UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. | Entry into a Material Definitive Agreement. |
On August 16, 2023, PennyMac Mortgage Investment Trust (the “Company”), through two of its indirect, wholly owned subsidiaries, PMT ISSUER TRUST - FMSR (“Issuer Trust”) and PennyMac Corp. (“PMC”), joined two additional lenders to the syndicated series of term notes (the “Series 2023-FTL1 Loan”), as part of the structured finance transaction that PMC uses to finance Fannie Mae mortgage servicing rights and related excess servicing spread and servicing advance receivables. The Company entered into (i) an amendment no. 1 and joinder (“Joinder Amendment”) to the Series 2023-FTL1 Indenture Supplement and Loan Agreement by and among Issuer Trust, as issuer, PMC, as administrator and servicer, Citibank, N.A., as indenture trustee (“Citibank”), calculation agent, paying agent and securities intermediary, Atlas Securitized Products, L.P., as administrative agent (“ASP”), and the syndicated lenders party thereto (the “Series 2023-FTL1 Loan Agreement”), related to the servicing spread, and (ii) an amendment no. 7, dated as of August 16, 2023, (the “Indenture Amendment”) to the base indenture, dated as of December 20, 2017 (the “Base Indenture”), by and among Issuer Trust, Citibank, as indenture trustee, calculation agent, paying agent and securities intermediary, PMC, as the servicer and administrator, and ASP, as administrative agent by assignment from Credit Suisse First Boston Mortgage Capital LLC. The initial 5-year term of the Series 2023-FTL1 Loan is set to expire on May 25, 2028, unless the Company exercises a one-year optional extension.
The note balance of the Series 2023-FTL1 Loan is increased by $215 million to $370 million. The other material terms of the Series 2023-FTL1 Loan are described in the Company’s Form 8-K filed on June 1, 2023.
The foregoing descriptions do not purport to be complete and are qualified in their entirety by reference to the other descriptions and the full text of the agreements and amendments in the following: (i) the Joinder Amendment and Indenture Amendment, which have been filed with this Current Report on Form 8-K as Exhibits 10.1 and 10.2, respectively, and (ii) the description of the Series 2023-FTL1 Loan and the full text of the Series 2023-FTL1 Loan Agreement, as filed in the Company’s Form 8-K on June 1, 2023 as Exhibit 10.1.
Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 of this report is incorporated herein by reference.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
Exhibit |
Description | |
10.1^ | Amendment No. 1 and Joinder, dated August 16, 2023, to the Series 2023-FTL1 Indenture Supplement and Loan Agreement, dated as of May 25, 2023, by and among PMT ISSUER TRUST - FMSR, Citibank, N.A., PennyMac Corp., Atlas Securitized Products, L.P., and the syndicated lenders party thereto | |
10.2 | Amendment No. 7 to the Base Indenture, dated as of August 16, 2023, by and among PMT ISSUER TRUST – FMSR, Citibank, N.A., PennyMac Corp. and Atlas Securitized Products, L.P. | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
^ | Portions of the exhibit have been redacted. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
PENNYMAC MORTGAGE INVESTMENT TRUST | ||||||
Dated: August 17, 2023 | /s/ Daniel S. Perotti | |||||
Daniel S. Perotti Senior Managing Director and Chief Financial Officer |
EXHIBIT 10.1
EXECUTION VERSION
[Information indicated with brackets has been excluded from this exhibit because it is
not material and would be competitively harmful if publicly disclosed]
AMENDMENT NO. 1 AND JOINDER TO
SERIES 2023-FTL1 INDENTURE SUPPLEMENT AND LOAN AGREEMENT
This Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement, is entered into as of August 16, 2023 (the Effective Date) (this Amendment), among PMT ISSUER TRUST - FMSR, as issuer (the Issuer), CITIBANK, N.A. (Citibank), as indenture trustee (in such capacity, the Indenture Trustee), calculation agent (in such capacity, the Calculation Agent), paying agent (in such capacity, the Paying Agent) and securities intermediary (in such capacity, the Securities Intermediary), PENNYMAC CORP. (PMC), as administrator (in such capacity, the Administrator) and as servicer (in such capacity, the Servicer), ATLAS SECURITIZED PRODUCTS, L.P., as administrative agent (the Administrative Agent), and the Additional Lenders (as defined herein). Capitalized terms used but not otherwise defined herein shall have the meanings given to them in the Indenture (as defined below).
