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Exhibit 10.1

 

EARLY PURCHASE PROGRAM

ADDENDUM TO LOAN PURCHASE AGREEMENT

 

This Early Purchase Program Addendum to Loan Purchase Agreement (the “Addendum”) is made and entered into as of May 1, 2009 by and between Bank of America, N.A. (“Bank of America”) and Home Loan Center, Inc. (“Seller”).  This Addendum supplements that certain Loan Purchase Agreement dated April 16, 2002  by and between Bank of America and Seller (including any and all Commitments, Amendments, Addenda, and Assignments related thereto, collectively, the “Loan Purchase Agreement”).  All capitalized terms used in this Addendum and not otherwise defined herein shall have the same meanings as set forth in the Loan Purchase Agreement and/or the Bank of America Correspondent Lending Seller’s Guide (the “Guide”), as applicable.

 

RECITALS

 

A.                                    Pursuant to the Loan Purchase Agreement, Bank of America may, from time to time, purchase mortgage loans from Seller subject to the terms and conditions set forth therein.

 

B.                                      Pursuant to that certain Master Repurchase Agreement (the “Repurchase Agreement”) dated May 1, 2009 by and between Bank of America and Seller, Bank of America may, from time to time, purchase mortgage loans from Seller subject to the terms and conditions set forth therein (such loans, the “Repurchase Loans”).

 

C.                                      Bank of America and Seller now desire to supplement the Loan Purchase Agreement to allow for the early purchase and sale of certain EPP Loans (as defined below), including certain of the Repurchase Loans, prior to delivery of certain mortgage loan documents.  The early purchase and sale of such EPP Loans hereunder shall be referred to herein as the “Early Purchase Program.”

 

In consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank of America and Seller hereby agree as follows:

 

1.                                        Eligible Loans.   Seller may submit to Bank of America for purchase under the Early Purchase Program all mortgage loan products and/or mortgage loan types as set forth in, and subject to any additional requirements of, Exhibit A (such mortgage loan products and mortgage loan types, “EPP Loans”).  Further, for purposes of this Addendum, certain of the Repurchase Loans, as approved by Bank of America, shall be deemed EPP Loans subject to the terms and conditions hereof.

 

2.                                        Procedures for Purchase of EPP Loans.   With respect to each EPP Loan that Seller desires to sell to Bank of America under the Early Purchase Program, Seller shall initiate a sale and purchase hereunder by (i) delivering to Bank of America an electronic collateral data record in a format acceptable to Bank of America that includes all information required by Bank of America with respect to the EPP Loan (each, a “Collateral Data Record”), (ii) delivering to Bank of America or its designee the applicable collateral documents (as set forth in Exhibit D , the “Collateral Documents”) and (iii) commit the loan to Bank of America as evidenced by a Bank of America commitment number applicable to the respective EPP Loan.  It shall be the responsibility of Seller to notify Bank of America of any loan, including any Repurchase Loan that Seller intends to offer to sell to Bank of America under the Early Purchase Program, including providing Bank of America with a schedule of any such loans, if necessary.  Seller shall deliver the Collateral Data Record and the Collateral Documents to Bank of America no later than 5:00 p.m. PST on the date prior to the Purchase Date (as defined below), and shall submit any revisions to such Collateral Data Record no later than 12:00 p.m. PST on the Purchase Date.  In the event that Bank of America determines that an EPP Loan is eligible for purchase and otherwise meets the

 

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requirements of this Addendum, the Loan Purchase Agreement and the Guide (collectively, the “Program Agreements”), which such determination shall be made by Bank of America in its sole and reasonable discretion, Bank of America shall purchase such EPP Loan on a date to be agreed upon by Bank of America and Seller or, if the EPP Loan has not yet closed, on the closing date of such EPP Loan (either, the “Purchase Date”).  Seller expressly understands and agrees that the information required in the Collateral Data Record and the method for delivery of the Collateral Data Record to Bank of America may be changed from time to time by Bank of America in its sole discretion.

