a20213rdamendedandrestat






  Bodman_17772003_9      THIRD AMENDED AND RESTATED  MASTER REPURCHASE AGREEMENT   (for Pulte Mortgage LLC)    dated as of July 29, 2021    among    COMERICA BANK,  as Agent, Lead Arranger and a Buyer,    THE OTHER BUYERS PARTY HERETO    and    PULTE MORTGAGE LLC, as Seller      





 






  -i-  Bodman_17772003_9  TABLE OF CONTENTS  THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT .....................1  SECTION 1. APPLICABILITY AND DEFINED TERMS ......................................................1  1.1. Applicability ......................................................................................................1  1.2. Defined Terms ...................................................................................................2  SECTION 2. THE BUYERS’ COMMITMENTS .................................................................. 34  2.1. The Buyers’ Commitments to Purchase ............................................................ 34  2.2. Expiration or Termination of the Commitments ................................................ 35  2.3. Disbursement of Purchase Prices ...................................................................... 35  2.4. Swing Line Facility .......................................................................................... 35  2.5. Swing Line Transactions .................................................................................. 36  2.6. Optional Termination, Reduction and Increase of Buyers’ Commitments ........... 38  SECTION 3. INITIATION; TERMINATION. ...................................................................... 39  3.1. Seller Request; Agent Confirmation.................................................................. 39  3.2. Request/Confirmation ...................................................................................... 40  3.3. Transaction Termination; Purchase Price Decrease............................................ 40  3.4. Place for Payments of Repurchase Prices .......................................................... 41  3.5. Withdrawals from and Credits to Operating Account......................................... 41  3.6. [Reserved]. ...................................................................................................... 41  3.7. Disbursements from Repurchase Settlement Account ........................................ 41  3.8. Delivery of Additional Mortgage Loans ............................................................ 42  3.9. Application of Purchase Price Decreases........................................................... 42  3.10. Defaulting Buyers ............................................................................................ 42  3.11. eMortgage Loan Transactions........................................................................... 45  SECTION 4. TRANSACTION LIMITS AND SUBLIMITS .................................................. 46  4.1. Transaction Limits ........................................................................................... 46  4.2. Transaction Sublimits....................................................................................... 47  4.3. Compliance...................................................................................................... 48  SECTION 5. PRICE DIFFERENTIAL.................................................................................. 48  5.1. Pricing Rate ..................................................................................................... 48  5.2. Pricing Rate for Default Pricing Rate Purchased Loans ..................................... 48  5.3. Price Differential Payment Due Dates ............................................................... 49  5.4. Adjustments to Buyer’s Price Differential based on Qualifying Balances ........... 49  SECTION 6. MARGIN MAINTENANCE ............................................................................ 49  6.1. Margin Deficit ................................................................................................. 49  6.2. Margin Call Deadline ....................................................................................... 50  6.3. Application of Cash ......................................................................................... 50  6.4. Increased Cost ................................................................................................. 50  6.5. Capital Adequacy............................................................................................. 51  6.6. Market Valuations for Purchase Values ............................................................ 51  





 






  -ii-  Bodman_17772003_9  6.7. Provisions Relating to Daily Adjusting LIBOR Rate ......................................... 51  6.8. Effect of Benchmark Transition Event. ............................................................. 52  SECTION 7. TAXES............................................................................................................ 58  7.1. Payments to be Free of Taxes; Withholding ...................................................... 58  7.2. Other Taxes ..................................................................................................... 59  7.3. Taxes Indemnity .............................................................................................. 59  7.4. Receipt ............................................................................................................ 59  7.5. Non-Exempt Buyer .......................................................................................... 60  7.6. If Buyer Fails to Provide Form ......................................................................... 61  7.7. Refunds ........................................................................................................... 62  7.8. Survival ........................................................................................................... 62  SECTION 8. INCOME AND ESCROW PAYMENTS; CONTROL ...................................... 62  8.1. Income and Escrow Payments .......................................................................... 62  8.2. Income and Escrow Accounts........................................................................... 62  8.3. Income and Escrow Accounts after Default ....................................................... 63  SECTION 9. FACILITY FEE; AGENT’S FEE ..................................................................... 63  9.1. Facility Fee ...................................................................................................... 63  9.2. Agent’s Fees .................................................................................................... 63  SECTION 10. SECURITY INTEREST; LICENSE ................................................................. 63  10.1. Intent of the Parties .......................................................................................... 63  10.2. Remedies ......................................................................................................... 66  SECTION 11. SUBSTITUTION ............................................................................................. 67  11.1. Seller May Substitute Other Mortgage Loans with Notice to and Approval  of Agent .......................................................................................................... 67  11.2. Payment to Accompany Substitution................................................................. 67  SECTION 12. PAYMENT AND TRANSFER ........................................................................ 67  12.1. Immediately Available Funds; Notice to Custodian ........................................... 67  12.2. Payments to the Agent...................................................................................... 67  12.3. If Payment Not Made When Due ...................................................................... 68  12.4. Payments Valid and Effective........................................................................... 68  12.5. Pro Rata Distribution of Payments .................................................................... 68  SECTION 13. SEGREGATION OF DOCUMENTS RELATING TO PURCHASED LOANS . 68  SECTION 14. CONDITIONS PRECEDENT .......................................................................... 69  14.1. Initial Purchase ................................................................................................ 69  14.2. Each Purchase.................................................................................................. 70  SECTION 15. REPRESENTATIONS, WARRANTIES AND COVENANTS.......................... 72  15.1. Buyers, Agent and Seller Representations ......................................................... 72  15.2. Additional Seller Representations ..................................................................... 72  15.3. Special Representations Relating to the Purchased Loans .................................. 77  





 






  -iii-  Bodman_17772003_9  15.4. Representations and Warranties Relating to Specific Transactions ..................... 77  15.5. Survival ........................................................................................................... 78  SECTION 16. AFFIRMATIVE COVENANTS ....................................................................... 78  16.1. Office of Foreign Assets Control and USA Patriot Act ...................................... 78  16.2. Financial Statements ........................................................................................ 79  16.3. Financial Statements Will Be Accurate ............................................................. 80  16.4. Other Reports .................................................................................................. 80  16.5. Maintain Existence and Statuses; Conduct of Business ...................................... 81  16.6. Compliance with Applicable Laws ................................................................... 81  16.7. Inspection of Properties and Books; Protection of Seller’s Proprietary  Information; Buyers’ Due Diligence of Seller ................................................... 82  16.8. Notice of Suits, Etc. ......................................................................................... 83  16.9. Payment of Taxes, Etc...................................................................................... 84  16.10. Insurance; Fidelity Bond .................................................................................. 85  16.11. eMortgage Loans ............................................................................................. 85  16.12. Subordination of Certain Indebtedness .............................................................. 85  16.13. Certain Debt to Remain Unsecured ................................................................... 86  16.14. Promptly Correct Escrow Imbalances ............................................................... 86  16.15. MERS Covenants............................................................................................. 86  16.16. Special Affirmative Covenants Concerning Purchased Loans ............................ 87  16.17. Coordination with Other Lenders/Repo Purchasers and Their Custodians........... 88  16.18. Financial Covenants ......................................................................................... 88  SECTION 17. NEGATIVE COVENANTS ............................................................................. 89  17.1. No Merger ....................................................................................................... 89  17.2. Limitation on Debt and Contingent Indebtedness .............................................. 89  17.3. Business .......................................................................................................... 90  17.4. Liquidations, Dispositions of Substantial Assets................................................ 90  17.5. Loans, Advances, and Investments ................................................................... 90  17.6. Use of Proceeds ............................................................................................... 91  17.7. Transactions with Affiliates .............................................................................. 91  17.8. Liens ............................................................................................................... 91  17.9. ERISA Plans.................................................................................................... 91  17.10. Change of Principal Office ............................................................................... 91  17.11. Distributions .................................................................................................... 91  17.12. Limitations on Payments of Certain Debt .......................................................... 91  17.13. No Changes in Accounting Practices or Fiscal Year .......................................... 92  SECTION 18. EVENTS OF DEFAULT; EVENT OF TERMINATION................................... 92  18.1. Events of Default ............................................................................................. 92  18.2. Transaction Termination .................................................................................. 94  18.3. Termination by the Agent ................................................................................. 94  18.4. Remedies ......................................................................................................... 95  18.5. Liability for Expenses and Damages ................................................................. 95  18.6. Liability for Interest ......................................................................................... 96  18.7. Other Rights .................................................................................................... 96  





 






  -iv-  Bodman_17772003_9  18.8. Seller’s Repurchase Rights ............................................................................... 96  18.9. Sale of Purchased Loans................................................................................... 96  18.10. Setoff .............................................................................................................. 96  SECTION 19. SERVICING OF THE PURCHASED LOANS ................................................. 97  19.1. Servicing Released Basis.................................................................................. 97  19.2. Servicing and Subservicing .............................................................................. 97  19.3. Escrow Payments ............................................................................................. 97  19.4. Escrow and Income after Event of Default ........................................................ 97  19.5. Servicing Records ............................................................................................ 98  19.6. Subservicer Instruction Letter ........................................................................... 98  19.7. Termination of Servicing.................................................................................. 98  19.8. Notice from Seller............................................................................................ 99  19.9. Seller Remains Liable ...................................................................................... 99  19.10. Backup Servicer............................................................................................... 99  19.11. Successor Servicer ......................................................................................... 100  SECTION 20. PAYMENT OF EXPENSES; INDEMNITY ................................................... 100  20.1. Expenses ....................................................................................................... 100  20.2. Indemnity ...................................................................................................... 101  SECTION 21. SINGLE AGREEMENT ................................................................................ 102  SECTION 22. RELATIONSHIPS AMONG THE AGENT AND THE BUYERS................... 102  22.1. Appointment of Agent.................................................................................... 102  22.2. Scope of Agent’s Duties ................................................................................. 102  22.3. Limitation on Duty to Disclose ....................................................................... 103  22.4. Authority of Agent to Enforce this Agreement ................................................ 104  22.5. Agent in its Individual Capacity...................................................................... 104  22.6. Actions Requiring All Buyers’ Consent .......................................................... 104  22.7. Actions Requiring Required Buyers’ Consent ................................................. 105  22.8. Agent’s Discretionary Actions ........................................................................ 105  22.9. Buyers’ Cooperation ...................................................................................... 106  22.10. Buyers’ Sharing Arrangement ........................................................................ 106  22.11. Buyers’ Acknowledgment .............................................................................. 107  22.12. Agent Market Value Determinations............................................................... 107  22.13. Agent’s Duty of Care, Express Negligence Waiver and Release....................... 108  22.14. Calculations of Shares of Principal and Other Sums ........................................ 108  22.15. Successor Agent............................................................................................. 109  22.16. Merger of the Agent ....................................................................................... 109  22.17. Participation; Assignment by Buyers .............................................................. 109  22.18. The Agent and the Buyers are the only Beneficiaries of this Section ................ 112  22.19. Knowledge of Default .................................................................................... 112  22.20. No Reliance on Agent’s Customer Identification Program ............................... 112  22.21. Other Titles.................................................................................................... 113  22.22. Other Agreements .......................................................................................... 113  22.23. Erroneous Payments. ...................................................................................... 113  





 






  -v-  Bodman_17772003_9  SECTION 23. NOTICES AND OTHER COMMUNICATIONS; ELECTRONIC  TRANSMISSIONS ................................................................................................................. 114  SECTION 24. MISCELLANEOUS ...................................................................................... 117  24.1. Further Assurances......................................................................................... 117  24.2. Agent as Attorney in Fact ............................................................................... 117  24.3. Wires to Seller ............................................................................................... 117  24.4. Wires to Agent............................................................................................... 117  24.5. Receipt; Available Funds................................................................................ 117  24.6. Privacy of Customer Information.................................................................... 117  SECTION 25. ENTIRE AGREEMENT; SEVERABILITY ................................................... 118  SECTION 26. NON-ASSIGNABILITY; TERMINATION; REPLACEMENT OF BUYERS . 118  26.1. Limited Assignment ....................................................................................... 118  26.2. Remedies Exception....................................................................................... 119  26.3. Agreement Termination ................................................................................. 119  26.4. Replacement of Buyers. ................................................................................. 119  SECTION 27. COUNTERPARTS ........................................................................................ 119  SECTION 28. GOVERNING LAW, JURISDICTION AND VENUE .................................... 120  SECTION 29. WAIVER OF JURY TRIAL........................................................................... 120  SECTION 30. RELATIONSHIP OF THE PARTIES............................................................. 121  SECTION 31. NO WAIVERS, ETC ..................................................................................... 121  SECTION 32. USE OF EMPLOYEE PLAN ASSETS........................................................... 121  32.1. Prohibited Transactions .................................................................................. 121  32.2. Audited Financial Statements Required........................................................... 122  32.3. Representations.............................................................................................. 122  SECTION 33. INTENT ........................................................................................................ 122  33.1. Transactions are Repurchase Agreements  and Securities Contracts ................. 122  33.2. Contractual Rights, Etc................................................................................... 122  33.3. FDIA ............................................................................................................. 122  33.4. Master Netting Agreement ............................................................................. 123  SECTION 34. DISCLOSURE RELATING TO CERTAIN FEDERAL PROTECTIONS........ 123  34.1. Parties not Protected by SIPA or Insured by FDIC or NCUSIF ........................ 123  34.2. SIPA Does Not Protect Government Securities Broker or Dealer  Counterparty .................................................................................................. 123  34.3. Transaction Funds Are Not Insured Deposits .................................................. 123  SECTION 35. USA PATRIOT ACT NOTIFICATION.......................................................... 123  





 






  -vi-  Bodman_17772003_9  SECTION 36. WAIVER OF FEES, COSTS AND EXPENSES ............................................. 123  SECTION 37. AMENDED AND RESTATED...................................................................... 124  





 






  -vii-  Bodman_17772003_9  EXHIBITS AND SCHEDULES  Exhibit A  Form of Request/Confirmation  Exhibit B  Form of Compliance Certificate  Exhibit C  List of Subsidiaries of the Seller as of the Effective Date  Exhibit D  Form of Corporation Tax Treatment Certificate  Exhibit E  Form of Assignment and Assumption  Exhibit F  Form of Repurchase and Indemnification Report  Exhibit G  Form of Repurchase Settlement Account Disbursement Request  Schedule AI  Approved Investors  Schedule AR  Authorized Seller Representatives List Effective as of July 29, 2021  Schedule BC  The Buyers’ Committed Sums  Schedule BP  List of Basic Papers  Schedule DQ  Disqualifiers  Schedule EL  Eligible Loans  Schedule 1.2  Deposit Accounts  Schedule 15.2(f) Material Adverse Changes and Contingent Liabilities  Schedule 15.2(g) Pending Litigation  Schedule 15.2(n) Existing Liens  Schedule 15.2(s) Compliance Information  Schedule 15.3  Special Representations and Warranties with Respect to each Purchased      Loan  Schedule 23  Buyers’ Addresses for Notice as of July 29, 2021 





 






  Bodman_17772003_9  THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT   THIS THIRD AMENDED AND RESTATED MASTER REPURCHASE  AGREEMENT is made and entered into as of July 29, 2021, between and among Pulte Mortgage  LLC, a Delaware limited liability company (the “Seller”), and Comerica Bank, as Agent and  representative of itself as a Buyer and the other Buyers (the “Agent” and sometimes “Comerica  Bank”), and the other Buyers, as defined in Section 1.2.      RECITALS  Section 1. Applicability and Defined Terms .  1.1. Applicability.  From time to time the parties hereto may enter into transactions  in which the Seller agrees to transfer to the Agent on behalf of the Buyers, Eligible Loans on a  servicing released basis against the transfer of funds by the Buyers, with a simultaneous  agreement by the Buyers to transfer to the Seller such Eligible Loans at a date certain or on  demand in the event of termination pursuant to Section 18.2 hereof, or if no demand is sooner  made, on the Termination Date, against the transfer of funds by the Seller.  Each such transaction  shall be referred to herein as a “Transaction” and shall be governed by this Agreement, as  hereinafter defined.  Comerica Bank has also agreed to provide a separate revolving swing line repurchase  facility to initially and temporarily purchase Eligible Loans pending their purchase by all of the  Buyers pursuant to this Agreement.  The parties hereby specifically declare that it is their intention that this Third Amended  and Restated Master Repurchase Agreement (as amended, restated, supplemented or otherwise  modified from time to time, the “Agreement,” which term includes the preamble above) and the  purchases of Eligible Loans made pursuant to it (under both its regular and swing line  provisions) are to be treated as repurchase transactions under the Title 11 of the United States  Code, as amended (the “Bankruptcy Code”), including all rights that accrue to the Buyers by  virtue of sections 559, 561 and 562 of the Bankruptcy Code.  This Agreement also contains lien  provisions with respect to the Purchased Loans so that if, contrary to the intent of the parties, any  court of competent jurisdiction characterizes any Transaction as a financing, rather than a  purchase, under applicable law, including the applicable provisions of the Bankruptcy Code, the  Agent is deemed to have a first priority perfected security interest in and to the Purchased Loans  to secure the payment and performance of all of the Seller’s Obligations under this Agreement  and the other Repurchase Documents.  The Buyers’ agreement to establish and continue the revolving repurchase facilities, and  Comerica Bank’s agreement to establish and continue such revolving swing line repurchase  facility, are each made upon and subject to the terms and conditions of this Agreement.  If there  is any conflict or inconsistency between any of the terms or provisions of this Agreement and  any of the other Repurchase Documents, this Agreement shall govern and control.  If there is any  conflict between any provision of this Agreement and any later supplement, amendment,  restatement or replacement of it, then the latter shall govern and control.  





 






  2  Bodman_17772003_9  1.2. Defined Terms.  Except where otherwise specifically stated, capitalized terms  used in this Agreement and the other Repurchase Documents have the meanings assigned to  them below or elsewhere in this Agreement.  “Accepted Servicing Practices” means, with respect to any Mortgage Loan, (a) those  mortgage loan servicing standards and procedures in accordance with all applicable state, local  and federal laws, rules and regulations and (b)(i) the mortgage loan servicing standards and  procedures prescribed by Fannie Mae and Freddie Mac, in each case as set forth in the Fannie  Mae Servicing Guide or Freddie Mac Servicing Guide, as applicable, and in the directives or  applicable publications of such agencies, as such may be amended or supplemented from time to  time, or (ii) with respect to any Mortgage Loans and any matters or circumstances as to which no  such standard or procedure applies, the servicing standards, procedures and practices the Seller  uses with respect to its own assets as of the date of this Agreement, subject to reasonable  changes.  “Additional Purchased Loans” means Eligible Loans transferred by the Seller to the  Buyers pursuant to, and as defined in, Section 6.1(a).  “Adjusted Tangible Net Worth” means, as of any date, the sum of (a) all assets of the  Seller and the Subsidiaries on a Consolidated basis, minus (b) the sum of (i) Total Liabilities  (excluding Qualified Subordinated Debt), (ii) all assets of the Seller and the Subsidiaries that  would be classified as intangible assets under GAAP, including, but not limited to, subscribed  stock, goodwill (whether representing the excess of cost over book value of assets acquired or  otherwise), patents, trademarks, trade names, copyrights, franchises, licenses and (iii) unsecured  notes and accounts receivable due from stockholders, directors, officers, members, employees,  Affiliates or other related Persons (other than Parent and Subsidiaries), and (iv) loans held for  investment and real estate acquired by foreclosure or deed in lieu of foreclosure, net of reserves.   “Affiliate” means and includes, with respect to a specified Person, any other Person:  (a) that directly or indirectly through one or more intermediaries Controls, is  Controlled by or is under common Control with the specified Person (in this definition  only, the term “Control” means having the power to set or direct management policies,  directly or indirectly);  (b) that is a director, trustee, partner, member or executive officer of the  specified Person or serves in a similar capacity in respect of the specified Person;  (c) of which the specified Person is a director, trustee, partner, member or  executive officer or with respect to which the specified Person serves in a similar  capacity and over whom the specified Person, either alone or together with one or more  other Persons similarly situated, has Control;  (d) that, directly or indirectly through one or more intermediaries, is the  beneficial owner of ten percent (10%) or more of any class of equity securities — which  does not include any MBS — of the specified Person; or  





 






  3  Bodman_17772003_9  (e) of which the specified Person is directly or indirectly the owner of ten  percent (10%) or more of any class of equity securities of the specified Person.  “Aged Mortgage Loan” means a Mortgage Loan that is an Eligible Loan, and with respect  to which each of the following statements shall be accurate and complete (and Seller by  including such Mortgage Loan in any computation of the Sublimits shall be deemed to so  represent and warrant to the Agent as of the date of such computation):  (a) Such Mortgage Loan was originally funded in a Transaction under the  Conforming Loan Sublimit or the FHA Low FICO Score Loan Sublimit;   (b) Immediately prior to becoming an Aged Mortgage Loan, such Mortgage  Loan was included in the Conforming Mortgage Loan Sublimit or the FHA Low FICO  Score Loan Sublimit; and  (c) Except for the expiration of the Repurchase Date applicable to such  Mortgage Loan prior to the transfer of such Mortgage Loan to the Aged Mortgage Loan  Sublimit from the Conforming Mortgage Loan Sublimit or the FHA Low FICO Score  Loan Sublimit, as applicable, such Mortgage Loan would continue to be eligible under  this Agreement as a Conforming Mortgage Loan or an FHA Low FICO Score Mortgage  Loan, as applicable.  “Aged Mortgage Loan Sublimit’ is defined in the table set forth in Section 4.2(c).   “Agency” means Ginnie Mae, Fannie Mae or Freddie Mac.  “Agency MBS” means MBS issued or guaranteed as to timely payment of principal and  interest by Ginnie Mae, Fannie Mae or Freddie Mac.  “Agency-Required eNote Legend” means the legend or paragraph required by Fannie Mae  or Freddie Mac, as applicable, to be set forth in the text of an eNote, as may be amended from  time to time by Fannie Mae or Freddie Mac, as applicable.  “Agent” is defined above.  “Agent’s Fees” is defined in Section 9.2.  “Aggregate Jumbo Loan Sublimit” is defined in Section 4.2(c).   “Aggregate Outstanding Purchase Price” means as of any Determination Date, an  amount equal to the sum of the Purchase Prices for all Purchased Loans included in all Open  Transactions.  “Agreement” is defined in the Recitals.  “Applicable Floor” means as such term is used in the definitions of “LIBOR Rate” and  “Benchmark Replacement” (as defined in Section 6.8), five tenths of one percent (0.5%) per  annum.  





 






  4  Bodman_17772003_9     “Applicable Margin” means (a) for the Daily Adjusting LIBOR Rate, one and seven  tenths of one percent (1.7%) per annum, and (b) for the Prime Reference Rate, five tenths of one  percent (0.5%) per annum.    “Applicable Reference Date” means any date of determination (or, if such date is not a  Business Day, the preceding Business Day).  “Approved Investor” means Ginnie Mae, Fannie Mae, Freddie Mac and any of the  Persons listed on Schedule AI, as it may be supplemented or amended from time to time by  agreement of the Seller and the Agent; provided, that (a) persons listed on Schedule AI shall be  Approved Investors only with respect to the type(s) of Mortgage Loans for which they are  specified as an “Approved Investor” on Schedule AI, and (b) if the Agent shall give notice to the  Seller of the Agent’s reasonable disapproval of any Approved Investor(s) named in the notice,  the Approved Investor(s) so named shall no longer be (an) Approved Investor(s) from and after  the time when the Agent sends that notice to the Seller or such later date as may be specified by  the Agent in its sole discretion.  “Approved Investor Agreement” shall have the meaning given the term in the Custody  Agreement.  “Approved MBS Custodian” is defined in Section 1.1 of the Custody Agreement.  “Approved MBS Custodian Account” is defined in Section 1.1 of the Custody Agreement.  “Authoritative Copy” means, with respect to an eNote, the single authoritative copy of  such eNote within the meaning of 15 U.S.C. § 7021(c) (being Section 7021(c) of E-SIGN) or  Section 16(c) of UETA, as applicable, which eNote is within the Control of the Controller.  “Authorized Seller Representative” means a representative of the Seller duly designated  by all requisite corporate action to execute any certificate, schedule or other document  contemplated or required by this Agreement or the Custody Agreement on behalf of the Seller  and as its act and deed.  A list of Authorized Seller Representatives current as of the Effective  Date is attached as Schedule AR.  The Seller will provide an updated list of Authorized Seller  Representatives to the Agent and the Custodian promptly following each addition to or  subtraction from such list, and the Agent, the Buyers and the Custodian shall be entitled to rely  on each such list until such an updated list is received by the Agent and the Custodian.  “Backup Servicer” means any Person designated by the Agent, in its sole discretion, to  act as a backup servicer of the Purchased Loans in accordance with Section 19.10.  “Bankruptcy Code” is defined in the Recitals.  “Basic Papers” means all of the Loan Papers that must be delivered to the Custodian (in  the case of Dry Loans, prior to the related Purchase Date and, in the case of Wet Loans, on or  before the seventh (7th) Business Day after the related Purchase Date) in order for any particular  Purchased Loan to continue to have Market Value.  Schedule BP lists the Basic Papers.  





 






  5  Bodman_17772003_9  “Beneficial Ownership Certification” means a certification regarding beneficial  ownership as required by the Beneficial Ownership Regulation.  “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230, as amended from time  to time.   “Business Day” means any day, other than a Saturday, Sunday or any other day  designated as a holiday under Federal or applicable State statute or regulation, on which Agent is  open for all or substantially all of its domestic and international business (including dealings in  foreign exchange) in Detroit, Michigan, and, in respect of notices and determinations relating to  the Daily Adjusting LIBOR Rate, also a day on which dealings in dollar deposits are also carried  on in the London interbank market and on which banks are open for business in London,  England.  “Buyer” means Comerica Bank and such other Person from time to time party to this  agreement as a “Buyer.”  Persons who are currently Buyers on any day shall be listed as Buyers  in Schedule BC in effect for that day.  “Buyer Affiliate” means (a) with respect to any Buyer, (i) an Affiliate of such Buyer or  (ii) any entity (whether a corporation, partnership, trust or otherwise) that is engaged in making,  purchasing, holding or otherwise investing in securities and mortgage reverse repurchase  agreements, bank loans and similar financial arrangements in the ordinary course of its business  and is administered or managed by such Buyer or an Affiliate of such Buyer and (b) with respect  to any Buyer that is a fund which invests in securities and mortgage reverse repurchase  agreements, bank loans and similar financial arrangements, any other fund that invests in  securities and mortgage reverse repurchase agreements, bank loans and similar financial  arrangements and is managed by the same investment advisor as such Buyer or by an Affiliate of  such investment advisor.  “Buyers’ Margin Percentage” means:  (a) for Conforming Mortgage Loans (other than Aged Mortgage Loans),  ninety-seven percent (97%);   (b) for FHA Low FICO Score Mortgage Loans (other than Aged Mortgage  Loans), ninety-seven percent (97%);  (c) for Jumbo Mortgage Loans, ninety-seven percent (97%);  (d) for Super Jumbo Mortgage Loans, ninety-seven percent (97%);  (e) for Aged Mortgage Loans, ninety-seven percent (97%);  (f) for Second Mortgage Loans, fifty percent (50%);   (g)  for Non-QM Mortgage Loans, ninety percent (90%);  





 






  6  Bodman_17772003_9  (h) for Discretionary Loans, the Buyer’s Margin Percentage for the underlying  type of Purchased Loan which would apply if such Mortgage Loan met the requirements  waived by Agent under Section 22.8; and  (h) for Wet Loans, the Buyer’s Margin Percentage for the underlying type of  Purchased Loan which would apply if such Purchased Loan were a Dry Loan.   “Cash Equivalents” means and includes, on any day:  (a) any evidence of debt issued by the United States government or any  agency thereof, or guaranteed as to the timely payment of principal and interest by the  United States government, and maturing ninety (90) days or less after that day; and  (b) any demand deposit, time deposit, certificate of deposit or banker’s  acceptance maturing not more than ninety (90) days after that day and issued by a  commercial bank that either (i) is insured by the Federal Deposit Insurance Corporation  or (ii) is a member of the Federal Reserve System and has a combined unimpaired capital  and surplus and unimpaired undivided profits of not less than Two Hundred Fifty Million  Dollars ($250,000,000); and  (c) money market and cash accounts and money market funds which are  invested in investments of the types described above or in commercial paper maturing no  more than 90 days from the date of creation thereof and which is rated at least “A-1” by  Standard & Poor’s Corporation or at least “P-1” by Moody’s Investors Service, Inc.  “Central Elements” means and includes the value of a substantial part of the Purchased  Loans; the prospects for payment of each portion of the Repurchase Price, both Purchase Price  and Price Differential, when due; the validity or enforceability of this Agreement and the other  Repurchase Documents and, as to any Person referred to in any reference to the Central  Elements, such Person’s property, business operations, financial condition and ability to fulfill  and perform its obligations under this Agreement and the other Repurchase Documents to which  it is a party, each taken as a whole, and such Person’s prospects of continuing in business as a  going concern.  “Certified Copy” means a copy of an original Basic Paper or Supplemental Paper  accompanied by (or on which there is stamped) a certification by an officer of either a title  insurer or an agent of a title insurer (whether a title agency or a closing attorney) or, except  where otherwise specified below, by an Authorized Seller Representative or an officer of the  Servicer (if other than the Seller) or subservicer of the relevant Mortgage Loan, that such copy is  a true copy of the original and (if applicable) that the original has been sent to the appropriate  governmental filing office for recording in the jurisdiction where the related Mortgaged Premises  are located.  Each such certification shall be conclusively deemed to be a representation and  warranty by the certifying officer, agent, Authorized Seller Representative or officer of the  relevant Servicer or subservicer, as applicable, to the Agent, the Buyers and the Custodian upon  which each may rely.  “Change in Law” means the occurrence, after the Effective Date, of any of the following:   (a) the adoption or introduction of any applicable Legal Requirement now or hereafter in effect  





 






  7  Bodman_17772003_9  and whether or not applicable to any Buyer or Agent on such date, (b) any change in any  applicable Legal Requirement or in the interpretation or application thereof by any  Governmental Authority, or (c) the issuance, making or implementation by any Governmental  Authority of any interpretation, administration, request, regulation, guideline, or directive  (whether or not having the force of law), including any risk-based capital guidelines.  For  purposes of this definition, (x) a change in any Legal Requirement or in the interpretation,  application, administration or implementation thereof, shall include, without limitation, any  change made or which becomes effective on the basis of a Legal Requirement or any  interpretation, administration or implementation thereof then in force, the effective date of which  change is delayed by the terms of such Legal Requirement or interpretation, administration or  implementation thereof, (y) the Dodd-Frank Wall Street Reform and Consumer Protection Act  (Pub. L. 111-203, H.R. 4173) and all requests, rules, regulations, guidelines, interpretations or  directives promulgated thereunder or issued in connection therewith shall be deemed to be a  “Change in Law”, regardless of the date enacted, adopted, issued or promulgated, and (z) all  requests, rules, guidelines or directives promulgated by the Bank for International Settlements,  the Basel Committee on Banking Supervision (or any successor or similar authority) or the  United States regulatory authorities, in each case pursuant to Basel III, shall each be deemed to  be a "Change in Law", regardless of the date enacted, adopted, issued or implemented.  “Change of Control” in respect of the Seller means the occurrence of Parent not owning  directly, or indirectly, 100% of the issued and outstanding ownership interests of the Seller.  “Collateral” has the meaning given the term in Section 10.1.  “Combined Loan to Value” means, with respect to any Second Mortgage Loan, a fraction  expressed as a percentage, (a) the numerator of which is the sum of the outstanding principal  amount of such Second Mortgage Loan plus the outstanding principal amount of the first  Mortgage Loan encumbering the subject real property, divided by (b) the appraised value of the  subject real estate encumbered thereby based on a current appraisal and by an appraiser  acceptable to Agent.  “Commitment” means, for each Buyer, its commitment under Section 2.1, subject to  reduction or increase as described in Section 2.6, to fund its Funding Share of Transactions,  limited to such Buyer’s Committed Sum.    “Committed Sum” means, for any day, the maximum total amount a Buyer is committed  to fund for the purchase from the Seller of Eligible Loans on a revolving basis pursuant to this  Agreement, on its terms and subject to its conditions.  From the Effective Date of this Agreement  through the Termination Date or such other date (if any) when all or any of them is changed by  operation of the provisions of any agreement or Legal Requirement, the Committed Sums for the  Buyers are as set forth on Schedule BC, as it may be amended and restated from time to time.  “Competitor” means an entity which (a) either (i) competes with the Parent or its  Affiliates in the home building business, or (ii) is in the business of making, purchasing, holding  or otherwise investing in residential Mortgage Loans in the ordinary course of its business, and  (b) is not in the business of making, purchasing, holding or otherwise investing in commercial  loans or similar extensions of credit in the ordinary course of its business.  





 






  8  Bodman_17772003_9  “Conforming Mortgage Loan” means a first priority Single-family residential Mortgage  Loan (a) that is FHA insured, VA guaranteed, a conventional mortgage loan that fully conforms  to all Agency underwriting and other requirements, or a Housing Authority Loan, and (b) the  obligor for which has a FICO Score of not less than (i) if a Housing Authority Loan, 600, or (ii)  if not a Housing Authority Loan, 620.  “Conforming Loan Sublimit” is defined in Section 4.2(a).  “Consolidated” refers to the consolidation of any Person, in accordance with GAAP, with  its properly consolidated subsidiaries.  References herein to a Person’s Consolidated financial  statements refer to the consolidated financial statements of such Person and its properly  consolidated subsidiaries.  “Contingent Indebtedness” of any Person at a particular date means the sum (without  duplication) at such date of (a) all obligations of such Person in respect of letters of credit,  acceptances, or similar obligations issued or created for the account of such Person, (b) all  obligations of such Person under any contract, agreement or understanding of such Person  pursuant to which such Person guarantees, or in effect guarantees, any indebtedness or other  obligations of any other Person in any matter, whether directly or indirectly, contingently or  absolutely, in whole or in part (excluding such Person’s contingent liability as endorser of  negotiable instruments for collection in the ordinary course of business), (c) all liabilities secured  by any Lien on any property owned by such Person, whether or not such Person has assumed or  otherwise become liable for the payment thereof and (d) any liability of such Person or any  Affiliate thereof in respect of unfunded vested benefits under any ERISA Plan, in each case  excluding any such liabilities or obligations that constitute Debt.  “Control” means, with respect to an eNote, “control” of such eNote as such term is  defined in 15 U.S.C. § 7021(b) (being Section 7021(c) of E-SIGN) and/or Section 16 of UETA,  as applicable, which is established by reference to the MERS eRegistry and any party designated  therein as the Controller.  “Control Failure” means, with respect to any eMortgage Loan, the occurrence of any  event or condition while such eMortgage Loan is subject to a Transaction which results in the  Custodian not having Control of the eNote evidencing such eMortgage Loan or the Custodian  not being the Controller of such eNote, excluding, however, any Transfer of Control  intentionally made by Custodian pursuant to this Agreement or any other Repurchase  Documents, including in conjunction with the sale, conveyance or other disposition of such  eMortgage Loan.  “Controller” means, with respect to an eNote, the party designated in the MERS  eRegistry as the “Controller,” and who in such capacity shall be deemed to be “in control” or to  be the “controller” of such eNote within the meaning of UETA or E-SIGN, as applicable.  “Corporation Tax Treatment Certificate” is defined in Section 7.5(a).  “Currency Agreement” means any foreign exchange contract, currency swap agreement,  futures contract, option contract, synthetic cap or other similar agreement or arrangement for the  





 






  9  Bodman_17772003_9  purpose of hedging the currency risk associated with the Seller’s and its Subsidiaries’ operations  and not for speculative purposes.  “Custodian” means Truist Bank, formerly known as Branch Banking and Trust  Company, as Custodian under the Custody Agreement, or any successor custodian under the  Custody Agreement acceptable to the Agent.  “Custodian’s Fees” are the fees to be paid by the Seller to the Custodian for its services  under the Custody Agreement, as provided for in the Custody Agreement or by a separate  agreement.  Such fees are separate from and in addition to other fees to be paid to the Buyers and  the Agent provided for in this Agreement.  “Custody Agreement” means the Custody Agreement dated as of February 15, 2019 by  and among the Agent, the Seller and the Custodian, as it may be supplemented, amended or  restated from time to time.   “Customer” means and includes each maker of a Mortgage Note and each cosigner,  guarantor, endorser, surety and assumptor thereof, and each mortgagor or grantor under a  Mortgage, whether or not such Person has personal liability for its payment of the Mortgage  Loan evidenced or secured thereby, in whole or in part.  “Daily Adjusting LIBOR Rate” means, for any day, a per annum interest rate which is  equal to the Applicable Margin, plus the quotient of:  (a) the LIBOR Rate;   divided by  (b) a percentage (expressed as a decimal) equal to 1.00 minus the maximum  rate on such date at which Agent is required to maintain reserves on  "Euro-currency Liabilities" as defined in and pursuant to Regulation D of  the Board of Governors of the Federal Reserve System or, if such  regulation or definition is modified, and as long as Agent is required to  maintain reserves against a category of liabilities which includes  eurodollar deposits or includes a category of assets which includes  eurodollar loans, the rate at which such reserves are required to be  maintained on such category;  such sum to be rounded upward, if necessary, in the discretion of the Agent, to the seventh  decimal place.  “Debt” means, with respect to any Person, on any day, the sum of the following (without  duplication):  (a) all of that Person’s debt or other obligations which, in accordance with  GAAP, should be included in determining total liabilities as shown on the liabilities side  of that Person’s balance sheet for that day;  





 






  10  Bodman_17772003_9  (b) all of that Person’s debt or other obligations for borrowed money or for  the deferred purchase price of property or services, except that non-recourse MBS Debt  arising out of transactions structured to qualify for GAAP sale treatment shall be  excluded;  (c) all of any other Person’s debt or other obligations for borrowed money or  for the deferred purchase price of property or services in respect of which such Person is  liable, contingently or otherwise, to pay or advance money or property as guarantor,  surety, endorser or otherwise (excluding such Person’s contingent liability as endorser of  negotiable instruments for collection in the ordinary course of business), or which such  Person has agreed to purchase or otherwise acquire;  (d) the aggregate principal balance, or repurchase price obligation, of that  Person under repurchase agreements, reverse repurchase agreements, mortgage  warehouse lines of credit, sale/buy-back agreements or like arrangements;  (e) all debt for borrowed money or for the deferred purchase price of property  or services secured by a Lien on any property owned or being purchased by that Person  (even though that Person has not assumed or otherwise become liable for the payment of  such debt) to the extent that such debt would not be otherwise counted as a liability for  purposes of determining that Person’s net worth and to the extent that such debt is less  than or equal to the net book value of such property; and  (f) net payment obligations of that Person in respect of any exchange traded  or over the counter derivative transaction, including any Hedge Agreement whether  entered into for hedging or speculative purposes;  provided that, for purposes of this Agreement, there shall be excluded from the calculation of  Debt for that day both (i) such Person’s obligations to pay to another Person any sums collected  and held by the subject Person (as loan servicer, escrow agent or collection agent or in a similar  capacity) for the account of such other Person, and (ii) Qualified Subordinated Debt.  “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation,  conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement,  receivership, insolvency, reorganization, or similar debtor relief laws of the United States or  other applicable jurisdictions from time to time in effect.  “Default” means the occurrence of any event or existence of any condition that, but for  the giving of notice, the lapse of time or both, would constitute an Event of Default.  “Default Pricing Rate” means, on any day and with respect to any Transaction, a rate per  annum equal to the otherwise applicable Pricing Rate plus two percent (2%) per annum.  “Defaulting Buyer” means any Buyer, as determined by the Agent, that has (a) failed to  fund any portion of its Transactions (including any Swing Line Transactions syndicated pursuant  to Section 2.5) within two Business Days of the date required to be funded by it hereunder, (b)  notified the Seller, the Agent or any Buyer in writing that it does not intend to comply with any  of its funding obligations under this Agreement or has made a public statement to the effect that  





 






  11  Bodman_17772003_9  it does not intend to comply with its funding obligations under this Agreement, other mortgage  repurchase agreements or any agreements in which it commits to extend credit, (c) failed, within  two Business Days after request by the Agent, to confirm that it will comply with the terms of  this Agreement relating to its obligations to fund prospective Transactions and participations in  then outstanding Swing Line Transactions (provided that such Buyer shall cease to be a  Defaulting Buyer pursuant to this clause (c) upon receipt of such written confirmation by the  Agent), (d) otherwise failed to pay over to the Agent or any other Buyer any other amount  required to be paid by it hereunder within two Business Days of the date when due, unless the  subject of a good faith dispute, or (e) (i) become the subject of a proceeding under any Debtor  Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator,  assignee for the benefit of creditors or similar Person charged with reorganization or liquidation  of its business or assets, including the Federal Deposit Insurance Corporation or any other state  or federal regulatory authority acting in such a capacity; provided that a Buyer shall not be a  Defaulting Buyer solely by virtue of the ownership or acquisition of any equity interest in that  Buyer or any direct or indirect parent company thereof by a Governmental Authority, so long as  such ownership interest does not result in or provide such Buyer with immunity from the  jurisdiction of courts within the United States or from the enforcement of judgments or writs of  attachment on its assets or permit such Buyer (or such Governmental Authority) to reject,  repudiate, disavow or disaffirm any contracts or agreements made with such Buyer.  Any  determination by the Agent that a Buyer is a Defaulting Buyer under any one or more of clauses  (a) through (e) above shall be conclusive and binding absent manifest error, and such Buyer shall  be deemed to be a Defaulting Buyer upon delivery of written notice of such determination to the  Seller, Swing Line Buyer and each Buyer.  “Delegatee” means, with respect to an eNote, the party designated in the MERS  eRegistry as the “Delegatee” or “Delegatee for Transfers,” who in such capacity is authorized by  the Controller to perform certain MERS eRegistry transactions on behalf of the Controller such  as Transfers of Control and Transfers of Control and Location.   “Determination Date” means the date as of, or for, which a specified characteristic of a  Mortgage Loan or other subject matter is being determined for purposes of a provision of this  Agreement or another Repurchase Document.  “Discretionary Loans” means Mortgage Loans approved for purchase by the Agent or  with respect to which Agent has provided a waiver pursuant to Section 22.8.  “Discretionary Loan Sublimit” is defined in the table set forth in Section 4.2(c).  “Disqualifier” means any of the circumstances or events affecting Purchased Loans that  are described on Schedule DQ.  “Dry Loan” means an Eligible Loan originated by the Seller that has been closed, funded  and qualifies without exception as an Eligible Loan, including satisfying the requirement that all  of its Basic Papers have been delivered to the Custodian.  “Electronic Agent” means MERSCORP Holdings, Inc., or its successor in interest or  assigns.  





 






  12  Bodman_17772003_9  “Electronic Record” shall mean an “electronic record” as defined in Section 2 of UETA  or Section 7006 of E-SIGN, as applicable, and with respect to an eMortgage Loan, the related  eNote and all other documents comprising the File electronically created and that are stored in an  electronic format and bearing an “electronic signature” as such term is defined in E-SIGN, if  any.  “Electronic Tracking Agreement” means one (1) or more Electronic Tracking  Agreements with respect to (i) the tracking of changes in the ownership, mortgage servicers and  servicing rights ownership of Mortgage Loans held on the MERS System, and (ii) the tracking of  the Control of eNotes held on the MERS eRegistry, each in a form acceptable to Seller and  Agent, as the same may be amended (including by an Addendum to Electronic Tracking  Agreement for eNotes), restated, supplemented or otherwise modified from time to time.   “Electronic Transmission” means each document, instruction, authorization, file,  information and any other communication transmitted, posted or otherwise made or  communicated by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent  service.  “Eligible Assignee” means (a) a Buyer; (b) a Buyer Affiliate; or (c) any other Person  (other than a natural person) approved by the (i) Agent and Swing Line Buyer, and (ii) unless an  Event of Default has occurred and is continuing, the Seller (each such approval not to be  unreasonably withheld or delayed); provided that (x) notwithstanding the foregoing, “Eligible  Assignee” shall not include any natural person, the Seller, or any of the Seller’s Affiliates or  Subsidiaries, (y) no assignment shall be made to a Defaulting Buyer (or a Person who would be a  Defaulting Buyer if such Person was a Buyer hereunder) without the consent of Agent and  Seller; and (z) that notwithstanding clause (c)(ii) of this definition, so long as no Event of  Default has occurred and is continuing, no assignment shall be made to a Competitor without the  consent of the Seller, which consent may be withheld in its sole discretion.  “Eligible Loans” is defined on Schedule EL.  “Eligible Loans Report” is defined in the Custody Agreement.  “eMortgage Loan” means a Mortgage Loan evidenced by an eNote and as to which some  or all of the other documents comprising the related mortgage file may be created electronically  and not by traditional paper documentation with a pen and ink signature.  “eNote” means, with respect to any eMortgage Loan, the electronically created and stored  Mortgage Note that is a Transferable Record.  “ERISA” means the Employee Retirement Income Security Act of 1974 and any  successor statute, as amended from time to time, and all rules and regulations promulgated under  it.  “ERISA Affiliates” means all members of the group of corporations and trades or  businesses (whether or not incorporated) that, together with the Seller, are treated as a single  employer under Section 414 of the Internal Revenue Code.  





 






  13  Bodman_17772003_9  “ERISA Plan” means any pension benefit plan subject to Title IV of ERISA or  Section 412 of the Internal Revenue Code maintained or contributed to by the Seller or any  ERISA Affiliate with respect to which the Seller has a fixed or contingent liability.  “Erroneous Payment” is defined in Section 22.23.   “Escrow Account” means the Escrow Account established by the Seller with a bank  reasonably satisfactory to the Agent under Section 8, and subject to the control of the Agent into  which amounts paid for escrow accumulation under Purchased Loans are paid for purposes of  paying taxes, insurance and other appropriate escrow charges.    “E-SIGN” shall mean the Electronic Signatures in Global and National Commerce Act,  15 U.S.C. § 7001 et seq, as supplemented, amended, recodified or replaced from time to time.   “Effective Date” means July 29, 2021.  “E-System” means any electronic system and any other Internet or extranet-based site,  whether such electronic system is owned, operated or hosted by the Agent, any of its Affiliates or  any other Person, providing for access to data protected by passcodes or other security system.  “eVault” means an electronic repository established and maintained by the eVault  Provider for Custodian for delivery and storage of eNotes.  “eVault Provider” means such entity agreed upon by Seller, Custodian and Agent.   “Event of Default” is defined in Section 18.1.  “Event of Insolvency” means, as to any Person:  (a) such Person has commenced as debtor any case or proceeding under any  bankruptcy, insolvency, reorganization, moratorium, delinquency, arrangement,  readjustment of debt, liquidation, dissolution, or similar law of any jurisdiction whether  now or hereafter in effect, or consents to the filing of any petition against it under such  law, or petitions for, causes or consents to the appointment or election of a receiver,  conservator, liquidator, trustee, sequestrator, custodian or similar official for such Person  or any substantial part of its property, or an order for relief is entered under the  Bankruptcy Code; or any of such Person’s property is sequestered by court or order; or  the convening by such Person of any meeting of creditors for purposes of commencing  any such case or proceeding or seeking such an appointment or election;  (b) the commencement of any such case or proceeding against such Person, or  another Person’s seeking an appointment or election of a receiver, conservator, liquidator,  trustee, sequestrator, custodian or similar official for such Person, or any substantial part  of its property, or the filing against the such Person of an application for a protective  decree under the provisions of SIPA which  (i) is consented to or not timely contested by  such Person, (ii) results in the entry of an order for relief, such an appointment or  election, the issuance of such a protective decree, or the entry of an order having a similar  effect or (iii) is not dismissed within sixty (60) days;  





 






  14  Bodman_17772003_9  (c) the making by such Person of a general assignment for the benefit of  creditors; or  (d) the inability of such Person to, or the admission by such Person of its  inability or its intention not to, pay its debts as they become due.  “Exception Report” is defined in the Custody Agreement.  “Excluded Swap Obligation” means any obligation of Seller to any Buyer with respect to  a “swap,” as defined in Section 1a(47) of the Commodity Exchange Act (“CEA”), if and to the  extent that Seller’s guaranteeing of, or granting of a security interest or lien to secure, such swap  obligation, is or becomes illegal under the CEA, or any rule, regulation or order of the  Commodity Futures Trading Commission (or the application or official interpretation of any  thereof), by virtue of Seller’s failure for any reason to constitute an “eligible contract  participant,” as defined in Section 1a(18) of the CEA and the regulations thereunder, at the time  such guarantee or such security interest grant becomes effective with respect to such swap  obligation.  If any such swap obligation arises under a master agreement governing more than  one swap, the foregoing exclusion shall apply only to those swap obligations that are attributable  to swaps in respect of which Seller’s guaranteeing of, or granting of a security interest or lien to  secure, such swaps is or becomes illegal.  “Excluded Taxes” is defined in Section 7.5.  “Facility Fee” is defined in Section 9.1.  “Fannie Mae” means Federal National Mortgage Association and any successor thereto  or to the functions thereof.  “Federal Funds Effective Rate” means, for any day, a fluctuating interest rate per annum  equal to the weighted average of the rates on overnight Federal funds transactions with members  of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or,  if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve  Bank of New York, or, if such rate is not so published for any day which is a Business Day, the  average of the quotations for such day on such transactions received by Agent from three Federal  funds brokers of recognized standing selected by Agent, all as conclusively determined by the  Agent, such sum to be rounded upward, if necessary, in the discretion of the Agent, to the nearest  whole multiple of 1/100th of 1%.  “Fee Letter” means that certain letter dated as of June 13, 2019, from the Agent to the  Seller.  “FHA” means the Federal Housing Administration and any successor.   “FHA Low FICO Score Mortgage Loan” means a Mortgage Loan that would be a  Conforming Mortgage Loan except that the FICO Score for the obligor of such Mortgage Loan  does not meet the requirements of Paragraph (b) of the definition of Conforming Mortgage Loan.  “FHA Low FICO Score Loan Sublimit” is defined in the table set forth in Section 4.2(c).  