RECITALS
WHEREAS, the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, Securities Intermediary, the Administrator, the Servicer and the Administrative Agent are parties to that certain Base Indenture, dated as of December 20, 2017 (as supplemented hereby, as amended by Amendment No. 1, dated as of April 25, 2018, Amendment No. 2, dated as of July 31, 2020, Amendment No. 3, dated as of October 20, 2020, Amendment No. 4, dated as of March 30, 2021, Amendment No. 5, dated as of June 28, 2022, Amendment No. 6, dated as of May 25, 2023, and Amendment No. 7, dated as of August 16, 2023, and as may be further amended, restated, supplemented or otherwise modified from time to time, the Base Indenture), the provisions of which are incorporated, as modified by that certain Series 2023-FTL1 Indenture Supplement and Loan Agreement, dated as of May 25, 2023 (the Existing Series 2023-FTL1 Indenture Supplement, as amended by this Amendment, the Series 2023-FTL1 Indenture Supplement, and together with the Base Indenture, the Indenture), by and among the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer, the Administrative Agent and the Lenders;
WHEREAS, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent have agreed, subject to the terms and conditions of this Amendment, that the Existing Series 2023-FTL1 Indenture Supplement be amended to reflect certain agreed upon revisions to the terms of the Existing Series 2023-FTL1 Indenture Supplement and to permit Veritex Community Bank and Western Alliance Bank to become additional Lenders (Additional Lenders) under the Series 2023-FTL1 Indenture Supplement.
WHEREAS, pursuant to Section 12.1 of the Base Indenture and Section 11 of the Existing Series 2023-FTL1 Indenture Supplement, without the consent of the Lenders, but with the consent of the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent, at any time and from time to time upon delivery of an Issuer Tax Opinion
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and upon delivery by the Issuer to the Indenture Trustee of an Officers Certificate to the effect that the Issuer reasonably believes such amendment will not have a material Adverse Effect and is not reasonably expected to have a material Adverse Effect, may amend any Transaction Document with prior notice to each Note Rating Agency that is then rating any Outstanding Notes, to increase the Note Balance from time to time to add additional Lenders;
WHEREAS, pursuant to Section 12.3 of the Base Indenture, in executing or accepting the additional trusts created by any amendment or Indenture Supplement of the Base Indenture permitted by Article XII or the modifications thereby of the trusts created by the Base Indenture, the Indenture Trustee will be entitled to receive, and (subject to Section 11.1 of the Base Indenture) will be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment or Indenture Supplement is authorized and permitted by the Base Indenture and that all conditions precedent thereto have been satisfied;
WHEREAS, pursuant to Section 1.3 of the Base Indenture and Section 11 of the Existing Series 2023-FTL1 Indenture Supplement, the Issuer shall deliver an Officers Certificate stating that all conditions precedent, if any, provided for in the Base Indenture relating to a proposed action have been complied with and that the Issuer reasonably believes that this Amendment will not have a material Adverse Effect, and shall also furnish to the Indenture Trustee an opinion of counsel stating that in the opinion of such counsel all conditions precedent to a proposed action, if any, have been complied with;
WHEREAS, pursuant to Section 11.1 of the Trust Agreement, prior to the execution of any amendment to any Transaction Documents to which the Trust is a party, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met;
WHEREAS, the Existing Series 2023-FTL1 Indenture Supplement is a Transaction Document;
WHEREAS, as of the date hereof, the Series 2023-FTL1 Promissory Term Notes are not rated by any Note Rating Agency.