 

3.                                        Calculation of the Purchase Price and Fees.

 

(a)                                   Initial Purchase Price .  As consideration for each EPP Loan to be purchased hereunder, Bank of America shall pay to Seller, on or before the Purchase Date, a portion of the estimated Final Purchase Price (as defined below) (such portion of the estimated Final Purchase Price, the “Initial Purchase Price”).  The Initial Purchase Price shall be equal to the lesser of (A) the product of the unpaid principal balance of the EPP Loan multiplied by the lesser of (i) the Initial Purchase Price Percentage (as defined below), (ii) par, or (iii) the estimated Final Purchase Price Percentage (as defined below) or (B) the product of the unpaid principal balance of the EPP Loan multiplied by ninety eight percent (98%) of the estimated Final Purchase Price Percentage of the EPP Loan.  Bank of America shall pay the Initial Purchase Price to Seller in accordance with the instructions set forth in Exhibit C .  It is understood and agreed that the Initial Purchase Price, being a portion of the estimated Final Purchase Price, includes a holdback amount to account for Bank of America’s post purchase review and confirmation that the EPP Loan fully complies with Bank of America’s requirements and may include as a holdback certain other normal and customary adjustments, fees and/or discounts made by or owed to Bank of America with respect to the EPP Loan under the Program Agreements.

 

(b)                                  Initial Purchase Price Percentage .  The Initial Purchase Price Percentage shall be that percentage as set forth on Exhibit A or as may be adjusted by Bank of America hereafter in accordance with this Addendum.  In addition to any other remedies afforded Bank of America, Bank of America may reduce the Initial Purchase Price Percentage in the event of Seller’s breach of its obligations under the Program Agreements.  Further, Bank of America may, from time to time, reduce the Initial Purchase Price Percentage to account for any changes in Seller’s financial condition and/or changes in general market conditions, which, in either case, Bank of America determines are material changes.

 

(c)                                   Recalculation of Initial Purchase Price During Review Period .  If, at any time during the Review Period (as defined below), (i) Bank of America reasonably determines that the loan characteristics of an EPP Loan are different than those originally represented by Seller and Bank of America reduces the Final Purchase Price Percentage for such EPP Loan, (ii) the Final  Purchase Price Percentage for any EPP Loan contained in any Assignment of Trade or Commitment applicable to such EPP Loan is reduced as permitted therein or (iii) any Assignment of Trade or Commitment applicable to any EPP Loan is cancelled as permitted therein and a new Assignment of Trade or Commitment is entered into by Bank of America and Seller with respect to such EPP Loan and the Final  Purchase Price Percentage for such EPP Loan is reduced in the new Assignment of Trade or Commitment, notwithstanding anything contained herein to the contrary, Bank of America shall have the right to recalculate the Initial Purchase Price paid for the related EPP Loan pursuant to subsection (a) above to account for any such reductions.  Further, if an Assignment of Trade or Commitment is cancelled during the Review Period and a new Assignment of Trade or Commitment is not entered into by Bank of America and Seller with respect to any EPP Loan, Bank of America shall have the right to determine the Final Purchase Price Percentage of the EPP Loan and recalculate the Initial Purchase Price pursuant to subsection (a) above based on its determination of the Final  Purchase Price Percentage of the EPP Loan.  In determining the Final Purchase Price

 

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Percentage of any EPP Loan as permitted in the foregoing sentence, Bank of America shall base its determination of the Final Purchase Price Percentage on the current market value of the EPP Loan and use reasonable industry standards to determine the current market value of the EPP Loan and shall provide Seller with at least one (1) Business Day prior notice of any such determination of the Final Purchase Price Percentage.

 

If any recalculated Initial Purchase Price for any EPP Loan as permitted herein is less than the original Initial Purchase Price paid by Bank of America to Seller for such EPP Loan, Seller shall, at Bank of America’s sole option, immediately refund to Bank of America the difference between the original Initial Purchase Price and the recalculated Initial Purchase Price.  Notwithstanding the foregoing, Bank of America shall be entitled to deduct from the Over/Under Account any such amounts required to be refunded by Seller to Bank of America hereunder.