 






  15  Bodman_17772003_9  “Freddie Mac” means the Federal Home Loan Mortgage Corporation and any successor  thereto or to the functions thereof.  “FICA” means the Federal Insurance Contributions Act.  “FICO” means Fair Isaac Corporation and, where used in this Agreement, refers to the  credit scoring system developed by that company or to any other Customer credit scoring system  whose use by the Seller (for purposes of this Agreement and the Transactions) has been  specifically approved in writing by the Agent.  “File” means a file in the possession of the Custodian containing all of the Loan Papers  for the relevant type of Mortgage Loan. File is referred to as “Purchased Loan File” in the  Custody Agreement.  “Financial Statements” is defined in Section 15.2(f).  “Fronting Exposure” means, at any time there is a Defaulting Buyer, with respect to the  Swing Line Buyer, such Defaulting Buyer’s Percentage of outstanding Swing Line Transactions  made by the Swing Line Buyer.  “Funding Account” means the Seller’s non-interest bearing demand deposit account   maintained with Comerica Bank and described in Schedule 1.2 into which the Agent may  transfer funds (funds paid by the Buyers as Purchase Price) and from which the Seller is  authorized to disburse funds in accordance with the terms and conditions of this Agreement so  long as no Event of Default exists or will result therefrom.  After the occurrence and during the  continuance of an Event of Default, Seller shall have no further access to the Funding Account,  the Funding Account shall be under the exclusive control of the Agent, and the Funding Account  shall be subject to setoff by the Agent for Pro Rata distribution to the Buyers.  “Funding Share” means, for each Buyer, that proportion of the sum of the original  Purchase Prices for the Mortgage Loans to be purchased in a Transaction that bears the same  ratio to the total amount of such sum as that Buyer’s Committed Sum bears to the Maximum  Aggregate Commitment.  “GAAP” means, for any day, generally accepted accounting principles, applied on a  consistent basis, stated in the opinions and pronouncements of the Accounting Principles Board  and the American Institute of Certified Public Accountants, or in statements and pronouncements  of the Financial Accounting Standards Board or in such other statements by another entity or  entities as may be approved by a significant segment of the accounting profession, that are  applicable to the circumstances for that day.  The requirement that such principles be applied on  a consistent basis means that the accounting principles observed in a current period shall be  comparable in all material respects to those applied in an earlier period, with the exception of  changes in application to which the Seller’s independent certified public accountants have agreed  and which changes and their effects are summarized in the subject company’s financial  statements following such changes.  If (a) at any time any change in GAAP would affect the  computation of any financial ratio or requirement set forth in this Agreement and (b) the Seller or  the Required Buyers regard such change(s) as adverse to their respective interests, then upon  written notice by the Seller to Agent, or by the Agent or the Required Buyers to the Seller, the  





 






  16  Bodman_17772003_9  parties to this Agreement shall negotiate in good faith to amend such ratio or requirement to  preserve the original intent thereof in light of such change in GAAP (subject to the approval of  the Required Buyers); provided that, until so amended, (i) such ratio or requirement shall  continue to be computed in accordance with GAAP prior to such change therein and (ii) the  Seller shall provide to the Agent and Buyers Seller’s financial statements and other documents  required under this Agreement or as reasonably requested hereunder setting forth a reconciliation  between calculations of such ratio or requirement made before and after giving effect to such  change in GAAP, provided that neither the Agent nor any of the Buyers shall be obligated to  commence, continue or conclude any such negotiation or to execute any such supplement or  amendment after any Event of Default has occurred (other than an Event of Default caused by  such change) that has not been cured by the Seller or that the Agent has not declared in writing to  have been waived in accordance with Section 22.  “Ginnie Mae” means the Government National Mortgage Association and any successor.  “Governmental Authority” means the government of the United States of America or any  other nation, or of any political subdivision thereof, whether state or local, and any agency,  authority, instrumentality, regulatory body, court, central bank or other entity exercising  executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or  pertaining to government (including without limitation any supranational bodies such as the  European Union or the European Central Bank) and any group or body charged with setting  financial accounting or regulatory capital rules or standards (including, without limitation, the  Financial Accounting Standards Board, the Bank for International Settlements or the Basel  Committee on Banking Supervision or any successor or similar authority to any of the  foregoing).  “Hash Value” shall mean, with respect to an eNote, the unique, tamper-evident digital  signature of such eNote that is stored in the MERS eRegistry.  “Hazard Insurance Policy” means, with respect to each Purchased Loan, the policy of  fire and extended coverage insurance required to be maintained for the related Mortgaged  Premises’ improvements (and, if the related Mortgaged Premises are located in a federally- designated special flood area, federal flood insurance issued in accordance with the Flood  Disaster Protection Act of 1973, as amended from time to time, or, if repealed, any superseding  legislation governing similar insurance coverage, or similar coverage against loss sustained by  floods or similar hazards that conforms to the flood insurance requirements prescribed by Fannie  Mae guidelines, which may be provided under a separate insurance policy), which insurance may  be a blanket mortgage impairment policy.  “Hedge Agreement” means an Interest Rate Protection Agreement, a Currency  Agreement or a forward sales agreement entered into in the ordinary course of the Seller’s or any  of its Subsidiaries’ businesses to protect the Seller against changes in interest rates or the market  value of assets.  “Housing Authority Loan” means a Mortgage Loan which is covered by an Investor  Commitment from a state housing authority under a government bond loan program.   





 






  17  Bodman_17772003_9  “HUD” means the U.S. Department of Housing and Urban Development and any  successor.  “In Default” means that, as to any Mortgage Loan, any Mortgage Note payment or  escrow payment is unpaid for thirty (30) days or more after its due date (whether or not the Seller  has allowed any grace period or extended the due date thereof by any means) or another material  default has occurred and is continuing, including the commencement of foreclosure or the  commencement of a case in bankruptcy for any Customer in respect of such Mortgage Loan.  “Income” means, with respect to any Purchased Loan on any day, all payments of  principal, interest and other distributions thereon or proceeds thereof paid to the relevant party.  “Income Account” means a demand deposit account established by the Seller with  Comerica Bank and described in Schedule 1.2 under the provisions of Section 8, which shall be  subject to the control of the Agent.  “Indemnified Liabilities” is defined in Section 20.2.   “Indemnified Parties” is defined in Section 20.2.  “Interest Rate Protection Agreement” means, with respect to any or all of the Purchased  Loans, any short sale of any U.S. Treasury securities, futures contract, mortgage related security,  Eurodollar futures contract, options related contract, interest rate swap, cap or collar agreement  or similar arrangement providing for protection against fluctuations in interest rates or the  exchange of nominal interest obligations, either generally or under specific contingencies, that is  entered into by the Seller and a financial institution and is reasonably acceptable to the Agent.  “Internal Revenue Code” means the Internal Revenue Code of 1986 or any subsequent  federal income tax law or laws, as amended from time to time.  “Investor Commitment” means an unexpired written commitment held by the Seller from  an Approved Investor to buy Purchased Loans, and that specifies (a) the type or item(s) of  Purchased Loan, (b) a purchase date or purchase deadline date and (c) a purchase price or the  criteria by which the purchase price will be determined.  “Jumbo Mortgage Loan” means a Mortgage Loan that (a) would be a Conforming  Mortgage Loan except that the original principal amount is more than the maximum Agency loan  amount, but not more than Two Million Dollars ($2,000,000) unless approved by Agent, and (b)  the obligor of such Mortgage Loan has a FICO Score of not less than 680.  “Jumbo Loan Sublimit” is defined in Section 4.2(c).  “Legal Requirement” means any law, statute, ordinance, decree, ruling, treaty,  requirement, order, judgment, rule or regulation (or interpretation of any of them), including any  of the foregoing that relate to environmental standards or controls, energy regulations and  occupational safety and health standards or controls, of any (domestic or foreign) court or other  Governmental Authority, and the terms of any license, permit, consent or approval issued by any  Governmental Authority.  





 






  18  Bodman_17772003_9  “LIBOR Lending Office” means Agent's office located in the Cayman Islands, British  West Indies, or such other branch of Agent, domestic or foreign, as it may hereafter designate as  its LIBOR Lending Office by notice to the Seller.  “LIBOR Rate” means the per annum rate of interest determined on the basis of the rate  for deposits in United States Dollars for a period equal to one (1) month, appearing on Page  BBAM of the Bloomberg Financial Markets Information Service at or about 11:00 a.m. (London,  England time) (or soon thereafter as practical) on the Applicable Reference Date.  In the event  that such rate does not appear on Page BBAM of the Bloomberg Financial Markets Information  Service (or otherwise on such Service), the “LIBOR Rate” shall be determined by reference to  such other publicly available service for displaying LIBOR rates as may be agreed upon by the  Agent and the Seller, or, in the absence of such agreement, the “LIBOR Rate” shall, instead, be  the per annum rate equal to the average (rounded upward, if necessary, to the nearest one- sixteenth of one percent (1/16%)) of the rate at which the Agent is offered dollar deposits at or  about 11:00 a.m. (Detroit, Michigan time) (or soon thereafter as practical) on the Applicable  Reference Date in the interbank LIBOR market in an amount comparable to the principal amount  of the relevant Transaction which is to bear interest at such rate and for a period equal to one (1)  month.  Notwithstanding the foregoing, in no event shall the LIBOR Rate be less than the  Applicable Floor.  “Lien” means any lien, mortgage, deed of trust, pledge, security interest, charge or  encumbrance of any kind (including any conditional sale or other title retention agreement, any  lease in the nature thereof and any agreement to give any security interest).  “Liquidity” means, as of any date of determination, (a) the market value, as reasonably  determined by Agent, of all cash or Cash Equivalents (including any amounts held in the  Funding Account, Operating Account or Income Account), beneficially owned by Seller as of  such date and which are not subject to any pledge, security interest, lien, mortgage,  hypothecation or other encumbrance, except (i) in favor of Agent to secure the Obligations, and  (ii) in the case of cash deposits held in a deposit account at a financial institution (other than  Agent), in favor of such financial institution to secure deposit account-related liabilities arising in  the ordinary course so long as Seller has the unrestricted right, at any time, to access, withdraw,  assign or transfer such deposits, and such deposits are not subject to any account control  agreement or other agreement under which such rights are or can be restricted (other than in  favor of the Agent), plus (b) the amount by which the aggregate Purchase Value of all Purchased  Loans at such time exceeds the aggregate Purchase Price outstanding for all Open Transactions  at such time, provided, however, for purposes of this paragraph (b), the “Purchase Value” of  Purchased Loans shall not be reduced by the proviso in subparagraph (i) of paragraph (b) of the  definition of “Purchase Value.”  “Loan Papers” means the Mortgage Note and all of the other papers related to the  establishment of a Purchased Loan and the creation, perfection and maintenance of its lien and  lien priority for such Purchased Loan, including its Basic Papers and its Supplemental Papers  and including any papers securing, guaranteeing or otherwise related to or delivered in  connection with any Purchased Loan, in a form reasonably acceptable to the Agent (including  any guaranties, lien priority agreements, security agreements, mortgages, deeds of trust,  collateral assignments of the Seller’s interest in underlying obligations or security, subordination  





 






  19  Bodman_17772003_9  agreements, intercreditor agreements, negative pledge agreements, loan agreements,  management agreements, development agreements, design professional agreements, payment,  performance or completion bonds, mortgage security and insurance contracts, title, mortgage,  pool, casualty, flood and earthquake insurance policies, binders and commitments, FHA  insurance and VA guaranties, participation certificates and agreements, financing statements and  investor or purchase commitments), as any such Loan Paper may be supplemented, amended,  restated or replaced from time to time; provided that the “Loan Papers” of an eMortgage Loan  include the eMortgage Loan’s related Electronic Records, including the related eNote, rather  than their paper equivalents.  “Loan Records” means books, records, ledger cards, files, papers, documents,  instruments, certificates, appraisal reports, surveys, bonds, journals, reports, correspondence,  customer lists, information and data that describes, catalogs or lists such information or data,  computer printouts, media (tapes, discs, cards, drives, flash memory or any other kind of  physical, electronic or virtual data or information storage media or systems) and related data  processing software (subject to any licensing restrictions) and similar items that at any time  evidence or contain information relating to any of the Purchased Loans, and other information  and data that is used or useful for managing and administering the Purchased Loans, together  with the nonexclusive right to use (in common with the Seller and any repurchase agreement  counterparty or secured party that has a valid and enforceable interest therein and that agrees that  its interest is similarly nonexclusive) the Seller’s operating systems to manage and administer  any of the Purchased Loans and any of the related data and information described above, or that  otherwise relates to the Purchased Loans, together with the media on which the same are stored  to the extent stored with material information or data that relates to property other than the  Purchased Loans (tapes, discs, cards, drives, flash memory or any other kind of physical or  virtual data or information storage media or systems), and the Seller’s rights to access the same,  whether exclusive or nonexclusive, to the extent that such access rights may lawfully be  transferred or used by the Seller’s permittees, and any computer programs that are owned by the  Seller (or licensed to the Seller under licenses that may lawfully be transferred or used by the  Seller’s permittees) and that are used or useful to access, organize, input, read, print or otherwise  output and otherwise handle or use such information and data.  “Location” means, with respect to an eNote, the location of such eNote which is  established by reference to the MERS eRegistry.   “Margin Call” is defined in Section 6.1(a).  “Margin Deficit” is defined in Section 6.1(a).  “Margin Excess” is defined in Section 6.1(b).  “Margin Stock” has the meaning assigned to that term in Regulation U as in effect from  time to time.  “Market Value” means what the Agent determines as the market value of any Purchased  Loan, using a commercially reasonable methodology that is, in its sole discretion, in accordance  with standards customarily applicable in the financial industry to third party service providers  





 






  20  Bodman_17772003_9  providing values on comparable assets to be used in connection with the financing of such assets,  without reference to Hedge Agreements or Investor Commitments.  The Agent’s determination  of Market Value hereunder shall be conclusive and binding upon the parties, absent manifest  error.  “Master Servicer” means, with respect to an eNote, the party that is designated in the  MERS® eRegistry as the “Master Servicer”, and that in such capacity is authorized by the  Controller to perform certain MERS® eRegistry transactions on behalf of the Controller.   “Master Servicer Field” means, with respect to an eNote, the field entitled, “Master  Servicer” in the MERS eRegistry.  “Maximum Aggregate Commitment” means the maximum Aggregate Outstanding  Purchase Price that is allowed to be outstanding under this Agreement on any day, being the  amount set forth in Schedule BC in effect for that day, as decreased and increased pursuant to  Section 2.6 and Schedule BC.  If and when some or all of the Buyers then party to this  Agreement agree in writing to increase their Committed Sums — or if a new Person joins this  Agreement as a Buyer in accordance with Section 2.6, or if there is both such an increase and  such a joinder — so that the aggregate amount of Committed Sums exceeds the Maximum  Aggregate Commitment then in effect, Schedule BC shall be deemed automatically amended and  restated to reflect the new Maximum Aggregate Commitment (as an amount equal to the new  aggregate amount of Committed Sums) and the Agent shall deliver same to the Seller and the  Buyers.  “MBS” means a mortgage pass-through security, collateralized mortgage obligation,  REMIC or other security that (a) is based on and backed by an underlying pool of Mortgage  Loans and (b) provides for payment by its issuer to its holder of specified principal installments  and/or a fixed or floating rate of interest on the unpaid balance and for all prepayments to be  passed through to the holder, whether issued in certificated or book-entry form and whether or  not issued, guaranteed, insured or bonded by Ginnie Mae, Fannie Mae, Freddie Mac, an  insurance company, a private issuer or any other investor.  “MBS Custodial Agreement” is defined in Section 1.1 of the Custody Agreement.  “MBS Sale Proceeds” means proceeds from the sale of Purchased Loans securitized as  MBS and the resulting securities.  “MERS” means Mortgage Electronic Registration Systems, Inc., a Delaware corporation,  or its successors or assigns.  “MERS Designated Loan” means a Purchased Loan registered to the Seller on the  MERS® System.  “MERS eDelivery” means the transmission system operated by the Electronic Agent that  is used to deliver eNotes, other Electronic Records and data from one MERS eRegistry member  to another using a system-to-system interface and conforming to the standards of the MERS  eRegistry.  





 






  21  Bodman_17772003_9  “MERS eRegistry” shall mean the electronic registry operated by the Electronic Agent  that acts as the legal system of record that identifies the Controller, Delegatee, Location, Master  Servicer and Subservicer of the Authoritative Copy of registered eNotes.   “MERS Org ID” means a number assigned by the Electronic Agent that uniquely  identifies MERS members.  “MERS Procedures Manual” means the MERS Procedures Manual, as it may be  amended from time to time.  “MERS® System” means the mortgage electronic registry system operated by the  Electronic Agent that tracks changes in Mortgage ownership, mortgage servicers and servicing  rights ownership.  “Mortgage” means a mortgage, deed of trust, deed to secure debt, security deed or other  mortgage instrument or similar evidence of lien legally effective in the U.S. jurisdiction where  the relevant real property is located to create and constitute a valid and enforceable first priority  Lien or, in the case of a Second Mortgage Loan, second priority Lien, in each case subject only  to Permitted Encumbrances, on the fee simple estate in improved real property.  “Mortgage Assignment” means an assignment of a Mortgage, in form sufficient under the  Legal Requirements of the U.S. jurisdiction where the real property covered by such Mortgage is  located to give record notice of the assignment of such Mortgage, perfect the assignment and  establish its priority relative to other transactions in respect of the Mortgage assigned (no  Mortgage Assignment is required for any Mortgage that has been originated in the name of  MERS and registered under the MERS® System).  “Mortgage Loan” shall mean a one-to-four family, residential real estate loan (including  an eMortgage Loan) evidenced by a Mortgage Note (including, with respect to any eMortgage  Loan, the related eNote) and secured by a Mortgage encumbering a fee simple interest in real  property, together with all improvements thereon, located in the United States; including without  limitation, the Mortgage Note evidencing the indebtedness of obligors thereon, whether on paper  or electronically created, the Mortgage securing, guaranteeing or otherwise relating thereto, all  rights to payment thereunder, all rights in the real property, improvements and other tangible and  intangible property and rights securing payment of the indebtedness of the obligors thereon, or  that are the subject of such Mortgage Loan, all rights under Loan Papers, Loan Records, and  other documents related thereto, such as guaranties and insurance policies (issued by  governmental agencies or otherwise), including, without limitation, mortgage and title insurance  policies, binders and commitments, fire and extended coverage insurance policies (including the  right to any return premiums) and, if applicable, flood and earthquake insurance policies,  participation certificates or agreements, FHA insurance and VA guaranties, all rights in cash  deposits consisting of impounds, insurance premiums or other funds held on account thereof;  provided that in no event shall a Mortgage Loan include a loan with respect to a cooperative  housing apartment or unit,  all Servicing Rights related to such loan, and all other rights,  interests, benefits, security, proceeds, remedies and claims (including, without limitation, REO)  in favor or for the benefit of the lender or mortgagee arising out of or in connection with such  loan.  





 






  22  Bodman_17772003_9  “Mortgage Loan Transmission File” means a file containing all information concerning  each Mortgage Loan required by the “Record Layout,” as defined and provided for in (and  attached as an exhibit to) the Custody Agreement, one of which shall be delivered by the Seller  to the Custodian for each Purchased Loan on its Purchase Date, both by electronic, computer  readable transmission in accordance with such Record Layout and, in the event such electronic  transmission is not possible, by faxing a hard copy thereof to the Custodian.  “Mortgage Note” shall mean a valid and binding note, bond or other evidence of  indebtedness (including, with respect to any eMortgage Loan, the related eNote) evidencing a  Mortgage Loan and secured by a Mortgage, including, but not limited to, a note, bond or other  evidence of indebtedness which is electronically created.  “Mortgaged Premises” means the Property securing a Mortgage Loan.  “Multiemployer Plan” means any “multiemployer plan,” as defined in Section 4001(a)(3)  of ERISA, which is maintained for employees of the Seller or any of the Seller’s Subsidiaries.  “Net Income” means for any period, the net income (or loss) of the Seller and the  Subsidiaries, determined on a Consolidated basis in accordance with GAAP; provided that there  shall be excluded (a) the income (or deficit) of any Person accrued prior to the date it becomes a  Subsidiary or is merged into or consolidated with the Seller or any Subsidiary, (b) the income (or  deficit) of any Person in which any Person (other than the Seller and any Subsidiaries) has a joint  interest, except to the extent that any such income is actually received by the Seller or any  Subsidiary from such Person in the form of dividends or similar distributions and (c) the  undistributed earnings of any Subsidiary to the extent that the declaration or payment of  dividends or similar distributions by such Subsidiary is not at the time permitted by the terms of  any contractual obligation or by law applicable to such Subsidiary.  “Non-excluded Taxes” is defined in Section 7.1.  “Non-Defaulting Buyer” means any Buyer that is not, as of the date of relevance, a  Defaulting Buyer.  “Non-exempt Buyer” is defined in Section 7.5.  “Nonfunding Buyer” is defined in Section 2.1.  “Non-QM Mortgage Loan” means a Mortgage Loan that (a) with respect to which the  original principal amount is not more than One Million Dollars ($1,000,000) unless approved by  Agent, (b) the obligor of such Mortgage Loan has a FICO Score of not less than 680, (c) such  Mortgage Loan is not a Conforming Loan, a Jumbo Loan or a Super Jumbo Loan and (d) is a  closed-end consumer credit transaction secured by a dwelling that is subject to and meets the  ability to repay requirements of 12 CFR 1026.43(c) but is not a qualified mortgage under 12  CFR 1026.43(e).  “Non-QM Mortgage Loan Sublimit” is defined in Section 4.2(c).  





 






  23  Bodman_17772003_9  “Obligations” means all of the Seller’s present and future obligations, liabilities and  indebtedness under this Agreement or any of the other Repurchase Documents, or in respect of  any Products, or any Hedge Agreement entered into with the Agent or any Buyer, whether for  Repurchase Price, Price Differential, Margin Call, premium, fees, costs, attorneys’ fees or other  obligation or liability, and whether absolute or contingent, and all renewals, extensions,  modifications and increases of any of them. Notwithstanding the foregoing, the term  “Obligations” shall not be deemed to include any Excluded Swap Obligation.   “Officer’s Certificate” means a certificate executed on behalf of the Seller or another  relevant Person by a Responsible Officer.  “Open Transaction” means a Transaction in which the Buyers or the Swing Line Buyer  have purchased and paid for the related Purchased Loans but the Seller has not repurchased all of  them, such that the remaining Purchased Loans not repurchased by the Seller of the subject  Transaction would be an Open Transaction.  “Operating Account” means the Seller’s non-interest bearing demand deposit account  maintained with Agent and described on Schedule 1.2, from which the Agent is authorized  pursuant to Section 3.5 to withdraw funds on any day in an amount equal to the aggregate  Repurchase Prices of all Purchased Loans that are Past Due on that day.  The Operating Account  shall be subject to setoff by the Agent for Pro Rata distribution to the Buyers and, upon the  occurrence and during the continuance of an Event of Default, the Agent may also terminate the  Seller’s right to withdraw, or direct the payment of funds in the Operating Account until the  Obligations have been paid in full.   “Organizational Documents” means as to any Person other than a natural Person, its  articles or certificate of incorporation, organization, limited partnership or other document filed  with a Governmental Authority evidencing the organization of such entity and any bylaws,  operating agreement or other governance document governing the rights of the holders of the  ownership interests in such Person.  “Other Taxes” is defined in Section 7.2.  “Paper Record” means with respect to a Mortgage Loan, the related Mortgage Note and  all other documents comprising the Loan Papers that are in paper format, either as a copy or an  original document, and are not held electronically or as an Electronic Record.  “Parent” means PulteGroup, Inc., a Michigan corporation.  “Parent Repurchase Agreement” means the Master Repurchase Agreement dated as of  September 30, 2009, between the Seller and Parent, as it may be supplemented, amended or  restated from time to time.  “Past Due” means that the Seller has not repurchased the subject Purchased Loan on or  before its Repurchase Date.  “Permitted Encumbrances” means, in respect of the Mortgaged Premises securing a  Purchased Loan, (a) tax Liens for real property taxes and government-improvement assessments  





 






  24  Bodman_17772003_9  that are not delinquent; (b) easements and restrictions that do not materially and adversely affect  the title to, marketability of or value of such Mortgaged Premises or prohibit or interfere with the  use of such Mortgaged Premises as a one-to-four family residential dwelling; (c) reservations as  to oil, gas or mineral rights, provided such rights do not include the right to remove buildings or  other material improvements on or near the surface of such Mortgaged Premises or to mine or  drill on the surface thereof or otherwise enter the surface for purposes of mining, drilling or  exploring for, or producing, transporting or otherwise handling oil, gas or other minerals of any  kind; (d) agreements for the installation, maintenance or repair of public utilities, provided such  agreements do not create or evidence Liens on such Mortgaged Premises or authorize or permit  any Person to file or acquire claims of Liens against such Mortgaged Premises; and (e) such  other exceptions (if any) as are acceptable under relevant Agency guidelines; provided that any  encumbrance that is not permitted pursuant to the standards of any relevant Investor  Commitment by which the subject Purchased Loan is covered shall not be a Permitted  Encumbrance.  “Person” means and includes natural persons, corporations, limited liability companies,  limited partnerships, registered limited liability partnerships, general partnerships, joint stock  companies, joint ventures, associations, companies, trusts, banks, trust companies, land trusts,  business trusts or other organizations, whether or not legal entities, and governments and  agencies and political subdivisions of them.  “Plan” means an employee pension benefit plan of a type described in Section 3(2) of  ERISA and that is subject to Title IV of ERISA in respect of which the Seller is an “employer”  as defined in Section 3(5) of ERISA.  “Plan Party” is defined in Section 32.1.  “Price Differential” means, with respect to any Transaction hereunder for any day, the  aggregate amount obtained by multiplication of the Pricing Rate for each day by the Purchase  Price for such Transaction, based on a three hundred sixty (360) day per year basis for the actual  number of days during the period commencing on (and including) the Purchase Date for such  Transaction and ending on (but excluding) the Determination Date, reduced by any such amount  previously paid by the Seller to the Agent (for Pro Rata distribution to the Buyers) with respect  to such Transaction.  “Pricing Rate” means the Daily Adjusting LIBOR Rate (or, if applicable under Section  6.7, the Prime Referenced Rate), or the Default Pricing Rate, as determined under this  Agreement.  “Prime Rate” means the per annum interest rate established by the Agent as its prime rate  for its borrowers, as such rate may vary from time to time, which rate is not necessarily the  lowest rate on loans made by the Agent at any such time.  “Prime Referenced Rate” means the per annum rate of interest which is equal to the  Applicable Margin plus the greater of (i) the Prime Rate, or (ii) the Federal Funds Effective Rate  plus one percent (1%).  





 






  25  Bodman_17772003_9  “Principal Balance” means, for any day, the advanced and unpaid principal balance of a  Purchased Loan on that day.    “Privacy Requirements” means (a) Title V of the Gramm-Leach-Bliley Act, 15 U.S.C.  6801 et seq., (b) federal regulations implementing such act codified at 12 CFR Parts 40, 216, 332  and 573, (c) the Interagency Guidelines Establishing Standards For Safeguarding Customer  Information and codified at 12 CFR Parts 30, 208, 211, 225, 263, 308, 364, 568 and 570 and (d)  any other applicable federal, state and local laws, rules, regulations and orders relating to the  privacy and security of Seller’s Customer Information, as such statutes, regulations, guidelines,  laws, rules and orders may be amended from time to time.  “Pro Rata” means in accordance with the Buyers’ respective ownership interests in the  Purchased Loans.  On any day, the Buyers will each own an undivided fractional ownership  interest in and to each Purchased Loan:  (a) if the Commitments of the Buyers are outstanding on that day, (i) whose  numerator is that Buyer’s Committed Sum for that day and (ii) whose denominator is the  Maximum Aggregate Commitment for that day; or  (b) if the Commitments have expired or have been terminated and have not  been reinstated, (i) whose numerator is the aggregate sum of the portions of the Purchase  Prices paid by that Buyer in all Regular Transactions outstanding on that day plus such  Buyer’s Funding Share of the Purchase Prices paid by the Swing Line Buyer in all Swing  Line Transactions outstanding on that date and (ii) whose denominator is the aggregate  sum of the Purchase Prices paid by all Buyers in all such Transactions (including all  Swing Line Transactions) outstanding on the day;  subject to adjustment pursuant to Section 3.10.  “Products” means any one or more of the following types of services or facilities  extended to the Seller by the Agent or any Buyer or any Affiliate of any Buyer: (i) credit cards,  (ii) credit card processing services, (iii) debit cards, (iv) purchase cards, (v) Automated Clearing  House (ACH) transactions, (vi) cash management, including controlled disbursement services,  and (vii) establishing and maintaining deposit accounts.  “Property” means any interest of a Person in any kind of property, whether real, personal  or mixed, tangible or intangible, including the Mortgage Loans.  “Purchase Date” means, for any Transaction, the date on which the Seller is to convey  the subject Purchased Loans to the Buyers. In the case of any Aged Mortgage Loan, the Purchase  Date shall be the Purchase Date for the underlying Conforming Mortgage Loan or FHA Low  FICO Score Mortgage Loan prior to such Mortgage Loan’s inclusion in the Aged Mortgage Loan  Sublimit.   “Purchase Price” means (a) on the relevant Purchase Date, the price at which the  Purchased Loans in a Transaction are sold by the Seller to the Buyers or to the Swing Line  Buyer, such price being the Purchased Loans’ initial Purchase Value, and (b) thereafter, such  Purchased Loans’ Purchase Value decreased by the amount of any cash transferred in respect of  





 






  26  Bodman_17772003_9  principal of such Purchased Loans (as determined by the Agent) by the Seller to the Agent  pursuant to Sections 3.3 and 6.1 (absent manifest error, the Agent’s determination of for which  Transaction(s) cash was transferred by the Seller to the Agent shall be conclusive and binding).  “Purchase Price Decrease” means a reduction in the outstanding Purchase Price for  Purchased Loans without a termination of a Transaction or portion thereof as described in  Section 3.3(d).   “Purchase Value” means the lesser of (a) (i) the Buyers’ Margin Percentage for a  Purchased Loan multiplied by (ii) the least of:  (A) the face principal amount of the related Mortgage Note;   (B) the price to be paid for such Purchased Loan under an Investor  Commitment or the weighted average price under unused Investor Commitments into  which such Purchased Loan is eligible for delivery; and  (C) the Seller’s origination or acquisition price for such Purchased Loan.  and, (b) at the discretion of the Agent, the Buyer’s Margin Percentage of the Market Value of  such Purchased Loan; provided, that (i) the Purchase Value for Purchased Loans in excess of the  sublimits set forth in Section 4.2 shall be zero and, (ii) except for Discretionary Loans, the  Purchase Value for any Purchased Loan that is not an Eligible Loan shall be zero.  “Purchased Loans” means the Eligible Loans sold by the Seller to the Buyers or the  Swing Line Buyer in Transactions, and any Eligible Loans substituted therefor in accordance  with Section 11.  The term “Purchased Loans” with respect to any Transaction at any time shall  also include Additional Purchased Loans delivered pursuant to Section 3.8 and Section 6.1.  “Purchased Loan Activity Summary Report” is defined in the Custody Agreement.  “Purchased Loans Support” means all property (real or personal) assigned, hypothecated  or securing any Purchased Loans, or otherwise pertaining to any Purchased Loans, including  without limitation:  (1) all Loan Papers, whether now owned or hereafter acquired, related to, and  all private mortgage insurance on, any Purchased Loans, and all renewals, extensions,  modifications and replacements of any of them;  (2) all rights, liens, security interests, guarantees, insurance agreements and  assignments accruing or to accrue to the benefit of the Seller in respect of any Purchased  Loan;  (3) all of the Seller’s rights (including but not limited to rights to payment),  powers, privileges, benefits and remedies under each and every paper now or hereafter  securing, insuring, guaranteeing or otherwise relating to or delivered in connection with  any Purchased Loan, including all Loan Papers and Loan Records;  





 






  27  Bodman_17772003_9  (4) all of the Seller’s rights, to the extent assignable, in, to and under all  Investor Commitments and any and all other commitments issued by (i) Ginnie Mae,  Fannie Mae, Freddie Mac, another mortgage company or any other investor or any Buyer  or securities issuer to guarantee, purchase or invest in any of the Purchased Loans or any  MBS based on or backed by any of them or (ii) any broker or investor to purchase any  MBS, whether evidenced by book entry or certificate, representing or secured by any  interest in any of the Purchased Loans, together with the proceeds arising from or  pursuant to any and all such commitments; and all rights to deliver Purchased Loans to  investors or purchasers, and all rights to proceeds resulting from the disposition of such  Purchased Loans;  (5) all rights under every Hazard Insurance Policy relating to real estate  securing a Purchased Loan for the benefit of the creditor of such Purchased Loan, the  proceeds of all errors and omissions insurance policies and all rights under any blanket  hazard insurance policies to the extent they relate to any Purchased Loan or its security  and all hazard insurance or condemnation proceeds paid or payable with respect to any of  the Purchased Loans and/or any of the property securing payment of any of the Purchased  Loans or covered by any related instrument;  (6) all present and future claims and rights of the Seller to have, demand,  receive, recover, obtain and retain payments from, and all proceeds of any nature paid or  payable by, any governmental, quasi-governmental or private mortgage guarantor or  insurer (including VA, FHA or any other Person) with respect to any of the Purchased  Loans;   (7) all tax, insurance, maintenance fee and other escrow deposits or payments  made by the Customers under such Purchased Loans (the Buyers’ Agent and the Buyers  acknowledge that the Seller’s rights in such deposits are limited to the rights of an escrow  agent and such other rights, if any, in and to such deposits as are accorded by the  Purchased Loans and related papers); and  (8) all monies, accounts, deposit accounts, payment intangibles and general  intangibles, however designated or maintained, constituting or representing so-called  “completion escrow” funds or “holdbacks,” and being Purchased Loans’ proceeds  recorded as disbursed but that have not been paid over to the seller of the subject  Mortgaged Premises (the purchase of which is financed by such Purchased Loan), but  that are instead being held by the Seller or by a third party escrow agent pending  completion of specified improvements or landscaping requirements for such Mortgaged  Premises.  “Qualified Subordinated Debt” means unsecured Debt of the Seller to any Person as to  which (a) the papers evidencing, securing, governing or otherwise related to such Debt are  reasonably satisfactory in form and substance to Agent and Required Buyers and (b) that is  subordinated to the Obligations pursuant to a currently effective and irrevocable Subordination  Agreement, including standstill and blockage provisions, reasonably approved by the Agent and  Required Buyers.  





 






  28  Bodman_17772003_9  “Qualifying Balances” means, with respect to any Buyer, for any day, the lesser of (a) the  amount of such Buyer’s outstanding Purchase Price on Open Transactions on such day, and (b)  the sum of the collected balances in all identified non-interest bearing accounts of the Seller  and/or any of its Affiliates on behalf of the Seller maintained with such Buyer less (i) amounts  necessary to satisfy reserve and deposit requirements and (ii) amounts required to compensate  such Buyer for services rendered in accordance with such Buyer’s system of charges for services  to similar accounts.   “Recourse Servicing” means Servicing Rights under a Servicing Agreement with respect  to which the Servicer is obligated to repurchase or indemnify the holder of the related Mortgage  Loans in respect of defaults on such Mortgage Loans at any time during the term of such  Mortgage Loans.  “Register” is defined in Section 22.17(d).  “Regular Transaction” means a Transaction funded by all Buyers, rather than by  Comerica Bank under the Swing Line.  “Regulation T” means Regulation T promulgated by the Board of Governors of the  Federal Reserve System, 12 C.F.R. Part 220, or any other regulation when promulgated to  replace the prior Regulation T and having substantially the same function.  “Regulation U” means Regulation U promulgated by the Board of Governors of the  Federal Reserve System, 12 C.F.R. Part 221, or any other regulation when promulgated to  replace the prior Regulation U and having substantially the same function.  “Regulation X” means Regulation X promulgated by the Board of Governors of the  Federal Reserve System, 12 C.F.R. Part 224, or any other regulation when promulgated to  replace the prior Regulation X and having substantially the same function.  “REO” means real property improved by a one-through four-family residence owned  following judicial or nonjudicial foreclosure (or conveyance by deed in lieu of foreclosure) of a  Mortgage securing a Single-family Loan.  “Repurchase Date” means the date on which the Seller is to repurchase Purchased Loans  from the Buyers, being the earlier of (a) the date when the Approved Investor is to purchase such  Purchased Loans and (b) any date determined by application of the provisions of Section 3.3 or  18.  “Repurchase Documents” means and includes this Agreement, the Custody Agreement,  any Subordination Agreement(s), any financing statements or other papers now or hereafter  authorized, executed or issued pursuant to this Agreement, the Approved Investor Agreements,  the MBS Custodial Agreement, and all other documents, instruments and agreements at any time  evidencing, governing, securing or otherwise relating to any of the Obligations, and any renewal,  extension, rearrangement, increase, supplement, modification or restatement of any of them.  “Repurchase Price” means the price at which Purchased Loans are to be resold by the  Buyers to the Seller upon termination of a Transaction (including Transactions terminable upon  





 






  29  Bodman_17772003_9  demand), which will be determined in each case as the sum of (a) the Purchase Price and (b) the  Price Differential as of the date of such determination.  “Repurchase Settlement Account” means the Seller’s non-interest bearing demand deposit  account to be maintained with Comerica Bank and described on Schedule 1.2, to be used for (a)  Repurchase Price payments on Purchased Loans as provided in Section 3.4; (b) payments  required to be made by Seller to Agent under Section 3.5 or under Section 4.7(b) of the Custody  Agreement or otherwise required to be paid to the Repurchase Settlement Account under Section  24.4; (c) payments from Approved Investors for Purchased Loans for the Seller’s account as  provided in Section 4.7(a)(i) of the Custody Agreement; (d) payments from the Approved MBS  Custodian of MBS Sale Proceeds as provided in the MBS Custodial Agreement and Section  4.7(a)(ii) of the Custody Agreement; (e) payments from the Approved MBS Custodian of  proceeds from sales of MBS and of other funds in the Approved MBS Custodian Account  regardless of their source; and (f) disbursements or other disposition of funds in the Repurchase  Settlement Account as provided in Section 3.7. The Repurchase Settlement Account shall be a  blocked account from which the Seller shall have no right to directly withdraw funds, but instead  such funds may be withdrawn or paid out only against the order of an authorized officer of the  Agent (acting with the requisite consent of the Buyers as provided herein).  “Repurchase Settlement Account Disbursement Request” means a certification and  request of a Responsible Officer of Seller in the form of Exhibit G.  “Request/Confirmation” means letters substantially in the form of Exhibit A, delivered  pursuant to Section 3.1 and their related Mortgage Transmission Files.  “Required Buyers” means, for any day, Buyers (a) whose Commitments comprise at least  sixty-six and two-thirds percent (66-2/3%) of the Maximum Aggregate Commitment under this  Agreement, or (b) who own at least sixty-six and two-thirds percent (66-2/3%) of the Purchased  Loans owned by the Buyers on that day if on or before that day the Commitments have expired  or have been terminated and have not been reinstated; provided however, that so long as there  are fewer than three Buyers, considering any Buyer and its Buyer Affiliates as a single Buyer,  “Required Buyers” means all Buyers.  The Commitments of, and portion of the Obligations  attributable to, any Defaulting Buyer shall be excluded for purposes of making a determination  of “Required Buyers”; provided that the amount of any participation in any Swing Line  Transaction that a Defaulting Buyer has failed to fund that has not been reallocated to and funded  by another Buyer shall be deemed to be held by the Buyer that is the Swing Line Buyer in  making a determination under this definition.  “Responsible Officer” means a duly authorized member, manager or officer of Seller  acceptable to Agent.  “Second Mortgage Loan” means a second Lien Mortgage Loan, including a home equity  line of credit, which meets the following requirements: (a) such second Lien Mortgage is subject  only to a first Lien Mortgage and other Permitted Encumbrances, (b) such second Lien Mortgage  was originated by Seller at the same time as a first Lien Mortgage by Seller on the same property  and with the same obligor, and such first Lien Mortgage is a Purchased Loan, and (c) such  second Lien Mortgage Loan is covered by an Investor Commitment, and such Investor  





 






  30  Bodman_17772003_9  Commitment covers both such second Lien Mortgage Loan and the first Lien Mortgage Loan by  Seller described in paragraph (b) above.  “Second Mortgage Loan Sublimit” is defined in the table set forth in Section 4.2(c).  “Seller’s Customer” means any natural person who has applied to the Seller for a  financial product or service, has obtained any financial product or service from the Seller or has  a Mortgage Loan that is serviced or subserviced by the Seller.  “Seller’s Customer Information” means any information or records in any form (written,  electronic or otherwise) containing a Seller’s Customer’s personal information or identity,  including such Seller’s Customer’s name, address, telephone number, loan number, loan  payment history, delinquency status, insurance carrier or payment information, tax amount or  payment information and the fact that such Seller’s Customer has a relationship with the Seller.  “Serviced Loans” means all Mortgage Loans serviced or required to be serviced by the  Seller under any Servicing Agreement, irrespective of whether the actual servicing is done by  another Person (a subservicer) retained by the Seller for that purpose.  “Servicer” means, initially the Seller, and upon termination of the Seller’s right to service  the Purchased Loans pursuant to the provisions of Section 19.7, the Backup Servicer or such  other Person (including the Agent) as the Agent may appoint as Servicer.  “Servicing Agreement” means, with respect to any Person, the arrangement, whether or  not in writing, pursuant to which that Person acts as servicer of Mortgage Loans, whether owned  by that Person or by others.  “Servicing Functions” means, with respect to the servicing of Mortgage Loans, the  collection of payments for the reduction of principal and application of interest, collection of  amounts held or to be held in escrow for payment of taxes, insurance and other escrow items and  payment of such taxes and insurance from amounts so collected, foreclosure services, and all  other actions required to conform with Accepted Servicing Practices.  “Servicing Records” has the meaning given the term in Section 19.5 hereof.  “Servicing Rights” means the rights and obligations to administer and service a Mortgage  Loan, including, without limitation, the rights and obligations to: ensure the taxes and insurance  are paid, provide foreclosure services, provide full escrow administration and perform any other  obligations required by any owner of a Mortgage Loan, collect the payments for the reduction of  principal and application of interest, and manage and remit collected payments.  “Single-family Loan” means a Mortgage Loan that is secured by a Mortgage covering  real property improved by a one-, two-, three- or four-family residence.  “SIPA” means the Securities Investors Protection Act of 1970, 15 U.S.C. §78a et. seq., as  amended.  





 






  31  Bodman_17772003_9  “Solvent” means, for any Person, that (a) the fair market value of its assets exceeds its  liabilities, (b) it has sufficient cash flow to enable it to pay its debts as they mature, and (c) it  does not have unreasonably small capital to conduct its business.  “Statement Date” means December 31, 2020.  “Statement Date Financial Statements” is defined in Section 15.2(f).  “Sublimit” means one or more (as the context requires) of the sublimits described in  Section 4.2.  “Subordination Agreement” means a written subordination agreement in form and  substance satisfactory to and approved by the Agent that subordinates (a) all present and future  debts and obligations owing by the Seller to the Person signing such subordination agreement to  (b) the Obligations, in both right of payment and lien priority, including standstill and blockage  provisions approved by the Agent and Required Buyers.  “Subservicer” means any entity permitted by the Agent to act as a subservicer of the  Servicer (which permission shall not be unreasonably withheld) who shall perform Servicing  Functions under a Subservicer Instruction Letter.  “Subservicer Instruction Letter” means an instruction letter to a Subservicer in form and  substance reasonably agreed to by the Seller and the Agent.  “Subservicer Field” means, with respect to an eNote, the field entitled, “Subservicer” in  the MERS eRegistry.  “Subsidiary” means any corporation, association or other business entity (including a  trust) in which any Person (directly or through one or more other Subsidiaries or other types of  intermediaries), owns or controls:  (a) more than fifty percent (50%) of the total voting power or shares of stock  entitled to vote in the election of its directors, managers or trustees; or  (b) more than ninety percent (90%) of the total assets and more than ninety  percent (90%) of the total equity through the ownership of capital stock (which may be  non-voting) or a similar device or indicia of equity ownership.  “Super Jumbo Mortgage Loan” means a Mortgage Loan that (a) would be a Conforming  Mortgage Loan except that the original principal amount is more than the maximum Agency loan  amount, more than Two Million Dollars ($2,000,000) and less than Three Million Dollars  ($3,000,000), (b) the obligor of such Mortgage Loan has a FICO Score of not less than 680, and  (c) is not a Jumbo Mortgage Loan.  “Super Jumbo Loan Sublimit” is defined in Section 4.2(c).   “Supplemental Papers” means the Loan Papers for a particular Loan other than its Basic  Papers.  





 






  32  Bodman_17772003_9  “Swing Line” means the short term revolving discretionary Mortgage Loans purchase  facility provided for in Section 2.4 under which Comerica Bank may, in its sole discretion, fund  (as “Swing Line Purchases”) purchases of Eligible Loans to bridge the Seller’s daily  Transactions.  “Swing Line Buyer” means Comerica Bank in its role as Buyer for Swing Line  Transactions.  “Swing Line Limit” means Seventy Five Million and 00/100 Dollars ($75,000,000).  “Swing Line Refunding Due Date” for each Transaction funded under the Swing Line  means the Business Day on which the Swing Line Buyer shall elect to have such Swing Line  Transaction funded by the Buyers pursuant to Section 2.5, or on the next Business Day thereafter  if the Buyers are notified of such request after 3:30 p.m. (Detroit, Michigan time) on such  Business Day, provided that the Swing Line Refunding Due Date shall occur not less frequently  than once per week.  “Swing Line Transaction” means a Transaction funded by the Swing Line Buyer under  the Swing Line.  “Taxes” is defined in Section 7.1.  “Termination Date” means (a) the earlier to occur of July 28, 2022 or (b) the date when  the Buyer’s Commitments are terminated pursuant to this Agreement, by order of any  Governmental Authority or by operation of law.  “Total Liabilities” means all liabilities of the Seller and its Subsidiaries, including  nonrecourse debt and also including all contingent liabilities and obligations (including Recourse  Servicing, recourse sale and other recourse obligations, and guaranty, indemnity and mortgage  loan repurchase obligations), in each case as are reflected on the Seller’s Consolidated balance  sheet as liabilities in accordance with GAAP, but excluding Qualified Subordinated Debt.  “Transaction” is defined in the Recitals.  “Transfer of Control” means, with respect to an eNote, a MERS eRegistry transfer  transaction used to request a change to the current Controller of such eNote.  “Transfer of Control and Location” means, with respect to an eNote, a MERS eRegistry  transfer transaction used to request a change to the current Controller and Location of such  eNote.   “Transfer of Location” means, with respect to an eNote, a MERS eRegistry transfer  transaction used to request a change to the current Location of such eNote.  “Transferable Record” shall mean a “transferable record” as defined in Section 16 of  UETA or Section 201 of E-SIGN, as applicable that (i) would be a “note” under Article 3 of the  UCC if the transferable record were in writing, (ii) the issuer of the electronic record has  expressly agreed is a “transferable record”, (iii) bears an “electronic signature” as such term is  





 






  33  Bodman_17772003_9  given meaning under E-SIGN and UETA, and (iv) for purposes of E-SIGN relates to a loan  secured by real property.  “UCC” means the Uniform Commercial Code or similar laws of the applicable  jurisdiction, as amended from time to time.  “UETA” means the Official Text of the Uniform Electronic Transactions Act as approved  by the National Conference of Commissioners on Uniform State Laws at its Annual Conference  on July 29, 1999, in the form adopted in the state where the applicable mortgaged property is  located, as it may be supplemented, amended or replaced from time to time.  “VA” means the Department of Veterans Affairs and any successor.  “Wet-Ink Mortgage Loan” means a Mortgage Loan which is not an eMortgage Loan.  “Wet Loan” means a Purchased Loan originated and owned by the Seller immediately  prior to being purchased by the Buyers:  (a) that has been closed on or prior to the Business Day on which the  Purchase Price is paid therefor, by a title agency or closing attorney, and that would  qualify as an Eligible Loan except that some or all of its Basic Papers are in transit to, but  have not yet been received by, the Custodian so as to satisfy all requirements to permit  the Seller to sell it pursuant to this Agreement without restriction;  (b) that will fully qualify as an Eligible Loan when the original Basic Papers  have been received by the Custodian;  (c) as to which such full qualification can and will be achieved on or before  the Wet Loan Period for such Purchased Loan; and  (d) for which the Seller has delivered to the Custodian a Mortgage Loan  Transmission File on or before the Purchase Date, submission of which to the Custodian  shall constitute the Seller’s certification to the Custodian, the Buyers and the Agent that a  complete File as to such Purchased Loan, including the Basic Papers, exists and that such  File is in the possession of either the title agent or closing attorney that closed such  Purchased Loan, the Seller or that such File has been or will be shipped to the Custodian.  Each Wet Loan that satisfies the foregoing requirements shall be an Eligible Loan subject to the  condition subsequent of delivery of its Mortgage Note, Mortgage and all other Basic Papers, to  the Custodian on or before the expiration of the Wet Loan Period for such Purchased Loan.  Each  Wet Loan sold by the Seller shall be irrevocably deemed purchased by the Buyers and shall  automatically become a Purchased Loan effective on the date of the related Transaction, and the  Seller shall take all steps necessary or appropriate to cause the sale to the Buyers and delivery to  the Custodian of such Wet Loan and its Basic Papers to be completed, perfected and continued in  all respects, including causing the original promissory note evidencing such Purchased Loan to  be delivered to the Custodian within the Wet Loan Period for such Purchased Loan, and, if  requested by the Agent, to give written notice to any title agent, closing attorney or other Person  in possession or having Control of the Basic Papers for such Purchased Loan of the Buyers’  





 






  34  Bodman_17772003_9  purchase of such Purchased Loan.  Upon the Custodian’s receipt and review of the Basic Papers  relative to a Wet Loan such Purchased Loan shall no longer be considered a Wet Loan.  “Wet Loan Period” means, for any applicable Purchased Loan (a) in the case of a Wet- Ink Mortgage Loan, seven (7) Business Days from and after the Purchase Date for such  Purchased Loan , and (b) in the case of an eMortgage Loan, one (1) Business Day from and after  the Purchase Date for such Purchased Loan.  “Wet Loans Sublimit” is defined in Section 4.2(b).  “Whole Loan” means a Mortgage Loan sold in the form of a whole loan, as opposed to a  Mortgage Loan that has been pooled for the purpose of comprising an MBS or other type of  security.  “Whole Loan Sale Proceeds” means proceeds from the sale of a Purchased Loan sold as a  Whole Loan.  Other Definitional Provisions. Accounting terms not otherwise defined shall have the  meanings given them under GAAP.  (a) Defined terms may be used in the singular or the plural, as the context  requires.  (b) Except where otherwise specified, all times of day used in the Repurchase  Documents are local (U.S. Eastern Time Zone) times in Detroit, Michigan.  (c) Unless the context plainly otherwise requires (e.g., if preceded by the  word “not”), wherever the word “including” or a similar word is used in the Repurchase  Documents, it shall be read as if it were written, “including by way of example but  without in any way limiting the generality of the foregoing concept or description”.  (d) Unless the context plainly otherwise requires, wherever the term “Agent”  is used in this Agreement (excluding Section 22), it shall be read as if it were written “the  Agent (as agent and representative of the Buyers).”  Section 2. The Buyers’ Commitments .  2.1. The Buyers’ Commitments to Purchase.  Subject to the terms and conditions of  this Agreement (including without limitation the terms and conditions set forth in Section 4 and  Section 14) and provided no Default or Event of Default has occurred and is continuing that has  not been waived by the Buyers or the Required Buyers, as applicable (or, if one has occurred and  not been so cured or declared waived, if all of the Buyers, in their sole discretion and with or  without waiving such Default or Event of Default, have elected in writing that Transactions  under this Agreement shall continue nonetheless), the Buyers agree to make revolving purchases  of Eligible Loans on a servicing released basis through but not including the Termination Date,  so long as the Aggregate Outstanding Purchase Price does not exceed the Maximum Aggregate  Commitment and so long as each Buyer’s Committed Sum is not exceeded.  The Buyers’  respective Committed Sums and the Maximum Aggregate Commitment are set forth on  





 






  35  Bodman_17772003_9  Schedule BC in effect at the relevant time, as it may have been amended or restated pursuant to  this Agreement.  Upon the joinder of additional Buyer(s), if any, the parties agree to approve in  writing revised and updated versions of Schedule BC.  The fractions to be applied to determine  the respective Funding Shares of the Buyers for any day are their respective Committed Sums  divided by the Maximum Aggregate Commitment for that day.  Each Buyer shall be obligated to  fund only that Buyer’s own Funding Share of any Transaction requested, and no Buyer shall be  obligated to the Seller or any other Buyer to fund a greater share of any Transaction.  No Buyer  shall be excused from funding its applicable Funding Share of any Transaction merely because  any other Buyer has failed or refused to fund its relevant Funding Share of that or any other  Transaction.  If any Buyer fails to fund its Funding Share of any Transaction (a “Nonfunding  Buyer”), the Agent (in its sole and absolute discretion) may choose to fund the amount that such  Nonfunding Buyer failed or refused to fund, or the Agent as a Buyer and the other Buyers who  are willing to do so may (in each of their sole and absolute discretion) do so in the proportion  that the Committed Sum of each bears to the total Committed Sums of all Buyers that have  funded (or are funding) their own Funding Shares of that Transaction and that are willing to fund  part of the Funding Share of such Nonfunding Buyer.  Should the Agent and/or any other  Buyer(s) fund any or all of the Nonfunding Buyer’s Funding Share of any Transaction, then the  Nonfunding Buyer shall have the obligation to deliver such amount to the Agent (for its own  account and/or for distribution to the Buyer(s) who funded it, as the case may be) in immediately  available funds on the next Business Day.  Regardless of whether the other Buyers fund the  Funding Share of the Nonfunding Buyer, the respective ownership interests of the Buyers in the  Transaction shall be adjusted as provided in Section 3.10.  The obligations of the Buyers  hereunder are several and not joint.  2.2. Expiration or Termination of the Commitments.  Unless extended in writing or  terminated earlier in accordance with this Agreement, the Buyers’ Commitments (including  Comerica Bank’s Swing Line Commitment) shall automatically expire at the close of business  on the Termination Date, without any requirement for notice or any other action by the Agent,  any of the Buyers or any other Person.  2.3. Disbursement of Purchase Prices  Subject to the terms and conditions of this  Agreement, Agent shall deposit the Purchase Prices for the Purchased Loans funded with a  Transaction under this Agreement into the Funding Account. Seller is authorized to disburse  funds from the Funding Account to fund Transactions and for Seller’s general working capital  purposes so long as, in either case, no Event of Default exists or will result from such  disbursement. After the occurrence and during the continuance of an Event of Default, Seller  shall have no further access to the Funding Account, and the Funding Account shall be subject to  setoff by the Agent for Pro Rata distribution to the Buyers.  2.4. Swing Line Facility.  In addition to its Commitment under Section 2.1, the  Swing Line Buyer may, in its discretion, fund revolving Swing Line Transactions for aggregate  Purchase Prices which do not on any day exceed the Swing Line Limit for the purpose of  initially funding requested Transactions.  