NOW, THEREFORE, the Issuer, Indenture Trustee, the Administrator, the Servicer, the Administrative Agent and the Additional Lenders hereby agree, in consideration of the amendments, agreements and other provisions herein contained and of certain other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged by the parties hereto, that the Existing Series 2023-FTL1 Indenture Supplement is hereby amended as follows:
SECTION 1. Agreement and Joinder. Each Additional Lender (i) agrees to be bound by, and comply with, all terms and conditions of the Series 2023-FTL1 Indenture Supplement as a Lender under the Series 2023-FTL1 Indenture Supplement as if it were an original signatory thereto; (ii) agrees that this Amendment may be attached to the Series 2023-FTL1 Indenture Supplement and that by the execution and delivery hereof accepts the duties and responsibilities of a Lender under the Series 2023-FTL1 Indenture Supplement and agrees to assume the duties and be bound by each of the obligations of a Lender and is hereby made a party
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to, and a Lender under, the Series 2023-FTL1 Indenture Supplement; (iii) makes each representation and warranty made by a Lender under the Series 2023-FTL1 Indenture Supplement as if each such representation and warranty were set forth herein, mutatis mutandis; and (iv) makes each of the covenants and agreements made by a Lender under the Series 2023-FTL1 Indenture Supplement as if each such covenant or agreement were set forth herein, mutatis mutandis.
SECTION 2. Amendments to the Existing Series 2023-FTL1 Indenture Supplement.
2.1 As of the Effective Date, Exhibit B of the Existing Series 2023-FTL1 Indenture Supplement is hereby amended by deleting such exhibit in its entirety and replacing it with Exhibit A attached hereto.
2.2 As of the Effective Date, the Existing Series 2023-FTL1 Indenture Supplement is hereby amended by adding Section 22 in its proper numerical order:
Section 22. Term Loan Reports and Confidentiality.
The Administrator shall make available to each Lender (i) the Determination Date Report (not including the VFN Note Balance Adjustment Request), (ii) the information relating to the Portfolio Mortgage Loans and (iii) the Fannie Mae Eligibility Requirements compliance report on a monthly basis and the Market Value Report on a quarterly basis (collectively, the Term Loan Reports). The Administrator shall make such Term Loan Reports available to each Lender via third party data site, which site may require registration and the acceptance of a disclaimer. Each Lender agrees that the Term Loan Reports are subject to the same confidentiality provisions under its nondisclosure agreement with the Administrator.
SECTION 3. No Note Rating Agency. As of the date hereof and prior to the execution of this Amendment, the Series 2023-FTL1 Promissory Term Notes are not rated by any Note Rating Agency.
SECTION 4. Conditions Precedent. This Amendment shall become effective upon satisfaction of conditions precedent set forth in Schedule I hereto.
SECTION 5. Representations and Warranties. The Issuer hereby represents and warrants to the Indenture Trustee and the Administrative Agent that as of the date hereof it is in compliance with all the terms and provisions set forth in the Indenture on its part to be observed or performed remains bound by the terms thereof, and that no Event of Default has occurred or is continuing, and hereby confirms and reaffirms the representations and warranties contained in Section 9.1 of the Base Indenture.
SECTION 6. Limited Effect. Except as expressly amended and modified by this Amendment, the Indenture shall continue to be, and shall remain, in full force and effect in accordance with its terms.
SECTION 7. No Recourse. It is expressly understood and agreed by the parties hereto that (a) each of this Amendment and the Series 2023-FTL1 Promissory Term Notes is executed and delivered by Wilmington Savings Fund Society, FSB (WSFS), not individually or
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personally, but solely in its capacity as Owner Trustee of the Issuer under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it thereunder, (b) each of the representations, warranties, undertakings, obligations and agreements herein or in the Series 2023-FTL1 Promissory Term Notes made on the part of the Issuer is made and intended not as personal representations, warranties, undertakings, obligations and agreements by WSFS, but is made and intended for the purpose of binding only, and is binding only on, the Issuer, (c) nothing contained herein or in the Series 2023-FTL1 Promissory Term Notes shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant or obligation of the Issuer, either expressed or implied, contained herein or therein, all such liability, if any, being expressly waived by the parties hereto or thereto and by any Person claiming by, through or under the parties hereto or thereto, (d) WSFS has not made and will not make any investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Amendment, the Series 2023-FTL1 Promissory Term Notes or any related document delivered pursuant hereto and (e) under no circumstances shall WSFS, be personally liable for the payment of any indebtedness, indemnities or expenses of the Issuer or be liable for the performance, breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer or by WSFS, as Owner Trustee on behalf of the Issuer under this Amendment, the Series 2023-FTL1 Promissory Term Notes or any other related documents, as to all of which recourse shall be had solely to the assets of the Issuer.
