Mortgaged Property and Manufactured Home,
including all buildings on the Mortgaged Property and all installations and
mechanical, electrical, plumbing, heating and air conditioning systems located
in or annexed to such buildings, and all additions, alterations and replacements
made at any time with respect to the foregoing. The lien of the Land-and-Home
Contract is subject only to:
(1) the lien of current real property taxes and assessments not yet due
and payable;
(2) covenants, conditions and restrictions, rights of way, easements and
other matters of the public record as of the date of recording
acceptable to mortgage lending institutions generally and
specifically referred to in the lender's title insurance policy
delivered to the originator of the MH Loan and (i) referred to or to
otherwise considered in the appraisal made for the originator of the
MH Loan or (ii) which do not adversely affect the appraised value of
the Mortgaged Property or Manufactured Home set forth in such
appraisal; and
(3) other matters to which like properties are commonly subject which do
not materially interfere with the benefits of the security intended
to be provided by the MH Loan or the use, enjoyment, value or
marketability of the related Mortgaged Property or Manufactured
Home.
Any security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the MH Loan establishes and creates a valid,
subsisting and enforceable first lien and first priority security interest on
the property described therein and Seller has full right to pledge, sell,
transfer, and assign the same to Buyer or its designee (including the
Custodian).
(p) Good Title. In the case of a MH Loan purchased from a manufactured housing
dealer, the Seller purchased the MH Loan for fair value and took possession
thereof in the ordinary course of its business, without knowledge that the MH
Loan was subject to a security interest. Immediately prior to the transfer of
the MH Loan by the Seller to the Buyer under the terms of this Agreement, the
Seller had good and marketable title thereto free and clear of any encumbrance,
equity, loan, pledge, charge, claim or security interest and was the sole owner
thereof with full right to transfer the MH Loan to the Seller. With respect to
any MH Loan bearing a stamp indicating that such MH Loan has been sold to
another party, such other party's interest in such MH Loan has been released.
(q) No Defaults. There is no default, breach, violation or event permitting
acceleration existing under the MH Loan and no event which, with notice and the
expiration of any grace or cure period, would constitute such a default, breach,
violation or event permitting acceleration under such MH Loan. The Seller has
not waived any such default, breach, violation or event permitting acceleration.
The related Manufactured Home is free of damage and is in good repair. No
Manufactured Home
Exhibit D-3
has suffered damage that is not covered by a hazard insurance policy, including,
but not limited to, hurricanes, earthquakes, floods, tornadoes, straight-line
winds, sinkholes, mudslides, volcanic eruptions and other natural disasters.
(r) Equal Installments. Each MH Loan has a fixed-rate Contract Rate which
provides for level monthly payments which fully amortize the loan over its term.
(s) WAC. The weighted average coupon of all MH Loans subject to Transactions is
not less than the WAC Sublimit Amount.
(t) Qualified Mortgage. The MH Loan represents a "qualified mortgage" within the
meaning of Section 860G(a)(3) of the Code. The Seller represents and warrants
that, either as of the date of origination or the Purchase Date, the fair market
value of the property securing each MH Loan was not less than 80% of the
"adjusted issue price" (within the meaning of the REMIC Provisions) of such MH
Loan.
(u) Land-and-Home Contracts: No MH Loan other than a Land-and-Home Contract is
secured, or intended to be secured, in whole or in part by the lien of a
mortgage or deed of trust creating a first lien on an estate in fee simple in
the real property.
(v) Financing of Real Property: No MH Loan other than a Land-and-Home Contract
has financed any amount in respect of real property.
(w) LTV. No MH Loan had a loan-to-value ratio at origination in excess of 100%.
The weighted average loan-to-value ratio at origination of all MH Loans subject
to Transactions is no greater than the WLTV Sublimit Amount.