 






  36  Bodman_17772003_9  2.5. Swing Line Transactions.  (a) The Seller shall have the right to request a Swing Line Transaction and  Swing Line Buyer may, in its discretion, agree to fund such Swing Line Transaction:  (i) only if such Swing Line Transaction fully qualifies in all respects  for funding as Regular Transaction under this Agreement;  (ii) provided that no Default has occurred that has not been cured  before it has become an Event of Default, and no Event of Default has occurred  and is continuing that has not been waived by the Buyers or the Required Buyers,  as applicable and all conditions precedent in Section 14.1 (with respect to the  initial purchase hereunder) and Section 14.2 have been satisfied;  (iii) so long as (A) the Swing Line Limit is not exceeded and (B) such  Swing Line Transaction will not cause the sum of Comerica Bank’s Funding  Share of the Swing Line Transactions plus Comerica Bank’s Funding Share of all  Open Transactions to exceed Comerica Bank’s Commitment;  (iv) so long as, after giving effect to the proposed Swing Line  Transaction, the Aggregate Outstanding Purchase Price would not exceed the  Maximum Aggregate Commitment;  (v) provided that a Request/Confirmation has been received by the  Agent and the Swing Line Buyer by no later than 3:30 p.m. (Detroit, Michigan  time) on the Business Day such Transaction is to be funded;   (vi) provided that the Agent has received a satisfactory Purchased Loan  Activity Summary Report and, if requested by Agent, Eligible Loans Report, from  the Custodian on such date; and  (vii) provided that the Seller is not aware of any reason why the  requested Transaction cannot or will not be fully funded by the Buyers on the first  Swing Line Refunding Due Date following the Business Day on which the Swing  Line Transaction is to be funded.  (b) All Swing Line Transactions shall have a Price Differential from the date  funded until the date repaid and the Repurchase Price therefor shall be due and payable to  Comerica Bank at the same rate(s) as would be applicable if such Swing Line  Transactions had been funded as Regular Transactions by all Buyers, instead of having  been funded by the Swing Line Buyer alone as Swing Line Transactions.  (c) On each Swing Line Refunding Due Date, each Swing Line Transaction  shall terminate and the Seller shall repurchase all Purchased Loans subject to such Swing  Line Transaction to the extent such Transaction is not converted to a Regular Transaction  pursuant to this Section 2.5.   





 






  37  Bodman_17772003_9  (d) The Swing Line Buyer may at any time in its sole discretion with respect  to any outstanding Swing Line Transaction, require each Buyer (including the Swing  Line Buyer) to fund such Swing Line Transaction, by delivering notice to each Buyer.   Unless an Event of Default under Section 18.1(b) shall have occurred and be continuing  on such Swing Line Refunding Due Date (in which event the procedures under clause (e)  shall apply), no later than 4:00 p.m. (Detroit, Michigan time) on such Swing Line  Refunding Due Date, each Buyer shall transfer its Funding Share in immediately  available funds to Agent, at the office of Agent located at 411 W. Lafayette Blvd.  Detroit, MI  48226, which shall be paid by Agent to the Swing Line Buyer for application  against the Swing Line Transaction, whereupon the Swing Line Transaction shall be  deemed a Regular Transaction.  (e) If, on any Swing Line Refunding Due Date, an Event of Default under  Section 18.1(b) shall have occurred and be continuing, each Buyer shall, no later than  4:00 p.m. (Detroit, Michigan time) on such Swing Line Refunding Due Date, purchase a  participation in the Swing Line Transaction by immediately transferring to the Agent, for  the benefit of the Swing Line Buyer, in immediately available funds, an amount equal to  its Funding Share of the Purchase Price of such Swing Line Transaction, and upon its  receipt thereof, the Agent shall deliver to such Buyer a certificate evidencing such  participation.  (f) Unless a Buyer shall have notified the Swing Line Buyer, prior to any  Swing Line Transaction, that any applicable condition precedent set forth in Sections  14.1 or 14.2 had not then been satisfied, such Buyer’s obligation to convert the Swing  Line Transaction to a Regular Transaction pursuant to clause (d) of this Section 2.5 or to  purchase a participation in respect of such Swing Line Transaction pursuant to clause (e)  of this Section 2.5 shall be unconditional, continuing, irrevocable and absolute and shall  not be affected by any circumstances, including, without limitation, (i) any set-off,  counterclaim, recoupment, defense or other right which such Buyer may have against the  Agent, the Swing Line Buyer or any other Person, (ii) the occurrence or continuance of a  Default or Event of Default, (iii) any adverse change in the condition (financial or  otherwise) of the Seller, (iv) the expiration, cancellation or termination, with or without  cause of some or all of such Buyers’ Commitments or if such Commitment has been  waived, released or excused for any reason whatsoever or (v) any other circumstances,  happening or event whatsoever.  In the event that any Buyer fails to make payment to the  Agent of any amount due under this Section 2.5, the Agent shall be entitled to receive,  retain and apply against such obligation the Repurchase Prices (including Price  Differential) otherwise payable to such Buyer hereunder until the Agent receives such  payment from such Buyer or such obligation is otherwise fully satisfied.  In addition to  the foregoing, if for any reason any Buyer fails to make payment to the Agent of any  amount due under this Section 2.5, such Buyer shall be deemed, at the option of the  Agent, to have unconditionally and irrevocably purchased from the Swing Line Buyer,  without recourse or warranty, an undivided interest and participation in the applicable  Swing Line Transaction in the amount of such Buyer’s Funding Share of that  Transaction, and such interest and participation may be recovered from such Buyer  together with interest thereon at the Federal Funds Rate for each day during the period  commencing on the date of demand and ending on the date such amount is received.  On  





 






  38  Bodman_17772003_9  the Termination Date, the Seller shall repurchase all Purchased Loans then subject to a  Swing Line Transaction.  (g) The Agent shall disburse to the Swing Line Buyer an amount equal to the  sum of the Funding Shares funded by all of the other Buyers in respect of the refunding  of any Swing Line Transaction; provided that if a Buyer other than the Swing Line Buyer  advises the Agent by telephone and confirms the advice by fax that such Buyer has  placed all of its Funding Share on the federal funds wire to the Agent, the Agent shall  continue to keep the Swing Line Transaction outstanding to the extent of that Buyer’s  Funding Share so wired until such Buyer’s Funding Share is received by Agent, and the  Agent shall then repay the Swing Line Buyer that still-outstanding portion of the Swing  Line Transaction from such funds wired to and received by the Agent, and the Price  Differential accrued at the Pricing Rate(s) applicable to the Transaction on that Funding  Share for the period from (and including) the relevant Swing Line Refunding Due Date to  (but excluding) the date such Buyer’s Funding Share is received by the Agent shall  belong to the Swing Line Buyer.  If any Buyer fails to  fund its Funding Share to fund a  Swing Line Transaction in accordance with clause (d) of this Section 2.5, or fails to fund  its Funding Share to purchase a participation in a Swing Line Transaction in accordance  with clause (e) of this Section 2.5, then that Buyer shall also be obligated to pay to the  Swing Line Buyer interest on the Funding Share so due from such Buyer to the Swing  Line Buyer at the Federal Funds Rate from (and including) such Swing Line Refunding  Due Date to (but excluding) the date of payment of such required amount.  (h) All accrued Price Differential on Swing Line Transactions shall be due  and payable by the Seller to the Agent (for distribution to the Swing Line Buyer) on the  Price Differential payment due date (determined under Section 5) next following the date  of the Swing Line Transaction.  All Price Differential accrued on Swing Line  Transactions through the applicable Swing Line Refunding Due Date shall be due and  payable by the Seller to the Agent (for distribution to the Swing Line Buyer) no later than  two (2) Business Days after the applicable Swing Line Refunding Due Date, but in no  than event later the Termination Date.  2.6. Optional Termination, Reduction and Increase of Buyers’ Commitments.  (a) The Seller may, at any time, without premium or penalty, upon not less  than five (5) Business Days prior written notice to the Agent, terminate the Maximum  Aggregate Commitment.  Upon termination in full of the Buyers’ Commitments pursuant  to this Section 2.6, the Seller shall pay to the Agent for the ratable benefit of the Buyers  the full amount of all outstanding Obligations under the Repurchase Documents.  (b) If the Seller shall request in writing to the Agent a temporary increase in  the Maximum Aggregate Commitment, the Agent, at its discretion, shall endeavor to  obtain increased Committed Sums from existing Buyers, new Commitments from  prospective new Buyers or such combination thereof as the Agent shall elect, to achieve  such requested increase; provided that (i) after giving effect to such increases, the  Maximum Aggregate Commitment shall not exceed $700,000,000, (ii) no Buyer shall  have an obligation to increase its Committed Sum, (iii) such written request by the Seller  





 






  39  Bodman_17772003_9  is delivered to the Agent at least thirty (30) days (or such shorter period of time as agreed  to by Agent) before the requested effective date of the increase, (iv) no Default and no  Event of Default has occurred and is continuing and (v) such increase shall only be in  effect from the date of such increase until the first date thereafter that the Maximum  Aggregate Commitment  increases or decreases in accordance with Schedule BC (each, a  “Temporary Increase Period”).  Neither the Agent nor any Buyer shall be liable to the  Seller or to any other Person in the event that the Agent determines not to endeavor to  obtain, or endeavors to obtain but fails to obtain, increased Committed Sums from  existing Buyers, new Commitments from prospective new Buyers, or any combination  thereof. In connection with any increase in the Maximum Aggregate Commitment under  this paragraph, Agent may require that this Agreement be amended to effectuate such  increase.  (c) If an increase in the Maximum Aggregate Commitment is achieved  pursuant to clause (b) above, then (i) the Pro Rata ownership interest in the Purchased  Loans of each Buyer shall, following funding by the new or increasing Buyers and for the  duration of the applicable Temporary Increase Period, be appropriately adjusted  following the funding of new and increasing Buyers and application of such amounts  received to the other Buyers who did not increase their Committed Sums, (ii) each new  Buyer shall execute and deliver to the Agent a joinder to this Agreement in a form  acceptable to the Agent, and if requested by the Agent, an administrative questionnaire in  a form acceptable to the Agent, (iii) Schedule BC shall be updated and the updates  executed and delivered by the Agent to the Seller and each of the Buyers and, effective as  of the date specified on such updates, shall each automatically supersede and replace the  then-existing corresponding schedule for all purposes and (iv) such amendments,  acknowledgments, consents, instruments and other documents shall have been executed  and delivered and/or obtained by Seller and/or the Buyers providing the applicable  increase as required by the Agent, in its discretion.  Section 3. Initiation; Termination.  3.1. Seller Request; Agent Confirmation.  (a) Subject to the terms and conditions of this Agreement (including, without  limitation, the terms and conditions set forth in Section 2.1 and Section 14), the Seller  may request a Regular Transaction and the Buyers shall fund such Regular Transaction,  subject to the following:   (i) Agent and Custodian shall have received a Request/Confirmation  in accordance with Section 3.2 hereof by no later than 1:00 p.m. on the proposed  Purchase Date; and  (ii) Agent shall have received a satisfactory Purchased Loan Activity  Summary Report and, if requested by Agent, an Eligible Loans Report, from the  Custodian on the proposed Purchase Date;  





 






  40  Bodman_17772003_9  Provided that if such items are received by the applicable parties on any Business  Day, but are not received by the times specified above, the Transaction may be funded on  the same day, at the Swing Line Buyer’s option, as a Swing Line Transaction (subject to  the conditions set forth in Section 2.5 above), or on the next Business Day as a Regular  Transaction, subject in each case to the other terms and conditions of this Agreement.  (b) Upon receiving any Request/Confirmation for any Regular Transaction  under Section 3.1 hereof, Agent shall promptly notify each Buyer by wire, telex or  telephone (confirmed by wire, telecopy or telex). Unless such Buyer’s commitment to  make purchases hereunder shall have been suspended or terminated in accordance with  this Agreement, each such Buyer shall make available the amount of its respective  Funding Share of each requested Transaction in immediately available funds to the  Agent, at the office of the Agent specified in Section 2.5(d), no later than 4:00 p.m. on  the date of such Transaction. Any Buyer that fails to fund its Funding Share of any  Transaction shall be deemed to be a Nonfunding Buyer and a Defaulting Buyer under the  terms of this Agreement.  3.2. Request/Confirmation.  Each Request/Confirmation shall identify the Agent  and the Seller and set forth:     (a) the Purchase Date applicable to the relevant Transaction;  (b) for each of the Eligible Loans to be sold, the Purchase Price; and  (c) such other information set forth on the form Request/Confirmation  attached as Exhibit A hereto.    Each Request/Confirmation shall be binding on the parties, unless written notice of objection is  received by the Agent prior to the funding of any related Transaction by any Buyer.  In the event  of any conflict between the terms of a Request/Confirmation and this Agreement, this Agreement  shall prevail.  3.3. Transaction Termination; Purchase Price Decrease.  (a) Automatic Termination.  Each Transaction, or applicable portion thereof,  will automatically terminate on the earlier of (i) the date or dates when the subject  Purchased Loans are purchased by Approved Investor(s) and (ii) the Termination Date.   Upon any such automatic termination, the Seller shall repurchase all applicable  Purchased Loans in accordance with Section 3.3(c).  (b) Termination Upon Occurrence of Disqualifier.  If any Disqualifier occurs  in respect of a Purchased Loan, (i) the Buyers shall reconvey to the Seller or its designee  the applicable Purchased Loan, servicing released, and (ii) if and only to the extent of any  Margin Deficit that exists as determined in accordance with Section 6.1, the Seller shall  immediately pay the Repurchase Price with respect to the applicable Purchased Loan (but  only to the extent of the Margin Deficit) in immediately available funds to the account  referred to in Section 3.4.  





 






  41  Bodman_17772003_9  (c) How Terminations will be Effected.  Termination of a Transaction (or the  applicable portion thereof) will be effected by (i) the Buyers’ reconveyance to the Seller  or its designee of applicable Purchased Loans, servicing released, and payment of any  Income in respect thereof received by the Agent and not previously either paid to the  Seller or applied as a credit to the Seller’s Obligations, and (ii) payment of the  Repurchase Price with respect to the applicable Purchased Loans in immediately  available funds to the account referred to in Section 3.4 on the Repurchase Date, so that  the Agent receives the Repurchase Price (for Pro Rata distribution to the Buyers) in  immediately available funds on that same Business Day; provided that the portion of the  Repurchase Price attributable to accrued and unpaid Price Differential for the  Repurchased Loan shall be due on the next Price Differential payment date in accordance  with Section 5.3; provided further that all accrued and unpaid Price Differential shall be  due and payable on the Termination Date. Whenever under the Repurchase Documents  Buyers are required transfer or release Purchased Loans back to Seller or its designee or  to deliver (including delivering physical possession or Control of) any Loan Papers or  any Loan Records to Seller in connection with a transfer of Purchased Loans back to  Seller or its designee, such Loan Papers or Loan Records, as and to the extent applicable,  shall be returned by Custodian to Seller or its designee in accordance with the terms of  the Custody Agreement.  (d) Purchase Price Decrease.  The Seller may effectuate a Purchase Price  Decrease on any Business Day by delivery to the Agent in immediately available funds of  an amount specified by the Seller as a Purchase Price Decrease on that Business Day.  No  Purchased Loans shall be, or be deemed to be, repurchased in connection with a Purchase  Price Decrease.  3.4. Place for Payments of Repurchase Prices.  All Repurchase Price payments  shall be paid to the Repurchase Settlement Account.  3.5. Withdrawals from and Credits to Operating Account.  If the Seller fails for any  reason to repurchase any one or more Purchased Loans on the relevant Repurchase Date, to pay  any Price Differential or fees when due or to satisfy any Margin Call in the manner and by the  time specified in Sections 3.3 and 3.4, the Agent is hereby specifically and irrevocably  authorized to withdraw funds from the Operating Account or any other account of the Seller in  an amount equal to the sum of the Repurchase Prices of all Purchased Loans that are Past Due,  plus accrued, unpaid Price Differential or fees, plus Margin Deficit (if applicable), on that day  and cause application of such funds withdrawn to the payment of the Repurchase Prices of such  Purchased Loans, Price Differential or fees, and Margin Deficit (if applicable) in such order and  manner as the Agent may elect and, if funds in the Operating Account or any other account of  the Seller are insufficient to pay the such amounts, the Seller shall pay the amount due hereunder  on demand by wire to the Repurchase Settlement Account.  3.6. [Reserved].  3.7. Disbursements from Repurchase Settlement Account. Seller shall furnish to  Agent by 3:00 p.m. Eastern time on each Business Day, a Repurchase Settlement Account  Disbursement Request which details the amounts and sources of all funds in the Repurchase  





 






  42  Bodman_17772003_9  Settlement Account, and requests disbursement of such funds. With respect to any Repurchase  Settlement Account Disbursement Request furnished by Seller to Agent, if, and only if, (i) no  Default has occurred unless it has been either cured by the Seller or waived in writing by the  Agent (acting with the requisite consent of the Buyers as provided in this Agreement), (ii) no  Event of Default has occurred unless it has been either cured by the Seller or waived in writing  by the Agent (acting with the requisite consent of the Buyers as provided in this Agreement), (iii)  no Margin Deficit exists that would not be eliminated by disbursements in accordance with such  Repurchase Settlement Account Disbursement Request, and (iv) no Default or Event of Default  or Margin Deficit will result from the making of the disbursements requested in such Repurchase  Settlement Account Disbursement Request, then Agent shall disburse the funds in the  Repurchase Settlement Account in accordance with the Repurchase Settlement Account  Disbursement Request. After the occurrence and during the continuance of an Event of Default,  Seller shall have no further right to request disbursements of funds in the Repurchase Settlement  Account, and Agent may at any time and from time to time apply funds in the Repurchase  Settlement Account to pay Seller’s Obligations whether or not then due.   3.8. Delivery of Additional Mortgage Loans.  The Seller may from time to time  deliver to the Custodian for and on behalf of Agent Mortgage Loans that are also Eligible Loans  without entering into a new Transaction by providing to the Custodian the documents required  under Section 3.1(a) with respect to such Mortgage Loans.  The Seller and the Buyers agree that  such Mortgage Loans delivered pursuant to this Section 3.8 shall be treated as Purchased Loans  subject to the existing Transactions hereunder from the date of such delivery.  3.9. Application of Purchase Price Decreases .  Upon receipt by the Agent of  amounts paid or prepaid as Purchase Price Decreases (except upon the exercise of remedies  provided in Section 18) the Agent shall apply amounts so received to outstanding Purchase Price.  3.10. Defaulting Buyers.    (a) Notwithstanding any provision of this Agreement to the contrary, if any  Buyer becomes a Defaulting Buyer, then the following provisions shall apply for so long  as such Buyer is a Defaulting Buyer:  (i) The applicable fees shall cease to accrue on the unfunded portion  of the Commitment of such Defaulting Buyer pursuant to Section 9.1;  (ii) The Commitment of and the outstanding Purchase Prices paid by  such Defaulting Buyer shall not be included in determining whether all Buyers or  the Required Buyers have taken or may take any action hereunder (including any  consent to any amendment or waiver pursuant to Section 22), provided that (a) the  Committed Sum of any Defaulting Buyer may not be increased or extended  without the consent of such Buyer, and (b) any amendment, waiver, consent or  other action or inaction requiring the consent of all Buyers or each affected Buyer  that by its terms affects any Defaulting Buyer more adversely than the other  affected Buyers shall require the consent of such Defaulting Buyer;  





 






  43  Bodman_17772003_9  (iii) If any Swing Line Transactions shall exist at the time a Buyer  becomes a Defaulting Buyer, then the Seller shall within one Business Day  following notice by the Agent repurchase the Purchased Loans subject to such  Swing Line Transaction.  (b) Notwithstanding any provision of this Agreement to the contrary, if the  Defaulting Buyer is a Nonfunding Buyer, and the Agent or the other Buyer(s) (electively,  in accordance with Section 2.1) fund or pay any other amounts required to be paid by it  hereunder which the Nonfunding Buyer failed to fund or pay (the “Unfunded Amount”),  then   (i) the respective ownership interests of both (A) the Nonfunding  Buyer and (B) Agent or the Buyer (or Buyers) that funded or paid the Unfunded  Amount, shall be proportionately decreased and increased, respectively, to the  same extent as if their respective Committed Sums were changed in direct  proportion to the unreimbursed balance outstanding from time to time thereafter  of the amount so funded or paid;  (ii) the Nonfunding Buyer’s share of all subsequent distributions of  Repurchase Prices and other realizations on the Purchased Loans received shall be  paid to the Agent and/or other Buyer(s) that so funded the Unfunded Amount  until the Agent and/or such other Buyer(s) have been fully repaid the amount so  funded or paid; and   (iii) such adjustment shall remain in effect until such time as the Agent  and/or other Buyer(s) that funded or paid the Unfunded Amount have been so  fully repaid.  (c) If no other Buyer funds or pays any of the Unfunded Amount, then the Pro  Rata ownership interests of the Buyers in the Purchased Loans shall be changed, so that  each Buyer’s Pro Rata ownership interest in the Purchased Loans is equal to the ratio of  (i) the sum of the portions of the Purchase Prices paid by that Buyer in all Open  Transactions on that day, together with all other unreimbursed amounts paid by that  Buyer under this Agreement or the other Repurchase Documents (including, without  limitation, in respect of Swing Line Transactions and under Sections 22.10(d) hereof) as  of such day to (ii) the total of the Purchase Prices paid by all Buyers in all Open  Transactions on that day, together with all other unreimbursed amounts paid by all  Buyers under this Agreement or the other Repurchase Documents (including, without  limitation, in respect of Swing Line Transactions and under Section 22.10(d) hereof) as  of such day.  The Nonfunding Buyer’s share of all subsequent distributions of any  Repurchase Price, Margin Deficit payments and other realizations on the Purchased  Loans received shall be paid to the other Buyers, pro rata among them in the ratio that the  Pro Rata ownership interest in the Purchased Loans owned by each bears to the aggregate  Pro Rata ownership interests in the Purchased Loans of all such other Buyers, and the  Buyers’ respective Pro Rata ownership interests in the Purchased Loans shall be  readjusted after each such payment, until their Pro Rata ownership interests are restored  to what they were before any Nonfunding Buyer failed to fund or pay the Unfunded  





 






  44  Bodman_17772003_9  Amount.  Notwithstanding any such changes in the Buyers’ Pro Rata ownership interests  in any Purchased Loan due to Nonfunding Buyer’s failure to fund or pay an Unfunded  Amount, such failure to fund shall not diminish any Buyer’s Funding Share(s) for  subsequent Transactions.  (d) Without limiting the foregoing, in the event that a Buyer becomes a  Nonfunding Buyer, such Nonfunding Buyer shall have no right to receive any amounts  owing to such Nonfunding Buyer under this Agreement or the other Repurchase  Documents until such Buyer ceases to be a Nonfunding Buyer, which shall occur: (i) in  the event that the Agent or any other Buyer(s) fund or pay the Unfunded Amount (as  described in Section 3.10(c)), at the time the Agent and/or such other Buyer(s) have been  fully repaid the amount so funded or paid; and (ii) in the event that neither the Agent nor  any other Buyer funds or pays any of the Unfunded Amount (as described in Section  3.10(c), at the time the Buyers’ Pro Rata ownership interests are restored to what they  were before such Nonfunding Buyer failed to fund or pay the Unfunded Amount.  (e) For so long as such Buyer is a Nonfunding Buyer, all of the following  shall apply:  (i) The amounts owing by such Nonfunding Buyer under this  Agreement and the other Repurchase Documents shall be deducted from and set  off against the amounts otherwise owing to such Nonfunding Buyer under this  Agreement and the other Repurchase Documents.  (ii) Such Nonfunding Buyer shall immediately pay to the Agent all  sums of any kind paid to or received by such Nonfunding Buyer from the Seller  or otherwise with respect to the Facility, whether pursuant to the terms of this  Agreement or the other Repurchase Documents or in connection with the  realization of the security therefor.  Notwithstanding the fact that such  Nonfunding Buyer may temporarily hold such sums, such Nonfunding Buyer  shall be deemed to hold the same as a trustee and for the benefit of the Agent, it  being the express intention of the Buyers that the Agent shall distribute such sums  in accordance with the terms of this Agreement.  (f) Notwithstanding anything contained herein to the contrary, if a Buyer  becomes a Defaulting Buyer hereunder, then until such Buyer ceases to be a Defaulting  Buyer, the Agent shall have the right, in its sole and absolute discretion and at such time  or times that the Agent shall determine, to apply amounts which otherwise would be  owing to such Defaulting Buyer under this Agreement and the other Repurchase  Documents to a deposit account, to be held in such account and released as appropriate to  satisfy such Defaulting Buyer’s potential future funding obligations with respect to  Transactions (including Swing Line Transactions) under this Agreement.     (g) If any Buyer becomes a Defaulting Buyer hereunder, then the Seller may,  at its sole expense and effort, upon notice to such Buyer and the Agent, require such  Buyer to assign and delegate, without recourse (in accordance with and subject to the  restrictions set forth in Section 22.17) all its interests, rights and obligations under this  





 






  45  Bodman_17772003_9  Agreement to an assignee (which assignee may be another Buyer) that shall assume such  obligations, all in accordance with the procedures and conditions set forth in Section 26.4  hereof.  (h) In the event that the Agent, the Seller and the Swing Line Buyer each  agrees that a Defaulting Buyer has adequately remedied all matters that caused such  Buyer to be a Defaulting Buyer (“Redeemed Buyer”), then the Swing Line Exposure of  the other Buyers shall be readjusted to reflect the inclusion of such Redeemed Buyer’s  Commitment and on such date such Redeemed Buyer shall purchase from the other  Buyers at par a portion of the Open Transactions and take such other actions as the Agent  shall determine may be necessary in order for such Redeemed Buyer to participate in  such Open Transactions in accordance with its Pro Rata share, at which point the  Redeemed Buyer shall cease to be a Defaulting Buyer.  For purposes of this Section 3.10,  “Swing Line Exposure” means, with respect to any Buyer at any time, such Buyer’s Pro  Rata share of the aggregate Purchase Prices of all Swing Line Transactions outstanding at  such time.  (i) Nothing contained in the foregoing shall be deemed to constitute a waiver  by the Seller of any of its rights or remedies (whether in equity or law) against any Buyer  which fails to fund any Transaction hereunder at the time or in the amount required to be  funded under the terms of this Agreement.  3.11. eMortgage Loan Transactions.  Notwithstanding anything in this Agreement to  the contrary, (a) Seller expressly acknowledges that Custodian is not prepared to accept or  Control eNotes or related Loan Papers evidencing eMortgage Loans for and on behalf of the  Buyers and the Custody Agreement does not contemplate such acceptance or Control, and (b) in  no event shall an eMortgage Loan constitute an Eligible Loan under this Agreement and Seller  shall not sell to Buyers and Buyers shall not purchase from Seller any eMortgage Loan, unless  and until, provided no Event of Default or Default is continuing, either:   (i) if Custodian in its sole discretion (without being under any obligation to do so)  agrees to accept and Control eNotes and related Loan Papers evidencing  eMortgage Loans for and on behalf of the Buyers, (A) Agent, Custodian and  Seller shall have entered in to an amended and restated Custody Agreement in  form and substance satisfactory to Agent (and in such event any reference to  Custody Agreement in this Agreement shall mean and refer to such amended and  restated Custody Agreement, as it may be further supplemented, amended or  restated from time to time), which amended and restated Custody Agreement  shall, without limitation, provide for the Custodian’s acceptance and Control of  eNotes and related Loan Papers evidencing eMortgage Loans which are  Purchased Loans for and on behalf of Buyers, (B) if required by Agent in its sole  discretion after Agent reviews the amended and restated Custody Agreement,  Agent, Seller and Buyers shall have entered in to an amendment to this  Agreement in form and substance satisfactory to Agent to address, without  limitation, any conflicts or other issues pertaining to the provisions of the  amended and restated Custody Agreement and this Agreement pertaining to  eMortgage Loans, and (C) Agent shall have received all other information and  





 






  46  Bodman_17772003_9  documents which the Agent may reasonably have requested in connection with  the transactions contemplated by this paragraph; or  (ii) if Custodian elects in its sole discretion not to accept and Control eNotes and  related Loan Papers evidencing eMortgage Loans for and on behalf of the Buyers,  and Agent and Seller agree to use another custodian to serve as co-Custodian  under this Agreement to accept and Control eNotes and related Loan Papers  evidencing eMortgage Loans for and on behalf of the Buyers (the “eNote  Custodian”), which eNote Custodian must be acceptable to Agent, and which  eNote Custodian may be Comerica Bank if Comerica Bank in its sole discretion  agrees to serve as eNote Custodian, although nothing in this Agreement shall  obligate Comerica Bank to agree to serve as the eNote Custodian, (A) if the eNote  Custodian is not Comerica Bank, Agent, eNote Custodian and Seller shall have  entered in to a custody agreement in form and substance satisfactory to Agent (the  “eNote Custody Agreement”), which eNote Custody Agreement shall, without  limitation, provide for the eNote Custodian’s acceptance and Control of eNotes  and related Loan Papers evidencing eMortgage Loans which are Purchased Loans  for and on behalf of Buyers, (B) Agent, Seller and Buyers shall have entered in to  an amendment to this Agreement in form and substance satisfactory to Agent  which shall, without limitation, (i) if Comerica Bank is the eNote Custodian,  provide for acceptance and Control by Comerica Bank, as Agent, of eNotes and  related Loan Papers evidencing eMortgage Loans which are Purchased Loans for  and on behalf of the Buyers, and (ii) if Comerica Bank is not the eNote Custodian,  address any conflicts or other issues pertaining to the provisions of the eNote  Custody Agreement and this Agreement pertaining to eMortgage Loans, and (C)  receipt by the Agent of all other information and documents which the Agent may  reasonably have requested in connection with the transactions contemplated by  this paragraph.  Section 4. Transaction Limits and Sublimits .  4.1. Transaction Limits.  Each Transaction shall be subject to the limitation that no  purchase will be made if at the time of or after such purchase, the Aggregate Outstanding  Purchase Price exceeds or would exceed the lesser of:  (a) the Maximum Aggregate Commitment; or  (b) the sum of the following, without duplication:    (i)  For Purchased Loans which are Conforming Mortgage Loans  (other than Aged Mortgage Loans), the lesser of (A) the Purchase Value all such  Conforming Mortgage Loans, or (B) the Conforming Loan Sublimit, plus    (ii) For Purchased Loans which are Jumbo Mortgage Loans, the lesser  of (A) the Purchase Value of all such Jumbo Mortgage Loans, or (B) the Jumbo Loan  Sublimit, plus  





 






  47  Bodman_17772003_9    (iii) For Purchased Loans which are Super Jumbo Mortgage Loans, the  lesser of (A) the Purchase Value of all such Super Jumbo Mortgage Loans, or (B) the  Super Jumbo Loan Sublimit, plus  (iv) For Purchased Loans which are Aged Mortgage Loans, the lesser  of (A) the Purchase Value of all such Aged Mortgage Loans, or (B) the Aged Mortgage  Loan Sublimit, plus      (v) For Purchased Loans which are Second Mortgage Loans, the lesser  of (A) the Purchase Value of all such Second Mortgage Loans, or (B) the Second  Mortgage Loan Sublimit, plus  (vi) For Purchased Loans which are FHA Low FICO Score Mortgage  Loans (other than Aged Mortgage Loans), the lesser of (A) the Purchase Value of all such  FHA Low FICO Score Mortgage Loans, or (B) the FHA Low FICO Score Loan Sublimit,  plus    (vii) For Purchased Loans which are Discretionary Loans, the lesser of  (A) the Purchase Value of all such Discretionary Loans, or (B) the Discretionary Loan  Sublimit, plus  (viii)  For Purchased Loans which are Non-QM Mortgage Loans, the  lesser of (A) the Purchase Value of all such Non-QM Mortgage Loans, or (B) the Non- QM Mortgage Loan Sublimit.  4.2. Transaction Sublimits.  The following sublimits shall be applicable to the  Transactions hereunder such that after giving effect to any proposed Transaction and after giving  effect to any repurchase, addition or substitution of any Mortgage Loan hereunder, the following  shall be true:  (a) The Aggregate Outstanding Purchase Price of Conforming Mortgage  Loans (other than Aged Mortgage Loans) may be as much as one hundred percent  (100%) of the Maximum Aggregate Commitment (the “Conforming Loan Sublimit”).  (b) The Aggregate Outstanding Purchase Price of all Purchased Loans that are  Wet Loans shall not exceed (x) fifty percent (50%) of the Maximum Aggregate  Commitment on any of the first five (5) and last five (5) Business Days of any month or  (y) thirty-five percent (35%) of the Maximum Aggregate Commitment on any other day  (the “Wet Loans Sublimit”).  (c) The Aggregate Outstanding Purchase Price of all Purchased Loans that are  of the type listed in the first column of the following table shall not exceed the percentage  of the Maximum Aggregate Commitment or amount listed in the second column of the  table (the name of that Sublimit is set forth in the third column).    





 






  48  Bodman_17772003_9  Type of  Purchased Loan  Maximum  percentage/amount of  Maximum Aggregate  Commitment   Name of Sublimit  FHA Low FICO  Score Mortgage  Loans (other  than Aged  Mortgage Loans)  5% “FHA Low FICO Score Loan  Sublimit”  Jumbo Mortgage  Loans  30% “Jumbo Loan Sublimit”  Super Jumbo  Loans  5% “Super Jumbo Loan Sublimit  Jumbo Mortgage  Loans and Super  Jumbo Loans in  the aggregate  30% “Aggregate Jumbo Loan  Sublimit”  Aged Mortgage  Loans  $5,000,000.00 “Aged Mortgage Loan  Sublimit”  Second  Mortgage Loans  $5,000,000.00 “Second Mortgage Loan  Sublimit”  Discretionary  Loans  $3,000,000.00 “Discretionary Loan Sublimit”  Non-QM  Mortgage Loans  10% “Non-QM Mortgage Loan  Sublimit”    4.3. Compliance.  Seller shall immediately repurchase Purchased Loans necessary  to comply with all of the requirements of Section 4.1 and Section 4.2 of this Agreement.  Section 5. Price Differential.  5.1. Pricing Rate.  Except as otherwise provided herein with respect to the Default  Pricing Rate, the Pricing Rate to be applied to the Purchase Prices of Purchased Loans to  determine the Price Differential in all Open Transactions shall be the Daily Adjusting LIBOR  Rate (or, if applicable under Section 6.7, the Prime Referenced Rate).  5.2. Pricing Rate for Default Pricing Rate Purchased Loans.  Notwithstanding any  contrary or inconsistent provision of this Section 5, the Pricing Rate to be multiplied by the  Purchase Prices of all Purchased Loans shall be the Default Pricing Rate from (and including)  





 






  49  Bodman_17772003_9  (a) the day immediately following the Repurchase Date for any Past Due Purchased Loan and  until (but excluding) the date on which such Past Due Purchased Loan is repurchased by transfer  to the Agent (for Pro Rata distribution to the Buyers) of its full Repurchase Price in immediately  available funds; and (b) the date designated by the Agent to the Seller after the occurrence and  during the continuance of an Event of Default under Section 18.1.  5.3. Price Differential Payment Due Dates.  Seller shall pay to Agent for Pro Rata  distribution to the Buyers and Swing Line Buyer, as applicable, on the fifth (5th) Business Day of  each month before the Termination Date, Price Differential on each Open Transaction accrued  and unpaid to the end of the preceding month, whether or not such Transaction is still an Open  Transaction on such payment due date; provided that (a) all accrued and unpaid Price  Differential on all Transactions shall be due on the Termination Date, and (b) all Pricing  Differential calculated at the Default Pricing Rate shall be due on demand by Agent in its  individual capacity or at the direction of the Required Buyers.  5.4. Adjustments to Buyer’s Price Differential based on Qualifying Balances  A  particular Buyer and the Seller may, from time to time, agree by separate agreement to  adjustments to such Buyer’s Price Differential based on Qualifying Balances (“Price Differential  Adjustment Agreement”), provided, however, that no such adjustments shall result in a Buyer  receiving more than it would have been entitled to receive with respect to any Transaction under  the terms of this Agreement.  Prior to or concurrently with the execution of any Price Differential  Adjustment Agreement, any such Buyer shall inform the Agent of the terms of any such  adjustments (such terms to be administratively acceptable to Agent).  Such Buyer shall notify  Agent of any adjustments to the Price Differential made pursuant to a Price Differential  Adjustment Agreement in accordance with this Section 5.4.  The adjustments identified in such  notice shall become effective on a date determined by Agent (but in any event shall not become  effective prior to the date such notice is received).  Section 6. Margin Maintenance .  6.1. Margin Deficit.    (a) If at any time the aggregate Purchase Value of all Purchased Loans subject  to all Transactions hereunder is less than the aggregate Repurchase Price (excluding Price  Differential), minus, without duplication, cash transfers previously made from the Seller  to the Agent in response to previous Margin Calls, if any, for all such Transactions (a  “Margin Deficit”), then by notice to the Seller (a “Margin Call”), the Agent shall require  the Seller to transfer (for the account of the Buyers) to the Agent (in the case of cash) or  the Custodian (in the case of Additional Purchased Loans, as defined below), as  appropriate, either (at the Seller’s option) cash, additional Eligible Loans reasonably  acceptable to the Agent (“Additional Purchased Loans”), or a combination of cash and  Additional Purchased Loans, so that the cash and the aggregate Purchase Value of the  Purchased Loans, including any such Additional Purchased Loans, will thereupon at least  equal the then aggregate Repurchase Price (excluding Price Differential).    (b) On any Business Day on which the Purchase Value of the Purchased  Loans subject to Transactions exceeds the then outstanding aggregate Repurchase Price  





 






  50  Bodman_17772003_9  (excluding Price Differential) of all Transactions (a “Margin Excess”), so long as no  Default or Event of Default has occurred and is continuing or will result therefrom, the  Agent shall, upon receipt of a written request from the Seller, remit cash or authorize  Custodian to release Purchased Loans, as requested by the Seller, in either case in an  amount equal to the lesser of (i) the amount requested by the Seller and (ii) such Margin  Excess, subject always to the other limitations of this Agreement.  If cash is to be  remitted the Agent shall treat the receipt of the written request of the Seller under this  Section 6.1(b) as if it were a request for a Transaction.  To the extent the Agent remits  cash to the Seller, such cash shall be (A) additional Purchase Price with respect to the  Transactions, and (B) subject in all respects to the provisions and limitations of this  Agreement.  Each Buyer shall fund its Pro Rata share of such additional Purchase Price  as if the remission of such Margin Excess were the initiation of a Transaction hereunder.  6.2. Margin Call Deadline.  If the Agent delivers a Margin Call to the Seller at or  before 11:00 a.m. (Detroit, Michigan time) on any Business Day, then the Seller shall transfer  cash and/or Additional Purchased Loans as provided in Section 6.1 on the same Business Day.  If  the Agent delivers a Margin Call to the Seller after 11:00 a.m. (Detroit, Michigan time) on any  Business Day, then the Seller shall transfer cash and/or Additional Purchased Loans by no later  than 11:00 a.m. (Detroit, Michigan time) on the next following Business Day.  6.3. Application of Cash.  Any cash transferred to the Agent (for Pro Rata  distribution to the Buyers) pursuant to this Section 6 shall be applied by the Buyers on receipt  from the Agent which shall occur on the date received from the Seller or the next Business Day  if received after 1:00 p.m. (Detroit, Michigan time).  6.4. Increased Cost.  If any Change in Law:   (a) shall subject such Buyer (or its LIBOR Lending Office) to any tax, duty or  other charge with respect to this Agreement or any Transaction or change the basis of  taxation of payments to the Buyer in respect thereof (except for changes in the rate of tax  on the overall net income of Buyer or its LIBOR Lending Office imposed by the  jurisdiction in which Buyer's principal executive office or LIBOR Lending Office is  located);   (b) shall impose, modify or deem applicable any reserve (including, without  limitation, any imposed by the Board of Governors of the Federal Reserve System),  special deposit or similar requirement against assets of, deposits with or for the account  of, or credit extended by Buyer (or its LIBOR Lending Office), or shall impose on Buyer  (or its LIBOR Lending Office) or the foreign exchange and interbank markets any other  condition affecting this Agreement or the making or maintaining of Transactions  hereunder; or  (c) shall impose on the Buyer any other condition:   and the result of any of the foregoing is to increase the cost to such Buyer, by an amount which  the Buyer deems to be material, of entering, continuing or maintaining any Transaction or to  reduce any amount due or owing hereunder in respect thereof, then in any such case, the Seller  





 






  51  Bodman_17772003_9  shall promptly pay the Agent (for distribution to such Buyer) such additional amount or amounts  as calculated by the Buyer in good faith as will compensate the Buyer for such increased cost or  reduced amount. A certificate of a Buyer, prepared in good faith and in reasonable detail by such  Buyer and submitted to the Seller and the Agent, setting forth the basis for determining such  additional amount or amounts necessary to compensate such Buyer shall be conclusive and  binding for all purposes, absent manifest error.  6.5. Capital Adequacy.  If any Change in Law affects or would affect the amount of  capital or liquidity required or expected to be maintained by such Buyer (or any corporation  controlling such Buyer), and such Buyer determines that the amount of such capital is increased  by or based upon the existence of any its obligations hereunder or the maintaining of any  Transactions, and such increase has the effect of reducing the rate of return on such Buyer's (or  such controlling corporation's) capital as a consequence of such obligations or the maintaining of  such Transactions to a level below that which such Buyer (or such controlling corporation) could  have achieved but for such circumstances (taking into consideration its policies with respect to  capital adequacy), then the Seller shall pay to such Buyer, within fifteen (15) days of the Seller’s  receipt of written notice from such Buyer demanding such compensation, additional amounts as  are sufficient to compensate such Buyer (or such controlling corporation) for any increase in the  amount of capital and reduced rate of return which Buyer reasonably determines to be allocable  to the existence of any obligations of the Buyer hereunder or to maintaining any Transactions  hereunder.  A certificate of a Buyer as to the amount of such compensation, prepared in good  faith and in reasonable detail by the Buyer and submitted to the Seller, shall be conclusive and  binding for all purposes absent manifest error.  6.6.  Market Valuations for Purchase Values.  In the discretion of the Agent or  Required Buyers if it or they reasonably determine that market conditions warrant (except that  the Agent shall have no obligation to make such determination more frequently than once per  day), the Agent may (a) notify Custodian that Agent desires to re-calculate the Purchase Values  of all or a portion of the Purchased Loans using the Market Values of such Purchased Loans,  which notice shall include the Market Values determined by Agent for such Purchased Loans,  and (b) obtain from Custodian an updated Purchased Loan Collateral Activity Summary Report  taking into account such Market Values.  6.7. Provisions Relating to Daily Adjusting LIBOR Rate.    (a) Except as may be otherwise expressly provided in Section 6.8, if the  Agent or the Required Buyers (after consultation with the Agent) shall determine in good  faith that, (i) it is or they are unable to determine or ascertain the Daily Adjusting LIBOR  Rate, or (ii) by reason of circumstances affecting the foreign exchange and interbank  markets generally, deposits in eurodollars in the applicable amounts or for the relative  maturities are not being offered to Agent or such Buyers, or (iii) the Daily Adjusting  LIBOR Rate will not accurately or fairly cover or reflect the cost of making, maintaining  or funding any Transaction based upon the Daily Adjusting LIBOR Rate, then Agent  shall forthwith give notice thereof to the Seller.  Thereafter, until Agent notifies the Seller  that such conditions or circumstances no longer exist, the Prime Referenced Rate shall be  the applicable Pricing Rate for all Transactions during such period of time, and each  Transaction which bears interest at or by reference to the Daily Adjusting LIBOR Rate  





 






  52  Bodman_17772003_9  shall automatically be converted into a Transaction with a Pricing Rate determined by  reference to the Prime Referenced Rate.  (b) Except as may be otherwise expressly provided in Section 6.8, if any  Change in Law shall make it unlawful or impossible for any of the Buyers (or any of their  respective LIBOR Lending Offices) to honor its obligations hereunder to make or  maintain any Transaction which bears interest at or by reference to the Daily Adjusting  LIBOR Rate, such Buyer shall give notice thereof to the Seller and the Agent. Thereafter,  until such Buyer notifies the Seller that such conditions or circumstances no longer exist,  the Prime Referenced Rate shall be the applicable Pricing Rate for all Transactions  hereunder during such period of time, and if any of the Buyers may not lawfully continue  to maintain any existing Transaction with a Pricing Rate determined at or by reference to  the Daily Adjusting LIBOR Rate, the applicable Transaction shall immediately be  converted to a Transaction with a Pricing Rate determined by reference to the Prime  Referenced Rate. For purposes of this Section, a change in law, rule, regulation,  interpretation or administration shall include, without limitation, any change made or  which becomes effective on the basis of a law, rule, regulation, interpretation or  administration presently in force, the effective date of which change is delayed by the  terms of such law, rule, regulation, interpretation or administration.  6.8. Effect of Benchmark Transition Event.   (a) Notwithstanding anything to the contrary herein or in any other Repurchase  Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable,  and its related Benchmark Replacement Date have occurred prior to the Reference Time  in respect of any setting of the then-current Benchmark, then (x) if a Benchmark  Replacement is determined in accordance with clause (1) or (2) of the definition of  “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark  Replacement will replace such Benchmark (and each reference thereto) for all purposes  hereunder and under any Repurchase Document in respect of such Benchmark setting and  subsequent Benchmark settings without any amendment to, or further action or consent  of any other party to, this Master Repurchase Agreement or any other Repurchase  Document and (y) if a Benchmark Replacement is determined in accordance with clause  (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement  Date, such Benchmark Replacement will replace such Benchmark (and each reference  thereto) for all purposes hereunder and under any Loan Document in respect of any  Benchmark setting at or after 5:00 p.m. (Detroit, Michigan time) on the fifth (5th)  Business Day after the date notice of such Benchmark Replacement is provided to the  Buyers without any amendment to, or further action or consent of any other party to, this  Agreement or any other Repurchase Document so long as the Agent has not received, by  such time, written notice of objection to such Benchmark Replacement from Buyers  comprising the Required Buyers.  (b) Notwithstanding anything to the contrary herein or in any other Repurchase  Document and subject to the proviso below in this clause (b), if a Term SOFR Transition  Event and its related Benchmark Replacement Date have occurred prior to the Reference  Time in respect of any setting of the then-current Benchmark, then the applicable  





 