SECTION 8. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns.
SECTION 9. GOVERNING LAW. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AMENDMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING THE STATUTES OF LIMITATIONS AND OTHER PROCEDURAL LAWS THEREOF (WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY) AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 10. Counterparts. This Amendment may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. The parties agree that this Amendment may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, Official Text of the Uniform Electronic Transactions Act as approved by the National Conference of Commissioners on Uniform State Laws at its Annual Conference on July 29, 1999 and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate document access tracking, electronic signature tracking and document retention.
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SECTION 11. Entire Agreement. The Indenture, as amended by this Amendment, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof, and fully supersedes any prior or contemporaneous agreements relating to such subject matter.
SECTION 12. Recitals. The recitals and statements contained in this Amendment shall be taken as the statements of the Issuer, and the Indenture Trustee does not assume any responsibility for their correctness. The Indenture Trustee does not make any representation as to the validity or sufficiency of this Amendment (except as may be made with respect to the validity of its own obligations hereunder). In entering into this Amendment, the Indenture Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct of, or affecting the liability of or affording protection to it.
SECTION 13. Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first above written.
PMT ISSUER TRUST FMSR, as Issuer | ||
By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee | ||
By: | /s/ Mark H. Brzoska | |
Name: | Mark H. Brzoska | |
Title: | Vice President |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
PENNYMAC CORP., as Servicer and as Administrator | ||
By: | /s/ Pamela Marsh | |
Name: | Pamela Marsh | |
Title: | Senior Managing Director and Treasurer |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
CITIBANK, N.A., as Indenture Trustee, and not in its individual capacity | ||
By: | /s/ Valerie Delgado | |
Name: | Valerie Delgado | |
Title: | Senior Trust Officer |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
ATLAS SECURITIZED PRODUCTS, L.P., as Administrative Agent | ||
By: Atlas Securitized Products GP, LLC, its general partner | ||
By: | /s/ Dominic Obaditch | |
Name: | Dominic Obaditch | |
Title: | Authorized Signatory |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
VERITEX COMMUNITY BANK, as an Additional Lender and a Noteholder | ||
By: | /s/ Stephanie L. Szymanski | |
Name: | Stephanie L. Szymanski | |
Title: | SVP Relationship Manager |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
WESTERN ALLIANCE BANK, | ||
as an Additional Lender and a Noteholder | ||
By: | /s/ Joshua Ormiston | |
Name: | Joshua Ormiston | |
Title: | Vice President |
[PMT FMSR Amendment No. 1 and Joinder to Series 2023-FTL1 Indenture Supplement and Loan Agreement]
SCHEDULE I
CONDITIONS PRECEDENT TO THE EFFECTIVENESS OF THIS AMENDMENT
1. | The execution and delivery of: |
a. | this Amendment by all parties hereto |
b. | the Series 2023-FTL1 Promissory Term Note No. 4 |
c. | the Series 2023-FTL1 Promissory Term Note No. 5 |
d. | the Syndication Services Agreement |
e. | the Syndication Agent Fee Letter |
f. | the Commitment Agreement (Veritex Community Bank) |
g. | the Commitment Agreement (Western Alliance Bank) |
h. | the Officers Certificate required to be delivered pursuant to Sections 1.3 and 12.1 of the Base Indenture and Section 11 of the Existing Series 2023-FTL1 Indenture Supplement |