 

(d)                                  Final Purchase Price .  Upon Bank of America’s review of the EPP Loan and the completion of the related Review Period (as defined below), Bank of America shall determine the Final Purchase Price Percentage and Final Purchase Price of the related EPP Loan.  The Final Purchase Price shall be an SRP Enhancement (as defined below).  The SRP Enhancement shall be equal to the product of (A) the difference between (i) the annual note rate of the EPP Loan and (ii) the SRP Enhancement Percent set forth in Exhibit A attached hereto plus the one month LIBOR rate multiplied by (B) the unpaid principal balance of the EPP Loan (the “SRP Enhancement”).  The EPP SRP Enhancement shall not be applicable for Specialty ARM’s (non-conforming PayOption ARM’s) unless as otherwise provided in the Addendum.  The SRP Enhancement shall be calculated for the period commencing on the Purchase Date and ending on the completion of the Review Period.  The difference between the Initial Purchase Price and the Final Purchase Price, if any, shall be debited or credited, as applicable, by Bank of America to the Over/Under Account in accordance with Section 4 hereof.

 

(e)                                   Final Purchase Price Percentage .  The Final Purchase Price Percentage shall be the estimated Final Purchase Price Percentage at the time the EPP Loan was sold to Bank of America, less any adjustments made thereto by Bank of America as permitted by the Program Agreements.  In addition to any other remedies afforded Bank of America, Bank of America may require Seller to repurchase such EPP Loan or Seller and Bank of America may negotiate a revised price based on current market conditions in the event of Seller’s breach of its obligations under the Program Agreements.  Further, Bank of America may require Seller to repurchase an EPP Loan or Seller and Bank of America may negotiate a revised price based on current market conditions for any changes in Seller’s financial condition and/or changes in general market conditions, which, in either case, Bank of America determines are material changes.

 

(f)                                     Fees .  Bank of America shall charge, and Seller shall be obligated to pay, in addition to any other fees applicable under the Program Agreements, a File Fee and a Disbursement Fee in connection with each EPP Loan purchased pursuant to this Addendum.  The current amounts of these fees, as well as the current amounts of any other fees which are applicable under the Early Purchase Program, are set forth in Exhibit J .  All fees under the Early Purchase Program may be changed by Bank of America from time to time upon notice to Seller and may be deducted by Bank of America from the Over/Under Account.

 

4.                                        Over/Under Account .

 

(a)                                   Over/Under Account; Minimum Balance; Failure to Maintain Minimum Balance . For purposes of this Addendum, Seller shall at all times maintain a balance in an account to be established and managed by Bank of America (the “Over/Under Account”).  The minimum balance in the Over/Under Account shall, at all times, be at least equal to the

 

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amount set forth in Exhibit J (the “Minimum Balance”).  To the extent Seller is required to maintain a similar balance under the terms of the Repurchase Agreement, any such balance maintained by Seller under the terms of the Repurchase Agreement shall be credited against the amount required to be maintained by Seller hereunder.  Unless otherwise agreed to by Bank of America, the Minimum Balance requirements of Seller with respect to the Over/Under Account as required under this Addendum shall not affect in any way the obligations of Seller to maintain a similar account and balance under any other agreement with Bank of America, its parent, subsidiaries and/or affiliates, including, without limitation, the minimum amount of the Over/Under Account required to be maintained by Seller with Bank of America.  Bank of America shall not be required to segregate and hold funds deposited by or on behalf of Seller in the Over/Under Account separate and apart from Bank of America’s own funds or funds deposited by or held for others.  In the event Seller fails to maintain the Minimum Balance in the Over/Under Account at any time, in addition to any other rights and remedies of Bank of America, Seller shall be obligated to pay Bank of America interest on any shortfall amount at the rate specified in Exhibit J for as long as the Minimum Balance fails to be maintained.

 

(b)                                  Offsets .  Notwithstanding the foregoing or anything to the contrary herein or hereafter, Seller expressly acknowledges and agrees that Bank of America is entitled to withdraw or debit from the Over/Under Account, or offset against any amounts owed by Bank of America to Seller, any amounts owed by Seller to Bank of America under this Addendum, the Loan Purchase Agreement or any other agreement(s) as between Seller and Bank of America.

 

(c)                                   Withdrawals .

 

(i)                                      Seller . If, at any time, the Over/Under Account balance exceeds the Minimum Balance, and the outstanding balance of EPP Loans for which the Review Period has not completed does not exceed any of the loan limits set forth in Section 7(f) , Seller shall be entitled to the return of all amounts in excess of the Minimum Balance.  Bank of America shall wire transfer all such requested excess amounts to Seller from the Over/Under Account not later than two (2) business days after receipt of written notice (facsimile and e-mail notices are acceptable for this purpose) thereof by Bank of America.  Notwithstanding the foregoing, Bank of America


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