  53  Bodman_17772003_9  Benchmark Replacement will replace such Benchmark (and each reference thereto) for  all purposes hereunder or under any Repurchase Document in respect of such Benchmark  setting and subsequent Benchmark settings, without any amendment to, or further action  or consent of any other party to, this Agreement or any other Repurchase Document;  provided that, this clause (b) shall not be effective unless the Agent has delivered to the  Seller and the Buyers a Term SOFR Notice.    (c) In connection with the implementation of a Benchmark Replacement, the Agent  will have the right to make Benchmark Replacement Conforming Changes from time to  time and, notwithstanding anything to the contrary herein or in any other Repurchase  Document, any amendments implementing such Benchmark Replacement Conforming  Changes will become effective without any further action or consent of any other party to  this Agreement or any other Repurchase Document.  (d) The Agent will promptly notify the Seller and the Buyers of (i) any occurrence of  a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in  Election, as applicable, and its related Benchmark Replacement Date, (ii) the  implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark  Replacement Conforming Changes and (iv) the commencement or conclusion of any  Benchmark Unavailability Period.  Any determination, decision or election that may be  made by the Agent or, if applicable, any Buyer (or group of Buyers) pursuant to this  Section 6.8, including any determination with respect to a tenor, rate or adjustment or of  the occurrence or non-occurrence of an event, circumstance or date and any decision to  take or refrain from taking any action or any selection, will be conclusive and binding  absent manifest error and may be made in its or their sole discretion and without consent  from any other party to this Agreement or any other Repurchase Document, except, in  each case, as expressly required pursuant to this Section 6.8.  (e) Upon the Seller’s receipt of notice of the commencement of a Benchmark  Unavailability Period, the Seller may revoke any request for any Transaction to be made  at the Daily Adjusting LIBOR Rate or for a conversion of any Transaction to or  continuation of any Transaction at the Daily Adjusting LIBOR Rate and, failing that, the  Seller will be deemed to have converted any such request into a request for, or conversion  to, a Transaction that incurs a Pricing Differential at the Prime-Referenced Rate, and each  outstanding Transaction at the Daily Adjusting LIBOR Rate will be deemed to have been  converted to a Transaction that incurs a Pricing Differential at the Prime-Referenced  Rate.  (f) As used in this Section 6.8:  “Applicable Tenor” means, with respect to the then-current Benchmark, a tenor of one (1) month  for such Benchmark.  “Benchmark” means, initially, the LIBOR Rate; provided that if a Benchmark Transition Event,  a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related  Benchmark Replacement Date have occurred with respect to the LIBOR Rate or the then-current  Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that  





 






  54  Bodman_17772003_9  such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (a) or  clause (b) of Section 6.8.  “Benchmark Replacement” means, for the Applicable Tenor, the first alternative set forth in the  order below that can be determined by the Agent for the applicable Benchmark Replacement  Date:   (1) the sum of: (a) Daily Adjusting Term SOFR and (b) the related Benchmark Replacement  Adjustment;   (2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;   (3) the sum of: (a) the alternate benchmark rate that has been selected by the Agent and the Seller  as the replacement for the then-current Benchmark for the Corresponding Tenor giving due  consideration to (i) any selection or recommendation of a replacement benchmark rate or the  mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving  or then-prevailing market convention for determining a benchmark rate as a replacement for the  then-current Benchmark for U.S. dollar-denominated syndicated credit facilities at such time and  (b) the related Benchmark Replacement Adjustment;   provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on  a screen or other information service that publishes such rate from time to time as selected by the  Agent in its reasonable discretion; provided further that, notwithstanding anything to the contrary  in this Agreement or in any other Repurchase Document, upon the occurrence of a Term SOFR  Transition Event, and the delivery of a Term SOFR Notice, on the applicable Benchmark  Replacement Date, the “Benchmark Replacement” shall revert to and shall be deemed to be the  sum of (x) Daily Adjusting Term SOFR and (y) the related Benchmark Replacement  Adjustment, as set forth in clause (1) of this definition (subject to the immediately preceding  proviso).  Notwithstanding the foregoing, if the Benchmark Replacement as determined pursuant  to clause (1), (2) or (3) above would be less than the Applicable Floor, the Benchmark  Replacement will be deemed to be the Applicable Floor for the purposes of this Agreement and  the other Repurchase Documents.  “Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for the Applicable Tenor for  any setting of such Unadjusted Benchmark Replacement:   (1) for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first  alternative set forth in the order below that can be determined by the Agent:   (a) the spread adjustment, or method for calculating or determining such spread adjustment,  (which may be a positive or negative value or zero) as of the Reference Time such Benchmark  Replacement is first set for the Applicable Tenor that has been selected or recommended by the  Relevant Governmental Body for the replacement of such Benchmark with the applicable  Unadjusted Benchmark Replacement for a period that is approximately the same length  (disregarding any business day adjustments) as the payment period for interest calculated with  reference to such Benchmark Replacement, but in no event in excess of three months;  





 






  55  Bodman_17772003_9  (b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference  Time such Benchmark Replacement is first set for the Applicable Tenor that would apply to the  fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an  index cessation event with respect to such Benchmark for the period that is approximately the  same length (disregarding any business day adjustments) as the payment period for interest  calculated with reference to such Benchmark Replacement, but in no event in excess of three  months; and   (2) for purposes of clause (3) of the definition of “Benchmark Replacement,” the spread  adjustment, or method for calculating or determining such spread adjustment, (which may be a  positive or negative value or zero) that has been selected by the Agent and the Seller for the  applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation  of a spread adjustment, or method for calculating or determining such spread adjustment, for the  replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the  Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any  evolving or then-prevailing market convention for determining a spread adjustment, or method  for calculating or determining such spread adjustment, for the replacement of such Benchmark  with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated  credit facilities;   provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other  information service that publishes such Benchmark Replacement Adjustment from time to time  as selected by the Agent in its reasonable discretion.   “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark  Replacement, any technical, administrative or operational changes (including, but not limited to,   changes to the definition of “Applicable Reference Date”, the definition of “Business Day,” the  definition of “Daily Adjusting LIBOR Rate”, the definition of “Interest Period,” the timing and  frequency of determining rates and making payments of interest, timing of borrowing requests or  prepayment, conversion or continuation notices, length of lookback periods, the applicability of  breakage provisions, and other technical, administrative or operational matters) that the Agent  decides may be appropriate to reflect the adoption and implementation of such Benchmark  Replacement and to permit the administration thereof by the Agent in a manner substantially  consistent with market practice (or, if the Agent decides that adoption of any portion of such  market practice is not administratively feasible or if the Agent determines that no market practice  for the administration of such Benchmark Replacement exists, in such other manner of  administration as the Agent decides is reasonably necessary in connection with the  administration of this Agreement and the other Repurchase Documents).   “Benchmark Replacement Date” means the earliest to occur of the following events with respect  to the then-current Benchmark:   (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of  (a) the date of the public statement or publication of information referenced therein and (b) the  date on which the administrator of such Benchmark (or the published component used in the  calculation thereof) permanently or indefinitely ceases to provide the Applicable Tenors of such  Benchmark (or such component thereof);   





 






  56  Bodman_17772003_9  (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the  public statement or publication of information referenced therein;   (3) in the case of a Term SOFR Transition Event, the date that is thirty (30) days after the date a  Term SOFR Notice is provided to the Buyers and the Seller, or   (4) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of  such Early Opt-in Election is provided to the Buyers, so long as the Agent has not received, by  5:00 p.m. (Detroit, Michigan time) on the fifth (5th) Business Day after the date notice of such  Early Opt-in Election is provided to the Buyers, written notice of objection to such Early Opt-in  Election from Buyers comprising the Required Buyers.   For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date  occurs on the same day as, but earlier than, the Reference Time in respect of any determination,  the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time  for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have  occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of  the applicable event or events set forth therein with respect to all then-current Available Tenors  of such Benchmark (or the published component used in the calculation thereof).  “Benchmark Transition Event” means the occurrence of one or more of the following events with  respect to the then-current Benchmark:   (1) a public statement or publication of information by or on behalf of the administrator of such  Benchmark (or the published component used in the calculation thereof) announcing that such  administrator has ceased or will cease to provide the Applicable Tenors of such Benchmark (or  such component thereof), permanently or indefinitely, provided that, at the time of such  statement or publication, there is no successor administrator that will continue to provide the  Applicable Tenor of such Benchmark (or such component thereof);   (2) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof),  the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York,  an insolvency official with jurisdiction over the administrator for such Benchmark (or such  component), a resolution authority with jurisdiction over the administrator for such Benchmark  (or such component) or a court or an entity with similar insolvency or resolution authority over  the administrator for such Benchmark (or such component), which states that the administrator of  such Benchmark (or such component) has ceased or will cease to provide the Applicable Tenor  of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at  the time of such statement or publication, there is no successor administrator that will continue to  provide the Applicable Tenor of such Benchmark (or such component thereof); or   (3) a public statement or publication of information by the regulatory supervisor for the  administrator of such Benchmark (or the published component used in the calculation thereof)  announcing that all Available Tenors of such Benchmark (or such component thereof) is no  longer representative.   





 






  57  Bodman_17772003_9  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred  with respect to any Benchmark if a public statement or publication of information set forth above  has occurred with respect to the Applicable Tenor of such Benchmark (or the published  component used in the calculation thereof).  Further, the parties hereto acknowledge that, by  virtue of the announcements on March 5, 2021 by the ICE Benchmark Administration and the  U.K. Financial Conduct Authority, a Benchmark Transition Event has occurred with respect to  the LIBOR Rate Benchmark for purposes of this definition and that no additional notice of such  event shall be required hereunder.  “Benchmark Unavailability Period” means the period (if any) (x) beginning at the time that a  Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at  such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes  hereunder and under any Repurchase Document in accordance with this Section 6.8, and (y)  ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for  all purposes hereunder and under any Repurchase Document in accordance with this Section 6.8.  “Corresponding Tenor” means a tenor having approximately the same length (disregarding  business day adjustment) as the Applicable Tenor   “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will  include a lookback) being established by the Agent in accordance with the conventions for this  rate selected or recommended by the Relevant Governmental Body for determining “Daily  Simple SOFR” for syndicated business loans; provided, that if the Agent decides that any such  convention is not administratively feasible for the Agent, then the Agent may establish another  convention in its reasonable discretion.  “Early Opt-in Election” means, if the then-current Benchmark is the LIBOR Rate, the  occurrence of:  (1) a notification by the Agent to (or the request by the Seller to the Agent to notify) each of the  other parties hereto that at least five currently outstanding U.S. dollar-denominated syndicated  credit facilities at such time contain (as a result of amendment or as originally executed) a  SOFR-based rate (including SOFR, a daily adjusting term SOFR or any other rate based upon  SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and  are publicly available for review), and   (2) the joint election by the Agent and the Seller to trigger a fallback from the LIBOR Rate and  the provision by the Agent of written notice of such election to the Buyers.  “ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and  Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to  time, or any successor definitional booklet for interest rate derivatives published from time to  time by the International Swaps and Derivatives Association, Inc. or such successor thereto.  “Reference Time” with respect to any setting of the then-current Benchmark means (1) if such  Benchmark is the LIBOR Rate, at or about 11:00 a.m. (London, England time) (or soon  thereafter as practical) on the Applicable Reference Date, and (2) if such Benchmark is not the  LIBOR Rate, the time determined by the Agent in its reasonable discretion.  





 






  58  Bodman_17772003_9  “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or  the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the  Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York,  or, in each case, any successor thereto.  “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured  overnight financing rate for such Business Day published by the SOFR Administrator on the  SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time), on the  immediately succeeding Business Day.   “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor  administrator of the secured overnight financing rate).   “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York,  currently at http://www.newyorkfed.org, or any successor source for the secured overnight  financing rate identified as such by the SOFR Administrator from time to time.  “Term SOFR” means, for the Corresponding Tenor as of the applicable Reference Time, the  forward-looking term rate based on SOFR that has been selected or recommended by the  Relevant Governmental Body.   “Term SOFR Notice” means, a notification by the Agent to the Buyers and the Seller of the  occurrence of a Term SOFR Transition Event.     “Term SOFR Transition Event” means, the determination by the Agent that (a) either (i) Term  SOFR has been selected or recommended for use by the Relevant Governmental Body or (ii) at  least five currently outstanding U.S. dollar denominated syndicated credit facilities utilize a term  SOFR-based rate as an available benchmark rate, (b) the administration of Term SOFR is  feasible for the Agent, and (c) a Benchmark Transition Event or an Early Opt-In Election, as  applicable, has previously occurred resulting in a Benchmark Replacement in accordance with  Section 6.8 that is not Term SOFR.  “Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding  the related Benchmark Replacement Adjustment.  Section 7. Taxes .  7.1. Payments to be Free of Taxes; Withholding.  Any and all payments by the  Seller under or in respect of this Agreement or any other Repurchase Documents to which the  Seller is a party shall be made free and clear of, and without deduction or withholding for or on  account of, any and all present or future taxes, levies, imposts, deductions, charges or  withholdings, and all liabilities (including penalties, interest and additions to tax) with respect  thereto, whether now or hereafter imposed, levied, collected, withheld or assessed by any  taxation authority or other Governmental Authority (collectively, “Taxes”), unless required by  any Legal Requirement.  If the Seller shall be required under any applicable Legal Requirement  to deduct or withhold any Taxes from or in respect of any sum payable under or in respect of this  Agreement or any of the other Repurchase Documents to the Agent (for the account of the  Buyers), (a) the Seller shall make all such deductions and withholdings in respect of Taxes,  





 






  59  Bodman_17772003_9  (b) the Seller shall pay the full amount deducted or withheld in respect of Taxes to the relevant  taxation authority or other Governmental Authority in accordance with any applicable Legal  Requirement and (c) the sum payable by the Seller shall be increased as may be necessary so that  after the Seller has made all required deductions and withholdings (including deductions and  withholdings applicable to additional amounts payable under this Section 7) each Buyer receives  an amount equal to the sum it would have received had no such deductions or withholdings been  made in respect of Non-excluded Taxes.  For purposes of this Agreement the term “Non- excluded Taxes” means Taxes other than, in the case of any Person, Taxes that are imposed on its  overall net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the  laws of which such Person is organized or of its applicable lending office, or any political  subdivision thereof.  7.2. Other Taxes.  In addition, the Seller hereby agrees to pay any present or future  stamp, recording, documentary, excise, property or value-added taxes, or similar taxes, charges  or levies (including any interest or penalties arising in connection therewith) that arise from any  payment made under or in respect of this Agreement or any other Repurchase Document or from  the execution, delivery or registration of, any performance under, or otherwise with respect to,  this Agreement or any other Repurchase Documents (collectively, “Other Taxes”).  7.3. Taxes Indemnity.  The Seller hereby agrees to indemnify the Buyers and the  Agent for, and to hold each of them harmless against, the full amount of Non-excluded Taxes  and Other Taxes, and the full amount of Taxes (other than Taxes that are imposed on its overall  net income (and franchise taxes imposed in lieu thereof) by the jurisdiction under the laws of  which such Person is organized or of its applicable lending office, or any political subdivision  thereof) of any kind imposed by any jurisdiction on amounts payable under this Section 7  imposed on or paid by the Buyers or the Agent and any liability (including penalties, additions to  tax, interest and expenses) arising therefrom or with respect thereto.  The indemnity by the Seller  provided for in this Section 7.3 shall apply and be made whether or not the Non-excluded Taxes  or Other Taxes for which indemnification hereunder is sought have been correctly or legally  asserted.  Amounts payable by the Seller under the indemnity set forth in this Section 7.3 shall be  paid within fifteen (15) days from the date on which the Agent or any Buyer makes written  demand therefor.    7.4. Receipt.  Within thirty (30) days after the date of any payment of Taxes, the  Seller (or any Person making such payment on behalf of the Seller) shall furnish to the Agent for  each Buyer’s account a certified copy of the original official receipt evidencing payment thereof.    





 






  60  Bodman_17772003_9  7.5. Non-Exempt Buyer.  For purposes of this Section 7.5, the terms “United States”  and “United States person” shall have the meanings specified in Section 7701 of the Internal  Revenue Code.  Each Buyer (including, for avoidance of doubt, any assignee, successor or  participant) that either (x) is not incorporated under the laws of the United States, any State  thereof or the District of Columbia or (y) whose name does not include “Incorporated”, “Inc.”,  “Corporation”, “Corp.”, “P.C.”, “insurance company” or “assurance company” (a “Non-Exempt  Buyer”) shall deliver or cause to be delivered to the Agent two originals of each of the following  properly completed and duly executed documents:  (a) in the case of a Non-Exempt Buyer that is not a United States person, (i) a  complete and executed (A) U.S. Internal Revenue Form W-8BEN with Part II completed  in which the Buyer claims the benefits of a tax treaty with the United States providing for  a zero or reduced rate of withholding (or any successor forms thereto), including all  appropriate attachments or (B) U.S. Internal Revenue Service Form W-8ECI (or any  successor forms thereto) and (ii) if such Non-Exempt Buyer is treated as a corporation for  United States federal tax purposes, a certificate substantially in the form of Exhibit D (a  “Corporation Tax Treatment Certificate”); or  (b) in the case of an individual, (i) a complete and executed U.S. Internal  Revenue Service Form W-8BEN (or any successor forms thereto) and a Corporation Tax  Treatment Certificate or (ii) a complete and executed U.S. Internal Revenue Service  Form W-9 (or any successor forms thereto); or  (c) in the case of a Non-Exempt Buyer that is organized under the laws of the  United States, any State thereof, or the District of Columbia, (i) a complete and executed  U.S. Internal Revenue Service Form W-9 (or any successor forms thereto), including all  appropriate attachments, and (ii) if such Non-Exempt Buyer is treated as a corporation for  United States federal tax purposes, a Corporation Tax Treatment Certificate; or  (d) in the case of a Non-Exempt Buyer that (i) is not organized under the laws  of the United States, any State thereof, or the District of Columbia and (ii) is treated as a  corporation for U. S. federal income tax purposes, a complete and executed U.S. Internal  Revenue Service Form W-8BEN claiming a zero rate of withholding (or any successor  forms thereto) and a Corporation Tax Treatment Certificate; or  (e) in the case of a Non-Exempt Buyer that (i) is treated for U.S. federal  income tax purposes as a partnership or other non-corporate entity, and (ii) is not  organized under the laws of the United States, any State thereof, or the District of  Columbia, (A)(1) a complete and executed U.S. Internal Revenue Service Form W-8IMY  (or any successor forms thereto) (including all required documents and attachments) and  (2) a Corporation Tax Treatment Certificate, and (ii) without duplication, with respect to  each of its beneficial owners and the beneficial owners of such beneficial owners looking  through chains of owners to individuals or entities that are treated as corporations for  U.S. federal income tax purposes (all such owners, “Beneficial Owners”), the documents  that would be required by this Section 7.5 with respect to each such Beneficial Owner if  such Beneficial Owner were a Buyer, provided that no such documents will be required  with respect to a Beneficial Owner to the extent the actual Buyer is determined to be in  





 






  61  Bodman_17772003_9  compliance with the requirements for certification on behalf of its Beneficial Owner as  may be provided in applicable U.S. Treasury regulations, or the requirements of this  Section 7.5 are otherwise determined to be unnecessary, all such determinations under  this Section 7.5 to be made in the sole discretion of the Seller, provided that each such  Buyer shall be provided an opportunity to establish such compliance as reasonable; or  (f) in the case of a Non-Exempt Buyer that is disregarded for U.S. federal  income tax purposes, the document that would be required by this Section 7.5 with  respect to its Beneficial Owner if such Beneficial Owner were a Buyer; or  (g) in the case of a Non-Exempt Buyer that (i) is not a United States person  and (ii) is acting in the capacity as an “intermediary” (as defined in U.S. Treasury  regulations), (A)(1) a U.S. Internal Revenue Service Form W-8IMY (or any successor  form thereto) (including all required documents and attachments) and (2) a Corporation  Tax Treatment Certificate, and (B) if the intermediary is a “non-qualified intermediary”  (as defined in U.S. Treasury regulations), from each person upon whose behalf the “non- qualified intermediary” is acting the documents that would be required by this Section 7.5  with respect to each such person if each such person were a Buyer.  If the forms referred to in this Section 7.5 that are provided by a Buyer at the time such Buyer  first becomes a party to this Agreement, a successor to a Buyer or, with respect to a permitted  assignment of or a grant of a participation in the interests of a Buyer hereunder, the effective date  thereof, indicate a United States interest withholding tax rate in excess of zero, withholding tax  at such rate shall be treated as Taxes other than Non-excluded Taxes (“Excluded Taxes”) and  shall not qualify as Non-Excluded Taxes unless and until such Buyer provides the appropriate  form certifying that a lesser rate applies, whereupon withholding tax at such lesser rate shall be  considered Excluded Taxes solely for the periods governed by such form.  If, however, on the  date a Person becomes an assignee, successor or participant to this Agreement, the Buyer  transferor was entitled to indemnification or additional amounts under this Section 7, then the  Buyer assignee, successor or participant shall be entitled to indemnification or additional  amounts to the extent (and only to the extent), that the Buyer transferor was entitled to such  indemnification or additional amounts for Non-excluded Taxes, and the Buyer assignee,  successor or participant shall be entitled to additional indemnification or additional amounts for  any other or additional Non-excluded Taxes.  7.6. If Buyer Fails to Provide Form.  For any period with respect to which a Buyer  required to do so has failed to provide the Seller with the appropriate form, certificate or other  document described in Section 7.5 (other than (a) if such failure is due to a change in any  applicable Legal Requirement, or in the interpretation or application thereof, occurring after the  date on which a form, certificate or other document originally was required to be provided, (b) if  such form, certificate or other document otherwise is not required under Section 7.5 or (c) if it is  legally inadvisable or otherwise commercially disadvantageous for such Buyer to deliver such  form, certificate or other document), such Buyer shall not be entitled to indemnification or  additional amounts under Section 7.2 or Section 7.3 with respect to Non-excluded Taxes  imposed by the United States by reason of such failure; provided that should a Buyer become  subject to Non-excluded Taxes because of its failure to deliver a form, certificate or other  





 






  62  Bodman_17772003_9  document required hereunder, the Seller shall take such steps as such Buyer shall reasonably  request, to assist such Buyer in recovering such Non-excluded Taxes.  7.7. Refunds.  If the Agent or any Buyer, in its sole opinion, determines that it has  finally and irrevocably received or been granted a refund in respect of any Taxes paid as to  which indemnification has been paid by the Seller pursuant to this Section, it shall promptly  remit such refund, net of all reasonable out of pocket costs and expenses, to the Seller; provided,  that the Seller agrees to promptly return any such refund to the Agent or such Buyer, as  applicable, if such person is required to repay such refund to the relevant taxing authority.   Nothing contained herein shall impose an obligation on the Agent or any Buyer to apply for any  such refund.  7.8. Survival.  Without prejudice to the survival of any other agreement of the  Seller hereunder, the agreements and obligations of the Seller contained in this Section 7 shall  survive the termination of this Agreement.  Nothing contained in this Section 7 shall require the  Buyer to make available any of its tax returns or any other information that it deems to be  confidential or proprietary.  Section 8. Income and Escrow Payments; Control.  8.1. Income and Escrow Payments.  Notwithstanding that the Buyers, the Agent  and the Seller intend that the Transactions be sales to the Buyers of the Purchased Loans, where  a particular Transaction’s term extends over an Income payment date on the Purchased Loans  subject to that Transaction, all payments and distributions, whether in cash or in kind, made on  or with respect to the Purchased Loans shall be paid directly to the Seller or its designee by the  relevant Customer, and the Agent (and the Buyers) shall have no obligation to collect or apply  any Income to prevent or reduce any Margin Deficit, unless the Seller (a) arranges for such  Income to be paid to the Agent (for Pro Rata distribution to the Buyers), (b) requests that the  Agent apply such Income when received against the Seller’s Margin Deficit(s) and  (c) concurrently transfers to the Agent either (i) cash or (ii) at the Agent’s option and with the  Agent’s written approval, Additional Purchased Loans, sufficient to eliminate such Margin  Deficit.  Amounts paid to the Seller by the relevant Customer shall be deposited by the Seller  into the Income Account within two (2) Business Days of receipt by the Seller and, as to  amounts so paid to the Seller for escrow payments, into the Escrow Account.  The Income  Account and the Escrow Account shall be maintained by the Seller with Comerica Bank and  shall be subject to the control of the Agent. The Income Account and Escrow Account may be  interest bearing accounts if allowed or required by applicable law.  At all times, other than during  the existence of an Event of Default, the Seller may have full use of all Income and amounts on  deposit in the Income Account, subject to the provisions of Section 8.2.   8.2. Income and Escrow Accounts.  Other than during the existence of an Event of  Default and so long as the Seller is also the Servicer, the Seller shall make payments from the  Escrow Account of all appropriate amounts payable with respect to each Purchased Loan for  taxes, insurance and other purposes for which the funds are paid into the Escrow Account.   Subject to Section 8.3, amounts on deposit in the Income Account shall be used by the Seller to  pay its fees as Servicer while it serves in such capacity, and may be used to pay to the Agent  





 






  63  Bodman_17772003_9  amounts due under this Agreement for Margin Deficit or Price Differential and for any other  lawful purpose.  8.3. Income and Escrow Accounts after Default.  Upon the occurrence and during  the continuation of an Event of Default, the Seller shall have no right to direct withdrawal or  application of funds in the Income Account and the Escrow Account unless authorized to do so  in writing by the Agent.  The Agent may cause all amounts on deposit in the Income Account to  be paid to it or its designee for application as provided in Section 18.4.  The Agent or its  designee shall direct payments from the Escrow Account for the purposes for which such funds  are deposited into the Escrow Account and shall comply with all Legal Requirements applicable  to the operation of the Income Account and the Escrow Account, including any Agency  guidelines with respect thereto.  Section 9. Facility Fee; Agent’s Fee.  9.1. Facility Fee.  The Seller agrees to pay to the Agent (for Pro Rata distribution to  the Buyers) a facility fee (the “Facility Fee”) on the Maximum Aggregate Commitment at a rate  of ten hundredths of one percent (0.10%) per annum, computed on the actual number of days  elapsed using a year of 360 days.  The Facility Fee shall be payable in arrears within ten (10)  days after the end of each calendar quarter, commencing with the quarter ending September 30,  2021, and on the Termination Date.  The calculation by Agent of the Amount of the Facility Fee  shall be conclusive and binding absent manifest error.  Such fee shall be deemed fully earned  upon receipt by Agent and shall not be refundable for any reason.  9.2. Agent’s Fees.  The Seller agrees to pay to the Agent the fees set forth in the  Fee Letter.  Section 10. Security Interest; License.  10.1. Intent of the Parties.  The parties intend that all Transactions hereunder be  sales and purchases (other than for accounting and tax purposes) and not loans; nonetheless, as a  security agreement under the UCC and as a security agreement or other arrangement or other  credit enhancement related to this Agreement and transactions hereunder as provided for in  Section 101(47) (A)(v) of the Bankruptcy Code, the Seller hereby pledges to the Agent for the  benefit of the Buyers as security for the performance by the Seller of the Obligations and hereby  grants, assigns and pledges to the Agent for the benefit of the Buyers a fully perfected first  priority security interest in all of the following, whether now owned or hereafter acquired,  wherever located (the “Collateral”):  (a) Purchased Loans: All of the Purchased Loans and all Income and proceeds from  the Purchased Loans, including all of the property, rights and other items  described in the definition of “Mortgage Loan” in Section 1.2 for each such  Purchased Loan and all rights to have, receive and retain the return or refund of  funds transferred from any account with the Agent to any title company, title  agent, escrow agent or other Person for the purpose of originating or funding a  Mortgage Loan that did not close (for any reason) and that would have been a  Purchased Loan if it had closed (all funds so transferred continuously remain the  





 






  64  Bodman_17772003_9  property of the Agent and the Buyers until disbursed by such agent to or for the  account of the related Customer upon the closing of his or her Mortgage Loan);  (b) With respect to the Purchased Loans:   (i) all Purchased Loans Support;  (ii) all of the Seller’s right, title and interest in all Mortgaged Premises related  to the Purchased Loans;  (iii) all rights to deliver Purchased Loans to investors and other purchasers and  all proceeds resulting from the disposition of Purchased Loans pursuant thereto, including  the Seller’s right and entitlement to receive the entire purchase price paid for Purchased  Loans sold;  (iv) all Hedge Agreements relating to or constituting any and all of the  foregoing or relating to the Obligations, including all rights to payment arising under  such Hedge Agreements;  (v) all Servicing Rights and Servicing Records in respect of any of the  Purchased Loans; and  (vi) all of the Seller’s rights now or hereafter existing in, to or under any MBS  secured by, created from or representing any interest in any of the Purchased Loans,  whether now owned or hereafter acquired by the Seller, and whether such MBS are  evidenced by book entry or certificate (the Agent’s ownership interest and security  interest in each MBS created from, based on or backed by Purchased Loans shall  automatically exist in, attach to, cover and affect all of the Seller’s right, title and interest  in that MBS when issued and its proceeds and the Agent’s ownership interest and  security interest in the Purchased Loans from which such MBS was so created shall  automatically terminate and be released when such MBS is issued, subject to automatic  reinstatement if such issuance is voided or set aside by any court of competent  jurisdiction), all right to the payment of monies and non-cash distributions on account of  any of such MBS and all new, substituted and additional securities at any time issued  with respect thereto;  (c) Related Accounts, Payment Intangibles, General Intangibles:  (i) all accounts, payment intangibles, general intangibles, documents  (including documents of title), chattel paper (including without limit electronic chattel  paper and tangible chattel paper), contract rights and proceeds, whether now or hereafter  existing (including all of the Seller’s present and future rights to have and receive interest  and other compensation, whether or not yet accrued, earned, due or payable, and all other  rights to payment), under or arising out of or relating to any of the Purchased Loans or  any of the MBS described in Section 10.1(b)(vi) above;  (ii) all instruments, documents or writings evidencing any such accounts,  payment intangibles, general intangibles, instruments, chattel paper, contract rights or  





 






  65  Bodman_17772003_9  proceeds or evidencing any monetary obligation under, or security interest in, any of the  Purchased Loans, all other papers delivered to the Agent or the Custodian, and all other  rights transferred to the Agent, in respect of any of the Purchased Loans or any of the  MBS described in Section 10.1(b)(vi) above, including, without limitation, the right to  collect, have and receive all insurance proceeds (including, but not limited to, casualty  insurance, mortgage insurance, pool insurance and title insurance proceeds) and  condemnation awards or payments in lieu of condemnation that may be or become  payable in respect of the Mortgaged Premises securing or intended to secure any  Purchased Loan, and other personal property of whatever kind relating to any of the  Purchased Loans or any of the MBS described in Section 10.1(b)(vi) above, in each case  whether now existing or hereafter arising, accruing or acquired;  (iii) all security for or claims against others in respect of any of the Purchased  Loans or any of the MBS described in Section 10.1(b)(vi) above; and  (iv) all proceeds and rights to proceeds of any sale or other disposition of any  of the Purchased Loans or any of the MBS described in Section 10.1(b)(vi) above;  (d) Repurchase Settlement Account, Operating Account, Funding Account and other  accounts: the Repurchase Settlement Account, the Operating Account, the Funding Account, the  Income Account, the Escrow Account, the Approved MBS Custodian Account and all cash and  all securities and other property from time to time on deposit in each such account;  (e) Loan Records: all Loan Records;  (f) Other Rights: all rights to have and receive any of the Purchased Loans or MBS  described above, all accessions or additions to and substitutions for any of such Purchased Loans  or MBS, together with all renewals and replacements of any of such Purchased Loans or MBS,  all other rights and interests now owned or hereafter acquired by the Seller in, under or relating  to any of such Purchased Loans or MBS or referred to above and all proceeds of any of such  Purchased Loans or MBS;  (g) Other Property in Possession of Agent: all goods, instruments (including, without  limit, promissory notes), documents (including, without limit, negotiable instruments), policies  and certificates of insurance, deposit accounts, and money or other property which are now or  later in possession of Agent, or as to which Agent now or later controls possession by documents  or otherwise; and  (h) Proceeds: all replacements, substitutions, renewals, interest, dividends,  distributions, rights of any kind, products, proceeds and rights to proceeds with respect to any  and all the foregoing.  The Seller agrees to do such things as applicable law requires to maintain the security  interest of the Agent in all of the Purchased Loans with respect to all such Transactions and all  Income and proceeds from the Purchased Loans that are the subject matter of such Transactions  and all of the other Collateral as a perfected first priority Lien at all times.  The Seller hereby  authorizes the Agent to file any financing or continuation statements under the applicable UCC  to perfect or continue such security interest in any and all applicable filing offices.  The Seller  





 






  66  Bodman_17772003_9  shall pay all customary fees and expenses associated with perfecting such security interest  including the costs of filing financing and continuation statements under the UCC and recording  assignments of Mortgages as and when required by the Agent in its reasonable discretion.  10.2. Remedies.  If an Event of Default shall have occurred and be continuing, the  Agent shall have the following rights and remedies (in addition to the other rights and remedies  under in this Agreement or any other Repurchase Document or applicable law):  (a) all of the rights and remedies of a secured party under the UCC (whether  or not the UCC applies to the affected Collateral) and the Agent may also, without  previous demand or notice except as specified herein or required by applicable law, sell,  lease or otherwise dispose of the Collateral, or any part thereof, in one or more parcels at  public or private sale or sales, at the Agent’s offices or elsewhere, for cash, on credit or  for future delivery, and upon such other terms as the Agent may, in its reasonable  discretion, deem commercially reasonable or otherwise as may be permitted by law;  collect, receive or take possession of the Collateral or any part thereof, and the Agent  and, subject to the terms of this Agreement, each of the Buyers shall have the right at any  public sale or sales, and, to the extent permitted by applicable law, at any private sale or  sales, to bid (which bid may be, in whole or in part, in the form of cancellation of  indebtedness) and become a purchaser of the Collateral or any part thereof free of any  right of redemption on the part of the Seller, which right of redemption is hereby  expressly waived and released by the Seller to the extent permitted by applicable law.   The Seller agrees that, in the event that applicable law requires such notice, the Agent  shall not be obligated to give more than ten (10) days prior written notice of the time and  place of any public sale or of the time after which any private sale may take place and  that such notice shall constitute reasonable notice of such matters.  The Agent shall not be  obligated to make any sale of Collateral if, in the exercise of its reasonable discretion, it  shall determine not to do so, regardless of the fact that notice of sale of Collateral may  have been given.  On any sale of the Collateral, the Agent is hereby authorized to comply  with any limitation or restriction with which compliance is necessary (based on a  reasoned opinion of the Agent’s counsel) in order to avoid any violation of applicable law  or in order to obtain any required approval of the purchaser or purchasers by any  applicable Governmental Authority. The Agent shall apply the proceeds from the sale of  the Collateral hereunder against the Obligations as set forth in Section 18.4;   (b) The Agent may cause any or all of the Collateral held by it to be  transferred into the name of the Agent or the name or names of the Agent’s nominee or  nominees.  (c) The Agent may exercise any and all rights and remedies of the Seller  under or in respect of the Collateral, including, without limitation, any and all rights of  the Seller to demand or otherwise require payment of any amount under, or performance  of any provision of any of the Collateral.  (d) The Agent may direct any parties liable for any payment under any of the  Collateral to make payment of any and all monies due and to become due thereunder  directly to the Agent or as the Agent shall direct.  





 






  67  Bodman_17772003_9  Section 11. Substitution.  11.1. Seller May Substitute Other Mortgage Loans with Notice to and Approval of  Agent.  So long as no Event of Default has occurred and is continuing and no Margin Deficit  exists or occurs as a consequence thereof, the Seller may request to substitute Mortgage Loans  for any substantially similar Purchased Loans by giving notice to the Agent and Custodian on or  before 12:00 noon (Detroit, Michigan time) on a Business Day, and delivering to the Custodian  the Mortgage Loan Transmission File with respect to the Mortgage Loans to be substituted and  other documents required to be delivered in connection with any new Transaction.  Upon receipt  of such request, and an updated Eligible Loans Report from the Custodian that takes into account  the requested substitution of Mortgage Loans, the Agent may elect in its sole discretion, by 5:00  p.m. (Detroit, Michigan time) on the Business Day notice is received or by 5:00 p.m. (Detroit,  Michigan time) on the next Business Day if notice is given after 12:00 noon (Detroit, Michigan  time), to accept such substitution.  If such substitution is accepted by the Agent, such substitution  shall be made by the Seller’s transfer to the Agent of such other Mortgage Loans on a servicing  released basis and the Agent’s transfer to the Seller of the Purchased Loans to be replaced, and  after such substitution, the substituted Mortgage Loans shall be deemed to be Purchased Loans.   If the Agent elects not to accept such substitution, the Seller shall offer the Agent and the Buyers  the right to terminate the related Transaction.  If Agent, in its sole discretion, accepts such offer,  then the Transaction shall be terminated as if a Disqualifier had occurred with respect to such  Transaction in accordance with Section 3.3(b).  11.2. Payment to Accompany Substitution.  If a substitution of Mortgage Loans or  termination of a Transaction occur under this Section 11, the Seller shall be obligated to pay to  the Agent (for Pro Rata distribution to the Buyers) by the close of the Business Day on the date  of such substitution or termination, as the case may be, an amount equal to the sum of (a) actual  cost (including all customary fees, expenses and commissions) to the Agent and the Buyers 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  the Agent determines not to enter into replacement Transactions, the loss incurred by the Agent  and the Buyers directly arising or resulting from such substitution or termination.  The foregoing  amounts shall be solely determined and calculated by the Agent and the applicable Buyers in  good faith.  Section 12. Payment and Transfer.  12.1. Immediately Available Funds; Notice to Custodian.  All transfers of funds  hereunder shall be in immediately available funds.  All Mortgage Loans transferred by one party  hereto to any other party shall be transferred by notice to the Custodian to the effect that the  Custodian is then holding for the benefit of the transferee the related documents and assignment  forms delivered to it under the Custody Agreement.  12.2. Payments to the Agent.  Except as otherwise specifically provided in this  Agreement, all payments required by this Agreement or the other Repurchase Documents to be  made to the Agent shall be paid to the Agent by no later than 1:00 p.m. (Detroit, Michigan time)  on the day when due (funds received after 1:00 p.m. (Detroit, Michigan time) shall be  





 






  68  Bodman_17772003_9  conclusively deemed to have been paid by the Seller on the next following Business Day unless  the Agent shall agree otherwise) and without set-off, counterclaim or deduction, in lawful money  of the United States of America in immediately available funds as provided in Section 24.4, or at  such other place as the Agent shall designate from time to time.  Whenever any payment to be  made under this Agreement or any of the other Repurchase Documents shall be stated to be due  on a day that is not a Business Day, the due date for that payment shall be automatically  extended to the next day that is a Business Day, and (if applicable) Price Differential at the  applicable rate (determined in accordance with this Agreement) shall continue to accrue during  the period of such extension.    12.3. If Payment Not Made When Due.  If and to the extent any payment is not made  when due under this Agreement or any of the other Repurchase Documents, the Seller authorizes  the Agent and each Buyer (for the Pro Rata account and benefit of all of the Buyers) then or at  any time thereafter to charge any amounts so due and unpaid against any or all of the Seller’s  accounts with the Agent or any of the Buyers; provided that such right to charge the Seller’s  accounts shall not apply to any escrow, trust or other deposit accounts designated as being held  by the Seller on behalf of third party owners of the escrowed funds other than Affiliates of the  Seller.  The Agent and each Buyer agrees to use reasonable efforts to promptly advise the Seller  of any charge made pursuant to this Section 12.3, but the failure to do so will not affect the  validity or collectability of such charge.  Neither the Agent nor any Buyer shall have any  obligation to charge any Seller account, merely the right to do so.  12.4. Payments Valid and Effective.  Each payment received by the Agent in  accordance with this Agreement is valid and effective to satisfy and discharge the Seller’s  liability under the Repurchase Documents to the extent of the payment.  12.5. Pro Rata Distribution of Payments.  The Agent shall distribute all payments of  Repurchase Price (whether voluntary or involuntary and from whatever source) received to the  Buyers Pro Rata with their respective ownership interests in the Purchased Loans on the next  Swing Line Refunding Due Date.  The distribution from the Agent to each Buyer shall be made  by the Agent’s initiating a federal funds wire transfer by 3:00 p.m. (Detroit, Michigan time) on  such Swing Line Refunding Due Date, in immediately available funds directly to such Buyer or  to such account at another financial institution as is designated from time to time by such Buyer  in writing.    Section 13. Segregation of Documents Relating to Purchased Loans .  All documents relating to Purchased Loans in the possession of the Seller or its designee  (including its agent, or any subservicer) shall be segregated from other documents and securities  in its or its designee’s possession and shall be identified as being owned by the Buyers and held  by the Agent on behalf of the Buyers (which shall be referenced in the relevant books and  records as “Comerica Bank, Agent”) and subject to this Agreement.  Segregation may be  accomplished by appropriate identification of ownership on the books and records of the holder  of such documents, including MERS, a documents custodian, a financial or securities  intermediary, or a clearing corporation.  All of the Seller’s interest in the Purchased Loans shall  pass to the Buyers on the Purchase Date and nothing in this Agreement shall preclude the Agent  and the Buyers, in each case with the Buyers’ consent, from engaging with others in repurchase  





 






  69  Bodman_17772003_9  transactions with the Purchased Loans or otherwise selling, transferring, pledging, or  hypothecating the Purchased Loans, but no such transaction shall relieve the Buyers of their  obligations to transfer Purchased Loans to the Seller pursuant to Section 2.6 or 18, or of the  Agent’s obligation to credit or pay Income to, or apply Income to the obligations of, the Seller  pursuant to Section 8.  Section 14. Conditions Precedent.  14.1. Initial Purchase.  The obligations of the Buyers (and the Agent on the Buyers’  behalf) to make the initial purchase under this Agreement are subject to the Seller’s fulfillment  of the following conditions precedent:  (a) the Agent shall have received (or be satisfied that it will receive by such  deadline as the Agent shall specify) the following, all of which must be satisfactory in  form and content to the Agent:  (i) this Agreement duly executed by the parties;  (ii) a UCC financing statement with respect to the Collateral;   (iii) a current UCC search report of a UCC filings search in the office  of the Secretary of State of the State of Delaware;  (iv) (A) the completed Beneficial Ownership Certification from the  Seller and (B) all other documentation and other information required by bank  regulatory authorities under applicable “know your customer” and anti-money  laundering rules and regulations, including USA Patriot Act, and a properly  completed and signed IRS Form W-8 or W-9, as applicable, for the Seller and any  Person who provides guaranty or collateral support for all or any of the  Obligations;   (v) a copy of the member resolution (or equivalent thereof) of the  Seller authorizing the execution, delivery and performance of the Repurchase  Documents, certified as of the date of this Agreement by a Responsible Officer of  the Seller;  (vi) an incumbency certificate showing the names and titles and  bearing the signatures of the Responsible Officer(s) of the Seller authorized to  execute the Repurchase Documents, certified as of the date of this Agreement by  a Responsible Officer of Seller;  (vii) a copy of the Operating Agreement of the Seller, certified as of the  date of this Agreement by the Secretary or an Assistant Secretary of the Seller;  (viii) a copy of the Articles of Organization of the Seller with all  amendments thereto, certified by the appropriate governmental official of the  jurisdiction of its incorporation as of a date acceptable to the Agent in its sole  discretion;  





 






  70  Bodman_17772003_9  (ix) a certificate of good standing (or the equivalent thereof) for the  Seller in the jurisdiction of its incorporation, certified by the appropriate  governmental officials as of a date acceptable to the Agent in its sole discretion;  (x) evidence reasonably satisfactory to the Agent (i) as to the due  filing and recording in all appropriate offices of all financing statements, (ii) if  there are any Purchased Loans that require the Buyers’ interest to be noted by  book entry, that such book entry has been duly made and (iii) if there is any  “investment property” under the UCC of the State of Michigan or other applicable  law, that such instruments as are necessary to give the Agent “control” of such  investment property have been duly executed by the Seller and the relevant  securities intermediary;  (xi) copies of an errors and omissions insurance policy or mortgage  impairment insurance policy and blanket bond coverage policy, or certificates in  lieu of policies, providing such insurance coverage as is customary for members  of the Seller’s industry; and  (xii) payment to the Agent or the Custodian, as applicable, of the  Facility Fee, the Agent’s Fee, the Custodian’s Fee and all other fees and expenses  (including the disbursements and reasonable fees of the Agent’s attorneys) of the  Agent and the Buyers payable by the Seller pursuant to Section 9 accrued and  billed for to the date of the Seller’s execution and delivery of this Agreement.  (b) Except with respect to (i) any mortgage warehouse loans from or  repurchase transactions with Parent permitted pursuant to Section 17.2(c) and (ii)  obligations to remit loan proceeds to Parent or its Affiliates arising out of a sale of homes  by Parent or such Affiliate financed by the Seller, all members and managers of the Seller  and all Affiliates of the Seller, to whom or which the Seller is indebted as of the date of  this Agreement in excess of One Million Dollars ($1,000,000), either for borrowed  money or for any other obligation, excluding salary, bonus or other compensation  obligations, shall have caused such Debt to be Qualified Subordinated Debt, by executing  and causing to be delivered to the Agent a Subordination Agreement and taking all other  steps, if any, required to cause such Debt to be Qualified Subordinated Debt, and a  Responsible Officer of the Seller shall have certified each such Subordination Agreement  executed to satisfy the requirements of this Section 14.1(b) to be true, complete and in  full force and effect as of the date of the initial purchase.  14.2. Each Purchase.  The obligations of the Buyers (and the Agent on the Buyers’  behalf) to make any purchase (including the initial purchase) under this Agreement are also  subject to the satisfaction, as of each Purchase Date, of the following additional conditions  precedent:  (a) The Seller shall have delivered to the Agent and the Custodian the related  Mortgage Loan Transmission Files for the new Mortgage Loans to be purchased.  





 






  71  Bodman_17772003_9  (b) Unless the requested Transaction is for the purchase of only Wet Loans,  the Custodian shall have issued its Exception Report relating to the Purchased Loans then  owned by the Buyers.  (c) The representations and warranties of the Seller contained in this  Agreement and the other Repurchase Documents shall be true and correct in all material  respects as if made on and as of each Purchase Date unless specifically stated to relate to  an earlier date.  (d) The Seller shall have performed all agreements to be performed by it  under this Agreement, the Custody Agreement and all other Repurchase Documents, as  well as under all Investor Commitments that the Seller has represented to the Agent and  the Buyers cover any of the Purchased Loans, and after the requested Transaction shall  have been executed, no Default or Event of Default has occurred and is continuing that  has not been waived by the Buyers or the Required Buyers, as applicable, nor will any  default exist under any such Investor Commitments.  (e) The Seller shall not have incurred any liabilities (whether or not in the  ordinary course of business) that adversely and materially affect any of the Central  Elements in respect of the Seller or any of its Subsidiaries since the dates of the Seller’s  Financial Statements most recently theretofore delivered to the Buyers.  (f) The Seller shall have paid the Agent’s Fee then due and payable in  accordance with Section 9.2.  (g) Prior to the execution of the requested Transaction, no Default or Event of  Default shall have occurred and be continuing, or will occur after giving effect to such  Transaction, that has not been waived by the Buyers or the Required Buyers, as  applicable.  (h) The requested Transaction will not result in the violation of any applicable  Legal Requirement.  (i) The Agent and each Buyer shall have received such other documents, if  any, as shall be specified by the Agent or any Buyer.  (j) No Margin Deficit exists or will exist after giving effect to such  Transaction.  (k) The Termination Date shall not have occurred.  (l) After giving effect to such Transaction, none of the sublimits set forth in  Section 4.2 shall be exceeded.   





 






  72  Bodman_17772003_9  Section 15. Representations, Warranties and Covenants .  15.1. Buyers, Agent and Seller Representations.  The Buyers, the Agent and the  Seller each represents and warrants, and shall on and as of the Purchase Date of any Transaction  be deemed to represent and warrant, to the others that:  (a) it is duly authorized to execute and deliver this Agreement, to enter into  the Transactions and to perform its obligations hereunder and has taken all necessary  action to authorize such execution, delivery and performance;  (b) it will engage in such Transactions as principal (or, in the case of the  Agent, and in respect of any other party if agreed in writing in advance of any  Transaction by the other parties hereto, as agent for a disclosed principal);  (c) the person signing this Agreement on its behalf is duly authorized to do so  on its behalf (or on behalf of any such disclosed principal);  (d) it has obtained all authorizations of any governmental body required in  connection with this Agreement and the Transactions and such authorizations are in full  force and effect; and  (e) the execution, delivery and performance of this Agreement and the  Transactions hereunder will not violate any law, ordinance, charter, by-law or rule  applicable to it or any agreement by which it is bound or by which any of its assets are  affected.  15.2. Additional Seller Representations.  With regard to:  (i) Purchased Loans, on and as of the Purchase Date of any Transaction;  (ii) Eligible Loans substituted pursuant to Section 11, on and as of the date of  their substitution; and  (iii) Additional Purchased Loans submitted pursuant to Section 6.1, on and as  of the date of their transfer to the Custodian,  the Seller hereby represents and warrants to the Buyers and the Agent as follows:  (a) Documents Genuine.  The documents delivered or disclosed by the Seller  to the Agent or the Buyers pursuant to this Agreement or the Custody Agreement are (i)  in the case of Wet-Ink Mortgage Loans, either original documents or genuine and true  copies thereof or (ii) in the case of an eMortgage Loan the copy of the related eNote  transmitted to the eVault is the single Authoritative Copy thereof .  (b) No Securities to be Acquired with Purchased Loan Sale Proceeds.  None  of the Purchase Price for any Eligible Loan will be used either directly or indirectly to  acquire any security, as that term is defined in Regulation T, and the Seller has not taken  





 






  73  Bodman_17772003_9  any action that might cause any Transaction to violate Regulation of T, Regulation U or  Regulation X.  (c) Organization; Good Standing; Subsidiaries.  The Seller is a limited  liability company duly organized, validly existing and in good standing under the laws of  the State of Delaware, and each of the Seller’s Subsidiaries is a corporation or limited  liability company duly formed, validly existing and in good standing under the laws of  the jurisdiction of its incorporation or organization.  The Seller has furnished to the Agent  a true and complete copy of its Organizational Documents as in effect as of the date of  this Agreement, including all amendments thereto, and agrees to furnish to the Agent a  true and complete copy of any amendment adopted after the Effective Date promptly  after it is adopted.  The Seller and its Subsidiaries each has the requisite limited liability  company or corporate power and authority to own its properties and to carry on its  business as currently conducted and each is duly qualified to do business as a foreign  corporation or a limited liability company and in good standing in each jurisdiction in  which the ownership of its property or the transaction of its business makes such  qualification necessary, except in jurisdictions, if any, where a failure to be qualified,  licensed or in good standing could not reasonably be expected to have a material adverse  effect on any of the Central Elements in respect of the Seller.  The Seller does not have  any Subsidiaries as of the Effective Date except as set forth on Exhibit C or as have been  disclosed by the Seller to the Agent in writing after the Effective Date.  Exhibit C states  the name of each such Subsidiary as of the Effective Date, place of organization, each  state in which it is qualified as a foreign entity and the percentage ownership of the  capital stock or other indicia of equity of each such Subsidiary by the Seller.  (d) Authorization and Enforceability.  The Seller has the requisite limited  liability company power and authority to execute, deliver and perform this Agreement,  the Custody Agreement and all other Repurchase Documents to which it is a party or in  which it joins or has joined.  The execution, delivery and performance by the Seller of  this Agreement, the Custody Agreement and all other Repurchase Documents to which it  is a party have each been duly and validly authorized by all necessary limited liability  company action on the part of the Seller (none of which has been modified or rescinded,  and all of which are in full force and effect) and do not and will not (i) conflict with or  violate any Legal Requirement, (ii) conflict with or violate the Organizational Documents  of the Seller, (iii) conflict with or result in a breach of or constitute a default under any  agreement, instrument or indenture binding on the Seller or (iv) require any consent  under any such agreement, instrument or indenture, where the conflict, violation, breach,  default or nonconsent could reasonably be expected to have a material adverse effect on  any of the Central Elements in respect of the Seller, or result in the creation of any Lien  upon any property or assets of the Seller, or result in or permit the acceleration of any  debt of the Seller pursuant to any agreement, instrument or indenture to which the Seller  is a party or by which the Seller or its property may be bound or affected.  This  Agreement, the Custody Agreement and all other Repurchase Documents constitute the  legal, valid, and binding obligations of the Seller enforceable in accordance with their  respective terms, except as limited by bankruptcy, insolvency or other such laws affecting  the enforcement of creditors’ rights generally, and subject to the general principles of  equity.  