i. | the Opinion of Counsel of Winston & Strawn LLP, as legal counsel to PMC and the Issuer, with respect to authorization required to be delivered pursuant to Sections 1.3 and 12.3 of the Base Indenture, Section 11 of the Series 2023-FTL1 Indenture Supplement and Section 11.1 of the Trust Agreement |
j. | the Issuer Tax Opinion of Winston & Strawn LLP, as legal counsel to PMC and the Issuer, with respect to certain tax matters required to be delivered pursuant to Sections 12.1 and 12.3 of the Base Indenture and Section 11 of the Existing Series 2023-FTL1 Indenture Supplement |
2. | Prior notice to the Rating Agency pursuant to Section 12.1 of the Base Indenture and Section 11 of the Existing Series 2023-FTL1 Indenture Supplement |
Schedule I
EXHIBIT A
EXHIBIT B
LIST OF LENDERS
Note Number |
Lender |
Wire Instructions |
Note Balance | Pro Rata Share |
||||||||
1 | First Foundation Bank | Bank Name: First Foundation Bank ABA: [*********] Address: 18101 Von Karman Ave., Suite 750, Irvine, CA 92612 Attention: Loan Service Department Account #: [********] Reference: PMT Issuer Trust - FMSR |
$ | 30,000,000 | 8.11 | % | ||||||
2 | NexBank | Bank Name: NexBank Account Name: NexBank Loan Clearing ABA #: [*********] Address: 2515 McKinney Ave, Suite 1100 Dallas, TX 75201 Account #: 140150 |
$ | 75,000,000 | 20.27 | % | ||||||
3 | Texas Capital Bank | Bank Name: Texas Capital Bank Account Name: Texas Capital Bank ABA: [*********] Address: 2350 Lakeside Blvd. Suite 800 Richardson, TX 75082 Account #: [******] Attn: Agency Services Ref: PMT Issuer Trust - FMSR |
$ | 50,000,000 | 13.51 | % | ||||||
4 | Veritex Community Bank | Bank Name: Veritex Community Bank Account Name: Wire Clearing ABA: [*********] Address: 8214 Westchester Drive, Suite 100, Dallas, TX 75225 Account #: [*********] Attn: loanparticipations@veritexbank.com Ref: PMT Issuer Trust FMSR [*********] |
$ | 65,000,000 | 17.57 | % |
Exhibit A
5 | Western Alliance Bank | Bank Name: Western Alliance Bank Account Name: Loan Suspense Account ABA: [*********] Address: Western Alliance Bank, 2701 E. Camelback Road, Suite 110, Phoenix, AZ 85016, ATTN: Loan Servicing Corporate Finance Account #: [***********] Ref: PMT Issuer Trust FMSR |
$ | 150,000,000 | 40.54 | % | ||||||
Aggregate Note Balance as of August 16, 2023 |
$ | 370,000,000 | 100 | % |
Exhibit A
EXHIBIT 10.2
EXECUTION VERSION
PMT ISSUER TRUST FMSR,
as Issuer
and
CITIBANK, N.A.,
as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary
and
PENNYMAC CORP.
as Servicer and Administrator
and
ATLAS SECURITIZED PRODUCTS, L.P.
as Administrative Agent
AMENDMENT NO. 7
Dated as of August 16, 2023
to the
Base Indenture
Dated as of December 20, 2017
This Amendment No. 7 (this Amendment) to the Base Indenture (as defined below) is entered into as of August 16, 2023, by and among PMT ISSUER TRUST FMSR, a statutory trust organized under the laws of the State of Delaware (the Issuer), CITIBANK, N.A. (Citibank), a national banking association, in its capacity as Indenture Trustee (in such capacity, the Indenture Trustee), as calculation agent (in such capacity, the Calculation Agent), as paying agent (in such capacity, the Paying Agent) and as securities intermediary (in such capacity, the Securities Intermediary), PENNYMAC CORP., a corporation organized under the laws of the State of Delaware (PMC), as servicer (in such capacity, the Servicer) and as administrator (in such capacity, the Administrator), and ATLAS SECURITIZED PRODUCTS, L.P., a Delaware limited partnership, as administrative agent (in such capacity, the Administrative Agent), and is consented to by each of NEXERA HOLDING LLC, as a Buyer (in such capacity, Buyer) under the Series 2017-VF1 Master Repurchase Agreement (as defined below), and CITIBANK, N.A, as a Buyer (in such capacity, Buyer) under the Series 2017-VF1 Master Repurchase Agreement (as defined below). Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Base Indenture (as defined below).