(x) Customary Provisions. The Mortgage or Contract contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the collateral of the benefits of
the security provided thereby, including, (i) in the case of a Mortgage
designated as a deed of trust, by trustee's sale, and (ii) otherwise by judicial
foreclosure. There is no homestead or other exemption available to a mortgagor
which would interfere with the right to sell the collateral at a trustee's sale
or the right to foreclose the Mortgage or Contract.
(y) Environmental Matters. With respect to each Land-and-Home Contract, the
mortgaged property is free from any and all toxic or hazardous substances and
there exists no violation of any local, state or federal environmental law, rule
or regulation.
(z) Soldiers and Sailors Civil Relief Act of 1940. The mortgagor has not
notified the Seller and the Seller has no knowledge of any relief requested or
allowed to the mortgagor under the Soldiers and Sailors Civil Relief Act of
1940.
(aa) No Predatory Lending. The originator of each MH Loan did not engage in
Predatory Lending Practices in connection with the origination of any MH Loan.
Exhibit D-4
(bb) Homeownership and Equity Protection Act of 1994. No MH Loan is subject to
the Homeownership and Equity Protection Act of 1994.
(cc) No Fraud. No misrepresentation of a material fact or fraud with respect to
any MH Loan has taken place on the part of the applicable mortgagee or
mortgagor, and there was no fraud by the appraiser, any builder or developer, or
any other party involved in the origination of any such MH Loan.
(dd) Prepaid Finance Charge. When measured by the outstanding principal balance
of the MH Loans, the weighted average amount (expressed as a percentage of the
unpaid principal balance of the MH Loans at origination) of Financed Prepaid
Finance Charges does not exceed the WFPFC Sublimit Amount.
(ee) Remaining Term. No MH Loan has a remaining term to maturity in excess of
360 months.
(ff) Credit Score. The weighted average Fair Isaacs credit score of the related
Obligors of all MH Loans subject to Transactions is not less than the WFICO
Sublimit Amount.
(gg) No Bulk Purchases. The acquisition by Origen of any MH Loan was not subject
to bulk transfer or any similar statutory provisions in effect in any applicable
jurisdiction.
(hh) SMMEA. The related Manufactured Home is a "manufactured home" within the
meaning of 42 United States Code, Section 5402(6). Each manufactured housing
dealer from whom the Servicer purchased such Contract, if any, was then approved
by the Servicer in accordance with the requirements of the Secretary of Housing
and Urban Development set forth in 24 CFR ss. 201.27. At the origination of each
Contract, the Servicer was approved for insurance by the Secretary of Housing
and Urban Development pursuant to Section 2 of the National Housing Act.
(ii) Fully Disbursed. Except with respect to Staged Funded Loans, the proceeds
of the MH Loans have been fully disbursed to or for the account of the Obligor
and there is no obligation for the obligee to advance additional funds
thereunder and any and all requirements as to completion of any on-site or
off-site improvement and as to disbursements of any escrow funds therefor have
been complied with.
(jj) Staged Funded Loans. With respect to each Staged Funded Loan, (i) the
purchase price for the related real estate has been paid to the related seller,
(ii) the purchase price for the related Manufactured Home has been paid to the
related vender, and (iii) either (a) the application of title has been filed to
identify the lien of the Staged Funded Loan on the certificate of title or (b)
the Manufactured Home has been affixed to the real property and the lien of the
Staged Funded Loan is perfected by the related Mortgage.