 






  74  Bodman_17772003_9  (e) Approvals.  Neither the execution and delivery of this Agreement, the  Custody Agreement and all other Repurchase Documents nor the performance of the  Seller’s obligations under such Repurchase Documents requires any license, consent,  approval or other action of any state or federal agency or governmental or regulatory  authority other than (i) those that have been obtained or will be obtained by the time  required and that remain in full force and effect, (ii) those for which the Seller’s failure to  obtain them could not reasonably be expected to have a material adverse effect on any of  the Central Elements in respect of the Seller and (iii) the filing of any financing  statements.  (f) Financial Condition.  The Consolidated balance sheet of the Seller (and,  to the extent applicable, the Seller’s Consolidated Subsidiaries) and the related statements  of income, changes in stockholders’ equity, cash flows and Mortgage Loan production  (“Financial Statements”) for the fiscal year ended on the Statement Date (the “Statement  Date Financial Statements”), heretofore furnished to the Agent and the Buyers, fairly  present the financial condition of the Seller (and the Seller’s Consolidated Subsidiaries)  as of the Statement Date and the results of their operations for the fiscal period ended on  the Statement Date.  On the Statement Date, the Seller did not have either any known  material liabilities, direct or indirect, fixed or contingent, matured or unmatured, other  than the contingent liabilities (if any) set forth on Schedule 15.2(f) and contingent  liability on endorsements of negotiable instruments for deposit or collection in the  ordinary course of business, or any known material liabilities for sales, long-term leases  or unusual forward or long-term commitments, which are not disclosed by the Statement  Date Financial Statements or reserved against in them or that have not been otherwise  disclosed to the Buyers in writing.  Each of the Seller and each of its Subsidiaries is  Solvent, and since the Statement Date, (i) there has been no material adverse change in  any of the Central Elements in respect of the Seller, nor is the Seller aware of any state of  facts which (with or without notice, the lapse of time or both) would or could reasonably  be expected to result in any such material adverse change, and (ii) there have been no  unrealized or anticipated losses from any loans, advances or other commitments of the  Seller that have resulted in a material adverse change in the Central Elements in respect  of the Seller, except for the material adverse changes and losses (if any) that are  summarized in Schedule 15.2(f).  (g) Litigation.  Except as disclosed on Schedule 15.2(g) or except as disclosed  in the Statement Date Financial Statements or the most recent Financial Statements  furnished to the Agent and the Buyers (whichever is more current), there are no actions,  claims, suits or proceedings pending, or to the knowledge of the Seller, threatened in  writing against the Seller or any of its Subsidiaries in any court, before any other  Governmental Authority or before any arbitrator or in any other dispute resolution forum  that could reasonably be expected to result in a material adverse effect on any of the  Central Elements in respect of the Seller.  (h) Licensing.  The Seller and any subservicer of its Mortgage Loans are duly  registered as mortgage lenders, bankers or servicers in each state in which Mortgage  Loans have been or are from time to time originated, to the extent such registration is  required by any applicable Legal Requirement, except where the failure to register could  





 






  75  Bodman_17772003_9  not reasonably be expected to result in a material adverse effect on any of the Central  Elements in respect of the Seller or such subservicer.  (i) Compliance with Applicable Laws.  Neither the Seller nor any of its  Subsidiaries is in violation of any Legal Requirement, or any judgment, award, rule,  regulation, order, decree, writ or injunction of any court, other Governmental Authority  or public regulatory body that could reasonably be expected to have a material adverse  effect on any of the Central Elements in respect of the Seller.  (j) Regulation U.  The Seller is not engaged principally, or as one of its  important activities, in the business of extending credit for the purpose of purchasing or  carrying Margin Stock, and no part of the proceeds of any Transactions directly or  indirectly made available to or received by the Seller or for its account will be used,  directly or indirectly, for the purpose of purchasing or carrying any Margin Stock or to  extend credit to others for the purpose of purchasing or carrying any Margin Stock or for  the purpose of reducing or retiring any debt that was originally incurred to purchase or  carry any Margin Stock or to extend credit to others for the purpose of purchasing or  carrying any Margin Stock or that would constitute this transaction a “purpose credit”  within the meaning of Regulation U, as now or hereafter in effect.  (k) Investment Company Act.  The Seller is not required to be registered as an  “investment company” within the meaning of the Investment Company Act of 1940, as  amended.  (l) Payment of Taxes.  All material tax returns required to be filed by the  Seller and each Subsidiary in any jurisdiction have been filed or extended and all taxes,  assessments, fees and other governmental charges upon the Seller and each Subsidiary or  upon any of its properties, income or franchises shown to be due thereon have been paid  prior to the time that such taxes could give rise to a Lien thereon, unless protested in good  faith by appropriate proceedings and with respect to which reserves in conformity with  GAAP have been established on the books of the Seller or such Subsidiary.  Neither the  Seller nor any Subsidiary has any knowledge of any proposed tax assessment against the  Seller or any Subsidiary.  (m) Agreements.  Neither the Seller nor any of its Subsidiaries is a party to any  agreement, instrument or indenture or subject to any restriction, in each case materially  and adversely affecting any of the Central Elements in respect of the Seller except as  disclosed in (i) the Statement Date Financial Statements, or (ii) Schedule 15.2(f).  Neither  the Seller nor any Subsidiary is in default in the performance, observance or fulfillment  of any of its obligations, covenants or conditions contained in any agreement, instrument  or indenture that could reasonably be expected to have a material adverse effect on any of  the Central Elements in respect of the Seller.  No holder of the Seller’s or any such  Subsidiary’s debt or other obligations has given written notice of any default that could  reasonably be expected to have a material adverse effect on any of the Central Elements  in respect of the Seller.  No liquidation or dissolution of the Seller is pending or, to the  Seller’s knowledge, threatened and no liquidation or dissolution of any Subsidiary is  pending or threatened that could reasonably be expected to have a material adverse effect  





 






  76  Bodman_17772003_9  on any of the Central Elements in respect of the Seller.  No receivership, insolvency,  bankruptcy, reorganization or other similar proceedings relative to the Seller or any of its  properties is pending, or to the Seller’s knowledge, threatened.  No receivership,  insolvency, bankruptcy, reorganization or other similar proceedings relative to any  Subsidiary of the Seller or any of its properties is pending, or to the Seller’s knowledge,  threatened that could reasonably be expected to have a material adverse effect on any of  the Central Elements in respect of the Seller.  (n) Title to Properties.  The Seller and each of its Subsidiaries has good, valid,  insurable (in the case of real property) and marketable title to all of its material Properties  and assets (whether real or personal, tangible or intangible) that are reflected on or  referred to in the Statement Date Financial Statements or in the more current Financial  Statements (if any) most recently furnished to the Buyer after the Effective Date, except  for such properties and assets as have been disposed of since the date of such current  Financial Statements either in the ordinary course of business or because they were no  longer used or useful in the conduct of its business, and all such Properties and assets are  free and clear of all Liens except for (i) the lien of current (nondelinquent) real and  personal property taxes and assessments, (ii) covenants, conditions and restrictions, rights  of way, easements and other matters to which like properties are commonly subject that  do not materially interfere with the use of the property as it is currently being used and  (iii) such other Liens, if any, that are permitted pursuant to Section 17.8.  (o) The Seller’s Address.  The Seller’s chief executive office and principal  place of business are at 7390 South Iola, Englewood, CO 80112, or at such other address  as shall have been set forth in a written notice to the Agent given subsequent to the  Effective Date and at least ten (10) Business Days before such notice’s effective date.  (p) ERISA.  The Seller does not maintain any ERISA Plans and shall not adopt  or agree to maintain or contribute to an ERISA Plan.  The Seller shall promptly notify the  Agent and each Buyer in writing in the event an ERISA Affiliate adopts an ERISA Plan.   The Seller is not an employer under any Multiemployer Plan or any other Plan subject to  Title IV of ERISA.  (q) Commissions.  Neither the Seller nor any of its Affiliates have dealt with  any broker, investment banker, agent or other person, except for the Agent and the  Buyers, who may be entitled to any commissions or compensation in connection with the  sale of Purchased Loans pursuant to this Agreement.  (r) Full Disclosure.  All information previously furnished by the Seller and its  Subsidiaries to the Agent in connection with the Repurchase Documents was and all  information furnished in the future by the Seller and its Subsidiaries to the Agent or the  Buyers will be true and accurate in all material respects or based on reasonable estimates  on the date the information is stated or certified.  To the best knowledge of the Seller,  neither the financial statements referred to in Section 15.2(f), nor any  Request/Confirmation, officer’s certificate or any other report or statement delivered by  the Seller and its Subsidiaries to the Agent in connection with this Agreement, contains  any untrue statement of material fact.  





 






  77  Bodman_17772003_9  (s) Corporate Documents and Corporate Existence.  As to the Seller and each  Subsidiary of Seller, (i) it is an organization as described on Schedule 15.2(s) hereto and  has provided the Agent and the Buyers with complete and correct copies of its articles of  organization, operating agreements, and all other applicable charter and other  organizational documents, and, if applicable, a good standing certificate and (ii) as of the  Effective Date, its correct legal name, business address, type of organization and  jurisdiction of organization, tax identification number and other relevant identification  numbers are set forth on Schedule 15.2(s) hereto.  The Agent and the Buyers  acknowledge that the Seller has dissolved and liquidated its wholly-owned subsidiary,  Joliet Mortgage Reinsurance Corporation, and have previously consented to such actions.  (t) Beneficial Ownership.  As of the Effective Date, to the best knowledge of  the Seller, the information included in the Beneficial Ownership Certification provided  on or prior to the Effective Date to Agent or any Buyer in connection with this  Agreement is true and correct in all respects.  15.3. Special Representations Relating to the Purchased Loans.  The representations  and warranties concerning each Purchased Loan, as set forth on Schedule 15.3 hereto, are  incorporated herein.    15.4. Representations and Warranties Relating to Specific Transactions.  At the time  each Request/Confirmation is provided to the Agent, the Buyers and/or the Custodian, the  following are true with respect to each of the Mortgage Loans listed on the Mortgage Loan  Transmission Files attached to such Request/Confirmation or submitted in connection with such  Request/Confirmation:  (a) the Basic Papers have been or will be executed and delivered by all  appropriate Persons;  (b) the Seller is electronically communicating to the Custodian a complete  Mortgage Loan Transmission File, and the information stated for such Mortgage Loan in  such standard Mortgage Loan Transmission File is correct and complete in accordance  with the Record Layout;  (c) such Mortgage Loan has been, or will be concurrent with funding of the  Purchase Price for such Mortgage Loan, originated, closed, funded and (if applicable)  negotiated and assigned to the Seller;  (d) for each such Mortgage Loan being offered as a Dry Loan, the Basic  Papers are being concurrently delivered to the Custodian;  (e) for each Mortgage Loan being offered as a Wet Loan, the complete File  for such Mortgage Loan, including all Basic Papers and all Supplemental Papers, is or  will be in the possession of either that Mortgage Loan’s closer, or the Seller, its Basic  Papers are in the process of being delivered to the Custodian and such Basic Papers will  be delivered to the Custodian on or before the expiration of the Wet Loan Period for such  Mortgage Loan specified above and without limitation of the foregoing, the Seller will  promptly deliver (or cause to be delivered) to the Custodian either the original  





 






  78  Bodman_17772003_9  recordation receipts or the original recorded Mortgage or Mortgage Assignment included  in the Purchased Loans showing the recordation data thereon;  (f) no Default or Event of Default has occurred and is continuing and there  has been no material adverse change in any of the Central Elements in respect of the  Seller since the date of the Seller’s most recent annual audited Financial Statements that  have been delivered to the Agent and the Buyers;  (g) all items that the Seller is required to furnish to the Buyers, the Agent or  the Custodian in connection with the requested Transaction and otherwise have been  delivered, or will be delivered before the Purchase Date specified in the applicable  Request/Confirmation, in all respects as required by this Agreement and the other  Repurchase Documents.  All documentation described or referred to in the Mortgage  Loan Transmission File submitted to the Agent and the Custodian in connection with the  applicable Request/Confirmation conforms in all respects with all applicable  requirements of this Agreement and the other Repurchase Documents; and  (h) none of the Purchased Loans (including, but not limited to, the Purchased  Loans identified in the applicable Request/Confirmation) has been sold to any Person  other than the Buyers (except for Purchased Loans previously sold to the Parent under the  Parent Repurchase Agreement, provided that the Parent Custodian has released all Liens  and other right, title and interest in and to said Purchased Loans in connection with such  Repurchase), is pledged to any Person other than the Agent, for the benefit of itself and  the Buyers, or supports any borrowing or repurchase agreement funding other than  purchases under this Agreement.  15.5. Survival.  All representations and warranties by the Seller shall survive  delivery of the Repurchase Documents and the sales of the Purchased Loans, and any  investigation at any time made by or on behalf of the Buyers or the Agent shall not diminish any  Buyer’s or the Agent’s right to rely on them.  Section 16. Affirmative Covenants .  The Seller agrees that, until all of Seller’s Obligations (other than contingent  reimbursement and indemnification obligations as to which no claim has been asserted) have  been paid or performed in full, all Purchased Loans have been repurchased and the Agent and the  Buyers have no further Commitments or other obligations under this Agreement or the other  Repurchase Documents:  16.1. Office of Foreign Assets Control and USA Patriot Act.  (a) The Seller will not knowingly directly or indirectly use any of the  proceeds from the sale of the Purchased Loans, or lend, contribute or otherwise make  available any such proceeds to any subsidiary, joint venture partner or other person or  entity, for the purpose of financing the activities of any person or entity that is subject to  sanctions under any program administered by the Office of Foreign Assets Control of the  United States Department of the Treasury, including those implemented by regulations  codified in Subtitle B, Chapter V, of Title 31, Code of Federal Regulations.  





 






  79  Bodman_17772003_9  (b) The Seller will not (i) be or become subject at any time to any law,  regulation or list of any government agency (including the U.S. Office of Foreign Asset  Control list) that prohibits or limits the Buyers or the Agent from entering into any  Transaction with the Seller or from otherwise conducting business with the Seller, or  (ii) fail to provide documentary and other evidence of the Seller’s identity as may be  requested by the Agent or any Buyer at any time to enable the Agent and the Buyers to  verify the Seller’s identity or to comply with any applicable law or regulation, including  Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.  16.2. Financial Statements.  The Seller will deliver to the Agent, and Agent shall  promptly after receipt thereof make available to Buyers by electronic communication (including  email and Internet or intranet websites) pursuant to procedures determined by Agent:  (a) As soon as available and in any event within thirty (30) days after the end  of each month (including each quarter end month), other than each year end month, and  within forty-five (45) days after the end of each year end month, Financial Statements for  the Seller and its Subsidiaries for the month just ended, all in reasonable detail, and  certified by a Responsible Officer of the Seller that such Financial Statements were  prepared in accordance with GAAP and present fairly in all material respects the Seller’s  and its Consolidated Subsidiaries’ financial condition as of the date thereof and the  results of their operations for the period covered, subject, however, to normal year-end  audit adjustments and the omission of notes and schedules to the Financial Statements.  (b) As soon as available and in any event within one hundred (120) days after  the close of each of the Seller’s fiscal years, audited Consolidated Financial Statements  for the Seller and its Consolidated Subsidiaries, for such year, and the related balance  sheet as at the end of such year (setting forth in comparative form the corresponding  figures as of the end of and for the preceding fiscal year), all in reasonable detail,  prepared in accordance with GAAP and with all notes, and accompanied by:  (i) a report and unqualified opinion of a firm of independent certified  public accountants of recognized standing selected by the Seller and reasonably  acceptable to the Agent (as of the Effective Date, Ernst & Young is acceptable to  the Agent), stating that such accountants have audited such Financial Statements  in accordance with generally accepted auditing standards and that, in their  opinion, such Financial Statements present fairly, in all material respects, the  Consolidated financial condition of the Seller and its Consolidated Subsidiaries,  as of the date thereof and the Consolidated results of its operations and cash flows  for the periods covered thereby in conformity with GAAP; and  (ii) a certificate signed by a Responsible Officer of the Seller stating  that said Financial Statements fairly present the Consolidated financial condition  and results of operations (for the Seller and its Consolidated Subsidiaries) as at  the end of, and for, such year.  





 






  80  Bodman_17772003_9  The Seller also agrees to provide to the Agent and the Buyers such other information  related to such annual reports or concerning the Seller’s finances or operations as the  Agent or any Buyer may from time to time reasonably request.  (c) Responsible Officer’s Certificate.  Together with each of the monthly and  annual Financial Statements required by Sections 16.2(a) , and (b) above, a certificate of  a Responsible Officer of Seller in the form of Exhibit B, among other things, (i) setting  forth in reasonable detail all calculations necessary to show whether the Seller is in  compliance with the requirements of Sections 16.18 of this Agreement or, if the Seller is  not in compliance, showing the extent of noncompliance and specifying the period of  noncompliance and what actions the Seller proposes to take with respect thereto and  (ii) stating that the terms of this Agreement have been reviewed by such Responsible  Officer or under his or her supervision, and that he or she has made or caused to be made  under his or her supervision, a review in reasonable detail of the transactions and the  condition of the Seller during the accounting period covered by such Financial  Statements and that such review does not disclose the existence during or at the end of  such accounting period and that such Responsible Officer does not have knowledge of  the existence as of the date of the Officer’s Certificate of any Event of Default or Default  or, if any Event of Default or Default existed or exists, specifying the nature and period  of its existence and what action the Seller has taken, is taking and proposes to take with  respect to it.  16.3. Financial Statements Will Be Accurate.  The Seller agrees that all Financial  Statements and reports of auditors furnished to the Agent and the Buyers will be prepared in  accordance with GAAP, applied on a basis consistent with that applied in preparing the  Statement Date Financial Statements as at the date thereof and for the period then ended, subject,  however for Financial Statements other than year-end statements to year-end audit adjustments  and the omission of footnotes and schedules.  16.4. Other Reports.  The Seller will promptly furnish to the Agent from time to time  information regarding the business and affairs of the Seller (and, upon the written request of any  Buyer, such information reasonably requested by such Buyer), including the following and such  other information as the Agent may from time to time reasonably request (each report required  must be signed by a Responsible Officer of the Seller, and the Agent and the Buyers will have no  responsibility to verify or track any of the items referenced or conclusions stated in such reports  or to verify the authority of its signer):  (a) Such reports by the Seller in respect of the Purchased Loans, in such detail  and at such times as the Agent or any Buyer in its reasonable discretion may request at  any time or from time to time.  (b) Within thirty (30) days after request by the Agent, but no sooner than  ninety (90) days after the beginning of each fiscal year of the Seller, projected financial  information for such fiscal year consisting of income statements and loan production  estimates for each month in such fiscal year and a projected balance sheet of the Seller as  at the end of each month, together with supporting assumptions, all in reasonable detail  and reasonably satisfactory in scope to the Agent.   





 






  81  Bodman_17772003_9  (c) Promptly provide Agent and the Buyers with any information and  documentation reasonably requested by the Agent or any Buyer for purposes of  compliance with applicable “know your customer” anti-money laundering rules and  regulations, including under the USA Patriot Act and any the Beneficial Ownership  Regulation.  (d) As soon as available and in any event within thirty (30) days after the end  of each month, other than each year end month, and within forty-five (45) days after the  end of each year end month, a monthly report detailing compliance with the transaction  limits and transaction sublimits set forth in Section 4.1 and Section 4.2, in form and detail  reasonably satisfactory to Agent.  (e) Within 15 days after request by the Agent, a copy of each agency audit,  including audits of HUD, any Agency and any other Approved Investors, and copies of  Seller’s responses within 15 days of filing or submission.  (f) As soon as available and in any event within thirty (30) days after and as  of the end of each calendar quarter, other than each year end month, and within forty-five  (45) days after the end of each year end month, commencing with the quarter ending June  30, 2021, a repurchase, settlement and indemnification report in the form attached as  Exhibit F;  (g) As soon as available, and in any event within thirty (30) days after and as  of the end of each month, other than each year end month, and within forty-five (45) days  after the end of each year end month, a secondary marketing report (including a monthly  pipeline position report) in form and detail reasonably satisfactory to Agent;  (h) as soon as available, and in any event within thirty (30) days after and as  of the end of each month, other than each year end month, and within forty-five (45) days  after the end of each year end month, a loan production report in form and detail  reasonably satisfactory to Agent.  16.5. Maintain Existence and Statuses; Conduct of Business.  The Seller agrees to  preserve and maintain its existence in good standing and all of its rights, privileges, licenses and  franchises necessary or desirable in the normal conduct of its business except where the failure to  maintain such rights, privileges, licenses or franchises could not reasonably be expected to have  a material adverse effect on any of the Central Elements in respect of the Seller, and the Seller  will continue in the residential mortgage lending business as its principal and core business.  16.6. Compliance with Applicable Laws.  The Seller and its Subsidiaries will comply  with all applicable Legal Requirements, the breach of which could reasonably be expected to  materially adversely affect any of the Central Elements with respect to the Seller and its  Subsidiaries, taken as a whole, except where contested in good faith.  





 






  82  Bodman_17772003_9  16.7. Inspection of Properties and Books; Protection of Seller’s Proprietary  Information; Buyers’ Due Diligence of Seller.  (a) The Seller agrees to permit the Agent and the Buyers, subject to the  provisions of Section 24.6, to perform continuing loan level due diligence reviews with  respect to the Purchased Loans, for purposes of verifying compliance with the  representations, warranties and specifications made in this Agreement or otherwise, and  the Seller agrees that upon three (3) Business Days prior notice to the Seller, the Agent or  their authorized representatives will be permitted timely and reasonable access to  examine, inspect, and make copies and extracts of the related mortgage loan files and any  and all documents, records, agreements, instruments or information relating to such  Purchased Loans in the possession or under the control of the Seller, any Servicer or the  Custodian.  The Seller also shall make available to the Agent a knowledgeable financial  or accounting officer for the purpose of answering questions respecting the mortgage loan  files and the Purchased Loans.  Without limiting the generality of the foregoing, the  Seller acknowledges that the Buyers may purchase Eligible Loans from the Seller based  solely upon the information provided by the Seller to the Agent in the Mortgage Loan  Transmission File and the representations, warranties and covenants contained in this  Agreement, and that the Agent and the Buyers, at their option, have the right at any time  upon three (3) Business Days prior notice to the Seller to conduct a partial or complete  due diligence review on some or all of the Purchased Loans prior to or following their  purchase in a Transaction, including ordering new credit reports and new appraisals on  any property securing any Purchased Loan and otherwise re-generating the information  used to originate such Purchased Loan.  Notwithstanding any provision to the contrary  herein regarding three (3) Business Days prior notice to the Seller, if an Event of Default  shall have occurred and be continuing, then the Agent, upon notice to the Seller, shall  have the right to immediate access and review of the Seller and the loan information  contemplated in this Section 16.7(a), provided that to the extent that the Seller does not  have possession of such loan information, the Seller shall cause the applicable Servicer or  subservicer to provide the Agent and the Buyers with access and review of such loan  information within a reasonable period of time, but not to exceed any prior notification  time provided under the related Servicing Agreement with such Servicer or subservicer.   The Agent may conduct the due diligence review of such Purchased Loans itself or  engage a third party underwriter selected by the Agent to perform such review.  The  Seller agrees to, and to cause any relevant Servicer and its subservicer to, reasonably  cooperate with the Agent and any third party underwriter in connection with such due  diligence review, including providing the Agent and any third party underwriter with  access to any and all documents, records, agreements, instruments or information relating  to such Purchased Loans in the possession, or under the control, of the Seller, such  Servicer and such subservicer.  The Seller agrees to pay all reasonable out-of-pocket  costs and expenses of the Agent in connection with up to two (2) inspections, visits and  reviews under this Section 16.7(a) per calendar year, unless a Default or Event of Default  has occurred and is continuing, in which case all such costs and expenses of the Agent  and any Buyer incurred in the exercise of their rights pursuant to this Section 16.7(a)  shall be paid by the Seller.  Such visits shall be coordinated by the Agent.  





 






  83  Bodman_17772003_9  (b) The Seller agrees to permit authorized representatives of the Agent and  each Buyer to discuss onsite the business, operations, assets and financial condition of the  Seller and its Subsidiaries with their respective officers, employees and independent  accountants and to examine their books of account and make copies or extracts of them,  all at such reasonable times, and upon three (3) Business Days prior notice (or, if an  Event of Default shall have occurred and be continuing, immediately following notice to  the Seller) as the Agent or any Buyer may request, for any or all of the purposes of  ordinary diligence, performing the Buyers’ duties (and any of the Seller’s duties that the  Seller has not performed) and enforcing the Buyers’ and the Agent’s rights under this  Agreement.  The Agent or the Buyer acting will notify the Seller before contacting the  Seller’s accountants and the Seller may have its representatives in attendance at any  meetings between the officers or other representatives of the Agent or any Buyer and  such accountants held in accordance with this authorization. The Agent and each Buyer  agrees that it will prevent disclosure by itself or its authorized representatives to third  parties of any proprietary information it has received pursuant to this Agreement and will  maintain the confidential nature of such material; provided that this restriction shall not  apply to information  that (i) at the time in question has already entered the public  domain, (ii) is required to be disclosed by any Legal Requirement (including pursuant to  any examination, inspection or investigation by any Governmental Authority having  regulatory jurisdiction over any Buyer or the Agent), (iii) that is furnished by the Agent  or any Buyer to purchasers or prospective purchasers of participations or interests in the  Purchased Loans so long as such purchasers and prospective purchasers have agreed to  be subject to restrictions substantially identical to those contained in this sentence,  (iv) the disclosure of which the Agent and the Buyers deem necessary to market or sell  Purchased Mortgage Loans or to enforce or exercise their rights under any Repurchase  Document as long as any recipients have agreed to be subject to restrictions substantially  similar to those in this sentence, or (v) is disclosed by any Buyer to its attorneys,  employees, agents and auditors during the performance of their respective duties, subject  to the restrictions set forth in this sentence.  16.8. Notice of Suits, Etc..  The Seller will, as soon as reasonably practical and in any  case no later than three (3) Business Days next following the day when the Seller first learns of  it, give written notice to the Agent and the Buyers of:  (a) any material action, suit or proceeding instituted by or against the Seller or  any of its Subsidiaries in any federal or state court or before any commission, regulatory  body or Governmental Authority, or if any such proceedings are threatened against the  Seller or any of its Subsidiaries, in a writing containing the applicable details;  (b) the filing, recording or assessment of any material federal, state or local  tax lien against the Seller or any of its Subsidiaries or any assets of any of them;  (c) the occurrence of any Event of Default;  (d) the occurrence of any Default;  





 






  84  Bodman_17772003_9  (e) the termination of, or the occurrence of any event that, with or without  notice or lapse of time or both, would constitute a default under the Custody Agreement  or MBS Custodial Agreement;  (f) any material adverse finding under any agency audit, including audits of  HUD, any Agency and any other Approved Investors, conducted with respect to the  Seller and/or any of its assets;  (g) the occurrence of:  (i) any event that, with or without notice or lapse of time or both,  would constitute a default under, or permit the acceleration or termination of, any  other agreement, instrument or indenture to which the Seller or any of its  Subsidiaries is a party or to which any of them or any of their properties or assets  may be subject if either (A) the effect of any such default is or if uncured and  unwaived after notice, the lapse of time or both, would be to cause, or to permit  any other party to such agreement, instrument or indenture (or a trustee on behalf  of such a party) to cause, Debt for borrowed money (including, but not limited to,  Debt under a repurchase agreement, reverse repurchase agreement, mortgage  warehouse line of credit, sale/buy-back agreement or like arrangement) of the  Seller or any of its Subsidiaries in excess of $1,000,000 in the aggregate, and/or  other Debt of the Seller or any of its Subsidiaries in excess of $2,000,000 in the  aggregate to become or be declared due before its stated maturity or (B) such  default, if uncured and unwaived after any relevant notice, the lapse of time or  both, could reasonably be expected to result in a material adverse effect on any of  the Central Elements in respect of the Seller;  (ii) any other action, event or condition of any nature (excluding  general economic conditions) that, if unremedied after any relevant notice, lapse  of time or both, could reasonably be expected to result in either (A) the Seller’s  being in breach of or out of compliance with any provision of Section 16.18  (Financial Covenants) or (B) a material adverse effect on any of the Central  Elements in respect of the Seller; or  (iii) any Prohibited Transaction with respect to any Plan, specifying the  nature of the Prohibited Transaction and what action the Seller proposes to take  with respect to it.  16.9. Payment of Taxes, Etc.  The Seller will, and will cause each of its Subsidiaries  to, pay and discharge or cause to be paid and discharged promptly all taxes, assessments and  governmental charges or levies imposed upon it or its Subsidiaries or upon their respective  income, receipts or properties before they become past due, as well as all lawful claims for labor,  materials and supplies or other things that, if unpaid, could reasonably be expected to become (or  result in the placement of) a Lien or charge upon any part of such properties; provided that it and  its affected Subsidiaries shall not be required to pay taxes, assessments or governmental charges  or levies or claims for labor, materials or supplies that are being contested in good faith and by  proper proceedings being reasonably and diligently pursued, execution or enforcement of which  





 






  85  Bodman_17772003_9  has been effectively stayed (by the posting of a bond or other security sufficient to achieve that  result, or by any other fully effective means), and for which reserves determined to be adequate  (in accordance with GAAP in all material respects) have been set aside on its books.  16.10. Insurance; Fidelity Bond.  The Seller will, and will cause each of its  Subsidiaries to:  (a)  maintain liability insurance protecting the Seller and its Subsidiaries  against fire and other hazard insurance on its respective properties from which it conducts  its business, with responsible insurance companies, in such amounts and against such  risks as is customarily carried by similar businesses operating in the same vicinity.   Copies of such policies shall be furnished to the Agent without charge upon the Agent’s  request made from time to time; and  (b) obtain and maintain at its own expense and keep in full force and effect a  blanket fidelity bond and an errors and omissions insurance policy covering the Seller's  officers and employees and other persons acting on behalf of the Seller.  The amount of  coverage shall be at least equal to the coverage that would be required by Fannie Mae or  Freddie Mac, whichever is greater, with respect to the Seller if the Seller were servicing  and administering the Mortgage Loans for Fannie Mae or Freddie Mac.  In the event that  any such bond or policy ceases to be in effect, the Seller shall obtain a comparable  replacement bond or policy, as the case may be, meeting the requirements of this  Section 16.10(b).  Coverage of the Seller under any policy or bond obtained by an  Affiliate of the Seller and providing the coverage required by this Section 16.10(b) shall  satisfy the requirements of this Section 16.10(b).  Such bond and insurance policies shall  name Agent as an additional insured and loss payee.  Upon the request of the Agent, the  Seller shall cause to be delivered to the  Buyer evidence of such fidelity bond and  insurance policies.  16.11. eMortgage Loans.  Seller shall (i) at all times, maintain its status as a member  of and participant in the MERS eRegistry in good standing, (ii) at all times remain in compliance  in all material respects with all terms and conditions of membership in MERS eRegistry  including, but not limited to, the MERS Procedures Manual and the MERS eRegistry procedures,  (iii) not cause or permit the Location status, Controller status, Secured Party status, Secured  Party Delegatee status, Delegatee status, Master Servicer Field or Subservicer Field on the  MERS eRegistry of any eNote pledged or sold to Agent or any Buyer to be other than as required  by paragraphs (16) and (24) of the definition of Eligible Loan, or cause or permit a Control  Failure to occur with respect to any such eNote, or paper-out any such eNote.  16.12. Subordination of Certain Indebtedness.  The Seller will cause any and all debt  and obligations of the Seller to any Affiliate or any member, manager, stockholder, director or  officer of the Seller or any Affiliate in excess of One Million Dollars ($1,000,000) (excluding (x)  debt for directors’ or officers’ salary, bonuses, directors’ fees or other compensation for service,  (y) any mortgage warehouse loans from or repurchase transactions with Parent permitted  pursuant to Section 17.2(c) and (z) obligations to remit loan proceeds to Parent or its Affiliates  arising out of a sale of homes by Parent or such Affiliate financed by the Seller) to be Qualified  Subordinated Debt by the execution and delivery by such Affiliate or member, manager,  





 






  86  Bodman_17772003_9  stockholder, director or officer, as applicable, to the Agent of a Subordination Agreement and the  taking of all other steps (if any) required to cause such Debt to be Qualified Subordinated Debt  and deliver to the Agent an executed copy of that Subordination Agreement, certified by the  corporate secretary or assistant secretary of the Seller to be true and complete and in full force  and effect, as to all such present and future debts and obligations of the Seller.  16.13. Certain Debt to Remain Unsecured.  Except for obligations of Seller to Parent  under the Parent Repurchase Agreement with respect to Mortgage Loans (other than Purchased  Loans) purchased by Parent from Seller, the Seller will cause any and all obligations of the Seller  to any shareholder, officer or Affiliate of the Seller, whether such debt exists as of the Effective  Date or is incurred in the future, to remain at all times unsecured.  16.14. Promptly Correct Escrow Imbalances.  By no later than seven (7) Business  Days after learning (from any source) of any material imbalance in any escrow account(s)  maintained by the Seller (or any subservicer for it), the Seller will fully and completely correct  and eliminate such imbalance.  16.15. MERS Covenants.  The Seller will:  (a) be a “Member” (as defined in the MERS Agreements) of MERSCORP;  (b) maintain the Electronic Tracking Agreement in full force and effect and  timely perform in all material respects all of its obligations thereunder;  (c) provide the Agent with copies of any new MERS Agreement or any  amendment, supplement or other modification of any MERS Agreement (other than the  Electronic Tracking Agreement);  (d) not amend, terminate or revoke, or enter into any agreement that is  inconsistent with or contradicts any provision of the Electronic Tracking Agreement;  (e) identify to the Agent each Purchased Loan that is registered in the MERS  System, at the earlier of the time it is so registered or the time it is purchased or deemed  purchased hereunder, as so registered;  (f) at the request of the Agent, take such actions as may be requested by the  Agent to:  (i) transfer beneficial ownership of any Purchased Loan to the Agent  on behalf of the Buyers on the MERS System; or  (ii) de-register or re-register any Purchased Loan on, or withdraw any  Purchased Loan from, the MERS System;  





 






  87  Bodman_17772003_9  (g) provide the Agent with copies of any or all of the following reports with  respect to the Purchased Loans registered on the MERS System at the request of the  Agent:  (i) Change Notification Report (VB);  (ii) MIN Milestones Report (VA); and  (iii) such other reports as the Agent may reasonably request to verify  the status of any Purchased Loan on the MERS System;  (h) notify the Agent of any withdrawal or deemed withdrawal of the Seller’s  membership in the MERS System or any deregistration of any Purchased Loan  previously registered on the MERS System; and  (i) obtain the prior written consent of the Agent before entering into an  electronic tracking agreement (other than the Electronic Tracking Agreement) with any  other Person.  16.16. Special Affirmative Covenants Concerning Purchased Loans.  (a) Until both (i) all of the Purchased Loans shall have been repurchased by  the Seller and (ii) the Buyers have no obligation to purchase any additional Mortgage  Loans hereunder or provide any other financial accommodations to the Seller under or  otherwise in respect of this Agreement, the Seller warrants and will defend the right, title  and interest of the Buyers and the Agent in and to the Purchased Loans against the claims  and demands of all persons whomsoever.  (b) The Seller shall maintain, at its principal office or in a regional office  reasonably approved by the Agent, or in the office of a computer service bureau engaged  by the Seller and reasonably approved by the Agent, and upon request shall make  available to the Agent and the Custodian the originals of all Loan Papers and related  instruments (except that with respect to eMortgage Loans, the single Authoritative Copy  of the related eNote shall be maintained in the eVault), and all files, surveys, certificates,  correspondence, appraisals, computer programs, tapes, discs, cards, accounting records  and other information and data relating to the Purchased Loans that are held by or under  the direction or control of the Seller or any of its Affiliates and that have not already been  provided to the Agent or the Custodian.  (c) The Seller shall ensure that, if a Mortgage Loan that is to be funded and  sold to the Buyers as a Wet Loan does not close on the proposed Purchase Date, all  amounts remitted by the Agent for the payment of the Purchase Price shall be returned  promptly within two (2) Business Days to the Agent for the benefit of the Buyers and if  such funds are not so returned, the Seller shall pay promptly within two (2) Business  Days a like amount to the Agent for the benefit of the Buyers plus any accrued Price  Differential.  The Seller acknowledges that until such time as the Mortgage Loan is  deemed to have been sold to the Buyers, the Seller has no interest in, nor any claim to  





 






  88  Bodman_17772003_9  such amounts and shall, if it receives such amounts, hold such amounts in trust for the  Buyers and shall promptly remit such funds to the Agent for disbursement to the Buyers.  16.17. Coordination with Other Lenders/Repo Purchasers and Their Custodians.  The  Seller will provide to the Agent the current name, address and contact information concerning  each of the Seller’s other mortgage warehouse credit and repurchase facilities, will update such  information provided to the Agent as changes to the facilities or such name, address or contact  information occurs, and will cooperate and assist the Agent in exchanging information with such  others (and their document custodians or trustees) to prevent conflicting claims to and interests in  Purchased Loans between or among repurchase facilities counterparties or lenders, and promptly  correct such conflicting claims as may arise from time to time.  The Seller will execute and  deliver to the Agent any intercreditor agreement the Agent may require pursuant to Section 17.8.  16.18. Financial Covenants.  Seller shall:   (a) Adjusted Tangible Net Worth.  Maintain at all times, Seller’s Adjusted  Tangible Net Worth in an amount no less than $70,000,000.  (b) Adjusted Tangible Net Worth Ratio.  Maintain at all times, the ratio of (i)  Total Liabilities plus, to the extent not otherwise included in Total Liabilities, off balance  sheet liabilities (including but not limited to recourse servicing, recourse sale and other  recourse obligations, guaranty, indemnity and mortgage loan repurchase obligations) to  (ii) the Adjusted Tangible Net Worth of not less than 8.0 to 1.0.    (c) Liquidity.  Maintain at all times, Liquidity of not less than $40,000,000.  (d) Net Income. Maintain as of the last day of each month, commencing with  the month ending June 30, 2021, the Seller’s Net Income for the 12 month period then  ending, of not less than $1.  (e) Seller Cure Right. If the Seller fails to comply with Section 16.18(d) of  this Agreement for any calendar month, then, until the expiration of the period (the “Cure  Period”) commencing on the last day of any month and ending on the date occurring on  the thirtieth (30th) day (the “Cure Date”) subsequent to the earlier of (x) the date that the  compliance certificate for such calendar month is required to be delivered pursuant to  Section 16.2(c) hereof and (y) the date that such compliance certificate for such calendar  month is actually delivered to the Agent, it shall not be deemed to be a Default or Event  of Default hereunder if the Seller provides notice (the “Cure Notice”) to the Agent on a  date (the “Cure Notification Date”) occurring within three (3) Business Days of the  earlier of the dates described in clauses (x) and (y) above (the “Cure Notification Period”)  that it intends to exercise the cure right under this Section 16.18(e) (the “Cure Right) and  the Seller receives from Parent an amount not less than the difference between the actual  amount of the Seller’s Net Income for such month and the amount of Net Income the  Seller was required to have for such month under Section 16.18(d), plus $1.00 (the  “Contribution Amount”) on or prior to the Cure Date; provided that the Seller may  exercise the Cure Right only one (1) time during the then-current term of this Agreement.   For purposes of any month as to which the Seller exercised a cure right under this Section  





 






  89  Bodman_17772003_9  16.18(e), the Contribution Amount shall be reflected in the determination of the Seller’s  Net Income for such month.  Notwithstanding anything in this Agreement to the contrary,  any noncompliance with Section 16.18(d) of this Agreement shall not constitute a Default  or an Event of Default until the earlier of (A) the day after the Cure Notification Date, if  no Cure Notification has been delivered within the Cure Notification Period, and (B) the  Cure Date, if the Contribution Amount has not been applied on or prior to the Cure Date  as described above; provided further that, during the Cure Notification Period, and during  the Cure Period if a Cure Notice has been delivered within the Cure Notification Period,  the Seller shall not be permitted to request any Transactions.  Section 17. Negative Covenants .  The Seller agrees that, until all of Seller’s Obligations (other than contingent  reimbursement or indemnification obligations as to which no claim has been asserted) have been  paid or performed in full, all Purchased Loans have been repurchased and the Agent and the  Buyers have no further Commitments or other obligations under this Agreement or the other  Repurchase Documents, the Seller shall not, and shall not permit any Subsidiary to, either  directly or indirectly, do any of the following, without the prior written consent of the Required  Buyers:  17.1. No Merger.  Merge or consolidate with or into any Person.    17.2. Limitation on Debt and Contingent Indebtedness.  At no time shall the Seller or  any Subsidiary incur, create, contract, assume, have outstanding, guarantee or otherwise be or  become, directly or indirectly, liable in respect of any Debt or Contingent Indebtedness except:  (a) the Obligations;  (b) trade debt (including, without limitation, trade debt for services provided  by an Affiliate), equipment leases, loans for the purchase of equipment used in the  ordinary course of the Seller’s business and other accounts payable and accruals arising  in the ordinary course of the Seller’s business and indebtedness for taxes and assessments  not yet due and payable owed in the ordinary course of business;   (c) Debt under the Parent Repurchase Agreement;  (d) Debt under mortgage warehousing facilities, mortgage repurchase  facilities or off-balance sheet indebtedness under other financing arrangements, other  than under the Parent Repurchase Agreement or this Agreement, in an aggregate amount  at any one time not to exceed One Hundred Fifty Million Dollars ($150,000,000);  (e) liabilities to its Affiliates (including without limitation obligations to remit  loan proceeds to the Parent or its Affiliates arising out of a sale of homes by Parent or  such Affiliate financed by the Seller) incurred in the ordinary course of business as  currently conducted;  





 






  90  Bodman_17772003_9  (f) Debt in respect of any exchange traded or over the counter derivative  transaction or any Hedge Agreement entered into in the ordinary course of business and  not for speculative purposes; and  (g) contingent repurchase obligations arising out of loan sale representations  and warranties.  17.3. Business.  The Seller shall not, directly or indirectly, engage in any businesses  that differ materially from those currently engaged in by the Seller or any other businesses  customarily engaged in by other Persons in the mortgage banking business.  17.4. Liquidations, Dispositions of Substantial Assets.  Except as expressly provided  below in this Section 17.4, neither the Seller nor any Subsidiary shall dissolve or liquidate or  sell, transfer, lease or otherwise dispose of any material portion of its property or assets or  business.  Except as provided herein for the Purchased Loans, the Seller and the Subsidiaries  may sell other Mortgage Loans and the right to service such other Mortgage Loans in the  ordinary course of their business pursuant to other repurchase facilities or mortgage warehousing  facilities allowed hereunder, any Subsidiary may sell its property, assets or business to the Seller  or another Subsidiary, and any Subsidiary may liquidate or dissolve if at the time thereof and  immediately thereafter, the Seller and the Subsidiaries are in compliance with all covenants set  forth in the Repurchase Documents and no Default or Event of Default shall have occurred and  be continuing.  17.5. Loans, Advances, and Investments.  Neither the Seller nor any Subsidiary shall  make any loan (other than Mortgage Loans), advance, or capital contribution to, or investment in  (including any investment in any Subsidiary, joint venture or partnership), or purchase or  otherwise acquire any of the capital stock, securities, ownership interests, or evidences of  indebtedness of, any Person (collectively, “Investment”), or otherwise acquire any interest in, or  control of, another Person, except for the following:  (a) Cash Equivalents;  (b) Any acquisition of securities or evidences of indebtedness of others when  acquired by the Seller in settlement of accounts receivable or other debts arising in the  ordinary course of its business, so long as the aggregate amount of any such securities or  evidences of indebtedness is not material to the business or condition (financial or  otherwise) of the Seller;  (c) Mortgage Loans acquired in the ordinary course of the Seller’s business;   (d) Investment in any existing Subsidiary; provided that at the time any such  investment is made and immediately thereafter, the Seller and the Subsidiaries are in  compliance with all covenants set forth in the Repurchase Documents and no Default or  Event of Default shall have occurred and be continuing;  (e) Investments in Affiliates incurred in the ordinary course of business as  currently conducted;   





 






  91  Bodman_17772003_9  (f) Investments in Subsidiaries acquired by Parent or the Seller as a result of  the Parent’s merger with Centex Corporation, provided that at the time any such  investment is made and immediately thereafter, the Seller and such Subsidiaries are in  compliance with all covenants set forth in the Repurchase Documents and no Default or  Event of Default exists or would result therefrom; and  (g) Investments arising in connection with the Hedge Agreements entered into  in the ordinary course of business and not for speculative purposes.   17.6. Use of Proceeds.  The Seller shall not, directly or indirectly, use any of the  proceeds of the Transactions for the purpose, whether immediate, incidental or ultimate, of  buying any “margin stock” or of maintaining, reducing or retiring any Debt or Contingent  Indebtedness originally incurred to purchase a stock that is currently any “margin stock”, or for  any other purpose that might constitute this transaction a “purpose credit”, in each case within  the meaning of Regulation U or otherwise take or permit to be taken any action that would  involve a violation of Regulation U, Regulation T or Regulation X.  17.7. Transactions with Affiliates.  The Seller shall not enter into any transactions  including, without limitation, any purchase, sale, lease or exchange of property or the rendering  of any service, with any Affiliate unless such transactions are otherwise permitted under this  Agreement (including, without limitation, the transactions permitted under Section 17.2 or  Section 17.5) and are in the ordinary course of the Seller’s business.  17.8. Liens.  The Seller shall not grant, create, incur, assume, permit or suffer to exist  any Lien upon any of its Mortgage Loans or any other property related thereto, including but not  limited to the related Mortgage Notes and the Mortgages securing such Mortgage Notes and the  proceeds of such Mortgage Notes, including without limitation, any of the Collateral under  Section 10, other than (a) Liens granted to the Agent for the benefit of the Buyers under this  Agreement and (b) except with respect to any Collateral, Liens under warehouse or repurchase  facilities permitted under Section 17.2(c) or Section 17.2(d).  17.9. ERISA Plans.  Neither the Seller nor any Subsidiary shall adopt or agree to  maintain or contribute to an ERISA Plan.  The Seller shall promptly notify the Agent and each  Buyer in writing in the event an ERISA Affiliate adopts an ERISA Plan.  17.10. Change of Principal Office.  The Seller shall not change its jurisdiction of  organization.  The Seller shall not change its legal name or move its principal office, executive  office or principal place of business from any address set forth in this Agreement, without prior  written notice to the Agent and each Buyer.  17.11. Distributions.  The Seller shall make no payment of dividends or distributions  to its shareholders if either before or after giving effect thereto a Default or an Event of Default  exists or shall be caused thereby.  17.12. Limitations on Payments of Certain Debt.  Make any prepayment, repurchase,  redemption, defeasance or any other payment in respect of any Debt of the Seller owing to any  members and managers of the Seller and all Affiliates of the Seller, including Parent (except with  respect to (i) any mortgage warehouse loans from or repurchase transactions with Parent  





 






  92  Bodman_17772003_9  permitted pursuant to Section 17.2(c) and (ii) obligations to remit loan proceeds to Parent or its  Affiliates arising out of a sale of homes by Parent or such Affiliate financed by the Seller), to  whom or which the Seller is indebted as of the date of this Agreement in excess of One Million  Dollars ($1,000,000), either for borrowed money or for any other obligation, excluding salary,  bonus or other compensation obligations, if, at the time of such prepayment, repurchase,  redemption, defeasance or any other payment a Default or Event of Default exists or would result  from such payment, except to the extent permitted under the terms of any applicable  Subordination Agreement, or, if no Subordination Agreement exists, if permitted by the  Required Buyers.   17.13. No Changes in Accounting Practices or Fiscal Year.  The Seller shall not make  any significant change in accounting treatment or reporting practices, except as required or  permitted by GAAP, or change its fiscal year.  Section 18. Events of Default; Event of Termination.  18.1. Events of Default.  The following events shall constitute events of default (each  an “Event of Default”) hereunder:  (a) The Seller shall default in the payment of (i) the Repurchase Price for any  Purchased Loans on the applicable Repurchase Date, (ii) any Price Differential, Facility  Fees or Agent’s Fees when due and fail to cure such default within one (1) Business Day,  (iii) any amount required to be paid or transferred or paid to eliminate any Margin Deficit  within the time period specified in Section 6.2 or (iv) any other Obligation, when the  same shall become due and payable, whether at the due date thereof, or by acceleration or  otherwise, and the Seller fails to pay any such other Obligation within three (3) Business  Days of the due date therefor.  (b) An Event of Insolvency occurs with respect to (i) the Parent, (ii) the Seller  or (iii) a Subsidiary, but only if the Event of Insolvency as to such Subsidiary causes a  material adverse effect on the Central Elements of the Seller.  (c) Any representation or warranty made by the Seller under any Repurchase  Document shall have been incorrect or untrue in any material respect when made or  repeated or deemed to have been made or repeated, provided that, notwithstanding the  foregoing, solely with respect to a breach of the representations or warranties in Section  15.3 hereunder which was not willful or fraudulent, such breach shall not constitute a  Default or Event of Default hereunder if such breach does not result in a Margin Deficit  under Section 6 hereof, or if such breach does result in a Margin Deficit under Section 6  hereof, Seller performs its obligations under Section 6 hereof with respect to the resulting  Margin Call in accordance with the provisions thereof.  (d) Any covenant contained in Sections 16.1, 16.2, 16.3, 16.4, 16.8, 16.9,  16.11, 16.14, 16.15, 16.16, 16.18 or 17 (except for the covenants contained in Sections  17.10 and 17.13) shall have been breached and, solely in the case of breach of the  covenant contained in Section 16.18(d), expiration of the Cure Right under Section  16.18(e) to the extent applicable under the terms thereof without cure by Seller.  