W I T N E S S E T H:
WHEREAS, the Issuer, the Indenture Trustee, the Calculation Agent, the Paying Agent, the Securities Intermediary, the Administrator, the Servicer and the Administrative Agent are parties to that certain Base Indenture, dated as of December 20, 2017 (as amended by Amendment No. 1, dated as of April 25, 2018, Amendment No. 2, dated as of July 31, 2020, Amendment No. 3, dated as of October 20, 2020, Amendment No. 4, dated as of March 30, 2021, Amendment No. 5, dated as of June 28, 2022, and Amendment No. 6, dated as of May 25, 2023, the Existing Base Indenture and, as may be further amended, restated, supplemented, or otherwise modified from time to time, the Base Indenture);
WHEREAS, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent have agreed, subject to the terms and conditions of this Amendment, that the Existing Base Indenture be amended to reflect certain agreed upon revisions to the terms of the Existing Base Indenture;
WHEREAS, pursuant to Section 12.1(b) of the Existing Base Indenture, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent (in its sole and absolute discretion) without the consent of any of the Noteholders or any other Person, upon delivery of an Issuer Tax Opinion unless such Issuer Tax Opinion is waived by the Series Required Noteholders of each Outstanding Series, for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Existing Base Indenture or modifying in any manner the rights of the Noteholders of the Notes under the Existing Base Indenture or any other Transaction Document; provided, however, that (i) the Issuer shall deliver to the Indenture Trustee an Officers Certificate to the effect that the Issuer reasonably believes that such amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future, and (ii) if any Outstanding Notes are then rated by a Note Rating Agency, (1) each such Note Rating Agency confirms in writing to the Indenture Trustee that such amendment will not cause a Ratings Effect on any Outstanding Notes or (2) if the Administrator and the Administrative Agents determine in
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their reasonable judgment that an applicable Note Rating Agency no longer provides such written confirmation described in the foregoing clause (1), (a) the Administrator shall provide notice of such amendment to the related Note Rating Agency and (b) the Administrative Agent shall have provided their prior written consent to such amendment;
WHEREAS, pursuant to Section 12.3 of the Existing Base Indenture, the Issuer shall also deliver to the Indenture Trustee an Opinion of Counsel stating that the execution of such amendment to the Existing Base Indenture is authorized and permitted by the Existing Base Indenture and that all conditions precedent thereto have been satisfied (the Authorization Opinion), and pursuant to Section 1.3 of the Existing Base Indenture, the Issuer will furnish to the Indenture Trustee (1) an Officers Certificate stating that all conditions precedent, if any, provided for in the Existing Base Indenture relating to the proposed action have been complied with, and (2) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with;
WHEREAS, pursuant to Section 11.1 of the Trust Agreement, prior to the execution of any amendment to any Transaction Documents to which the Trust is a party, the Owner Trustee is entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met; and
WHEREAS, pursuant to Section 6.23 of the Amended and Restated Master Repurchase Agreement, dated as of June 29, 2018 (as amended by Amendment No. 1, dated as of August 4, 2020, Amendment No. 2, dated as of August 9, 2021, Amendment No. 3, dated as of January 3, 2022, Amendment No. 4, dated as of March 30, 2022, Amendment No. 5, dated as of June 30, 2022, Amendment No. 6, dated as of September 30, 2022, Amendment No. 7, dated as of March 16, 2023, and Amendment No. 8, dated as of June 27, 2023, and as may be further amended, restated, supplemented or otherwise modified from time to time, the Series 2017-VF1 Master Repurchase Agreement), by and among the Administrative Agent, PMC, as Seller and the Buyers, PMC is required to receive the consent of the Buyers prior to the Seller consenting to any modification, amendment or termination of the Base Indenture.
