barclaysamendmentno2toml






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





 






2  Repurchase Agreement, dated as of April 28, 2022, and (iii) Amendment No. 1 to Mortgage  Loan Participation Purchase and Sale Agreement Pricing Side Letter, dated as of April 28, 2022,  in each case, by the parties thereto.  Section 4. Effect of Amendment.  Except as expressly amended and modified  by this Amendment, all provisions of the MLPPSA shall remain in full force and effect and all  such provisions shall apply equally to the terms and conditions set forth herein.  After this  Amendment becomes effective, all references in the MLPPSA (or in any other document relating  to the Mortgage Loans) to “this Agreement,” “the Mortgage Loan Participation Purchase and  Sale Agreement,” “hereof,” “herein” or words of similar effect referring to such Agreement shall  be deemed to be references to such Agreement as amended by this Amendment.  This  Amendment shall not be deemed to expressly or impliedly waive, amend or supplement any  provision of the MLPPSA other than as set forth herein.  Section 5. Successors and Assigns.  This Amendment shall be binding upon  the parties hereto and their respective successors and assigns.  Section 6. Section Headings.  The various headings and sub-headings of this  Amendment are inserted for convenience only and shall not affect the meaning or interpretation  of this Amendment or the MLPPSA or any provision hereof or thereof.   Section 7. Representations.  In order to induce Purchaser to execute and  deliver this Amendment, Seller hereby represents to Purchaser that as of the date hereof (i) it is  in full compliance with all of the terms and conditions of the Program Documents and remains  bound by the terms thereof and (ii) no Default or Event of Default has occurred and is continuing  under the Program Documents.  Section 8. GOVERNING LAW.  THIS AMENDMENT SHALL BE  CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE  STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS  PRINCIPLES THEREOF (EXCEPT FOR SECTIONS 5-1401 AND 5-1402 OF THE NEW  YORK GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND  REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN  ACCORDANCE WITH SUCH LAWS.  Section 9. Counterparts.  This Amendment may be executed in any number of  counterparts, all of which shall constitute one and the same instrument, and any party hereto may  execute this Amendment by signing and delivering one or more counterparts.  The parties intend  that faxed signatures and electronically imaged signatures such as .pdf files shall constitute  original signatures and are binding on all parties.  The original documents shall be promptly  delivered, if requested. The parties agree that this Amendment, any addendum, exhibit or  amendment hereto or any other document necessary for the consummation of the transactions  contemplated by this Amendment may be accepted, executed or agreed to through the use of an  electronic signature in accordance with E-Sign, UETA and any applicable state law.  Any  document accepted, executed or agreed to in conformity with such laws will be binding on all  parties hereto to the same extent as if it were physically executed and each party hereby consents  to the use of any secure third party electronic signature capture service with appropriate  





 






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





 






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





 






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





 






  EXHIBIT A  065037.0000231 EMF_US 89666478v2  





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






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





 






C-1  Exhibit C RESERVED     





 






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





 






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





 






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





 






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





 






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