 






  93  Bodman_17772003_9  (e) Any covenant contained in Sections 16, 17.10 or 17.13 (except for the  covenants contained in Sections 16.1, 16.2, 16.3, 16.4, 16.8, 16.9, 16.11, 16.14, 16.15,  16.16, and 16.18) shall have been breached or any other covenant or agreement contained  in any Repurchase Document is breached, and in each case, such breach is not cured  within thirty (30) calendar days of the earlier of the Seller’s knowledge of such breach or  the Seller’s receipt of notice of such breach from any source.  (f) Failure of the Seller or any of its Subsidiaries to pay any other Debt when  due, or any default in the payment when due of any principal or interest on any other  Debt or in the payment when due of any contingent obligation (other than nonrecourse  MBS Debt of any Affiliate formed for the purpose of issuing such Debt), or any breach or  default with respect to any other material term of any other debt or of any promissory  note, bond, loan agreement, reimbursement agreement, mortgage, indenture, repurchase  agreement or financing agreement or other agreement relating thereto, if the effect of any  such failure, default, breach or event referred to in this Section 18.1(f) is to cause, or to  permit, with or without the giving of notice or lapse of time or both, the holder or holders  of such obligation (or a trustee on behalf of such holder or holders) to cause, (i) Debt for  borrowed money (including, but not limited to, Debt under a repurchase agreement,  reverse repurchase agreement, mortgage warehouse line of credit, sale/buy-back  agreement or like arrangement) of the Seller or any of its Subsidiaries in the aggregate  amount of One Million Dollars ($1,000,000) or more to become or be declared due  before its stated maturity or (ii) any other Debt of the Seller or any of its Subsidiaries in  the aggregate amount of Two Million Dollars ($2,000,000) or more to become or be  declared due before its stated maturity.  (g) A Change of Control shall occur.  (h) A material adverse change shall occur in any of the Central Elements  relative to the Seller.  (i) The Seller shall repudiate or purport to disavow its obligations under any  of the Repurchase Documents or shall contest their validity or enforceability.  (j) This Agreement shall cease to be in full force and effect or its  enforceability is disputed or challenged by the Seller.  (k) The Seller shall take or omit to take any action (i) that would result in the  suspension or loss of any of its statuses, once achieved or any of such statuses of any of  its subservicers, if any, of any Ginnie Mae, Fannie Mae or Freddie Mac Mortgage Loans  pools for which the Seller is Servicer as an FHA- and VA-approved lender and  mortgagee and a Ginnie Mae-, Fannie Mae- and Freddie Mac-approved issuer and  servicer, or (ii) after which the Seller or any such relevant subservicer would no longer be  in good standing as such, or (iii) after which the Seller or any such relevant subservicer  would no longer currently satisfy all applicable Ginnie Mae, Fannie Mae and Freddie  Mac net worth requirements, if both (A) all of the material effects of such act or omission  shall have not been cured by the Seller or waived by the relevant Person (Ginnie Mae,  Fannie Mae or Freddie Mac) before termination of such status and (B) it could reasonably  





 






  94  Bodman_17772003_9  be expected to have a material adverse effect on any of the Central Elements in respect of  the Seller.  (l) Any money judgment, writ or warrant of attachment, or similar process  involving in any case an amount in excess of One Million Dollars ($1,000,000) (in excess  of relevant insurance coverage reasonably satisfactory to the Agent in its discretion) shall  be entered or filed against the Seller or any of its Subsidiaries or any of their respective  assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of  thirty (30) days or in any event later than five (5) days before the date of any proposed  sale thereunder (unless, in respect of any such case, the judgment debtor or the subject of  the writ or warrant of attachment or similar process is one of the Seller’s Subsidiaries or  such Subsidiary’s property, and such order, case commencement, consent, assignment,  inability or failure or admission could not reasonably be expected to have a material  adverse effect on any of the Central Elements in respect of the Seller or any of its  Subsidiaries).  (m) The Seller shall have failed to comply in any material respect with its  obligations under the Custody Agreement or MBS Custodial Agreement; provided, that  in the case of any such failure affecting particular Purchased Loans, such failure shall not  constitute an Event of Default if, after determining the Purchase Value of the Purchased  Loans without taking into account the Purchased Loans with respect to which the failure  occurred, no other Event of Default shall have occurred and be continuing.  (n) The Seller, as Servicer, shall fail to service the Purchased Loans in  conformance in all material respects with Accepted Servicing Practices.    (o) Any audited financial statement of the Parent or the Seller is issued subject  to any “going concern” or like qualification or exception.  18.2. Transaction Termination.  If an Event of Default shall have occurred and be  continuing, then, at the option of the Agent (which option shall be deemed to have been  exercised, even if no notice has been given, upon the occurrence of an Event of Default under  Section 18.1(b)), the Agent may, or at the direction of the Required Buyers shall, declare the  Repurchase Date for any or all Transactions hereunder to be deemed immediately to occur.  18.3. Termination by the Agent.  If the Agent has exercised or is deemed to have  exercised the option to terminate any Transactions pursuant to Section 18.2, (a) the Seller’s  obligations hereunder to repurchase all Purchased Loans in such Transactions shall thereupon  become immediately due and payable, (b) to the extent permitted by applicable law, the  Repurchase Price with respect to each such Transaction shall be increased by the aggregate  amount obtained by daily multiplication of (i) the greater of the Pricing Rate for such  Transaction and the Default Pricing Rate by (ii) the Purchase Price for such Transaction as of the  Repurchase Date as declared by Agent pursuant to Section 18.2 (decreased as of any day by  (A) any amounts retained by the Buyers with respect to such Purchase Price pursuant to  clause (c) of this Section 18.3, (B) any proceeds from the sale of Purchased Loans pursuant to  clause (a) of Section 18.4, and (C) any amounts credited to the account of the Seller pursuant to  clause (b) of Section 18.4) on a three hundred sixty (360) day per year basis for the actual  





 






  95  Bodman_17772003_9  number of days during the period from and including the date of the Event of Default giving rise  to such option to but excluding the date of payment of the Repurchase Price as so increased,  (c) all Income paid after such exercise or deemed exercise shall be payable to and retained by the  Agent and applied to the aggregate unpaid Repurchase Prices owed by the Seller and (d) the  Seller shall immediately deliver or cause the Custodian to deliver to the Agent any documents  relating to Purchased Loans subject to such Transactions then in the Custodian’s, the Seller’s, its  Servicer’s or its subservicer’s possession.  18.4. Remedies.  Upon the occurrence and during the continuance of an Event of  Default, the Agent, without prior notice to the Seller, may (and, at the direction of the Required  Buyers, shall) (a) immediately sell, in a recognized market at such price or prices as the Agent  may deem satisfactory, any or all Purchased Loans subject to such Transactions on a servicing  released or servicing retained basis and apply the proceeds thereof to the aggregate unpaid  Repurchase Prices and any other amounts owing by the Seller hereunder, (b)  in lieu of selling all  or a portion of such Purchased Loans, give the Seller credit for such Purchased Loans in an  amount equal to the Market Value therefor on such date against the aggregate unpaid Repurchase  Prices and any other amounts owing by the Seller hereunder, (c) terminate and replace the Seller  as Servicer (or any other Servicer or Subservicer) at the cost and expense of the Seller, (d)  exercise its rights under Section 8 regarding the Income Account and Escrow Account, (e) by  notice to the Seller, declare the Termination Date to have occurred, except that in the case of any  event described in Section 18.1(b), the Termination Date shall be deemed to have occurred  automatically upon the occurrence of such event, and (f) deliver a “Notice of Default” (as  defined in the Electronic Tracking Agreement) to MERS and the Electronic Agent and exercise  any rights as a result thereof.  The proceeds of any disposition in clause (a) or (b) above shall be  applied first to the reasonable out-of-pocket costs and expenses incurred by the Agent to the  extent reimbursable by the Seller hereunder; second to the reasonable out-of-pocket costs and  expenses incurred by the Buyers in connection with or as a result of an Event of Default  (including legal fees, consulting fees, accounting fees, file transfer fees, inventory fees and costs  and expenses incurred in respect of a transfer of the servicing of the Purchased Loans and costs  and expenses of disposition of such Purchased Loans); third to the aggregate Price Differential  owed hereunder (after taking into account any adjustments to the Price Differential made in  accordance with Section 5.4); fourth to the remaining aggregate Repurchase Prices owed  hereunder; fifth to any other accrued and unpaid Obligations (other than in respect of any Hedge  Agreements or Products of the Buyers or Affiliates of the Buyers) of the Seller hereunder and  under the other Repurchase Documents (after taking into account any waiver or reduction in any  fees or other amount owing by Seller made in accordance with Section 36); sixth to any Servicer  or Subservicer (other than the Seller) for payment of any servicing fees due and payable as of  such date; seventh to the net obligations of the Seller under any Hedge Agreements related to the  Purchased Loans; eighth to the obligations of the Seller under any Products; and ninth any  remaining proceeds to the Seller.    18.5. Liability for Expenses and Damages.  The Seller shall be liable to the Buyers  for (a) the amount of all reasonable out-of-pocket legal or other expenses incurred by the Buyers  in connection with or as a result of an Event of Default, including such legal and other expenses  of in-house or outside counsel, (b) damages in an amount equal to the reasonable out-of-pocket  cost (including all fees, expenses and commissions) of entering into replacement transactions and  entering into or terminating hedge transactions in connection with or as a result of an Event of  





 






  96  Bodman_17772003_9  Default and (c) any other reasonable loss, damage, out-of-pocket cost or expense directly arising  or resulting from the occurrence of an Event of Default in respect of a defaulting party.  18.6. Liability for Interest.  To the extent permitted by applicable law, the Seller  shall be liable to the Buyers for interest on any amounts owing by the Seller hereunder, from the  date the Seller becomes liable for such amounts hereunder until such amounts are (a) paid in full  by the Seller or (b) satisfied in full by the exercise of the Buyers’ rights hereunder.  Interest on  any sum payable by the Seller under this Section 18.6 shall be at a rate equal to the greater of the  Pricing Rate for the relevant Transaction or the Prime Referenced Rate.  18.7. Other Rights.  In addition to its rights hereunder, the Buyers shall have any  rights otherwise available to them under any other agreement or applicable law.    18.8. Seller’s Repurchase Rights.  For avoidance of doubt, subject to the terms and  conditions of this Agreement, the Seller may repurchase Purchased Loans, on a servicing  released basis, and resell such Purchased Loans; provided that upon the occurrence and during  the continuance of an Event of Default, the Seller may repurchase Purchased Loans by payment  of the Repurchase Price therefor only upon approval of the Agent in its discretion exercised in  accordance with the provisions of Section 22.  18.9. Sale of Purchased Loans.  The parties acknowledge and agree that (a) the  Purchased Loans subject to any Transaction hereunder are instruments traded in a recognized  market, (b) in the absence of a generally recognized source for prices or bid or offer quotations  for any Purchased Loans, the Agent may establish the source therefor, (c) all prices, bids and  offers shall be determined together with accrued Income (except to the extent contrary to market  practice with respect to the relevant Purchased Loans) and (d) in soliciting price, bid and offer  quotations for any Purchased Loan, it is reasonable for the Agent to use only the information  provided by the Seller pursuant to Section 16.4(d).  The parties further recognize that it may not  be possible to purchase or sell all of the Purchased Loans on a particular Business Day, or in a  transaction with the same purchaser, or in the same manner because the market for such  Purchased Loans may not be liquid at such time.  In view of the nature of the Purchased Loans,  the parties agree that liquidation of a Transaction or the underlying Purchased Loans 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, the Agent may elect the  time and manner of liquidating any Purchased Loan and nothing contained herein shall obligate  the Agent to liquidate any Purchased Loan on the occurrence of an Event of Default or to  liquidate all Purchased Loans in the same manner or on the same Business Day and no such  exercise of any right or remedy shall constitute a waiver of any other right or remedy of the  Agent or the Buyers.  18.10. Setoff.  Each of the Agent and any Buyer may set off against the Obligations  any funds or debts owing to the Seller by the Agent or such Buyer, as applicable, including, but  not limited to, any funds in any deposit account, savings certificate or other instrument now or  hereafter maintained by, and for the sole benefit of, the Seller with the Agent or such Buyer, or  any of the Agent’s or such Buyer’s Affiliates.  The Seller hereby confirms the Agent’s and each  Buyer’s right of lien and setoff and nothing in this Agreement shall be deemed to constitute any  waiver or prohibition thereof.  Notwithstanding the foregoing, in the event that a Defaulting  





 






  97  Bodman_17772003_9  Buyer shall exercise any such right of setoff, (a) all amounts so set off shall be paid over  immediately to the Agent for further application in accordance with the provisions of Section  3.10 and, pending such payment, shall be segregated by such Defaulting Buyer from its other  funds and deemed held in trust for the benefit of the Agent, the Swing Line Buyer and the other  Buyers, and (b) such Defaulting Buyer shall provide promptly to the Agent a statement  describing in reasonable detail the obligations owing to such Defaulting Buyer as to which it  exercised such right of setoff.   Section 19. Servicing of the Purchased Loans .  19.1. Servicing Released Basis.  Consistent with the Buyers’ purchase of the  Purchased Loans on a servicing-released basis, the Seller shall have no ownership right  whatsoever as to any of the Purchased Loans or the servicing rights related thereto, unless and  until such Purchased Loans are repurchased by the Seller.  Rather, the Seller shall have only  servicing responsibilities with respect to the Purchased Loans that are subject to termination in  accordance with Section 19.7.  The Seller and the Buyers hereby acknowledge and agree that the  provisions contained in this Section 19 are intended to be for the benefit of the Buyers and are an  essential part of this Agreement, and that the nature and purpose of the purchase and sale  obligations and the servicing obligations hereunder are interrelated.  The Seller acknowledges  that if an Event of Default has occurred and is continuing, the Agent for the benefit of the Buyers  may, upon written notice to the Seller, without payment of any termination fee or other amount  to the Seller, sell any or all of the Purchased Loans on a servicing released basis at the cost and  expense of the Seller.  19.2. Servicing and Subservicing.  The Seller hereby agrees, for the benefit of the  Buyers, to service or contract with Subservicers to service the Purchased Loans in accordance  with this Agreement and  Accepted Servicing Practices.  The Seller’s fees for its duties as  Servicer, until terminated under Section 19.7, shall be twenty-five (25) basis points per annum  on the unpaid principal balance of each Purchased Loan, payable from Income in accordance  with the provisions of Section 8.2.  The Servicer shall, and shall cause each Subservicer to,  (a) comply with all applicable Federal, State and local laws and regulations in all material  respects, (b) maintain all state and federal licenses necessary for it to perform its servicing  responsibilities hereunder and (c) not impair the rights of the Buyers in any Purchased Loans or  any payment thereunder.  The Agent may terminate the servicing of any Purchased Loan with the  then existing Servicer in accordance with Section 19.7.  The Seller shall not be entitled to any  servicing fee or other compensation in connection with its performance of the servicing  responsibilities with respect to the Purchased Loans except to the extent that the Seller is  Servicer.  Nothing in this Section 19.2 shall be deemed to impair the rights of any Subservicer to  fees and other compensation to which it is entitled under the applicable Servicing Agreement.  19.3. Escrow Payments.  The Seller shall cause Servicer and any Subservicers to  hold or cause to be held all escrow payments collected by the Seller with respect to any  Purchased Loans in trust accounts and shall apply the same for the purposes for which such  funds were collected.  19.4. Escrow and Income after Event of Default.  After the occurrence and during  the continuance of an Event of Default, (a) all funds received on or in connection with a  





 






  98  Bodman_17772003_9  Purchased Loan shall be received and held by the Seller, Servicer and each Subservicer in trust  for the benefit of the Agent on behalf of the Buyers as owner of the Purchased Loans, and (b)  neither the Seller nor Servicer shall be deemed to have any rights or ownership interest in such  funds prior to their being remitted to the Agent on behalf of the Buyers.  19.5. Servicing Records.  The Seller agrees that the Agent, on behalf of the Buyers,  is the owner of all servicing records, including but not limited to any and all servicing  agreements, files, documents, records, data bases, computer tapes, copies of computer tapes,  proof of insurance or guaranty coverage, insurance or guaranty policies, appraisals, other closing  documentation, payment history records, and any other records relating to or evidencing the  servicing of Purchased Loans (the “Servicing Records”). The Servicing Records of an eMortgage  Loan specifically include, without limitation, such eMortgage Loan’s related Electronic Records.  The Servicing Records are and shall be held in trust by the Seller, Servicer and each Subservicer  for the benefit of the Agent as the owner thereof on behalf of the Buyers.  Upon notice from the  Agent after the occurrence and during the continuance of an Event of Default, the Seller will  cause Servicer and each Subservicer to (a) designate the Buyers as the owner of each Purchased  Loan in its collateral tracking system, (b) segregate such Servicing Records from any and all  servicing agreements, files, documents, records, data bases, computer tapes, copies of computer  tapes, proof of insurance coverage, insurance policies, appraisals, other closing documentation,  payment history records, and any other records relating to or evidencing the servicing of assets  that are not Purchased Loans, (c) safeguard such Servicing Records and (d) deliver them  promptly to the Agent or its designee (including the Custodian) at the Agent’s request.    19.6. Subservicer Instruction Letter.  The Seller shall, prior to the initial Purchase  Date of Purchased Loans serviced by any Subservicer, provide to the Buyers a Subservicer  Instruction Letter addressed to and agreed to by such Subservicer of the related Purchased Loans.  19.7. Termination of Servicing.  At any time during the existence of a Default or an  Event of Default in the Agent’s sole discretion, the Agent may, and at the direction of the  Required Buyers, shall (a) terminate the Seller’s rights as Servicer, and any Subservicer’s rights,  if any, and obligations with respect to servicing of the Purchased Loans without payment of any  penalty or termination fee (i) immediately with respect to the Seller and (ii) with respect to any  Servicer (other than the Seller) or Subservicer, as promptly as possible subject to the terms and  conditions of the applicable Servicing Agreement and Subservicer Instruction Letter; provided  that any such termination shall be deemed to have occurred automatically upon the occurrence of  an Event of Default set forth in Section 18.1(b), (b) require the Seller to enforce its rights and  remedies, as agent for and for the benefit of the Buyers in accordance with the Agent’s  commercially reasonable instructions, with respect to any Purchased Loans under any Servicing  Agreement, and (c) succeed to the rights and remedies of the Seller with respect to any  Purchased Loans under any Servicing Agreement to the extent permitted by, and subject to, the  terms of such Servicing Agreement (but not the obligations or liabilities of the Seller incurred  prior to the date of such succession) and related Subservicer Instruction Letter.  Upon any such  termination, the Seller shall, and shall cause each Subservicer to, (A) perform the servicing  responsibilities with respect to the Purchased Loans in accordance with the terms of this  Agreement until the transfer of servicing responsibilities is effectuated and (B) cooperate, at the  Seller’s expense, in transferring such servicing responsibilities with respect to the Purchased  Loans to a successor Servicer appointed by the Agent in its sole discretion.  Upon termination of  





 






  99  Bodman_17772003_9  the Seller as Servicer and without limiting the generality of the foregoing, the Seller shall, in the  manner and at such times as the successor servicer or the Agent shall request, (1) promptly  transfer all data in the Servicing Records relating to the Purchased Loans to the successor  servicer in such electronic format as the successor servicer may reasonably request, (2) promptly  transfer to the successor servicer, the Agent or its designee, all other files, records  correspondence and documents relating to the Purchased Loans and (3) use commercially  reasonable efforts to cooperate and coordinate with the successor servicer and the Agent to  comply with any applicable so-called “goodbye” letter requirements or other applicable  requirements of the Real Estate Settlement Procedures Act or other applicable legal or regulatory  requirement associated with the transfer of the servicing of the Purchased Loans.  Servicer  acknowledges and agrees that if it fails to cooperate with the Agent or any successor servicer in  effecting the termination of the Seller as Servicer of any Purchased Loan or the transfer of all  authority to service such Purchased Loan to such successor servicer in accordance with the terms  hereof, the Agent and the Buyers will be irreparably harmed and entitled to injunctive relief.  19.8. Notice from Seller.  If the Seller should discover that, for any reason  whatsoever, any entity responsible to the Seller by contract for managing or servicing any  Purchased Loan has failed to perform in any material respects the Seller’s obligations under the  Repurchase Documents or any of the material obligations of such entities with respect to the  Purchased Loans, the Seller shall promptly notify the Agent.  19.9. Seller Remains Liable.  Notwithstanding any Servicing Agreement or the  provisions of this Agreement relating to agreements or arrangements between the Seller and a  Subservicer or reference to actions taken through a Subservicer or otherwise, and unless the  Agent has terminated the Seller’s rights pursuant to Section 19.7, the Seller shall remain  obligated and primarily liable to the Buyers for servicing and administering of the Purchased  Loans in accordance with the provisions hereof without diminution of such obligation or liability  by virtue of such Servicing Agreements or arrangements or by virtue of indemnification from a  Subservicer and to the same extent and under the same terms and conditions as if the Seller alone  were servicing and administering the Purchased Loans.  All actions of each Subservicer  performed pursuant to the related Servicing Agreement shall be performed as an agent of the  Seller with the same force and effect as if performed directly by the Seller and the Buyers shall  have no obligations, duties or liabilities with respect to any Subservicer including no obligation,  duty or liability of the Buyers to pay any Subservicer’s fees and expenses, provided, however,  that each Subservicer may retain any amounts collected by it that it is entitled to retain pursuant  to the applicable Servicing Agreement or Subservicer Instruction Letter.  The Seller shall be  entitled to enter into any agreement with each Subservicer for indemnification of the Seller by  the Subservicer and nothing contained in this Repurchase Agreement shall be deemed to limit or  modify such indemnification.  19.10. Backup Servicer.  The Agent shall have the right, in its sole discretion, to  appoint a Backup Servicer that will (a) serve as a backup servicer of the Purchased Loans until  such time as the Agent shall appoint a successor servicer of the Purchased Loans and (b) become  the successor servicer of the Purchased Loans at the Agent’s option.  In connection with the  appointment of a Backup Servicer as provided in the preceding sentence, the Agent may make  such arrangements for the compensation of the Backup Servicer out of Income on the Mortgage  Loans or otherwise as the Agent and such Backup Servicer shall agree.  The Seller shall provide  





 






  100  Bodman_17772003_9  Backup Servicer with such data, files and information, in form, format and content as the Backup  Servicer may request, in order to permit the Backup Servicer to service the Mortgage Loans in  accordance with Accepted Servicing Practices; all such data, files and information shall be  updated by the Seller on a monthly basis as required by the Backup Servicer.  19.11. Successor Servicer.  If the Backup Servicer or any other Person is appointed by  the Agent to act as a successor servicer of the Purchased Loans pursuant to the preceding section,  the Seller (in its capacity as Servicer hereunder) shall, and shall cause each Subservicer to,  subject to such Subservicer’s rights under any applicable Servicing Agreement, and Subservicer  Instruction Letter, discharge its servicing duties and responsibilities during the period from the  date it acquires knowledge of such transfer of servicing until the effective date thereof with the  same degree of diligence and prudence that it is obligated to exercise under this Agreement, and  shall take no action whatsoever that might impair or prejudice the rights or financial condition of  the successor Servicer.  Within five (5) Business Days of the appointment of a successor Servicer  of the Purchased Loans, the Seller shall, and shall cause each Subservicer to, prepare, execute  and deliver to such successor Servicer any and all documents and other instruments, place in  such successor’s possession all Servicing Records, and do or cause to be done all other acts or  things necessary or appropriate to effect the transfer of servicing to the successor Servicer,  including but not limited to the transfer and endorsement of the Mortgage Notes and related  documents, and the preparation and recordation of assignments of Mortgage.  The Seller shall  (and shall cause each Subservicer to) cooperate with the Agent and the successor Servicer in  effecting the transfer of servicing responsibilities to the Backup Servicer, including execution  and delivery of servicing transfer notices to Mortgagors, MERS (if applicable), taxing authorities  and insurance companies, the transfer to the Backup Servicer or successor Servicer for  administration by it of all Income with respect to the Purchased Loans that shall at the time be  held or received by the Seller or any Subservicer.  The Seller shall deliver immediately to the  successor Servicer all Purchased Loan documents and related documents and statements held by  it or any Subservicer hereunder and the Seller shall account for all funds and shall execute and  deliver such instruments and do such other things as may reasonably be required to more fully  and definitively vest in the successor Servicer all such rights, powers, duties, responsibilities,  obligations and liabilities of the Seller as servicer of the Purchased Loans.  Section 20. Payment of Expenses; Indemnity.  20.1. Expenses.  (a) The Seller shall pay on demand all of the Agent’s reasonable out-of- pocket fees and expenses (including the fees and expenses for legal services of in-house  or outside counsel) incurred by the Agent, the Custodian and the Approved MBS  Custodian in connection with this Agreement, the Custody Agreement, the MBS  Custodial Agreement and the Transactions contemplated hereby and thereby, whether or  not any Transactions are entered into hereunder, including the reasonable out-of-pocket  fees and expenses incurred in connection with (i) the preparation, reproduction and  distribution of this Agreement, the Custody Agreement, the MBS Custodial Agreement  and any opinions of counsel, certificates of officers or other documents contemplated by  the aforementioned agreements, (ii) any Transaction under this Agreement, (iii) the  administration and syndication of this Agreement and of any Transaction and (iv) any  





 






  101  Bodman_17772003_9  amendments and waivers regarding any of the foregoing.  The obligation of the Seller to  pay such fees and expenses incurred prior to or in connection with the termination of this  Agreement shall survive the termination of this Agreement.  (b) The Seller shall pay all of the Agent’s and each Buyer’s reasonable out-of- pocket costs and expenses, including attorneys’ fees of in-house or outside counsel, after  the occurrence of any Default or Event of Default in connection with the enforcement of  this Agreement, the Custody Agreement, the MBS Custodial Agreement and the other  Repurchase Documents, including in connection with any (i) bankruptcy, (ii) other  insolvency proceeding, or (iii) any workout or consultation involving the Buyers’ rights  and remedies, the purchase and repurchase of the Purchased Loans and the payment of  Price Differential in connection therewith.  (c) The Seller shall pay, and hold the Agent, the Buyers and any other owners  or holders of any of the Obligations harmless from and against, any and all present and  future stamp, documentary and other similar taxes with respect to the foregoing matters  and save them each harmless from and against any and all liabilities with respect to or  resulting from any delay or omission to pay such taxes.  (d) The Seller shall pay all of the Agent’s Fees and any other fees payable by  the Seller under this Agreement and the other Repurchase Documents.  20.2. Indemnity.  The Seller shall pay, and indemnify, defend and hold harmless the  Agent, the Buyers and any of their respective officers, directors, employees, agents, advisors and  Affiliates (collectively “Indemnified Parties” and each an “Indemnified Party”) from and against,  the “Indemnified Liabilities”, which means any and all claims, liabilities, obligations, losses,  damages, penalties, judgments, suits, disbursements and reasonable out-of-pocket costs and  expenses (including attorneys’ fees and disbursements of in-house or outside counsel) of any  kind whatsoever that may be imposed upon, incurred by or asserted against any of the  Indemnified Parties in any way relating to or arising out of any of the Repurchase Documents or  any of the transactions contemplated thereby or the use of proceeds or proposed use of proceeds  thereof, including, but not limited to, (a) Seller’s failure to comply with, or breach of, any  provision of any of the Repurchase Documents, (b) the failure of Seller, any Indemnified Party  or any Purchased Loan to comply with, observe or perform any Legal Requirement with respect  to any Purchased Loan and (c) the use of telephone or Electronic Transmissions or E-Systems  under or in connection with this Agreement or any of the other Repurchase Documents;  provided, however, that to the extent, if any, that any Indemnified Liabilities are caused by any  Indemnified Party’s gross negligence or willful misconduct, the indemnity payable to that  Indemnified Party shall be equitably and proportionately reduced, although (i) to the full extent  permitted under applicable law, such indemnity shall not be reduced on account of such claims,  liabilities, etc. to any extent (x) owed, in whole or in part, under any claim or theory of strict  liability, or (y) caused or contributed to by any Indemnified Party’s sole or concurrent ordinary  negligence that does not amount to gross negligence or willful misconduct, it being the Seller’s  intention to hereby indemnify the Indemnified Parties against their own strict liability and their  own sole or concurrent ordinary negligence, and (ii) such gross negligence and willful  misconduct exception to the foregoing indemnity shall, in the case of any failure under paragraph  





 






  102  Bodman_17772003_9  (b) above, only be applicable to a failure which first occurs subsequent to termination by Agent  of Seller’s rights as Servicer under Section 19.7 hereof.  Section 21. Single Agreement.  The Buyers, the Agent and the Seller acknowledge that, and have entered into this  Agreement and will enter into each Transaction hereunder in consideration of and in reliance  upon the fact that, all Transactions hereunder constitute a single business and contractual  relationship and have been made in consideration of each other.  Accordingly, each of the Agent,  the Buyers and the Seller agrees (a) to perform all of its obligations in respect of each  Transaction hereunder, and that a default in the performance of any such obligations shall  constitute a default by it in respect of all Transactions hereunder, (b) that each of them shall be  entitled to set off claims and apply property held by them in respect of any Transaction against  obligations owing to them in respect of any other Transactions hereunder and (c) that payments,  deliveries and other transfers made by any of them in respect of any Transaction shall be deemed  to have been made in consideration of payments, deliveries and other transfers in respect of any  other Transactions hereunder, and the obligations to make any such payments, deliveries and  other transfers may be applied against each other and netted.  Section 22. Relationships among the Agent and the Buyers .  22.1. Appointment of Agent.  Each Buyer irrevocably appoints and authorizes the  Agent to act on behalf of such Buyer or holder under this Agreement and the other Repurchase  Documents and to exercise such powers hereunder and thereunder as are specifically delegated  to Agent by the terms hereof and thereof, together with such powers as may be reasonably  incidental thereto, including without limitation the power to execute or authorize the execution of  financing or similar statements or notices, and other documents. In performing its functions and  duties under this Agreement, the Agent shall act solely as agent of the Buyers and does not  assume and shall not be deemed to have assumed any obligation towards or relationship of  agency or trust with or for the Seller or any other Person.  22.2. Scope of Agent’s Duties.    (a) The Agent shall have no duties or responsibilities except those expressly  set forth herein, and shall not, by reason of this Agreement or otherwise, have a fiduciary  relationship with any Buyer (and no implied covenants or other obligations shall be read  into this Agreement against the Agent). None of Agent, its Affiliates nor any of their  respective directors, officers, employees or agents shall be liable to any Buyer for any  action taken or omitted to be taken by it or them under this Agreement or any document  executed pursuant hereto, or in connection herewith or therewith with the consent or at  the request of the Required Buyers (or all of the Buyers for those acts requiring consent  of all of the Buyers) (except for its or their own willful misconduct or gross negligence),  nor be responsible for or have any duties to ascertain, inquire into or verify (a) any  recitals or warranties made by the Seller or any Affiliate of the Seller, or any officer  thereof contained herein or therein, (b) the effectiveness, enforceability, validity or due  execution of this Agreement or any document executed pursuant hereto or any security  thereunder, (c) the performance by the Seller of its obligations hereunder or thereunder,  





 






  103  Bodman_17772003_9  or (d) the satisfaction of any condition hereunder or thereunder, including without  limitation in connection with the making of any Transaction. The Agent and its Affiliates  shall be entitled to rely upon any certificate, notice, document or other communication  (including any cable, telegraph, telex, facsimile transmission or oral communication)  believed by it to be genuine and correct and to have been sent or given by or on behalf of  a proper person. The Agent may employ agents and may consult with legal counsel,  independent public accountants and other experts selected by it and shall not be liable to  the Buyers (except as to money or property received by them or their authorized agents),  for the negligence or misconduct of any such agent selected by it with reasonable care or  for any action taken or omitted to be taken by it in good faith in accordance with the  advice of such counsel, accountants or experts.  (b) Except as otherwise expressly provided herein, whenever the Agent is  authorized and empowered hereunder on behalf of the Buyers to give any approval or  consent, or to make any request, or to take any other action on behalf of the Buyers  (including without limitation the exercise of any right or remedy hereunder or under the  other Repurchase Documents), the Agent shall be required to give such approval or  consent, or to make such request or to take such other action only when so requested in  writing by the Required Buyers or the Buyers, as applicable hereunder. Action that may  be taken by the Required Buyers, any other specified Percentage of the Buyers or all of  the Buyers, as the case may be (as provided for hereunder) may be taken (i) pursuant to a  vote of the requisite percentages of the Buyers as required hereunder at a meeting (which  may be held by telephone conference call), provided that Agent exercises good faith,  diligent efforts to give all of the Buyers reasonable advance notice of the meeting, or (ii)  pursuant to the written consent of the requisite percentages of the Buyers as required  hereunder, provided that all of the Buyers are given reasonable advance notice of the  requests for such consent.  (c) Except as otherwise expressly provided under this Agreement or in any of  the other Repurchase Documents and subject to the terms hereof, Agent will take such  action, assert such rights and pursue such remedies under this Agreement and the other  Repurchase Documents as the Required Buyers or all of the Buyers, as the case may be  (as provided for hereunder), shall direct; provided, however, that the Agent shall not be  required to act or omit to act if, in the reasonable judgment of the Agent, such action or  omission may expose the Agent to personal liability for which Agent has not been  satisfactorily indemnified hereunder or is contrary to this Agreement, any of the  Repurchase Documents or applicable law. Except as expressly provided above or  elsewhere in this Agreement or the other Repurchase Documents, no Buyer (other than  the Agent, acting in its capacity as agent) shall be entitled to take any enforcement action  of any kind under this Agreement or any of the other Repurchase Documents.  22.3. Limitation on Duty to Disclose.  Except as expressly set forth herein, the Agent  shall not have any duty to disclose, and shall not be liable for the failure to disclose, any  information relating to the Seller or any of its Subsidiaries or Affiliates that is communicated to  or obtained by the bank serving as Agent or any of its Affiliates in any capacity.  





 






  104  Bodman_17772003_9  22.4. Authority of Agent to Enforce this Agreement.  Each Buyer, subject to the terms  and conditions of this Agreement, grants the Agent full power and authority as attorney-in-fact to  institute and maintain actions, suits or proceedings for the collection and enforcement of any  Indebtedness outstanding under this Agreement or any other Repurchase Document and to file  such proofs of debt or other documents as may be necessary to have the claims of the Buyers  allowed in any proceeding relative to the Seller, or its creditors or affecting its properties, and to  take such other actions which Agent considers to be necessary or desirable for the protection,  collection and enforcement of this Agreement or the other Repurchase Documents.  22.5. Agent in its Individual Capacity.  Comerica Bank and its Affiliates, successors  and assigns shall each have the same rights and powers hereunder as any other Buyer and may  exercise or refrain from exercising the same as though such Buyer were not the Agent. Comerica  Bank and its Affiliates may (without having to account therefor to any Buyer) accept deposits  from, lend money to, and generally engage in any kind of banking, trust, financial advisory or  other business with the Seller as if such Buyer were not acting as the Agent hereunder, and may  accept fees and other consideration therefor without having to account for the same to the  Buyers.  22.6. Actions Requiring All Buyers’ Consent.  No amendment or waiver of, or any  action with respect to, any provision of this Agreement or any of the Repurchase Documents  shall in any event be effective unless the same shall be in writing signed by all the Buyers with  respect to any amendment or waiver or any action that:  (a) Increases the Maximum Aggregate Commitment or increases any Buyer’s  Commitment (it being understood that, for the purposes of this Section 22.6(a), the  Buyers’ execution of this Agreement evidences such Buyers’ consent to increasing the  Maximum Aggregate Commitment and Buyer’s Commitment in accordance with the  provisions of Section 2.6 hereof).  (b) Agrees to any reduction in any Pricing Rate, Repurchase Price or fee  provisions of this Agreement, excluding the provisions relating to the Agent’s Fee and  other fees owing to the Agent only.  (c) Acknowledges termination of the Buyers’ ownership interest in the  Purchased Loans or releases all or a material portion of the Liens held under the  Repurchase Documents other than in accordance with the Repurchase Documents.  (d) Changes any Buyer’s Pro Rata share of ownership of the Purchased Loans  other than in accordance with the express provisions of the Repurchase Documents.  (e) Agrees to any change in the nature of the Buyers’ respective  Commitments from several to joint, in whole or in part.  (f) Agrees to any change to the definition of “Required Buyers” or to any  provisions of this Agreement or any of the other Repurchase Documents that requires the  consent, approval or satisfaction of all of the Buyers or each of the Buyers.  





 






  105  Bodman_17772003_9  (g) Extends the Termination Date or the due date of any required payment  other than in accordance with the express provisions of the Repurchase Documents.  (h) Agrees to any change in this Section 22.6.  (i) Agrees to any change in the Buyer’s Margin Percentage rates.  (j) Releases the Seller from any of its obligations other than in accordance  with the express conditions of the Repurchase Documents.  (k) Modifies the sharing provisions of Section 22.10.    (l) Modifies Section 4.1, Section 4.2, Schedule EL, Schedule DQ or Schedule  15.3.  In the event of any conflict between the provisions of this Section 22.6 and any other provisions  of this Agreement or the other Repurchase Documents, this Section 22.6 shall govern.  22.7. Actions Requiring Required Buyers’ Consent.  All amendments hereto, waivers  or actions taken hereunder that are not described in Section 6 and Section  22.8 require the  written consent or ratification of the Required Buyers except for actions that are specifically  reserved to the Agent under Sections 6.1 and 6.6 or elsewhere in this Agreement or the other  Repurchase Documents; provided that no amendments, waivers or actions taken hereunder that  relate to the rights or obligations of the Agent shall be effective without the prior written consent  of the Agent.  The Agent will, at the direction of the Required Buyers, take any enforcement  action or exercise any remedies under this Agreement and the Repurchase Documents that arise  after the occurrence of an Event of Default.  22.8.  Agent’s Discretionary Actions.  Subject to the limitations of Sections 22.6 and  22.7, in its capacity as Agent and without seeking or obtaining the consent of any of the other  Buyers (although it may elect to obtain such consent before acting it if deems that desirable), the  Agent may:  (a) With respect to Purchased Loans having an aggregate Purchase Value of  not more than the Discretionary Loan Sublimit at any time, (i) waive one or more  Disqualifiers for Purchased Loans, waive one or more of the representations or warranties  concerning Purchased Loans under Section 15.3, or waive any other requirements for  Purchased Loans set forth in this Agreement, so that in the case of each such waiver such  Purchased Loan is included as a Discretionary Loan, and (ii) include as Discretionary  Loans, Purchased Loans which, if added to a Sublimit under Section 4.2(b) or Section  4.2(c) other than the Discretionary Loan Sublimit (a “Non-Discretionary Loan  Sublimit”), would cause such Non-Discretionary Loan Sublimit to exceed the maximum  percentage/amount for such Non-Discretionary Loan Sublimit set forth in Section 4.2(b)  or Section 4.2(c;  (b) reconvey, or exchange, in whole or in part, any Purchased Loans that are  required to be reconveyed, or exchanged in accordance with the Repurchase Documents;   





 






  106  Bodman_17772003_9  (c) approve any new Approved Investor proposed by the Seller (and the  Agent will promptly provide to any Buyer that requests it a current list of Approved  Investors); and  (d) do or perform any act or thing that, in the Agent’s reasonable judgment, is  necessary or appropriate to enable the Agent to properly discharge and perform its duties  under this Agreement, the Custody Agreement or the MBS Custodial Agreement or that  in its reasonable judgment is necessary or appropriate to preserve or protect the validity,  integrity or enforceability of the Purchased Loans and/or the Repurchase Documents, the  Buyers’ Pro Rata undivided ownership interests in and to the Purchased Loans, the Lien  created by this Agreement and its priority, or any of the Central Elements in respect of  the Seller or any of its Subsidiaries, or to preserve and protect the interest of the Buyers  in any of the foregoing.  22.9. Buyers’ Cooperation.  The Buyers agree to cooperate among themselves and  with the Agent and from time to time upon the Agent’s request, to execute and deliver such  papers as may be reasonably necessary to enable the Agent, in its capacity as Agent, to  effectively administer this Agreement and the other Repurchase Documents, the Purchased  Loans and each Buyer’s Pro Rata undivided ownership interest in the Purchased Loans in the  manner contemplated by this Agreement.    22.10. Buyers’ Sharing Arrangement.    (a) Each of the Buyers agrees that if it should receive any amount (whether by  voluntary payment, realization upon security, the exercise of the right of set-off, or  otherwise) that is applicable to the payment of Repurchase Price, Margin Deficit, Price  Differential or any fees, that with respect to the related sum or sums received (or  receivable) by the other Buyers is in greater proportion than that Buyer’s Pro Rata  ownership of the Purchased Loans (after taking into account any waiver or adjustments in  the Price Differential or fee owing to such Buyer in accordance with Sections 5.4 and 36  of this Agreement), then such Buyer receiving such excess amount shall purchase from  the other Buyers a participation interest in the Purchased Loans in such amount as shall  result in Pro Rata participation and ownership by all of the Buyers in such excess  amount; provided that if all or any portion of such excess amount is thereafter recovered  from such Buyer, such purchase shall be rescinded and the purchase price restored to the  extent of such recovery; and provided further that the provisions of this Section 22.10  shall not apply to any fees that the Agent may be entitled to from time to time or to any  fees that the Custodian or any successor custodian might be paid pursuant to the Custody  Agreement.  (b) To the extent that the Seller fails to pay any amount required to be paid to  the Agent under Section 20, each Buyer severally agrees to pay to the Agent such Buyer's  Funding Share (determined as of the time that the unreimbursed expense or indemnity  payment is sought) of such unpaid amount; provided, that the unreimbursed expense or  indemnified payment, claim, damage, liability or related expense, as the case may be, was  incurred by or asserted against the Agent in its capacity as such.  





 






  107  Bodman_17772003_9  22.11. Buyers’ Acknowledgment.    (a) Each Buyer other than Comerica Bank hereby acknowledges that Comerica Bank  has made no representations or warranties with respect to any Purchased Loan other than as  expressly set forth in this Agreement and that Comerica Bank shall have no responsibility (in its  capacity as a Buyer, the Agent, or any other capacity or role) for:  (i) the marketability or collectability of the Purchased Loans;  (ii) the genuineness, validity, likelihood of performance as and when  due or enforceability of any Investor Commitment or the solvency or performance  record of any Approved Investor;  (iii) the validity, enforceability or any legal effect of any of the  Repurchase Documents, any Loan Papers or any insurance, bond or similar device  purportedly protecting any obligation to the Buyers or any Purchased Loans; or  (iv) the financial condition of the Seller or any of its Subsidiaries or  Affiliates, the status, health or viability of any industry in which any of them is  involved, the prospects for repurchase of the Purchased Loans, the genuineness,  validity or enforceability of any warehousing facility or repurchase agreement  between the Seller and any other lender or repurchase agreement counterparty, the  value of any Purchased Loans, the effectiveness of any of the provisions of the  Repurchase Documents (including the financial covenants, tests and hedging  requirements) or any aspect of their implementation or administration at any time  to reduce or control risks of any type, to produce returns, profits, yields or spreads  or to reduce or control losses or the accuracy of any information supplied by or to  be supplied in connection with any of the Seller or any of its Subsidiaries or  Affiliates, or otherwise with respect to this Agreement, any Purchased Loans or  any source of equity or other financing for any of the Seller, any of its Affiliates  or any other warehouse lender or repurchase agreement counterparty.  (b) Each Buyer acknowledges that it has, independently of Agent and each other  Buyer and based on the financial statements of Seller and such other documents,  information and investigations as it has deemed appropriate, made its own credit decision  to extend credit hereunder from time to time. Each Buyer also acknowledges that it will,  independently of Agent and each other Buyer and based on such other documents,  information and investigations as it shall deem appropriate at any time, continue to make  its own credit decisions as to exercising or not exercising from time to time any rights  and privileges available to it under this Agreement, any Repurchase Document or any  other document executed pursuant hereto.  22.12.  Agent Market Value Determinations.  The parties hereto agree and  acknowledge that, in determining the Market Value of the Purchased Loans, the Agent (a) shall  determine Market Value as a third party service provider, in accordance with standards  customarily applicable in the financial industry to third party service providers providing values  on comparable assets to be used in connection with the financing of such assets, and (b) shall not  





 






  108  Bodman_17772003_9  be obligated to do that same or similar amount of work or analysis as if it were valuing its own  assets, or as if it were valuing such assets for the purchase or sale thereof by it or any other party.   The parties hereto agree and acknowledge that any asset valuation information produced by the  Agent is intended to be and should be used solely for the limited uses specified in this  Agreement and the other Repurchase Documents, and is not intended to be and should not be  used by any Person for any other purpose.  The parties hereto further agree and acknowledge that  the Agent may elect to determine the Market Value for any Purchased Loan by determining the  market bid price for a portfolio containing all Purchased Loans and allocating such portfolio  market bid price among each individual Purchased Loan.  22.13.  Agent’s Duty of Care, Express Negligence Waiver and Release.  At all times  until all Purchased Loans have all been repurchased by the Seller and the Buyers have no further  commitments or other obligations under this Agreement and the other Repurchase Documents,  the Agent shall exercise the same degree of care in handling the Purchased Loans as Comerica  Bank exercises with respect to loans that are held solely by Comerica Bank for its own account,  and the Agent, in its capacity as Agent shall have no responsibility to the Buyers other than to  exercise such standard of care and, in any event, Comerica Bank shall have no liability with  respect to any other Buyer’s Pro Rata interest in the Purchased Loans except for Comerica  Bank’s own fraud, gross negligence or willful misconduct.  Except in the case of its own fraud,  gross negligence or willful misconduct, neither the Agent, any Buyer, nor any of their officers,  directors, employees, attorneys or agents shall be liable for any action taken or omitted to be  taken by it or them under this Agreement, the Custody Agreement, the MBS Custodial  Agreement or any of the other Repurchase Documents reasonably believed by it or them to be  within the discretion or power conferred upon it or them by the Repurchase Documents or be  responsible for consequences of any error of judgment, the Buyers expressly intending to hereby  waive and release all present and future claims and rights against the Agent (a) owed, in whole or  in part, under any claim or theory of strict liability or (b) for damages or injuries caused or  contributed to by any Indemnified Party’s sole or concurrent ordinary negligence that does not  amount to gross negligence or willful misconduct.  Except as otherwise specifically and  expressly set forth in this Agreement, the Agent shall not be responsible in any manner to anyone  for the effectiveness, enforceability, genuineness, validity or due execution of this Agreement,  any supplement, amendment or restatement of it or of any other Repurchase Documents or for  any representation, warranty, document, certificate, report or statement made or furnished in,  under or in connection with this Agreement or any of the other Repurchase Documents or be  under any obligation to anyone to ascertain or to inquire as to the performance or observation of  any of the terms, covenants or conditions of this Agreement or of the other Repurchase  Documents on the part of the Seller or anyone else.  Without limiting the generality of the  foregoing provisions of this Section 22.13, the Agent, in its capacity as Agent, may seek and rely  upon the advice of legal counsel in taking or refraining to take any action under any of the  Repurchase Documents or otherwise in respect of any Purchased Loans, this Agreement and its  parties, and shall be fully protected in relying upon such advice.  22.14. Calculations of Shares of Principal and Other Sums.  Except as provided to the  contrary in Section 6.4 (“Increased Cost”), Section 6.5 (“Capital Adequacy”), Section 7.1  (“Payments to be free of Taxes; Withholding”), Section 7.3 (“Taxes Indemnity”), Section 9.2  (“Agent’s Fee”), and Section 20 (“Payment of Expenses; Indemnity”), Comerica Bank’s and each  other Buyer’s respective shares of Repurchase Prices and other sums received by the Agent on  





 






  109  Bodman_17772003_9  account of the Purchased Loans or with respect to them shall be calculated on the basis of each  Buyer’s (including Comerica Bank’s) respective Pro Rata ownership interests in the Purchased  Loans from time to time.  22.15. Successor Agent.   Agent may resign as such at any time upon at least thirty  (30) days prior notice to the Seller and each of the Buyers. If Agent at any time shall resign or if  the office of Agent shall become vacant for any other reason, Required Buyers shall, by written  instrument, appoint successor agent(s) (“Successor Agent”) satisfactory to such Required Buyers  and, so long as no Default or Event of Default has occurred and is continuing, approved by the  Seller (which approval shall not be unreasonably withheld or delayed). Such Successor Agent  shall thereupon become the Agent hereunder, as applicable, and Agent shall deliver or cause to  be delivered to any successor agent such documents of transfer and assignment as such  Successor Agent may reasonably request. If a Successor Agent is not so appointed or does not  accept such appointment before the resigning Agent’s resignation becomes effective, the  resigning Agent may appoint a temporary successor to act until such appointment by the  Required Buyers and, if applicable, the Seller, is made and accepted, or if no such temporary  successor is appointed as provided above by the resigning Agent, the Required Buyers shall  thereafter perform all of the duties of the resigning Agent hereunder until such appointment by  the Required Buyers and, if applicable, the Seller, is made and accepted. Such Successor Agent  shall succeed to all of the rights and obligations of the resigning Agent as if originally named.  The resigning Agent shall duly assign, transfer and deliver to such Successor Agent all moneys  at the time held by the resigning Agent hereunder after deducting therefrom its expenses for  which it is entitled to be reimbursed hereunder. Upon such succession of any such Successor  Agent, the resigning Agent shall be discharged from its duties and obligations, in its capacity as  Agent hereunder, except for its gross negligence or willful misconduct arising prior to its  resignation hereunder, and the provisions of this Article 12 shall continue in effect for the benefit  of the resigning Agent in respect of any actions taken or omitted to be taken by it while it was  acting as Agent.  22.16. Merger of the Agent.  Any Person into which the Agent may be merged or  converted or with which it may be consolidated, or any Person surviving or resulting from any  merger, conversion or consolidation to which the Agent shall be a party or any Person  succeeding to the commercial banking business of the Agent shall be the successor Agent  without the execution or filing of any paper or any further act on the part of any of the parties.  22.17. Participation; Assignment by Buyers.  (a) Assignments.  Any Buyer may at any time assign in such Buyer’s rights  and obligations hereunder and under the other Repurchase Documents by way of  assignment to any Eligible Assignee in accordance with clause (d) of this Section 22.17,  (and any other attempted assignment or transfer by any Buyer shall be deemed to be null  and void).  Each assignment by a Buyer of all or any portion of its rights and obligations  hereunder and under the other Repurchase Documents, shall be subject to the following  terms and conditions: (i) each such assignment shall be in a minimum amount of the  lesser of (x) Five Million Dollars ($5,000,000) or such lesser amount as the Agent shall  agree and (y) the entire remaining amount of assigning Buyer’s Committed Sum;  provided however that, after giving effect to such assignment, in no event shall the entire  





 






  110  Bodman_17772003_9  remaining amount (if any) of assigning Buyer’s Committed Sum be less than $5,000,000;  (ii) each partial assignment shall be made as an assignment of a proportionate part of all  the assigning Buyer’s rights and obligations under this Agreement, and (iii) the parties to  any assignment shall execute and deliver to Agent an Assignment and Assumption   substantially (as determined by Agent) in the form attached hereto as Exhibit E (with  appropriate insertions acceptable to Agent), together with a processing and recordation  fee in the amount, if any, required as set forth in the Assignment and Assumption. Until  the Assignment and Assumption becomes effective in accordance with its terms, and  Agent has confirmed that the assignment satisfies the requirements of this Section 22.17,  the Seller and the Agent shall be entitled to continue to deal solely and directly with the  assigning Buyer in connection with the interest so assigned.  From and after the effective  date of each Assignment and Assumption that satisfies the requirements of this Section  22.17, the assignee thereunder shall be deemed to be a party to this Agreement, such  assignee shall have the rights and obligations of a Buyer under this Agreement and the  other Repurchase Documents (including without limitation the right to receive fees  payable hereunder in respect of the period following such assignment) and the assigning  Buyer shall relinquish its rights and be released from its obligations under this Agreement  and the other Repurchase Documents.  Upon request, the Seller shall execute and deliver  to the Agent, documents reasonably necessary to such assignment process;  (b) Participations.  The Seller and the Agent acknowledge that each of the  Buyers may at any time and from time to time, subject to the terms and conditions hereof,  sell participations in all or any part of such Buyer’s Commitment and Pro Rata ownership  share of the Purchased Loans to any Person (other than a natural person or to the Seller or  any of the Seller’s Affiliates or Subsidiaries); provided that any participation permitted  hereunder shall comply with all applicable laws and shall be subject to a participation  agreement that incorporates the following restrictions:  (i) such Buyer shall remain the holder of the notes issued hereunder, if  any, notwithstanding any such participation;  (ii) a participant shall not reassign or transfer, or grant any sub- participations in its participation interest hereunder or any part thereof; and  (iii) such Buyer shall retain the sole right and responsibility to enforce  the obligations of the Seller relating to this Agreement and the other Repurchase  Documents, including, without limitation, the right to proceed against any  Guarantors, or cause the Agent to do so (subject to the terms and conditions  hereof), and the right to approve any amendment, modification or waiver of any  provision of this Agreement without the consent of the participant (unless such  participant is a Buyer Affiliate), except to the extent such amendment,  modification or waiver requires the consent of all Buyers under Section 22.6.  In  those cases (if any) where a Buyer grants rights to any of its participants to  approve amendments, modifications or waivers of any Repurchase Documents  pursuant to the immediately preceding sentence, such Buyer must include a voting  mechanism as to all such approval rights in the relevant participation  agreement(s) whereby a readily-determinable fraction of such Buyer’s portion of  





 






  111  Bodman_17772003_9  the Purchased Loans (whether held by such Buyer or participated) shall control  the vote for all of such Buyer’s portion of the Purchased Loans; provided that if  no such voting mechanism is provided for or is fully and immediately effective,  then the vote of such Buyer itself shall be the vote for all of such Buyer’s portion  of the Purchased Loans; and provided further that a participant may exercise  approval rights over such matters only on an indirect basis, acting through such  Buyer, and the Seller, Agent and the other Buyers may continue to deal directly  with such Buyer in connection with such Buyer’s rights and duties hereunder.  Notwithstanding the foregoing, however, in the case of any participation granted  by any Buyer hereunder, the participant shall not have any rights under this  Agreement or any of the other Repurchase Documents against the Agent, any  other Buyer or the Seller; provided, however that the participant may have rights  against such Buyer in respect of such participation as may be set forth in the  applicable participation agreement and all amounts payable by the Seller  hereunder shall be determined as if such Buyer had not sold such participation.   Each such participant shall be entitled to the benefits of Sections 6.4, 6.5, and 7.1  of this Agreement to the same extent as if it were a Buyer and had acquired its  interest by assignment pursuant to clause (a) of this Section 22.17, provided that  no participant shall be entitled to receive any greater amount pursuant to such the  provisions of Sections 6.4, 6.5 and 7.1 than the issuing Buyer would have been  entitled to receive in respect of the amount of the participation transferred by such  issuing Buyer to such participant had no such transfer occurred and each such  participant shall also be entitled to the same rights of set-off as though it were a  Buyer, provided that such participant agrees to be subject to Section 22.10 hereof  as though it were a Buyer.  (c) Other Permitted Transfers.  Any Buyer may at any time pledge,  collaterally assign or grant a security interest in any or all of its interests under this  Agreement and in the Purchased Loans to any Federal Reserve Bank or to any other  Person to secure obligations of such Buyer, including any pledge or assignment to secure  obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall  release such Buyer from any of its obligations hereunder or substitute any such pledge or  assignee for such Buyer as a party hereto.  (d) Register.  The Agent shall maintain at its principal office a copy of each  Assignment Agreement delivered to it and a register (the “Register”) for the recordation  of the names and addresses of the Buyers and the Committed Sum of, and amount owing  to, each Buyer. The entries in the Register shall be conclusive evidence, absent manifest  error, and the Seller, the Agent, and the Buyers may treat each Person whose name is  recorded in the Register as the owner of the Advances recorded therein for all purposes of  this Agreement. The Register shall be available for inspection by the Seller or any Buyer  (but only with respect to any entry relating to such Buyer’s Committed Sum) upon  reasonable notice to the Agent and a copy of such information shall be provided to any  such party on their prior written request. The Agent shall give prompt written notice to  the Seller of the making of any entry in the Register or any change in such entry.  