Exhibit D-5
EXHIBIT E
MONTHLY COMPLIANCE CERTIFICATION
I, ________________, ______________ of Origen Financial, L.L.C. (the "Company"),
a Delaware limited liability company, do hereby certify that:
(i) the Company is in compliance with all provisions and terms of the
Master Repurchase Agreement, dated ______, 2001 (the "Repurchase Agreement"), by
and between Credit Suisse First Boston Mortgage Capital LLC ("Buyer") and Origen
Special Purpose, L.L.C. ("Seller") and the Additional Supplemental Terms to the
Repurchase Agreement, dated as of ______, 2001 (the "Additional Terms"), by and
between Seller and Buyer;
(ii) pursuant to Section 17(b)(xv) of the Additional Terms, the Company's
Tangible Net Worth is not less than the sum of (a) $22,500,000 plus (b) for each
fiscal quarter ending after December 31, 2001, 50% of its positive consolidated
net income as adjusted to step-up on a quarterly basis; provided, however, the
Tangible Net Worth requirement hereunder may not be reduced from the amount
required at the previous fiscal quarter end;
(iii) [ONLY IF ON OR FOLLOWING 12/31/01] the Total Liabilities to Tangible
Net Worth Ratio of the Company does not exceed 12:1. pursuant to Section
17(b)(xv) of the Additional Terms;
(iv) The ratio of Company's current assets to current liabilities (each as
determined on a consolidated basis in accordance with GAAP) is not less than 1:1
pursuant to Section 17(b)(xv) of the Additional Terms;
[(v) [FOR EACH STATE IN WHICH A MH LOAN IS ORIGINATED] The Originator of
the MH Loans is qualified to do business in [STATE] or is exempt from qualifying
to do business in [STATE] based on advice dated _________;]
(vi) the Company has not modified, amended, supplemented or replaced its
underwriting guidelines in a manner that could reasonably be expected to have a
material adverse effect on the Market Value of the related Purchased Securities,
except with respect to any such modification, amendment, supplement or
replacement approved by Buyer in writing;
(vii) if the Company has modified, amended, supplemented or replaced its
underwriting guidelines, the Company has delivered an updated or revised copy of
its underwriting guidelines to the Buyer.
IN WITNESS WHEREOF, I have signed this certificate and affixed the seal of
the Company Date: ________, ____
Exhibit E-1
By:
----------------------------
Name:
-------------------------
[SEAL] Title:
------------------------
I, __________________, _________________ of the Company do hereby certify
that ____________________ is the duly elected or appointed, qualified and acting
__________________ of the Company, and the signature set forth above is the
genuine signature of such officer in the date hereof.
By:
----------------------------
Name:
-------------------------
Title:
------------------------
Exhibit E-2
EXHIBIT F
AUTHORIZED REPRESENTATIVES OF SELLER
Name Title
Mark Landschulz Vice President
- ------------------------- -------------------------
Douglas Buchanan Assistant Treasurer
- ------------------------- -------------------------
Ronald Klein President
- ------------------------- -------------------------
Exhibit F-1
EXHIBIT G
FORM OF TRANSACTION NOTICE
Credit Suisse First Boston Mortgage Capital LLC
11 Madison Avenue
New York, New York 10010
Attention:____________________________
Transaction No._____
Ladies and Gentlemen:
The undersigned executes and delivers this notice ("Notice") pursuant to
the requirements of the Master Repurchase Agreement, dated as of May __, 2001,
between Credit Suisse First Boston Mortgage Capital LLC ("Buyer") and Origen
Special Purpose, L.L.C. ("Seller"), as amended by Annex I (the "Repurchase
Agreement"), in connection with the submission for sale thereunder on
__________, 200_ (the "Purchase Date") of the Purchased Securities identified on
the Loan Schedule each delivered herewith and the delivery of the related Loan
Files to Custodian pursuant to the Custody Agreement. All capitalized terms used
in this Notice without definition shall have the same meanings herein as they
have in the Repurchase Agreement or the Custody Agreement.
The Seller hereby represents and certifies to Buyer as follows:
1. As of this date, each of Seller, Origen or Bingham is in
compliance with all of the terms and conditions of the Transaction
Documents. The Loan File as defined in the Custody Agreement is complete
and has been delivered to the Custodian.
2. Except as otherwise previously disclosed in writing to Buyer,
Seller's, Origen's and Bingham's representations and warranties set forth
in the Repurchase Agreements and any other related document are true and
accurate as of the date of this Notice.
3. The Purchased Securities, which are identified on such Computer
Tape, satisfy the requirements of the eligibility set forth in the
Repurchase Agreement and Appendix A of the Custody Agreement.