NOW THEREFORE, in consideration of the premises and mutual agreements herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Issuer, the Indenture Trustee, the Administrator, the Servicer and the Administrative Agent hereby agree as follows:
SECTION 1. Amendment to the Existing Base Indenture.
Section 3.2(b)(xii)(B) of the Existing Base Indenture is hereby amended by deleting such section in its entirety and replacing it with the following:
(B) its Lender Adjusted Net Worth to total assets ratio is equal to or greater than the minimum capital required by the Fannie Mae Lender Contract;
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SECTION 2. Consent, Authorization and Direction.
(a) Each of the Issuer, the Buyers, the Indenture Trustee, the Administrator, the Servicer, the Owner Trustee and the Administrative Agent hereby consents to this Amendment, with such consent being evidenced by the execution and delivery of this Amendment.
(b) PMC hereby authorizes the Owner Trustee to execute and deliver, on behalf of the Issuer, this Amendment, with such authorization being evidenced by the execution and delivery of this Amendment by PMC. PMC hereby certifies that it is the sole Certificateholder under the Trust Agreement (in such capacity, the Owner) with the authority to instruct the Owner Trustee under Section 6.3 of the Trust Agreement and that the above referenced actions are duly authorized pursuant to the Trust Agreement and are not in violation of the terms of the documents to which the Trust is a party. In addition, the Owner agrees that all action taken by the Owner Trustee in connection with this instruction is covered by the fee and indemnification provisions set forth in the Trust Agreement and that the Owner Trustee shall be fully indemnified by the undersigned in connection with action taken pursuant to this instruction.
(c) The Indenture Trustee is hereby authorized and directed to execute (i) that certain Joinder and Amendment No. 1 to the Series 2023-FTL1 Indenture Supplement and Loan Agreement, dated as of the date hereof, and any other related documents.
SECTION 3. Conditions to Effectiveness of this Amendment. This Amendment shall be effective as of the date hereof, upon the occurrence of the following:
(a) the execution and delivery of this Amendment by all parties hereto;
(b) prior notice to each Note Rating Agency that is presently rating any Outstanding Notes and each Note Rating Agency currently rating the Outstanding Notes confirms in writing to the Indenture Trustee that this Amendment will not cause a Ratings Effect on any Outstanding Notes;
(c) the delivery of an Authorization Opinion;
(d) the delivery of an Issuer Tax Opinion;
(e) the Issuer shall have furnished to the Indenture Trustee (1) an Officers Certificate stating that (i) all conditions precedent, if any, provided for in the Base Indenture relating to the proposed action have been complied with and (ii) the Issuer reasonably believes that this Amendment could not have a material Adverse Effect on any Outstanding Notes and is not reasonably expected to have a material Adverse Effect at any time in the future and (2) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with; and
(f) the delivery of an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by the Trust Agreement and that all conditions precedent have been met.
SECTION 4. No Default; Representations and Warranties. PMC and the Issuer hereby represents and warrants to the Indenture Trustee and the Administrative Agent that as of the date hereof it is in compliance with all the terms and provisions set forth in the Existing Base Indenture on its part to be observed or performed and remains bound by the terms thereof, and that no Event of Default has occurred or is continuing on the date hereof, and hereby confirms and reaffirms the representations and warranties contained in Section 9.1 of the Existing Base Indenture.
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SECTION 5. Single Agreement. Except as expressly amended and modified by this Amendment, all of the terms and conditions of the Existing Base Indenture remain in full force and effect and are hereby reaffirmed.
SECTION 6. Successors and Assigns. This Amendment shall be binding upon the parties hereto and their respective successors and assigns.
SECTION 7. Severability. Each provision and agreement herein shall be treated as separate and independent from any other provision or agreement herein and shall be enforceable notwithstanding the unenforceability of any such other provision or agreement.