 






  112  Bodman_17772003_9  (e) Disclosure of Seller Information.  The Seller authorizes each Buyer to  disclose to any prospective assignee or participant which has satisfied the requirements  hereunder, any and all financial information in such Buyer’s possession concerning the  Seller which has been delivered to such Buyer pursuant to this Agreement, provided that  each such prospective assignee or participant shall execute a confidentiality agreement  consistent with the terms of Section 24.6 hereof or shall otherwise agree to be bound by  the terms thereof.  (f) Nothing in this Agreement or the other Repurchase Documents, expressed  or implied, is intended to or shall confer on any Person other than the respective parties  hereto and thereto and their successors and assignees and participants permitted  hereunder and thereunder any benefit or any legal or equitable right, remedy or other  claim under this Agreement or the other Repurchase Documents.  (g) If any interest in this Agreement is so transferred to any Person that is  organized under the Legal Requirements of any jurisdiction other than the United States  of America or any State thereof, the transferor Buyer shall cause such Person,  concurrently with the effectiveness of such transfer, to comply with the relevant  provisions of Section 7.5.  (h) The Seller shall not be required to incur any cost or expense incident to  any sale to a Person of any interest in the Repurchase Documents and the Purchased  Loans pursuant to this Section 22.17 and all such costs and expenses shall be for the  account of the Buyer selling its rights in the Purchased Loans to such Person.  22.18. The Agent and the Buyers are the only Beneficiaries of this Section.  Other than  the provisions of Section 22.15 and Section 22.17, this Section 22 is intended to bind and benefit  only Comerica Bank and the other Buyers, and does not benefit and shall not be enforceable by  the Seller or any other Person whatsoever.  22.19. Knowledge of Default. It is expressly understood and agreed that the Agent  shall be entitled to assume that no Default or Event of Default has occurred and is continuing,  unless the officers of the Agent immediately responsible for matters concerning this Agreement  shall have received a written notice from a Buyer or the Seller specifying such Default or Event  of Default and stating that such notice is a “notice of default”. Upon receiving such a notice, the  Agent shall promptly notify each Buyer of such Default or Event of Default and provide each  Buyer with a copy of such notice and shall endeavor to provide such notice to the Buyers within  three (3) Business Days (but without any liability whatsoever in the event of its failure to do so).  The Agent shall also furnish the Buyer, promptly upon receipt, with copies of all other notices or  other information required to be provided by the Seller hereunder.  22.20. No Reliance on Agent’s Customer Identification Program.    (a) Each Buyer acknowledges and agrees that neither such Buyer, nor any of its  Affiliates, participants or assignees, may relay on the Agent to carry out such Buyer’s,  Affiliate’s, participant’s or assignee’s customer identification program, or other obligations  required or imposed under or pursuant to the USA Patriot Act or the regulations thereunder,  





 






  113  Bodman_17772003_9  including the regulations contained in 31 CFR 103.121 (as hereafter amended or replaced, the  “CIP Regulations”), or any other Anti-Terrorism Law, including any programs involving any of  the following items relating to or in connection with Seller or any of its Subsidiaries, any of their  respective Affiliates or agents, the Repurchase Documents or the transactions hereunder: (i) any  identify verification procedures, (ii) any record keeping, (iii) any comparisons with government  lists, (iv) any customer notices or (v) any other procedures required under the CIP Regulations or  such other laws.  (b) Each Buyer or assignee or participant of a Buyer that is not organized under the  laws of the United States or a state thereof (and is not excepted from the certification  requirement contained in Section 313 of the USA Patriot Act and the applicable regulations  because it is both (i) an affiliate of a depository institution or foreign bank that maintains a  physical presence in the United States or foreign country, and (ii) subject to supervision by a  banking authority regulating such affiliated depository institution or foreign bank) shall deliver  to the Agent the certification, or, if applicable, recertification, certifying that such Buyer is not a  “shell” and certifying to other matters as required by Section 313 of the USA Patriot Act and the  applicable regulations: (x) within 10 days after the Effective Date, and (y) at such other times as  are required under the USA Patriot Act.  22.21. Other Titles.  Any Buyer identified on the facing page or signature page of this  Agreement or in any amendment hereto or as designated with consent of the Agent in any  assignment agreement as Lead Arranger, Documentation Agent, or any similar titles, shall not  have any right, power, obligation, liability, responsibility or duty under this Agreement as a  result of such title other than those applicable to all Buyers as such. Without limiting the  foregoing, the Buyers so identified shall not have or be deemed to have any fiduciary  relationship with any Buyer as a result of such title. Each Buyer acknowledges that it has not  relied, and will not rely, on the Buyer so identified in deciding to enter into this Agreement or in  taking or not taking action hereunder.  22.22. Other Agreements.  Each Buyer hereby irrevocably appoints, designates and  authorizes Agent to enter into any Subordination Agreement, the Custody Agreement, the MBS  Custodial Agreement and the Electronic Tracking Agreement, on its behalf and to take such  action on its behalf under the provisions of any such agreement.  Each Buyer further agrees to be  bound by the terms and conditions of each such Subordination  Agreement, Custody Agreement,  MBS Custodial Agreement and Electronic Tracking Agreement.   22.23. Erroneous Payments.    (a) If the Agent determines (which determination shall be conclusive and binding,  absent manifest error) that the Agent or any of its Affiliates has erroneously, mistakenly or  inadvertently transmitted any funds to any Buyer (whether or not such transmittal was known by  such Buyer) (any such funds, whether received as a payment, prepayment, or repayment of  Purchase Price, Price Differential, fees, distributions, or otherwise, individually and collectively,  an “Erroneous Payment”) and the Agent subsequently demands the return of such Erroneous  Payment (or any portion thereof), then such Buyer shall promptly, but in no event later than two  (2) Business Days after such demand, return to the Agent the amount of any such Erroneous  Payment (or portion thereof) as to which such demand was made by the Agent, in same day  





 






  114  Bodman_17772003_9  funds (in the currency so received), together with interest thereon in respect of each day from  and including the date such amount was received by such Buyer to the date such amount is  repaid to the Agent in same day funds at the Federal Funds Effective Rate.  (b) To the extent permitted by applicable law, each Buyer agrees not to assert any  right or claim to any Erroneous Payment (or any portion thereof) and hereby waives any claim,  counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or  counterclaim by the Agent for the return of any Erroneous Payment (or any portion thereof)  (including, without limitation, any defense based on “discharge for value” or any similar  doctrine).  (c) This Section 22.23 shall survive the resignation or replacement of the Agent, any  transfer of rights or obligations by, or the replacement of, a Buyer, the termination of the  Commitments and/or the repayment, satisfaction or discharge of all Obligations (or any portion  thereof) under any Repurchase Document.  Section 23. Notices and Other Communications; Electronic Transmissions .  (a) Except as expressly provided otherwise in this Agreement (and except as  provided in clause (b) below), all notices and other communications provided to any party hereto  under this Agreement or any other Repurchase Document shall be in writing and shall be given  by personal delivery, by mail, by reputable overnight courier or by facsimile and addressed or  delivered to it at its address set forth below or at such other address as may be designated by  such party in a notice to the other parties that complies as to delivery with the terms of this  Section 23 or posted to an E-System set up by or at the direction of Agent (as set forth below).  Any notice, if personally delivered or if mailed and properly addressed with postage prepaid and  sent by registered or certified mail, shall be deemed given when received or when delivery is  refused; any notice, if given to a reputable overnight courier and properly addressed, shall be  deemed given two (2) Business Days after the date on which it was sent, unless it is actually  received sooner by the named addressee; and any notice, if transmitted by facsimile, shall be  deemed given when received. The Agent may, but, except as specifically provided herein, shall  not be required to, take any action on the basis of any notice given to it by telephone, but the  giver of any such notice shall promptly confirm such notice in writing or by facsimile, and such  notice will not be deemed to have been received until such confirmation is deemed received in  accordance with the provisions of this Section set forth above. If such telephonic notice conflicts  with any such confirmation, the terms of such telephonic notice shall control.   (b) Notices and other communications provided to the Agent and the Buyers party  hereto under this Agreement or any other Repurchase Document may be delivered or furnished  by electronic communication (including email and Internet or intranet websites) pursuant to  procedures approved by the Agent.  The Agent or the Seller may, in its discretion, agree to  accept notices and other communications to it hereunder by electronic communications  (including email and any E-System) pursuant to procedures approved by it.  Unless otherwise  agreed to in a writing by and among the parties to a particular communication, (i) notices and  other communications sent to an email address shall be deemed received upon the intended  recipient’s receipt of such notice or other communication and (ii) notices and other  communications posted to any E-System shall be deemed received upon the deemed receipt by  





 






  115  Bodman_17772003_9  the intended recipient at its email address as described in the foregoing clause (i) of notification  that such notice or other communication is available and identifying the website address  therefore.   If to the Seller:    Pulte Mortgage LLC  7390 South Iola   Englewood, CO 80112  Attention: Ralph Nowicki  Telephone: 303-493-2596  Facsimile: 303-409-5249  Email: Ralph.Nowicki@pulte.com  With a copy to:  Honigman LLP  2290 First National Building  Detroit, Michigan 48226  Attention: Steven J. Migliore  Telephone: 313-465-7462  Facsimile: 313-465-7463  Email: smigliore@honigman.com   If to Comerica Bank as Agent or as a Buyer, as to all notices hereunder:   Comerica Bank  Comerica Bank Tower  1717 Main Street  4th Floor  Dallas, Texas 75201  Attention: Trey Worley   Telephone: (214) 462-4279  Fax: (214) 462-4280  Email: tworley@comerica.com  And  Comerica Bank  411 W. Lafayette Blvd.  Detroit, MI  48226  Attention: Scott M. Helmer  Telephone: (313) 222.5717  Fax: (313) 222.9434  Email: smhelmer@comerica.com   with a copy of all Request/Confirmations to be delivered to the following email  addresses:  





 






  116  Bodman_17772003_9  corpfinadmin@comerica.com  tworley@comerica.com  pgdufault@comerica.com  smhelmer@comerica.com  megetz@comerica.com  brfudge@comerica.com    with a copy to:    Nicholas P. Scavone, Jr.   BODMAN PLC  6th Floor at Ford Field   1901 St. Antoine Street   Detroit, Michigan 48226  Phone: 313-393-7580   Facsimile: 313-393-7579   Email: nscavone@bodmanlaw.com  If to the other Buyers , at the addresses shown on Schedule 23.  (d) Each of the Agent, the Seller, the Buyers, and each of their Affiliates is authorized  (but not required) to transmit, post or otherwise make or communicate, in its sole discretion,  Electronic Transmissions in connection with any Repurchase Document and the transactions  contemplated therein.  The Seller hereby acknowledges and agrees that the use of Electronic  Transmissions is not necessarily secure and that there are risks associated with such use,  including risks of interception, disclosure and abuse and each indicates it assumes and accepts  such risks by hereby authorizing the transmission of Electronic Transmissions.  (d) All uses of an E-System shall be governed by and subject to, in addition to this  Section 23, separate terms and conditions posted or referenced in such E-System and related  contractual obligations executed by the Agent, the Seller and the Buyers in connection with the  use of such E-System.  (e) All E-Systems and Electronic Transmissions shall be provided “as is” and “as  available”.  None of the Agent or any of its Affiliates warrants the accuracy, adequacy or  completeness of any E-Systems or Electronic Transmission, and each disclaims all liability for  errors or omissions therein.  No warranty of any kind is made by the Agent or any of its  Affiliates in connection with any E Systems or Electronic Transmission, including any warranty  of merchantability, fitness for a particular purpose, non-infringement of third-party rights or  freedom from viruses or other code defects.  The Agent, the Seller and the Buyers agree that the  Agent has no responsibility for maintaining or providing any equipment, software, services or  any testing required in connection with any Electronic Transmission or otherwise required for  any E-System.  





 






  117  Bodman_17772003_9  Section 24. Miscellaneous.  24.1. Further Assurances.  At any time and from time to time, at the sole expense of  the Seller, the Seller or the Servicer shall promptly provide such further reasonable assurances,  documents and agreements and undertake such actions as the Agent may reasonably request in  order to effect the purposes of this Agreement, including the assignment, conveyance and  transfer of all right, title and interest of each Purchased Loan from the Seller to the Agent, or to  otherwise obtain or preserve the benefits or rights granted under this Agreement.  In the event the  Seller, Servicer or any subservicer, in the performance of the Servicing Functions shall foreclose  any Mortgage for which the Agent and the Buyers have not received the Repurchase Price, all  such actions shall be taken in the name of the Agent for the benefit of the Buyers and in  accordance with Accepted Servicing Practices.  24.2.  Agent as Attorney in Fact.  The Agent is hereby appointed the attorney-in-fact  of the Seller for the purpose of carrying out the provisions of this Agreement and taking any  action and executing any instruments or documents that the Agent may deem reasonably  necessary or advisable to accomplish the purposes hereof, which appointment as attorney-in-fact  is irrevocable and coupled with an interest, although the Agent agrees not to exercise its rights  under this power of attorney unless, in its opinion or the opinion of its legal counsel, an Event of  Default has occurred that has not been cured by the Seller or that the Agent has not declared in  writing to have been waived in accordance with Section 22.  Without limiting the generality of  the foregoing, but subject to Section 18.3, the Agent shall have the right and power during the  occurrence and continuation of any Event of Default to receive, endorse, collect and control all  checks or instruments made payable to the order of the Seller and all other forms of payment to  the Seller that represent any payment on account of the principal of or interest on or proceeds  from any of the Purchased Loans and to give full discharge for the same.  24.3. Wires to Seller.  Any amounts to be transferred by the Agent to the Seller  hereunder (other than Purchases Prices for the Purchased Loans) shall be sent by journal entry  (or wire transfer) in immediately available funds to the Operating Account.  24.4. Wires to Agent.  Except as may be otherwise expressly provided herein, any  amounts to be transferred by the Seller to the Agent hereunder shall be sent by wire transfer in  immediately available funds to the Repurchase Settlement Account.  24.5. Receipt; Available Funds.  Amounts received after 1:00 p.m. (Detroit,  Michigan time) on any Business Day shall be deemed to have been paid and received on the next  succeeding Business Day.  All payments and transfers of cash pursuant to this Agreement shall  be made (only if the paying and receiving accounts are with the same financial institution) by  journal entries, or (otherwise) by wire transfer, of immediately available funds in U.S. dollars.  24.6. Privacy of Customer Information.  The Seller’s Customer Information in the  possession of the Agent or the Buyers, other than information independently obtained by the  Agent or the Buyers and not derived in any manner from or using information obtained under or  in connection with this Agreement, is and shall remain confidential and proprietary information  of the Seller.  Except in accordance with this Section 24.6, the Agent and the Buyers shall not  use any Seller’s Customer Information for any purpose, including the marketing of products or  





 






  118  Bodman_17772003_9  services to, or the solicitation of business from, Customers, or disclose any Seller’s Customer  Information to any Person, including any of the Agent’s or the Buyers’ employees, agents or  contractors or any third party not affiliated with the Agent or a Buyer.  The Agent and the Buyers  may use or disclose the Seller’s Customer Information only to the extent necessary (a) for  examination and audit of the Agent’s or the Buyers’ respective activities, books and records by  their regulatory authorities, (b)  to market or sell Purchased Mortgage Loans or to enforce or  exercise their rights under any Repurchase Document, (c) to carry out the Agent’s, the Buyers’,  the Custodian’s and the Approved MBS Custodian’s express rights and obligations under this  Agreement and the other Repurchase Documents (including providing the Seller’s Customer  Information to Approved Investors), or (d) in connection with an assignment or participation as  authorized by Section 22 or in connection with any hedging transaction related to the Purchased  Loans and for no other purpose; provided that the Agent and the Buyers may also use and  disclose the Seller’s Customer Information as expressly permitted by the Seller in writing, to the  extent that such express permission is in accordance with the Privacy Requirements.  The Agent  and the Buyers shall ensure that each Person to which the Agent or a Buyer intends to disclose  Seller’s Customer Information, before any such disclosure of information, agrees to keep  confidential any such Seller’s Customer Information and to use or disclose such Seller’s  Customer Information only to the extent necessary to protect or exercise the Agent’s, the  Buyers’, the Custodian’s and the Approved MBS Custodian’s rights and privileges, or to carry  out the Agent’s, the Buyers’, the Custodian’s and the Approved MBS Custodian’s express  obligations under this Agreement and the other Repurchase Documents (including providing the  Seller’s Customer Information to Approved Investors).  The Agent agrees to maintain an  Information Security Program and to assess, manage and control risks relating to the security and  confidentiality of the Seller’s Customer Information pursuant to such program in the same  manner as the Agent does in respect of its own customers’ information, and shall implement the  standards relating to such risks in the manner set forth in the Interagency Guidelines Establishing  Standards for Safeguarding Company Customer Information set forth in 12 CFR Parts 30, 208,  211, 225, 263, 308, 364, 568 and 570.  Without limiting the scope of the foregoing sentence, the  Agent and the Buyers shall use at least the same physical and other security measures to protect  all of the Seller’s Customer Information in their possession or control as each of them uses for its  own customers’ confidential and proprietary information.  Section 25. Entire Agreement; Severability.  This Agreement supersedes any existing agreements between the parties containing  general terms and conditions for repurchase transactions.  This Agreement may not be amended,  modified or supplemented except in accordance with the provisions of Section 22 and such  amendment, modification or supplement must be set forth in a writing signed by the parties  required to do so in accordance with Section 22.  Each provision and agreement herein shall be  treated as separate and independent from any other provision or agreement herein and shall be  enforceable notwithstanding the unenforceability of any such other provision or agreement.  Section 26. Non-assignability; Termination; Replacement of Buyers .  26.1. Limited Assignment.  Except with respect to any repurchase transaction, sale,  transfer, pledge or hypothecation by the Agent or any Buyer pursuant to Section 22.17, the rights  and obligations of the parties under this Agreement and under any Transaction shall not be  





 






  119  Bodman_17772003_9  assigned by any party without the prior written consent of the other parties and any such  assignment without the prior written consent of the other parties shall be null and void.  Subject  to the foregoing, this Agreement and any Transactions shall bind and benefit the parties and their  respective successors and assigns.  26.2. Remedies Exception.  Section 26.1 shall not preclude a party from assigning,  charging or otherwise dealing with all or any part of its interest in any sum payable to it under  Section 18.  26.3. Agreement Termination.  This Agreement shall terminate, automatically and  without any requirement for notice, on the date after the Termination Date on which all  Obligations (other than contingent reimbursement or indemnification obligations as to which no  claim has been asserted) have been indefeasibly paid in full, provided, that the provisions of  Sections 6.4, 6.5, 7 and 20 shall survive the termination of this Agreement, provided further, that  this Agreement and any Open Transactions may be extended by mutual agreement of the Buyers,  the Agent and the Seller; and provided further, that no such party shall be obligated to agree to  such an extension.  26.4. Replacement of Buyers.   (a) If any Buyer becomes a Defaulting Buyer hereunder, or any Buyer does  not consent to a modification or waiver of the terms of this Agreement or the other Facility  Papers requested by the Agent, or otherwise fails to give its consent to an action requested by the  Seller hereunder and, in each case, the Required Buyers have given their consent then, provided  no Default or Event of Default has occurred and is continuing, the Seller may, at its sole expense  and effort, upon notice to such Buyer and the Agent, require such Buyer to assign and delegate,  without recourse (in accordance with and subject to the restrictions set forth in Section 22.17) all  its interests, rights and obligations under this Agreement to an assignee (which assignee may be  another Buyer) that shall assume such obligations; provided, that (x) the Seller shall have  received the prior written consent of the Agent, which consent shall not be unreasonably  withheld and (y) such Buyer shall have received payment of an amount equal to the Repurchase  Price of all Transactions funded by it together with accrued Fees and all other amounts payable  to it hereunder, from the assignee (in the case of such Repurchase Price and Fees) and from the  Seller (in the case of all other amounts).  A Buyer shall not be required to make any such  assignment and delegation if, prior thereto, as a result of a waiver by such Buyer or otherwise,  the circumstances entitling the Seller to require such assignment and delegation cease to apply  (b) The Agent shall reasonably cooperate in effectuating the replacement of  any Buyer under this Section 26.4 but at no time shall the Agent be obligated to initiate any such  replacement.    Section 27. Counterparts .  This Agreement may be executed in any number of counterparts, each of which  counterparts shall be deemed to be an original, and such counterparts shall constitute but one and  the same instrument.  





 






  120  Bodman_17772003_9  Section 28. Governing Law, Jurisdiction and Venue .  THIS AGREEMENT (INCLUDING THIS CHOICE-OF-LAW PROVISION) AND  THE OTHER REPURCHASE DOCUMENTS SHALL BE GOVERNED BY AND  CONSTRUED AND ALL CONTROVERSIES AND DISPUTES ARISING UNDER, IN  CONNECTION WITH OR RELATING TO THIS AGREEMENT AND THE OTHER  REPURCHASE DOCUMENTS SHALL BE RESOLVED, IN ACCORDANCE WITH  THE LAWS OF THE STATE OF MICHIGAN AND THE UNITED STATES OF  AMERICA APPLICABLE TO CONTRACTS MADE AND TO BE WHOLLY  PERFORMED WITHIN SUCH STATE.  THE SELLER, THE AGENT AND THE  BUYERS EACH HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE  JURISDICTION AND VENUE OF THE UNITED STATES DISTRICT COURT FOR  THE EASTERN DISTRICT OF MICHIGAN OR, IF SUCH COURT DOES NOT HAVE  JURISDICTION, MICHIGAN STATE COURT SITTING IN DETROIT, FOR THE  PURPOSE OF ANY ACTION OR OTHER PROCEEDING ARISING UNDER, IN  CONNECTION WITH OR RELATING TO THE REPURCHASE DOCUMENTS OR  ANY RELATED TRANSACTION.  Seller irrevocably consents to the service of any and all  process in any such action or proceeding brought in any court in or of the State of Michigan by  the delivery of copies of such process to it at the applicable addresses specified on in Section 23   in a notice to the other parties that complies as to delivery with the terms of Section 23. Nothing  in this Section 28 shall affect the right of the Buyers and the Agent to serve process in any other  manner permitted by law or limit the right of the Buyers or the Agent (or any of them) to bring  any such action or proceeding against Seller or any of their property in the courts with subject  matter jurisdiction of any other jurisdiction. Seller irrevocably waives any objection to the laying  of venue of any such suit or proceeding in the above described courts.  Section 29. Waiver of Jury Trial.  EACH OF THE SELLER (IN ITS CAPACITY AS SELLER AND SERVICER),  THE BUYERS AND THE AGENT HEREBY (a) COVENANTS AND AGREES NOT TO  ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY A JURY, AND  (b) WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY  SUCH RIGHT SHALL NOW OR HEREAFTER EXIST.  THIS WAIVER OF RIGHT TO  TRIAL BY JURY IS SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY, BY  EACH OF THE SELLER, THE BUYERS AND THE AGENT, AND THIS WAIVER IS  INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE  AS TO WHICH THE RIGHT OF A JURY TRIAL WOULD OTHERWISE ACCRUE.   THE AGENT IS HEREBY AUTHORIZED AND REQUESTED TO SUBMIT THIS  AGREEMENT TO ANY COURT HAVING JURISDICTION OVER THE SUBJECT  MATTER AND THE PARTIES HERETO, SO AS TO SERVE AS CONCLUSIVE  EVIDENCE OF THE FOREGOING WAIVER OF THE RIGHT TO JURY TRIAL.   FURTHER, THE SELLER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR  AGENT OF THE BUYERS OR THE AGENT HAS REPRESENTED, EXPRESSLY OR  OTHERWISE, TO ANY STOCKHOLDER, DIRECTOR, OFFICER, AGENT OR  REPRESENTATIVE OF THE SELLER THAT THE BUYERS OR THE AGENT WILL  NOT SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.  





 






  121  Bodman_17772003_9  Section 30. Relationship of the Parties .  This Agreement provides for the sale by the Seller and the purchase by the Buyers (acting  through their agent and representative, the Agent) of Eligible Loans and the obligation of the  Seller to repurchase them upon termination of each Transaction.  The relationship between the  Seller and the Buyers (and the Agent) is limited to that of seller and repurchaser on the one hand  and buyers and resellers (and the Agent as the Buyers’ agent and representative) on the other.   The provisions in this Agreement and the other Repurchase Documents for compliance with  financial covenants and delivery of financial statements are intended solely for the benefit of the  Buyers and the Agent, to protect the interests of the Buyers as buyers, including the Buyers’ and  the Agent’s interest in assuring repurchase of Purchased Loans at the termination of each  Transaction, and nothing contained in this Agreement or any of the other Repurchase Documents  shall be construed as permitting or obligating any Buyer or the Agent to act as a financial or  business advisor or consultant to the Seller, as permitting or obligating any Buyer or the Agent to  control the Seller or to conduct the Seller’s operations, as creating any fiduciary obligation on the  part of the Buyers or the Agent to the Seller, or as creating any joint venture, agency or other  relationship between the parties other than as explicitly and specifically stated in this Agreement.   The Seller acknowledges that it has had the opportunity to obtain the advice of experienced  counsel of its own choosing in connection with the negotiation and execution of this Agreement  and the other Repurchase Documents and to obtain the advice of such counsel with respect to all  matters contained in the Repurchase Documents including the provision for waiver of trial by  jury.  The Seller further acknowledges that it is experienced with respect to financial and credit  matters and has made its own independent decisions to apply to the Buyers and the Agent to  enter into this Agreement, and to execute and deliver this Agreement and the other Repurchase  Documents.  Section 31. No Waivers, Etc.  No express or implied waiver of any Event of Default by any party shall constitute a  waiver of any other Event of Default and no exercise of any remedy hereunder by any party shall  constitute a waiver of its right to exercise any other remedy hereunder.  No modification or  waiver of any provision of this Agreement and no consent by any party to a departure herefrom  shall be effective unless and until such shall be in writing and duly executed by the Seller and the  parties required to do so pursuant to Section 23.  Without limitation on any of the foregoing, the  failure to give a notice pursuant to Section 23 will not constitute a waiver of any right to do so at  a later date.  The rights and remedies of the Buyers hereunder shall be cumulative and not  exclusive of any rights and remedies that the Buyers would otherwise have.  No failure or delay  on the part of the Buyers in exercising any right, power or privilege hereunder shall operate as a  waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder  preclude any other or further exercise thereof or the exercise of any other right, power or  privilege.  Section 32. Use of Employee Plan Assets.  32.1. Prohibited Transactions.  If assets of an employee benefit plan subject to any  provision of ERISA are intended to be used by any party hereto (the “Plan Party”) in a  Transaction, the Plan Party shall so notify the other parties prior to the Transaction.  The Plan  





 






  122  Bodman_17772003_9  Party shall represent in writing to the other parties that the Transaction does not constitute a  prohibited transaction under ERISA or is otherwise exempt therefrom, and the other parties may  proceed in reliance thereon but shall not be required so to proceed.  32.2. Audited Financial Statements Required.  Subject to the last sentence of Section  32.1, any such Transaction shall proceed only if the Seller furnishes or has furnished to the  Agent its most recent available audited statement of its financial condition and its most recent  subsequent unaudited statement of its financial condition.  32.3. Representations.  By entering into a Transaction pursuant to this Section 32,  the Seller shall be deemed (a) to represent to the Buyers and the Agent that since the date of the  Seller’s latest such financial statements, there has been no material adverse change in the Seller’s  financial condition that the Seller has not disclosed to the Agent, and (b) to agree to provide the  Agent with future audited and unaudited statements of its financial condition as they are issued,  so long as it is a Seller in any Open Transaction involving a Plan Party.  Section 33. Intent.  33.1. Transactions are Repurchase Agreements  and Securities Contracts.  The  parties intend and acknowledge that each Transaction is a “repurchase agreement” and a “master  netting agreement” as such terms are defined in Section 101 of the Bankruptcy Code (except  insofar as the type of Mortgage Loans subject to such Transaction or the term of such  Transaction would render such definition inapplicable), and a “securities contract” as that term is  defined in Section 741 of the Bankruptcy Code (except insofar as the type of assets subject to  such Transaction would render such definition inapplicable).  This Agreement also constitutes a  “netting contract” as defined in and subject to Title IV of the Federal Deposit Insurance  Corporation Improvement Act of 1991 (“FDICIA”) and each payment entitlement and payment  obligation under any Transaction hereunder shall constitute a “covered contractual payment  entitlement” or “covered contractual payment obligation,” respectively, as defined in and subject  to FDICIA (except insofar as any or all of the parties is not a “financial institution” as that term  is defined in FDICIA).  The Seller hereby agrees that it shall not challenge the characterization  of this Agreement as a “repurchase agreement” as that term is defined in Section 101 of the  Bankruptcy Code, or as a “securities contract” as that term is defined in Section 741 of the  Bankruptcy Code in any dispute or proceeding.  33.2. Contractual Rights, Etc.Any party’s right to liquidate Mortgage Loans  delivered to it in connection with Transactions hereunder or to exercise any other remedies  pursuant to Section 18 is a contractual right to liquidate, terminate or accelerate such Transaction  as described in Sections 555, 559 and 561 of the Bankruptcy Code.  33.3. FDIA.  If a party hereto is an “insured depository institution,” as such term is  defined in the Federal Deposit Insurance Act, as amended (“FDIA”), then each Transaction  hereunder is a “qualified financial contract,” as that term is defined in FDIA and any rules,  orders or policy statements thereunder (except insofar as the type of assets subject to such  Transaction would render such definition inapplicable).  





 






  123  Bodman_17772003_9  33.4. Master Netting Agreement.  It is understood and agreed that this Agreement  constitutes a “master netting agreement” as that term is defined in Section 101 of the Bankruptcy  Code, and that a party’s right to cause the termination, liquidation, or acceleration of, or to offset  net termination values, payment amounts or other transfer obligations arising under or in  connection with, this Agreement or any Transaction is a contractual right to cause the  termination, liquidation, or acceleration of, or to offset net termination values, payment amounts  or other transfer obligations arising under or in connection with, this Agreement or any  Transaction as described in Section 561 of the Bankruptcy Code.  Section 34. Disclosure Relating to Certain Federal Protections .  The parties acknowledge that they have been advised that:  34.1. Parties not Protected by SIPA or Insured by FDIC or NCUSIF.  In the case of  Transactions in which one of the parties is a broker or dealer registered with the Securities and  Exchange Commission (“SEC”) under Section 15 of the Securities Exchange Act of 1934 (“1934  Act”), the Securities Investor Protection Corporation has taken the position that the provisions of  SIPA do not protect the other party with respect to any Transaction hereunder.  34.2. SIPA Does Not Protect Government Securities Broker or Dealer Counterparty.   In the case of Transactions in which one of the parties is a government securities broker or a  government securities dealer registered with the SEC under Section 15C of the 1934 Act, SIPA  will not provide protection to the other party with respect to any Transaction hereunder.  34.3. Transaction Funds Are Not Insured Deposits.  In the case of Transactions in  which one of the parties is a financial institution, funds held by such financial institution  pursuant to a Transaction hereunder are not a deposit and therefore are not insured by the Federal  Deposit Insurance Corporation (through either the Bank Insurance Fund or the Savings  Association Insurance Fund) or the National Credit Union Share Insurance Fund, as applicable.  Section 35. USA Patriot Act Notification.   Pursuant to Section 326 of the USA Patriot Act, the Agent and the Buyers hereby notify  the Seller that if they or any of their Subsidiaries open an account, including any loan, deposit  account, treasury management account, or other extension of credit with Agent or any Buyer, the  Agent or the applicable Buyer will request the applicable Person’s name, tax identification  number, business address and other information necessary to identify such Person (and may  request such Person’s organizational documents or other identifying documents) to the extent  necessary for the Agent and the applicable Buyer to comply with the USA Patriot Act.   Section 36. Waiver of Fees, Costs and Expenses.    Agent, Custodian, Approved MBS Custodian and each Buyer shall have the right, in  their sole discretion, at any time and from time to time, to waive or reduce (but not increase) any  fees (including the Facility Fee, the Agent’s Fee, and Custodian Fees) owing to it by the Seller,  and/or any costs and expenses (including without limitation attorney's fees and third party audit  fees) incurred by Agent, Custodian, Approved MBS Custodian or such Buyer for which the  Seller is obligated to reimburse Agent, Custodian, Approved MBS Custodian or such Buyer.   





 






  124  Bodman_17772003_9  Custodian and each Buyer shall promptly inform the Agent of any waiver of all or any portion of  the Facility Fee, Custodian Fees, account-related charges or fees, or any other fees, costs or  expenses (including without limitation attorney's fees and third party audit fees) owing by Seller  to such Buyer or Custodian under this Agreement.  Such Buyer shall notify Seller and Agent of  any waiver or reduction in the amount of the Facility Fee or other costs and expenses payable by  the Seller to such Buyer.  The waivers and adjustments identified in such notice shall become  effective on a date determined by Agent (but in any event shall not become effective prior to the  date such notice is received). The Seller hereby acknowledges and agrees that nothing in this  Section 36 shall obligate any Buyer to grant any such waiver or reduction.  Section 37. Amended and Restated.    This Agreement amends, restates, replaces and supersedes in its entirety the Amended  and Restated Master Repurchase Agreement between Seller, Comerica Bank, as agent, lead  arranger and a buyer, and certain other buyers dated July 30, 2020 (as amended or otherwise  modified from time to time, the “Prior Agreement”); provided, however, nothing contained  herein shall impair the liens, security interests and other rights established or continued by the  Prior Agreement, which liens, security interests and other rights shall continue in full force and  effect. All “Purchased Loans” (as defined in the Prior Agreement) (the “Existing Purchased  Loans”), shall be Purchased Loans under this Agreement as if originally funded under this  Agreement so long as such Existing Purchased Loans meet all of the requirements for eligibility  and inclusion under this Agreement, provided, however, (a) the determination of the Purchase  Date under paragraph 9 of Schedule DQ under this Agreement shall be calculated based on the  original Purchase Date as determined under the Prior Agreement, and (b) such Existing  Purchased Loans shall be deemed to comply with the requirement of paragraph 8 of Schedule EL  under this Agreement if the date of each underlying Mortgage Note for such Existing Purchased  Loans was not earlier than 30 days prior to the date such Existing Purchased Loan was purchased  under the Prior Agreement.  On the Effective Date, each Buyer shall (i) have Committed Sums  equal to the applicable amounts set forth in Schedule BC hereto and (ii) have funded its Funding  Share of all Transactions (and participation in Swing Line Transactions) outstanding on the  Effective Date. To facilitate the foregoing, each Buyer which as a result of the adjustments of  Committed Sums and Funding Shares evidenced by Schedule BC hereto is to have a greater  principal amount of the Transactions outstanding than such Buyer had outstanding under the  Prior Agreement immediately prior to the Effective Date, shall deliver to the Agent immediately  available funds to cover such Transactions (and the Agent shall, to the extent of the funds so  received, disburse funds to each Buyer which, as a result of the adjustment of the Funding  Shares, is to have a lesser principal amount of Transactions outstanding than such Buyer had  under the Prior Agreement).  The Buyers agree that any Price Differential, Facility Fees and  other fees accrued under the Prior Agreement shall constitute the property of the Buyers which  were parties to the Prior Agreement and shall be distributed (to the extent received from the  Seller) to such Buyers on the basis of the Funding Shares in effect under the Prior Agreement.  Furthermore, it is acknowledged and agreed that all fees paid under the Prior Agreement shall  not be recalculated, redistributed or reallocated by Agent among the Buyers.  The remainder of this page is intentionally blank; signature pages follow.  





 






 





 






 





 






 





 






[Signature Page to Third Amended and Restated Master Repurchase Agreement (17772003)]  TRUIST BANK, formerly known as  BRANCH BANKING AND TRUST  COMPANY    By:     Name:     Title:       Chad Cain Senior Vice President 





 






  A-1  Bodman_17772003_9  EXHIBIT A  To Master Repurchase Agreement    FORM OF REQUEST/CONFIRMATION  To: From:  Comerica Bank, Agent Pulte Mortgage LLC   Comerica Bank Tower    1717 Main Street   4th Floor   Dallas, Texas 75201   Attention: Trey Worley Attention:     Phone: (214) 462-4279 Phone:     Fax:  (214) 462-4280 Fax:     Email:  tworley@comerica.com  Email:       And     Comerica Bank, Agent  411 W. Lafayette  Detroit, MI 48226   Attention: Sandy Fields   Telephone: (313) 222-5265   Fax: (313) 222-5272   Email: corpfinadmin@comerica.com    Please refer to the Third Amended and Restated Master Repurchase Agreement dated as  of July 29, 2021 among Pulte Mortgage LLC (the “Seller”), the buyers from time to time party  thereto (the “Buyers”) and Comerica Bank, as agent to the Buyers (in such capacity, the “Agent”)  (as it may have been or may hereafter be supplemented, amended, restated or otherwise modified  from time to time, the “Current Repurchase Agreement”).  Any term defined in the Current  Repurchase Agreement and used in this request shall have the meaning given to it in the Current  Repurchase Agreement.  The Seller currently qualifies under the Current Repurchase Agreement for, and hereby  requests, purchases of Eligible Loans as set forth below (the “Requested Purchases”) to be made  on the following Purchase Date:  ____________________, 202_____ (which must be a Business  Day).   Regular Transaction Swing Line Transaction  Previous Day Aggregate  Outstanding Purchase Price      Purchase Price Advanced  (Eligible Loans)     





 






    A-2  Bodman_17772003_9  Repurchase Price Paid    Aggregate Outstanding Purchase  Price       After giving effect to the Requested Purchases, the Aggregate Outstanding Purchase Price will  not exceed the Maximum Aggregate Commitment.  The Seller has delivered to the Custodian today multiple Mortgage Loan Transmission  Files.  All Mortgage Loans listed in such Mortgage Loan Transmission Files and included in the  foregoing calculations (the “Purchased Loans”) are Eligible Loans.  For each of the Purchased  Loans the representations set forth in Section 15.3 and 15.4 of the Current Repurchase  Agreement are true and correct.  Pursuant to the terms of the Custody Agreement and the Current Repurchase Agreement  and acknowledging and agreeing that new value, as that term is used in the Michigan Uniform  Commercial Code, has been given in reliance thereon, the Seller hereby sells, negotiates and  transfers to the Buyers the Mortgage Loans listed on the attached Schedule of Mortgage Loans.   The Seller acknowledges that the Agent and the Buyers will rely on the truth of each statement in  this Request/Confirmation and the Mortgage Loan Transmission Files in purchasing the  Purchased Loans referred to herein.  The Purchase Prices for the Purchased Loans should be deposited in the Funding Account  to be accessed and disbursed as provided in, and subject to the terms and conditions of, the  Current Repurchase Agreement.   No Default has occurred under the Repurchase Documents that has not been cured by the  Seller or declared in writing by the Agent to have been waived in accordance with Section 22,  and no Event of Default has occurred under the Repurchase Documents that the Agent has not  declared in writing to have been waived (in accordance with Section 22).  There has been no  material adverse change in any of the Central Elements in respect of the Seller since the date of  the Seller’s most recent annual audited Financial Statements that have been delivered to the  Agent and the Buyers.  All items that the Seller is required to furnish to the Buyers, the Agent or the Custodian in  connection with the Requested Purchases have been delivered in all respects as required by the  Current Repurchase Agreement and the other Repurchase Documents.  All documentation  described or referred to in the Mortgage Loan Transmission Files conform in all material  respects with all applicable requirements of the Current Repurchase Agreement and the other  Repurchase Documents.  The Seller hereby warrants and represents to the Buyers and the Agent that none of the  Purchased Loans has been sold to any Person other than the Buyers (except for Purchased Loans  previously sold to the Parent under the Parent Repurchase Agreement, provided that the Parent  Custodian has released all Liens and other right, title and interest in and to said Purchased Loans  in connection with such repurchase), is pledged to any Person other than the Agent, for the  





 






    A-3  Bodman_17772003_9  benefit of itself and the Buyers, or supports any borrowing or repurchase agreement funding  other than purchases under the Current Repurchase Agreement.  The undersigned Seller Representative hereby certifies that all of the Seller’s  representations and warranties (a) in the Current Repurchase Agreement and all of the other  Repurchase Documents (except only to the extent that (i) such a representation or warranty  speaks to a specific date or (ii) the facts on which a representation or warranty is based have been  changed by transactions or conditions contemplated or expressly permitted by the Repurchase  Documents) and (b) in this request, are true and correct in all material respects on the date of this  request; and that conditions to the Requested Purchases set forth in the Current Repurchase  Agreement have been or will be satisfied contemporaneously herewith.      PULTE MORTGAGE LLC  By:  ________________________  Name:  ________________________  Title:  ________________________  





 






  B-1  Bodman_17772003_9  EXHIBIT B  To Master Repurchase Agreement    FORM OF OFFICER’S CERTIFICATE WITH COMPUTATIONS  TO SHOW COMPLIANCE OR NON-COMPLIANCE WITH  CERTAIN FINANCIAL COVENANTS    OFFICER’S CERTIFICATE  AGENT: Comerica Bank  SELLER: Pulte Mortgage LLC  SUBJECT PERIOD:    ended  , 202__  DATE:   , 202__  This certificate is delivered to the Agent and the Buyers under the Third Amended and  Restated Master Repurchase Agreement dated as of July 29, 2021 (as supplemented, amended or  restated from time to time, the “Current Repurchase Agreement”), among the Seller, the Agent  and the Buyers from time to time party thereto.  Unless they are otherwise defined in this  request, terms defined in the Current Repurchase Agreement have the same meanings here as  there.  The undersigned officer of the Seller certifies to the Agent that on the date of this  certificate that:  1. The undersigned is an incumbent officer of the Seller, holding the title stated  below the undersigned’s signature below.  2. The Seller’s Financial Statements that are attached to this certificate were  prepared in accordance with GAAP (except that interim, i.e. other than annual, Financial  Statements exclude notes to Financial Statements and statements of changes to stockholders’  equity and are subject to year-end adjustments) and (subject to the aforesaid proviso as to interim  Financial Statements) present fairly the Seller’s financial condition and results of operations as  of _________________ for that month (the “Subject Period”) and for the year to that date.  3. The undersigned officer of the Seller supervised a review of the Seller’s activities  during the Subject Period in respect of the following matters and has determined the following:  (a) except to the extent that a representation or warranty speaks to a specific  date, the representations and warranties of the Seller in the Current Repurchase  Agreement and the other Repurchase Documents are true and correct in all material  respects, other than the changes, if any, described on the attached Annex A;   (b) no event has occurred that could reasonably be expected to have a  materially adverse effect on any of the Central Elements of the Seller;  





 






  B-2  Bodman_17772003_9  (c) the Seller has complied with all of its obligations under the Repurchase  Documents, other than the deviations, if any, described on the attached Annex A;   (d) no Default or Event of Default has occurred and is continuing, other than  those Events of Default and/or Defaults, if any, described on the attached Annex A; and   (e) compliance by the Seller with the financial covenants in Section 16.18, of  the Current Repurchase Agreement is accurately calculated on the attached Annex A.    ____________________       By:__________________________   Name:     Title:      





 






  Annex A-1 to Ex B  Bodman_17772003_9  ANNEX A TO OFFICER’S CERTIFICATE  1. Describe changes from representations and warranties, if any — clause 3(a) of  attached Officer’s Certificate — if none, so state:  2. Describe deviations from compliance with obligations, if any — clause 3(b) of  attached Officer’s Certificate — if none, so state:  3. Describe Defaults or Events of Default, if any — clause 3(c) of attached Officer’s  Certificate — if none, so state:  4. Calculate compliance with covenants in Section 16.18 of Current Repurchase  Agreement:  (a) Adjusted Tangible Net Worth.  The Seller’s Adjusted Tangible Net  Worth as of the last day of the month ended __________ is $____________________  (the minimum under Section 16.18(a) is $70,000,000.)  Adjusted Tangible Net Worth  Consolidated Assets:     $ _________________    Minus Total Liabilities (excluding Qualified  Subordinated Debt):  $ _________________    Minus Intangible Assets (including Capitalized  Servicing Rights):  $ _________________    Minus Receivables due from Affiliates $ _________________    Minus Loans held for Investment and REO,  Net of Reserves  $ _________________     ADJUSTED TANGIBLE NET   WORTH:  $ _________________      





 






  Annex A-2 to Ex B  Bodman_17772003_9  (b) Adjusted Tangible Net Worth Ratio. The ratio of the Liabilities to  Adjusted Tangible Net Worth Ratio as of the last day of the month ended  ________________________ is ___ to 1.0 (the maximum ratio under Section 16.18(b) is  8.0:1.0).  Leverage Ratio  Total Liabilities (excluding Qualified Subordinated Debt):     $ ____________    Adjusted Tangible Net Worth: $ ____________    LEVERAGE RATIO: ___ to 1.0      (c) Liquidity.  The Seller’s Liquidity, as of the last day of the month ended  __________________, 202__ was $_____________ (the minimum under Section  16.18(c) is $40,000,000).  Liquidity  Unencumbered cash and cash equivalents: $ _______________    Plus Unused availability against Purchased  Loans (Purchase Value – Purchase Price):    $ _______________     LIQUIDITY:    $ _______________    (d) Net Income .  As of the last day of the month ended ______________, the  Seller’s Net Income for the 12 month period then ending was $______________ (the  minimum under Section 16.18(d) is $1).  