4. Upon payment by Buyer of the Purchase Price in respect of the
Transaction involving the Purchased Securities, all of the right
(including the power to convey title thereto), title and interest in and
to each document constituting the Loan Files delivered to Custodian or
held by or on behalf of Seller with respect to each Purchased Security,
shall be transferred, assigned, set over and otherwise conveyed to Buyer.
5. The general terms of the sale are:
A. Number of Purchased Securities:___
Exhibit G-1
B. Aggregate Outstanding Principal Balance of the Purchased
Securities as of the Purchase Date: __________________
C. Purchase Date:__________________
[D. IF DIFFERENT FROM REPURCHASE AGREEMENT][Pricing Rate [LIBOR + ]]
[E. If servicing retained by third party servicer:
i) SERVICING AGREEMENT
ii) NAME OF SERVICER
iii) ADDRESS OF SERVICER
iv) CONTACT AND PHONE NUMBER OF SERVICER]
ORIGEN SPECIAL PURPOSE, L.L.C.,
Seller
By:
----------------------------
Name:
-------------------------
Title:
------------------------
Exhibit G-2
ANNEX II
NAMES AND ADDRESSES FOR COMMUNICATIONS BETWEEN PARTIES
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
11 Madison Avenue, 5th Floor
New York, New York 10010
Attention: Anthony Giordano
Telephone: (212) 325-9103
Facsimile: (212) 325-8261
Any and all legal notices and the Certificate of Compliance required to be
delivered pursuant to Paragraph II.(c) of Exhibit A must be sent to:
Thomas Irwin
Credit Suisse First Boston Mortgage Capital LLC
11 Madison Avenue, 20th Floor
New York, New York 10010
Telephone Number: (212) 325-0331
Facsimile Number: (212) 325-8232
with a copy to:
Gabriella Morizio
Credit Suisse First Boston Mortgage Capital LLC
11 Madison Avenue, 20th Floor
New York, New York 10010
Telephone Number: (212) 325-9646
Facsimile Number: (212) 325-8219
BINGHAM FINANCIAL SERVICES CORPORATION
260 East Brown Street, Suite 200
Birmingham, Michigan 48009
Attention: Ronald Klein
Telephone: (248) 433-2759
Facsimile: (248) 644-5595
ORIGEN SPECIAL PURPOSE, L.L.C.
260 East Brown Street, Suite 200
Birmingham, Michigan 48009
Attention: W. Anderson Geater
Telephone: (248) 433-2767
Facsimile: (248) 644-7226
Annex II-1
ORIGEN FINANCIAL, L.L.C.
260 East Brown Street, Suite 200
Birmingham, Michigan 48009
Attention: Mark Landschulz
Telephone: (248) 433-2747
Facsimile: (248) 644-7226
Annex II-2
SCHEDULE 1
FORM OF CONFIRMATION
Origen Special Purpose, L.L.C.
[Sellers Address]
Confirmation No.:
Gentlemen:
We have received your Transaction Notice attached hereto with respect to the MH
Loans listed in Appendix I hereto. This letter confirms our agreement to
purchase from you such MH Loans pursuant to the Master Repurchase Agreement
dated as of December 18, 2001. Capitalized terms used but not defined herein
shall have the meanings assigned to them in the Agreement.
Confirmation Date:
Purchased Securities:
Number of MH Loans:
Outstanding Principal Amount
of MH Loans as of ____________:
Purchase Date:
Purchase Price:
Pricing Rate:
Repurchase Date:
Percentage used to
determine Buyer's
Margin Amount:
Appraised Value of
MH Loans (aggregate):
Schedule 1-1
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC,
as Buyer
By:
----------------------
Name:
-------------------
Title:
------------------
Acknowledged and Agreed to by:
ORIGEN SPECIAL PURPOSE, L.L.C.
By:
----------------------
Name:
-------------------
Title:
------------------
Schedule 1-2