SECTION 8. GOVERNING LAW. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING UNDER OR RELATED TO OR IN CONNECTION WITH THIS AMENDMENT, THE TRANSACTIONS CONTEMPLATED BY THIS AMENDMENT, THE RELATIONSHIP OF THE PARTIES HERETO, AND/OR THE INTERPRETATION AND ENFORCEMENT OF THE RIGHTS AND DUTIES OF THE PARTIES HERETO WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, INCLUDING THE STATUTES OF LIMITATIONS AND OTHER PROCEDURAL LAWS THEREOF, WITHOUT REFERENCE TO THE CONFLICT OF LAW PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY) 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, each of which so executed shall be deemed to be an original, but all of such counterparts shall together constitute but one and the same instrument. The parties agree that this Amendment may be accepted, executed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq, Official Text of the Uniform Electronic Transactions Act as approved by the National Conference of Commissioners on Uniform State Laws at its Annual Conference on July 29, 1999 and any applicable state law. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the same extent as if it were physically executed and each party hereby consents to the use of any secure third party electronic signature capture service with appropriate document access tracking, electronic signature tracking and document retention.
SECTION 10. Owner Trustee Limitation of Liability. It is expressly understood and agreed by the parties hereto that (a) this Amendment is executed and delivered by Wilmington Savings Fund Society, FSB (WSFS), not individually or personally but solely in its capacity as Owner Trustee under the Trust Agreement, in the exercise of the powers and authority conferred and vested in it thereunder, (b) each of the representations, warranties, undertakings, obligations and agreements herein made on the part of the Issuer is made and intended not as
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personal representations, warranties, undertakings, obligations and agreements by WSFS but is made and intended for the purpose of binding only, and is binding only on, the Issuer, (c) nothing herein contained shall be construed as creating any liability on WSFS, individually or personally, to perform any covenant or obligation of the Issuer, either expressed or implied, contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, (d) WSFS has not made and will not make any investigation as to the accuracy or completeness of any representations or warranties made by the Issuer in this Amendment or any related document delivered pursuant hereto and (e) under no circumstances shall WSFS be personally liable for the payment of any indebtedness, indemnities or expenses of the Issuer, or be liable for the performance, breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Issuer or by WSFS as Owner Trustee on behalf of the Issuer under this Amendment or any other related documents, as to all of which recourse shall be had solely to the assets of the Issuer.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first above written.
PMT ISSUER TRUST - FMSR, as Issuer | ||
By: Wilmington Savings Fund Society, FSB, not in its individual capacity but solely as Owner Trustee | ||
By: | /s/ Mark H. Brzoska | |
Name: | Mark H. Brzoska | |
Title: | Vice President |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
CITIBANK, N.A., as Indenture Trustee, Calculation Agent, Paying Agent and Securities Intermediary and not in its individual capacity | ||
By: | /s/ Valerie Delgado | |
Name: | Valerie Delgado | |
Title: | Senior Trust Officer |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
PENNYMAC CORP., | ||
as Servicer and as Administrator | ||
By: | /s/ Pamela Marsh | |
Name: | Pamela Marsh | |
Title: | Senior Managing Director and Treasurer |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
ATLAS SECURITIZED PRODUCTS, L.P., as Administrative Agent | ||
By: Atlas Securitized Products GP, LLC, its general partner | ||
By: | /s/ Dominic Obaditch | |
Name: | Dominic Obaditch | |
Title: | Authorized Signatory |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
Consented By: | ||
NEXERA HOLDING LLC, as a Buyer under the Series 2017-VF1 Master Repurchase Agreement | ||
By: | /s/ Steve Abreu | |
Name: | Steve Abreu | |
Title: | CEO |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
Consented By: | ||
CITIBANK, N.A., as a Buyer under the Series 2017-VF1 Master Repurchase Agreement | ||
By: | /s/ Arunthathi Theivakumaran | |
Name: | Arunthathi Theivakumaran | |
Title: | Vice President |
[PMT ISSUER TRUST - FMSR Amendment No. 7 to Base Indenture]
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