 






  C-1  Bodman_17772003_9  EXHIBIT C  To Master Repurchase Agreement    List of Subsidiaries of the Seller as of the Effective Date    Subsidiary Place of organization States where  qualified as a foreign  organization  The Seller’s  percentage of capital  stock or equity  ownership  PCIC Corporation Michigan California  Massachusetts  Michigan  New York  North Carolina  Ohio  Pennsylvania    South Carolina  Texas  Virginia      100%  Pulte Insurance  Agency, Inc.  Delaware Arizona  California  Massachusetts  Michigan  Minnesota  Nevada  New Jersey  New York  Ohio  Texas  Virginia  100%  





 






  D-1  Bodman_17772003_9  EXHIBIT D  To Master Repurchase Agreement    FORM OF CORPORATION TAX TREATMENT CERTIFICATE  Reference is hereby made to the Third Amended and Restated Master Repurchase  Agreement dated as of July 29, 2021 (as supplemented, amended or restated, supplemented from  time to time, the “Agreement”), among Pulte Mortgage LLC (the “Seller”), Comerica Bank  (“Comerica”), as a buyer and as agent for the other buyers party thereto from time to time (the  “Agent”) and such other buyers (collectively with Comerica, the “Buyers”).  Pursuant to the  provisions of Article 7 of the Agreement, the undersigned hereby certifies that:  1. It is (one must be checked)   ___ a natural individual person  ___  treated as a corporation for U.S. federal income tax purposes   ___ disregarded for federal income tax purposes (in which case a copy of this  Corporation Tax Treatment Certificate is attached in respect of its sole  beneficial owner)   ___  treated as a partnership for U.S. federal income tax purposes.  2. It is the beneficial owner of amounts received pursuant to the Agreement.  3. It is not a bank, as such term is used in Section 881(c)(3)(A) of the Internal  Revenue Code of 1986, as amended (the “Internal Revenue Code”).  4. It is not a 10-percent stockholder of the Seller within the meaning of Section  871(h)(3) or 881(c)(3)(B) of the Internal Revenue Code.  5. It is not a controlled foreign corporation that is related to the Seller within the  meaning of Section 881(c)(3)(C) of the Internal Revenue Code.  6. Amounts paid to it under the Repurchase Documents are not effectively  connected with its conduct of a trade or business in the United States.  __________________________________      By:  ____________________________  Name:  ____________________________  Title:  ____________________________    Date:  _________________  





 






  E-1  Bodman_17772003_9  EXHIBIT E  To Master Repurchase Agreement    FORM OF ASSIGNMENT AND ASSUMPTION    ASSIGNMENT AND ASSUMPTION  This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the  Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the  “Assignor”) and [Insert name of Assignee] (the “Assignee”).  Capitalized terms used but not  defined herein shall have the meanings given to them in the Master Repurchase Agreement  identified below (as amended, the “Repurchase Agreement”), receipt of a copy of which is  hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forth in Annex 1  attached hereto are hereby agreed to and incorporated herein by reference and made a part of this  Assignment and Assumption as if set forth herein in full.  For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the  Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,  subject to and in accordance with the Standard Terms and Conditions and the Repurchase  Agreement, as of the Effective Date inserted by the Agent as contemplated below, (i) all of the  Assignor’s rights and obligations in its capacity as a Buyer under the Repurchase Agreement and  any other documents or instruments delivered pursuant thereto to the extent related to the amount  and percentage interest identified below of all of such outstanding rights and obligations of the  Assignor under the respective facilities identified below (including any Swing Line Transactions  included in such facilities) and (ii) to the extent permitted to be assigned under applicable law,  all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Buyer)  against any Person, whether known or unknown, arising under or in connection with the  Repurchase Agreement, any other documents or instruments delivered pursuant thereto or the  Transactions governed thereby or in any way based on or related to any of the foregoing,  including Purchased Loans, contract claims, tort claims, malpractice claims, statutory claims and  all other claims at law or in equity related to the undivided ownership interest in Purchased  Loans and the other rights and obligations sold and assigned pursuant to clause (i) above (the  undivided ownership interest in Purchased Loans and all other rights and obligations sold and  assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the  “Assigned Interest”).  Such sale and assignment is without recourse to the Assignor and, except  as expressly provided in this Assignment and Assumption, without representation or warranty by  the Assignor.  1. Assignor:    2. Assignee:         [and is a Buyer Affiliate of [identify Buyer]]  3. Seller: ____________________  





 






  E-2  Bodman_17772003_9  4. Agent: Comerica Bank, as the agent and representative of the Buyers under  the Repurchase Agreement.  5. Repurchase Agreement:  The Third Amended and Restated Master Repurchase  Agreement dated as of July 29, 2021 among Pulte Mortgage LLC and its affiliates (collectively,  the “Seller”), Comerica Bank (“Comerica”), as a buyer and as agent for the other buyers party  thereto from time to time (the “Agent”) and such other buyers (collectively with Comerica, the  “Buyers”).  6. Assigned Interest:  Aggregate Amount of  Commitment/Transactions  for all Buyers  Amount of  Commitment/Transactions  Assigned  Percentage Assigned of  Commitment/Transactions  $ $ $    Effective Date:  _______________ ____, 202____ [TO BE INSERTED BY THE AGENT AND  WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE  REGISTER THEREFOR.]  The terms set forth in this Assignment and Assumption are hereby agreed to:  ASSIGNOR    [NAME OF ASSIGNOR]      By:  _____________________________  Title:  _____________________________    ASSIGNEE    [NAME OF ASSIGNEE]      By:  _____________________________  Title:  _____________________________  





 






  E-3  Bodman_17772003_9  [Consented to and] Accepted:    Comerica Bank, as Agent      By:     Title:     [Consented to:]    [NAME OF RELEVANT PARTY]      By:     Title:     





 






  Annex 1-1 to Ex E  Bodman_17772003_9  ANNEX 1    STANDARD TERMS AND CONDITIONS FOR  ASSIGNMENT AND ASSUMPTION  1. Representations and Warranties.  1.1 Assignor.  The Assignor (a) represents and warrants that (i) it is the legal  and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear  of any lien, encumbrance or other adverse claim other than Seller’s obligation to  repurchase the relevant Purchased Loans and (iii) it has full power and authority, and has  taken all action necessary, to execute and deliver this Assignment and Assumption and to  consummate the transactions contemplated hereby; and (b) assumes no responsibility  with respect to (i) any statements, warranties or representations made in or in connection  with the Repurchase Agreement or any other Repurchase Documents, (ii) the execution,  legality, validity, enforceability, genuineness, sufficiency or value of the Repurchase  Documents or any Transactions thereunder, (iii) the financial condition of the Seller, any  of its Subsidiaries or Affiliates or any other Person obligated in respect of any  Repurchase Documents or (iv) the performance or observance by the Seller, any of its  Subsidiaries or Affiliates or any other Person of any of their respective obligations under  any Repurchase Document.    1.2. Assignee.  The Assignee (a) represents and warrants that (i) it has full  power and authority, and has taken all action necessary, to execute and deliver this  Assignment and Assumption and to consummate the transactions contemplated hereby  and to become a Buyer under the Repurchase Agreement, (ii) it satisfies the  requirements, if any, specified in the Repurchase Agreement that are required to be  satisfied by it in order to acquire the Assigned Interest and become a Buyer, (iii) from  and after the Effective Date, it shall be bound by the provisions of the Repurchase  Agreement as a Buyer thereunder and, to the extent of the Assigned Interest, shall have  the obligations of a Buyer thereunder, (iv) it has received a copy of the Repurchase  Agreement, together with copies of the most recent financial statements referred to in  Section 15.2(f) thereof or delivered pursuant to Section 16.3 thereof, as applicable, and  such other documents and information as it has deemed appropriate to make its own  credit analysis and decision to enter into this Assignment and Assumption and to  purchase the Assigned Interest on the basis of which it has made such analysis and  decision independently and without reliance on the Agent, the assignor or any other  Buyer, and (v) if it is a Person that is organized under the Legal Requirements of any  jurisdiction other than the United States of America or any State thereof, attached to this  Assignment and Assumption is any documentation required to be delivered by it pursuant  to the terms of the Repurchase Agreement, duly completed and executed by the Assignee;  and (b) agrees that (i) it will, independently and without reliance on the Agent, the  Assignor or any other Buyer, and based on such documents and information as it shall  deem appropriate at the time, continue to make its own credit decisions in taking or not  taking action under the Repurchase Documents, and (ii) it will perform in accordance  





 






  Annex 1-2 to Ex E  Bodman_17772003_9  with their terms all of the obligations that by the terms of the Repurchase Documents are  required to be performed by it as a Buyer.    2. Payments.  From and after the Effective Date, the Agent shall make all payments  in respect of the Assigned Interest (including payments of Repurchase Price, Price Differential,  fees and other amounts) to the Assignor for amounts that have accrued to but excluding the  Effective Date and to the Assignee for amounts that have accrued from and after the Effective  Date.  3. General Provisions.  This Assignment and Assumption shall be binding upon, and  inure to the benefit of, the parties hereto and their respective successors and assigns.  This  Assignment and Assumption may be executed in any number of counterparts, which together  shall constitute one instrument.  Delivery of an executed counterpart of a signature page of this  Assignment and Assumption by telecopy shall be effective as delivery of a manually executed  counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be  governed by, and construed in accordance with, the law of the State of Michigan.    





 






  F-1  Bodman_17772003_9  EXHIBIT F        REPURCHASE / INDEMNIFICATION REPORT    COMPANY NAME: Pulte Mortgage LLC    DATE:  _______________________    I.  Repurchase / Indemnification Issues Exposure with All Investors:    Repurchases UPB # of Loans Actual or Estimated  Losses  Open repurchase requests as of  now      Open repurchases that are being  contested      Repurchases settled in 202___        Repurchases settled YTD in  202___          Loan Loss Reserve balance as of period PRIOR to date of  Financial Statements    Provision (from P & L) for loan losses for period of  Financial Statements    Loan Loss Reserve settlements and transfers for the period of  Financial Statements    Loan Loss Reserve balance as of period of Financial  Statements      II.  Loans Held for Investment Portfolio Detail as of:  _________________    LHFI Unpaid Principal  Balance  Allowances for Loan  Losses  Net Book Value  1st Lien Performing     2nd Lien Performing     1st Lien Delinquent     2nd Lien Delinquent     Total Portfolio       III.  REO Portfolio as of:   _________________    # of Properties Cost Basis Reserves / Write Downs Net Book Value         





 






  F-2  Bodman_17772003_9      IN WITNESS WHEREOF, the undersigned has hereunto signed his/her name on  _____________________, 202___.    PULTE MORTGAGE LLC  By:   Its:   





 






  G-1  Bodman_17772003_9  EXHIBIT G  To Master Repurchase Agreement    FORM OF REPURCHASE SETTLEMENT ACCOUNT DISBURSEMENT REQUEST    To: From:  Comerica Bank, Agent Pulte Mortgage LLC   Comerica Bank Tower    1717 Main Street   4th Floor   Dallas, Texas 75201   Attention: Trey Worley Attention:     Phone: (214) 462-4279 Phone:     Fax:  (214) 462-4280 Fax:     Email:  tworley@comerica.com  Email:       And     Comerica Bank, Agent  411 W. Lafayette  Detroit, MI 48226   Attention: Sandy Fields   Telephone: (313) 222-5265   Fax: (313) 222-5272   Email: corpfinadmin@comerica.com    Please refer to the Third Amended and Restated Master Repurchase Agreement dated as  of July 29, 2021 among Pulte Mortgage LLC (the “Seller”), the buyers from time to time party  thereto (the “Buyers”) and Comerica Bank, as agent to the Buyers (in such capacity, the “Agent”)  (as it may have been or may hereafter be supplemented, amended, restated or otherwise modified  from time to time, the “Current Repurchase Agreement”).  Any term defined in the Current  Repurchase Agreement and used in this request shall have the meaning given to it in the Current  Repurchase Agreement.  Seller hereby represents and warrants to Agent that the amounts and sources of the funds  currently in the Repurchase Settlement Account are set forth on the spreadsheet attached as  Annex 1 hereto.   Pursuant to Section 3.7 of the Current Repurchase Agreement, Seller hereby requests that  Agent disburse the funds in the Repurchase Settlement Account in accordance with the  instructions attached as Annex 2 hereto.  





 






  G-2  Bodman_17772003_9  Seller represents and warrants to Agent that all of the conditions to disbursement set forth  in Section 3.7 of the Current Repurchase Agreement have been satisfied for this Repurchase  Settlement Account Disbursement Request.   Without limiting the foregoing, (i) no Default has occurred unless it has been either cured  by the Seller or waived in writing by the Agent (acting with the requisite consent of the Buyers  as provided in this Agreement), (ii) no Event of Default has occurred unless it has been either  cured by the Seller or waived in writing by the Agent (acting with the requisite consent of the  Buyers as provided in this Agreement), (iii) no Margin Deficit exists that would not be  eliminated by disbursements in accordance with such Repurchase Settlement Account  Disbursement Request, and (iv) no Default or Event of Default or Margin Deficit will result from  the making of the disbursements requested in such Repurchase Settlement Account  Disbursement Request. There has been no material adverse change in any of the Central  Elements in respect of the Seller since the date of the Seller’s most recent annual audited  Financial Statements that have been delivered to the Agent and the Buyers.  The undersigned Seller Representative hereby certifies that all of the Seller’s  representations and warranties (a) in the Current Repurchase Agreement and all of the other  Repurchase Documents (except only to the extent that (i) such a representation or warranty  speaks to a specific date or (ii) the facts on which a representation or warranty is based have been  changed by transactions or conditions contemplated or expressly permitted by the Repurchase  Documents) and (b) in this request, are true and correct in all material respects on the date of this  request.    PULTE MORTGAGE LLC  By:  ________________________  Name:  ______________________  Title:  _______________________    





 






  Annex 1-1 to Exhibit G  Bodman_17772003_9  ANNEX 1  AMOUNTS AND SOURCES OF FUNDS    





 






  Annex 2-1 to Exhibit G  Bodman_17772003_9  ANNEX 2  DISBURSEMENT INSTRUCTIONS  





 






  AI-1  Bodman_17772003_9  SCHEDULE AI  APPROVED INVESTORS LIST    FHLMC – Federal Home Loan Mortgage Corporation (Freddie Mac)   FNMA – Federal National Mortgage Association (Fannie Mae)   GNMA – Government National Mortgage Association (Ginnie Mae)  – Current Investor   GNMA – Government National Mortgage Association (Ginnie Mae)  – Old Citicorp Pools    Parent  AIG (formerly Connective) American International Group, Inc.  Alliant Credit Union   Ally Bank Ally Financial Inc.  Bank of America Correspondent Lending Division Bank of America Corporation  Bank of America Mortgage  Bank of America Corporation  Bank of New York Mellon Bank of New York Mellon Corp.  Branch Banking & Trust (BB&T)  Truist Bank Truist Financial Corporation  Chase Financial Corporation JPMorgan Chase & Co.  Chase Manhattan Mortgage Corporation JPMorgan Chase & Co.  Citicorp Mortgage, Inc. Citigroup Inc.  Fidelity Bankshares, Inc. PNC Financial Services Group, Inc.  Fifth Third Bank   GMAC Mortgage LLC Ally Financial Inc.  Lakeview Loan Servicing LLC   Morgan Stanley (Dealer)   Mr. Cooper Mr. Cooper Group, Inc.  NASA Federal Credit Union   Northpointe Bank Northpointe Bancshares, Inc.  Pentagon Federal Credit Union (PenFed)   PennyMac Mortgage Investment Trust PennyMac Financial Services, Inc.  Pulte Corporation   Redwood Trust Redwood Trust, Inc.  SunTrust  Truist Bank Truist Financial Corporation  TIAA Bank (formerly EverBank) TIAA  US Bank U.S. Bancorp  Wells Fargo Home Mortgage, Inc.  Wells Fargo & Company       Housing Bond Programs   Colorado Housing Finance Authority   Sold servicing released to Inter Mountain Mortgage      Illinois Housing Development Authority   Sold servicing released to Dovenmuehle Mortgage, Inc.      Minnesota Housing Finance Authority   Sold servicing released to FBS Mortgage Corporation    





 






  AI-2  Bodman_17772003_9    Nevada Housing Division (NHD)   Servicing released to US Bank      Nevada Rural Housing Authority   Servicing released to US Bank      North Carolina Housing Finance Agency   Sold servicing released to Servi Solutions (Alabama Housing)      Texas Department of Housing and Community affairs (TDHCA)   Sold servicing released to Idaho Housing      Washington State Housing Finance (WSHFC)   Sold servicing released to Bank of America      Illinois Housing Development Authority IHDA   Sold servicing released to U.S. Bank       South Carolina Development Authority SCSHFDA   Sold servicing released to US Bank      Missouri Housing Development Commission MHDC   Sold servicing released to ServiSolutions      Indiana Housing & Community Development Authority IHCDA   Sold servicing released to US Bank      Georgia Housing and Finance Authority GHFA   Sold directly to GHFA      Texas State Affordable Housing Corporation TSAHC   Sold servicing released to Lakeview      Tennessee Housing Development Authority THDA   Loan sold to THDA.  Servicing sold to US Bank.      California State Teacher's Retirement System CALSTRS      Michigan State Housing Development Authority MI-MSHDA      New Jersey Housing and Mortgage Finance Agency NJHMFA   Sold directly to NJ Housing      CRHMFA Home Buyers Fund      Orange County Housing Finance Authority (Florida)   Sold servicing released to US Bank      Arizona Housing Finance Authority (AZHFA)    





 






  AI-3  Bodman_17772003_9  Sold servicing released to US Bank      Industrial Development Authority County of Maricopa (IDACM)   Sold servicing released to US Bank      Kentucky Housing Corporation (KHC)   Sold directly to KY Housing      Maryland Department of Housing and Community Development      OHFA  -  Ohio Housing Finance Agency   Sold servicing released to US Bank      CalHFA  -  California Housing Finance Agency   Sold servicing released to Lakeview      Golden State Finance Authority (California)   Servicing released to US Bank      MassHousing - Massachusetts Housing Finance Authority   Sold directly to MA Housing      Florida Housing Finance Corporation   Servicing released to US Bank      Lee County (Florida)   Servicing released to US Bank      Maricopa Phoenix (AZMP)   Servicing released to US Bank      New Jersey Housing and Finance Authority   Servicing released to Cenlar      Southeast Texas Housing Finance Corporation 5 Star (SETH)   Servicing released to US Bank      Southeast Texas Housing Finance Corporation Gold Star (SETH)   Servicing released to Gateway      Virginia Housing and Development Authority VHDA      New Mexico Mortgage Finance Authority    Sold servicing released to Idaho Housing      CAHFA - Capital Area Housing Finance Corp.      TCHFC - Travis County Housing Finance Corp.   Servicing released to US Bank       





 






  AI-4  Bodman_17772003_9  TVLB - Texas Veterans Land Board   Servicing released to Gateway              





 






  AR-1  Bodman_17772003_9    SCHEDULE AR    AUTHORIZED SELLER REPRESENTATIVES  LIST EFFECTIVE AS OF July 29, 2021  John D'Agostino  Ricky Weigand  Mark Hultgren  Jeff Kremer  Irina Shokhrin  Ralph Nowicki 





 






  BC-1  Bodman_17772003_9  SCHEDULE BC  TO Master Repurchase Agreement    The Buyers’ Committed Sums  (in dollars)  From July 29, 2021 through and including December 26, 2021  Buyer Committed Sum  Comerica Bank $193,372,000  BMO Harris Bank N.A. $193,314,000  Truist Bank $193,314,000  Maximum Aggregate Commitment $580,000,000    From December 27, 2021 through and including January 13, 2022  Buyer Committed Sum  Comerica Bank $216,710,000  BMO Harris Bank N.A. $216,645,000  Truist Bank $216,645,000  Maximum Aggregate Commitment $650,000,000    From January 14, 2022 through and including June 26, 2022  Buyer Committed Sum  Comerica Bank $153,364,000  BMO Harris Bank N.A. $153,318,000  Truist Bank $153,318,000  Maximum Aggregate Commitment $460,000,000    From June 27, 2022 until the Termination Date  Buyer Committed Sum  Comerica Bank $183,370,000  BMO Harris Bank N.A. $183,315,000  Truist Bank $183,315,000  Maximum Aggregate Commitment $550,000,000    





 






  BP-1  Bodman_17772003_9  SCHEDULE BP  To Master Repurchase Agreement    LIST OF BASIC PAPERS  The following are the Basic Papers for Purchased Loans:  (a) (i) if the applicable Mortgage Loan is a Wet-Ink Mortgage Loan, the original  Mortgage Note, bearing all intervening endorsements to negotiate it from the original payee  named therein to the Seller and endorsed by the Seller as follows:  Pay To The Order Of  Without Recourse    ____________________        ________________________  [signature]  [name, title]    (ii) If the applicable Mortgage Loan is an eMortgage Loan, the eNote evidencing  such eMortgage Loan, which eNote shall satisfy all requirements of paragraphs (16) and (24) of  the definition of Eligible Loan.  (b) the recorded original or a Certified Copy of the power of attorney for each maker  of the Mortgage Note who (if any) did not personally execute the Mortgage Note and for whom  the Mortgage Note was executed by an attorney-in-fact;  (c) the recorded original or a Certified Copy of the Mortgage securing such Mortgage  Note;  (d) originals or Certified Copies of all intervening assignments (if any) reflecting a  complete chain of assignment of such Mortgage from the original mortgagee to the Seller;  provided that intervening assignments are not required for any Mortgage that has been originated  in the name of MERS and registered under the MERS® System; and  (e) the signed original of a Mortgage Assignment assigning the Mortgage in blank in  a form that is complete so as to be recordable in the jurisdiction where the Mortgaged Premises  are located without the need for completion of any blanks or supplying of any other information;  provided that no Mortgage Assignment is required for any Mortgage that has been originated in  the name of MERS and registered under the MERS® System with Comerica as “Gestation- Warehouse Lender”.  





 






  DQ-1  Bodman_17772003_9  SCHEDULE DQ  To Master Repurchase Agreement    DISQUALIFIERS  “Disqualifier” means any of the following events; after the occurrence of any  Disqualifier, unless it shall have been waived or cured in writing in accordance with the terms of  the Agreement, the Market Value of the affected Purchased Loan shall be deemed to be zero, and  the Agent shall be deemed to have marked such Purchased Loan to market:  1. Any event occurs, or is discovered to have occurred, after which the affected  Purchased Loan fails to satisfy any element of the definition of “Eligible Loan”.  2. In respect of any Purchased Loan, for any reason whatsoever any of the Seller’s  special representations concerning Purchased Loans set forth in Section 15.3 applicable to that  type of Purchased Loan shall become untrue, or shall be discovered to be untrue, in any respect.  3. Any Purchased Loan shall become In Default.  4. The Wet Loan Period for such Purchased Loan shall have elapsed after the  Purchase Date upon which a Wet Loan has been sold to the Buyers without all of the Wet Loan’s  Basic Papers having been received by the Custodian.  5. For any Purchased Loan, any Basic Paper shall have been sent to the Seller or its  designee for correction, collection or other action and shall not have been returned to the  Custodian on or before twenty-one (21) days after it was so sent to the Seller.  6. Any Purchased Loan shall be assumed by (or otherwise become the liability of),  or the real property securing it shall become owned by, any corporation, partnership or any other  entity that is not a natural person or a trust for natural persons unless payment in full of such  Purchased Loan is guaranteed by a natural person.  The Agent, the Buyers and the Custodian  may rely on the Seller’s representation and warranty that no Purchased Loans have been so  assumed by (or otherwise become the liability of) such a Person except as otherwise specified by  written notice(s) to the Custodian.  7. Any Purchased Loan shall be assumed by (or otherwise become the liability of),  or the real property securing it shall become owned by, an Affiliate of the Seller or any of the  Seller’s or its Affiliates’ directors, members or appointed officers, provided, however, nothing  herein shall be deemed to disqualify any Purchased Loans made to an employee or officer of  Seller in the ordinary course of Seller’s business.  The Agent, the Buyers and the Custodian may  rely on the Seller’s representation and warranty that no Purchased Loans have been so assumed  by (or otherwise become the liability of) such a Person except as otherwise specified by written  notice(s) to the Custodian.  8. Any Purchased Loan shipped to an Approved Investor shall not be paid for or  returned to the Custodian or the Agent (whichever shipped it) on or before forty-five (45) days  after it is shipped.  





 






  DQ-2  Bodman_17772003_9  9. More than sixty (60) days shall have elapsed since the Purchase Date of any  Conforming Mortgage Loan (other than any Aged Mortgage Loan), more than sixty (60) days  shall have elapsed since the Purchase Date of any FHA Low FICO Score Mortgage Loan (other  than any Aged Mortgage Loan), more than sixty (60) days shall have elapsed since the Purchase  Date of any Jumbo Mortgage Loan or Super Jumbo Mortgage Loan, more than forty five (45)  days shall have elapsed since the Purchase Date of any Second Mortgage Loan or Non-QM  Mortgage Loan, or more than ninety (90) days, but not less than sixty one (61) days, shall have  elapsed since the Purchase Date of any Aged Mortgage Loan.  10. Any Purchased Loan that is shipped to the Seller for correction of one or more  Basic Documents when the Market Value of all Purchased Loans so shipped to the Seller  exceeds five (5%) of the Maximum Aggregate Commitment (or such greater amount as approved  by the Agent in its sole discretion).   11. Any Purchased Loan is listed on an Exception Report and the Agent has not  exercised its discretion to exclude such Purchased Loan from the list of Disqualifiers under  Section 22.8(a) (for the avoidance of doubt, this means a Purchased Loan is subject to  discrepancies, inconsistencies or has documents that are incomplete).   12. The terms and conditions of any Purchased Loan has been amended, modified or  waived (except to correct errors or omissions in Loan Papers), or any claim in respect of any  Purchased Loan has been settled or compromised, or Seller has accepted other than cash or the  exchange of comparable Purchased Loans (which is concurrently sold by the Seller to the  Buyers) in liquidation of any Purchased Loan, in each case without the written consent of the  Agent given on a case-by-case basis.  13. Agent has notified Seller that such Purchased Loan is, for any other reason in  Agent’s good faith, reasonable (from the perspective of a residential mortgage loan warehouse  facility provider) business judgment, ineligible.  





 






  EL-1  Bodman_17772003_9  SCHEDULE EL   To Master Repurchase Agreement    ELIGIBLE LOANS  “Eligible Loans” means Single-family Loans that are amortizing Conforming  Mortgage Loans, FHA Low FICO Score Mortgage Loans, Jumbo Mortgage Loans, Aged  Mortgage Loans, Non-QM Mortgage Loans, Second Mortgage Loans and Wet Loans that  satisfy all criteria for Eligible Loans set forth on this Schedule EL and are not subject to a  Disqualifier. Each Mortgage Loan must be secured by a first priority Lien on its related  Mortgaged Premises (or, with respect to any Second Mortgage Loans, by a second  priority Lien on its related Mortgaged Premises). It may bear interest at a fixed interest  rate, at a fluctuating interest rate or at a fixed or fluctuating interest rate for part of its  term followed, respectively, by a fluctuating or fixed interest rate for the remainder of its  term.  No Mortgage Loan shall be an Eligible Loan at any time:    (1) If the Mortgaged Premises securing it is a mobile home, manufactured  housing, or cooperative housing unit.  (2) That contains or is otherwise subject to any contractual restriction or  prohibition on the free transferability of such Mortgage Loan, all Liens securing it and all  related rights (other than Legal Requirements requiring notification to its obligor(s) of  any transfer of it or of its servicing or administration), either absolutely or as security.  (3) If any of its owners-mortgagors is a corporation, partnership or any other  entity that is not a natural person or a trust for natural persons unless its full payment  when due is guaranteed by a natural person.  (4) If any of its owner-mortgagors is an Affiliate of the Seller or any of the  Seller’s or any such Affiliate’s directors, members or appointed officers, provided,  however, nothing herein shall be deemed to disqualify any Purchased Loans made to an  employee or officer of Seller in the ordinary course of Seller’s business.  (5) Whose related Mortgaged Premises are not covered by a Hazard Insurance  Policy.  (6) That is a construction, rehabilitation or commercial loan.  The Agent, the  Buyers and the Custodian may rely on the Seller’s representation and warranty that no  Purchased Loan is such a loan.  (7) Where the Mortgage Note evidencing such Mortgage Loan (i) was not  executed by a bona fide third person who had capacity to contract, or (ii) matures more  than 30 years from the date thereof.  (8) That was originated more than forty-five (45) days before its Purchase  Date.  





 






  EL-2  Bodman_17772003_9  (9) That is In Default or ever was In Default.  (10) That contains any term or condition such that the repayment schedule  results in the outstanding principal balance increasing over time, rather than amortizing,  whether or not such Mortgage Loan is deemed to be an “option ARM”, “negative  amortization” or “graduated payment” loan.  The Agent, the Buyers and the Custodian  may rely on the Seller’s representation and warranty that any Mortgage Loan duly sold to  the Buyers amortizes over time.  (11) In connection with the origination of which a policy of single-premium  life insurance on the life of a mortgagor, borrower or guarantor was purchased.  (12) That (i) is subject to the special Truth-in-Lending disclosure requirements  imposed by Section 32 of Regulation Z of the Federal Reserve Board (12 C.F.R. §  226.32) or any similar state or local Legal Requirement relating to high interest rate  credit or lending transactions or (ii) contains any term or condition, or involves any loan  origination practice, that (a) has been defined as “high cost”, “high risk”, “predatory”,  “covered”, “threshold” or a similar term under any such applicable federal, state or local  law, (b) has been expressly categorized as an “unfair” or “deceptive” term, condition or  practice in any such applicable federal, state or local law (or the regulations promulgated  thereunder) or (c) by the terms of such Legal Requirement exposes assignees of  Mortgage Loans to possible civil or criminal liability or damages or exposes any Buyer or  the Agent to regulatory action or enforcement proceedings, penalties or other sanctions.   The Agent, the Buyers and the Custodian may rely on the Seller’s representation and  warranty that no Purchased Loan is such a loan.  (13) That the Seller or any Affiliate has previously warehoused with any other  Person, whether under a lending arrangement or an arrangement involving a sale in  contemplation of a subsequent further sale to (or securitization by) a secondary mortgage  market purchaser, whether with or without the Seller’s having any conditional repurchase  or other recourse obligation, and that was rejected or became ineligible or disqualified to  be lent against or purchased and held by such other Person, except for Purchased Loans  previously sold to the Parent under the Parent Repurchase Agreement, provided that the  Parent Custodian has released all Liens and other right, title and interest in and to said  Purchased Loans in connection with such repurchase.  The Agent, the Buyers and the  Custodian may rely on the Seller’s representation and warranty that no Purchased Loan is  such a loan.  (14) That the Seller or any Affiliate sold and transferred, or attempted to sell  and transfer, to any other Person.  (15) That has a loan to value ratio greater than (x) ninety five percent (95%)  with respect to Non-QM Mortgage Loans and (y) eighty percent (80%) with respect to  other Mortgage Loans unless such Mortgage Loan is guaranteed by VA or is insured by  FHA or private mortgage insurance provided by a provider acceptable to the Agent  provided, however, that a Conforming Mortgage Loan or Jumbo Mortgage Loan may  have a loan-to-value ratio greater than 80% (but not more than 100%), so long as the  





 






  EL-3  Bodman_17772003_9  portion of such Conforming Mortgage Loan or Jumbo Mortgage Loan in excess of 80%  of the value of the related Mortgaged Premises is covered by mortgage insurance  acceptable to Agent.  (16) In the case of an eMortgage Loan, unless Seller shall have caused (i) the  Authoritative Copy of the related eNote to be delivered to the eVault via a secure  electronic file, (ii) the Controller status of the related eNote to be transferred to  Custodian, (iii) the Location status of the related eNote to be transferred to Custodian,  (iv) the Delegatee status of the related eNote to remain blank, in each case using MERS  eDelivery and the MERS eRegistry, (v) the Master Servicer Field of the related eNote to  remain blank until being changed to Seller or other servicer approved by Agent in  connection with a Transfer of Control of the eNote to an Approved Investor, and (vi) the  Subservicer Field of the related eNote to remain blank.    (17) Unless all of the Seller’s right, title and interest in and to the Purchased  Loan is subject to a first priority perfected security interest in favor of the Agent for the  benefit of the Buyers subject to no other liens, security interests, charges or  encumbrances other than the Seller’s right to repurchase the Purchased Loan hereunder.  (18) Unless all the representations and warranties set forth in this Agreement,  including, without limitation, Section 15.3 and Schedule 15.4, are true and correct with  respect to such Purchased Loan at all times on and after the related Purchase Date.  (19) That is not covered by an Investor Commitment or Hedge Agreement.  (20) That has an original term to stated maturity of more than thirty (30) years.  (21) As to which any Disqualifier exists.  (22) That was previously a Purchased Loan (except as a Wet Loan).  (23) In the case of a Second Mortgage Loan, (i) the face amount of such  Mortgage Loan exceeds One Hundred Thousand Dollars ($100,000), (ii) such Mortgage  Loan has a Combined Loan to Value at origination of greater than ninety percent (90%),  or (iii) the obligor of such Mortgage Loan shall have a FICO Score of less than 720.  (24) In the case of an eMortgage Loan, unless (i) the related eNote contains the  Agency-Required eNote Legend; (ii) the eNote bears a digital or electronic signature; (iii)  the Hash Value of the eNote indicated in the MERS eRegistry matches the Hash Value of  the eNote as reflected in the eVault; (iv) there is a single Authoritative Copy of the eNote  and such single Authoritative Copy is held in the eVault; (v) the Location status of the  eNote on the MERS eRegistry reflects the MERS Org ID of Custodian; (vi) the  Controller status of the eNote on the MERS eRegistry reflects the MERS Org ID of  Custodian; (vii) the Secured Party status of the eNote on the MERS eRegistry reflects the  MERS Org ID of Custodian or is blank and the Secured Party Delegatee status of the  eNote on the MERS eRegistry is blank; (viii) the Delegatee status of the eNote on the  MERS eRegistry is blank; (ix) the Master Servicer Field of the related eNote on the  MERS eRegistry is blank until being changed to Seller or other servicer approved by  





 






  EL-4  Bodman_17772003_9  Agent in connection with a Transfer of Control of the eNote to an Approved Investor, and  the Subservicer Field of the related eNote is blank; (x) no Control Failure has occurred or  exists with respect to such eNote; (xi) the eNote is a valid and enforceable Transferable  Record; (xii) Custodian has Control of the eNote evidencing such eMortgage Loan, and  there is no defect with respect to the eNote that would result in Custodian having less  than full rights, benefits and defenses of Control of the eNote; (xiii) the single  Authoritative Copy of the eNote is maintained electronically and has not been papered- out, nor is there another paper representation of such eNote; and (xiv) Custodian shall  have entered into an Approved Investor Agreement with the Approved Investor that will  purchase such eNote, and such Approved Investor Agreement shall be in full force and  effect.    





 






  Sch 1.2-1  Bodman_17772003_9  SCHEDULE 1.2    DEPOSIT ACCOUNTS  Funding Account 1852538576  Operating Account 1852503992  Repurchase Settlement Account 1852538634  Escrow Account 1852538618  Income Account 1852538402    





 






  15.2(f)-1  Bodman_17772003_9  SCHEDULE 15.2(f)    MATERIAL ADVERSE CHANGES AND CONTINGENT LIABILITIES  None.   





 






  15.2(g)-1  Bodman_17772003_9  SCHEDULE 15.2(g)  LITIGATION  None. 





 






  15.2(n)-1  Bodman_17772003_9  SCHEDULE 15.2(n)    EXISTING LIENS    None.   





 






  15.2(s)-1  Bodman_17772003_9  SCHEDULE 15.2(s)    COMPLIANCE INFORMATION      Correct Legal Name      Address    Type of  Organization    Jurisdiction  of  Organization    Tax identification  number and other  identification  numbers        Pulte Mortgage LLC 7390 South Iola  Englewood, CO 80112  Limited  Liability  Company  Delaware 42-1554181  PCIC Corporation 7390 South Iola  Englewood, CO 80112  Corporation Michigan 38-3351966    





 






  Sch 15.3 - 1  Bodman_17772003_9  SCHEDULE 15.3  TO MASTER REPURCHASE AGREEMENT    SPECIAL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO EACH  PURCHASED LOAN  As of the related Purchase Date, for each Purchased Loan the Seller makes the following  representations and warranties:  (a) The information with respect to each Purchased Loan set forth in the  related Mortgage Loan Transmission File is true and correct as of the date specified in all  material respects.  (b) The Seller is the sole legal and equitable owner of such Purchased Loan  (except in the case of MERS Designated Loans, as to which MERS, as nominee for the  Seller and its successors and assigns, is the record owner), such Purchased Loan is a first  priority Lien or, in the case of a Second Mortgage Loan, a second priority Lien, free and  clear of all Liens other than Permitted Encumbrances, and Seller has full right to sell such  Purchased Loan to the Buyers.  (c) All Purchased Loans, including Wet Loans, have been duly authorized and  validly created.  (d) Each of the Purchased Loans sold to the Buyers by the Seller complies  with all of the requirements of this Agreement and the Custody Agreement and is genuine  and what it purports to be (or in the case of an eNote, the copy of the related eNote  transmitted to the eVault is the single Authoritative Copy thereof).  (e) All information concerning each item or grouping of Purchased Loans  listed in any Loan Schedule or in a Mortgage Loan Transmission File sent to the Agent or  the Custodian was, is and/or shall be (as applicable) true and complete in all material  respects as of the date of such Loan Schedule or Mortgage Loan Transmission File.  (f) The Seller has complied and will continue to comply in all material  respects with all Legal Requirements relating to each Purchased Loan.  (g) (i) In the case of a Wet-Ink Mortgage Loan, each Mortgage Note and  Mortgage related to a Purchased Loan, including Wet Loans, has been duly (x) endorsed  or assigned to the Seller, unless originated by Seller, and (y) endorsed or assigned by the  Seller in blank (assignment of the Mortgage in blank is not required when MERS is  designated in the Mortgage as the original mortgagee or the nominee of the original  mortgagee, its successors and assigns) and delivered (or in the case of Wet Loans are in  the process of being delivered) to the Custodian; and (ii) In the case of an eMortgage  Loan, Control of the original executed eNote has been delivered to Custodian and all  other requirements of paragraphs (16) and (24) of the definition of Eligible Loan for such  an eMortgage Loan to be and remain an Eligible Loan have been satisfied.  





 






  Sch 15.3 - 2  Bodman_17772003_9  (h) All Basic Papers for each Purchased Loan (except Wet Loans) will be  transmitted to the Custodian with the Mortgage Loan Transmission File with which it is  submitted for purchase.  (i) Each assignment to the Agent of the Lien securing any Purchased Loan  will be in proper and sufficient form for recording in the appropriate government office in  the U.S. jurisdiction where the related Mortgaged Premises are located (no such  assignment is required for any Mortgage that has been originated in the name of MERS  and registered under the MERS® System).  (j) The Seller has and will continue to have the requisite limited liability  company, power and authority to sell the Purchased Loans to the Buyers, and the  Purchased Loans sold and to be sold to the Buyers by the Seller under this Agreement or  pursuant to it may be further sold, resold, assigned and reassigned to any Person or  Persons without any requirement for the further consent of the Seller or the consent of  any other party to any of the Loan Papers or obligated in respect of the Purchased Loans.  (k) Each Purchased Loan is secured by a Lien having the priority represented  by the Seller to the Agent or the Custodian, subject only to the Permitted Encumbrances,  until that Purchased Loan shall have been repurchased by the Seller.  (l) Each Purchased Loan is covered by an ALTA mortgage title insurance  policy or such other form of title insurance as is acceptable to Fannie Mae or Freddie  Mac, issued by and constituting the valid and binding obligation of a title insurer that is  generally acceptable to prudent mortgage lenders who regularly originate or purchase  Mortgage Loans comparable to the Purchased Loans that are for sale to prudent investors  in the secondary market in which investors invest in Mortgage Loans such as the  Purchased Loan insuring the Seller, its successors and assigns, as to the first priority of  the Lien of the Mortgage on the related Mortgaged Premises, in an amount equal to the  original principal amount of such Purchased Loan.  The Seller is the named insured of  such mortgage title insurance policy as a first lien mortgage holder (or, in the case of a  Second Mortgage Loan, the Seller is the named insured as the second lien mortgage  holder along with the first lien mortgage loan holder), the assignment to the Agent of the  Seller’s interest in such policy does not require the consent of or notice to the insurer (or  such consent has been obtained or notice given), and such policy is and will be in full  force and effect and inure to the benefit of the Agent as and when such Purchased Loan is  sold to the Buyers.  No claims have been made under such policy and no prior holder of  the Purchased Loan, including the Seller, has done, by act or omission, anything that  would impair the coverage of such policy.  (m) The improvements on the Mortgaged Premises consist of a completed  single family residence, and the Mortgaged Premises securing each Purchased Loan are  capable of being lawfully occupied under applicable Legal Requirements, all inspections,  licenses and certificates required to be made or issued with respect to all occupied  portions of such Mortgaged Premises and, with respect to the use and occupancy of the  same, including certificates of occupancy and fire underwriting certificates, have been  made or obtained from the appropriate Governmental Authority.  





 






  Sch 15.3 - 3  Bodman_17772003_9  (n) The Seller has no knowledge of any circumstances or conditions with  respect to the Mortgage, the Mortgaged Premises or the Customer in respect of any  Purchased Loan (other than the Customer’s credit standing) that can reasonably be  expected to cause private institutional investors that regularly invest in Mortgage Loans  similar to such Purchased Loan to regard such Purchased Loan as an unacceptable  investment or adversely affect the value or marketability of such Purchased Loan to other  similar institutional investors.  (o) Each Purchased Loan’s Mortgage contains an enforceable provision for  acceleration of the maturity of the unpaid principal balance thereof in the event that the  Mortgaged Premises are sold or transferred without the prior written consent of the  holder thereof.  (p) No Purchased Loan is a graduated payment Mortgage Loan or has a  shared appreciation or other contingent interest feature.  (q) All interest rate adjustments, if any, in respect of each Purchased Loan  have been made in compliance with applicable Legal Requirement and the terms of the  related Mortgage Note, and any interest required to be paid pursuant to applicable Legal  Requirement has been properly paid and credited.  (r) No Customer in respect of any Purchased Loan has notified the Seller, and  the Seller has no knowledge, of any relief requested by or allowed to such Customer  under the Servicemembers’ Civil Relief Act of 2003.  (s) The Seller used no selection procedures that identified the Eligible Loans  relating to a Transaction as being less desirable or valuable than other comparable assets  in the Seller’s portfolio on the related Purchase Date, and no Purchased Loan was  selected for inclusion in a Transaction on any basis that was intended to have a material  adverse effect on the Buyers or the Agent.  (t) No Purchased Loan is subject to a bankruptcy plan.  (u) Each Purchased Loan is a “qualified mortgage” within the meaning of  §860G(a)(3) of the Internal Revenue Code.  (v) All Purchased Loans and all related papers included in the Purchased  Loans:  1  were originated by the Seller, a duly licensed mortgage  lender in the ordinary course of its business;  2  have been made in compliance with all applicable  requirements of the Real Estate Settlement Procedures Act, the Equal Credit  Opportunity Act, the federal Truth-In-Lending Act, the Fair Credit Billing Act,  the Fair Credit Reporting Act, related statutes and regulations and all applicable  Legal Requirements under usury, truth-in-lending, equal credit opportunity and all  





 






  Sch 15.3 - 4  Bodman_17772003_9  other Legal Requirements, and the continued compliance of the Purchased Loans  is not affected by their sale to the Buyers;  3  are the legal, valid and binding obligations of the respective  Customers who entered into them and are and will continue to be valid and  enforceable in accordance with their terms, without any claim, right of rescission,  counterclaim, defense or offset, including any claim or defense of usury, except as  such enforceability may be limited by bankruptcy and other laws affecting the  rights of creditors generally and by principles of equity, excepting rights that, by  applicable law, cannot be waived, and neither the operation of any of their  respective contract terms nor the exercise of any right thereunder will render any  of them partly or wholly unenforceable or subject to any such claim, right of  rescission, counterclaim, defense or offset, and no such claim, right of rescission,  counterclaim, defense or setoff has been asserted;  4  have not been modified or amended and none of their  requirements has been waived, except as expressly and completely reflected in the  applicable Loan Papers furnished to the Custodian;  5  have fair market values equal to or greater than the  Purchase Price respectively attributed or allocated to them under this Agreement  on the Purchase Date;  6  comply and will continue to comply with the terms of this  Agreement and the Custody Agreement;  7  were not originated in, and are not subject to the laws of,  any jurisdiction whose laws (i) make unlawful their sale to the Buyers pursuant to  this Agreement, or (ii) render the Purchased Loans unenforceable;  8  are in full force and effect and have not been satisfied or  subordinated in whole or in part or rescinded, and the residential real property  securing each Purchased Loan has not been partially or completely released from  the Lien of such Purchased Loan;  9  evidence and are each secured by a valid first Lien in favor  of the Seller on real property securing the amount owed by the Customer(s) under  the related Mortgage, subject only to Permitted Encumbrances or, with respect to  any Second Mortgage Loan, subject only to Permitted Encumbrances and a first  priority Mortgage on its related Mortgaged Premises;  10  are each executed in full accordance with all requirements  of the applicable Legal Requirements of the jurisdiction in which the related  Mortgaged Premises are located, with the Mortgage for each being (i) duly  acknowledged and sealed by such official and in such manner and form as to be  both recordable and effective under such Legal Requirements to give such  constructive notice to all Persons as shall be necessary to establish and continue  the Lien of such Mortgage with the priority that the Seller represents it has to the  





 






  Sch 15.3 - 5  Bodman_17772003_9  Agent and (ii) so recorded (or in the process of being recorded), and with the  Mortgage Note, Mortgage and all related papers executed with the genuine  original signature(s) of the Customer(s) obligated on such Purchased Loan, and all  parties to each such Purchased Loan had full legal capacity to execute it;  11  are secured by real property improved by a one-, two-,  three- or four-family residence;  12  are the subject of a Current Appraisal or a Current Broker’s  Price Opinion of which the Seller has possession and will make available to the  Custodian on request, and the Seller has in its possession and will make available  to the Custodian on request evidence of the Mortgaged Premises’ value and how  it was determined;  13  are not subject to the Home Ownership and Equity  Protection Act of 1994;  (w) As to each Purchased Loan and its Loan Papers:  1 the Loan Papers contain customary and enforceable provisions so  as to render the rights and remedies of their holder adequate for the realization  against the Purchased Loan of the benefits of the security intended to be provided  by it;  2 there is only one original executed Mortgage Note, and, except in  the case of Wet Loans, (i) in the case of a Wet-Ink Mortgage Loan, that original  has been delivered to Custodian, and (ii) in the case of an eMortgage Loan,  Control of the original executed eNote has been delivered to Custodian and all  other requirements of paragraphs (16) and (24) of the definition of Eligible Loan  for such an eMortgage Loan to be and remain an Eligible Loan have been  satisfied;  3 none of its makers or mortgagors is an Affiliate of the Seller or any  of its or its Subsidiaries’ directors, members or appointed officers; and  4 they do not contain any term or condition such that the repayment  schedule results in the outstanding principal balance increasing over time, rather  than amortizing, whether or not such Purchased Loan is deemed to be an “option  ARM”, “negative amortization” or “graduated payment” loan.  The Agent and the  Custodian may rely on the Seller’s representation and warranty that any  Purchased Loan amortizes over time.      (x) Each Mortgage is a Lien on the premises and property described in it  having the priority represented to the Agent, and the description of the Mortgaged  Premises in each Mortgage is legally adequate and, except in the case of a Second  Mortgage Loan which is a home equity line of credit, each Purchased Loan has been fully  advanced in its face amount.  





 






  Sch 15.3 - 6  Bodman_17772003_9  (y) No Purchased Loan is In Default except as to which the Seller has given  notice to the Agent (by reporting Purchased Loans that are delinquent Mortgage Loans).  (z) The Mortgaged Premises in each Mortgage is insured by a fire and  extended perils insurance policy and such other hazards as are customary in the area  where the Mortgaged Property is located or customary under the Seller’s servicing  procedures 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  Mortgage Loans, whichever is less.  If the Mortgaged Property is in an area identified by  any federal governmental authority as having special flood hazards, and flood insurance  is available, a flood insurance policy meeting the current guidelines of the Federal  Insurance Administration is in effect.  All such insurance policies (collectively, the  “hazard insurance policy”) contain a standard mortgage clause naming the originator and  its successors and assigns (including subsequent owners of the Mortgage Loan), as  mortgagee.  (aa) Each Purchased Loan is covered by an Investor Commitment or Hedge  Agreement.  * * * * * * * *   As used in this Schedule 15.3, the following terms have the following meanings:  “Appraisal” means an appraisal by a licensed appraiser selected in accordance with  Agency guidelines and not identified to the Seller as an unacceptable appraiser by an Agency,  and who is recognized and experienced in estimating the value of property of that same type in  the community where it is located, and who, unless approved by the Agent on a case-by-case  basis, is not a member, manager, director, officer or employee of the Seller or any Affiliate of the  Seller, or related as a parent, sibling, child or first cousin to any of the Seller’s or any such  Affiliate’s respective directors or officers or any of their spouses, a signed copy of the written  report of which appraisal is in the possession of the Seller or the applicable Servicer.  “Broker’s Price Opinion” means the written opinion of the value of a tract or parcel of  real property improved by a one-, two-, three- or four-family residence securing a Mortgage  Loan, issued by a real estate broker duly licensed as such by the jurisdiction in which the subject  property is located that is reasonably acceptable to the Agent and that is not an Affiliate of the  Seller or a director, member, manager, officer or employee of the Seller or any of its Affiliates,  selected reasonably and in good faith by the Seller.  “Current Appraisal” means an Appraisal dated no earlier than ninety (90) days (or such  longer period, if any, as the Agent shall approve) before the relevant Determination Date.  “Current Broker’s Price Opinion” means a Broker’s Price Opinion dated no earlier than  ninety (90) days (or such longer period, if any, as the Agent shall approve) before the relevant  Determination Date.  





 






  Sch 23 - 1  Bodman_17772003_9  SCHEDULE 23  TO Master Repurchase Agreement    Buyers’ Addresses for Notice  As of July 29, 2021  Comerica Bank:  Comerica Bank’s address appears in Article  23.    Truist Bank  Attention: Chad Cain  102 W. Pineloch Avenue, Suite 18  Orlando, FL 32806  Phone:  (407) 835-6681  Email:  chad.c.cain@truist.com     BMO Harris Bank N.A.  Attention: Matt Witt  115 S. LaSalle Street 19W  Chicago, IL 60603  Phone:  (312) 461-1609  Email: Matthew2.witt@bmo.com